Legal question

Comm · Sep 5, 2012

OK, I have been here for a while, and have gotten many good answers to questions. But, here is one that has bothered me for some time. It's a long story, and I hope I don't bore you with the details...

I was working as a Maintenance supervisor at an apartment complex in Lexington many years ago. One of our duties was to do evictions. Now we always got a LEO on site to make sure we didn't steal anything when the Home owner was not around. We would take their stuff, and set it on the street corner, and change the locks.

On one case, we evicted this guy and his wife. We followed properly procedure, and had an LEO on site just as always. The LEO tried 3 times to call the owner to tell him he was being evicted. Now if you have ever seen an eviction, especially around apartments, it's like buzzards circling overheard waiting for the LEO to leave, then it's fair game, and we were not bound to watch their stuff.

Well, this guy comes home, and finds that most of his belongings were gone. He yelled at the manager, and me for not telling him, and we pointed out the LEO tried to call him several times. He got mad and left the apartment office, and filed an arrest warrant for me and the manager. Now filing for an arrest is so easy, and I think this needs to change. All it takes is 4 dollars, and a file saying I saw someone break into a house, and the LEO's will be arresting you that night, which is what happened to me.

I got a lawyer, and went to a hearing, in which case the lawyer demanded a court date. He said you don't want them to get a case on you, so he demanded a date. He also got an investigator to look into the charges of theft by unlawful taking which is what the guy that was evicted filed against us. I should mention that this guy had 4 pages of arrests, and parole violations, and drug charges, while I did not even have a speeding ticket.

On the day of our court date, the lawyer and I went to the court house. No one was present. No judge, or people in the room. The lawyer checked and said the case was dismissed, meaning that we were clear and the case was dropped due to the investigator testifying for me and the manager.

I thought every thing was ok, until I filed for my CCW permit. Ky State police mailed back my app saying it had an arrest on it, of theft by unlawful taking. I thought it would be expunged automatically, but it didn't. Anyway, I had a lawyer friend tell me to get the court doc's saying that the case was dismissed, and had it sent to KY police, and got my CCW.

Now, if I am ever stopped, OC, or CC, and they run that check, will it come up that I have that arrest? My lawyer friend says that since it's been several years, I cannot get it expunged?

Any ideas/comments??

Sorry for the length of the story...

09jisaac · Sep 5, 2012

Expungement

Theft by unlawful taking

Sundiver · Sep 5, 2012

You don't mention whether it was a felony arrest or not. Unless it was a felony case why would they reject your CCW app? Actually my understanding was that unless you had a felony /conviction/ not just an arrest they would and could not reject for it or am I mistaken?

hotrod · Sep 5, 2012

Make sure the circuit clerk for Fayette County, where I assume the charges were made, files the dismissal. I am sure the state police returned it because it appeared to be an open case. The docket was never cleared. Happens in Kentucky more than you would think.

Comm · Sep 5, 2012

Sundiver said:
You don't mention whether it was a felony arrest or not. Unless it was a felony case why would they reject your CCW app? Actually my understanding was that unless you had a felony /conviction/ not just an arrest they would and could not reject for it or am I mistaken?

I don't know. The State Police just kicked it out without researching it I guess. I had to pay a whole 6 dollars to get the records from the court and have it notarized, and then have my lawyer friend do a statement saying I was represented by a lawyer. They then sent me the acceptance letter, and I went and got my permit.

Comm · Sep 5, 2012

hotrod said:
Make sure the circuit clerk for Fayette County, where I assume the charges were made, files the dismissal. I am sure the state police returned it because it appeared to be an open case. The docket was never cleared. Happens in Kentucky more than you would think.

They had the form, and the dismissal, so I guess it was just the State Police not checking on it. All they saw was the arrest record, and they kicked it out.

KYGlockster · Sep 5, 2012

Comm said:
OK, I have been here for a while, and have gotten many good answers to questions. But, here is one that has bothered me for some time. It's a long story, and I hope I don't bore you with the details...

I was working as a Maintenance supervisor at an apartment complex in Lexington many years ago. One of our duties was to do evictions. Now we always got a LEO on site to make sure we didn't steal anything when the Home owner was not around. We would take their stuff, and set it on the street corner, and change the locks.

On one case, we evicted this guy and his wife. We followed properly procedure, and had an LEO on site just as always. The LEO tried 3 times to call the owner to tell him he was being evicted. Now if you have ever seen an eviction, especially around apartments, it's like buzzards circling overheard waiting for the LEO to leave, then it's fair game, and we were not bound to watch their stuff.

Well, this guy comes home, and finds that most of his belongings were gone. He yelled at the manager, and me for not telling him, and we pointed out the LEO tried to call him several times. He got mad and left the apartment office, and filed an arrest warrant for me and the manager. Now filing for an arrest is so easy, and I think this needs to change. All it takes is 4 dollars, and a file saying I saw someone break into a house, and the LEO's will be arresting you that night, which is what happened to me.

I got a lawyer, and went to a hearing, in which case the lawyer demanded a court date. He said you don't want them to get a case on you, so he demanded a date. He also got an investigator to look into the charges of theft by unlawful taking which is what the guy that was evicted filed against us. I should mention that this guy had 4 pages of arrests, and parole violations, and drug charges, while I did not even have a speeding ticket.

On the day of our court date, the lawyer and I went to the court house. No one was present. No judge, or people in the room. The lawyer checked and said the case was dismissed, meaning that we were clear and the case was dropped due to the investigator testifying for me and the manager.

I thought every thing was ok, until I filed for my CCW permit. Ky State police mailed back my app saying it had an arrest on it, of theft by unlawful taking. I thought it would be expunged automatically, but it didn't. Anyway, I had a lawyer friend tell me to get the court doc's saying that the case was dismissed, and had it sent to KY police, and got my CCW.

Now, if I am ever stopped, OC, or CC, and they run that check, will it come up that I have that arrest? My lawyer friend says that since it's been several years, I cannot get it expunged?

Any ideas/comments??

Sorry for the length of the story...

Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?

self preservation · Sep 5, 2012

KYGlockster said:
Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?

Forcible detainer. I had to do an eviction one time. Like you said, I had to give them a letter that stated that they has 30 days to move. After the 30 days was up and they hadn't moved I had to take it to court. The judge heard both sides and ruled in my favor. At that point in time they had 7 days to vacate. But again, as you have said, they had an appeal process that they could have done. Lucky for me they didn't and just moved. They had all their stuff out and was long gone in 5 days but I still waited til the "dead line" before I entered the property....even though I had owned it for 6 years at that point. Just wanted to make sure I was legal.

Comm · Sep 5, 2012

KYGlockster said:
Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?

I think we did give them 30 days, but on day 31, we went in and changed the locks, and did the eviction. Like I said we had a LEO present, so everything was legal then. I know we never went to court over any we did. This was many years ago, so maybe the process changed some since then.

Comm · Sep 5, 2012

gutshot said:
Yes, so what? Its an arrest, not a conviction. Like you said, "Now filing for an arrest is so easy". I'd get a copy of the dismissal, if it still exists. I've got a couple myself.

Thanks Gutshot! I do have a copy of the dismissal, since I needed it to get my CCW permit.

self preservation · Sep 5, 2012

Comm said:
Like I said we had a LEO present, so everything was legal then.

I wouldn't be so sure. I highly doubt he knew much about civil law. Hell, they do good to understand criminal law at times. With that said, I am no expert of how to evict someone. All I can go off of is how I had to do it a few years back.

Comm · Sep 6, 2012

self preservation said:
I wouldn't be so sure. I highly doubt he knew much about civil law. Hell, they do good to understand criminal law at times. With that said, I am no expert of how to evict someone. All I can go off of is how I had to do it a few years back.

Well, we did it several times, so I guess they way they did it was ok. Never once had any problems, except the one time, for us.

KYGlockster · Sep 6, 2012

Comm said:
I think we did give them 30 days, but on day 31, we went in and changed the locks, and did the eviction. Like I said we had a LEO present, so everything was legal then. I know we never went to court over any we did. This was many years ago, so maybe the process changed some since then.

Just because a cop was there does not mean it was legal. If there wasn't an eviction order from the court then it was illegal. Something to remember if you are ever asked to do another one.

MKEgal · Sep 6, 2012

KYGlockster said:
Just because a cop was there does not mean it was legal.

+8,000 :exclaim:

ETA: why 8,000? That's the approximate cost the last time some cops decided to do something illegal to me, & compound the problem by lying on official reports. There were 3 cops present. Didn't stop any crimes from being committed.

09jisaac · Sep 6, 2012

You shouldn't have to have a Judge's permission to kick someone out of your own house. It is complete bullsh!t.

Right after my uncles mother died some people just moved right in to her house. Didn't have permission from anyone. My uncle's family took them to court and they ultimately got to stay rent free for 5 months (took a while to realize that people were living there and then a month to move out).

skidmark · Sep 6, 2012

Go look at the requirements for a CCDW. http://www.kentuckystatepolice.org/conceal.htm There's a list of disqualifications. Being arrested is not a disqualification.

I'd be following the procedures outlined in KRS 237.110 http://www.lrc.ky.gov/krs/237-00/110.pdf for appealing the denial. I'm not sure if you can proceed pro se in Kentucky for the hearing in front of the court. If you need to hire an attorney it should (repeat, "should") be a slam-dunk based on "My client is not disqualified. Issue him a CCDW."

Stop wasting time here and go follow the steps in the law.

stay safe.

KYGlockster · Sep 6, 2012

09jisaac said:
You shouldn't have to have a Judge's permission to kick someone out of your own house. It is complete bullsh!t.

Right after my uncles mother died some people just moved right in to her house. Didn't have permission from anyone. My uncle's family took them to court and they ultimately got to stay rent free for 5 months (took a while to realize that people were living there and then a month to move out).

It would also be bullsh!t to have a landlord come over and say get your sh*t and get out over any little disagreement or whatever. It would sure suck to have a couple kids, on time with the rent or even a little behind, and have someone tell you that you no longer have a place to live. Imagine if it was the middle of January and the same happened - someone would be homeless and living on the cold street with no roof over their head or a place to stay warm.

Having someone move into your home without having a rental agreement, a lease, or permission is a criminal offense. They could be charged with Criminal Trespass, and could be guilty of trying to illegally dispossess you of your property. How did they "move right in?" Did these people have permission to do so from your uncle's mother or something?

KYGlockster · Sep 6, 2012

self preservation said:
Forcible detainer. I had to do an eviction one time. Like you said, I had to give them a letter that stated that they has 30 days to move. After the 30 days was up and they hadn't moved I had to take it to court. The judge heard both sides and ruled in my favor. At that point in time they had 7 days to vacate. But again, as you have said, they had an appeal process that they could have done. Lucky for me they didn't and just moved. They had all their stuff out and was long gone in 5 days but I still waited til the "dead line" before I entered the property....even though I had owned it for 6 years at that point. Just wanted to make sure I was legal.

I went through this process once with a landlord. My one-year lease had expired, and we were operating on a month to month basis. I informed him that I would not be renewing my lease the following month, and removed all of my belongings into my new residence. I was at the garage/apartment one day making sure I had not left anything and a deputy pulled up and served me a summons to appear in court. I was rather curious why this was since I had already removed my belongings, was up on my rent, and he still had my security deposit. He took me to court for an eviction hearing, and when I told the judge I had already evicted myself, he was was going to give me 30 extra days to remove any of my belongings. I of course told him I didn't need the time, and that was the end of that process.

The landlord decided that was not what he wanted to hear, so he threatened to sue me for damages to the apartment. The only damages to the entire apartment that I made was a door with a hole where I dropped a piece of furniture into it, and a broken spindle on the porch outside. He had a security deposit of mine for $450 and I told him to keep it and fix what needed to be fixed. The other damage was to the wiring in the apartment, which caught fire in the ceiling and I removed a light fixture to check on the problem, and never put it back after telling him of the problem. He tried saying the wiring default was my fault, and that I owed him for a large amount of damages that I was not going to pay for.

Anyways, I threatened him with calling the electrical inspector to determine if the inconsistent wiring (a major code violation) was my fault or his. I also threatened to inform the local prosecutor of his illegally registered vehicles. He was committing insurance fraud and when he realized I knew it he decided to back off. He was registering all of his vehicles in Ohio, even though these vehicles never left the state of Kentucky, and he had numerous vehicles.

The point I guess I am trying to make is that some landlords will try to rape you when you leave their property. Most of the time they don'e like having property set with no one renting, and it costs them money. The laws are in place for a good reason I believe, and I recommend everyone that rents keep track of everything that concerns the rental property. You should always walk through with the landlord before renting and video the process and point out all damages before you move in. And it never hurts to know what your landlord is doing that might be illegal! HAHA.

KYGlockster · Sep 6, 2012

gutshot said:
This may be worst case of thread highjacking I've ever seen. It started by Comm asking if a old dismissed charge will continue to show up on his record as an arrest and then morphed into a discussion of landlord-tenet law. You should take that discussion to www.evictions.org. Now, it has gone to advice on how to reverse a CCDW denial. The man has not been denied a CCDW. He got it years ago. It appears that he may have had to provide the disposition of an unexplained arrest that showed up during the background check, but it was all taken care of very quickly and effectively a long time ago. Many Ky. jurisdictions were very lax in communicating how cases were disposed of years ago. If you were convicted, that omittion was a blessing. If you were aquitted or the charge dismissed, not so good for you. A few years ago the Ky. court system wiped out all records of criminal court proceedings. It was supposed to be for misdemeanors only, but somebody pushed the wrong button and everything when bye-bye. There was a little finger pointing for a short time, then they decided that it was making everybody look bad and hushed it up. I can't remember the effective date, but no records exist for any cases before that time. The arrest records are still there, though. Funny how that works.

You are right, and I believe his question was answered before the conversation morphed into this direction.

KBCraig · Sep 6, 2012

gutshot said:
Yes, so what? Its an arrest, not a conviction.

And, an arrest is on your record forever unless you have it expunged. It doesn't mean you did anything wrong, just that you were arrested.

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