Re1955port Title:

Drugs; Nuisance Abatement

Description:

Authorizes temporary, preliminary, and permanent injunctive relief and other remedies to abate drug nuisances; encourages owners, landlords, operators, and managers of buildings, places, or premises to take the affirmative steps necessary to prevent drug violations on their properties.

HOUSE OF REPRESENTATIVES

H.B. NO.

 

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO DRUGS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that, despite efforts by law enforcement, private and commercial premises remain the sites of repeated drug distribution violations. These locations attract criminals and the violence and threat of violence associated with illicit drug trade. The continued occurrence of criminal activities at these locations is detrimental to the public health, safety, and welfare. Drug nuisances reduce property values, injure legitimate businesses and commerce, and erode the quality of life for law-abiding persons working or residing in or near these locations.

Property owners, landlords, managers, and operators have an affirmative duty to take the actions necessary to prevent drug violations from occurring on their properties and to abate existing drug nuisances. These affirmative duties are no less important than the duty to maintain properties in accordance with applicable building, fire, zoning, safety, and similar codes, ordinances, rules, and regulations designed to protect the health, safety, and welfare of residents, workers, invitees, neighbors, and other persons.

The ongoing existence of a drug nuisance is detrimental to the public interest and warrants prompt injunctive relief by the courts. It is the express policy of this State to authorize and encourage courts to issue temporary restraining orders or preliminary injunctions pursuant to this Act upon a finding that a drug nuisance exists. It is not necessary for any authorized plaintiff seeking temporary or preliminary injunctive relief to establish any specific or irreparable injury arising from the drug nuisance. The existence of any remedy at law shall not prevent the granting of injunctive relief pursuant to this Act.

The civil actions for injunctive relief, damages, and penalties authorized by this Act are remedial rather than punitive in nature. Penalties collected are not intended to punish culpable defendants, but rather to compensate the community at large, by providing funding for additional treatment, neighborhood rehabilitation, drug prevention, and drug education costs. Damages awarded to individual plaintiffs are intended to compensate the individuals for specific losses to their businesses or properties.

It is the policy of this State to ensure that the civil actions and remedies authorized by this Act be heard by the courts on a priority basis to expeditiously identify and abate drug nuisances.

It is necessary to ensure the certain, expeditious, and uniform enforcement by the courts of the rights, duties, and remedies established in this Act. Certainty, predictability, and uniformity in enforcement are essential to encourage property owners, landlords, managers, and operators to take affirmative steps necessary to prevent their properties from first becoming the sites of drug violations.

The purpose of this Act is to authorize temporary, preliminary, and permanent injunctive relief and other remedies to abate drug nuisances. An additional purpose is to encourage owners, landlords, operators, and managers of buildings, places, or premises to take the affirmative steps necessary to prevent drug violations on their properties.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

DRUG NUISANCE ABATEMENT

§   -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Controlled substance" shall have the same meaning as in section 329-1.

"Distribute" or "distribution" shall have the same meaning as in section 329-1, and "to distribute" in section 712-1240.

"Drug distribution event" means the unlawful manufacture, distribution, sale, or possession with intent to distribute, sell, or deliver a controlled substance or an unlawful attempt or conspiracy to commit such act.

"Drug nuisance" means a premise at which:

(1) Three or more separate drug distribution events have occurred within the period of one year prior to the commencement of the civil action under this chapter;

(2) On three or more separate occasions within the period of one year prior to the commencement of the civil action under this chapter, two or more persons who did not reside in or upon the site gathered for the principal purpose of unlawfully ingesting, injecting, inhaling, or otherwise using a controlled substance, whether or not any such controlled substance was unlawfully distributed or purchased at that location;

(3) Any amount of controlled substance has been manufactured, or more than fifty marijuana plants have at any one time been grown or cultivated, or any controlled substance in an amount of one pound or more has at any one time been unlawfully stored, warehoused, concealed, or otherwise kept, whether or not three or more separate such unlawful acts have occurred within any prescribed period of time; or

(4) The site was used or is being used in any way in furtherance of or to promote or facilitate the commission of any drug distribution event, whether or not three or more separate violations have occurred within any prescribed period of time.

"Manufacture" shall have the same meaning as in sections 329-1 and 712-1240.

"Neighborhood or community organization" means a group, whether or not incorporated, that consists of persons who reside or work in a building or complex of buildings on a street, block, or neighborhood any part of which is located on or within one thousand feet of the premises alleged to be a drug nuisance, that was established for the purpose of benefiting the quality of life in its neighborhood or community, including treatment programs.

"Owner" means any person in whom is vested the ownership and title of property, and who is the owner of record. "Owner" shall include any county, state, or federal governmental entity.

"Person" means a natural person, corporation, association, partnership, trustee, lessee, agent, assignee, enterprise, governmental entity, and any other legal entity or group of individuals associated in fact that is capable of holding a legal or beneficial interest in property.

"Possession with intent to distribute" shall have the same meaning as used in section 712-1249.6.

"Sale" or "sell" shall have the same meaning as "to sell" in section 712-1240.

§   -2 Nature of actions and jurisdiction. The causes of action established in this chapter are civil actions to enjoin the commission of drug distribution events, to close down and physically secure premises or portions thereof that constitute drug nuisances and to otherwise abate such drug nuisances, and to impose civil penalties. These actions shall be brought in the circuit court, which shall have jurisdiction to issue temporary, preliminary, or permanent injunctive or other equitable relief, whether or not an adequate remedy exists at law.

§   -3 Standard of proof. Except as may be otherwise expressly provided, the civil causes of action established in this chapter shall be proved by a preponderance of the evidence.

§   -4 Parties. (a) A civil action for temporary, preliminary, or permanent injunctive relief or for penalties pursuant to this chapter may be brought by:

(1) The attorney general or corporation counsel or county attorney representing any state or county governing body that has jurisdiction over the location at which the alleged drug nuisance exists;

(2) The attorney general and county prosecutor having jurisdiction where the alleged drug nuisance exists;

(3) Any neighborhood or community organization as defined in this chapter; or

(4) Any person who resides, is employed full or part-time at the site of a business premise, or owns or operates a business premise, on or within one thousand feet of any alleged drug nuisance.

(b) A civil action pursuant to this chapter shall be brought against the owner, and may also be brought against any person within the jurisdiction of the court who is a landlord, tenant, manager, operator, or supervisor of any premises alleged to be a drug nuisance. In addition, the court shall have in rem jurisdiction over the premises alleged to be a drug nuisance, and the complaint initiating a civil action pursuant to this chapter shall name as a defendant the premises involved, describing it by block, lot number, and street address, or by such other means as are appropriate in the circumstances.

(c) In any action brought pursuant to this chapter, every pleading, motion, and other paper of a party shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. The signature of an attorney constitutes a certificate by the signer that:

(1) The signer has read the pleading, motion, or other paper;

(2) That to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and

(3) That it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this subsection, the court, upon motion or upon its own initiative, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

(d) No person or entity shall be required to post any bond or security as a condition of initiating or prosecuting any action brought pursuant to this chapter.

(e) Any person or entity who upon an oath in writing states the affiant is preparing to initiate an action pursuant to this chapter may request that the bureau of conveyances or land court promptly provide the name and address of all owners of the premises as reflected upon the current records of ownership, without charge.

(f) The person in whose name the premises involved is recorded in the bureau of conveyances or land court shall be presumed to be the owner thereof.

(g) Whenever there is evidence that a person was the manager, operator, supervisor, or was in any other way in charge of the premises involved at the time any conduct constituting the drug nuisance is alleged to have been committed, that evidence shall constitute a rebuttable presumption that the person was an agent or employee of the owner, landlord, or lessee of the premises.

§   -5 Notice to interested parties. (a) A complaint initiating an action pursuant to this chapter shall be personally served and notice to all in personam defendants shall be provided in the same manner as serving complaints in civil actions. After filing an affidavit that personal service cannot be had after due diligence on one or more in personam defendants within twenty days after the filing of the complaint, the plaintiff may:

(1) Cause a copy of the complaint to be mailed to the defendant by certified mail, restricted delivery, return receipt to the clerk of court requested; and

(2) Cause a copy of the complaint to be affixed conspicuously to the premises alleged to be a drug nuisance.

Service shall be deemed completed five days after filing with the court proof of such mailing and an affidavit that a copy of the complaint has been affixed to the premises.

(b) All tenants or residents of any premises which is used in whole or in part as a business, home, residence, or dwelling, other than transient guests of a guest house, hotel, or motel, who may be affected by any order issued pursuant to this chapter shall be provided such reasonable notice as shall be ordered by the court and shall be afforded opportunity to be heard at all hearings.

(c) Notice of pendency of action or lis pendens shall be filed concurrently with the commencement of the action in the same manner as is generally provided for by law or court rule.

§   -6 Substitution of plaintiff. When a court determines in its discretion that the plaintiff bringing an action pursuant to this chapter has failed to prosecute the matter with reasonable diligence, the court may substitute as plaintiff any person or entity that consents thereto; provided that such person or entity would have been authorized pursuant to this chapter to initiate the action.

§   -7 Expedited priority proceedings; criteria for granting continuances. (a) All actions for injunctive relief or civil penalties brought pursuant to this chapter shall be heard by the court on an expedited and priority basis.

(b) The court shall not grant a continuance except for compelling and extraordinary reasons, or on the application of the prosecuting attorney for good cause shown.

(c) The court shall not stay the civil proceedings pending the disposition of any related criminal proceeding except upon the application of the attorney general or a prosecuting attorney for good cause shown.

(d) The court shall not dismiss an action brought pursuant to this chapter for want of prosecution unless the court is clearly convinced that the interests of justice require such dismissal. In that event and upon such a finding, the dismissal shall be without prejudice to the right of the plaintiff or any other person or entity authorized to bring an action pursuant to this chapter to reinstitute the action.

§   -8 Issuance of preliminary closing order and preliminary restraining order. (a) Any person or entity authorized to bring a civil action for injunctive relief pursuant to this chapter may file a complaint seeking preliminary injunctive relief by alleging that the premises constitutes a drug nuisance. Upon receipt of the complaint, the court shall order a preliminary hearing which shall not be later than thirty days from the date of the order. Service shall be made upon the owners of the premises pursuant to section    -5(a) not less than five days prior to the hearing. In the event that service cannot be completed in time to give the owners the minimum notice required by this subsection, the court may set a new hearing date.

(b) If the court finds that:

(1) The premises constitutes a drug nuisance;

(2) At least thirty days prior to the filing of the complaint seeking preliminary injunctive relief, the owner or the owner's agent had been notified by certified mail of the drug nuisance; or

(3) The public health, safety, or welfare immediately requires a preliminary closing order,

the court shall issue an order to close the premises involved or the portions appropriate in the circumstances. The order shall direct actions necessary to physically secure the premises, or appropriate portions thereof, against use for any purpose. The preliminary closing order shall also restrain the defendant and all persons from removing or in any manner interfering with the furniture, fixtures, and movable or personal property located on or within the premises constituting the drug nuisance.

(c) If the court finds that the premises constitutes a drug nuisance but that immediate closing of the premises is not required pursuant to subsection (b), the court may enjoin the drug nuisance and issue an order restraining the defendants and all other persons conducting, maintaining, aiding, abetting, or permitting drug distribution events constituting the drug nuisance. Additionally, the court may issue an order appointing a temporary receiver to manage or operate the premises. A temporary receiver shall have the powers and duties specifically authorized pursuant to section -13(a)(6).

(d) In determining whether the public health, safety, or welfare immediately requires a preliminary closing order, the court shall consider any relevant evidence presented concerning any attendant circumstances, including but not limited to whether the alleged drug distribution events or related activities involve the use or threat of violence at or near the site alleged to be a drug nuisance, or whether the alleged drug distribution events in any way involve distribution or sale of a controlled substance by or to a juvenile, or whether the site alleged to be a drug nuisance is located within seven hundred fifty feet of the real property comprising a public or private elementary or secondary school or public park.

§   -9 Enforcement of preliminary closing and restraining orders. (a) Upon order of the court, preliminary restraining and closing orders shall be enforced by the county police, department of public safety, or the attorney general.

(b) The officers serving a temporary closing order or a temporary restraining order shall file with the court an inventory of the personal property situated in or on the premises closed and shall be allowed to enter the premises to make the inventory. The inventory shall provide an accurate representation of the personal property subject to such inventory including, but not limited to, photographing of furniture, fixtures, and other personal or movable property.

(c) The officers serving a preliminary closing order, upon service of the order, shall demand all persons present in the closed premises, to vacate the premises or portion thereof forthwith unless the court orders otherwise. The premises or portion thereof shall be securely locked and all keys shall be held by the agency closing the premises.

(d) Upon service of a preliminary closing order or a preliminary restraining order, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of the premises. In addition, where a preliminary closing order has been granted, the officers shall affix, in a conspicuous place or upon one or more of the principal entrances of the premises, a printed notice that the entire premises or portion thereof have been closed by court order, which notice shall contain the legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises. The printed notice shall also include the date of the order, the court which issued the order, and the name of the office or agency posting the notice. In addition, where a preliminary restraining order has been granted, the officer shall affix, in the same manner, a notice similar to the notice provided for in relation to a preliminary closing order except that the notice shall state that certain activity is prohibited by court order and that removal of furniture, fixtures, or other personal or movable property is prohibited by court order.

(e) Any person who without lawful authority mutilates or removes any order or notice posted in accordance with subsection (d) is guilty of a misdemeanor.

(f) Any person who knowingly or purposely violates any preliminary restraining order or closing order issued pursuant to this chapter shall be subject to civil contempt as well as punishment for criminal contempt pursuant to section 710-1077.

§   -10 Notification and provision of treatment resources. (a) The officers serving a preliminary closing order as provided in section    -9(c), shall provide outreach information and referral materials to all residents present on how to obtain alcohol and other drug treatment.

(b) The court, no less than ten days prior to the removal of any persons pursuant to this chapter, shall cause notice to be provided to an alcohol and other drug agency, child welfare agency, and other appropriate social service agencies.

(c) A one-page summary of the information and materials shall be posted next to any preliminary closing order or preliminary restraining order posted in accordance with section    -9(d).

(d) The department of health or its designee shall prepare all materials described in subsections (a) and (b), and shall disseminate them to all police departments, the department of public safety, and the attorney general.

§   -11 Premises involving multiple residences or businesses. (a) Where the premises constituting the drug nuisance includes multiple residences, dwellings, or business establishments, a preliminary or permanent closing order issued pursuant to any provision of this chapter, so far as is practicable, shall be limited to that portion of the entire premises necessary to abate the nuisance and prevent the recurrence of drug distribution events.

(b) In addition to any other relief expressly authorized by this chapter, the court may order a defendant who knew or had reason to know of the nuisance, to provide relocation assistance to any tenant ordered to vacate a premises pursuant to this chapter; provided that the court determines that the tenant was not involved in any drug distribution event constituting the nuisance and did not knowingly aid in the commission of any drug distribution event. Relocation assistance shall be in the amount necessary to cover moving costs, security deposits for utilities and comparable housing, any lost rent, and any other reasonable expenses the court may deem fair and reasonable as a result of the court's order to close a premises or any portion thereof pursuant to this chapter.

§   -12 Vacating or modifying closing order before trial on application of a defendant. (a) The court upon application of a defendant, at any time before trial, may vacate or modify a closing order, after notice to the person or entity bringing the action pursuant to this chapter, where the defendant clearly and convincingly shows that the defendant was not in any way involved in the commission of any drug distribution event constituting the nuisance, and the defendant further:

(1) Provides a bond or undertaking in an amount equal to the assessed value, for property tax purposes, of the premises or portion thereof subject to the closure order, or such other amount fixed by the court, and the court determines that the public health, safety, or welfare will be adequately protected thereby; or

(2) Submits clear and convincing proof to the court that the drug nuisance has been satisfactorily abated and will not recur. In determining whether the drug nuisance has been satisfactorily abated and will not recur, the court shall consider the nature, severity, and duration of the drug nuisance and all other relevant factors, including but not limited to the following:

(A) Whether the defendant through the exercise of reasonable diligence should have known that drug distribution events were occurring on the premises, and whether the defendant took steps necessary and appropriate in the circumstances to prevent the commission of those events;

(B) Whether the defendant has in good faith initiated eviction or removal actions pursuant to state laws against tenants or other persons who committed drug distribution events on the premises involved, immediately upon learning of a factual basis for initiating the eviction or removal action; and

(C) Whether the defendant has developed an abatement plan which has been agreed to by the person or entity bringing the action pursuant to this chapter and has been approved by the court. The abatement plan may provide for:

(i) Hiring an on-site manager to prevent the recurrence of drug distribution events;

(ii) Making capital improvements to the property, such as security gates;

(iii) Installing improved interior or exterior lighting;

(iv) Employing security guards;

(v) Installing electronic security or visual monitoring systems;

(vi) Establishing tenant-approved security procedures;

(vii) Attending property management training programs;

(viii) Making cosmetic improvements to the property;

(ix) Providing, at no cost, suitable space and facilities for a police substation or mini-station on or near the site of the drug nuisance; or

(x) Establishing any other program or initiative designed to enhance security and prevent the recurrence of drug distribution events on or near the premises involved.

(b) Where the court accepts a bond or undertaking pursuant to subsection (a), and conduct constituting a drug nuisance recurs, the bond or undertaking shall be forfeited unless the court finds compelling and extraordinary reasons why such forfeiture would not be in the interests of justice. Any moneys forfeited pursuant to this section shall be paid into the dedicated fund established in section -15(d).

§   -13 Permanent injunction and other relief. (a) Where the court after trial finds that a premises is a drug nuisance, the court shall grant permanent injunctive relief and shall issue orders as are necessary to abate the drug nuisance and to prevent to the extent reasonably possible the recurrence of the drug nuisance. The court's order may include, but need not be limited to all of the following:

(1) Directing the sheriff or other appropriate agency to seize and remove from the premises all material, equipment, and instrumentalities used in the creation and maintenance of the drug nuisance, and directing the sheriff to sell the property in the manner provided for the sale of personal property under execution in accordance with the general rules of civil procedure. The net proceeds of any such sale, after the deduction of all lawful expenses involved, shall be paid into the dedicated fund established in section -15(d);

(2) Authorizing the plaintiffs to make repairs, renovations, and construction and structural alterations or to take such other actions necessary to bring the premises into compliance with all applicable housing, building, fire, zoning, health and safety codes, ordinances, rules, regulations, or statutes. Expenditures may be filed as a lien against the property;

(3) Directing the closing of the premises, or appropriate portion thereof, to the extent necessary to abate the nuisance, and directing the officer or agency enforcing the closure order to post a copy of the judgment and a printed notice of such closing order conforming to the requirements of section -12(d). The closing directed by the judgment shall be for such period of time as the court may direct but, subject to the provisions of section -20, shall not be for a period of more than one year from the posting of the judgment;

(4) Suspending or revoking any business, professional, operational, or liquor license;

(5) Ordering the suspension of any state or county governmental subsidies payable to the owners of the property, such as tenant assistance payments to landlords, until the nuisance is satisfactorily abated;

(6) Appointing a temporary receiver to manage or operate the premises for such time as the court deems necessary to abate the nuisance. A receiver appointed pursuant to this section shall have such powers and duties as the court shall direct, including but not limited to:

(A) Collecting, holding, and dispersing the proceeds of all rents due from all tenants;

(B) Leasing or renting portions of the premises involved;

(C) Making or authorizing other persons to make necessary repairs or to maintain the property;

(D) Hiring security or other personnel necessary for the safe and proper operation of the premises;

(E) Retaining counsel to prosecute or defend suits arising from the receiver's management of the premises; and

(F) Expending funds from the collected rents in furtherance of the foregoing powers.

A receiver appointed by the court pursuant to this section or section -11(c) shall be sworn and shall affirm faithfully and fairly to discharge the trust committed to the receiver. In addition, the receiver may be required to post a bond or undertaking in an amount to be fixed by the court making the appointment, to ensure that the receiver will faithfully discharge the receiver's duties.

(b) Imposing any or all of the foregoing remedies in combination with each other.

§   -14 Presumption of closure; vacation of closure after abatement of nuisance and proof that nuisance is not likely to occur. (a) Where the court after trial determines that a premises constitutes a drug nuisance, the court shall order the closure of the premises or appropriate portion or portions thereof pursuant to section -16(c), unless the court is clearly convinced that any vacancy resulting from the closure would exacerbate rather than abate the nuisance or would otherwise be extraordinarily harmful to the community or the public interest.

(b) The court at any time after trial may vacate the provisions of the judgment that direct the closing of the premises or any portion thereof provided that the defendant submits clear and convincing proof to the court that the drug nuisance has been satisfactorily abated and is not likely to recur. In determining whether the drug nuisance has been satisfactorily abated and is not likely to recur, the court shall consider the nature, severity, and duration of the drug nuisance and all other relevant factors, including but not limited to those factors set forth in section    -15(a).

§   -15 Penalties. (a) Where the court after trial finds that a premises is a drug nuisance, the court in addition to granting appropriate injunctive relief shall impose a civil penalty against a defendant who knowingly conducted, maintained, aided, abetted, or permitted a drug nuisance. The penalty shall be $25,000 or the market value of the entire premises involved, whichever amount is greater, unless the court finds, based on the evidence, that imposition of the penalty would constitute a miscarriage of justice under the totality of the circumstances. In that case, it may lower the penalty amount to the extent necessary to avoid the miscarriage of justice.

(b) For the purpose of imposing a civil penalty pursuant to this section, the following shall be prima facie evidence that the defendant knowingly permitted the drug nuisance:

(1) The defendant failed to initiate an eviction action against a tenant after being notified by certified or registered mail of the tenant's drug distribution events committed on the leased premises; or

(2) A closure order was vacated under section -14(b) within two years before the occurrence of the instant drug nuisance.

(c) The court at any time shall waive, suspend, or revoke any unpaid civil penalty imposed pursuant to this section where it is satisfied that:

(1) The defendant against whom the penalty has been imposed has not violated any order issued pursuant to any provision of this chapter; and

(2) The defendant has transferred title to the premises to the plaintiff or any other neighborhood or community organization approved by the court; provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage, or operate any commercial or residential premises. Unless otherwise agreed to by the recipient organization, the defendant shall personally retain all state and county tax liability and the obligation shall attach to any other real property in the county owned by the defendant.

(d) Fifty per cent of all civil penalties collected pursuant to this section shall be deposited into the general fund of the State. Ten per cent of the penalties shall be retained by the court to offset the costs of collection. Half of all remaining moneys collected pursuant to this section shall be deposited into a revolving fund to be established and known as the nuisance abatement and neighborhood rehabilitation fund, to be administered by the attorney general. Moneys in this fund shall be appropriated by the State on an annual basis for the purpose of funding drug nuisance abatement, drug prevention, education, and housing and neighborhood rehabilitation programs, or treatment. All of the remaining funds shall be deposited in a special fund to be established and known as the treatment for displaced residents fund, to be administered by the department of health. None of these funds shall be used to supplant existing county, state, or federal resources for the courts, nuisance abatement, drug prevention, education, and housing or neighborhood rehabilitation programs, or treatment.

§   -16 Settlements. (a) Nothing in this chapter shall be construed in any way to prevent the parties to the action at any time before or after trial from negotiating and agreeing to a fair settlement of the dispute, subject to the approval of the court.

(b) The court, on application of a plaintiff, may vacate a closing order issued pursuant to this chapter, where the defendant has transferred title to the premises to the plaintiff or any other neighborhood or community organization approved by the court; provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C. 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage, or operate any commercial or residential premises. In that event, the requirements for prerelease inspection set forth in section -20 shall not apply.

§   -17 Recovery of costs. Whenever an action for injunctive relief or penalties brought pursuant to this chapter terminates in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and all expenses and disbursements by the plaintiff and any other governmental entity in investigating, bringing, maintaining, and enforcing the action and any court orders issued pursuant thereto. All defendants shall be jointly and severally liable for the payment of taxed costs imposed pursuant to this section.

§   -18 Liens. A judgment awarding a permanent injunction pursuant to this chapter shall be a lien upon the premises declared to be a drug nuisance. In addition, a judgment against an in personam defendant imposing a civil penalty or bill of taxed costs pursuant to this chapter shall be a lien upon the real estate owned by the defendant at the time of such rendition, and also upon all real estate the defendant may subsequently acquire, for a period of ten years from the date of the judgment.

§   -19 Contempt. Any person who knowingly violates any order issued pursuant to this chapter shall be subject to civil contempt as well as punishment for criminal contempt under section 710-1077. Nothing in this chapter shall be construed in any way to preclude or preempt a criminal prosecution for violation of a controlled substance offense or any other criminal offense.

§   -20 Release of premises upon inspection or repair. (a) Subject to section -16(b), and unless the court expressly orders otherwise, no premises or portion thereof ordered to be closed pursuant to any provision of this chapter shall be released or opened unless it has been inspected by the respective county building department and found to be in compliance with applicable state or county housing, building, fire, zoning, health, and safety codes, ordinances, rules, or statutes. Where the inspection reveals violations of any such code, ordinance, rule, or statute, the court shall issue the orders or grant such relief as may be necessary to bring the premises or portion thereof into compliance. In that event, the court may order the premises or portion thereof to remain closed pending the necessary repairs or modification, notwithstanding that the order of closure may exceed the one-year time limit prescribed in section -13(a)(3).

(b) The court may authorize any person or government official to enter a premises or portion thereof closed pursuant to this chapter for the purpose of conducting an inspection or making any repairs or modifications necessary to abate the nuisance or to bring the premises or portion thereof into compliance with any applicable housing, building, fire, zoning, health, or safety code, ordinance, rule, or statute.

§   -21 Cumulative remedies. The causes of action and remedies authorized by this chapter shall be cumulative with each other and shall be in addition to, and not in lieu of, any other causes of action or remedies which may be available at law or equity.

§   -22 Admissibility of evidence to prove drug nuisance. (a) In any action brought pursuant to this chapter, all relevant evidence, including evidence of the use or threat of violence, evidence of reputation in a community and any prior efforts or lack of efforts by the defendant to abate the drug nuisance shall be admissible to prove the existence of a drug nuisance.

(b) Where a criminal prosecution or adjudication proceeding involving the drug distribution event constituting the drug nuisance results in a criminal conviction or adjudication of delinquency, the conviction or adjudication shall create a rebuttable presumption that the drug distribution event occurred. Any evidence or testimony admitted in criminal or juvenile proceedings, including transcripts or a court reporter's notes of the transcripts of the adult or juvenile criminal proceedings, whether or not they have been transcribed, may be admitted in the civil action brought pursuant to this chapter.

(c) In the event that the evidence or records of a criminal proceeding which did not result in a conviction or adjudication of delinquency have been sealed, the court in a civil action brought pursuant to this chapter, notwithstanding any other provision of this chapter, may order the evidence or records to be unsealed if the court finds that the evidence or records would be relevant to the fair disposition of the civil action.

(d) If proof of the existence of the drug nuisance depends, in whole or in part, upon the affidavits or testimony of witnesses who are not peace officers, the court, upon a showing of prior threats of violence or acts of violence by any defendant or any other person, may issue orders to protect those witnesses including, but not limited to, the nondisclosure of the name, address, or any other information which may identify those witnesses.

(e) A law enforcement agency may make available to any person or entity seeking to secure compliance with this chapter any police report, or edited portion thereof, or forensic laboratory report, or edited portion thereof concerning drug distribution events committed on or within the premises involved. A law enforcement agency may also make any officer or officers available to testify as a fact or expert witness in a civil action brought pursuant to this chapter. The agency shall not disclose that information where, in the agency's opinion the disclosure would jeopardize an investigation, prosecution, or other proceeding, or where the disclosure would violate any federal or state law.

§   -23 Relationship to criminal proceedings. A civil action may be brought and maintained pursuant to this chapter, and the court may find the existence of a drug nuisance notwithstanding that a drug distribution event or events used to establish the existence of the drug nuisance have not resulted in an arrest, prosecution, conviction, or adjudication of delinquency.

§   -24 Liability for damage to closed properties. (a) A court-ordered closing of a premises or portion thereof pursuant to this chapter shall not constitute an act of possession, ownership, or control by the court, the plaintiff, or any government official or entity responsible for enforcing the court order.

(b) Any person or entity bringing, maintaining, or enforcing any civil action or order issued in accordance with this chapter shall have immunity from any civil liability that might otherwise be incurred for any theft of, or loss, damage, or injury to any premises constituting the drug nuisance, or to any fixture, furniture, personal or movable property located in or on any such premises.

§   -25 Civil immunity. Any person or entity who, in good faith, institutes, participates in, testifies in, or encourages any person or entity to institute, participate in or testify in a civil action brought pursuant to this chapter, or who in good faith provides any information relied upon by any person or entity in instituting or participating in a civil action pursuant to this chapter, shall have immunity from any civil liability that might otherwise be incurred or imposed.

§   -26 Civil action for damages resulting from drug nuisance. (a) Notwithstanding section -4(a), any person damaged in the person's business or property by reason of a drug nuisance may bring a separate civil action for actual damages against any persons who knowingly conducted, maintained, aided, abetted, or permitted any drug distribution event constituting the drug nuisance.

(b) In a civil action for damages pursuant to this section, the failure of an owner or landlord to initiate an eviction action against a tenant, if the owner or landlord has been notified by certified or registered mail of the tenant's drug distribution events committed on the leased premises, shall be prima facie evidence that the owner knowingly gave permission to engage in conduct constituting the drug nuisance.

(c) In a civil action for damages pursuant to this section, expert testimony may be used to determine the amount of any actual damage or loss incurred by reason of the drug nuisance.

(d) Whenever an action for damages brought pursuant to this section terminates in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and all expenses and disbursements by the plaintiff in investigating, bringing, and maintaining the action. All defendants shall be jointly and severally liable for the payments of taxed costs imposed pursuant to this section.

(e) In any civil action for damages brought pursuant to this section, any evidence admitted or admissible in a civil action for injunctive relief or penalty pursuant to this chapter shall be admissible.

§   -27 Use of property for treatment and other purposes. Where title to property has been transferred to any neighborhood or community organization pursuant to section -15(c), or pursuant to any negotiated settlement of any action brought pursuant to this chapter, such property may, subject to the approval of the court in which the civil action was initiated, be used to house an alcohol and other drug prevention, education, intervention, or licensed alcohol and other drug counseling or treatment program. Nothing in this chapter shall be construed in any way to exempt any property from the requirements of any applicable zoning, fire, safety, or health code, ordinance, rule, regulation, or statute."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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