BILL NUMBER: AB 1868 CHAPTERED 09/29/02 CHAPTER 1057 FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2002 APPROVED BY GOVERNOR SEPTEMBER 29, 2002 PASSED THE ASSEMBLY AUGUST 24, 2002 PASSED THE SENATE AUGUST 22, 2002 AMENDED IN SENATE AUGUST 21, 2002 AMENDED IN SENATE AUGUST 6, 2002 AMENDED IN SENATE JUNE 10, 2002 AMENDED IN ASSEMBLY MAY 1, 2002 AMENDED IN ASSEMBLY APRIL 17, 2002 INTRODUCED BY Assembly Member Koretz (Principal coauthor: Assembly Member Shelley) (Coauthors: Assembly Members Kehoe, Longville, and Lowenthal) JANUARY 31, 2002 An act to amend Sections 11571, 11573, 11573.5, and 11581 of the Health and Safety Code, and to amend Sections 11226, 11227, and 11230 of the Penal Code, relating to nuisance. LEGISLATIVE COUNSEL'S DIGEST AB 1868, Koretz. Controlled substances: nuisance abatement. (1) Existing law provides that every building or place used for the purpose of specified unlawful transactions involving controlled substances is a nuisance and if the existence of the nuisance is shown to the satisfaction of a court, the court shall allow a temporary writ of injunction to abate and prevent the continuance of the nuisance. This bill would provide that a court may issue a temporary restraining order or injunction to enjoin subsequent owners, commercial lessees, or agents who acquire the building or place where the controlled substances nuisance exists with notice of the order or injunction, specifying that the owner of the property subject to the temporary restraining order or injunction shall notify any prospective purchaser, commercial lessee, or other successor in interest of the existence of the order or injunction, and of its application to successors in interest, prior to entering into any agreement to sell or lease the property. The bill would provide that the order or injunction shall not constitute a title defect, lien, or encumbrance on the real property. (2) Existing law sets forth various remedies available to a court in a controlled substances nuisance abatement action, including ordering the owner to make cosmetic improvements to the property. This bill would add to the list of remedies available to a court in a controlled substances nuisance abatement action that of ordering the nuisance defendant to reside in the property until the nuisance is abated, as specified. (3) Existing law provides that a court may assess a civil penalty not to exceed $25,000 against a controlled substances nuisance defendant, as specified. This bill would provide that one-half of the civil penalties collected shall be deposited in the Restitution Fund, the proceeds of which shall be available only upon appropriation by the Legislature to indemnify crime victims who file claims for pecuniary losses they suffer as a direct result of criminal acts, and the other half shall be paid to the city in which the judgment was entered or to the treasurer of the county in which the judgment was entered. (4) Existing law provides that every building or place used for the purpose of illegal gambling, as defined, lewdness, assignation, or prostitution is a nuisance with respect to which the county district attorney is required, and a city attorney of an incorporated city is authorized, to maintain an action to abate the nuisance. This bill would provide instead and in addition that the county district attorney and the city attorney of any city and county are authorized to maintain an action to abate a gambling or prostitution nuisance. (5) Existing law provides that if the existence of a gambling or prostitution nuisance is shown to the satisfaction of a court, the court shall allow a temporary writ of injunction to abate and prevent the continuance of the nuisance. This bill would provide that a temporary restraining order or injunction may enjoin subsequent owners, commercial lessees, or agents who acquire the building or place where the gambling or prostitution nuisance exists with notice of the order or injunction, specifying that the owner of the property subject to the temporary restraining order or injunction shall notify any prospective purchaser, commercial lessee, or other successor in interest of the existence of the order or injunction, and of its application to successors in interest, prior to entering into any agreement to sell or lease the property. The bill would provide that the order or injunction shall not constitute a title defect, lien, or encumbrance on the real property. (6) Existing law provides that if the existence of a gambling or prostitution nuisance is established in a nuisance abatement action, the court, in lieu of ordering the building or place where the gambling or prostitution nuisance exists closed, may order the person who is responsible for the existence of the nuisance to pay damages, as specified, to be deposited in the Restitution Fund, as specified. This bill would require that damages be paid to the city or county in whose jurisdiction the nuisance is located. This bill would additionally provide that the court may assess a civil penalty not to exceed $25,000 against any and all defendants, based upon the severity of the nuisance and its duration. The bill would provide that one-half of the civil penalties collected shall be deposited in the Restitution Fund, and the other half shall be paid to the city in which the judgment was entered or to the treasurer of the county in which the judgment was entered. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11571 of the Health and Safety Code is amended to read: 11571. Whenever there is reason to believe that a nuisance as described in Section 11570 is kept, maintained, or exists in any county, the district attorney of the county, or the city attorney of any incorporated city or of any city and county, in the name of the people, may, or any citizen of the state resident in the county, in his or her own name, may maintain an action to abate and prevent the nuisance and perpetually to enjoin the person conducting or maintaining it, and the owner, lessee, or agent of the building or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting the nuisance. SEC. 2. Section 11573 of the Health and Safety Code is amended to read: 11573. (a) If the existence of the nuisance is shown in the action to the satisfaction of the court or judge, either by verified complaint or affidavit, the court or judge shall allow a temporary restraining order or injunction to abate and prevent the continuance or recurrence of the nuisance. (b) A temporary restraining order or injunction may enjoin subsequent owners, commercial lessees, or agents who acquire the building or place where the nuisance exists with notice of the temporary restraining order or injunction, specifying that the owner of the property subject to the temporary restraining order or injunction shall notify any prospective purchaser, commercial lessee, or other successor in interest of the existence of the order or injunction, and of its application to successors in interest, prior to entering into any agreement to sell or lease the property. The temporary restraining order or injunction shall not constitute a title defect, lien, or encumbrance on the real property. SEC. 3. Section 11573.5 of the Health and Safety Code is amended to read: 11573.5. (a) At the time of application for issuance of a temporary restraining order or injunction pursuant to Section 11573, if proof of the existence of the nuisance depends, in whole or part, upon the affidavits of witnesses who are not peace officers, upon a showing of prior threats of violence or acts of violence by any defendant or other person, the court may issue orders to protect those witnesses, including, but not limited to, nondisclosure of the name, address, or any other information which may identify those witnesses. (b) A temporary restraining order or injunction issued pursuant to Section 11573 may include closure of the premises pending trial when a prior order or injunction does not result in the abatement of the nuisance. The duration of the order or injunction shall be within the court's discretion. In no event shall the total period of closure pending trial exceed one year. Prior to ruling on a request for closure the court may order that some or all of the rent payments owing to the defendant be placed in an escrow account for a period of up to 90 days or until the nuisance is abated. If the court subsequently orders a closure of the premises, the money in the escrow account shall be used to pay for relocation assistance pursuant to subdivision (d). In ruling upon a request for closure, whether for a defined or undefined duration, the court shall consider all of the following factors: (1) The extent and duration of the nuisance at the time of the request. (2) Prior efforts by the defendant to comply with previous court orders to abate the nuisance. (3) The nature and extent of any effect which the nuisance has upon other persons, such as residents or businesses. (4) Any effect of prior orders placing displaced residents' or occupants' rent payments into an escrow account upon the defendant's efforts to abate the nuisance. (5) The effect of granting the request upon any resident or occupant of the premises who is not named in the action, including the availability of alternative housing or relocation assistance, the pendency of any action to evict a resident or occupant, and any evidence of participation by a resident or occupant in the nuisance activity. (c) In making an order of closure pursuant to this section, the court may order the premises vacated and may issue any other orders necessary to effectuate the closure. However, all tenants who may be affected by the order shall be provided reasonable notice and an opportunity to be heard at all hearings regarding the closure request prior to the issuance of any order. (d) In making an order of closure pursuant to this section, the court shall order the defendant to provide relocation assistance to any tenant ordered to vacate the premises, provided the court determines that the tenant was not actively involved in the nuisance activity. The relocation assistance ordered to be paid by the defendant shall be in the amount necessary to cover moving costs, security deposits for utilities and comparable housing, adjustment in any lost rent, and any other reasonable expenses the court may deem fair and reasonable as a result of the court's order. (e) At the hearing to order closure pursuant to this section, the court may make the following orders with respect to any displaced tenant not actively involved in the nuisance: (1) Priority for senior citizens, physically handicapped persons, or persons otherwise suffering from a permanent or temporary disability for claims against money for relocation assistance. (2) Order the local agency seeking closure pursuant to this section to make reasonable attempts to seek additional sources of funds for relocation assistance to displaced tenants, if deemed necessary. (3) Appoint a receiver to oversee the disbursement of relocation assistance funds, whose services shall be paid from the escrow fund. (4) Where a defendant has paid relocation assistance pursuant to subdivision (d), the escrow account under subdivision (b) may be released to the defendant and no appointment under paragraph (3) shall be made. (f) (1) The remedies set forth pursuant to this section shall be in addition to any other existing remedies for nuisance abatement actions, including, but not limited to, the following: (A) Capital improvements to the property, such as security gates. (B) Improved interior or exterior lighting. (C) Security guards. (D) Posting of signs. (E) Owner membership in neighborhood or local merchants' associations. (F) Attending property management training programs. (G) Making cosmetic improvements to the property. (H) Requiring the owner or person in control of the property to reside in the property until the nuisance is abated. The order shall specify the number of hours per day or per week the owner or person in control of the property must be physically present in the property. In determining this amount, the court shall consider the nature and severity of the nuisance. (2) At all stages of an action brought pursuant to this article, the court has equitable powers to order steps necessary to remedy the problem and enhance the abatement process. SEC. 4. Section 11581 of the Health and Safety Code is amended to read: 11581. (a) If the existence of the nuisance is established in the action, an order of abatement shall be entered as a part of the judgment, which order shall direct the removal from the building or place of all fixtures, musical instruments, and other movable property used in conducting, maintaining, aiding, or abetting the nuisance and shall direct their sale in the manner provided for the sale of chattels under execution. (b) (1) The order shall provide for the effectual closing of the building or place against its use for any purpose, and for keeping it closed for a period of one year. This subdivision is intended to give priority to closure. Any alternative to closure may be considered only as provided in this section. (2) In addition, the court may assess a civil penalty not to exceed twenty-five thousand dollars ($25,000) against any or all of the defendants, based upon the severity of the nuisance and its duration. (3) One-half of the civil penalties collected pursuant to this section shall be deposited in the Restitution Fund in the State Treasury, the proceeds of which shall be available only upon appropriation by the Legislature to indemnify persons filing claims pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code and one-half of the civil penalties collected shall be paid to the city in which the judgment was entered, if the action was brought by the city attorney or city prosecutor. If the action was brought by a district attorney, one-half of the civil penalties collected shall be paid to the treasurer of the county in which the judgment was entered. (c) (1) If the court finds that any vacancy resulting from closure of the building or place may create a nuisance or that closure is otherwise harmful to the community, in lieu of ordering the building or place closed, the court may order the person who is responsible for the existence of the nuisance, or the person who knowingly permits controlled substances to be unlawfully sold, served, stored, kept, or given away in or from a building or place he or she owns, to pay damages in an amount equal to the fair market rental value of the building or place for one year to the city or county in whose jurisdiction the nuisance is located for the purpose of carrying out their drug abuse treatment, prevention, and education programs. If awarded to a city, eligible programs may include those developed as a result of cooperative programs among schools, community agencies, and the local law enforcement agency. These funds shall not be used to supplant existing city, county, state, or federal resources used for drug prevention and education programs. (2) For purposes of this subdivision, the actual amount of rent being received for the rental of the building or place, or the existence of any vacancy therein, may be considered, but shall not be the sole determinant of the fair market rental value. Expert testimony may be used to determine the fair market rental value. (d) This section shall become operative on January 1, 1996. SEC. 5. Section 11226 of the Penal Code is amended to read: 11226. Whenever there is reason to believe that a nuisance as defined in this article is kept, maintained or is in existence in any county, the district attorney, in the name of the people of the State of California, or the city attorney of an incorporated city or any city and county may, or any citizen of the state resident within the county, in his or her own name may, maintain an action in equity to abate and prevent the nuisance and to perpetually enjoin the person conducting or maintaining it, and the owner, lessee or agent of the building, or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting it. The complaint in the action shall be verified unless filed by the district attorney or the city attorney. SEC. 6. Section 11227 of the Penal Code is amended to read: 11227. (a) Whenever the existence of a nuisance is shown in an action brought under this article to the satisfaction of the court or judge thereof, either by verified complaint or affidavit, the court or judge shall allow a temporary restraining order or injunction to abate and prevent the continuance or recurrence of the nuisance. (b) A temporary restraining order or injunction may enjoin subsequent owners, commercial lessees, or agents who acquire the building or place where the nuisance exists with notice of the order or injunction, specifying that the owner of the property subject to the temporary restraining order or injunction shall notify any prospective purchaser, commercial lessee, or other successor in interest of the existence of the order or injunction, and of its application to successors in interest, prior to entering into any agreement to sell or lease the property. The temporary restraining order or injunction shall not constitute a title defect, lien, or encumbrance on the real property. SEC. 7. Section 11230 of the Penal Code is amended to read: 11230. (a) (1) If the existence of a nuisance is established in an action as provided in this article, an order of abatement shall be entered as a part of the judgment in the case, directing the removal from the building or place of all fixtures, musical instruments and movable property used in conducting, maintaining, aiding or abetting the nuisance, and directing the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and that it be kept closed for a period of one year, unless sooner released. If the court finds that any vacancy resulting from closure of the building or place may create a nuisance or that closure is otherwise harmful to the community, in lieu of ordering the building or place closed, the court may order the person who is responsible for the existence of the nuisance to pay damages in an amount equal to the fair market rental value of the building or place for one year to the city or county in whose jurisdiction the nuisance is located. The actual amount of rent being received for the rental of the building or place, or the existence of any vacancy therein, may be considered, but shall not be the sole determinant of the fair market rental value. Expert testimony may be used to determine the fair market rental value. (2) While the order remains in effect as to closing, the building or place is and shall remain in the custody of the court. (3) For removing and selling the movable property, the officer is entitled to charge and receive the same fees as he or she would for levying upon and selling like property on execution. (4) For closing the premises and keeping them closed, a reasonable sum shall be allowed by the court. (b) The court may assess a civil penalty not to exceed twenty-five thousand dollars ($25,000) against any and all of the defendants, based upon the severity of the nuisance and its duration. (c) One-half of the civil penalties collected pursuant to this section shall be deposited in the Restitution Fund in the State Treasury, the proceeds of which shall be available for appropriation by the Legislature to indemnify persons filing claims pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code and one-half of the civil penalties collected shall be paid to the city in which the judgment was entered , if the action was brought by the city attorney or city prosecutor. If the action was brought by a district attorney, one-half of the civil penalties collected shall be paid to the treasurer of the county in which the judgment was entered.