BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 1502 (Eng)
          As Amended February 24, 2010
          Hearing Date: June 10, 2010
          Fiscal: No
          Urgency: No
          BCP:jd
                    

                                        SUBJECT
                                           
                          Nuisance Abatement: Civil Action

                                      DESCRIPTION  

          Existing law generally authorizes the district attorney and city  
          attorney to bring an action to abate specified nuisances.  The  
          bill would additionally authorize a county counsel to bring  
          those nuisance abatement actions.

                                      BACKGROUND  

          Under existing law, a nuisance is defined to mean anything which  
          is injurious to health or is indecent or offensive to the  
          senses, or an obstruction to the free use of property, so as to  
          interfere with the comfortable enjoyment of life or property. 

          Current law also deems certain uses of buildings or places to be  
          a nuisance and authorizes a district attorney, city attorney, or  
          any citizen to bring an action to abate and prevent the  
          nuisance.  Such uses include, among other things, buildings or  
          places used for the purposes of illegal gambling or  
          prostitution, unlawfully selling, serving, storing, keeping,  
          manufacturing, or giving away any controlled substance,  
          unlawfully selling, serving, or giving away alcoholic liquor,  
          and manufacturing or intentionally selling counterfeit goods.  

          In response to concerns about the burden of the current nuisance  
          abatement caseload on district attorneys and city attorneys, and  
          the lack of a city attorney in unincorporated areas, this bill  
          would additionally permit a county counsel to bring nuisance  
          abatement and prevention actions under specified circumstances.
                                                                (more)



          AB 1502 (Eng)
          Page 2 of ?



            
                                CHANGES TO EXISTING LAW
           
           Existing law  defines a nuisance as anything which is injurious  
          to health, including the illegal sale of controlled substances,  
          or is indecent or offensive to the senses, or an obstruction to  
          the free use of property, so as to interfere with the  
          comfortable enjoyment of life or property, or unlawfully  
          obstruct the free passage or use, in the customary manner, of  
          any navigable lake, or river, bay stream, canal, or basin of any  
          public park, square, street, or highway.  (Civ. Code Sec. 3479.)

           Existing law  additionally states that every building or place  
          used for the purpose of unlawfully selling, serving, storing,  
          keeping manufacturing, or giving away any controlled substance,  
          as specified, and every building or place where those acts take  
          place, is a nuisance.  (Health & Saf. Code Sec. 11571.)   
          Existing law further provides that every building or place used  
          for the purpose of illegal gambling, lewdness, assignation,  
          prostitution, or counterfeiting is a nuisance.  (Pen. Code Secs.  
          11225-26; Bus. & Prof. Code Sec. 17800.) 

           Existing law  generally authorizes a district attorney or city  
          attorney to bring an action to abate the above nuisances within  
          their respective jurisdictions. (Civ. Code Sec. 731; Health &  
          Saf. Code Sec. 1157; Pen. Code Sec. 11226.)

           This bill  would additionally authorize the county counsel of the  
          county where nuisance is located to bring an action for each of  
          the above nuisances.

                                        COMMENT
           
          1.   Stated need for the bill 

          According to the author:

            Currently when law enforcement takes action for nuisance  
            abatement, the District Attorney or City Attorney handles  
            the adjudication of these cases.  The District Attorney  
            handles only criminal cases, while the City Attorney can  
            handle both criminal and civil cases.  Many times, the  
            nuisance cases end up being civil cases where a civil  
            injunction is brought against the offending person.  There  
            are a large number of these civil nuisance cases. This  
            represents a problem in unincorporated areas where there is  
                                                                      



          AB 1502 (Eng)
          Page 3 of ?



            no City Attorney and the District Attorney may not have the  
            expertise or staff to assign the cases to.

          The Los Angeles County Sheriffs' Department, sponsor, states  
          that enabling the county counsel to bring these cases "will help  
          to more efficiently and effectively adjudicate the large number  
          of nuisance abatement cases [thus] making life better for  
          everyone in the county."

          2.   Expanding enforcement authority to include county counsel  

          Under existing law, district attorneys and city attorneys are  
          specifically authorized to bring an action to abate, prevent,  
          and enjoin a nuisance.  Those potential nuisances range from  
          pollution impacting the lives of residents to buildings that are  
          used for drugs and prostitution, and it is in the interest of  
          the public to abate those nuisances in order to protect the  
          community from their deleterious effects.  For nuisances located  
          within a city, there are two potential public officers who can  
          bring an action - the district attorney (for the county) or the  
          city attorney.  By additionally authorizing county counsel to  
          bring actions to abate or remedy specified nuisances, this bill  
          would provide an additional officer who may act on behalf of the  
          public to address various nuisances.  The Los Angeles County  
          Sheriffs' Department, sponsor, further notes that the addition  
          of county counsel is particularly important "to handle the  
          nuisance abatement cases in the unincorporated area of the  
          county, where there is no City Attorney and the District  
          Attorney is overburdened with handling the voluminous criminal  
          caseload." 

          Regarding their current nuisance abatement efforts, the sponsor  
          states that their "countywide COPS teams have been working  
          diligently on enforcing quality of life issues for Los Angeles  
          County unincorporated areas and contract cities.  Because of the  
          large caseload in the unincorporated areas, it became apparent  
          we needed authorization for County Counsel [to] participate in  
          this process."  As noted in Comment 3, that authorization  
          appears consistent with both the role of the county counsel and  
          the duties associated with their office.

          3.   Expanded authority consistent with role of county counsel
           
          A county counsel generally acts as the chief civil law officer  
          of the county and provides legal services to the Board of  
          Supervisors, court officials, and other county agencies.  In  
                                                                      



          AB 1502 (Eng)
          Page 4 of ?



          most counties, the county counsel also handles civil litigation  
          involving the county or its officers.  Given that local city  
          attorneys, who have a similar role with regards to an individual  
          city, already have authority to bring nuisance abatement  
          actions, the proposed expansion to county counsel appears  
          consistent with both their role within the county and the prior  
          authorization for city attorneys to bring similar actions.

          From a policy standpoint, that authorization would expand the  
          resources available for counties to combat nuisances that impact  
          the health and welfare of those who reside in the county.  

          4.    Conforming amendment required to add county counsel to the  
            report requirement of AB 568 (Lieu, Chapter 453, Statutes of  
            2009)  

          Last year, this Committee approved AB 568 (Lieu, Chapter 453,  
          Statutes of 2009), which provided that if a person is convicted  
          of specified crimes relating to counterfeit goods, the  
          nonresidential building used by that person for the willful  
          manufacture, intentional sale, or knowing possession for sale of  
          counterfeit goods is a nuisance.  In order to provide  
          information regarding the effectiveness of that pilot program  
          prior to its sunset date of January 1, 2015, the author of AB  
          568 agreed in this Committee to amend the bill to include a  
          report to assess the effectiveness of its nuisance abatement  
          provisions.  Since enforcement of that bill was limited to  
          district attorneys, city attorneys, and city prosecutors, the  
          amendment similarly required only those entities to report as to  
          the bills effectiveness.  

          To conform to the addition of "county counsel" to the list of  
          officers which may enforce the provisions of AB 568, the  
          following conforming amendment is suggested:

             Conforming amendment:

             Section 17801 of the Business and Professions Code is amended  
            to read:

            17801.  A district attorney, county counsel, city attorney, or  
            city prosecutor that maintains an action or actions to enjoin,  
            abate, or prevent a nuisance pursuant to the provisions of  
            this chapter shall report to the Senate and Assembly  
            Committees on Judiciary, by October 1, 2013, on their use of  
            the provisions of this chapter and their effectiveness. The  
                                                                      



          AB 1502 (Eng)
          Page 5 of ?



            report shall include, but not be limited to, all of the  
            following:
               (a) The frequency of use of the nuisance abatement  
            provisions as well as statistics on whether the use of the  
            abatement provisions correlates with a decrease in the use of  
            criminal penalties.
               (b) Any statistics or information concerning the impact of  
            the use of these provisions on counterfeiting overall, both in  
            the relevant county or city and overall.


           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Los Angeles County Sheriffs' Department

           Related Pending Legislation  :  None Known

           Prior Legislation  :   AB 568 (Lieu, Chapter 453, Statutes of  
          2009), provided that every nonresidential building or place used  
          for the purpose of willfully manufacturing, intentionally  
          selling, or knowingly possessing for sale any counterfeit goods  
          is a nuisance which shall be enjoined, abated, and prevented,  
          and for which damages may be recovered.

           Prior Vote  :  Not applicable, bill was gutted and amended in the  
          Senate on February 24, 2010.

                                   **************