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. **************