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)
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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
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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
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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
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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.
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