| HB 405 - Drug-related nuisances; actions to abate and enjoin; amend provisions |
First Reader Summary
A BILL to amend Title 41 of the Official Code of Georgia
Annotated, relating to nuisances, so as to provide for actions to
abate and enjoin drug related nuisances; and for other purposes.
| House |
Action |
Senate |
| 2/2/99 |
Read 1st Time |
|
| 2/3/99 |
Read 2nd Time |
|
HB 405 LC 22 3418
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Title 41 of the Official Code of Georgia
1- 2 Annotated, relating to nuisances, so as to provide for
1- 3 actions to abate and enjoin drug related nuisances; to
1- 4 provide for legislative findings and definitions; to provide
1- 5 who may file an action; to provide for complaints,
1- 6 affidavits, jurisdiction, and venue; to provide that
1- 7 complaints shall allege evidence of illegal activities
1- 8 relating to drugs and adverse impact; to provide for in rem
1- 9 actions in certain circumstances; to provide for notice and
1-10 for hearings and motions for preliminary injunction; to
1-11 provide for security bonds and when such bonds are not
1-12 required; to provide for jury trials; to provide that a
1-13 previous conviction is not required for proof; to define the
1-14 acts or omissions that must be proven to establish
1-15 liability; to provide for judgments, remedies, and relief;
1-16 to provide for a stay of an action filed under this Act in
1-17 certain circumstances; to provide for continuing
1-18 jurisdiction to enforce court orders; to provide for
1-19 punishment for violation of court orders; to provide that
1-20 this Act is cumulative of other remedies; to provide for
1-21 related matters; to repeal conflicting laws; and for other
1-22 purposes.
1-23 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
1-24 SECTION 1.
1-25 Title 41 of the Official Code of Georgia Annotated, relating
1-26 to nuisances, is amended by inserting a new chapter to be
1-27 designated Chapter 4 to read as follows:
1-28 41-4-1.
1-29 The General Assembly finds and declares the following:
1-30 (1) There is an illicit drug crisis in the State of
1-31 Georgia which is plaguing our neighborhoods and our
1-32 housing and rental accommodations;
-1-
2- 1 (2) Illicit drugs have caused an increase in crime and
2- 2 violence and a deterioration in the habitability of
2- 3 housing and rental accommodations, as well as diminished
2- 4 property values;
2- 5 (3) Activity relating to illicit drugs affects not only
2- 6 the immediate area where the activity occurs, but also
2- 7 the surrounding properties and neighborhoods and the
2- 8 people who live there, thus damaging the innocent as
2- 9 well as the guilty;
2-10 (4) There is empirical evidence that activity relating
2-11 to illicit drugs is facilitated by failure to maintain
2-12 property in good repair and to provide adequate lighting
2-13 and security; and
2-14 (5) Currently, there are inadequate incentives for
2-15 property owners to take a more active role in preventing
2-16 the continued or recurrent use of their property for the
2-17 manufacture, use, sale, storage, or distribution of
2-18 controlled substances or marijuana.
2-19 41-4-2.
2-20 As used in this chapter, the term:
2-21 (1) 'Drug related nuisance' means a property, in whole
2-22 or in part, judicially determined in accordance with the
2-23 provisions of this chapter to be the site of continued
2-24 or recurrent illegal activities relating to controlled
2-25 substances or marijuana and judicially determined to be
2-26 adversely affecting other nearby properties and the
2-27 persons who reside on or own such nearby properties by
2-28 such illegal activities.
2-29 (2) 'Illegal activities relating to drugs' means any
2-30 activity which violates any provision of Chapter 13 of
2-31 Title 16, relating to controlled substances and
2-32 marijuana, and any other unlawful activity which
2-33 facilitates the purchase, possession, manufacture,
2-34 delivery, distribution, dispensing, administering,
2-35 selling, or possession with the intent to distribute of
2-36 any controlled substance or marijuana which violation is
2-37 a felony.
2-38 (3) 'Knowingly' means having actual awareness.
2-39 (4) 'Owner' means a person, individual, corporation,
2-40 partnership, trust association, joint venture, or any
2-41 other business entity in whom is vested all or any part
-2-
3- 1 of the title to property and the agents of such an
3- 2 individual or entity.
3- 3 (5) 'Property' means real property or an interest in
3- 4 real property, including an interest in any leasehold,
3- 5 license, or real estate, including any house, apartment
3- 6 building, condominium, cooperative, office building,
3- 7 store, restaurant, tavern, nightclub, or warehouse, and
3- 8 the land extending to the boundaries of the lot upon
3- 9 which the structure is situated and anything growing on,
3-10 affixed to, or found on the land.
3-11 41-4-3.
3-12 Wherever there is reason to believe that a drug related
3-13 nuisance exists, the Attorney General, district attorney
3-14 of the judicial circuit, the attorney for the county or
3-15 municipality, or any person who is allegedly aggrieved by
3-16 the drug related nuisance, including a tenant of the
3-17 property, may file an action to abate, enjoin, and prevent
3-18 the continuance of a drug related nuisance. An action
3-19 shall be commenced by the filing of a complaint in the
3-20 superior court of the county in which the alleged nuisance
3-21 is situated alleging the existence of the drug related
3-22 nuisance and the liability of the defendant.
3-23 41-4-4.
3-24 (a) The complaint or affidavits attached to the complaint
3-25 shall describe the evidence that illegal activities
3-26 relating to drugs exist at the specified property or that
3-27 the specified property is the locus for illegal activities
3-28 relating to drugs. The complaint shall describe the
3-29 adverse impact primarily associated with such illegal
3-30 activities relating to drugs upon the surrounding
3-31 neighborhood. The complaint shall describe with
3-32 specificity the dimensions or boundaries of the real
3-33 property alleged to be a drug related nuisance.
3-34 (b)(1) The plaintiff shall attach to the complaint an
3-35 affidavit setting out attempts to notify the owner of
3-36 the property of the illegal activities relating to drugs
3-37 and their adverse impact. Not more than 60 days nor
3-38 less than 30 days prior to filing the complaint, the
3-39 plaintiff shall mail a notice by certified mail, return
3-40 receipt requested, to each owner of record of the
3-41 property and a notice to each owner of record of the
3-42 property by regular mail. The notice shall set forth
3-43 the alleged illegal activities relating to drugs and
-3-
4- 1 include a statement that the plaintiff intends to file
4- 2 an action to abate or enjoin the alleged nuisance.
4- 3 (2) If no owner has been found after due diligence, then
4- 4 an action may be maintained against the property in
4- 5 question.
4- 6 (c) When an action is brought under this chapter by a
4- 7 private individual, the complaint shall be supported by at
4- 8 least two individuals residing on or owning real property
4- 9 within 1,000 feet of the property alleged to be a drug
4-10 related nuisance. Such support shall be in the form of an
4-11 affidavit attesting to the fact that the residence of the
4-12 affiant is within 1,000 feet of the alleged drug related
4-13 nuisance or that the affiant owns property within 1,000
4-14 feet of the alleged drug related nuisance, that the
4-15 affiant has witnessed acts which are evidence of or
4-16 occurrences of illegal activities relating to drugs, and
4-17 that the affiant is aware of an adverse impact of the
4-18 alleged drug related nuisance.
4-19 41-4-5.
4-20 (a) Upon a filing of a motion for a preliminary injunction
4-21 to abate the alleged drug related nuisance, the plaintiff
4-22 shall be entitled to a hearing on the motion within ten
4-23 days of the filing. If it appears by affidavit, or
4-24 otherwise, that there is a substantial likelihood that the
4-25 plaintiff will be able to prove the existence of a drug
4-26 related nuisance by a preponderance of evidence, the
4-27 superior court may issue a preliminary injunction and
4-28 grant other relief as the court may deem to be
4-29 appropriate, including those remedies provided by Code
4-30 Section 41-4-9.
4-31 (b) The court may order the trial of the action on the
4-32 merits to be advanced and consolidated with the hearing on
4-33 the motion for a preliminary injunction.
4-34 (c) This Code section shall not be construed to prohibit
4-35 the application for or the granting of other equitable
4-36 relief provided by law.
4-37 41-4-6.
4-38 No security bond shall be required for the issuance of a
4-39 preliminary injunction or temporary restraining order
4-40 sought by the Attorney General, district attorney, or an
4-41 attorney appearing for the county or municipality. At the
4-42 discretion of the court, a security bond may be required
-4-
5- 1 for the issuance of a preliminary injunction or temporary
5- 2 restraining order sought by a plaintiff who is a private
5- 3 individual.
5- 4 41-4-7.
5- 5 Proof of a drug related nuisance under the provisions of
5- 6 this chapter shall not require a previous conviction of
5- 7 the defendant or of any other person.
5- 8 41-4-8.
5- 9 (a) To prevail in an action filed under the provisions of
5-10 this chapter, a plaintiff is required to establish by a
5-11 preponderance of the evidence that a drug related nuisance
5-12 as defined in Code Section 41-4-2 exists and to establish
5-13 that the defendant is liable.
5-14 (b) To prove liability of a resident or owner of the
5-15 property which is alleged to be a drug related nuisance,
5-16 the plaintiff must prove that acts or omissions by such
5-17 resident or owner of the property knowingly or recklessly
5-18 created or maintained a premises or place where persons
5-19 gather for purposes of engaging in illegal activities
5-20 relating to drugs, which condition endangers the safety or
5-21 health of persons not participating in such illegal
5-22 activities who reside on the property or near the property
5-23 or who own property near such alleged nuisance.
5-24 41-4-9.
5-25 (a) A judgment for a plaintiff in an action filed pursuant
5-26 to this chapter may include actual damages and an
5-27 injunction to restrain, abate, and prevent the continuance
5-28 of the drug related nuisance. The court may grant any
5-29 other relief deemed necessary to accomplish the purposes
5-30 of the injunction or order and enforce the judgment or
5-31 order.
5-32 (b) The court may retain jurisdiction of the case for the
5-33 purpose of enforcing its orders.
5-34 (c) Upon final adjudication, the court shall have
5-35 additional power to fashion any one or more of the
5-36 following remedies:
5-37 (1) Award private damages against the defendant in favor
5-38 of each plaintiff;
5-39 (2) Assess costs of the action against the defendant;
-5-
6- 1 (3) Assess reasonable attorney's fees incurred in filing
6- 2 and prosecution of the complaint;
6- 3 (4) Order the owner to clean up the property and make
6- 4 repairs upon the property;
6- 5 (5) Suspend or revoke any liquor license;
6- 6 (6) Order the owner to make additional reasonable
6- 7 expenditures upon the property to make the property less
6- 8 usable as a site for illegal activities relating to
6- 9 drugs;
6-10 (7) Order the suspension of any state, city, or local
6-11 governmental subsidies payable to the owner of the
6-12 property, including, but not limited to, tenant
6-13 assistance payments to landlords until the nuisance is
6-14 abated; and
6-15 (8) Impose a civil fine on the defendant of up to
6-16 $1,000.00 per day for each day the drug related nuisance
6-17 continues to exist, beginning with the date of the
6-18 order. An order issued pursuant to this paragraph may
6-19 be terminated by the court upon a showing by the
6-20 defendant that the drug related nuisance has been abated
6-21 and may include a provision for termination upon the
6-22 accumulation of a fine equal to a specified amount, and
6-23 for seizure and sale of the property to satisfy the fine
6-24 in the same manner as sheriff's sales of property to
6-25 satisfy judgments.
6-26 (d) Upon a finding by the court that a defendant is
6-27 engaged in legal proceedings to obtain possession of the
6-28 property or other good faith efforts involving the filing
6-29 of an action at law or equity in attempting to reduce
6-30 significantly or eliminate illegal activities relating to
6-31 drugs at the property, the court shall stay an action
6-32 filed under this chapter pending a judgment in such legal
6-33 or equitable actions.
6-34 (e) Notwithstanding any provision of this chapter to the
6-35 contrary, a defendant shall be entitled to a trial by
6-36 jury.
6-37 41-4-10.
6-38 (a) A violation of any court order issued pursuant to this
6-39 chapter is punishable as a contempt of court. Evidence
6-40 concerning the duration and repetitive nature of the
-6-
7- 1 violations shall be considered by the court in
7- 2 determining the penalty for contempt.
7- 3 (b) Upon finding that a defendant has violated an order
7- 4 issued pursuant to this chapter, the court may issue any
7- 5 additional orders necessary to abate the drug related
7- 6 nuisance or to carry out the punishment for contempt.
7- 7 (c) The court may suspend the effectiveness of an order of
7- 8 abatement for no more than 90 days if the owner avers
7- 9 under oath that he or she will immediately undertake
7-10 specified measures to abate the nuisance for the following
7-11 two-year period. An order suspending an abatement order
7-12 pursuant to this subsection may not be issued for the
7-13 benefit of a defendant who has been found in contempt of
7-14 court as part of the same action. An order issued
7-15 pursuant to this subsection is a suspension and is not a
7-16 withdrawal of the original order.
7-17 (d) The court shall cancel the order of abatement if the
7-18 owner of the property satisfies the court that the drug
7-19 related nuisance has been abated for the past 90 days,
7-20 corrects any housing code or health code violation which
7-21 is related to the use or ease of use of the property for
7-22 illegal activities relating to drugs, and posts a bond in
7-23 an amount to be determined by the court. The bond shall be
7-24 forfeited if the court finds, after notice and hearing,
7-25 that the drug related nuisance has recurred during the
7-26 two-year period following the cancellation of the order of
7-27 abatement.
7-28 41-4-11.
7-29 The provisions of this chapter are intended to be
7-30 cumulative of any other remedies and shall not be
7-31 construed to repeal any other existing remedies for
7-32 nuisances or drug related nuisances."
7-33 SECTION 2.
7-34 All laws and parts of laws in conflict with this Act are
7-35 repealed.
-7-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 02/24/99
