ASSEMBLY, No. 2847
STATE OF NEW JERSEY
INTRODUCED MARCH 24, 1997
By Assemblymen HOLZAPFEL and WOLFE
An Act concerning the abatement of drug nuisances and supplementing Title 2A of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Drug Nuisance Abatement Act."
2. The Legislature finds and declares that:
a. Despite efforts by law enforcement, both private and commercial premises remain the sites of repeated drug distribution violations. These locations attract criminals and the violence and threat of violence associated with illicit drug trade.
b. The continued occurrence of criminal activities at these locations is detrimental to the public health, safety and welfare. Drug nuisances reduce property values, injure legitimate businesses and commerce and erode the quality of life for law-abiding persons working or residing in or near these locations.
c. Property owners, landlords, managers and operators have an affirmative duty to take the actions necessary to prevent drug violations from occurring on their properties and to abate existing drug nuisances. These affirmative duties are no less important than the duty to maintain properties in accordance with applicable building, fire, zoning, safety and similar codes, ordinances, rules and regulations designed to protect the health, safety and welfare of residents, workers, invitees, neighbors and other persons.
d. The ongoing existence of a drug nuisance is detrimental to the public interest and warrants prompt injunctive relief by the courts. It is the express policy of this State to authorize and encourage courts to issue temporary restraining orders or preliminary injunctions pursuant to the provisions of this act upon a finding that a drug nuisance exists. It is not necessary for any authorized plaintiff seeking temporary or preliminary injunctive relief to establish any specific or irreparable injury arising from the drug nuisance. The existence of any remedy at law shall not prevent the granting of injunctive relief pursuant to this act.
e. The civil actions for injunctive relief, damages and penalties authorized by this act are remedial rather than punitive in nature. Penalties collected pursuant to section 18 are not intended to punish culpable defendants, but rather, to compensate the community at large by providing funding for additional treatment, neighborhood rehabilitation, drug prevention and drug education costs. Damages awarded to individual plaintiffs pursuant to section 29 are intended to compensate the individuals for specific losses to their businesses or properties.
f. It is the policy of this State to ensure that the civil actions and remedies authorized by this act be heard by the courts on a priority basis to expeditiously identify and abate drug nuisances.
g. It is necessary to ensure the certain, expeditious and uniform enforcement by the courts of the rights, duties and remedies established herein. Certainty, predictability and uniformity in enforcement are essential to encourage property owners, landlords, managers and operators to take affirmative steps necessary to prevent their properties from becoming the sites of drug violations.
3. The purpose of this act is to authorize injunctive relief and other remedies to abate drug nuisances. An additional purpose is to encourage owners, landlords, operators and managers of buildings, places or premises, hereinafter referred to as "premises," to take the affirmative steps necessary to prevent drug violations on their properties.
4. As used in this act:
"Controlled dangerous substance," "controlled substance analog," "manufacture," "distribution," "sale" and "possession with intent to distribute" shall mean the same as used in N.J.S.2C:35-1 et seq.
"Drug distribution event" means the unlawful manufacture, distribution, sale or possession with intent to distribute a controlled dangerous substance or controlled substance analog or unlawful attempt or conspiracy to commit such act.
"Drug nuisance" means a residential place, site or location at which:
a. Three or more separate drug distribution events have occurred within the period of one year prior to the commencement of the civil action under this act;
b. On three or more separate occasions within the period of one year prior to the commencement of the civil action under this act, two or more persons who did not reside in or upon such site gathered for the principal purpose of unlawfully ingesting, injecting, inhaling or otherwise using a controlled dangerous substance or controlled substance analog, whether or not any such substance was unlawfully distributed or purchased at such location;
c. Any amount of a controlled dangerous substance or controlled substance analog has been manufactured, or more than 50 marijuana plants have at any one time been grown or cultivated, or any such substance in excess of one kilogram has at any one time been unlawfully stored, warehoused, concealed or otherwise kept, whether or not three or more separate such unlawful acts have occurred within any prescribed period of time; or
d. The site was used or is being used in any way in furtherance of or to promote or facilitate the commission of any drug distribution event whether or not three or more separate violations have occurred within any prescribed period of time.
"Neighborhood or community organization'' means a group, whether or not incorporated, which has the purpose of benefitting the quality of life in its neighborhood or community.
"Owner" means any person in whom is vested the ownership and title of property and who is the owner of record. "Owner" shall include any local, city, state or federal governmental entity.
"Person" means a natural person, corporation, association, partnership, trustee, lessee, agent, assignee, enterprise, governmental entity and any other legal entity or group of individuals associated in fact which is capable of holding a legal or beneficial interest in property.
"Property" means any building or structure or complex of buildings or structures in which dwelling units are rented or leased or offered for rental or lease for residential purposes.
5. The causes of action established in this act are civil actions to: enjoin the commission of drug distribution events; close down and physically secure premises or portions thereof which constitute drug nuisances; otherwise abate such drug nuisances; and, impose civil penalties. These actions shall be brought in the Superior Court, which shall have jurisdiction to issue temporary, preliminary or permanent injunctive or other equitable relief.
6. Except as may otherwise be expressly provided, the civil causes of action established in this act shall be proved by a preponderance of the evidence.
7. a. A civil action for injunctive relief or imposition of penalties pursuant to this act may be brought by:
(1) The municipal or county attorney representing any municipality or county which has jurisdiction over the location at which the alleged drug nuisance exists;
(2) The Attorney General or county prosecutor having jurisdiction where the alleged drug nuisance exists;
(3) Any neighborhood or community organization as defined in this act; or
(4) Any person who resides, is employed full or part-time at the site of a business premises or owns or operates a business premises, on or within 1,000 feet of any alleged drug nuisance.
b. A civil action pursuant to this act shall be brought against the owner, and may also be brought against any person within the jurisdiction of the court who is a landlord, tenant, manager, operator or supervisor, of any premises alleged to be a drug nuisance. In addition, the court shall have in rem jurisdiction over the premises alleged to be a drug nuisance and the complaint initiating a civil action pursuant to this act shall name as a defendant the premises involved, describing it by block, lot number, street address or other means as are appropriate under the circumstances.
c. In any action brought pursuant to this act, every pleading, motion and other paper of a party shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. Such signature of an attorney constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; to the best of the signer's knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and, it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the appropriate parties. If a pleading, motion or other paper is signed in violation of this subsection, the court, upon motion or its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorneys' fees.
d. No person or entity shall be required to post any bond or security as a condition of initiating or prosecuting any action brought pursuant to this act.
e. Any person who upon an oath in writing states he is preparing to initiate an action pursuant to this act may request that the county recorder of deeds promptly provide the name and address of all owners of the premises as reflected in current county records, without charge.
f. The person in whose name the premises involved is recorded in the county recorder of deeds office shall be presumed to be the owner thereof.
g. Whenever there is evidence that a person was the manager, operator, supervisor or was in any other way in charge of the premises involved at the time the conduct constituting the drug nuisance is alleged to have been committed, it shall be a rebuttable presumption that the person was an agent or employee of the owner, landlord or lessee of the premises.
8. a. A complaint initiating an action pursuant to this act shall be personally served and notice provided to all defendants in accordance with applicable rules of civil practice. After filing an affidavit that personal service cannot be had after due diligence on one or more defendants within 20 days after the filing of the complaint, the plaintiff may (1) cause a copy of the complaint to be mailed to the defendant by certified mail, restricted delivery, return receipt to the clerk of court requested, and (2) cause a copy of the complaint to be affixed conspicuously to the premises alleged to be a drug nuisance. Service shall be deemed completed five days after filing with the court proof of such mailing and an affidavit that a copy of the complaint has been affixed to the premises.
b. All tenants or residents of any premises which is used in whole or part as a business, home, residence or dwelling, other than transient guests of a guest house, hotel or motel, who may be affected by any order issued pursuant to this act shall be provided such reasonable notice as shall be ordered by the court and shall be afforded opportunity to be heard at all hearings.
c. Notice of lis pendens shall be filed concurrently with the commencement of the action in the same manner as is generally provided for by statute or court rule.
9. When a court determines that the plaintiff bringing an action pursuant to this act has failed to pursue the matter with reasonable diligence, the court may substitute as plaintiff any person that consents thereto, provided that the person would have been authorized pursuant to this act to initiate the action.
10. a. All actions for injunctive relief or civil penalties brought pursuant to this act shall be heard by the court on an expedited and priority basis.
b. The court shall not grant a continuance except for compelling and extraordinary reasons, or on the application of a criminal prosecuting agency for good cause shown.
c. The court shall not stay the civil proceedings pending the disposition of any related criminal proceeding, except for compelling and extraordinary reasons or upon the application of a criminal prosecuting agency for good cause shown.
d. The court shall not dismiss an action brought pursuant to this act for lack of diligence in the prosecution of this action unless the court is clearly convinced that the interests of justice require such dismissal. Upon such a finding, the dismissal shall be without prejudice to the right of the plaintiff or any other authorized person or entity to reinstitute the action.
11. a. Any person or entity authorized to bring a civil action for injunctive relief pursuant to this act may file a complaint seeking preliminary injunctive relief by alleging that the premises constitutes a drug nuisance. Upon receipt of the complaint, the court shall order a preliminary hearing which shall not be later than 10 days from the date of the order. Service shall be made upon the owners of the premises pursuant to subsection a. of section 8 of this act not less than five days prior to the hearing. In the event that service cannot be completed in time to give the owners the minimum notice required by this subsection, the court may set a new hearing date.
b. If the court finds that (1) the premises constitutes a drug nuisance, (2) at least 30 days prior to the filing of the complaint seeking preliminary injunctive relief, the owner or the owner's agent had been notified by certified letter of the drug nuisance, and (3) the public health, safety or welfare immediately requires a preliminary closing order, the court shall issue an order to close the premises involved or the portions appropriate under the circumstances. The order shall direct actions necessary to physically secure the premises, or appropriate portions thereof, against use for any purpose. The preliminary closing order shall also restrain the defendant and all persons from removing or in any manner interfering with the furniture, fixtures and movable or personal property located on or within the premises constituting the drug nuisance.
c. If the court finds that the premises constitutes a drug nuisance, but that immediate closing of the premises is not required pursuant to subsection b. of this section, the court may enjoin the drug nuisance and issue an order restraining the defendants and all other persons conducting, maintaining, aiding, abetting or permitting drug distribution events constituting the drug nuisance. Additionally, the court may issue an order appointing a temporary receiver to manage or operate the premises. A temporary receiver shall have such powers and duties specifically authorized pursuant to subsection f. of section 16 of this act.
d. In determining whether the public health, safety or welfare immediately requires a preliminary closing order, the court shall consider any relevant evidence presented concerning any attendant circumstances, including, but not limited to whether: the alleged drug distribution events or related activities involve the use or threat of violence at or near the site alleged to be a drug nuisance; the alleged drug distribution events in any way involve distribution or sale of a controlled dangerous substance or controlled substance analog by or to a juvenile; or, the site alleged to be a drug nuisance is located within a drug-free school zone within the meaning of N.J.S.2C:35-7.
12. a. Upon order of the court, preliminary restraining and closing orders shall be enforced by the local police department or sheriff.
b. The officers serving a temporary closing order or a temporary restraining order shall file with the court an inventory of the personal property situated in or on the premises and shall be permitted to enter the premises to take the inventory. The inventory shall provide an accurate representation of the subject personal property including, but not limited to, photographing of furniture, fixtures and other personal or movable property.
c. The officers serving a preliminary closing order shall, upon service of the order, demand all persons present in the premises to vacate such premises or portion thereof forthwith unless the court orders otherwise. The premises or portion thereof shall be securely locked and all keys shall be held by the agency closing the premises.
d. Upon service of a preliminary closing order or a preliminary restraining order, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of the premises. In addition, where a preliminary closing order has been granted, the officers shall affix, in a conspicuous place or upon one or more of the principal entrances of such premises, a printed notice that the entire premises or portion thereof have been closed by court order, which notice shall contain the legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises. The printed notice shall also include the date of the order, the court which issued the order and the name of the office or agency posting the notice. In addition, where a preliminary restraining order has been granted, the officer shall affix, in the same manner, a notice similar to the notice provided for in relation to a preliminary closing order, except that the notice shall state that certain activity is prohibited by court order and that removal of furniture, fixtures or other personal or movable property is prohibited by court order.
e. Any person who, without lawful authority, mutilates or removes any order or notice posted in accordance with the provisions of subsection d. of this section is guilty of a disorderly persons offense.
f. Any person who knowingly or purposely violates any preliminary restraining order or closing order issued pursuant to this act shall be held in contempt.
13. a. The officers serving a preliminary closing order as provided in subsection c. of section 12, shall provide outreach information and referral materials to all residents present on how to obtain treatment for drug addiction.
b. The court, no less than 10 days prior to the removal of any persons pursuant to this act, shall cause notice to be provided to the local drug agency, the local child welfare agency and other appropriate social service agencies.
c. A one-page summary of such information and materials shall be posted next to any preliminary closing order or preliminary restraining order posted in accordance with subsection d. of section 12 of this act.
d. The Department of Health and Senior Services shall prepare all materials described in subsections a. and b. of this section and shall disseminate them to all law enforcement agencies empowered to enforce closing orders under this act.
14. a. Where the premises constituting the drug nuisance includes multiple residences, dwellings or business establishments, a preliminary or permanent closing order issued pursuant to any provision of this act shall, so far as is practicable, be limited to that portion of the entire premises necessary to abate the nuisance and prevent the recurrence of drug distribution events.
b. In addition to any other relief expressly authorized by this act, the court may order a defendant who knew or had reason to know of the nuisance to provide relocation assistance to any tenant ordered to vacate a premises pursuant to this act, provided that the court determines that such tenant was not involved in any drug distribution event constituting the nuisance and did not knowingly aid in the commission of any such drug distribution event. Relocation assistance shall be in the amount necessary to cover moving costs, security deposits for utilities and comparable housing, lost rent, and any other reasonable expenses the court may deem fair and reasonable as a result of the court's order to close a premises or any portion thereof pursuant to this act.
15. a. At any time before trial, the court, upon application of a defendant, may vacate or modify a closing order, after notice to the person bringing the action pursuant to this act, if the defendant demonstrates by clear and convincing evidence that he was not in any way involved in the commission of any drug distribution event constituting the nuisance and further:
(1) Provides a bond or undertaking in an amount equal to the assessed value, for property tax purposes, of the premises or portion thereof subject to the closure order, or such other amount fixed by the court, and the court determines that the public safety or welfare will be adequately protected thereby; or
(2) Submits clear and convincing proof to the court that the drug nuisance has been satisfactorily abated and will not recur. In determining whether the drug nuisance has been satisfactorily abated and will not recur, the court shall consider the nature, severity and duration of the drug nuisance and all other relevant factors, including, but not limited to, the following:
(a) Whether the defendant, through the exercise of reasonable diligence, should have known that drug distribution events were occurring on the premises and whether the defendant took steps necessary and appropriate in the circumstances to prevent the commission of such events;
(b) Whether the defendant has in good faith initiated eviction or removal proceedings pursuant to the "Expedited Eviction of Drug Traffickers Act," P.L. , c. (C. )(now pending before the Legislature as Assembly Bill No. ) against tenants or other persons who committed drug distribution events on the premises involved, immediately upon learning of a factual basis for initiating such eviction or removal action;
(c) Whether the defendant has developed an abatement plan which has been agreed to by the person or entity bringing the action pursuant to this act and has been approved by the court. Such abatement plan may provide for:
(i) Hiring an on-site manager to prevent the recurrence of drug distribution events;
(ii) Making capital improvements to the property, such as security gates;
(iii) Installing improved interior or exterior lighting;
(iv) Employing security guards;
(v) Installing electronic security or visual monitoring systems;
(vi) Establishing tenant-approved security procedures;
(vii) Attending property management training programs;
(viii) Making cosmetic improvements to the property;
(ix) Providing, at no cost, suitable space and facilities for a local police agency to establish a police substation or mini-station on or near the site of the drug nuisance; or
(x) Establishing any other program or initiative designed to enhance security and prevent the recurrence of drug distribution events on or near the premises involved.
b. If the court accepts a bond or undertaking pursuant to subsection a. and conduct constituting a drug nuisance recurs, the bond or undertaking shall be forfeited unless the court finds compelling and extraordinary reasons why such forfeiture would not be in the interests of justice. Any monies forfeited pursuant to this section shall be paid into the dedicated fund established in subsection d. of section 18 of this act.
16. If the court, after trial, finds that a premises is a drug nuisance, the court shall issue a permanent injunction and shall issue orders as are necessary to abate the drug nuisance and to prevent, to the extent reasonably possible, the recurrence of the drug nuisance. The court's order may include the following:
a. Directing the sheriff or other appropriate agency to seize and remove from the premises all material, equipment and instrumentalities used in the creation and maintenance of the drug nuisance and directing the sheriff to sell the property in the manner provided for the sale of personal property under execution in accordance with the applicable rules of civil practice. The net proceeds of any such sale, after the deduction of all lawful expenses involved, shall be paid into the dedicated fund established in subsection d. of section 18 of this act.
b. Authorizing the plaintiffs to make repairs, renovations and construction and structural alterations or take such other actions necessary to bring the premises into compliance with all applicable housing, building, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. Expenditures may be filed as a lien against the property.
c. Directing the closing of the premises, or appropriate portion thereof, to the extent necessary to abate the nuisance and directing the officer or agency enforcing the closure order to post a copy of the judgment and a printed notice of such closing order conforming to the requirements of subsection d. of section 12 of this act. The closing directed by the judgment shall be for such period of time as the court may direct but, subject to the provisions of section 17 of this act, shall not be for a period of more than one year from the posting of the judgment provided for in this subsection.
d. Suspending or revoking any business, professional or liquor license.
e. Ordering the suspension of any state, city or local governmental subsidies payable to the owners of the property, such as tenant assistance payments to landlords, until the nuisance is satisfactorily abated.
f. Appointing a temporary receiver to manage or operate the premises for such time as the court deems necessary to abate the nuisance. A receiver appointed pursuant to this section shall have such powers and duties as the court shall direct, including, but not limited to:
(1) Collecting, holding and dispersing the proceeds of all rents due from all tenants;
(2) Leasing or renting portions of the premises involved;
(3) Making or authorizing other persons to make necessary repairs or to maintain the property;
(4) Hiring security or other personnel necessary for the safe and proper operation of the premises;
(5) Retaining counsel to prosecute or defend suits arising from his management of the premises; and
(6) Expending funds from the collected rents in furtherance of the foregoing powers.
A receiver appointed by the court pursuant to this section or subsection c. of section 11 of this act shall, upon entering upon his duties, be sworn and shall affirm to faithfully, impartially and justly discharge his duties. In addition, the receiver may be required to post a bond or undertaking, in an amount to be fixed by the court making the appointment, to ensure the faithful discharge of these duties.
g. Imposing any, all or a combination of the foregoing remedies.
17. a. If the court, after trial, determines that a premises constitutes a drug nuisance, the court shall order the closure of the premises or appropriate portion thereof pursuant to subsection c. of section 16 of this act, unless the court is clearly convinced that any vacancy resulting from the closure would exacerbate rather than abate the nuisance or would otherwise be harmful to the community or the public interest.
b. The court, at any time after trial, may vacate the provisions of the judgment that direct the closing of the premises or any portion thereof provided that the defendant demonstrates by clear and convincing evidence to the court that the drug nuisance has been satisfactorily abated and is not likely to recur. In determining whether the drug nuisance has been satisfactorily abated and is not likely to recur, the court shall consider the nature, severity and duration of the drug nuisance and all other relevant factors, including but not limited to those factors set forth in subsection a. of section 15 of this act.
18. a. If the court, after trial, finds that a premises is a drug nuisance, the court, in addition to granting appropriate injunctive relief, shall impose a civil penalty against a defendant who knowingly conducted, maintained, aided, abetted or permitted a drug nuisance. The penalty shall be $35,000 or the market value of the entire premises involved, whichever amount is greater, unless the court finds, based on the evidence, that imposition of such penalty would constitute a serious injustice under the totality of the circumstances. In such case, the court may lower the penalty amount to the extent necessary to avoid such a serious injustice.
b. For the purpose of imposing a civil penalty pursuant to this section, the following shall be prima facie evidence that the defendant knowingly permitted the drug nuisance:
(1) The defendant failed to initiate an eviction action, pursuant to the provisions of the "Expedited Eviction of Drug Traffickers Act," P.L. , c. (C. )(now pending before the Legislature as Assembly Bill No. ) against a tenant after being notified by certified or registered mail of the tenant's drug distribution events committed on the leased premises; or
(2) A closure order was vacated under subsection b. of section 17 of this act within two years before the occurrence of the instant drug nuisance.
c. The court at any time shall waive, suspend or revoke any unpaid civil penalty imposed pursuant to this section if it is satisfied that:
(1) The defendant against whom the penalty was imposed has not violated any order issued pursuant to any provision of this act; and
(2) The defendant has transferred title to the premises to the plaintiff or any other organization approved by the court, preferably a neighborhood or community organization, provided that the recipient is (a) a nonprofit incorporated organization or association which is exempt from taxation under section 501(c) (3) of the Internal Revenue Code of 1954; (b) authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate any commercial or residential premises; and (c) has agreed to undertake any necessary rehabilitation or restoration and sell the premises as low or moderate income housing. Any profits therefrom shall be applied by the nonprofit organization to the costs of rehabilitating or restoring other residential property that has been transferred in a similar manner. Unless otherwise agreed to by the recipient organization, the defendant shall personally retain all state and local tax liability and the obligation shall attach to any other real property in the county owned by the defendant.
d. Ten percent of the civil penalties imposed under this section shall be retained by the court to offset the costs of collection. Half of all remaining penalty monies collected pursuant to this section shall be deposited in a non-lapsing revolving fund to be known as the "Nuisance Abatement and Neighborhood Rehabilitation Fund." Monies in this fund shall be appropriated by the State on an annual basis for the purpose of funding local drug nuisance abatement, drug prevention, education and housing and neighborhood rehabilitation programs. All of the remaining funds shall be deposited in a non-lapsing revolving fund to be known as the "Treatment for Displaced Residents Fund," to be administered by the Department of Health and Senior Services. These funds shall not be used to supplant existing municipal, county, state or federal funding or resources for the courts, nuisance abatement, drug prevention, education, housing or neighborhood rehabilitation programs, or treatment.
19. a. Nothing in this act shall be construed in any way to prevent the parties to the action at any time before or after trial from negotiating and agreeing to a fair settlement of the dispute, subject to the approval of the court.
b. The court, on application of a plaintiff, may vacate a closing order issued pursuant to this act, if the defendant has transferred title to the premises to the plaintiff or any other neighborhood or community organization approved by the court, provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under section 501(c) (3) of the Internal Revenue Code of 1954 and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate any commercial or residential premises. If such a transfer occurs, the requirements for prerelease inspection set forth in section 23 of this act shall not be applicable.
20. Whenever an action for injunctive relief or penalties brought pursuant to this act terminates in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including, but not limited to, reasonable attorney fees and all expenses and disbursements by the plaintiff and any other governmental entity in investigating, bringing, maintaining and enforcing the action and any court orders issued pursuant thereto. All defendants shall be jointly and severally liable for the payment of taxed costs imposed pursuant to this section.
21. A judgment awarding a permanent injunction pursuant to this act shall be a lien upon the premises declared to be a drug nuisance. In addition, a judgment against a defendant imposing a civil penalty or bill of taxed costs pursuant to this act shall be a lien upon the real estate owned by the defendant at the time of such rendition, and also upon all real estate the defendant may subsequently acquire, for a period of 20 years from the date of the judgment.
22. Any person who knowingly violates any order issued pursuant to this act shall be subject to contempt. Nothing in this act shall be construed in any way to preclude or preempt a criminal prosecution for violation of a controlled dangerous substance or controlled substance analog offense or any other criminal offense.
23. a. Subject to the provision of subsection b. of section 19 of this act, and unless the court expressly orders otherwise, no premises or portion thereof ordered to be closed pursuant to any provision of this act shall be released or opened unless it has been inspected by the appropriate inspection authorities and found to be in compliance with applicable local or state housing, building, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. If the inspection reveals violations of any such code, ordinance, rule, regulation or statute, the court shall issue such orders or grant such relief as may be necessary to bring the premises or portion thereof into compliance. In that event, the court may order the premises or portion thereof to remain closed pending such necessary repairs or modification, notwithstanding the one year time limit prescribed in subsection c. of section 16 of this act.
b. The court may authorize any person or government official to enter a premises or portion thereof closed pursuant to this act for the purpose of conducting an inspection or making any repairs or modifications necessary to abate the nuisance or to bring the premises or portion thereof into compliance with any applicable housing, building, fire, zoning, health or safety code, ordinance, rule, regulation or statute.
24. The causes of action and remedies authorized by this act shall be cumulative and shall be in addition to, not in lieu of, any other causes of action or remedies which may be available at law.
25. a. In any action brought pursuant to this act, all relevant evidence, including evidence of the use or threat of violence, evidence of character and general reputation in the community and any prior efforts or lack thereof by the defendant to abate the drug nuisance, shall be admissible to prove the existence of a drug nuisance
b. If a criminal prosecution or adjudication proceeding involving the drug distribution event constituting the drug nuisance results in a criminal conviction or adjudication of delinquency, such conviction or adjudication shall create a rebuttable presumption that the drug distribution event occurred. Notwithstanding the provisions of P.L. 1982, c.79 (C.2A:4A-60), any evidence or testimony admitted in the criminal or juvenile proceedings, including transcripts or a court reporter's notes of the transcripts of the adult or juvenile criminal proceedings, whether or not they have been transcribed, may be admitted in the civil action brought pursuant to this act.
c. In the event that the evidence or records of a criminal proceeding which did not result in a conviction or adjudication of delinquency have been sealed, the court in a civil action brought pursuant to this act may, notwithstanding any other provision of this act, order such evidence or records to be unsealed if the court finds that such evidence or records would be relevant to the fair disposition of the civil action.
d. If proof of the existence of the drug nuisance depends, in whole or in part, upon the affidavits or testimony of witnesses who are not peace officers, the court may, upon a showing of prior threats of violence or acts of violence by any defendant or any other person, issue orders to protect those witnesses including, but not limited to, the nondisclosure of the name, address or any other information which could identify those witnesses.
e. A law enforcement agency may make available to any person or entity seeking to secure compliance with this act any police report, or edited portion thereof, or forensic laboratory report, or edited portion thereof, concerning drug distribution events committed on or within the premises involved. A law enforcement agency may also make any officer available to testify as a witness or expert witness in a civil action brought pursuant to this act. The agency shall not disclose such information where, in the agency's opinion, such disclosure would jeopardize an investigation, prosecution, or other proceeding, or where such disclosure would violate any federal or State statute.
26. A civil action may be brought and maintained pursuant to this act and the court may find the existence of a drug nuisance, notwithstanding that a drug distribution event or events used to establish the existence of the drug nuisance have not resulted in an arrest, prosecution, conviction or adjudication of delinquency.
27. a. A court-ordered closing of a premises or portion thereof pursuant to this act shall not constitute an act of possession, ownership or control by the court, the plaintiff or any government official or entity responsible for enforcing the court order.
b. Any person or entity bringing, maintaining or enforcing any civil action or order issued in accordance with the provisions of this act shall have immunity from any civil liability that might otherwise be incurred for any theft of, or loss, damage or injury to any premises constituting the drug nuisance, or to any fixture, furniture, personal or movable property located in or on any such premises.
28. Any person or entity who, in good faith, institutes, participates in, testifies in, or encourages any person or entity to institute, participate in or testify in a civil action brought pursuant to this act, or who in good faith provides any information relied upon by any person or entity in instituting or participating in a civil action pursuant to this act, shall have immunity from any civil liability that might otherwise be incurred or imposed.
29. a. Notwithstanding the provisions of subsection a. of section 7 of this act, any person whose business or property is damaged by reason of a drug nuisance may bring a separate civil action for actual damages in the Superior Court against any persons who knowingly conducted, maintained, aided, abetted or permitted any drug distribution event constituting the drug nuisance.
b. In a civil action for damages pursuant to this section, the failure of an owner or landlord to initiate an eviction action against a tenant in accordance with the provisions of the "Expedited Eviction of Drug Traffickers Act," P.L. , c. (C. )(now pending before the Legislature as Assembly Bill No. ), if the owner or landlord has been notified by certified or registered mail of the tenant's drug distribution events committed on the leased premises, shall be prima facie evidence that the owner knowingly permitted the conduct constituting the drug nuisance.
c. In a civil action for damages pursuant to this section, expert testimony may be used to determine the amount of any actual damage or loss incurred by reason of the drug nuisance.
d. Whenever an action for damages brought pursuant to this section terminates in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including, but not limited to, reasonable attorney fees and all expenses and disbursements by the plaintiff in investigating, instituting and maintaining the action. All defendants shall be jointly and severally liable for the payments of taxed costs imposed pursuant to this section.
e. In any civil action for damages brought pursuant to this section, any evidence admitted or admissible in a civil action for injunctive relief or penalty imposed pursuant to this act shall be admissible.
30. If title to property has been transferred to any neighborhood or community organization pursuant to subsection c. of section 18 of this act, or pursuant to any negotiated settlement of any action brought pursuant to this act, such property may, subject to the approval of the court in which the civil action was initiated, be used to house a drug prevention or education program. Nothing herein shall be construed in any way to exempt such property from the requirements of any applicable zoning, fire, safety or health code, ordinance, rule, regulation or statute.
31. The provisions of this act shall be liberally construed to effectuate the remedial purposes, objectives and policies set forth in sections 2 and 3 of this act.
32. If any provision of this act or application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
33. This act shall be effective on the first day of the seventh month after enactment.
STATEMENT
Buildings and premises which are the sites of repeated drug distribution activity constitute a blight and a danger to the community. The goal of community mobilization legislation is to provide new incentives and legal tools to community-based organizations by creating strong and effective civil remedies. This bill, the "Drug Nuisance Abatement Act," is part of a two-bill package of legislation and is designed to complement the proposed "Expedited Eviction of Drug Traffickers Act." Both bills are based, in large part, on model legislation recommended by the President's Commission on Model State Drug Laws appointed by former President George Bush.
This bill develops a long-standing civil remedy, which historically has been used to close down bawdy houses and gin mills, to focus on eradicating the drug distribution activity in private or commercial premises. Most importantly, the nuisance law seeks to inspire and support the grass roots efforts of the community by encouraging the community or neighborhood organization, or the citizens who live or work in the community, to be the real party in the civil action. The organization or individual is the plaintiff in the lawsuit and is guaranteed expedited access to the courts. They may seek a preliminary or permanent injunction against the drug-related activity, seek the closure of the premises for up to a year and seek severe civil penalties against the owner who knowingly permitted the nuisance to exist. Specifically, the bill requires courts, after granting injunctive relief, to impose a civil penalty of $35,000 or the value of the property (whichever is greater), against defendants who knowingly conducted, maintained, aided, abetted or permitted the drug nuisance. The proceeds from such funds would be split between neighborhood rehabilitation and treatment programs.
This bill seeks to abate or remedy the drug nuisance problem. It is designed to encourage a proper resolution of the problem in a manner which is proportionate to the harm to the community and the culpability of the offender. For instance, upon the filing of the complaint, if the court finds that the premises constitutes a nuisance, the owner had knowledge of the fact and the public safety and welfare is at risk, the bill mandates that the premises be ordered immediately closed. The actual closure is conducted by law enforcement authorities.
The burden is on the owner or defendant to prove the nuisance is abated. The actions are to be given expedited and priority consideration by the court. As the case proceeds to trial, the defendant or owner is subject to a permanent closure order and civil penalties. The bill provides powerful negotiation tools to the community organizations and a strong incentive to the owner to enter into settlement. For example, the bill provides that the defendant or owner can vacate the closure order by transferring title to certain categories of nonprofit groups. The transfer of property under subsection c. of section 18 is an option available to the owner at any time; however, the prospect of the imposition of civil penalties makes this a more viable option. The bill requires that the organization receiving the property be certified as a 26 U.S.C. 501(c) non-profit housing organization and that it rehabilitate or restore the premises and sell it as low or moderate income housing. Subject to court approval, the premises may be used to house a drug prevention or education program.
Many provisions of the act are mandatory to ensure uniform interpretation and enforcement. However, the courts are provided many options to avoid unnecessary hardship to innocent persons. For example, one provision permits the court to order a defendant who had knowledge of the nuisance to provide relocation assistance to an innocent tenant who is displaced as a result of a closure order.
The bill's legislative findings recognize that property owners or managers have the affirmative duty to prevent drug activity on the premises under their control. The bill provides a community enforcement tool and remedy to those injured by the failure of the owner to fulfill that responsibility.
The "Drug Nuisance Abatement Act."