HB 1719 - Nuisances; certain drug related activity; actions to abate & enjoin

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.

Orrock, Nan (56th) McClinton, JoAnn (68th) Barnes, Roy E (33rd)
Status Summary HC: Judy SC: LA: 03/05/98 H - Favorably Reported (Sub)
Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7
Code Sections - 41-4-1/ 41-4-2/ 41-4-3/ 41-4-4/ 41-4-5/ 41-4-6/ 41-4-7/ 41-4-8/ 41-4-9/ 41-4-10/ 41-4-11
House Action Senate
2/18/98 Read 1st Time
2/19/98 Read 2nd Time
3/5/98 Favorably Reported
Sub Committee Amend/Sub

HB 1719                                           LC 22 3184S 
                _________________________ offers the following 
      substitute to HB 1719: 
                        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 notice 
  1- 9  and for hearings and motions for preliminary injunction; to 
  1-10  provide for security bonds and when such bonds are not 
  1-11  required; to provide for jury trials; to provide that a 
  1-12  previous conviction is not required for proof; to define the 
  1-13  conduct which must be proven to establish liability; to 
  1-14  provide for judgments, remedies, and relief; to provide for 
  1-15  a stay of an action filed under this Act in certain 
  1-16  circumstances; to provide for continuing jurisdiction to 
  1-17  enforce the court's orders; to provide for punishment for 
  1-18  violation of court orders; to provide that an action under 
  1-19  this Act is cumulative of other remedies; to provide for 
  1-20  related matters; to repeal conflicting laws; and for other 
  1-21  purposes. 
  1-23                           SECTION 1. 
  1-24  Title 41 of the Official Code of Georgia Annotated, relating 
  1-25  to nuisances, is amended by inserting a new chapter to be 
  1-26  designated Chapter 4 to read as follows: 
  1-27    41-4-1. 
  1-28    The General Assembly finds and declares the following: 
  1-29      (1) There is an illicit drug crisis in the State of 
  1-30      Georgia which is plaguing our neighborhoods and our 
  1-31      housing and rental accommodations; 
  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; and 
  2-10      (4) Currently there are inadequate incentives for 
  2-11      property owners to take a more active role in preventing 
  2-12      the continued or recurrent use of their property for the 
  2-13      manufacture, use, sale, storage, or distribution of 
  2-14      controlled substances or marijuana. 
  2-15    41-4-2. 
  2-16    As used in this chapter, the term: 
  2-17      (1) 'Drug related nuisance' means a property, in whole 
  2-18      or in part, judicially determined in accordance with the 
  2-19      provisions of this chapter to be the site of continued 
  2-20      or recurrent illegal activities relating to controlled 
  2-21      substances or marijuana and judicially determined to be 
  2-22      adversely affecting other nearby properties and the 
  2-23      persons who reside on or own such nearby properties by 
  2-24      such illegal activities. 
  2-25      (2) 'Illegal activities relating to drugs' means any 
  2-26      activity which violates any provision of Chapter 13 of 
  2-27      Title 16, relating to controlled substances and 
  2-28      marijuana, and any other unlawful activity which 
  2-29      facilitates the purchase, possession, manufacture, 
  2-30      delivery, distribution, dispensing, administering, 
  2-31      selling, or possession with the intent to distribute of 
  2-32      any controlled substance or marijuana which violation is 
  2-33      a felony. 
  2-34      (3) 'Knowingly' means having actual awareness. 
  2-35      (4) 'Owner' means a person, individual, corporation, 
  2-36      partnership, trust association, joint venture, or any 
  2-37      other business entity in whom is vested all or any part 
  2-38      of the title to property and the agents of such an 
  2-39      individual or entity. 
  2-40      (5) 'Property' means real property or an interest in 
  2-41      real property, including an interest in any leasehold, 
  3- 1      license, or real estate, including any house, apartment 
  3- 2      building, condominium, cooperative, office building, 
  3- 3      store, restaurant, tavern, nightclub, or warehouse, and 
  3- 4      the land extending to the boundaries of the lot upon 
  3- 5      which the structure is situated and anything growing on, 
  3- 6      affixed to, or found on the land. 
  3- 7    41-4-3. 
  3- 8    Wherever there is reason to believe that a drug related 
  3- 9    nuisance exists, the Attorney General, district attorney 
  3-10    of the judicial circuit, the attorney for the county or 
  3-11    municipality, or any person who is allegedly aggrieved by 
  3-12    the drug related nuisance, including a tenant of the 
  3-13    property, may file an action to abate, enjoin, and prevent 
  3-14    the continuance of a drug related nuisance. An action 
  3-15    shall be commenced by the filing of a complaint in the 
  3-16    superior court of the county in which the alleged nuisance 
  3-17    is situated alleging the facts constituting the drug 
  3-18    related nuisance. 
  3-19    41-4-4. 
  3-20    (a) The complaint or affidavits attached to the complaint 
  3-21    shall describe the evidence that illegal activities 
  3-22    relating to drugs exist at the specified property or that 
  3-23    the specified property is the locus for illegal activities 
  3-24    relating to drugs.  The complaint shall describe the 
  3-25    adverse impact primarily associated with such illegal 
  3-26    activities relating to drugs upon the surrounding 
  3-27    neighborhood.  The complaint shall describe with 
  3-28    specificity the dimensions or boundaries of the real 
  3-29    property alleged to be a drug related nuisance. 
  3-30      (b)(1) The plaintiff shall attach to the complaint an 
  3-31      affidavit setting out attempts to notify the owner of 
  3-32      the property of the illegal activities relating to drugs 
  3-33      and adverse impact.  Not more than 60 days nor less than 
  3-34      30 days prior to filing the complaint, both a notice 
  3-35      setting forth the alleged illegal activities relating to 
  3-36      drugs shall be mailed by certified mail, return receipt 
  3-37      requested, to each owner of record of the property and a 
  3-38      notice by regular mail shall be mailed to each owner of 
  3-39      record of the property. 
  3-40      (2) If no owner has been found after due diligence then 
  3-41      an action may be maintained against the property in 
  3-42      question. 
  4- 1    (c) When an action is brought under this chapter by a 
  4- 2    private individual, the complaint shall be supported by at 
  4- 3    least two residents residing on or owning real property 
  4- 4    within 1,000 feet of the property alleged to be a drug 
  4- 5    related nuisance.  The support shall be in the form of an 
  4- 6    affidavit attesting to the fact that the residence of the 
  4- 7    affiant is within 1,000 feet of the alleged drug related 
  4- 8    nuisance or that the affiant owns property within 1,000 
  4- 9    feet of the alleged drug related nuisance, that the 
  4-10    affiant has witnessed acts which are evidence of or 
  4-11    occurrences of illegal activities relating to drugs, and 
  4-12    that the affiant is aware of an adverse impact of the 
  4-13    alleged drug related nuisance. 
  4-14    41-4-5. 
  4-15    (a) Upon a filing of a motion for a preliminary injunction 
  4-16    to abate the alleged drug related nuisance, the plaintiff 
  4-17    shall be entitled to a hearing on the motion within ten 
  4-18    days of the filing.  If it appears by affidavit, or 
  4-19    otherwise, that there is a substantial likelihood that the 
  4-20    plaintiff will be able to prove the existence of a drug 
  4-21    related nuisance by a preponderance of evidence, the 
  4-22    superior court may issue a preliminary injunction and 
  4-23    grant other relief as the court may deem to be 
  4-24    appropriate, including those remedies provided by Code 
  4-25    Section 41-4-9. 
  4-26    (b) The court may order the trial of the action on the 
  4-27    merits to be advanced and consolidated with the hearing on 
  4-28    the motion for a preliminary injunction. 
  4-29    (c) This Code section shall not be construed to prohibit 
  4-30    the application for or the granting of other equitable 
  4-31    relief provided by law. 
  4-32    41-4-6. 
  4-33    No security bond shall be required to issue a preliminary 
  4-34    injunction or temporary restraining order sought by the 
  4-35    Attorney General, district attorney, or an attorney 
  4-36    appearing for the county or municipality.  At the 
  4-37    discretion of the court, a security bond may be required 
  4-38    to issue a preliminary injunction or temporary restraining 
  4-39    order sought by a plaintiff who is a private individual. 
  5- 1    41-4-7. 
  5- 2    Proof of a drug related nuisance under the provisions of 
  5- 3    this chapter shall not require a previous conviction of 
  5- 4    the defendant or of any other person. 
  5- 5    41-4-8. 
  5- 6    (a) To prevail in an action filed under the provisions of 
  5- 7    this chapter, a plaintiff is required to establish by a 
  5- 8    preponderance of the evidence that a drug related nuisance 
  5- 9    exists and to establish that the defendant is liable. 
  5-10    (b) To prove liability of a resident or owner of the 
  5-11    property which is alleged to be a drug related nuisance, 
  5-12    the plaintiff must prove that conduct by such resident or 
  5-13    owner of the property knowingly or recklessly created or 
  5-14    maintained a premises or place where persons gather for 
  5-15    purposes of engaging in illegal activities relating to 
  5-16    drugs, which condition endangers the safety or health of 
  5-17    persons not occupying the property  alleged to be a drug 
  5-18    related nuisance. 
  5-19    41-4-9. 
  5-20    (a) A judgment for a plaintiff in an action filed pursuant 
  5-21    to this chapter may include actual damages and an 
  5-22    injunction to restrain, abate, and prevent the continuance 
  5-23    of the drug related nuisance.  The court may grant any 
  5-24    other relief deemed necessary to accomplish the purposes 
  5-25    of the injunction or order and enforce the judgment or 
  5-26    order. 
  5-27    (b) The court may retain jurisdiction of the case for the 
  5-28    purpose of enforcing its orders. 
  5-29    (c) Upon final adjudication, the court shall have 
  5-30    additional power to fashion any one or more of the 
  5-31    following remedies: 
  5-32      (1) Award private damages against the defendant in favor 
  5-33      of each plaintiff; 
  5-34      (2) Assess costs of the action against the defendant; 
  5-35      (3) Assess reasonable attorney fees incurred in filing 
  5-36      and prosecution of the complaint; 
  5-37      (4) Order the owner to clean up the property and make 
  5-38      repairs upon the property; 
  5-39      (5) Suspend or revoke any liquor license; 
  6- 1      (6) Order the owner to make additional reasonable 
  6- 2      expenditures upon the property; 
  6- 3      (7) Order the suspension of any state, city, or local 
  6- 4      governmental subsidies payable to the owners of the 
  6- 5      property, including, but not limited to, tenant 
  6- 6      assistance payments to landlords, until the nuisance is 
  6- 7      abated; and assistance payments to landlords, until the 
  6- 8      nuisance is abated; and 
  6- 9      (8) Impose a civil fine on the defendant of up to 
  6-10      $1,000.00 per day for each day the drug related nuisance 
  6-11      exists. 
  6-12    (d) Upon a finding by the court that a defendant is 
  6-13    engaged in legal proceedings to obtain possession of the 
  6-14    property or other good faith efforts involving legal or 
  6-15    equitable actions attempting to reduce significantly or 
  6-16    eliminate illegal activities relating to drugs at the 
  6-17    property, the court shall stay an action filed under this 
  6-18    chapter pending the completion of such legal or equitable 
  6-19    actions. 
  6-20    (e) Notwithstanding anything contained in this chapter to 
  6-21    the contrary, a defendant shall be entitled to a trial by 
  6-22    jury. 
  6-23    41-4-10. 
  6-24    (a) A violation of any court order issued pursuant to this 
  6-25    chapter is punishable as a contempt of court. Evidence 
  6-26    concerning the duration and repetitive nature of the 
  6-27    violations shall be considered by the court in 
  6-28    determining the penalty for contempt. 
  6-29    (b) Upon finding that a defendant has willfully violated 
  6-30    an order issued pursuant to this chapter, the court may 
  6-31    issue any additional orders necessary to abate the drug 
  6-32    related nuisance or to carry out the punishment for 
  6-33    contempt. 
  6-34    (c) The court may suspend the effectiveness of an order of 
  6-35    abatement for no more than 90 days if the owner avers 
  6-36    under oath that he or she will immediately undertake 
  6-37    specified measures to abate the nuisance for the following 
  6-38    two-year period.  An order suspending an abatement order 
  6-39    pursuant to this subsection may not be issued for the 
  6-40    benefit of a defendant who has been found in contempt of 
  6-41    court as part of the same action.  An order issued 
  7- 1    pursuant to this subsection is a suspension and is not a 
  7- 2    withdrawal of the original order. 
  7- 3    (d) The courts shall cancel the order of abatement if the 
  7- 4    owner of the property satisfies the court that the drug 
  7- 5    related nuisance has been abated for the past 90 days, 
  7- 6    corrects all housing code and health code violations, and 
  7- 7    posts a bond in an amount to be determined by the court, 
  7- 8    which shall be immediately forfeitable if the drug related 
  7- 9    nuisance recurs during the following two-year period. 
  7-10    41-4-11. 
  7-11    The provisions of this chapter are intended to be 
  7-12    cumulative of any other remedies and shall not be 
  7-13    construed to repeal any other existing remedies for 
  7-14    nuisances or drug related nuisances." 
  7-15                           SECTION 2. 
  7-16  All laws and parts of laws in conflict with this Act are 
  7-17  repealed. 

Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 04/20/98