HB 4720 Text

H. B. 4720

(By Delegates Craig, Morgan, Leach, Amores and Howard)
[Introduced February 22, 2006; referred to the committee on the Judiciary.]

A BILL to amend and reenact the Code of West Virginia, 1931, as amended by adding thereto a new chapter, designated §60B-1-1,

§60B-1-2, §60B-1-3, §60B-1-4, §60B-1-5, §60B-1-6, §60B-1-7,

§60B-1-8, §60B-1-9, §60B-1-10, §60B-1-11, §60B-1-12,

§60B-1-13, §60B-1-14, §60B-1-15, all relating to holding landlords responsible for drug-related nuisances on their property; providing legislative findings; defining terms; setting criteria for complaints and supporting affidavits; providing for service of summons and complaint; establishing motion for preliminary injunction, consolidation of trial with hearing on motion and other equitable relief; issuing ex parte restraining orders and service, inventory of property, establishing violations of orders and contempt of court; establishing civil penalties; providing protection of witnesses; not requiring previous conviction; establishing security bond requirements; providing for evidence of general reputation of the property; providing means of dismissing complaints, prosecuting the action by certain attorneys and substituting complainant; establishing standards of proof, providing for damages and other relief; establishing jurisdiction of the court, appointing receivers, and eviction of tenants; establishing violations of court orders, establishing additional orders, and providing for suspension or cancellation of orders; and providing for penalty for bad faith claims.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended by adding thereto a new chapter, designated §60B-1-1, §60B-1-2, §60B-1-3, §60B-1-4, §60B-1-5, §60B-1-6, §60B-1-7, §60B-1-8, §60B-1-9, §60B-1- 10, §60B-1-11, §60B-1-12, §60B-1-13, §60B-1-14, §60B-1-15, all to read as follows:
CHAPTER 60B: WEST VIRGINIA DRUG ABATEMENT ACT
§60B-1-1. Legislative Findings

The Legislature finds and declares the following:

(a) There is a drug crisis in the State of West Virginia which is plaguing our neighborhoods and our housing and rental accommodations.
(b) Drugs have caused an increase in crime and violence and a deterioration in the habitability of housing and rental accommodations, as well as diminished property values.
(c) Currently there are inadequate incentives for property owners to take a more active role in preventing the use of their property for the manufacture, use, sale, storage, or distribution of drugs.
§60B-1-2. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
(1)"Community-based organization" means any group, whether incorporated or unincorporated, affiliated with or organized for the benefit of one or more communities or neighborhoods containing an alleged drug-related nuisance, or any group organized to improve the quality of life in a residential area containing the alleged drug-related nuisance.
(2)"Uniform controlled Substances Act" means the provisions of
chapter sixty-A of this code known as the "West Virginia Uniform Controlled Substances Act."
(3)"Drug-related nuisance" means:
(a) Any property, in whole or in part, used or intended to be used to facilitate any violation of the controlled substance acts or any similar ordinance of any municipality in this state or a similar act of the United States or any other state; or
(b) The use, sale, distribution, possession, storage, transportation, or manufacture of any controlled substances in violation of the Uniform Controlled Substance Act, or similar act of the United States or any other state; or
(c) Drug-related nuisance includes, but is not limited to, conduct unlawful in itself or unreasonable under the circumstances, knowingly or recklessly creating or maintaining a condition which endangers the safety or health of persons not occupying the property alleged to be a drug-related nuisance, and knowingly or recklessly conducting or maintaining any premises or place where persons gather for purposes of engaging in drug-related activities. For purposes of this definition, "knowingly" means either actual awareness or should have reasonably known.
(4) "Manufacturing" means the production preparation,
propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin or independent means of chemical synthesis, including any packaging or repackaging of the drug or labeling or re-labeling of its container.
(5) "Owner" means an individual, corporation, partnership, trust association, joint ventures, or any other business entity, and the respective agents of the individuals or entities, in whom is vested all or any part of the title to the property alleged to be a drug-related nuisance.
(6) "Property" means tangible real property, or an interest in real property, including an interest in any leasehold, license, or real estate, including any house, apartment building, condominium, cooperative, office building, store, restaurant, tavern, nightclub or warehouse, and the land extending to the boundaries of the lot upon which the structure is situated, and anything growing on, affixed to, or found on the land.
(7) "Attorney" means the Attorney General, prosecuting attorney, or county, municipal, or private attorney bringing a drug-related nuisance action.
(8) "Tenant" means a person who resides in or occupies property belonging to another person pursuant to a lease agreement, or pursuant to a tenancy under the common law.
§60B-1-3. Contents of complaint; supporting affidavits.
(a) The complaint or an affidavit attached thereto shall describe the adverse impact associated with the drug-related nuisance upon the surrounding neighborhood. Adverse impact includes, without limitation, the presence of any one or more of the following conditions:
(1) Diminished property value;
(2) Increased fear of residents to walk through or in public areas, including sidewalks, streets, alleys, and parks;
(3) Increased volume of vehicular and pedestrian traffic to and from the property;
(4) An increase in the number of ambulance and police calls to the property which are related to the use of drugs, or to violence stemming from drug-related activity;
(5) Bothersome solicitors or approaches by strangers wishing to sell drugs, or the aggressive solicitation of alms, on or near the property;
(6) The display of dangerous weapons on or near the property;
(7) Investigative purchases of drugs by law enforcement officers on or near the property;
(8) Arrests of persons on or near the property;
(9) Housing code violations relating to the property;
(10) Health code violations relating to the property;
(11) Accumulation of trash and refuse in common areas on or adjacent to the property;
(12) Unsecured entryways on the property;
(13) Loitering;
(14) Unreasonable noise;

(15) Search warrants served or executed at the property;
(16) The number of complaints made to law enforcement and other governmental officials about the alleged illegal activity associated with the property;
(17) The discharge of a firearm at the property;
(18) Violations of zoning laws or regulations at the property.
(b) The complaint shall contain a description of attempts made by the plaintiff, or any other person or entity, to notify the owner of the property on which the drug-related nuisance is situated and the resulting adverse impact thereof. No complaint shall be filed unless there has been at least one notice to the owner of the alleged drug-related nuisance 21 days prior to the filing of the complaint. Notice shall be served on the owner in accordance with the West Virginia Rules of Civil Procedure. If personal service can not be made, service may be made by posting the papers at the property.
(c) When an action is brought under this chapter by a private individual, the complaint shall be supported by at least five residents residing or owning real property within 1,000 feet of the premises alleged to be a drug-related nuisance. The support shall be in the form of an affidavit attesting to the fact that the residence of the affiant is within 1,000 feet of the alleged drug- related nuisance, and that the affiants have witnessed the alleged drug-related nuisance, and are aware of an adverse impact of the alleged drug-related nuisance.
§60B-1-4 . Service of summons and complaint.
A copy of the summons and complaint shall be served upon the defendant at least five business days prior to the first hearing in the action. Service shall be made in accordance with the West Virginia Rules of Civil Procedure. If personal service cannot be made, service may be made by posting the papers at the property. If service is made by posting papers to the property, a copy of the summons and complaint shall be mailed to the last known mailing address, if any, of the defendant.
§60B-1-5. Motion for preliminary injunction; consolidation of trial with hearing on motion; other equitable relief.

(a) Upon a filing of a motion for a preliminary injunction to

abate the drug-related nuisance, the plaintiff shall be entitled to a hearing on the motion within 10 business days of the filing. If it appears by affidavit or otherwise, that there is a substantia likelihood that the plaintiff will be able to prove a drug-related nuisance by a preponderance of evidence, the circuit court may issue a preliminary injunction and grant other relief as the court may deem to be appropriate, including those remedies provided by section thirteen.
(b) When appropriate, the court shall order the trial of the action on the merits to be advanced and consolidated with the hearing on the motion for a preliminary injunction.

(c) This section shall not be construed to prohibit the application for or the granting of a temporary restraining order or other equitable relief provided by law.
§60B-1-6. Issuance of ex parte restraining order; service; inventory of property relating to nuisance; violation of order; contempt of court.
(a) The court, upon the application of the plaintiff, may issue an ex parte restraining order, restraining the defendant and all other persons from removing, or in any manner interfering with, the personal property and contents of the place where the drug- related nuisance is alleged to exist, until a decision of the court granting or refusing to grant a temporary injunction, or until further order of the court.
(b) The restraining order may be served by handing it to and leaving a copy of the order with any person appearing to reside therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to the place, or by both delivery and posting.
(c) The officer serving a restraining order shall forthwith attempt to make and return to the court an inventory of the personal property and contents situated in, and apparently used in, conducting or maintaining the drug-related nuisance. Any violation of the restraining order shall be a contempt of court, and where the order is posted if it is removed or mutilated while it remains in force, is a contempt of court, provided that the posted order contains a notice to that effect.
§60B-1-7. Civil penalty.
In any action brought under this chapter, the complainants may request, and the court at its discretion may order a civil penalty of up to one thousand dollars ($1,000)for each day the nuisance exists, with the penalty payable to the general fund of the municipality in which the nuisance was located, or one-half to the state and one-half to the general fund of the county if situated outside the boundaries of a municipality.
§60B-1-8. Protection of witnesses.
If proof of the existence of the drug-related nuisance depends, in whole or in part, upon the affidavits of witnesses who are not law enforcement officers, upon a showing of prior threats of violence or acts of violence by any defendant or other person using the property alleged to be a drug-related nuisance, the court may issue orders to protect those witnesses, including, but not limited to, non-disclosure of the name, address, or any other identifying information.
§60B-1-9. Previous conviction not required.
A previous conviction of the defendant, or anyone, shall not be required to demonstrate a drug-related nuisance.
§60B-1-10. Security bond.

No security bond shall be required to issue a preliminary

injunction or temporary restraining order sought by the Attorney General, prosecuting attorney, or an attorney appearing for the county or municipality. Otherwise, at the discretion of the court, a security bond may be required to issue a preliminary injunction or temporary restraining order. Where relief is issued after an evidentiary hearing at which witnesses are subject to cross examination, the court shall not require a security bond in excess of one thousand dollars ($1,000).
§60B-1-11. Evidence of general reputation of property.
In an action brought under this division, evidence of the general reputation of the property of the defendant shall be admissible for the purpose of proving ad drug-related nuisance, and for the purpose of proving the knowledge of the defendant of the drug-related nuisance.
§60B-1-12. Dismissal of complaint filed by private citizen; prosecution by Attorney general or prosecuting attorney; substitution of complainant.
(a) If a complaint is filed by a private citizen, it may not be dismissed except upon a sworn statement by the complainant and his or her attorney, setting forth the reason why the action should be dismissed. A copy of the sworn statement shall be sent to the Attorney General and the prosecuting attorney at least seven days prior to its presentment to the court.
(b) If the court is of the opinion that the action should not be dismissed, it may direct the prosecuting attorney to prosecute the action to judgment.
(c) Any citizen of the county in which the alleged drug- related nuisance is located, or an interested community-based organization , may be substituted for the complainant and prosecute the action to judgment.
§60B-1-13. Standard of proof; damages and other relief; jurisdiction and powers of court; appointment of receiver; eviction of tenant.
(a) The plaintiff is required by a preponderance of the evidence to establish that a drug-related nuisance exists. The plaintiff is required by clear and convincing evidence to establish that the owner of the property who is not a resident or in actual possession of the property was either criminally culpable in aiding and abetting in the drug-related nuisance, actually aware of the drug-related nuisance without attempting subsequent remedial action, or exercised such lack of due diligence that the owner should have reasonably known of the existence drug-related- nuisance.
(b)If the existence of a drug-related nuisance is found, the
judgment may include actual damages and an injunction to restrain, abate, and prevent the continuance or recurrence of the drug- related nuisance. The court may grant declaratory relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes of the injunction or order and enforce the judgment or order.
(c) The court may restrain jurisdiction of the case for the
purpose of enforcing its orders.
(d)If the existence of a drug-related nuisance is found, the
court shall have additional power to fashion any one or more of the following remedies:
(1) Assess damages against the defendant in favor of the
plaintiff of not less than three hundred dollars ($300) nor more than forty thousand dollars ($40,000), or a lien on the property;
(2) Assess costs of the action against the defendant;
(3) Assess reasonable attorney fees since the filing of the
complaint, payable to a private attorney filing the complaint or the municipal, county, or state agency by which the prosecuting attorney is employed;
(4)When a governmental agency is a plaintiff in the action,
assess a fine against the defendant of not less than five hundred dollars ($500) nor more than fifty thousand dollars ($50,000) in addition to attorney fees;
(5) Order the owner to clean up the property and make repairs
upon the property;
(6) Suspend or revoke any business, housing, operational, or
liquor license. The suspension of any beer, wine, or liquor license held by or belonging to the defendant for a least 90 days is mandatory if the court finds a drug-related nuisance;
(7)Order the owner to make additional reasonable expenditures
upon the property, including, but not limited to, installing secure locks on doors, hiring a private security personnel, increasing lighting in common areas, and using videotaped surveillance of the property and adjacent alleyways, sidewalks, and parking lots;
(8) Order all rental income from the property to be placed in an escrow account with the court for up to 90 days or until the drug-related nuisance is abated;
(9) Order all rental income for property transferred to a
trustee, to be appointed by the court, who shall be empowered to use the rental income to take reasonable expenditures related to the property in order to abate the drug-related nuisance;
(10) Order the suspension of any state, city, or local
governmental subsidies payable to the owners of the property, including, but not limited to, tenant assistance payments to landlords, until the nuisance is abated;
(11) Allow the plaintiff to seal the property with the cost of
sealing payable to the defendant.
(a) In making any order under this division, the court shall
consider, among others, the following factors:
(1) The effect the drug-related nuisance has had on the
community;
(2) The number of people residing at the property;
(3) The proximity of the property to other residential
structures;
(4) The number of times the property has been cited for housing code or health code violations;
(5) The number of times the owner has been notified if drug-
related problems at the property;
(6) The extent and duration of the drug-related nuisance at the time of the order;
(7) Prior efforts or lack of effort by the defendant to abate
the drug-related nuisance;
(8) The involvement of the owners in the drug-related nuisance;
(9) The costs incurred by the jurisdiction, community-based
organization, individuals, or their attorneys, investigating, correcting, or attempting to correct the drug-related nuisance;
(10) Whether the drug-related nuisance was continuous or
recurring;
(11) The economic or financial benefit accruing or likely to
accrue to the defendant as a result of the conditions constituting the drug-related nuisance;
(12) Any other factors the court deems relevant.
(a) In making an order under subsection (d), the court shall not consider the lack of action by other property owners to abate alleged drug-related nuisances.
(b) If the building is ordered closed, then the court shall
appoint a receiver to sell all the furnishings and fixtures located in the building which are owned by the building owner, and place the funds from the sale in an escrow account to be used to satisfy the judgment. If the proceeds are inadequate to pay the judgment, the court may order public sale of the property with the proceeds to be paid into an escrow account.
(c) The owner of the property on which a tenant maintains a
drug-related nuisance may in the same proceeding seek the eviction of the tenant.
§60B-1-14. Violation of court order; additional orders necessary to abatement; suspension or cancellation of order.

A violation of any court order issued pursuant to this

chapter is punishable as a contempt of court by a fine of not less than five hundred dollars ($500) nor more than seventy-five thousand dollars ($75,000), or by imprisonment for not more than one year, or both. Evidence concerning the duration and repetitive nature of the violations shall be considered by the court in determining the penalty for contempt.

Upon finding that a defendant has wilfully violated an

order issued pursuant to this chapter, the court may issue any additional orders necessary to abate the drug-related nuisance or to carry out the punishment for contempt.

The court may suspend the effectiveness of an order of

abatement for no more than 90 days if the owner of the property establishes that he or she had no knowledge of the drug-related nuisance, and could not reasonably be expected to have knowledge, and the owner avers under oath that he or she will immediately undertake specified measures to abate the nuisance for the following two-year period. An abatement order issued pursuant to this chapter may not be issued for the benefit of defendant who has been found in contempt of court as part of the same action. An order issued pursuant to this subsection is a suspension and is not a withdrawal of the original order.

The courts shall cancel the order of abatement if the

owner of the property satisfies the court that the drug-related nuisance has been abated for the past 90 days, corrects all housing code and health code violations, and posts a bond in an amount to be determined by the court, which shall be immediately forfeitable if the drug-related nuisance recurs during the following two-year period.
§60B-1-15. Frivolous or bad faith action.
If the action is brought by a private citizen and the court finds that the action was frivolous or motivated by bad faith, costs and attorney fees may be taxed to the person.

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