Introduced Version
House Bill 4720 History
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Key: Green = existing Code. Red = new code to be enacted
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.