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|Councilmembers Jack Evans and Sharon Ambrose
A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
To allow the United States Attorney for the District of Columbia, the Corporation Counsel, or a community-based organization to file an action in the Superior Court of the District of Columbia to enjoin, abate, or prevent a drug-related nuisance.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this bill may be cited as the "Drug-Related Nuisance Abatement Act of 1997".
Sec. 2. Definitions.
For the purpose of this act, the term
(1) "Adverse impact" means the presence of any one or more of the following conditions:
(2) "Community-based organization" means any group, whether unincorporated or incorporated, affiliated with or organized for the benefit of one or more communities or neighborhoods, of defined geographic boundaries, containing the drug related nuisance, or any group organized to benefit the quality of life in a residential area containing the alleged drug-related nuisance.
(3) "Controlled substance" means any of the controlled substances as defined in subsections (a) and (b) of Schedule I of Section 204 of the District of Columbia Uniform Controlled Substances Act of 1981 (D.C. Law 4-29; D.C. Code §33-514(1),(2)).
(4) "Drug paraphernalia means drug paraphernalia as defined in Section 2 of the Drug Paraphernalia Act of 1982 (D.C. Law 4-149; D.C. Code §33-601).
(5) "Drug-related nuisance" means
(6) "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 the packaging or repackaging of the drug or labeling or relabeling of its container.
(7) "Owner" means the individual, corporation, partnership, trust association, joint venture, or any other business entity. and the respective agents of such individuals or entities, in whom is vested all or any part of the title to the property alleged to be a drug-related nuisance.
(8) "Property" means tangible real property, or any interest in real property, including an interest in any leasehold, license or real estate, such as any house, apartment building, condominium, cooperative. office building, storage, restaurant, tavern, nightclub or warehouse, and the land extending to the boundaries of the lot upon which such structure is situated, and anything growing on, affixed to, or found on the land.
(9) "Tenant" means a person who resides in or occupies real property belonging to another person pursuant to a lease agreement, whether written or oral, or pursuant to a tenancy at will or sufferance at common law.
Sec. 3. Action to abate.
(a) Wherever there is reason to believe that a drug-related nuisance exists, the United States Attorney for the District of Columbia. the Corporation Counsel for the District of Columbia, or any community-based organization may file an action in the Superior Court of the District of Columbia to abate, enjoin. and prevent the drug-related nuisance.
(b) Such actions shall be commenced by the filing of a complaint alleging the facts constituting the drug-related nuisance.
(c) Such actions shall be in equity and shall be tried without a jury.
Sec. 4. Complaint.
(a) The complaint or an affidavit it attached thereto shall describe the adverse impact of the drug-related nuisance upon the surrounding community.
(b) The complaint shall contain a description of attempts made by the plaintiff to notify the owner of the property on which the drug-related nuisance is situated about the drug related nuisance and the resulting adverse impact. No complaint shall be filed unless notice to the owner of the property on which the alleged drug-related nuisance is situated within 14 days prior to the filing of the complaint.
(c) When an action is brought pursuant to this act by a community-based organization, the complaint shall be supported by at least 2 persons residing, either as a tenant or otherwise, or owning real property within 3000 feet of the property alleged to be a drug-related nuisance. Said support shall be in the form of an affidavit testifying to the fact of the affiant's residence within 3000 feet of the alleged drug-related nuisance, and that the affiants have witnessed the activities alleged to constitute a drug-related nuisance, and are aware of an adverse impact on the community stemming from the alleged drug-related nuisance.
(d) A copy of the summons and complaint shall be served upon the defendant at least 5 business days prior to the first hearing on the action. Service shall be made in accordance with the rules of the District of Columbia Superior Court. Service also may be made by posting a conspicuous notice at the property indicating the nature of the proceedings, and the time and place of the hearing. If service is made by posting at the property, a copy of the summons and complaint shall be sent, by registered or certified mail, return receipt requested, to the last known mailing address, if any, of the defendant If the defendant is not the owner of the property, a copy of the summons and complaint shall be mailed to the last known mailing address of the owner.
Sec. 5. Preliminary injunction.
(a) Upon the filing of a complaint to abate the drug-related nuisance, the plaintiff shall be entitled to a hearing on any motion for a preliminary injunction within 10 business days of the filing of such action. If it shall be made to appear, by affidavit or otherwise, that there is a substantial likelihood that the plaintiff will be able to prove at trial that a drug-related nuisance exists, the court shall enter an order preliminarily enjoining the drug-related nuisance and granting such other relief as the court may deem appropriate. including those remedies provided in subsection 13 of this act. A plaintiff need not prove irreparable harm to obtain a preliminary injunction. This act presumes irrebuttably that the harm to the plaintiff caused by a drug-related nuisance outweighs any burden to the defendant of a preliminary injunction. Where appropriate, the court shall order a trial of the action on the merits to be advanced and consolidated with the hearing on the motion for preliminary injunction.
(b) This section shall not be construed to prohibit the application for or the granting of a temporary restraining order, or other equitable relief otherwise provided by law.
Sec. 6. Restraining order
(a) The court, upon the application of the plaintiff, may issue ex parse a restraining order preventing 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 such a temporary injunction, or until further order of the court.
(b) The restraining order may be served by handing it to or leaving a copy of such order with any person appearing to reside there, or by posting a copy in a conspicuous place at or upon one or more of the principal entrances to such place, or by both delivery and posting.
(c) The officer serving such a restraining order shall 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 such restraining order shall be a contempt of court, and where such order is posted is removed or mutilated while it remains in force, that is a contempt of court, provided that such posted order contains notice to that effect.
Sec. 7. Protection of witness.
If proof of the existence of the drug-related nuisance depends, in whole or in part, upon affidavits witnesses who are not law enforcement officers, the court in its discretion may issue orders to protect those witnesses, including, but not limited to, placing the complaint and supporting affidavits under seal.
Sec. 8. Conviction not required.
A previous conviction of the defendant, or any tenant or owner of the property, shall not be required to demonstrate a drug-related nuisance.
Sec. 9. Security.
No security bond shall be required to issue a preliminary injunction or temporary restraining order sought by the United States Attorney for the District of Columbia or by the Corporation Counsel. Otherwise, at the court's discretion, a security bond may be required to issue a preliminary injunction or temporary restraining order. The court shall not require a security bond in excess of $1000.
Sec. 10. Burden of proof.
The plaintiff must establish that a drug-related nuisance exists by the preponderance of the evidence. The plaintiff need not establish that the defendant knew, or should have known, of the drug- related nuisance to obtain relief under section 12 of this act.
Sec. 11. Evidence of reputation.
In an action brought under this act, evidence of general reputation of the defendant's property or tenants is admissible for the purpose of proving a drug-related nuisance, and for the purpose of proving the knowledge of the defendant of the nuisance.
Sec. 12. Relief.
(a) If the existence of a drug-related nuisance is found, the court shall enter an order permanently enjoining, abating, and preventing the continuance or recurrence of the nuisance. In order to effectuate fully the equitable remedy of abatement, such order may include damages as provided in section 13 of this act. The court may grant declaratory relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes of the judgment and enforce the same. The court may retain jurisdiction of the case for the purpose of enforcing its orders. A drug-related nuisance is not a nuisance per se requiring abatement as provided under subsection (b) of this section:
(b) Any order issued under this section may include the following relief:
(c) In fashioning an order under this section, the court shall consider, without limitation, the following factors:
(d) In making an order under this section, the court shall not consider the lack of action by other property owners or tenants to abate the drug-related nuisance.
(e) If the property is ordered sealed. the court shall appoint a receiver to sell all of the furnishings and fixtures located on the property and place the funds from the sale in an escrow account to be used to satisfy the judgment.
Sec. 13. Damages.
In addition to equitable relief granted under this act, the plaintiff may request, and the court in its discretion may order, damages in the amount of $1000 per day for each day the drug-related nuisance is unabated since the date the defendant first received notice of the drug related nuisance as provided in subsection 4(d). or knew or should have known of the existence of the drug-related nuisance, whichever is earlier. Such damages shall be payable to the plaintiff, or, in the case of an action by the United States Attorney for the District of Columbia or by the Corporation Counsel, the general fund of the District of Columbia No other damages are recoverable under this Act.
Sec. 14. Violation of injunction or abatement order.
(a) A violation of any court order issued under this act is punishable as a contempt of court.
(b) Upon finding that a defendant has violated willfully an order issued under this act, the court may issue any additional orders necessary to abate the drug-related nuisance.
(c) Upon motion. the court may vacate an order or judgment of abatement if the owner of the property satisfies the court that the drug-related nuisance has been abated for the 90 days prior to the motion, corrects all housing code and health code violations on the property, and deposits a bond in an amount to be determined by the court, which shall be in an amount reasonably calculated to ensure continued abatement of the nuisance. Any bond posted under this subsection shall be forfeited immediately if the drug-related nuisance recurs during the following 2-year period. At the close of 2 years following the date on which an order under this subsection is entered, the bond shall be returned.
Sec. 15. Interpretation.
This act shall be construed liberally in accordance with its remedial purposes. The definition of a drug-related nuisance shall not be subject to any restrictions or limitations upon public or private nuisance actions at common law. This action is civil in nature and none of its provisions should be interpreted as punishment.
Sec. 16. Severability.
If any section, sentence, clause or phrase of this act is held invalid or unconstitutional by any court of competent jurisdiction, than said ruling shall not affect the validity of the remaining portions of this act
Sec. 17. Availability of other remedies.
The provisions of this act shall not limit the availability of other remedies under the law or other equitable relief whether or not an adequate remedy exists at law.
Sec. 18. Fiscal impact statement.
The Council adopts the fiscal impact statement in the Committee Report as the fiscal impact statement required by section 602(c)(3) of the District of Columbia Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 813; D.C. Code §1233(c)(3)).
Sec. 19. Effective Date.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), approval by the Financial Responsibility and Management Assistance Authority as provided in section 203(a) of the District of Columbia Financial Responsibility and Management Assistance Act of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code §47-392.3(a)), a 30-day period of Congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code §1-233(c)(1)), and publication in the District of Columbia Register.
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