SB151: relative to drug nuisance abatement.

SB 151 – AS INTRODUCED

2007 SESSION

07-1229

06/04

SENATE BILL 151

AN ACT relative to drug nuisance abatement.

SPONSORS: Sen. Gatsas, Dist 16

COMMITTEE: Judiciary

ANALYSIS

This bill establishes requirements for drug nuisance abatement.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

07-1229

06/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seven

AN ACT relative to drug nuisance abatement.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Drug Nuisance Abatement. Amend RSA by inserting after chapter 318-D the following new chapter:

CHAPTER 318-E

DRUG NUISANCE ABATEMENT

318-E:1 Definition. As used in this chapter, “place” means any building, structure, or any separate part or portion thereof, whether permanent or not, or the ground itself.

318-E:2 Places Used to Commit Drug Offenses; Nuisance. Any place used to commit an act prohibited under RSA 318-B:2, and any place in or upon which an act in violation of RSA 318-B:2 is held or occurs shall be a nuisance that may be enjoined, abated, and prevented, regardless of whether it is a public or private nuisance.

318-E:3 Citizen’s Rights. Any citizen who brings a nuisance abatement action to prevent the use of a place for the purpose of committing offenses under RSA 318-B:2, or who files a complaint with local law enforcement officials shall be entitled to notice of any court proceedings and the final disposition, and the right to address the court.

318-E:4 Injunctions Against Persons. Nothing in this chapter shall be construed to prohibit injunctions against persons causing, maintaining, aiding, abetting, or permitting a nuisance from entering or residing in any public or private building, premises, or place, in or upon which the nuisance exists.

318-E:5 Abatement.

I. Whenever there is reason to believe that a nuisance exists or is maintained in any county, the attorney general, or the county attorney of the county in which the nuisance exists or is maintained, or any citizen of the state residing within such county may in the citizen’s own name, or any organization, including, but not limited to a tenant organization within such county may in the organization’s own name, file suit in the superior court to abate and prevent the nuisance and to permanently enjoin the person causing, maintaining, aiding, abetting, or permitting the nuisance, or the owner, lessee, or agent of the building, premises, or place in or upon which the nuisance exists, from directly or indirectly causing, maintaining, aiding, abetting, or permitting the nuisance.

II. No action authorized under this chapter which seeks to abate or prevent a nuisance shall be filed or maintained against the state or any political subdivision thereof.

318-E:6 Standard of Proof. Except as otherwise provided, elements of the civil causes of action in this chapter shall be proved by a preponderance of the evidence.

318-E:7 Protective Order. If proof of the existence of the nuisance depends in whole or in part upon the affidavits or testimony of a witness who is not a law enforcement officer, the court, upon a showing of prior threats of violence or acts of violence by a defendant, may issue an order to protect such witness including but not limited to, the nondisclosure of the name, address, or any other information that may identify such witness. If the witness is a law enforcement officer and there is a showing of prior threats or acts of violence, the court may issue an order to preclude disclosures of the officer’s personal information, such as home address.

318-E:8 Injunctive Relief. As part of the requested relief, a party filing a drug nuisance abatement suit may request a temporary injunction to abate and prevent the nuisance. To obtain such relief, the request shall be supported by a verified petition or affidavit. The court may issue an injunction ex parte, subject to a hearing within 10 days. Such injunction may include a provision prohibiting the person causing, maintaining, aiding, abetting, or permitting the nuisance from residing in or entering into the building, premises, or place in or upon which the nuisance exists.

318-E:9 Suit to Have Precedence. When an action is brought under this chapter, it shall have precedence over all cases, except criminal proceedings, election contests, and hearings on injunctions. Evidence of the general reputation of the building, premises, place, or persons, and of the use or threat of violence shall be admissible in any court proceeding for the purpose of proving the existence of the nuisance.

318-E:10 Failure to Prosecute. If the petition or suit is filed by a citizen or by an organization, it shall not be dismissed by the complainant for want of prosecution except upon a sworn statement by the complainant or the complainant’s attorney, setting forth the reasons why the suit should be dismissed, and the dismissal ordered by the court. In case of failure to prosecute any such suit with reasonable diligence, or at the request of the complainant, the court in its discretion, may substitute any other citizen or organization, including, but not limited to the attorney general or the county attorney consenting thereto for the complainant. If a suit is brought by a citizen or by an organization and the court finds that there was no reasonable ground or cause for such suit, the costs shall be taxed against such citizen or organization, except that no costs shall be taxed against state or county organizations.

318-E:11 Order of Abatement. If the existence of a nuisance is established as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall include a provision permanently prohibiting the person causing, maintaining, aiding, abetting, or permitting the nuisance, if said person is a party to the proceeding, from residing in or entering into the building, premises, or place in or upon which the nuisance exists. The court, on the application of the person, may suspend the prohibition if the person is participating in a court-approved treatment program which addresses the person’s conduct which caused the nuisance. If the court determines that the person has successfully completed the program and that the person is not likely to create another nuisance, the court may dissolve the injunction against the person. In the event that the court determines that an injunction against the person causing, maintaining, aiding, abetting, or permitting the nuisance will not completely abate the nuisance, or that one or more of the persons causing, maintaining, aiding, abetting, or permitting the nuisance are not parties to the proceeding, the court shall also order the closing of the building, premises, or place, against its use for any purpose, and that it be kept closed for a period not exceeding one year, unless sooner released, as provided by RSA 318-E:13. While the order to close remains in effect, the building, premises, or place shall remain in the jurisdiction of the court. The court’s order may also include, but is not limited to, an order suspending or revoking any business, professional, operational, or liquor license.

318-E:12 Costs and Expenses. The court may award reasonable attorneys’ fees, costs, or expenses incurred in the closing of the building, premises, or place and keeping it closed, or costs incurred in enforcing the injunction prohibiting the person causing, maintaining, aiding, abetting, or permitting the nuisance from residing or entering into the building, premises, or place in or upon which the nuisance exists, as well as reasonable attorneys’ fees, costs, and expenses incurred by the party bringing the action.

318-E:13 Owner Not Guilty of Contempt; May Pay Costs. If the owner of the building, premises, or place has not been guilty of any criminal contempt of court in the proceedings, and appears and pays any costs or fees due, on the building, premises, or place, and files a bond in a reasonable amount to be fixed by the court, with sureties to be approved by the court, on the condition that the owner will immediately abate any such nuisance that may exist at such building, premises, or place, and prevent the same from being established or kept for a period of one year thereafter, the court may, dissolve the order directing the closing of said building, premises, or place. Dissolution of an order directing the closing of the building, premises, or place under the provisions of this section shall not affect any judgment, lien, penalty, or liability to which it may be subject by law.

318-E:14 Contempt.

I. Any person who knowingly violates any order issued pursuant to this chapter may be held in contempt. Nothing in this chapter shall be construed to preclude or preempt a criminal prosecution for any violation of RSA 318-B or any other criminal offense.

II. Notice by the owner of any business, premises, or place to the lessee that the lease will be revoked if the lessee continues the maintenance of the nuisance, and other action taken to revoke the lease or to obtain the termination of the nuisance, shall be considered by the court in a criminal contempt action brought against the owner under this chapter.

318-E:15 Fees and Costs. Any attorneys’ fees, costs, expenses, and fines imposed against any owner of a business, premises, or place in an action under this chapter shall be a lien upon such business, premises, or place.

318-E:16 Appeal. Any person subject to an order of abatement may appeal to the supreme court. The filing of an appeal shall not suspend the operation of the order unless otherwise ordered by the court upon a finding that justice requires such a suspension.

2 Effective Date. This act shall take effect January 1, 2008.