BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2001-2002 Regular Session B
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AB 1868 (Koretz) 8
As Amended June 10, 2002
Hearing date: June 25, 2002
Health & Safety and Penal Codes
JM:mc
NUISANCE ABATEMENT
BUILDINGS USED FOR DRUG ACTIVITY AND PROSTITUTION
HISTORY
Source: Los Angeles City Attorney
Prior Legislation: AB 894 (Bentley) - Ch. 572, Stats. 1991
AB 3505 (Bradley) - Ch. 917, Stats. 1988
Support: Association for Los Angeles County Deputy Sheriffs;
California Peace Officers' Association; California
Police Chiefs' Association; California Rural Legal
Assistance Foundation; Western Center on Law and
Poverty; Coalition for Economic Survival; City of Los
Angeles; San Diego City Attorney; Apartment Association
of Greater Los Angeles; California State Sheriffs'
Association; California District Attorneys Association;
Committee on Moral Concerns; California Apartment
Association
Opposition:None known
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Assembly Floor Vote: Ayes 53 - Noes 26
KEY ISSUES
SHOULD A RESTRAINING ORDER OR INJUNCTION ISSUED IN SPECIFIED
NUISANCE ABATEMENT ACTIONS APPLY TO SUBSEQUENT OWNERS, COMMERCIAL
LESSEES OR AGENTS WHO HAVE ACTUAL KNOWLEDGE OF THE INJUNCTION OR
ORDER; AND SHOULD SUCH AN ORDER OR INJUNCTION NOT CONSTITUTE A TITLE
DEFECT, LIEN OR ENCUMBRANCE?
SHOULD COURTS IN CONTROLLED SUBSTANCE NUISANCE ABATEMENT ACTIONS BE
GRANTED THE AUTHORITY TO REQUIRE "THE OWNER OR PERSON IN CONTROL OF
THE PROPERTY TO RESIDE IN THE PROPERTY UNTIL THE NUISANCE IS
ABATED?"
UNDER EXISTING LAW, DAMAGES ORDERED IN A "RED LIGHT" NUISANCE
ABATEMENT ACTIONS SHALL BE PAID INTO THE RESTITUTION FUND FOR
VICTIMS OF CRIME, WHILE DAMAGES IN A CONTROLLED SUBSTANCE NUISANCE
ABATEMENT ACT ARE PAID TO THE CITY OR COUNTY WHERE THE PROPERTY IS
LOCATED. UNDER EXISTING LAW, A CIVIL PENALTY UP TO $25,000 CAN BE
IMPOSED ON A DEFENDANT IN A CONTROLLED SUBSTANCE ACTION.
SHOULD A COURT HAVE AUTHORITY TO ASSESS A CIVIL PENALTY OF UP TO
$25,000 IN A RED LIGHT NUISANCE ABATEMENT ACTION, IN ADDITION TO
DAMAGES?
SHOULD OF ANY CIVIL PENALTY IMPOSED ON A DEFENDANT IN A RED LIGHT
ABATEMENT ACTION OR A CONTROLLED SUBSTANCE NUISANCE ABATEMENT ACTION
BE PAID INTO THE RESTITUTION FUND AND PAID TO THE CITY TREASURER
FOR NUISANCE ABATEMENT EFFORTS, IF THE CITY PROSECUTED THE ACTION,
OR PAID TO COUNTY TREASURER WITHOUT RESTRICTION IF THE DISTRICT
ATTORNEY PROSECUTED THE ACTION?
PURPOSE
The purposes of this bill are to 1) make the civil penalty and
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damages provisions for controlled substance and "red light"
nuisance abatement actions the same; 2) allow a court to order
the owner of a property involved in a controlled substance
nuisance action to live in the property until the nuisance is
abated; and 3) provide that injunctions and restraining orders
in nuisance abatement actions shall apply to subsequent owners
and lessees.
Court Decisions Applicable to Nuisance Abatement
Existing law provides that the court in a public nuisance action
can require the defendant to pay the plaintiff's costs of suit,
including attorneys' fees and investigation costs. (Oakland v.
McCullough (1996) 46 Cal.App.4th 1; Civ. Code 3496, subd.
(b).)
Existing law provides that an injunction issued under the Red
Light Abatement Law (Pen. Code) and the Uniform Controlled
Substances Act (Health & Saf. Code) is not an "in rem remedy
binding on all successors in interest, but is instead an "in
personam" remedy that does not "run with the land." (People v.
Kothari (2000) 83 Cal. App. 4th 759.)" An "in rem" action is
once against property - real property, building, object. An
action in personam is against a person.
Health & Safety Code Drug House Nuisance Abatement Actions
Existing law provides, under the Uniform Controlled Substances
Act, that every building or place used for the purpose of
unlawfully selling, serving, storing, keeping, manufacturing, or
giving away any controlled substance and every building where
such acts occur is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered. (Health
& Saf. Code 11570.)
Existing law provides that the district attorney, city attorney,
or citizen may bring "an action" to abate a nuisance and
permanently enjoin any person maintaining it as to any building
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or place used to sell, keep, etc., controlled substances.
(Health & Saf. Code 11571.)
Existing law provides that if it can be shown to the
satisfaction of the court that a narcotics nuisance exists, the
court shall allow a temporary writ of injunction to abate and
prevent the continuance or recurrence of the nuisance. (Health
& Saf. Code 11573.)
Existing law provides that a number of remedies are available to
a court for narcotics nuisance abatement actions, including,
among other things, requiring: (1) capital improvements to a
property; (2) improved lighting; (3) security guards; and (4)
posting of signs. (Health & Saf. Code 11573.5.)
Existing law provides that if the court finds that any vacancy
resulting from closure of a property in a controlled substance
nuisance abatement action the court may, in lieu of closing the
building, order the owner or person allowing drug-related
conduct to occur to pay damages "in an amount equal to fair
market rental value . . . for one year . . ." Damages shall be
paid to the city or county in which the nuisance exists for
purposes of drug abuse prevention and education programs.
County programs must comply with specified statutory
requirement. Nuisance abatement damages shall not be used to
supplant existing city, county, state or federal resources for
such programs. (Health & Saf. Code 11581.)
Existing law provides that a court may assess a civil penalty
not to exceed $25,000 against a controlled substances nuisance
defendant or defendants based on the severity and duration of
the nuisance. This subdivision does not state how the penalty
is to be distributed or used. (Health & Saf. Code 11581,
subd. (b).)
This bill would provide that of the civil penalties collected
in a controlled substance nuisance abatement action shall be
deposited in the Restitution Fund, and the other half shall be
paid to the city in which the judgment was entered for the
enhancement of the city's nuisance abatement efforts, if the
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action was brought by the city attorney or prosecutor. If the
action was brought by a district attorney, of the penalties
shall be paid to the county treasurer.
This bill would add to the list of remedies available to a court
in a controlled substances nuisance abatement action that of
ordering the person owning or controlling the property to reside
in the property until the nuisance is abated.
Penal Code "Red Light" Nuisance Abatement
Existing law provides, under the Red Light Abatement Law, that
every building or place used for the purpose of illegal gambling
or prostitution, and every building or place where such acts are
held or occur, is a nuisance which shall be enjoined, abated,
and prevented, and for which damages may be recovered, whether
it is a public or private nuisance. The red light abatement law
applies to any "bathhouse which as a primary activity encourages
or permits conduct that can . . . transmit AIDS." (Pen. Code
11225.)
Existing law provides that if it can be shown to the
satisfaction of the court that an illegal gambling or
prostitution nuisance exists, the court shall allow a temporary
writ of injunction to abate and prevent the continuance or
recurrence of the nuisance. (Pen. Code 11227.)
Existing law provides that if a red light nuisance is
established under Penal Code provisions, the court can, in lieu
of ordering the premises closed, require the owner of the
property to pay "damages" in an amount not to exceed the fair
market value of the property for one years. (Pen. Code
11230.)
Existing law provides that damages collected pursuant to Penal
Code section 11230 for red light nuisance abatement shall be
deposited in the Restitution Fund for victims of crime - as
described in Gov. Code 12959 et seq. (Pen. Code 11230.)
Existing law provides that maintaining a property for the
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purpose of illegal gambling, as defined, lewdness, assignation,
or prostitution is a nuisance with respect to which the county
district attorney is required, and a city attorney of an
incorporated city is authorized, to maintain an "action in
equity" to abate the nuisance and perpetually enjoin the person
maintaining the nuisance. (Pen. Code 11225 et seq.)
This bill would provide instead and in addition that the county
district attorney and the city attorney of any city and county
are authorized to maintain an action to abate a gambling or
prostitution nuisance.
This bill would provide that a temporary restraining order or
injunction may enjoin subsequent owners, commercial lessees, or
agents who acquire the building or place where the gambling or
prostitution nuisance exists with notice of the order or
injunction.
This bill would provide that of the civil penalties collected
in a red light abatement action shall be deposited in the
Restitution Fund, and the other half shall be paid to the city
in which the judgment was entered for the enhancement of the
city's nuisance abatement efforts, if the action was brought by
the city attorney or prosecutor. If the action was brought by a
district attorney, of the penalties shall be paid to the
county treasurer.
This Bill Makes Damage and Penalty Provisions for Red Light and
Controlled Substance Nuisance Abatement Actions Equivalent
This bill makes the damages and civil penalty provisions for red
light and controlled substance actions the same.
? Damages, calculated by fair market rental value for premises
that remain open, will be paid to the city or county in which
the property is located.
Controlled substance nuisance damages shall be used for
specified drug prevention and education program.
Red light nuisance damages - no restriction on how used.
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? Civil penalties of up to $25,000 shall be divided equally
to the State Restitution Fund for victims of crime
to the City or County treasurer, depending on whether
city attorney or district attorney brings the action. City
funds directed for nuisance abatement efforts.
This Bill Provides That Subsequent Owners, Commercial Lessees
and Agents are Subject to Injunctions and Temporary Restraining
Orders
This bill provides that a court may issue a temporary
restraining order or injunction to enjoin subsequent owners,
commercial lessees, or agents who acquire the building or place
where the controlled substances nuisance exists with notice of
the order or injunction.
This bill provides that the temporary restraining order or
injunction "shall not constitute a title defect, lien, or
encumbrance on the real property."
COMMENTS
1. Need for This Bill
It is common to find many buildings in inner-city
areas in California plagued with criminal activity
perpetuated by drug-dealers and prostitutes. Attempts
by prosecutors to address these problems through
abatement lawsuits are easily thwarted by property
owners who transfer their properties to avoid
requirements to make the buildings and neighborhoods
safe for law-abiding residents. These same property
owners routinely abdicate their responsibilities to
keep these buildings in a habitable and safe condition
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because he does not experience first hand the
deleterious effects of drugs on their tenants.
AB 1868 is intended to address these issues by
amending relevant sections of the Health and Safety
Code and the Penal Code to allow a court to apply
court orders to successive owners and to allow a court
to order a defendant owner to reside in the building
until the nuisance is abated.
2. Nuisance Abatement Orders Apply to Subsequent Owners,
Commercial Lessees and Agents Who Have Actual Notice of Orders
The author and sponsor note that property owners may now avoid
nuisance abatement orders by transferring the property. Where
the property is transferred to a relative or associate, the
owner can continue to control the property, collect profits and
fail to abate the nuisance and the resulting harm to the
community. As nuisance abatement has been considered an action
against the person allowing or creating the nuisance, once the
property is transferred, the orders may be of little value in
abating the nuisance. This bill would provide that abatement
orders shall apply to subsequent owners, commercial lessees and
agents who have notice of the injunction or orders. It would
appear that a city or attorney or district attorney would be
required to prove actual notice. This may be difficult in many
cases.
HOW WILL THE PROVISION STATING THAT NUISANCE ABATEMENT
INJUNCTIONS AND RESTRAINING ORDERS APPLY IN PRACTICE?
3. Authority of Court to Order Property Owner to Live in
Controlled Substance Nuisance Property
This bill allows a court to order a defendant property owner or
controller in a controlled substance nuisance abatement
action<1> to live in the property until the nuisance is abated.
The underlying actions are civil in nature. It may be argued
that such an order constitutes a form of criminal punishment.
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<1> This remedy does not apply to red light nuisance abatement.
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Meaning of the Term to "Reside" in a Property is Not Defined
This provision presents the issue of what it means to "reside"
in a property. The sponsor argues that a person's freedom of
movement would not be restricted if he or she is required to
reside in the property involved in a nuisance action. If his or
her movement is unrestricted, a defendant could perhaps list the
property as his or her legal residence and spend very little
time there.
WHAT CONSTITUTES RESIDING IN A PROPERTY UNDER THIS BILL?
Sponsor's Argument That Residence Provision is Proper Under
Equity Power of Court
The sponsor cites the case of People v. Avol (1987) 192
Cal.App.3d Supp. 1, in which the defendant was convicted two
local health code misdemeanors related to his properties. After
the defendant violated his probation by failing to adequate
repairs, the court ordered the defendant to spend 60 days in
jail. With the defendant's agreement, the court further ordered
that 30 of the 60 days could be served under "house arrest" in
one of his own properties. The court in Avol found that house
arrest was proper as a condition of probation. Probation
conditions will be upheld if they have any reasonable
relationship to the defendant's criminal conduct and
rehabilitation. (Id, at p. 8.)
However, as noted above, this bill concerns civil actions, not
criminal prosecutions. Nevertheless, the sponsor argues that
the court has inherent equitable powers<2> to order a defendant
property owner in a civil nuisance action to live in his or her
property until necessary repairs are made. The sponsor's
argument reads as follows:
In nuisance abatement cases, the court sits as a court
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<2> Equitable remedies are those which are not money damages.
An equity order can include ordering a defendant to fulfill the
terms of a contract, to deliver property to the plaintiff, etc.
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of equity. The equitable power of the courts is broad
and flexible, and courts of equity will "mold and
adjust their decrees as to award substantial justice
according to the requirements of the varying
complications that may be presented to them for
adjudication." Times Mirror Co. v. Sup. Ct. (1935) 3
Cal. 2d 309, 331; People v. Barbiere (1917) 33 Cal.
App. 770, 776. "Courts of equity may, and frequently
do, go much farther both to give and withhold relief
in furtherance of the public interest than they are
accustomed to go when only private interests are
involved." Virginia R. Co. v. System Federation
(1937) 300 U.S. 515, 552.
In nuisance abatement cases . . . equitable powers are
. . . exercised to order [remedial] physical
improvements . . . An order requiring a defendant
owner to reside in his or her property can be viewed
as remedial . . . and reasonably related to
rehabilitation of the property. Many properties
become nuisance properties because of the criminal
activity of third parties, which absentee landlords
choose to ignore. If a defendant owner was required
to be present at the nuisance property that activity
could no longer be ignored. It should be noted that
the proposed amendment is not house arrest as it was
in the Avol case. The proposed order would not
restrict the defendant's movements in any way and so
is not tantamount to a jail sentence. [T]he owner
would retain his or her power to move around. [T]he
order would only require the landlord to reside in the
property . . . until the nuisance was abated. The
section already authorizes the court to order a
defendant to attend property management training
programs. [Thus], the court can already control the
defendant's movements to some extent.
In the Times Mirror case cited by the sponsor, the court ordered
the City of Los Angeles to go forward with a condemnation action
as to the former site of the editorial offices and printing
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plant of Los Angeles Times . The Times had relied on
representations that the city would pursue condemnations and
constructed new offices and a printing plant.
In Barbiere, the appellate court affirmed a decision in which
the trial court found the defendant's property to constitute a
nuisance because it was leased to another person for
prostitution in Old Sacramento (when the area had a less
family-oriented character). The court ordered the building
closed for one year and ordered the furniture used for
prostitution to be sold. The owners posted a bond and the
nuisance abatement action was cancelled as part of the judgment.
As the cases cited by the sponsor do not directly address the
issue of whether a court can order the owner of a property
considered in a nuisance action to live in the property, it
appears that this bill presents a novel issue.
Civil Penalties and Criminal Punishment - Generally
The sponsor argues that a court has inherent equitable powers to
order the owner of a building that constitutes a nuisance to
live in the property pending abatement of the nuisance. This
argument raises issues about the limits of a court's equitable
powers and issues about what constitutes criminal punishment as
opposed to a civil remedy or penalty. Further, it may be argued
that an order that a defendant reside in a nuisance property is
closely related to contempt.
Legislative intent generally controls the determination of
whether a penalty is civil or criminal. However, a statutory
scheme, although described as civil, may be so punitive as to
transform the provision into a criminal penalty. Applicable
factors include whether similar conduct is a crime, whether the
purpose of the penalty is to provide retribution and deterrence,
whether the sanction involves an affirmative disability or
restraint and has traditionally been considered as criminal
punishment, whether there is a rational purpose for the sanction
and whether the sanction appears excessive for the purpose.
(United States v. Ward (1980) 448 U.S. 242; Witkin, Cal. Crim.
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Law (3d Ed. 2000) Intro. to Crimes, 4.)
Contempt Actions and Penalties
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"Civil" and "criminal" contempt are technically civil in nature.
However, contempt statutes and powers are often described as
"quasi-criminal." It appears that criminal contempt requires
proof beyond a reasonable doubt.
? Civil contempt
Designed to compel future compliance - remedial
Considered coercive and avoidable by obedience to order
Notice and hearing required
Jury trial and proof beyond a reasonable doubt are not
required
? Criminal contempt
Punitive - designed to punish prior behavior
Not avoidable by following court order
In practice, the nature of contempt is not always clear. "In
general, courts have been allowed to exercise relatively
unencumbered power when doing so is necessary to the functioning
of the court itself [in matters such as disruptive behavior in
court]. Progressively greater procedural protections are
required when other considerations come into play." (Witkin,
Cal. Crim. Law (3d. Ed. 2000) Intro. to Crimes, 6.) If the
adjudication of a contempt matter requires "elaborate and"
reliable fact-finding, civil process may be inadequate and the
additional requirement and protections applicable in criminal
law may be required. Such a determination is strengthened where
the defendants conduct is ongoing or long lasting and the
penalty imposed is serious. (Ibid.)
The civil or criminal nature of the residence order in the bill
is not entirely clear. Ordering an owner of a nuisance property
to reside in the property may involve an elaborate fact finding
process that arguably requires full procedural protections. The
order may include aspects of punishment for prior conduct and
aspects of prospective coercion. That is, arguably a defendant
is being punished by being forced to live in a nuisance property
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where he or she was responsible for the nuisance. It can also
be argued that the purpose of the order is to induce the
defendant to abate the nuisance so as to avoid the penalty. If
this provision becomes law and is enforced, it will likely be
aggressively challenged.
SHOULD COURTS IN CONTROLLED SUBSTANCE NUISANCE ABATEMENT ACTIONS
HAVE THE POWER TO REQUIRE A PROPERTY OWNER WHO HAS NOT BEEN
CONVICTED OF A CRIME TO LIVE IN THE PROPERTY INVOLVED IN THE
NUISANCE?
4. Designation of 50% of Civil Penalty in Nuisance Abatement
Action for Victims of Violent Crime Restitution Fund
The author's background described the provision designating 50%
of civil nuisance abatement fines be placed into the State
Restitution Fund for victims of crime as a "technical"
correction. Committee staff notes that under existing law,
damages in a red light nuisance abatement action are paid, in
full, into the Restitution Fund. Existing law does not provide
for a civil penalty in red light abatement actions.
The bill actually makes the damage and penalty provisions for
red light (Pen. Code) and controlled substance (Health & Saf.
Code) nuisance abatement provisions equivalent, with the
exception that damages in a controlled substance nuisance action
must be used to fund specified drug abuse prevention and
education programs. In particular, if the court finds that
closing a building used for prostitution or drug commerce would
constitute a nuisance itself, the court can instead allow the
building to remain open and order the owner or person causing
the nuisance to pay damages to the city or county. Damages are
measured by the fair market rental value of the property. It
may be argued that such damages actually amount to a penalty, as
the court does not calculate the damages by assessing the harm
to the community caused by the nuisance.
The bill further provides that the court in either a red light
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or controlled substance nuisance abatement action can order the
defendant or defendants to pay a civil penalty of up to $25,000.
This is a true penalty. The proceeds of such penalties are
split evenly between the State Restitution Fund - for
restitution claims by victims of specified crimes - and the city
or county that brought the action. The bill provides that
cities shall use the penalty funds for further nuisance
abatement. The county can apparently use the penalty funds
without restriction.
Arguably, the affected communities, city attorneys, prosecutors
and the courts will benefit if the damage and penalty provisions
for each form of public nuisance abatement actions are
conformed. Appellate rulings may be applied uniformly and
consistently and property owners can clearly understand the law.
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