Bill Text: PA SB501 | 2011-2012 | Regular Session | Introduced

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Bill Title: Further providing for drug nuisances; providing for drug nuisance abatement; and prescribing penalties.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2011-02-11 - Referred to JUDICIARY [SB501 Detail]

Download: Pennsylvania-2011-SB501-Introduced.html

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PRINTER'S NO. 501
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 501 Session of2011
INTRODUCED BY BROWNE, ERICKSON, RAFFERTY, BOSCOLA AND FARNESE, FEBRUARY 11, 2011
REFERRED TO JUDICIARY, FEBRUARY 11, 2011
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, further providing for
drug nuisances; providing for drug nuisance abatement; and
prescribing penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Subchapter H of Chapter 83 of Title 42 of the
Pennsylvania Consolidated Statutes is repealed:
[SUBCHAPTER H
DRUG NUISANCES
Sec.
8381. Short title of subchapter.
8382. Definitions.
8383. Action to abate.
8384. Complaint.
8385. Service of original process.
8386. Preliminary injunction.
8387. Protection of witnesses.
8388. Security.
8389. Judgment and remedies.
8390. Violation of injunctions or abatement order.
8391. Release and cancellation.
8392. Severability.
§ 8381. Short title of subchapter.
This subchapter shall be known and may be cited as the Drug
Nuisance Law.
§ 8382. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Community-based organization." Any group affiliated with or
organized for the benefit of one or more communities or
neighborhoods, or any group organized to benefit the quality of
life in a residential area.
"Controlled substance act." The act of April 14, 1972 (P.L.
233, No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act.
"Drug-related nuisance." The use of any property, in whole
or in part, which facilitates or is intended to facilitate any
violation of the act of April 14, 1972 (P.L.233, No.64), known
as The Controlled Substance, Drug, Device and Cosmetic Act, or
similar act of the United States or any other state.
"Manufacture" or "manufacturing." The production,
preparation, propagation, compounding, conversion or processing
of a controlled substance, other drug or device or the packaging
or repackaging of such substance or article, or the labeling or
relabeling of the commercial container of such substance or
article, but does not include the activities of a practitioner
who, as an incident to his administration or dispensing such
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substance or article in the course of his professional practice,
prepares, compounds, packages or labels such substance or
article. The term "manufacturer" means a person who manufactures
a controlled substance, other drug or device.
"Owner." An individual, corporation, partnership, trust
association, joint venture or any other business entity in whom
is vested all or any part of the title to the property alleged
to be a drug-related nuisance.
"Property." Any tangible or intangible property, including
an interest in any leasehold, license or real estate, such as
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 or found
on the land.
"Tenant." A person who resides in or occupies real property
belonging to another person pursuant to a lease agreement or
common law tenancy.
§ 8383. Action to abate.
Wherever there is reason to believe that a drug-related
nuisance exists, the district attorney, the Attorney General, if
requested by a district attorney, the solicitor for the county
or municipality, a resident within 1,000 feet of the property,
including a tenant of the property, the owner of property or any
community-based organization may file an action in the court of
common pleas to abate, enjoin and prevent the drug-related
nuisance. Such actions shall be commenced by the filing of a
complaint alleging the facts constituting the drug-related
nuisance.
§ 8384. Complaint.
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(a) Adverse impact.--The complaint or an affidavit attached
thereto shall describe the adverse impact associated with the
drug 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 and in
public areas, including sidewalks and streets, increased
volume of vehicular and pedestrian traffic to and from the
property.
(3) An increase in the number of ambulance or police
calls to the property which are related to the use of drugs
or to violence stemming from illegal activity.
(4) Increased noise, bothersome solicitors or approaches
by persons wishing to sell drugs or solicit the donation of
money on or near the property.
(5) The display of dangerous weapons on or near the
property.
(6) The discharge of firearms on or near the property.
(7) Search warrants served on tenants or occupants of
the property which resulted in the seizure of drugs.
(8) Investigative purchases of drugs on or near the
property by law enforcement officers.
(9) Arrests of person on or near the property for
violation of criminal laws.
(10) Housing code violations relating to the property.
(11) Health code violations relating to the property.
(12) Accumulated trash and refuse in common areas on or
adjacent to the property.
(13) An unsecured entryway on the property.
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(b) Attempts to notify owner.--The complaint shall contain a
description of what attempts, if any, have been made by the
plaintiff or any other person or entity to notify the owner of
the property of the drug-related nuisance or resulting adverse
impact.
§ 8385. Service of original process.
(a) General rule.--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 of original process
shall be made in accordance with the Pennsylvania Rules of Civil
Procedure.
(b) Posting at property.--If personal service cannot be
made, service may be made by posting the papers at the property.
If service is made by posting at the property, a copy of the
summons and complaint shall be mailed registered mail to the
last known mail address, if any, of the defendant. Actual
receipt of the registered mail shall not be required for
service.
§ 8386. Preliminary injunction.
Upon the filing of a motion for preliminary injunction to
abate the drug-related nuisance, the plaintiff shall be entitled
to a hearing on the motion for preliminary injunction within 10
business days of the filing. If it shall be made to appear, by
affidavit or otherwise, that there is a substantial likelihood
that the plaintiff will show at trial, by a preponderance of the
evidence, that 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 to be
appropriate, including those remedies provided for in section
8389 (relating to judgment and remedies). Whenever possible, the
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court shall order the trial of the action on the merits advanced
and consolidated with the hearing of the motion. This section
shall not be construed to prohibit the application for or the
granting of a temporary restraining order.
§ 8387. Protection of witnesses.
At the time of an application for the issuance of a
restraining order or an injunction if proof of the existence of
the drug-related nuisance depends, in whole or 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 alleged to be involved in the
drug-related nuisance, the court may issue orders to protect
those witnesses, providing for nondisclosure of the name,
address or any other identifying information pertaining to the
witnesses, and such other and further relief as the court may
deem appropriate.
§ 8388. Security.
No bond shall be required to issue a preliminary injunction
or special injunction sought by the district attorney or the
solicitor for the county or municipality. A bond in an amount
fixed and with security approved by the court may be required to
issue a preliminary injunction or special injunction when the
plaintiff is not the district attorney, the Attorney General or
a solicitor for the county or municipality. Where such relief is
issued after an evidentiary hearing at which witnesses are
subject to cross examination, the court shall not require a bond
in excess of $500.
§ 8389. Judgment and remedies.
(a) Burden of proof.--The plaintiff must establish that a
drug-related nuisance exists by a preponderance of the evidence.
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(b) Relief.--If the existence of a drug-related nuisance is
found, the judgment may include actual damages and a temporary
or permanent 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 same, and the court may
retain jurisdiction of the case for the purpose of enforcing its
orders.
(c) Additional remedies.--If the existence of a drug-related
nuisance is found, the court shall have the power additionally
to fashion any one or more of the following remedies:
(1) Assess costs of the action against the defendant.
(2) When a governmental agency is a plaintiff in the
action, assess a civil penalty against the defendant of not
less than $500 nor more than $10,000.
(3) Order the owner to clean up the property and make
repairs upon the property.
(4) Suspend or revoke any business, professional,
operational or liquor license.
(5) Order the owner to make additional reasonable
expenditures upon the property, including, but not limited
to, installing secure locks on doors, increasing lighting in
common areas and using videotaped surveillance of the
property and adjacent alleyways, sidewalks and parking lots.
(6) 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.
(7) Order all rental income for the property transferred
to a trustee, to be appointed by the court, who shall be
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empowered to use the rental income to make reasonable
expenditures upon the property in order to abate the drug-
related nuisance.
(8) Order the suspension of any State, city or local
governmental subsidies payable to the owners of the property,
such as tenant assistance payments to landlords, until the
nuisance is abated.
(9) Allow the plaintiff to seal the property with the
cost of sealing payable by the defendant.
(10) Order the defendant to pay the plaintiff the cost
of the suit, including reasonable attorney fees.
(d) Factors to consider.--In making an order under
subsection (c), the court shall consider, among others, the
following factors:
(1) The number of people residing at the property.
(2) The proximity of the property to other residential
structures.
(3) The number of times the property has been cited for
housing code or health code violations.
(4) The number of times the owner has been notified of
drug-related problems at the property.
(5) The extent and duration of the drug-related nuisance
at the time of the order.
(6) Prior efforts or lack of effort by the defendant to
abate the drug-related nuisance.
(7) The availability of alternative housing for tenants
of the building.
(8) The extent of concern about the drug-related
nuisance that has been expressed by nearby residents or
visitors to the area.
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(9) The owner's involvement in the drug-related
nuisance.
(10) The owner's involvement in other drug-related
nuisances.
§ 8390. Violation of injunctions or abatement order.
(a) Contempt.--A violation of any court order issued under
this subchapter is punishable as a contempt of court by a fine
of not less than $500 nor more than $75,000. The court may order
the sheriff or other proper officer of any county to take into
custody and commit to jail any person fined for a contempt until
the fine shall be paid or discharged. If unable to pay the fine,
the person may be committed to jail by the court for not more
than three months. Evidence concerning the duration and
repetitive nature of the violations shall be considered by the
court in determining the contempt penalties.
(b) Additional orders.--In addition, upon finding that a
defendant has willfully violated a court order issued under this
subchapter, the court shall be also empowered to issue any
additional orders necessary to abate this drug-related nuisance.
§ 8391. Release and cancellation.
(a) No knowledge and abatement.--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 had no
knowledge of the drug-related nuisance and could not reasonably
be expected to have such knowledge and the owner avers that he
will immediately undertake specified measures to abate the
nuisance and prevent it from being a drug-related nuisance for
the following two-year period.
(b) Fines and bond.--The courts shall cancel the order of
abatement if the owner of the property pays all fines and liens
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against 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 will be immediately
forfeitable if the drug-related nuisance recurs during the
following one-year period.
§ 8392. Severability.
If any provision of this subchapter or its application to any
person or circumstance is held invalid or unenforceable, the
remainder of this subchapter or the application of the provision
to other persons or circumstances shall not be affected.]
Section 2. Chapter 83 of Title 42 is amended by adding a
subchapter to read:
SUBCHAPTER H
DRUG NUISANCE ABATEMENT
Sec.
8381. Scope of subchapter.
8382. Definitions.
8383. Nature of actions and jurisdiction.
8384. Standard of proof.
8385. Parties.
8386. Notice to interested parties.
8387. Substitution of plaintiff.
8388. Continuances.
8389. Issuance of preliminary orders.
8390. Enforcement of preliminary orders.
8391. Notification and provision of treatment resources.
8392. Premises involving multiple residences or businesses.
8393. Vacating or modifying closing order.
8394. Permanent injunction and other relief.
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8395. Closure.
8396. Penalties.
8397. Settlements.
8398. Recovery of costs.
8399. Liens.
8399.1. Contempt.
8399.2. Release of premises upon inspection or repair.
8399.3. Cumulative remedies.
8399.4. Admissibility of evidence.
8399.5. Relationship to criminal proceedings.
8399.6. Liability for damage to closed properties.
8399.7. Civil immunity.
8399.8. Civil action.
8399.9. Use of property for treatment and other purposes.
§ 8381. Scope of subchapter.
This subchapter relates to drug nuisance abatement.
§ 8382. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Controlled substance." The term shall have the same meaning
as the term is used in the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act.
"Distribution." The term shall have the same meaning as the
term is used in the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act.
"Drug distribution event." The unlawful manufacture,
distribution, sale or possession with intent to distribute, sell
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or deliver a controlled substance or an unlawful attempt or
conspiracy to commit such an act.
"Drug nuisance."
(1) a site which was used or is being used in
furtherance of or to promote or facilitate the commission of
a drug distribution event; or
(2) two or more persons who, on two or more separate
occasions within one year prior to the commencement of a
civil action under this subchapter, did not reside in or upon
a site gathered for the principal purpose of unlawfully
investigating, injecting, inhaling or otherwise using a
controlled substance, regardless of whether a controlled
substance was unlawfully distributed or purchased at the
location.
"Expedited Eviction of Drug Traffickers Act." The act of
October 11, 1995 (1st Sp.Sess., P.L.1066, No.23), known as the
Expedited Eviction of Drug Traffickers Act.
"Manufacture." The term shall have the same meaning as the
term is used in the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and Cosmetic
Act.
"Neighborhood or community organization." A group, whether
or not incorporated, which consists of persons who reside or
work at or in a building, complex of buildings, street, block or
neighborhood, any part of which is located on or within 1,000
feet of premises alleged to be a drug nuisance, which has the
purpose of benefiting the quality of life in its neighborhood or
community, including treatment programs.
"Owner." A person in whom is vested the ownership and title
of property and who is the owner of record. The term shall
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include a Federal, State, city or local government entity.
"Person." A natural person, corporation, association,
partnership, trustee, lessee, agent, assignee, enterprise,
governmental entity, and any other legal entity or group of
individuals associated in fact which is capable of holding a
legal or beneficial interest in property.
"Possession with intent to sell or distribute." The term
shall have the same meaning as the term is used in the act of
April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act.
"Sale." The term shall have the same meaning as the term is
used in the act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act.
§ 8383. Nature of actions and jurisdiction.
The causes of action established in this subchapter are civil
actions to enjoin the commission of drug distribution events, to
close down and physically secure premises or portions thereof
which constitute drug nuisances and otherwise abate such drug
nuisances and to impose civil penalties. These actions shall be
brought in the court of common pleas, which shall have
jurisdiction to issue temporary, preliminary or permanent
injunctive or other equitable relief, regardless of whether an
adequate remedy exists at law.
§ 8384. Standard of proof.
Except as may otherwise be expressly provided, civil causes
of action established in this subchapter shall be proven by a
preponderance of the evidence.
§ 8385. Parties.
(a) Who may bring actions.--A civil action for temporary,
preliminary or permanent injunctive relief or penalties under
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this subchapter may be brought by:
(1) the solicitor for a State, county or municipal
governing body which has jurisdiction over the location at
which an alleged drug nuisance exists;
(2) the Attorney General and the district attorney
having jurisdiction where the alleged drug nuisance exists;
(3) a neighborhood or community organization; or
(4) a person who resides, is employed full time or part
time at the site of business or owns or operates a business
on or within 1,000 feet of an alleged drug nuisance.
(b) Defendants to the action.--
(1) A civil action under this subchapter shall be
brought against the owner of, and may also be brought against
a person within, the jurisdiction of the court who is a
landlord, tenant, manager, operator or supervisor of premises
alleged to be a drug nuisance.
(2) The court shall have in rem jurisdiction over the
premises alleged to be a drug nuisance.
(3) The complaint initiating a civil action under this
subchapter shall name as a defendant the premises involved,
describing it by block, lot number and street address or by
such other means as are appropriate under the circumstances.
(c) Protections against frivolous actions and sanctions for
unfounded or unwarranted pleadings, motions or other actions.--
(1) In any action brought under this subchapter, every
pleading, motion and other document shall be signed by at
least one attorney of record in the attorney's own name, and
the attorney's address shall be stated. The signature of an
attorney constitutes a certification that the signer has read
the pleading, motion or other paper; that to the best of the
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signer's knowledge, information and belief, formed after
reasonable inquiry, it is well grounded in fact and is
warranted under existing law, or a good faith argument for
the extension, modification or reversal of existing law; and
that it is not interposed for any improper purpose, such as
to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
(2) If a pleading, motion or other document is not
signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the pleader
or movant.
(3) If a pleading, motion or other document is signed in
violation of this subchapter, the court, upon motion or upon
its own initiative, shall impose upon the person who signed
it or a represented party, or both, an appropriate sanction,
which may include an order to pay to the other party or
parties the amount of the reasonable expenses incurred
because of the filing of the pleading, motion or other
document, including a reasonable attorney fee.
(d) No bond or security required.--No person or entity shall
be required to post a bond or security as a condition of
initiating or prosecuting an action brought under this
subchapter.
(e) Ready availability of ownership information to potential
plaintiffs.--A person or entity that, upon an oath in writing,
states the affiant is preparing to initiate an action under this
subchapter may request that the recorder of deeds promptly
provide the name and address of all owners of the premises as
reflected upon the current county records, without charge.
(f) Presumption of ownership.--The person in whose name the
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premises involved are recorded in the county recorder of deeds
office shall be presumed to be the owner.
(g) Presumption of agency.--Whenever there is evidence that
a person was the manager, operator or supervisor or was in any
other way in charge of the premises involved at the time conduct
constituting the drug nuisance is alleged to have been
committed, the evidence shall be rebuttably presumptive that the
person was an agent or employee of the owner, landlord or lessee
of the premises.
§ 8386. Notice to interested parties.
(a) Notice to defendants.--
(1) A complaint initiating an action under this
subchapter shall be personally served and notice to all in
personam defendants shall be provided in the same manner as
service of complaints in civil actions. After filing an
affidavit that personal service cannot be had after due
diligence on one or more in personam defendants within 20
days after the filing of the complaint, the plaintiff may:
(i) Cause a copy of the complaint to be mailed to
the defendant by certified mail, restricted delivery,
return receipt to the clerk of court requested.
(ii) Cause a copy of the complaint to be affixed
conspicuously to the premises alleged to be a drug
nuisance.
(2) Service shall be deemed completed five days after
filing with the court proof of the mailing and an affidavit
that a copy of the complaint has been affixed to the
premises.
(b) Notice to affected tenants, residents and guests.--All
tenants or residents of any premises used in whole or in part as
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a business, home, residence or dwelling, other than transient
guests of a guest house, hotel or motel, who may be affected by
any order issued under this subchapter shall be provided such
reasonable notice as shall be ordered by the court and shall be
afforded opportunity to be heard at all hearings.
(c) Lis pendens.--Notice of lis pendens shall be filed
concurrently with the commencement of the action in the same
manner as is generally provided for by law or court rule.
§ 8387. Substitution of plaintiff.
When a court determines in its discretion that the plaintiff
bringing an action under this subchapter has failed to prosecute
the matter with reasonable diligence, the court may substitute
as plaintiff a person or entity that consents thereto, provided
that the person or entity would have been authorized under this
subchapter to initiate the action.
§ 8388. Continuances.
(a) General policy.--An action for injunctive relief or
civil penalties brought under this subchapter shall be heard by
the court on an expedited and priority basis.
(b) Continuances.--The court may not grant a continuance
except for extraordinary and compelling reasons or on the
application of a criminal prosecuting agency for good cause
shown.
(c) Stay pending criminal proceedings.--The court may not
stay the civil proceedings pending the disposition of any
related criminal proceeding except for extraordinary and
compelling reasons or except upon the application of a criminal
prosecuting agency for good cause shown.
(d) Dismissal of actions for want of prosecution.--
(1) The court may not dismiss an action brought under
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this subchapter for want of prosecution unless the court is
clearly convinced that the interests of justice require
dismissal.
(2) In that event and upon such a finding, the dismissal
shall be without prejudice to the right of the plaintiff or
any other person or entity authorized to bring an action
under this subchapter to reinstitute the action.
§ 8389. Issuance of preliminary orders.
(a) General rule.--A person or entity authorized to bring a
civil action for injunctive relief under this subchapter may
file a complaint seeking preliminary injunctive relief by
alleging that the premises constitute a drug nuisance. Upon
receipt of the complaint, the court shall order a preliminary
hearing which shall not be later than 30 days from the date of
the order. Service shall be made upon the owners of the premises
under section 8386(a) (relating to notice to interested parties)
not less than five days prior to the hearing. In the event that
service cannot be completed in time to give the owners the
minimum notice required under this subchapter, the court may set
a new hearing date.
(b) Preliminary closing order.--
(1) If the court finds it a substantial likelihood that
the plaintiff by a preponderance of the evidence will be able
to establish at trial:
(i) that the premises constitute a drug nuisance;
(ii) that, at least 30 days prior to the filing of
the complaint seeking preliminary injunctive relief, the
owner or the owner's agent had been notified by certified
mail of the drug nuisance; and
(iii) that the public health, safety or welfare
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immediately requires a preliminary closing order, the
court shall issue an order to close the premises involved
or the portions appropriate under the circumstances.
(2) The order shall direct actions necessary to
physically secure the premises, or appropriate portions
thereof, against use for any purpose. The preliminary closing
order shall also restrain the defendant and all persons from
removing or in any manner interfering with the furniture,
fixtures and movable or personal property located on or
within the premises constituting the drug nuisance.
(c) Other preliminary relief.--
(1) If the court finds that the premises constitute a
drug nuisance, but that immediate closing of the premises is
not required under subsection (b), the court may enjoin the
drug nuisance and issue an order restraining the defendants
and all other persons conducting, maintaining, aiding,
abetting or permitting drug distribution events constituting
the drug nuisance.
(2) The court may not require a plaintiff to show that
the plaintiff has no adequate remedy at law or will suffer
irreparable harm nor any other common law element applicable
to a preliminary injunction to obtain a preliminary closing
order.
(3) The court may issue an order appointing a temporary
receiver to manage or operate the premises. A temporary
receiver shall have the powers and duties specifically
authorized under section 8394(6) (relating to permanent
injunction and other relief).
(d) Admissible evidence.--In determining whether the public
health, safety or welfare immediately requires a preliminary
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closing order, the court shall consider any relevant evidence
presented concerning attendant circumstances, including, but not
limited to:
(1) whether the alleged drug distribution events or
related activities involve the use of threat of violence at
or near the site alleged to be a drug nuisance;
(2) whether the alleged drug distribution events in any
way involve distribution or sale of a controlled substance by
or to a juvenile; or
(3) whether the site alleged to be a drug nuisance is
located within a drug-free zone under 18 Pa.C.S. § 6314
(relating to sentencing and penalties for trafficking drugs
to minors).
§ 8390. Enforcement of preliminary orders.
(a) Entities enforcing orders.--Upon order of the court,
preliminary restraining and closing orders shall be enforced by
the sheriff, local police department or, if no local police are
available, by the Pennsylvania State Police.
(b) Inventory of personal property.--The officers serving a
temporary closing or temporary restraining order shall file with
the court an inventory of the personal property situated in or
on the premises closed and shall be allowed to enter the
premises to make the inventory. The inventory shall provide an
accurate representation of the personal property subject to the
inventory, including, but not limited to, photographing of
furniture, fixtures and other personal or movable property.
(c) Vacation of premises.--The officers serving a
preliminary closing order shall, upon service of the order,
demand all persons present in the premises closed to vacate the
premises, or portion thereof, unless the court orders otherwise.
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The premises, or portion thereof, shall be securely locked and
all keys shall be held by the agency closing the premises.
(d) Posting of court order.--
(1) Upon service of a preliminary closing order or a
preliminary restraining order, the officer shall post a copy
of the order in a conspicuous place or upon one or more of
the principal doors at entrances of the premises.
(2) Where a preliminary closing order has been granted,
the officers shall affix, in a conspicuous place or upon one
or more of the principal entrances of the premises, a printed
notice that the entire premises, or a portion thereof, has
been closed by court order, which notice shall contain the
legend "Closed by Court Order" in block lettering of
sufficient size to be observed by anyone intending or likely
to enter the premises. The printed notice shall also include
the date of the order, the court which issued the order and
the name of the office or agency posting the notice.
(3) Where a preliminary restraining order has been
granted, the officer shall affix, in the same manner, a
notice similar to the notice provided for in relation to a
preliminary closing order except that the notice shall state
that certain activity is prohibited by court order and the
removal of furniture, fixtures or other personal or movable
property is prohibited by court order.
(e) Mutilation or removal of posted court order.--A person
who without lawful authority mutilates or removes an order or
notice posted under the provisions of subsection (d) commits a
misdemeanor of the third degree.
(f) Violation of court order.--A person who knowingly or
purposely violates a preliminary restraining order or closing
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order issued under this subchapter shall be subject to civil
contempt, as well as punishment for criminal contempt, under 18
Pa.C.S. §§ 4955 (relating to violation of orders) and 5101
(relating to obstructing administration of law or other
governmental function).
§ 8391. Notification and provision of treatment resources.
(a) Notification to persons present.--The officers serving a
preliminary closing order under section 8390(c) (relating to
enforcement of preliminary orders) shall provide outreach
information and referral materials to all residents present on
how to obtain alcohol and other drug treatment.
(b) Notification to social services agencies.--The court, no
less than ten days prior to the removal of a person under this
subchapter, shall cause notice to be provided to the local
alcohol and other drug agency, the local child welfare agency
and other appropriate social service agencies of the ordered
removal of any persons under this subchapter.
(c) Posting of notification.--A one-page summary of such
information and materials shall be posted next to any
preliminary restraining order posted under section 8390(d).
(d) Preparation and dissemination of treatment resource
information.--The Bureau of Drug and Alcohol Programs in the
Department of Health or its designee shall prepare all materials
described in subsections (a) and (b) and shall disseminate them
to all sheriff departments, local police departments or other
appropriate agencies which are empowered to enforce closing
orders under this subchapter.
§ 8392. Premises involving multiple residences or businesses.
(a) Limiting order to nuisance portion of premises.--Where
the premises constituting the drug nuisance include multiple
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residences, dwellings or business establishments, a preliminary
or permanent closing order issued under any provision of this
subchapter shall, so far as is practicable, be limited to that
portion of the entire premises necessary to abate the nuisance
and prevent the recurrence of drug distribution events.
(b) Duty of certain landlords to displaced innocent
tenants.--
(1) In addition to any other relief expressly authorized
under this subchapter, the court may order a defendant who
knew or had reason to know of the nuisance to provide
relocation assistance to a tenant ordered to vacate premises
under this subchapter, provided that the court determines
that:
(i) The tenant was not involved in a drug
distribution event constituting the nuisance.
(ii) The tenant did not knowingly aid in the
commission of a drug distribution event.
(2) Relocation assistance shall be in the amount
necessary to cover moving costs, security deposits for
utilities and comparable housing, any lost rent and any other
reasonable expenses the court may deem fair and reasonable as
a result of the court's order to close premises, or any
portion thereof, under this subchapter.
§ 8393. Vacating or modifying closing order.
(a) General rule.--The court upon application of a defendant
may, at any time before trial, vacate or modify a closing order,
after notice to the person or entity bringing the action under
this subchapter, if the defendant clearly and convincingly shows
no involvement in the commission of a drug distribution event
constituting the nuisance, and:
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(1) provides a bond or undertaking in an amount equal to
the assessed value, for property tax purposes, of the
premises, or portion thereof, subject to the closure order or
another amount fixed by the court, and the court determines
that the public safety or welfare will be adequately
protected; or
(2) establishes by clear and convincing evidence that
the drug nuisance has been satisfactorily abated and will not
recur. In determining whether the drug nuisance has been
satisfactorily abated and will not recur, the court shall
consider the nature, severity and duration of the drug
nuisance and all other relevant factors, including the
following:
(i) Whether the defendant through the exercise of
reasonable diligence should have known that drug
distribution events occurred on the premises and whether
the defendant took steps necessary and appropriate in the
circumstances to prevent the commission of the events.
(ii) Whether the defendant has in good faith
initiated eviction or removal actions under the Expedited
Eviction of Drug Traffickers Act against tenants or other
persons who committed drug distribution events on the
premises involved, immediately upon learning of a factual
basis for initiating eviction or removal action.
(iii) Whether the defendant has developed an
abatement plan which has been agreed to by the person or
entity bringing the action under this subchapter and
approved by the court. The abatement plan may provide for
the following:
(A) Hiring an onsite manager to prevent the
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recurrence of drug distribution events.
(B) Making capital improvements to the property,
such as security gates.
(C) Installing improved interior or exterior
lighting.
(D) Employing security guards.
(E) Installing electronic security or visual
monitoring systems.
(F) Establishing tenant-approved security
procedures.
(G) Attending property management training
programs.
(H) Making cosmetic improvements to the
property.
(I) Providing, at no cost, suitable space and
facilities for a local enforcement agency to
establish a police substation or ministation on or
near the site of the drug nuisance.
(J) Establishing any other program or initiative
designed to enhance security and prevent the
recurrence of drug distribution events on or near the
involved premises.
(b) Forfeiture of bond.--
(1) If the court accepts a bond or undertaking under
subsection (a) and conduct constituting a drug nuisance
recurs, the bond or undertaking shall be forfeited unless the
court finds extraordinary and compelling reasons why
forfeiture would not be in the interest of justice.
(2) Money forfeited under this section shall be paid
into the dedicated fund established under section 8396(d)
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(relating to penalties).
§ 8394. Permanent injunction and other relief.
(a) General rule.--If the court after trial finds that
premises are a drug nuisance, the court shall grant permanent
injunctive relief and shall issue orders as are necessary to
abate the drug nuisance and prevent, to the extent reasonably
possible, recurrence of the drug nuisance.
(b) Contents of order.--The court's order may include all of
the following:
(1) Directing the sheriff or other appropriate agency to
seize and remove from the premises all material, equipment
and instrumentalities used in the creation and maintenance of
the drug nuisance and directing the sheriff to sell the
property in the manner provided for the sale of personal
property under execution in accordance with the Pennsylvania
Rules of Civil Procedure. The net proceeds of any such sale,
after the deduction of all lawful expenses involved, shall be
paid into the dedicated fund established in section 8396(d)
(relating to penalties).
(2) Authorizing the plaintiffs to make repairs,
renovations and construction and structural alterations or to
take other actions necessary to bring the premises into
compliance with all applicable housing, building, fire,
zoning, health and safety codes, ordinances, rules,
regulations or statutes. Expenditures may be filed as a lien
against the property.
(3) Directing the closing of the premises, or
appropriate portion thereof, to the extent necessary to abate
the nuisance and directing the officer or agency enforcing
the closure order to post a copy of the judgment and a
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printed notice of the closing order conforming to section
8390(d) (relating to enforcement of preliminary orders). The
closing directed by the judgment shall be for such period of
time as the court may direct but, subject to the provisions
of section 8398 (relating to recovery of costs), shall not be
for a period of more than one year from the posting of the
judgment provided for in this subchapter.
(4) Suspending or revoking any business, professional,
operational or liquor license.
(5) Ordering the suspension of any State, city or local
governmental subsidies payable to the owners of the property,
such as tenant assistance payments to landlords, until the
nuisance is satisfactorily abated.
(6) Appointing a temporary receiver to manage or operate
the premises for such time as the court deems necessary to
abate the nuisance. A receiver appointed under this section
shall be paid a reasonable fee by the owner of the property
as established by the court and shall have such powers and
duties as the court shall direct the following:
(i) Collecting, holding and dispersing the proceeds
of rents due from all tenants.
(ii) Leasing or renting portions of the premises
involved.
(iii) Making or authorizing other persons to make
necessary repairs to maintain the property.
(iv) Hiring security or other personnel necessary
for the safe and proper operation of the premises.
(v) Retaining counsel to prosecute or defend suits
arising from the receiver's management of the premises.
(vi) Expending funds from the collected rents in
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furtherance of the foregoing powers.
(7) Imposing any or all of the foregoing remedies in
combination.
(c) Duties of receiver.--A receiver appointed by the court
under this section or section 8389(c) (relating to issuance of
preliminary orders):
(1) Shall, upon entering his duties, be sworn and shall
affirm faithfully and fairly to discharge the trust committed
in him.
(2) May be required to post a bond or undertaking in an
amount to be fixed by the court making the appointment to
ensure that the receiver's duties will be faithfully
discharged.
§ 8395. Closure.
(a) Presumption of closure.--Where the court after trial
determines that the premises constitute a drug nuisance, the
court shall order the closure of the premises, or appropriate
portion thereof, under section 8394(c) (relating to permanent
injunction and other relief), unless the court is convinced that
any vacancy resulting from the closure would exacerbate rather
than abate the nuisance or would otherwise be extraordinarily
harmful to the community or the public interest.
(b) Vacation of closure order.--
(1) The court at any time after the trial may vacate the
provisions of the judgment that direct the closing of some or
all of the premises, provided that the defendant establishes
by clear and convincing evidence that the drug nuisance has
been satisfactorily abated and is not likely to recur.
(2) In determining whether the drug nuisance has been
satisfactorily abated and is not likely to recur, the court
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shall consider the nature, severity and duration of the drug
nuisance and all other relevant factors, including those
factors under section 8393(a) (relating to vacating or
modifying closing order).
§ 8396. Penalties.
(a) Civil penalties for culpable defendants.--Where the
court after trial finds that premises are a drug nuisance, the
court in addition to granting appropriate injunctive relief
shall impose a civil penalty against a defendant who knowingly
conducted, maintained, aided, abetted or permitted a drug
nuisance. The penalty shall be $25,000 or the market value of
the entire premises involved, whichever amount is greater,
unless the court finds, based on the evidence, that imposition
of the penalty would constitute a miscarriage of justice under
the totality of the circumstances. In that case, the court may
lower the amount of the penalty to the extent necessary to avoid
a miscarriage of justice.
(b) Prima facie evidence of defendant's culpability.--For
the purpose of imposing a civil penalty under this section, the
following shall be prima facie evidence that the defendant
knowingly permitted the drug nuisance:
(1) the defendant failed to initiate an eviction action
under the Expedited Eviction of Drug Traffickers Act against
a tenant after being notified by certified or registered mail
of the tenant's drug distribution events committed on the
leased premises; or
(2) a closure order was vacated under section 8395(b)
(relating to closure) within two years before the occurrence
of the instant drug nuisance.
(c) Waiver of penalty upon transfer of title.--The court at
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any time shall waive, suspend or revoke any unpaid civil penalty
imposed under this section if the court is satisfied that:
(1) The defendant against whom the penalty has been
imposed has not violated any order issued under any provision
of this subchapter.
(2) The defendant has transferred title to the premises
to the plaintiff or another neighborhood or community
organization approved by the court, provided that the
recipient is a nonprofit incorporated organization or
association which is exempt from taxation under the Internal
Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 501(c))
and is authorized by its corporate charter or bylaws to
rehabilitate, restore, maintain, manage or operate commercial
or residential premises. Unless otherwise agreed to by the
recipient organization, the defendant shall personally retain
all State and local tax liability, and the obligation shall
attach to any other real property in the county owned by the
defendant.
(d) Collection and disposition of proceeds.--
(1) All civil penalties imposed under this section shall
be collected in the manner provided by law or by rule of
court subject to the following:
(i) Ten percent of the penalties shall be retained
by the court to offset the costs of collection.
(ii) Half of all remaining money collected under
this section shall be deposited in a nonlapsing revolving
county fund to be known as the nuisance abatement and
neighborhood rehabilitation fund. Money in this fund
shall be appropriated by the county on an annual basis
for the purpose of funding local drug nuisance abatement,
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drug prevention, education and housing and neighborhood
rehabilitation programs.
(iii) All of the remaining funds shall be deposited
in a nonlapsing revolving fund which is established in
the State Treasury and which shall be known as the
Treatment for Displaced Residents Fund. This fund shall
be administered by the Bureau of Drug and Alcohol
Programs in the Department of Health. Its purpose shall
be to fund the treatment of displaced residents
determined to be addicted under section 26 of the
Expedited Eviction of Drug Traffickers Act or for
providing treatment for displaced residents under this
subchapter. None of these funds shall be used to supplant
existing Federal, State, county or municipal resources
for the courts, nuisance abatement, drug prevention,
education, housing or neighborhood rehabilitation
programs or treatment.
§ 8397. Settlements.
(a) Court-approved settlements.--Nothing in this subchapter
shall be construed to prevent the parties to the action at any
time before or after trial from negotiating and agreeing to a
fair settlement of the dispute, subject to approval of the
court.
(b) Vacation of closure order upon transfer of title.--The
court, on application of a plaintiff, may vacate a closing order
issued under this subchapter, where the defendant has
transferred title to the premises to the plaintiff or another
neighborhood or community organization approved by the court,
provided that the transferee is a nonprofit incorporated
organization or association which is exempt from taxation under
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the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C.
§ 501(c)) and which is authorized by its corporate charter or
bylaws to rehabilitate, restore, maintain, manage or operate
commercial or residential premises. In that event, the
requirements for prerelease inspection under section 8399.2
(relating to release of premises upon inspection or repair)
shall not apply.
§ 8398. Recovery of costs.
(a) General rule.--If an action for injunctive relief or
penalties brought under this subchapter terminates in a
settlement or judgment favorable to the plaintiff, the plaintiff
shall be entitled to recover the actual cost of the suit,
including reasonable attorney fees and all expenses and
disbursements by the plaintiff and any other governmental entity
in investigating, bringing, maintaining and enforcing the action
and any court orders.
(b) Joint and several liability.--All defendants shall be
jointly and severally liable for the payment of taxed costs
imposed under this subchapter.
§ 8399. Liens.
(a) General rule.--A judgment awarding a permanent
injunction under this subchapter shall be a lien upon the
premises declared to be a drug nuisance.
(b) Nature of liens.--A judgment against an in personam
defendant imposing a civil penalty or bill of taxed costs under
this subchapter shall be a lien upon the real estate owned by
the defendant at the time of the judgment and upon all real
estate the defendant may subsequently acquire for a period of
ten years from the date of the judgment.
§ 8399.1. Contempt.
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(a) General rule.--A person who knowingly violates an order
issued under this subchapter shall be subject to civil contempt,
as well as punishment for criminal contempt under 18 Pa.C.S. §§
4955 (relating to violation of orders) and 5101 (relating to
obstructing administration of law or other governmental
function).
(b) Construction.--Nothing in this subchapter shall be
construed to preclude or preempt criminal prosecution for
violation of a controlled substance offense or any other
criminal offense.
§ 8399.2. Release of premises upon inspection or repair.
(a) Compliance with codes as prerequisite to opening.--
(1) Subject to the provisions of section 8397(b)
(relating to settlements), and unless the court expressly
orders otherwise, no premises or portion thereof ordered to
be closed under any other provision of this subchapter shall
be released or opened unless it has been inspected by the
appropriate county agency and found to be in compliance with
applicable State and local housing, building, fire, zoning,
health and safety codes, ordinances, rules, regulations or
statutes.
(2) If the inspection reveals violations of any code,
ordinance, rule, regulation or statute, the court shall issue
orders or grant relief as may be necessary to bring the
premises, or portion thereof, into compliance. The court may
order the premises, or portion thereof, to remain closed
pending necessary repairs or modification, notwithstanding
that the order or closure may exceed the one-year time limit
prescribed under section 8394(c) (relating to permanent
injunction and other relief).
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(b) Authorization to inspect or repair.--The court may
authorize any person or government official to enter premises,
or a portion thereof, closed under this subchapter for the
purpose of conducting an inspection or making repairs or
modifications necessary to abate the nuisance or to bring the
premises, or portion thereof, into compliance with all
applicable housing, building, fire, zoning, health or safety
code, ordinance, rule, regulation or statute.
§ 8399.3. Cumulative remedies.
The causes of action and remedies authorized under this
subchapter shall be cumulative with each other and shall be in
addition to, not in lieu of, any other causes of action or
remedies which may be available at law or equity.
§ 8399.4. Admissibility of evidence.
(a) General rule.--In any action brought under this
subchapter, all relevant evidence, including evidence of the use
or threat of violence, evidence of reputation in a community and
any prior efforts or lack of efforts by the defendant to abate
the drug nuisance shall be admissible to prove the existence of
a drug nuisance.
(b) Effect of criminal conviction or adjudication of
delinquency.--
(1) Where a criminal prosecution or adjudication
proceeding involving the drug distribution event constituting
the drug nuisance results in a criminal conviction or
adjudication of delinquency, the conviction or adjudication
creates a rebuttable presumption that the drug distribution
event occurred.
(2) Any evidence or testimony admitted in the criminal
or juvenile proceedings, including transcripts or court
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reporters' notes of the transcripts of the adult or juvenile
criminal proceedings, whether or not they have been
transcribed, may be admitted in the civil action brought
under this subchapter.
(c) Use of sealed criminal proceeding records.--In the event
that the evidence or records of a criminal proceeding which did
not result in a conviction or adjudication of delinquency have
been sealed under applicable law, the court in a civil action
brought under this subchapter may, notwithstanding any other
provision of this subchapter, order such evidence or records to
be unsealed if the court finds that the evidence or records
would be relevant to the fair disposition of the civil action.
(d) Protection of threatened witnesses or affiants.--If
proof of the existence of the drug nuisance depends, in whole or
in part, upon the affidavits or testimony of witnesses who are
not peace officers, the court may, upon a showing of prior
threats of violence or acts of violence by a defendant or
another person, issue orders to protect those witnesses,
including the nondisclosure of the name, address or any other
information which may identify the witnesses.
(e) Availability of law enforcement resources to plaintiffs
or potential plaintiffs.--
(1) A law enforcement agency may make available to a
person or entity seeking to secure compliance with this
subchapter any police report or forensic laboratory report,
or edited portions thereof, concerning drug distribution
events committed on or within the involved premises.
(2) A law enforcement agency may make any officer or
officers available to testify as a fact or expert witness in
a civil action brought under this subchapter.
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(3) The agency may not disclose the information if, in
the agency's opinion, disclosure would jeopardize an
investigation, prosecution or other proceeding or violate
Federal or State law.
§ 8399.5. Relationship to criminal proceedings.
A civil action may be brought and maintained under this
subchapter, and the court may find the existence of a drug
nuisance, notwithstanding that a drug distribution event or
events used to establish the existence of a drug nuisance have
not resulted in an arrest, prosecution, conviction or
adjudication of delinquency.
§ 8399.6. Liability for damage to closed properties.
(a) Effect of court-ordered closing.--Court-ordered closing
of premises, or a portion thereof, under this subchapter shall
not constitute an act of possession, ownership or control by the
court, the plaintiff or a government official or entity
responsible for enforcing the court order.
(b) Immunity of plaintiffs and enforcing agencies.--A person
or entity bringing, maintaining or enforcing a civil action or
order issued in accordance with the provisions of this
subchapter shall have immunity from civil liability that might
otherwise be incurred for any theft of or loss, damage or injury
to premises constituting the drug nuisance, or to any fixture,
furniture or personal or movable property located in or on such
premises.
§ 8399.7. Civil immunity.
Any person or entity who in good faith institutes,
participates or testifies in or encourages any person or entity
to institute, participate or testify in a civil action brought
under this subchapter or who in good faith provides information
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relied upon by a person or entity in instituting or
participating in a civil action under this subchapter shall be
immune from any civil liability that might otherwise be incurred
or imposed for such actions or conduct.
§ 8399.8. Civil action.
(a) Right of action or damages.--Notwithstanding the
provisions of section 8385 (relating to parties), a person
damaged in the person's business or property by reason of a drug
nuisance may bring a separate civil action for actual damages in
the court of common pleas against persons who knowingly
conducted, maintained, aided, abetted or permitted a drug
distribution event constituting the drug nuisance.
(b) Effect of prior notification of owner concerning
nuisance.--In a civil action for damages under this section,
failure of an owner or landlord to initiate an eviction action
against a tenant under the Expedited Eviction of Drug
Traffickers Act, if the owner or landlord has been notified by
certified or registered mail of the tenant's drug distribution
events committed on the leased premises, shall be prima facie
evidence that the owner knowingly gave permission to engage in
conduct constituting the drug nuisance.
(c) Admission of expert testimony.--In a civil action for
damages under this section, expert testimony may be used to
determine the amount of any actual damage or loss incurred by
reason of the drug nuisance.
(d) Attorney fees and other costs to prevailing plaintiff.--
(1) If an action for damages brought under this section
terminates in a settlement or judgment favorable to the
plaintiff, the plaintiff shall be entitled to recover the
actual cost of the suit, including reasonable attorney fees
20110SB0501PN0501 - 37 -
and all expenses and disbursements by the plaintiff in
investigating, bringing and maintaining the action.
(2) All defendants shall be jointly and severally liable
for the payments of taxed costs imposed under this section.
(e) General admissibility of evidence.--In any civil action
for damages brought under this section, any evidence admitted or
admissible in a civil action for injunctive relief or penalty
under this subchapter shall be admissible.
§ 8399.9. Use of property for treatment and other purposes.
Where title to property has been transferred to a
neighborhood or community organization under section 8396(c)
(relating to penalties) or a negotiated settlement of any action
brought under this subchapter, the property may, subject to
approval of the court in which the civil action was initiated,
be used to house an alcohol and other drug prevention,
education, intervention or licensed alcohol and other drug
counseling or treatment program. This section shall not be
construed to exempt the property from the requirements of
applicable zoning, fire, safety, health code, ordinance, rule,
regulation or statute.
Section 3. This act shall take effect in 180 days.
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