Bill Text: MS SB2500 | 2024 | Regular Session | Engrossed
Bill Title: Homeless encampments; prohibit on public property and define as public nuisance on private property.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2024-04-02 - Died In Committee [SB2500 Detail]
Download: Mississippi-2024-SB2500-Engrossed.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Municipalities; Judiciary, Division B
By: Senator(s) McMahan
Senate Bill 2500
(As Passed the Senate)
AN ACT TO PROHIBIT A PERSON FROM SITTING, LYING, SLEEPING, OR STORING, USING, MAINTAINING OR PLACING PERSONAL PROPERTY UPON ANY STREET, SIDEWALK OR OTHER PUBLIC RIGHT-OF-WAY WITHIN 1,000 FEET OF A DEFINED SENSITIVE AREA OR A CRITICAL INFRASTRUCTURE AREA AND TO PROVIDE THAT VIOLATION OF THIS PROHIBITION IS A PUBLIC NUISANCE THAT CAN BE ABATED AND PREVENTED; TO PROVIDE THAT A VIOLATION OF THIS PROHIBITION MAY BE CHARGED AS A MISDEMEANOR; TO REQUIRE AT LEAST 48 HOURS' NOTICE BEFORE COMMENCEMENT OF ANY ENFORCEMENT ACTION; TO PROVIDE THAT CONVICTIONS UNDER THIS SECTION SHALL NOT APPEAR ON A PERSON'S PUBLIC RECORD; TO AUTHORIZE THE REMOVAL OF HOMELESS ENCAMPMENTS ON PRIVATE PROPERTY IN A HUMANE MANNER AFTER 72 HOURS' NOTICE; TO AMEND SECTION 21-19-11, MISSISSIPPI CODE OF 1972, TO INCLUDE HOMELESS ENCAMPMENTS ON PRIVATE PROPERTY IN THE PUBLIC NUISANCE LAW AND TO PROVIDE THAT THE COST OF ABATING SUCH ENCAMPMENT NUISANCES ON PRIVATE PROPERTY IS A LIEN ON THE PROPERTY WHICH MAY BE WAIVED BY THE MUNICIPALITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) As used in this section, the following terms shall have the meaning ascribed herein:
(a) "Law enforcement officer" means a member of the municipal police department wherein the applicable property is located or a member of the local sheriff's department wherein the applicable property is located.
(b) "Sensitive area" means a public or private school, community college or university, a daycare or other residential facility, a public park or a library.
(c) "Critical infrastructure" means real property or a facility, whether privately or publicly owned, that the local governing authority or board of supervisors designates as being so vital and integral to the operation or functioning of the municipality or county or in need of protection that its damage, incapacity, disruption or destruction would have a debilitating impact on the public health, safety or welfare, including, but not limited to, roads, railroad rights-of-way, bridges, canals and other waterways, sewer plants, police and fire stations, drainage systems, financial institutions, electrical and natural gas pipelines or public utility easements.
(d) "Homeless encampment" means an outdoor location where one or more homeless people live in an unsheltered area, including tents, shacks, vehicles or other structures which are not provided utility services paid by the person(s) living in the area.
(2) A person shall not sit, lie, sleep or store, use, maintain, or place personal property upon any street, sidewalk or other public right-of-way within one thousand (1,000) feet of a sensitive area or critical infrastructure.
(3) A violation of this is a public nuisance that may be enjoined, abated, and prevented. The local district, county attorney, or the city attorney of the applicable jurisdiction, in the name of the citizens of that jurisdiction, may maintain an action to abate and prevent the nuisance. Before pursuing abatement authorized by this subsection, the district attorney, county attorney or city attorney, as applicable, shall ensure that the person found to be in violation of this section has received verbal or written information regarding alternative locations to sleep, including homeless and mental health services or homeless shelters in the area.
(4) (a) A violation of this section may be charged as a misdemeanor, at the discretion of the city attorney, county attorney or district attorney, punishable upon conviction thereof, by a fine not exceeding One Thousand Dollars ($1,000.00) or incarceration in the county jail for a term not exceeding four (4) months or both.
(b) Convictions and citations under this section shall not appear on a person's public record and shall not be submitted to the National Crime Information Center or any public accessible state database. The court of conviction may keep a confidential record for purposes related to enforcement of the sentence. The court of jurisdiction shall ensure that any citation or conviction does not appear on a person's public record.
(5) A person shall not be found to be in violation of this section unless a law enforcement officer employed by the county or city, as applicable, with jurisdiction, has provided that person written notice, at least forty-eight (48) hours before commencement of any enforcement action, that the person is prohibited from sitting, lying, sleeping or storing, using, maintaining or placing personal property upon a street, sidewalk or other public right-of-way within one thousand (1,000) feet of a sensitive area or critical infrastructure area pursuant to this section. A written notice shall only be deemed to have been provided for the purposes of this paragraph if the notice:
(a) Is given in a language understood by the person receiving the notice; and
(b) Contains information regarding alternative locations to sleep, homeless and mental health services, homeless shelters in the area, and any relevant information about services offered at Community Mental Health Centers.
(6) The owner of real property located in a municipality or county has the right to request the assistance of law enforcement officers with jurisdiction to remove a homeless encampment or to set up any barriers or other methods to prevent homeless encampments. Persons living in homeless encampments shall receive seventy-two (72) hours notice of the removal. The removal of homeless persons or homeless encampments on private property shall be done in a humane manner. It is illegal to inflict harm on the trespassers or damage their personal property. A tent or temporary structure shall not be considered the personal property of any trespasser who has received the proper notice under this section. If a homeless encampment is on public property, only local law enforcement officers or officers of the sheriff's department may remove the encampment or set up barriers.
(7) In order to enforce the provisions of this section, the local municipal governing authority may establish a dilapidated property fund and make annual expenditures into the fund for the legal removal of homeless encampments on public and private property. The local municipal governing authority establishing such fund shall prescribe rules and regulations for the administration of the fund and expenditures from the fund and shall spread these prescribed amounts and procedures on its minutes.
SECTION 2. Section 21-19-11, Mississippi Code of 1972, is amended as follows:
21-19-11. (1) To determine whether property or parcel of land located within a municipality is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community, a governing authority of any municipality shall conduct a hearing, on its own motion, or upon the receipt of a petition signed by a majority of the residents residing within four hundred (400) feet of any property or parcel of land alleged to be in need of the cleaning. Notice shall be provided to the property owner by:
(a) United States mail two (2) weeks before the date of the hearing mailed to the address of the subject property, except where the land or structure(s) is apparently vacant, and to the address where the ad valorem tax notice for such property is sent by the office charged with collecting ad valorem tax; and
(b) Posting notice for at least two (2) weeks before the date of a hearing on the property or parcel of land alleged to be in need of cleaning and at city hall or another place in the municipality where such notices are posted.
Any notice required by this section shall include language that informs the property owner that an adjudication at the hearing that the property or parcel of land is in need of cleaning will authorize the municipality to reenter the property or parcel of land for a period of two (2) years after final adjudication without any further hearing if notice is posted on the property or parcel of land and at city hall or another place in the municipality where such notices are generally posted at least seven (7) days before the property or parcel of land is reentered for cleaning. A copy of the required notice mailed and posted as required by this section shall be recorded in the minutes of the governing authority in conjunction with the hearing required by this section.
If, at such hearing, the governing
authority shall adjudicate the property or parcel of land in its then condition
to be a menace to the public health, safety and welfare of the community, the governing
authority, if the owner does not do so himself, shall proceed to clean the land,
by the use of municipal employees or by contract, by cutting grass and weeds; filling
cisterns; securing abandoned or dilapidated buildings; removing rubbish, abandoned
or dilapidated fences, outside toilets, abandoned or dilapidated buildings, slabs,
personal property * * *
which removal of personal property shall not be subject to the provisions of Section
21-39-21, and other debris; removal of homeless encampments; and draining
cesspools and standing water therefrom. The governing authority may by resolution
adjudicate the actual cost of cleaning the property and/or removal of homeless
encampments and may also impose a penalty not to exceed * * * Ten Thousand Dollars ($10,000.00) or fifty
percent (50%) of the actual cost, whichever is more. The cost and any penalty may
become a civil debt against the property owner, and/or, at the option of the governing
authority, an assessment against the property. The "cost assessed against
the property" means either the cost to the municipality of using its own employees
to do the work or the cost to the municipality of any contract executed by the municipality
to have the work done, and administrative costs and legal costs of the municipality.
For subsequent cleaning within the one-year period after the date of the hearing
at which the property or parcel of land was adjudicated in need of cleaning, upon
seven (7) days' notice posted both on the property or parcel of land adjudicated
in need of cleaning and at city hall or another place in the municipality where
such notices are generally posted, and consistent with the municipality's adjudication
as authorized in this subsection (1), a municipality may reenter the property or
parcel of land to maintain cleanliness without further notice or hearing no more
than six (6) times in any twelve-month period with respect to removing or securing
abandoned or dilapidated buildings, slabs, dilapidated fences and outside toilets,
and no more than twelve (12) times in any twenty-four-month period with respect
to cutting grass and weeds and removing rubbish, personal property and other debris
on the land, and the expense of cleaning of the property, except as otherwise provided
in this section for removal of hazardous substances, shall not exceed an aggregate
amount of Twenty Thousand Dollars ($20,000.00) per year, or the fair market value
of the property subsequent to cleaning, whichever is more. The aggregate cost of
removing hazardous substances will be the actual cost of such removal to the municipality
and shall not be subject to the cost limitations provided in this subsection. The
governing authority may assess the same penalty for each time the property or land
is cleaned as otherwise provided in this section. The penalty provided herein shall
not be assessed against the State of Mississippi upon request for reimbursement
under Section 29-1-145, nor shall a municipality clean a parcel owned by the State
of Mississippi without first giving notice. Upon written authority from the Secretary
of State's office, for state-owned properties, a municipality may forgo the notification
process that is prescribed in this subsection and proceed to clean the properties
and assess costs as prescribed in this subsection, except that penalties shall not
be assessed against the State of Mississippi.
(2) When the fee or cost to clean property or a parcel of land that is one (1) acre or less does not exceed Two Hundred Fifty Dollars ($250.00), excluding administrative costs, and the property or parcel is located within a municipality having a population over one thousand five hundred (1,500), the governing authority of the municipality may authorize one or more of its employees to determine whether the property or parcel of land is in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community and the determination made by the authorized municipal employee shall be set forth and recorded in the minutes of the governing authority. Notice of this determination shall be provided to the property owner by:
(a) United States mail seven (7) days before the date of cleaning of the property or parcel of land mailed to the address of the subject property, except where the land or structure(s) is apparently vacant, and to the address where the ad valorem tax notice for such property is sent by the office charged with collecting ad valorem tax; and
(b) Posting notice for at least seven (7) days before the cleaning of the property or parcel of land and at city hall or another place in the municipality where such notices are posted.
Any notice required by this subsection shall include language that informs the property owner that the appropriate municipal official has determined that the property or parcel of land is a menace to the public health, safety and welfare of the community and in need of cleaning and the municipality is authorized to enter the property for cleaning and that the municipality is further authorized to reenter the property or parcel of land for a period of two (2) years after this cleaning without any further hearing or action if notice is posted on the property or parcel of land and at city hall or another place in the municipality where such notices are generally posted at least seven (7) days before the property or parcel of land is reentered for cleaning. A copy of the required notice mailed and posted as required by this subsection shall be recorded in the minutes of the governing authority in conjunction with the determination made by the municipal employee in this subsection (2).
If an authorized municipal employee
determines that the condition of property or parcel of land or the existence
of a homeless encampment is a menace to the public health, safety and welfare
of the community, the governing authority, if the owner does not do so himself,
shall proceed to clean the land, or remove the homeless encampment by the
use of municipal employees or by contract, by cutting grass and weeds; filling cisterns;
securing abandoned or dilapidated buildings; removing rubbish, abandoned or dilapidated
fences, outside toilets, abandoned or dilapidated buildings, slabs, personal property,
which removal of personal property shall not be subject to the provisions of Section
21-39-21, and other debris; removal of the homeless encampment; and draining
cesspools and standing water therefrom. The governing authority shall by resolution
adjudicate the actual cost of cleaning the property under this provision, provided
the same does not exceed * * *
Ten Thousand Dollars ($10,000.00) and may also impose a penalty not to exceed
One Hundred Dollars ($100.00) or one hundred percent (100%) of the actual cost of
cleaning the property, whichever is more. Provided, however, that the cost and
any penalty imposed for the removal of a homeless encampment on private property
may be waived in the discretion of the municipality. The cost and any penalty
imposed may become a civil debt against the property owner, and/or, at the option
of the governing authority, an assessment against the property. The "cost
assessed against the property" means either the cost to the municipality of
using its own employees to do the work or the cost to the municipality of any contract
executed by the municipality to have the work done, and additionally may include
administrative costs of the municipality not to exceed Fifty Dollars ($50.00).
For subsequent cleaning within the one-year period set forth in this subsection
(2), upon seven (7) days' notice posted both on the property or parcel of land adjudicated
in need of cleaning and at city hall or another place in the municipality where
such notices are generally posted, and consistent with the municipal official's
determination as authorized in this subsection (2), a municipality may reenter the
property or parcel of land to maintain cleanliness without further notice or hearing
under this subsection (2) no more than six (6) times in any twelve-month period
with respect to removing or securing abandoned or dilapidated buildings, slabs,
dilapidated fences and outside toilets, and no more than twelve (12) times in any
twenty-four-month period with respect to cutting grass and weeds and removing rubbish,
personal property and other debris on the land, and the removal of homeless encampments,
and the expense of cleaning of the property shall not exceed an aggregate amount
of One Thousand Dollars ($1,000.00) per year under this subsection (2). The governing
authority may assess the same actual costs, administrative costs and penalty for
each time the property or land is cleaned as otherwise provided in this subsection
(2). The penalty provided herein shall not be assessed against the State of Mississippi
upon request for reimbursement under Section 29-1-145, nor shall a municipality
clean a parcel owned by the State of Mississippi without first giving notice. Upon
written authority from the Secretary of State's office, for state-owned properties,
a municipality may forgo the notification process that is prescribed in this subsection
and proceed to clean the properties and assess costs as prescribed in this subsection,
except that penalties shall not be assessed against the State of Mississippi. A
determination made by an appropriate municipal employee under this subsection (2)
that the state or condition of property or a parcel of land is a menace to the public
health, safety and welfare of the community shall not subsequently be used to replace
a hearing if subsection (1) of this section is later utilized by a municipality
when the prerequisites of this subsection (2) are not satisfied.
(3) If the governing authority declares, by resolution, that the cost and any penalty shall be collected as a civil debt, the governing authority may authorize the institution of a suit on open account against the owner of the property in a court of competent jurisdiction in the manner provided by law for the cost and any penalty, plus court costs, reasonable attorney's fees and interest from the date that the property was cleaned.
(4) (a) If the governing authority declares that the cost and any penalty shall be collected as an assessment against the property, then the assessment above provided for shall be a lien against the property and may be enrolled in the office of the chancery clerk of the county as other liens and encumbrances are enrolled, and the tax collector of the municipality shall, upon order of the board of governing authorities, proceed to sell the land to satisfy the lien as now provided by law for the sale of lands for delinquent municipal taxes. The lien against the property shall be an encumbrance upon the property and shall follow title of the property.
(b) (i) All assessments levied under the provisions of this section shall be included with municipal ad valorem taxes and payment shall be enforced in the same manner in which payment is enforced for municipal ad valorem taxes, and all statutes regulating the collection of other taxes in a municipality shall apply to the enforcement and collection of the assessments levied under the provisions of this section, including utilization of the procedures authorized under Sections 17-13-9(2) and 27-41-2.
(ii) All assessments levied under the provisions of this section shall become delinquent at the same time municipal ad valorem taxes become delinquent. Delinquencies shall be collected in the same manner and at the same time delinquent ad valorem taxes are collected and shall bear the same penalties as those provided for delinquent taxes. If the property is sold for the nonpayment of an assessment under this section, it shall be sold in the manner that property is sold for the nonpayment of delinquent ad valorem taxes. If the property is sold for delinquent ad valorem taxes, the assessment under this section shall be added to the delinquent tax and collected at the same time and in the same manner.
(5) All decisions rendered under the provisions of this section may be appealed in the same manner as other appeals from municipal boards or courts are taken. However, an appeal from a decision of a municipal officer or official shall be made to the governing authority and such appeal shall be in writing, state the basis for the appeal and be filed with the city clerk no later than seven (7) days from the latest date of notice required under this section.
(6) Nothing contained under this section shall prevent any municipality from enacting criminal penalties for failure to maintain property so as not to constitute a menace to public health, safety and welfare, or for enforcing the provisions of Section 1 of this act relating to the abatement of homeless encampments.
(7) Notwithstanding any provision to the contrary in this section, the decision to remove a homeless encampment on private property shall be discretionary by the governing authorities of the municipality.
( * * *8) (a) If private property or a parcel
of land located within a municipality is a perpetual care cemetery subject to Section
41-43-1 et seq., the governing authority of the municipality may proceed pursuant
to the same provisions of this section used to determine whether a property is a
public health menace to instead determine if the perpetual care cemetery and all
structures on the cemetery are not being properly maintained and have become detrimental
to the public health and welfare. A perpetual care cemetery that is "not being
properly maintained and has become detrimental to the public health and welfare"
means a perpetual care cemetery that shows signs of neglect, including, without
limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism,
unusable entrances and exits, excess rubbish or debris, or the disintegration of
grave markers or boundaries. Upon notice and opportunity to be heard as provided
in subsection (1) of this section, the governing authority of the municipality may
adjudicate the property or parcel of land in its then condition to be not properly
maintained and detrimental to the public health and welfare, and if the owner does
not do so itself, may proceed to clean the property or parcel of land as provided
in subsection (1) of this section. When cleaning the property or parcel of land
of a perpetual care cemetery pursuant to this subsection ( * * *8), the penalty or penalties provided in
subsection (1) of this section shall not be assessed against owners of the perpetual
care cemeteries.
(b) The governing authority
of a municipality that cleans the property or parcel of land of a perpetual care
cemetery pursuant to this subsection ( * * *8) may make application to the Secretary
of State for an order directing the trustee of the perpetual care cemetery trust
fund to release accrued interest or principal of the trust fund sufficient to reimburse
the municipality for only the actual cleanup costs incurred by the municipality.
The application to the Secretary of State shall include a statement by the municipality
that all of the requirements of this section have been met.
(c) If the Secretary of State is satisfied that the notice and hearing requirements of this section have been met, and that the application for an order directing the trustee to release accrued interest of the perpetual care cemetery trust fund does not threaten the ability of the trust fund to provide for the care and maintenance of the cemetery, the Secretary of State may order the trustee to release accrued interest of the trust fund sufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality.
(d) If the Secretary of State is satisfied that the notice and hearing requirements of this section have been met, but makes a determination that the accrued interest of the perpetual care cemetery trust fund is insufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality, or that an order to release accrued interest would threaten the ability of the trust fund to provide for the care and maintenance of the cemetery, the Secretary of State may consider an order directing the trustee to reimburse the municipality from the principal of the trust fund. If the Secretary of State determines that an order to the trustee to release principal from the trust fund will not threaten the solvency of the trust fund, the Secretary of State may order the trustee to release principal of the trust fund in an amount sufficient to reimburse the municipality for the actual costs of cleanup performed by the municipality.
(i) The Secretary of State may not order the trustee to release an amount of more than fifteen percent (15%) of principal of the trust fund to reimburse the municipality for the actual costs of cleanup performed by the municipality.
(ii) The provisions of this section may be utilized no more than once in a four-year period.
SECTION 3. This act shall take effect and be in force from and after July 1, 2024, and shall stand repealed on June 30, 2024.
