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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY BROWNE, ERICKSON, RAFFERTY, BOSCOLA AND FARNESE, FEBRUARY 11, 2011 |
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| REFERRED TO JUDICIARY, FEBRUARY 11, 2011 |
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| AN ACT |
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1 | Amending Title 42 (Judiciary and Judicial Procedure) of the |
2 | Pennsylvania Consolidated Statutes, further providing for |
3 | drug nuisances; providing for drug nuisance abatement; and |
4 | prescribing penalties. |
5 | The General Assembly of the Commonwealth of Pennsylvania |
6 | hereby enacts as follows: |
7 | Section 1. Subchapter H of Chapter 83 of Title 42 of the |
8 | Pennsylvania Consolidated Statutes is repealed: |
9 | [SUBCHAPTER H |
10 | DRUG NUISANCES |
11 | Sec. |
12 | 8381. Short title of subchapter. |
13 | 8382. Definitions. |
14 | 8383. Action to abate. |
15 | 8384. Complaint. |
16 | 8385. Service of original process. |
17 | 8386. Preliminary injunction. |
18 | 8387. Protection of witnesses. |
19 | 8388. Security. |
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1 | 8389. Judgment and remedies. |
2 | 8390. Violation of injunctions or abatement order. |
3 | 8391. Release and cancellation. |
4 | 8392. Severability. |
5 | § 8381. Short title of subchapter. |
6 | This subchapter shall be known and may be cited as the Drug |
7 | Nuisance Law. |
8 | § 8382. Definitions. |
9 | The following words and phrases when used in this subchapter |
10 | shall have the meanings given to them in this section unless the |
11 | context clearly indicates otherwise: |
12 | "Community-based organization." Any group affiliated with or |
13 | organized for the benefit of one or more communities or |
14 | neighborhoods, or any group organized to benefit the quality of |
15 | life in a residential area. |
16 | "Controlled substance act." The act of April 14, 1972 (P.L. |
17 | 233, No.64), known as The Controlled Substance, Drug, Device and |
18 | Cosmetic Act. |
19 | "Drug-related nuisance." The use of any property, in whole |
20 | or in part, which facilitates or is intended to facilitate any |
21 | violation of the act of April 14, 1972 (P.L.233, No.64), known |
22 | as The Controlled Substance, Drug, Device and Cosmetic Act, or |
23 | similar act of the United States or any other state. |
24 | "Manufacture" or "manufacturing." The production, |
25 | preparation, propagation, compounding, conversion or processing |
26 | of a controlled substance, other drug or device or the packaging |
27 | or repackaging of such substance or article, or the labeling or |
28 | relabeling of the commercial container of such substance or |
29 | article, but does not include the activities of a practitioner |
30 | who, as an incident to his administration or dispensing such |
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1 | substance or article in the course of his professional practice, |
2 | prepares, compounds, packages or labels such substance or |
3 | article. The term "manufacturer" means a person who manufactures |
4 | a controlled substance, other drug or device. |
5 | "Owner." An individual, corporation, partnership, trust |
6 | association, joint venture or any other business entity in whom |
7 | is vested all or any part of the title to the property alleged |
8 | to be a drug-related nuisance. |
9 | "Property." Any tangible or intangible property, including |
10 | an interest in any leasehold, license or real estate, such as |
11 | any house, apartment building, condominium, cooperative, office |
12 | building, store, restaurant, tavern, nightclub or warehouse, and |
13 | the land extending to the boundaries of the lot upon which the |
14 | structure is situated and anything growing on, affixed or found |
15 | on the land. |
16 | "Tenant." A person who resides in or occupies real property |
17 | belonging to another person pursuant to a lease agreement or |
18 | common law tenancy. |
19 | § 8383. Action to abate. |
20 | Wherever there is reason to believe that a drug-related |
21 | nuisance exists, the district attorney, the Attorney General, if |
22 | requested by a district attorney, the solicitor for the county |
23 | or municipality, a resident within 1,000 feet of the property, |
24 | including a tenant of the property, the owner of property or any |
25 | community-based organization may file an action in the court of |
26 | common pleas to abate, enjoin and prevent the drug-related |
27 | nuisance. Such actions shall be commenced by the filing of a |
28 | complaint alleging the facts constituting the drug-related |
29 | nuisance. |
30 | § 8384. Complaint. |
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1 | (a) Adverse impact.--The complaint or an affidavit attached |
2 | thereto shall describe the adverse impact associated with the |
3 | drug nuisance upon the surrounding neighborhood. Adverse impact |
4 | includes, without limitation, the presence of any one or more of |
5 | the following conditions: |
6 | (1) Diminished property value. |
7 | (2) Increased fear of residents to walk through and in |
8 | public areas, including sidewalks and streets, increased |
9 | volume of vehicular and pedestrian traffic to and from the |
10 | property. |
11 | (3) An increase in the number of ambulance or police |
12 | calls to the property which are related to the use of drugs |
13 | or to violence stemming from illegal activity. |
14 | (4) Increased noise, bothersome solicitors or approaches |
15 | by persons wishing to sell drugs or solicit the donation of |
16 | money on or near the property. |
17 | (5) The display of dangerous weapons on or near the |
18 | property. |
19 | (6) The discharge of firearms on or near the property. |
20 | (7) Search warrants served on tenants or occupants of |
21 | the property which resulted in the seizure of drugs. |
22 | (8) Investigative purchases of drugs on or near the |
23 | property by law enforcement officers. |
24 | (9) Arrests of person on or near the property for |
25 | violation of criminal laws. |
26 | (10) Housing code violations relating to the property. |
27 | (11) Health code violations relating to the property. |
28 | (12) Accumulated trash and refuse in common areas on or |
29 | adjacent to the property. |
30 | (13) An unsecured entryway on the property. |
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1 | (b) Attempts to notify owner.--The complaint shall contain a |
2 | description of what attempts, if any, have been made by the |
3 | plaintiff or any other person or entity to notify the owner of |
4 | the property of the drug-related nuisance or resulting adverse |
5 | impact. |
6 | § 8385. Service of original process. |
7 | (a) General rule.--A copy of the summons and complaint shall |
8 | be served upon the defendant at least five business days prior |
9 | to the first hearing in the action. Service of original process |
10 | shall be made in accordance with the Pennsylvania Rules of Civil |
11 | Procedure. |
12 | (b) Posting at property.--If personal service cannot be |
13 | made, service may be made by posting the papers at the property. |
14 | If service is made by posting at the property, a copy of the |
15 | summons and complaint shall be mailed registered mail to the |
16 | last known mail address, if any, of the defendant. Actual |
17 | receipt of the registered mail shall not be required for |
18 | service. |
19 | § 8386. Preliminary injunction. |
20 | Upon the filing of a motion for preliminary injunction to |
21 | abate the drug-related nuisance, the plaintiff shall be entitled |
22 | to a hearing on the motion for preliminary injunction within 10 |
23 | business days of the filing. If it shall be made to appear, by |
24 | affidavit or otherwise, that there is a substantial likelihood |
25 | that the plaintiff will show at trial, by a preponderance of the |
26 | evidence, that drug-related nuisance exists, the court shall |
27 | enter an order preliminarily enjoining the drug-related nuisance |
28 | and granting such other relief as the court may deem to be |
29 | appropriate, including those remedies provided for in section |
30 | 8389 (relating to judgment and remedies). Whenever possible, the |
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1 | court shall order the trial of the action on the merits advanced |
2 | and consolidated with the hearing of the motion. This section |
3 | shall not be construed to prohibit the application for or the |
4 | granting of a temporary restraining order. |
5 | § 8387. Protection of witnesses. |
6 | At the time of an application for the issuance of a |
7 | restraining order or an injunction if proof of the existence of |
8 | the drug-related nuisance depends, in whole or part, upon the |
9 | affidavits of witnesses who are not law enforcement officers, |
10 | upon a showing of prior threats of violence or acts of violence |
11 | by any defendant or other person alleged to be involved in the |
12 | drug-related nuisance, the court may issue orders to protect |
13 | those witnesses, providing for nondisclosure of the name, |
14 | address or any other identifying information pertaining to the |
15 | witnesses, and such other and further relief as the court may |
16 | deem appropriate. |
17 | § 8388. Security. |
18 | No bond shall be required to issue a preliminary injunction |
19 | or special injunction sought by the district attorney or the |
20 | solicitor for the county or municipality. A bond in an amount |
21 | fixed and with security approved by the court may be required to |
22 | issue a preliminary injunction or special injunction when the |
23 | plaintiff is not the district attorney, the Attorney General or |
24 | a solicitor for the county or municipality. Where such relief is |
25 | issued after an evidentiary hearing at which witnesses are |
26 | subject to cross examination, the court shall not require a bond |
27 | in excess of $500. |
28 | § 8389. Judgment and remedies. |
29 | (a) Burden of proof.--The plaintiff must establish that a |
30 | drug-related nuisance exists by a preponderance of the evidence. |
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1 | (b) Relief.--If the existence of a drug-related nuisance is |
2 | found, the judgment may include actual damages and a temporary |
3 | or permanent injunction to restrain, abate and prevent the |
4 | continuance or recurrence of the drug-related nuisance. The |
5 | court may grant declaratory relief, mandatory orders or any |
6 | other relief deemed necessary to accomplish the purposes of the |
7 | injunction or order and enforce the same, and the court may |
8 | retain jurisdiction of the case for the purpose of enforcing its |
9 | orders. |
10 | (c) Additional remedies.--If the existence of a drug-related |
11 | nuisance is found, the court shall have the power additionally |
12 | to fashion any one or more of the following remedies: |
13 | (1) Assess costs of the action against the defendant. |
14 | (2) When a governmental agency is a plaintiff in the |
15 | action, assess a civil penalty against the defendant of not |
16 | less than $500 nor more than $10,000. |
17 | (3) Order the owner to clean up the property and make |
18 | repairs upon the property. |
19 | (4) Suspend or revoke any business, professional, |
20 | operational or liquor license. |
21 | (5) Order the owner to make additional reasonable |
22 | expenditures upon the property, including, but not limited |
23 | to, installing secure locks on doors, increasing lighting in |
24 | common areas and using videotaped surveillance of the |
25 | property and adjacent alleyways, sidewalks and parking lots. |
26 | (6) Order all rental income from the property to be |
27 | placed in an escrow account with the court for up to 90 days |
28 | or until the drug-related nuisance is abated. |
29 | (7) Order all rental income for the property transferred |
30 | to a trustee, to be appointed by the court, who shall be |
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1 | empowered to use the rental income to make reasonable |
2 | expenditures upon the property in order to abate the drug- |
3 | related nuisance. |
4 | (8) Order the suspension of any State, city or local |
5 | governmental subsidies payable to the owners of the property, |
6 | such as tenant assistance payments to landlords, until the |
7 | nuisance is abated. |
8 | (9) Allow the plaintiff to seal the property with the |
9 | cost of sealing payable by the defendant. |
10 | (10) Order the defendant to pay the plaintiff the cost |
11 | of the suit, including reasonable attorney fees. |
12 | (d) Factors to consider.--In making an order under |
13 | subsection (c), the court shall consider, among others, the |
14 | following factors: |
15 | (1) The number of people residing at the property. |
16 | (2) The proximity of the property to other residential |
17 | structures. |
18 | (3) The number of times the property has been cited for |
19 | housing code or health code violations. |
20 | (4) The number of times the owner has been notified of |
21 | drug-related problems at the property. |
22 | (5) The extent and duration of the drug-related nuisance |
23 | at the time of the order. |
24 | (6) Prior efforts or lack of effort by the defendant to |
25 | abate the drug-related nuisance. |
26 | (7) The availability of alternative housing for tenants |
27 | of the building. |
28 | (8) The extent of concern about the drug-related |
29 | nuisance that has been expressed by nearby residents or |
30 | visitors to the area. |
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1 | (9) The owner's involvement in the drug-related |
2 | nuisance. |
3 | (10) The owner's involvement in other drug-related |
4 | nuisances. |
5 | § 8390. Violation of injunctions or abatement order. |
6 | (a) Contempt.--A violation of any court order issued under |
7 | this subchapter is punishable as a contempt of court by a fine |
8 | of not less than $500 nor more than $75,000. The court may order |
9 | the sheriff or other proper officer of any county to take into |
10 | custody and commit to jail any person fined for a contempt until |
11 | the fine shall be paid or discharged. If unable to pay the fine, |
12 | the person may be committed to jail by the court for not more |
13 | than three months. Evidence concerning the duration and |
14 | repetitive nature of the violations shall be considered by the |
15 | court in determining the contempt penalties. |
16 | (b) Additional orders.--In addition, upon finding that a |
17 | defendant has willfully violated a court order issued under this |
18 | subchapter, the court shall be also empowered to issue any |
19 | additional orders necessary to abate this drug-related nuisance. |
20 | § 8391. Release and cancellation. |
21 | (a) No knowledge and abatement.--The court may suspend the |
22 | effectiveness of an order of abatement for no more than 90 days |
23 | if the owner of the property establishes that he had no |
24 | knowledge of the drug-related nuisance and could not reasonably |
25 | be expected to have such knowledge and the owner avers that he |
26 | will immediately undertake specified measures to abate the |
27 | nuisance and prevent it from being a drug-related nuisance for |
28 | the following two-year period. |
29 | (b) Fines and bond.--The courts shall cancel the order of |
30 | abatement if the owner of the property pays all fines and liens |
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1 | against the property, satisfies the court that the drug-related |
2 | nuisance has been abated for the past 90 days, corrects all |
3 | housing code and health code violations and posts a bond in an |
4 | amount to be determined by the court, which will be immediately |
5 | forfeitable if the drug-related nuisance recurs during the |
6 | following one-year period. |
7 | § 8392. Severability. |
8 | If any provision of this subchapter or its application to any |
9 | person or circumstance is held invalid or unenforceable, the |
10 | remainder of this subchapter or the application of the provision |
11 | to other persons or circumstances shall not be affected.] |
12 | Section 2. Chapter 83 of Title 42 is amended by adding a |
13 | subchapter to read: |
14 | SUBCHAPTER H |
15 | DRUG NUISANCE ABATEMENT |
16 | Sec. |
17 | 8381. Scope of subchapter. |
18 | 8382. Definitions. |
19 | 8383. Nature of actions and jurisdiction. |
20 | 8384. Standard of proof. |
21 | 8385. Parties. |
22 | 8386. Notice to interested parties. |
23 | 8387. Substitution of plaintiff. |
24 | 8388. Continuances. |
25 | 8389. Issuance of preliminary orders. |
26 | 8390. Enforcement of preliminary orders. |
27 | 8391. Notification and provision of treatment resources. |
28 | 8392. Premises involving multiple residences or businesses. |
29 | 8393. Vacating or modifying closing order. |
30 | 8394. Permanent injunction and other relief. |
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1 | 8395. Closure. |
2 | 8396. Penalties. |
3 | 8397. Settlements. |
4 | 8398. Recovery of costs. |
5 | 8399. Liens. |
6 | 8399.1. Contempt. |
7 | 8399.2. Release of premises upon inspection or repair. |
8 | 8399.3. Cumulative remedies. |
9 | 8399.4. Admissibility of evidence. |
10 | 8399.5. Relationship to criminal proceedings. |
11 | 8399.6. Liability for damage to closed properties. |
12 | 8399.7. Civil immunity. |
13 | 8399.8. Civil action. |
14 | 8399.9. Use of property for treatment and other purposes. |
15 | § 8381. Scope of subchapter. |
16 | This subchapter relates to drug nuisance abatement. |
17 | § 8382. Definitions. |
18 | The following words and phrases when used in this subchapter |
19 | shall have the meanings given to them in this section unless the |
20 | context clearly indicates otherwise: |
21 | "Controlled substance." The term shall have the same meaning |
22 | as the term is used in the act of April 14, 1972 (P.L.233, |
23 | No.64), known as The Controlled Substance, Drug, Device and |
24 | Cosmetic Act. |
25 | "Distribution." The term shall have the same meaning as the |
26 | term is used in the act of April 14, 1972 (P.L.233, No.64), |
27 | known as The Controlled Substance, Drug, Device and Cosmetic |
28 | Act. |
29 | "Drug distribution event." The unlawful manufacture, |
30 | distribution, sale or possession with intent to distribute, sell |
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1 | or deliver a controlled substance or an unlawful attempt or |
2 | conspiracy to commit such an act. |
3 | "Drug nuisance." |
4 | (1) a site which was used or is being used in |
5 | furtherance of or to promote or facilitate the commission of |
6 | a drug distribution event; or |
7 | (2) two or more persons who, on two or more separate |
8 | occasions within one year prior to the commencement of a |
9 | civil action under this subchapter, did not reside in or upon |
10 | a site gathered for the principal purpose of unlawfully |
11 | investigating, injecting, inhaling or otherwise using a |
12 | controlled substance, regardless of whether a controlled |
13 | substance was unlawfully distributed or purchased at the |
14 | location. |
15 | "Expedited Eviction of Drug Traffickers Act." The act of |
16 | October 11, 1995 (1st Sp.Sess., P.L.1066, No.23), known as the |
17 | Expedited Eviction of Drug Traffickers Act. |
18 | "Manufacture." The term shall have the same meaning as the |
19 | term is used in the act of April 14, 1972 (P.L.233, No.64), |
20 | known as The Controlled Substance, Drug, Device and Cosmetic |
21 | Act. |
22 | "Neighborhood or community organization." A group, whether |
23 | or not incorporated, which consists of persons who reside or |
24 | work at or in a building, complex of buildings, street, block or |
25 | neighborhood, any part of which is located on or within 1,000 |
26 | feet of premises alleged to be a drug nuisance, which has the |
27 | purpose of benefiting the quality of life in its neighborhood or |
28 | community, including treatment programs. |
29 | "Owner." A person in whom is vested the ownership and title |
30 | of property and who is the owner of record. The term shall |
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1 | include a Federal, State, city or local government entity. |
2 | "Person." A natural person, corporation, association, |
3 | partnership, trustee, lessee, agent, assignee, enterprise, |
4 | governmental entity, and any other legal entity or group of |
5 | individuals associated in fact which is capable of holding a |
6 | legal or beneficial interest in property. |
7 | "Possession with intent to sell or distribute." The term |
8 | shall have the same meaning as the term is used in the act of |
9 | April 14, 1972 (P.L.233, No.64), known as The Controlled |
10 | Substance, Drug, Device and Cosmetic Act. |
11 | "Sale." The term shall have the same meaning as the term is |
12 | used in the act of April 14, 1972 (P.L.233, No.64), known as The |
13 | Controlled Substance, Drug, Device and Cosmetic Act. |
14 | § 8383. Nature of actions and jurisdiction. |
15 | The causes of action established in this subchapter are civil |
16 | actions to enjoin the commission of drug distribution events, to |
17 | close down and physically secure premises or portions thereof |
18 | which constitute drug nuisances and otherwise abate such drug |
19 | nuisances and to impose civil penalties. These actions shall be |
20 | brought in the court of common pleas, which shall have |
21 | jurisdiction to issue temporary, preliminary or permanent |
22 | injunctive or other equitable relief, regardless of whether an |
23 | adequate remedy exists at law. |
24 | § 8384. Standard of proof. |
25 | Except as may otherwise be expressly provided, civil causes |
26 | of action established in this subchapter shall be proven by a |
27 | preponderance of the evidence. |
28 | § 8385. Parties. |
29 | (a) Who may bring actions.--A civil action for temporary, |
30 | preliminary or permanent injunctive relief or penalties under |
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1 | this subchapter may be brought by: |
2 | (1) the solicitor for a State, county or municipal |
3 | governing body which has jurisdiction over the location at |
4 | which an alleged drug nuisance exists; |
5 | (2) the Attorney General and the district attorney |
6 | having jurisdiction where the alleged drug nuisance exists; |
7 | (3) a neighborhood or community organization; or |
8 | (4) a person who resides, is employed full time or part |
9 | time at the site of business or owns or operates a business |
10 | on or within 1,000 feet of an alleged drug nuisance. |
11 | (b) Defendants to the action.-- |
12 | (1) A civil action under this subchapter shall be |
13 | brought against the owner of, and may also be brought against |
14 | a person within, the jurisdiction of the court who is a |
15 | landlord, tenant, manager, operator or supervisor of premises |
16 | alleged to be a drug nuisance. |
17 | (2) The court shall have in rem jurisdiction over the |
18 | premises alleged to be a drug nuisance. |
19 | (3) The complaint initiating a civil action under this |
20 | subchapter shall name as a defendant the premises involved, |
21 | describing it by block, lot number and street address or by |
22 | such other means as are appropriate under the circumstances. |
23 | (c) Protections against frivolous actions and sanctions for |
24 | unfounded or unwarranted pleadings, motions or other actions.-- |
25 | (1) In any action brought under this subchapter, every |
26 | pleading, motion and other document shall be signed by at |
27 | least one attorney of record in the attorney's own name, and |
28 | the attorney's address shall be stated. The signature of an |
29 | attorney constitutes a certification that the signer has read |
30 | the pleading, motion or other paper; that to the best of the |
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1 | signer's knowledge, information and belief, formed after |
2 | reasonable inquiry, it is well grounded in fact and is |
3 | warranted under existing law, or a good faith argument for |
4 | the extension, modification or reversal of existing law; and |
5 | that it is not interposed for any improper purpose, such as |
6 | to harass or to cause unnecessary delay or needless increase |
7 | in the cost of litigation. |
8 | (2) If a pleading, motion or other document is not |
9 | signed, it shall be stricken unless it is signed promptly |
10 | after the omission is called to the attention of the pleader |
11 | or movant. |
12 | (3) If a pleading, motion or other document is signed in |
13 | violation of this subchapter, the court, upon motion or upon |
14 | its own initiative, shall impose upon the person who signed |
15 | it or a represented party, or both, an appropriate sanction, |
16 | which may include an order to pay to the other party or |
17 | parties the amount of the reasonable expenses incurred |
18 | because of the filing of the pleading, motion or other |
19 | document, including a reasonable attorney fee. |
20 | (d) No bond or security required.--No person or entity shall |
21 | be required to post a bond or security as a condition of |
22 | initiating or prosecuting an action brought under this |
23 | subchapter. |
24 | (e) Ready availability of ownership information to potential |
25 | plaintiffs.--A person or entity that, upon an oath in writing, |
26 | states the affiant is preparing to initiate an action under this |
27 | subchapter may request that the recorder of deeds promptly |
28 | provide the name and address of all owners of the premises as |
29 | reflected upon the current county records, without charge. |
30 | (f) Presumption of ownership.--The person in whose name the |
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1 | premises involved are recorded in the county recorder of deeds |
2 | office shall be presumed to be the owner. |
3 | (g) Presumption of agency.--Whenever there is evidence that |
4 | a person was the manager, operator or supervisor or was in any |
5 | other way in charge of the premises involved at the time conduct |
6 | constituting the drug nuisance is alleged to have been |
7 | committed, the evidence shall be rebuttably presumptive that the |
8 | person was an agent or employee of the owner, landlord or lessee |
9 | of the premises. |
10 | § 8386. Notice to interested parties. |
11 | (a) Notice to defendants.-- |
12 | (1) A complaint initiating an action under this |
13 | subchapter shall be personally served and notice to all in |
14 | personam defendants shall be provided in the same manner as |
15 | service of complaints in civil actions. After filing an |
16 | affidavit that personal service cannot be had after due |
17 | diligence on one or more in personam defendants within 20 |
18 | days after the filing of the complaint, the plaintiff may: |
19 | (i) Cause a copy of the complaint to be mailed to |
20 | the defendant by certified mail, restricted delivery, |
21 | return receipt to the clerk of court requested. |
22 | (ii) Cause a copy of the complaint to be affixed |
23 | conspicuously to the premises alleged to be a drug |
24 | nuisance. |
25 | (2) Service shall be deemed completed five days after |
26 | filing with the court proof of the mailing and an affidavit |
27 | that a copy of the complaint has been affixed to the |
28 | premises. |
29 | (b) Notice to affected tenants, residents and guests.--All |
30 | tenants or residents of any premises used in whole or in part as |
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1 | a business, home, residence or dwelling, other than transient |
2 | guests of a guest house, hotel or motel, who may be affected by |
3 | any order issued under this subchapter shall be provided such |
4 | reasonable notice as shall be ordered by the court and shall be |
5 | afforded opportunity to be heard at all hearings. |
6 | (c) Lis pendens.--Notice of lis pendens shall be filed |
7 | concurrently with the commencement of the action in the same |
8 | manner as is generally provided for by law or court rule. |
9 | § 8387. Substitution of plaintiff. |
10 | When a court determines in its discretion that the plaintiff |
11 | bringing an action under this subchapter has failed to prosecute |
12 | the matter with reasonable diligence, the court may substitute |
13 | as plaintiff a person or entity that consents thereto, provided |
14 | that the person or entity would have been authorized under this |
15 | subchapter to initiate the action. |
16 | § 8388. Continuances. |
17 | (a) General policy.--An action for injunctive relief or |
18 | civil penalties brought under this subchapter shall be heard by |
19 | the court on an expedited and priority basis. |
20 | (b) Continuances.--The court may not grant a continuance |
21 | except for extraordinary and compelling reasons or on the |
22 | application of a criminal prosecuting agency for good cause |
23 | shown. |
24 | (c) Stay pending criminal proceedings.--The court may not |
25 | stay the civil proceedings pending the disposition of any |
26 | related criminal proceeding except for extraordinary and |
27 | compelling reasons or except upon the application of a criminal |
28 | prosecuting agency for good cause shown. |
29 | (d) Dismissal of actions for want of prosecution.-- |
30 | (1) The court may not dismiss an action brought under |
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1 | this subchapter for want of prosecution unless the court is |
2 | clearly convinced that the interests of justice require |
3 | dismissal. |
4 | (2) In that event and upon such a finding, the dismissal |
5 | shall be without prejudice to the right of the plaintiff or |
6 | any other person or entity authorized to bring an action |
7 | under this subchapter to reinstitute the action. |
8 | § 8389. Issuance of preliminary orders. |
9 | (a) General rule.--A person or entity authorized to bring a |
10 | civil action for injunctive relief under this subchapter may |
11 | file a complaint seeking preliminary injunctive relief by |
12 | alleging that the premises constitute a drug nuisance. Upon |
13 | receipt of the complaint, the court shall order a preliminary |
14 | hearing which shall not be later than 30 days from the date of |
15 | the order. Service shall be made upon the owners of the premises |
16 | under section 8386(a) (relating to notice to interested parties) |
17 | not less than five days prior to the hearing. In the event that |
18 | service cannot be completed in time to give the owners the |
19 | minimum notice required under this subchapter, the court may set |
20 | a new hearing date. |
21 | (b) Preliminary closing order.-- |
22 | (1) If the court finds it a substantial likelihood that |
23 | the plaintiff by a preponderance of the evidence will be able |
24 | to establish at trial: |
25 | (i) that the premises constitute a drug nuisance; |
26 | (ii) that, at least 30 days prior to the filing of |
27 | the complaint seeking preliminary injunctive relief, the |
28 | owner or the owner's agent had been notified by certified |
29 | mail of the drug nuisance; and |
30 | (iii) that the public health, safety or welfare |
|
1 | immediately requires a preliminary closing order, the |
2 | court shall issue an order to close the premises involved |
3 | or the portions appropriate under the circumstances. |
4 | (2) The order shall direct actions necessary to |
5 | physically secure the premises, or appropriate portions |
6 | thereof, against use for any purpose. The preliminary closing |
7 | order shall also restrain the defendant and all persons from |
8 | removing or in any manner interfering with the furniture, |
9 | fixtures and movable or personal property located on or |
10 | within the premises constituting the drug nuisance. |
11 | (c) Other preliminary relief.-- |
12 | (1) If the court finds that the premises constitute a |
13 | drug nuisance, but that immediate closing of the premises is |
14 | not required under subsection (b), the court may enjoin the |
15 | drug nuisance and issue an order restraining the defendants |
16 | and all other persons conducting, maintaining, aiding, |
17 | abetting or permitting drug distribution events constituting |
18 | the drug nuisance. |
19 | (2) The court may not require a plaintiff to show that |
20 | the plaintiff has no adequate remedy at law or will suffer |
21 | irreparable harm nor any other common law element applicable |
22 | to a preliminary injunction to obtain a preliminary closing |
23 | order. |
24 | (3) The court may issue an order appointing a temporary |
25 | receiver to manage or operate the premises. A temporary |
26 | receiver shall have the powers and duties specifically |
27 | authorized under section 8394(6) (relating to permanent |
28 | injunction and other relief). |
29 | (d) Admissible evidence.--In determining whether the public |
30 | health, safety or welfare immediately requires a preliminary |
|
1 | closing order, the court shall consider any relevant evidence |
2 | presented concerning attendant circumstances, including, but not |
3 | limited to: |
4 | (1) whether the alleged drug distribution events or |
5 | related activities involve the use of threat of violence at |
6 | or near the site alleged to be a drug nuisance; |
7 | (2) whether the alleged drug distribution events in any |
8 | way involve distribution or sale of a controlled substance by |
9 | or to a juvenile; or |
10 | (3) whether the site alleged to be a drug nuisance is |
11 | located within a drug-free zone under 18 Pa.C.S. § 6314 |
12 | (relating to sentencing and penalties for trafficking drugs |
13 | to minors). |
14 | § 8390. Enforcement of preliminary orders. |
15 | (a) Entities enforcing orders.--Upon order of the court, |
16 | preliminary restraining and closing orders shall be enforced by |
17 | the sheriff, local police department or, if no local police are |
18 | available, by the Pennsylvania State Police. |
19 | (b) Inventory of personal property.--The officers serving a |
20 | temporary closing or temporary restraining order shall file with |
21 | the court an inventory of the personal property situated in or |
22 | on the premises closed and shall be allowed to enter the |
23 | premises to make the inventory. The inventory shall provide an |
24 | accurate representation of the personal property subject to the |
25 | inventory, including, but not limited to, photographing of |
26 | furniture, fixtures and other personal or movable property. |
27 | (c) Vacation of premises.--The officers serving a |
28 | preliminary closing order shall, upon service of the order, |
29 | demand all persons present in the premises closed to vacate the |
30 | premises, or portion thereof, unless the court orders otherwise. |
|
1 | The premises, or portion thereof, shall be securely locked and |
2 | all keys shall be held by the agency closing the premises. |
3 | (d) Posting of court order.-- |
4 | (1) Upon service of a preliminary closing order or a |
5 | preliminary restraining order, the officer shall post a copy |
6 | of the order in a conspicuous place or upon one or more of |
7 | the principal doors at entrances of the premises. |
8 | (2) Where a preliminary closing order has been granted, |
9 | the officers shall affix, in a conspicuous place or upon one |
10 | or more of the principal entrances of the premises, a printed |
11 | notice that the entire premises, or a portion thereof, has |
12 | been closed by court order, which notice shall contain the |
13 | legend "Closed by Court Order" in block lettering of |
14 | sufficient size to be observed by anyone intending or likely |
15 | to enter the premises. The printed notice shall also include |
16 | the date of the order, the court which issued the order and |
17 | the name of the office or agency posting the notice. |
18 | (3) Where a preliminary restraining order has been |
19 | granted, the officer shall affix, in the same manner, a |
20 | notice similar to the notice provided for in relation to a |
21 | preliminary closing order except that the notice shall state |
22 | that certain activity is prohibited by court order and the |
23 | removal of furniture, fixtures or other personal or movable |
24 | property is prohibited by court order. |
25 | (e) Mutilation or removal of posted court order.--A person |
26 | who without lawful authority mutilates or removes an order or |
27 | notice posted under the provisions of subsection (d) commits a |
28 | misdemeanor of the third degree. |
29 | (f) Violation of court order.--A person who knowingly or |
30 | purposely violates a preliminary restraining order or closing |
|
1 | order issued under this subchapter shall be subject to civil |
2 | contempt, as well as punishment for criminal contempt, under 18 |
3 | Pa.C.S. §§ 4955 (relating to violation of orders) and 5101 |
4 | (relating to obstructing administration of law or other |
5 | governmental function). |
6 | § 8391. Notification and provision of treatment resources. |
7 | (a) Notification to persons present.--The officers serving a |
8 | preliminary closing order under section 8390(c) (relating to |
9 | enforcement of preliminary orders) shall provide outreach |
10 | information and referral materials to all residents present on |
11 | how to obtain alcohol and other drug treatment. |
12 | (b) Notification to social services agencies.--The court, no |
13 | less than ten days prior to the removal of a person under this |
14 | subchapter, shall cause notice to be provided to the local |
15 | alcohol and other drug agency, the local child welfare agency |
16 | and other appropriate social service agencies of the ordered |
17 | removal of any persons under this subchapter. |
18 | (c) Posting of notification.--A one-page summary of such |
19 | information and materials shall be posted next to any |
20 | preliminary restraining order posted under section 8390(d). |
21 | (d) Preparation and dissemination of treatment resource |
22 | information.--The Bureau of Drug and Alcohol Programs in the |
23 | Department of Health or its designee shall prepare all materials |
24 | described in subsections (a) and (b) and shall disseminate them |
25 | to all sheriff departments, local police departments or other |
26 | appropriate agencies which are empowered to enforce closing |
27 | orders under this subchapter. |
28 | § 8392. Premises involving multiple residences or businesses. |
29 | (a) Limiting order to nuisance portion of premises.--Where |
30 | the premises constituting the drug nuisance include multiple |
|
1 | residences, dwellings or business establishments, a preliminary |
2 | or permanent closing order issued under any provision of this |
3 | subchapter shall, so far as is practicable, be limited to that |
4 | portion of the entire premises necessary to abate the nuisance |
5 | and prevent the recurrence of drug distribution events. |
6 | (b) Duty of certain landlords to displaced innocent |
7 | tenants.-- |
8 | (1) In addition to any other relief expressly authorized |
9 | under this subchapter, the court may order a defendant who |
10 | knew or had reason to know of the nuisance to provide |
11 | relocation assistance to a tenant ordered to vacate premises |
12 | under this subchapter, provided that the court determines |
13 | that: |
14 | (i) The tenant was not involved in a drug |
15 | distribution event constituting the nuisance. |
16 | (ii) The tenant did not knowingly aid in the |
17 | commission of a drug distribution event. |
18 | (2) Relocation assistance shall be in the amount |
19 | necessary to cover moving costs, security deposits for |
20 | utilities and comparable housing, any lost rent and any other |
21 | reasonable expenses the court may deem fair and reasonable as |
22 | a result of the court's order to close premises, or any |
23 | portion thereof, under this subchapter. |
24 | § 8393. Vacating or modifying closing order. |
25 | (a) General rule.--The court upon application of a defendant |
26 | may, at any time before trial, vacate or modify a closing order, |
27 | after notice to the person or entity bringing the action under |
28 | this subchapter, if the defendant clearly and convincingly shows |
29 | no involvement in the commission of a drug distribution event |
30 | constituting the nuisance, and: |
|
1 | (1) provides a bond or undertaking in an amount equal to |
2 | the assessed value, for property tax purposes, of the |
3 | premises, or portion thereof, subject to the closure order or |
4 | another amount fixed by the court, and the court determines |
5 | that the public safety or welfare will be adequately |
6 | protected; or |
7 | (2) establishes by clear and convincing evidence that |
8 | the drug nuisance has been satisfactorily abated and will not |
9 | recur. In determining whether the drug nuisance has been |
10 | satisfactorily abated and will not recur, the court shall |
11 | consider the nature, severity and duration of the drug |
12 | nuisance and all other relevant factors, including the |
13 | following: |
14 | (i) Whether the defendant through the exercise of |
15 | reasonable diligence should have known that drug |
16 | distribution events occurred on the premises and whether |
17 | the defendant took steps necessary and appropriate in the |
18 | circumstances to prevent the commission of the events. |
19 | (ii) Whether the defendant has in good faith |
20 | initiated eviction or removal actions under the Expedited |
21 | Eviction of Drug Traffickers Act against tenants or other |
22 | persons who committed drug distribution events on the |
23 | premises involved, immediately upon learning of a factual |
24 | basis for initiating eviction or removal action. |
25 | (iii) Whether the defendant has developed an |
26 | abatement plan which has been agreed to by the person or |
27 | entity bringing the action under this subchapter and |
28 | approved by the court. The abatement plan may provide for |
29 | the following: |
30 | (A) Hiring an onsite manager to prevent the |
|
1 | recurrence of drug distribution events. |
2 | (B) Making capital improvements to the property, |
3 | such as security gates. |
4 | (C) Installing improved interior or exterior |
5 | lighting. |
6 | (D) Employing security guards. |
7 | (E) Installing electronic security or visual |
8 | monitoring systems. |
9 | (F) Establishing tenant-approved security |
10 | procedures. |
11 | (G) Attending property management training |
12 | programs. |
13 | (H) Making cosmetic improvements to the |
14 | property. |
15 | (I) Providing, at no cost, suitable space and |
16 | facilities for a local enforcement agency to |
17 | establish a police substation or ministation on or |
18 | near the site of the drug nuisance. |
19 | (J) Establishing any other program or initiative |
20 | designed to enhance security and prevent the |
21 | recurrence of drug distribution events on or near the |
22 | involved premises. |
23 | (b) Forfeiture of bond.-- |
24 | (1) If the court accepts a bond or undertaking under |
25 | subsection (a) and conduct constituting a drug nuisance |
26 | recurs, the bond or undertaking shall be forfeited unless the |
27 | court finds extraordinary and compelling reasons why |
28 | forfeiture would not be in the interest of justice. |
29 | (2) Money forfeited under this section shall be paid |
30 | into the dedicated fund established under section 8396(d) |
|
1 | (relating to penalties). |
2 | § 8394. Permanent injunction and other relief. |
3 | (a) General rule.--If the court after trial finds that |
4 | premises are a drug nuisance, the court shall grant permanent |
5 | injunctive relief and shall issue orders as are necessary to |
6 | abate the drug nuisance and prevent, to the extent reasonably |
7 | possible, recurrence of the drug nuisance. |
8 | (b) Contents of order.--The court's order may include all of |
9 | the following: |
10 | (1) Directing the sheriff or other appropriate agency to |
11 | seize and remove from the premises all material, equipment |
12 | and instrumentalities used in the creation and maintenance of |
13 | the drug nuisance and directing the sheriff to sell the |
14 | property in the manner provided for the sale of personal |
15 | property under execution in accordance with the Pennsylvania |
16 | Rules of Civil Procedure. The net proceeds of any such sale, |
17 | after the deduction of all lawful expenses involved, shall be |
18 | paid into the dedicated fund established in section 8396(d) |
19 | (relating to penalties). |
20 | (2) Authorizing the plaintiffs to make repairs, |
21 | renovations and construction and structural alterations or to |
22 | take other actions necessary to bring the premises into |
23 | compliance with all applicable housing, building, fire, |
24 | zoning, health and safety codes, ordinances, rules, |
25 | regulations or statutes. Expenditures may be filed as a lien |
26 | against the property. |
27 | (3) Directing the closing of the premises, or |
28 | appropriate portion thereof, to the extent necessary to abate |
29 | the nuisance and directing the officer or agency enforcing |
30 | the closure order to post a copy of the judgment and a |
|
1 | printed notice of the closing order conforming to section |
2 | 8390(d) (relating to enforcement of preliminary orders). The |
3 | closing directed by the judgment shall be for such period of |
4 | time as the court may direct but, subject to the provisions |
5 | of section 8398 (relating to recovery of costs), shall not be |
6 | for a period of more than one year from the posting of the |
7 | judgment provided for in this subchapter. |
8 | (4) Suspending or revoking any business, professional, |
9 | operational or liquor license. |
10 | (5) Ordering the suspension of any State, city or local |
11 | governmental subsidies payable to the owners of the property, |
12 | such as tenant assistance payments to landlords, until the |
13 | nuisance is satisfactorily abated. |
14 | (6) Appointing a temporary receiver to manage or operate |
15 | the premises for such time as the court deems necessary to |
16 | abate the nuisance. A receiver appointed under this section |
17 | shall be paid a reasonable fee by the owner of the property |
18 | as established by the court and shall have such powers and |
19 | duties as the court shall direct the following: |
20 | (i) Collecting, holding and dispersing the proceeds |
21 | of rents due from all tenants. |
22 | (ii) Leasing or renting portions of the premises |
23 | involved. |
24 | (iii) Making or authorizing other persons to make |
25 | necessary repairs to maintain the property. |
26 | (iv) Hiring security or other personnel necessary |
27 | for the safe and proper operation of the premises. |
28 | (v) Retaining counsel to prosecute or defend suits |
29 | arising from the receiver's management of the premises. |
30 | (vi) Expending funds from the collected rents in |
|
1 | furtherance of the foregoing powers. |
2 | (7) Imposing any or all of the foregoing remedies in |
3 | combination. |
4 | (c) Duties of receiver.--A receiver appointed by the court |
5 | under this section or section 8389(c) (relating to issuance of |
6 | preliminary orders): |
7 | (1) Shall, upon entering his duties, be sworn and shall |
8 | affirm faithfully and fairly to discharge the trust committed |
9 | in him. |
10 | (2) May be required to post a bond or undertaking in an |
11 | amount to be fixed by the court making the appointment to |
12 | ensure that the receiver's duties will be faithfully |
13 | discharged. |
14 | § 8395. Closure. |
15 | (a) Presumption of closure.--Where the court after trial |
16 | determines that the premises constitute a drug nuisance, the |
17 | court shall order the closure of the premises, or appropriate |
18 | portion thereof, under section 8394(c) (relating to permanent |
19 | injunction and other relief), unless the court is convinced that |
20 | any vacancy resulting from the closure would exacerbate rather |
21 | than abate the nuisance or would otherwise be extraordinarily |
22 | harmful to the community or the public interest. |
23 | (b) Vacation of closure order.-- |
24 | (1) The court at any time after the trial may vacate the |
25 | provisions of the judgment that direct the closing of some or |
26 | all of the premises, provided that the defendant establishes |
27 | by clear and convincing evidence that the drug nuisance has |
28 | been satisfactorily abated and is not likely to recur. |
29 | (2) In determining whether the drug nuisance has been |
30 | satisfactorily abated and is not likely to recur, the court |
|
1 | shall consider the nature, severity and duration of the drug |
2 | nuisance and all other relevant factors, including those |
3 | factors under section 8393(a) (relating to vacating or |
4 | modifying closing order). |
5 | § 8396. Penalties. |
6 | (a) Civil penalties for culpable defendants.--Where the |
7 | court after trial finds that premises are a drug nuisance, the |
8 | court in addition to granting appropriate injunctive relief |
9 | shall impose a civil penalty against a defendant who knowingly |
10 | conducted, maintained, aided, abetted or permitted a drug |
11 | nuisance. The penalty shall be $25,000 or the market value of |
12 | the entire premises involved, whichever amount is greater, |
13 | unless the court finds, based on the evidence, that imposition |
14 | of the penalty would constitute a miscarriage of justice under |
15 | the totality of the circumstances. In that case, the court may |
16 | lower the amount of the penalty to the extent necessary to avoid |
17 | a miscarriage of justice. |
18 | (b) Prima facie evidence of defendant's culpability.--For |
19 | the purpose of imposing a civil penalty under this section, the |
20 | following shall be prima facie evidence that the defendant |
21 | knowingly permitted the drug nuisance: |
22 | (1) the defendant failed to initiate an eviction action |
23 | under the Expedited Eviction of Drug Traffickers Act against |
24 | a tenant after being notified by certified or registered mail |
25 | of the tenant's drug distribution events committed on the |
26 | leased premises; or |
27 | (2) a closure order was vacated under section 8395(b) |
28 | (relating to closure) within two years before the occurrence |
29 | of the instant drug nuisance. |
30 | (c) Waiver of penalty upon transfer of title.--The court at |
|
1 | any time shall waive, suspend or revoke any unpaid civil penalty |
2 | imposed under this section if the court is satisfied that: |
3 | (1) The defendant against whom the penalty has been |
4 | imposed has not violated any order issued under any provision |
5 | of this subchapter. |
6 | (2) The defendant has transferred title to the premises |
7 | to the plaintiff or another neighborhood or community |
8 | organization approved by the court, provided that the |
9 | recipient is a nonprofit incorporated organization or |
10 | association which is exempt from taxation under the Internal |
11 | Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 501(c)) |
12 | and is authorized by its corporate charter or bylaws to |
13 | rehabilitate, restore, maintain, manage or operate commercial |
14 | or residential premises. Unless otherwise agreed to by the |
15 | recipient organization, the defendant shall personally retain |
16 | all State and local tax liability, and the obligation shall |
17 | attach to any other real property in the county owned by the |
18 | defendant. |
19 | (d) Collection and disposition of proceeds.-- |
20 | (1) All civil penalties imposed under this section shall |
21 | be collected in the manner provided by law or by rule of |
22 | court subject to the following: |
23 | (i) Ten percent of the penalties shall be retained |
24 | by the court to offset the costs of collection. |
25 | (ii) Half of all remaining money collected under |
26 | this section shall be deposited in a nonlapsing revolving |
27 | county fund to be known as the nuisance abatement and |
28 | neighborhood rehabilitation fund. Money in this fund |
29 | shall be appropriated by the county on an annual basis |
30 | for the purpose of funding local drug nuisance abatement, |
|
1 | drug prevention, education and housing and neighborhood |
2 | rehabilitation programs. |
3 | (iii) All of the remaining funds shall be deposited |
4 | in a nonlapsing revolving fund which is established in |
5 | the State Treasury and which shall be known as the |
6 | Treatment for Displaced Residents Fund. This fund shall |
7 | be administered by the Bureau of Drug and Alcohol |
8 | Programs in the Department of Health. Its purpose shall |
9 | be to fund the treatment of displaced residents |
10 | determined to be addicted under section 26 of the |
11 | Expedited Eviction of Drug Traffickers Act or for |
12 | providing treatment for displaced residents under this |
13 | subchapter. None of these funds shall be used to supplant |
14 | existing Federal, State, county or municipal resources |
15 | for the courts, nuisance abatement, drug prevention, |
16 | education, housing or neighborhood rehabilitation |
17 | programs or treatment. |
18 | § 8397. Settlements. |
19 | (a) Court-approved settlements.--Nothing in this subchapter |
20 | shall be construed to prevent the parties to the action at any |
21 | time before or after trial from negotiating and agreeing to a |
22 | fair settlement of the dispute, subject to approval of the |
23 | court. |
24 | (b) Vacation of closure order upon transfer of title.--The |
25 | court, on application of a plaintiff, may vacate a closing order |
26 | issued under this subchapter, where the defendant has |
27 | transferred title to the premises to the plaintiff or another |
28 | neighborhood or community organization approved by the court, |
29 | provided that the transferee is a nonprofit incorporated |
30 | organization or association which is exempt from taxation under |
|
1 | the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. |
2 | § 501(c)) and which is authorized by its corporate charter or |
3 | bylaws to rehabilitate, restore, maintain, manage or operate |
4 | commercial or residential premises. In that event, the |
5 | requirements for prerelease inspection under section 8399.2 |
6 | (relating to release of premises upon inspection or repair) |
7 | shall not apply. |
8 | § 8398. Recovery of costs. |
9 | (a) General rule.--If an action for injunctive relief or |
10 | penalties brought under this subchapter terminates in a |
11 | settlement or judgment favorable to the plaintiff, the plaintiff |
12 | shall be entitled to recover the actual cost of the suit, |
13 | including reasonable attorney fees and all expenses and |
14 | disbursements by the plaintiff and any other governmental entity |
15 | in investigating, bringing, maintaining and enforcing the action |
16 | and any court orders. |
17 | (b) Joint and several liability.--All defendants shall be |
18 | jointly and severally liable for the payment of taxed costs |
19 | imposed under this subchapter. |
20 | § 8399. Liens. |
21 | (a) General rule.--A judgment awarding a permanent |
22 | injunction under this subchapter shall be a lien upon the |
23 | premises declared to be a drug nuisance. |
24 | (b) Nature of liens.--A judgment against an in personam |
25 | defendant imposing a civil penalty or bill of taxed costs under |
26 | this subchapter shall be a lien upon the real estate owned by |
27 | the defendant at the time of the judgment and upon all real |
28 | estate the defendant may subsequently acquire for a period of |
29 | ten years from the date of the judgment. |
30 | § 8399.1. Contempt. |
|
1 | (a) General rule.--A person who knowingly violates an order |
2 | issued under this subchapter shall be subject to civil contempt, |
3 | as well as punishment for criminal contempt under 18 Pa.C.S. §§ |
4 | 4955 (relating to violation of orders) and 5101 (relating to |
5 | obstructing administration of law or other governmental |
6 | function). |
7 | (b) Construction.--Nothing in this subchapter shall be |
8 | construed to preclude or preempt criminal prosecution for |
9 | violation of a controlled substance offense or any other |
10 | criminal offense. |
11 | § 8399.2. Release of premises upon inspection or repair. |
12 | (a) Compliance with codes as prerequisite to opening.-- |
13 | (1) Subject to the provisions of section 8397(b) |
14 | (relating to settlements), and unless the court expressly |
15 | orders otherwise, no premises or portion thereof ordered to |
16 | be closed under any other provision of this subchapter shall |
17 | be released or opened unless it has been inspected by the |
18 | appropriate county agency and found to be in compliance with |
19 | applicable State and local housing, building, fire, zoning, |
20 | health and safety codes, ordinances, rules, regulations or |
21 | statutes. |
22 | (2) If the inspection reveals violations of any code, |
23 | ordinance, rule, regulation or statute, the court shall issue |
24 | orders or grant relief as may be necessary to bring the |
25 | premises, or portion thereof, into compliance. The court may |
26 | order the premises, or portion thereof, to remain closed |
27 | pending necessary repairs or modification, notwithstanding |
28 | that the order or closure may exceed the one-year time limit |
29 | prescribed under section 8394(c) (relating to permanent |
30 | injunction and other relief). |
|
1 | (b) Authorization to inspect or repair.--The court may |
2 | authorize any person or government official to enter premises, |
3 | or a portion thereof, closed under this subchapter for the |
4 | purpose of conducting an inspection or making repairs or |
5 | modifications necessary to abate the nuisance or to bring the |
6 | premises, or portion thereof, into compliance with all |
7 | applicable housing, building, fire, zoning, health or safety |
8 | code, ordinance, rule, regulation or statute. |
9 | § 8399.3. Cumulative remedies. |
10 | The causes of action and remedies authorized under this |
11 | subchapter shall be cumulative with each other and shall be in |
12 | addition to, not in lieu of, any other causes of action or |
13 | remedies which may be available at law or equity. |
14 | § 8399.4. Admissibility of evidence. |
15 | (a) General rule.--In any action brought under this |
16 | subchapter, all relevant evidence, including evidence of the use |
17 | or threat of violence, evidence of reputation in a community and |
18 | any prior efforts or lack of efforts by the defendant to abate |
19 | the drug nuisance shall be admissible to prove the existence of |
20 | a drug nuisance. |
21 | (b) Effect of criminal conviction or adjudication of |
22 | delinquency.-- |
23 | (1) Where a criminal prosecution or adjudication |
24 | proceeding involving the drug distribution event constituting |
25 | the drug nuisance results in a criminal conviction or |
26 | adjudication of delinquency, the conviction or adjudication |
27 | creates a rebuttable presumption that the drug distribution |
28 | event occurred. |
29 | (2) Any evidence or testimony admitted in the criminal |
30 | or juvenile proceedings, including transcripts or court |
|
1 | reporters' notes of the transcripts of the adult or juvenile |
2 | criminal proceedings, whether or not they have been |
3 | transcribed, may be admitted in the civil action brought |
4 | under this subchapter. |
5 | (c) Use of sealed criminal proceeding records.--In the event |
6 | that the evidence or records of a criminal proceeding which did |
7 | not result in a conviction or adjudication of delinquency have |
8 | been sealed under applicable law, the court in a civil action |
9 | brought under this subchapter may, notwithstanding any other |
10 | provision of this subchapter, order such evidence or records to |
11 | be unsealed if the court finds that the evidence or records |
12 | would be relevant to the fair disposition of the civil action. |
13 | (d) Protection of threatened witnesses or affiants.--If |
14 | proof of the existence of the drug nuisance depends, in whole or |
15 | in part, upon the affidavits or testimony of witnesses who are |
16 | not peace officers, the court may, upon a showing of prior |
17 | threats of violence or acts of violence by a defendant or |
18 | another person, issue orders to protect those witnesses, |
19 | including the nondisclosure of the name, address or any other |
20 | information which may identify the witnesses. |
21 | (e) Availability of law enforcement resources to plaintiffs |
22 | or potential plaintiffs.-- |
23 | (1) A law enforcement agency may make available to a |
24 | person or entity seeking to secure compliance with this |
25 | subchapter any police report or forensic laboratory report, |
26 | or edited portions thereof, concerning drug distribution |
27 | events committed on or within the involved premises. |
28 | (2) A law enforcement agency may make any officer or |
29 | officers available to testify as a fact or expert witness in |
30 | a civil action brought under this subchapter. |
|
1 | (3) The agency may not disclose the information if, in |
2 | the agency's opinion, disclosure would jeopardize an |
3 | investigation, prosecution or other proceeding or violate |
4 | Federal or State law. |
5 | § 8399.5. Relationship to criminal proceedings. |
6 | A civil action may be brought and maintained under this |
7 | subchapter, and the court may find the existence of a drug |
8 | nuisance, notwithstanding that a drug distribution event or |
9 | events used to establish the existence of a drug nuisance have |
10 | not resulted in an arrest, prosecution, conviction or |
11 | adjudication of delinquency. |
12 | § 8399.6. Liability for damage to closed properties. |
13 | (a) Effect of court-ordered closing.--Court-ordered closing |
14 | of premises, or a portion thereof, under this subchapter shall |
15 | not constitute an act of possession, ownership or control by the |
16 | court, the plaintiff or a government official or entity |
17 | responsible for enforcing the court order. |
18 | (b) Immunity of plaintiffs and enforcing agencies.--A person |
19 | or entity bringing, maintaining or enforcing a civil action or |
20 | order issued in accordance with the provisions of this |
21 | subchapter shall have immunity from civil liability that might |
22 | otherwise be incurred for any theft of or loss, damage or injury |
23 | to premises constituting the drug nuisance, or to any fixture, |
24 | furniture or personal or movable property located in or on such |
25 | premises. |
26 | § 8399.7. Civil immunity. |
27 | Any person or entity who in good faith institutes, |
28 | participates or testifies in or encourages any person or entity |
29 | to institute, participate or testify in a civil action brought |
30 | under this subchapter or who in good faith provides information |
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1 | relied upon by a person or entity in instituting or |
2 | participating in a civil action under this subchapter shall be |
3 | immune from any civil liability that might otherwise be incurred |
4 | or imposed for such actions or conduct. |
5 | § 8399.8. Civil action. |
6 | (a) Right of action or damages.--Notwithstanding the |
7 | provisions of section 8385 (relating to parties), a person |
8 | damaged in the person's business or property by reason of a drug |
9 | nuisance may bring a separate civil action for actual damages in |
10 | the court of common pleas against persons who knowingly |
11 | conducted, maintained, aided, abetted or permitted a drug |
12 | distribution event constituting the drug nuisance. |
13 | (b) Effect of prior notification of owner concerning |
14 | nuisance.--In a civil action for damages under this section, |
15 | failure of an owner or landlord to initiate an eviction action |
16 | against a tenant under the Expedited Eviction of Drug |
17 | Traffickers Act, if the owner or landlord has been notified by |
18 | certified or registered mail of the tenant's drug distribution |
19 | events committed on the leased premises, shall be prima facie |
20 | evidence that the owner knowingly gave permission to engage in |
21 | conduct constituting the drug nuisance. |
22 | (c) Admission of expert testimony.--In a civil action for |
23 | damages under this section, expert testimony may be used to |
24 | determine the amount of any actual damage or loss incurred by |
25 | reason of the drug nuisance. |
26 | (d) Attorney fees and other costs to prevailing plaintiff.-- |
27 | (1) If an action for damages brought under this section |
28 | terminates in a settlement or judgment favorable to the |
29 | plaintiff, the plaintiff shall be entitled to recover the |
30 | actual cost of the suit, including reasonable attorney fees |
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1 | and all expenses and disbursements by the plaintiff in |
2 | investigating, bringing and maintaining the action. |
3 | (2) All defendants shall be jointly and severally liable |
4 | for the payments of taxed costs imposed under this section. |
5 | (e) General admissibility of evidence.--In any civil action |
6 | for damages brought under this section, any evidence admitted or |
7 | admissible in a civil action for injunctive relief or penalty |
8 | under this subchapter shall be admissible. |
9 | § 8399.9. Use of property for treatment and other purposes. |
10 | Where title to property has been transferred to a |
11 | neighborhood or community organization under section 8396(c) |
12 | (relating to penalties) or a negotiated settlement of any action |
13 | brought under this subchapter, the property may, subject to |
14 | approval of the court in which the civil action was initiated, |
15 | be used to house an alcohol and other drug prevention, |
16 | education, intervention or licensed alcohol and other drug |
17 | counseling or treatment program. This section shall not be |
18 | construed to exempt the property from the requirements of |
19 | applicable zoning, fire, safety, health code, ordinance, rule, |
20 | regulation or statute. |
21 | Section 3. This act shall take effect in 180 days. |
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