Councilmembers Jack Evans and Sharon Ambrose
A
BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
To allow the United States Attorney for the District of Columbia, the Corporation
Counsel, or a community-based organization to file an action in the Superior Court of the
District of Columbia to enjoin, abate, or prevent a drug-related nuisance.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this bill may be cited
as the "Drug-Related Nuisance Abatement Act of 1997".
Sec. 2. Definitions.
For the purpose of this act, the term
(1) "Adverse impact" means the presence of any one or more of the following
conditions:
(A) Diminished real property value which is related to the use, sale, or manufacture of
controlled substances or drug paraphernalia in and around the property;(B) Increased fear of residents to walk through or in public areas, including
sidewalks, streets, and parks, due to the use, sale, or manufacture of controlled
substances or drug paraphernalia, or violence stemming therefrom;(C) Increased volume of vehicular and pedestrian traffic to and from the property which
is related to the use, sale, or manufacture of controlled substances or drug paraphernalia
in and around the property;
(D) An increase in the number of ambulance or police calls to the property which are
related to the use, sale, or manufacture of controlled substances or drug paraphernalia,
or to violence stemming therefrom;(E) Bothersome solicitations or approaches by persons wishing to sell controlled
substances or drug paraphernalia on or near the property;(F) The display of dangerous weapons at or near the property;
(G) Investigative purchases of controlled substances or drug paraphernalia by
undercover law enforcement officers at or near the property;(H) Arrests of persons on or near the property for criminal conduct relating to the
use, sale, or manufacture of controlled substances or drug paraphernalia;(I) Search warrants served or executed at the property relating to the use, sale, or
manufacture of controlled substances or drug paraphernalia;(I) A substantial number of complaints made to law enforcement and other government
officials about alleged illegal activity associated with the use, sale, or manufacture of
controlled substances or drug paraphernalia in and around the property; or(K) The discharge of a firearm at the property.
(2) "Community-based organization" means any group, whether unincorporated or
incorporated, affiliated with or organized for the benefit of one or more communities or
neighborhoods, of defined geographic boundaries, containing the drug related nuisance, or
any group organized to benefit the quality of life in a residential area containing the
alleged drug-related nuisance.
(3) "Controlled substance" means any of the controlled substances as defined
in subsections (a) and (b) of Schedule I of Section 204 of the District of Columbia
Uniform Controlled Substances Act of 1981 (D.C. Law 4-29; D.C. Code §33-514(1),(2)).
(4) "Drug paraphernalia means drug paraphernalia as defined in Section 2 of the
Drug Paraphernalia Act of 1982 (D.C. Law 4-149; D.C. Code §33-601).
(5) "Drug-related nuisance" means
(A) Any real property, in whole or in part, used or intended to be used to facilitate
any violation of the District of Columbia Uniform Controlled Substances Act of 1981 (D.C.
Law 4-29; D.C. Code §33-514(1)); or(B) Any real property, in whole or in part, used, or intended to be used, to facilitate
the use, sale, distribution. possession, storage, transportation or manufacture of any
controlled substance or drug paraphernalia which has an adverse impact on the community.
(6) "Manufacturing" means the production, preparation, propagation,
compounding, conversion, or processing of a controlled substance, either directly or
indirectly, by extraction from substances of natural origin or independent means of
chemical synthesis, including the packaging or repackaging of the drug or labeling or
relabeling of its container.
(7) "Owner" means the individual, corporation, partnership, trust
association, joint venture, or any other business entity. and the respective agents of
such individuals or entities, in whom is vested all or any part of the title to the
property alleged to be a drug-related nuisance.
(8) "Property" means tangible real property, or any interest in real
property, including an interest in any leasehold, license or real estate, such as any
house, apartment building, condominium, cooperative. office building, storage, restaurant,
tavern, nightclub or warehouse, and the land extending to the boundaries of the lot upon
which such structure is situated, and anything growing on, affixed to, or found on the
land.
(9) "Tenant" means a person who resides in or occupies real property
belonging to another person pursuant to a lease agreement, whether written or oral, or
pursuant to a tenancy at will or sufferance at common law.
Sec. 3. Action to abate.
(a) Wherever there is reason to believe that a drug-related nuisance exists, the United
States Attorney for the District of Columbia. the Corporation Counsel for the District of
Columbia, or any community-based organization may file an action in the Superior Court of
the District of Columbia to abate, enjoin. and prevent the drug-related nuisance.
(b) Such actions shall be commenced by the filing of a complaint alleging the facts
constituting the drug-related nuisance.
(c) Such actions shall be in equity and shall be tried without a jury.
Sec. 4. Complaint.
(a) The complaint or an affidavit it attached thereto shall describe the adverse impact
of the drug-related nuisance upon the surrounding community.
(b) The complaint shall contain a description of attempts made by the plaintiff to
notify the owner of the property on which the drug-related nuisance is situated about the
drug related nuisance and the resulting adverse impact. No complaint shall be filed unless
notice to the owner of the property on which the alleged drug-related nuisance is situated
within 14 days prior to the filing of the complaint.
(c) When an action is brought pursuant to this act by a community-based organization,
the complaint shall be supported by at least 2 persons residing, either as a tenant or
otherwise, or owning real property within 3000 feet of the property alleged to be a
drug-related nuisance. Said support shall be in the form of an affidavit testifying to the
fact of the affiant’s residence within 3000 feet of the alleged drug-related nuisance, and
that the affiants have witnessed the activities alleged to constitute a drug-related
nuisance, and are aware of an adverse impact on the community stemming from the alleged
drug-related nuisance.
(d) A copy of the summons and complaint shall be served upon the defendant at least 5
business days prior to the first hearing on the action. Service shall be made in
accordance with the rules of the District of Columbia Superior Court. Service also may be
made by posting a conspicuous notice at the property indicating the nature of the
proceedings, and the time and place of the hearing. If service is made by posting at the
property, a copy of the summons and complaint shall be sent, by registered or certified
mail, return receipt requested, to the last known mailing address, if any, of the
defendant If the defendant is not the owner of the property, a copy of the summons and
complaint shall be mailed to the last known mailing address of the owner.
Sec. 5. Preliminary injunction.
(a) Upon the filing of a complaint to abate the drug-related nuisance, the plaintiff
shall be entitled to a hearing on any motion for a preliminary injunction within 10
business days of the filing of such action. If it shall be made to appear, by affidavit or
otherwise, that there is a substantial likelihood that the plaintiff will be able to prove
at trial that a drug-related nuisance exists, the court shall enter an order preliminarily
enjoining the drug-related nuisance and granting such other relief as the court may deem
appropriate. including those remedies provided in subsection 13 of this act. A plaintiff
need not prove irreparable harm to obtain a preliminary injunction. This act presumes
irrebuttably that the harm to the plaintiff caused by a drug-related nuisance outweighs
any burden to the defendant of a preliminary injunction. Where appropriate, the court
shall order a trial of the action on the merits to be advanced and consolidated with the
hearing on the motion for preliminary injunction.
(b) This section shall not be construed to prohibit the application for or the granting
of a temporary restraining order, or other equitable relief otherwise provided by law.
Sec. 6. Restraining order
(a) The court, upon the application of the plaintiff, may issue ex parse a
restraining order preventing the defendant and all other persons from removing, or in any
manner interfering with, the personal property and contents of the place where the
drug-related nuisance is alleged to exist, until a decision of the court granting or
refusing to grant such a temporary injunction, or until further order of the court.
(b) The restraining order may be served by handing it to or leaving a copy of such
order with any person appearing to reside there, or by posting a copy in a conspicuous
place at or upon one or more of the principal entrances to such place, or by both delivery
and posting.
(c) The officer serving such a restraining order shall attempt to make and return to
the court an inventory of the personal property and contents situated in, and apparently
used in, conducting or maintaining the drug-related nuisance. Any violation of such
restraining order shall be a contempt of court, and where such order is posted is removed
or mutilated while it remains in force, that is a contempt of court, provided that such
posted order contains notice to that effect.
Sec. 7. Protection of witness.
If proof of the existence of the drug-related nuisance depends, in whole or in part,
upon affidavits witnesses who are not law enforcement officers, the court in its
discretion may issue orders to protect those witnesses, including, but not limited to,
placing the complaint and supporting affidavits under seal.
Sec. 8. Conviction not required.
A previous conviction of the defendant, or any tenant or owner of the property, shall
not be required to demonstrate a drug-related nuisance.
Sec. 9. Security.
No security bond shall be required to issue a preliminary injunction or temporary
restraining order sought by the United States Attorney for the District of Columbia or by
the Corporation Counsel. Otherwise, at the court’s discretion, a security bond may be
required to issue a preliminary injunction or temporary restraining order. The court shall
not require a security bond in excess of $1000.
Sec. 10. Burden of proof.
The plaintiff must establish that a drug-related nuisance exists by the preponderance
of the evidence. The plaintiff need not establish that the defendant knew, or should have
known, of the drug- related nuisance to obtain relief under section 12 of this act.
Sec. 11. Evidence of reputation.
In an action brought under this act, evidence of general reputation of the defendant’s
property or tenants is admissible for the purpose of proving a drug-related nuisance, and
for the purpose of proving the knowledge of the defendant of the nuisance.
Sec. 12. Relief.
(a) If the existence of a drug-related nuisance is found, the court shall enter an
order permanently enjoining, abating, and preventing the continuance or recurrence of the
nuisance. In order to effectuate fully the equitable remedy of abatement, such order may
include damages as provided in section 13 of this act. The court may grant declaratory
relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes
of the judgment and enforce the same. The court may retain jurisdiction of the case for
the purpose of enforcing its orders. A drug-related nuisance is not a nuisance per se requiring
abatement as provided under subsection (b) of this section:
(b) Any order issued under this section may include the following relief:
(1) Assessment of reasonable attorney fees and costs to the prevailing party;
(2) Order the owner to make repairs upon the property;
(3) Order the owner to make reasonable expenditures upon the property, including the
installation of secure locks, hiring private security personnel, increasing lighting in
common areas, and using videotaped surveillance of the property and adjacent alleys,
sidewalks, or parking lots;(4) Order all rental income from the property to be placed in an escrow account with
the court for up to 90 days or until the drug-related nuisance is abated;(5) Order all rental income for the property transferred to a trustee, to be appointed
by the court, who shall be empowered to use the rental income to make reasonable
expenditures related to the property in order to abate the drug-related nuisance; and(6) Order the property vacated, sealed, or demolished.
(c) In fashioning an order under this section, the court shall consider, without
limitation, the following factors:
(1) The extent and duration of the drug-related nuisance and the severity of the
adverse impact on the community;(2) The number of people residing at the property;
(3) the proximity of the property to other residential structures;
(4) The number of times the property has been cited for housing code or health code
violations;(5) The number of times the owner or tenant has been notified of drug-related problems
at the property;(6) Prior efforts or lack of efforts by the defendant to abate the drug-related
nuisance;(7) The owner’s or tenant’s involvement in the drug-related nuisance;
(8) The costs incurred by the jurisdiction or by the community-based organization in
investigating, correcting, or attempting to correct the drug-related nuisance;(9) Whether the drug-related nuisance was continuous or recurring;
(10) The economic or financial benefit accruing or likely to accrue to the defendant as
a result of the conditions constituting the drug-related nuisance; or(l l) Any other factor the court deems relevant.
(d) In making an order under this section, the court shall not consider the lack of
action by other property owners or tenants to abate the drug-related nuisance.
(e) If the property is ordered sealed. the court shall appoint a receiver to sell all
of the furnishings and fixtures located on the property and place the funds from the sale
in an escrow account to be used to satisfy the judgment.
Sec. 13. Damages.
In addition to equitable relief granted under this act, the plaintiff may request, and
the court in its discretion may order, damages in the amount of $1000 per day for each day
the drug-related nuisance is unabated since the date the defendant first received notice
of the drug related nuisance as provided in subsection 4(d). or knew or should have known
of the existence of the drug-related nuisance, whichever is earlier. Such damages shall be
payable to the plaintiff, or, in the case of an action by the United States Attorney for
the District of Columbia or by the Corporation Counsel, the general fund of the District
of Columbia No other damages are recoverable under this Act.
Sec. 14. Violation of injunction or abatement order.
(a) A violation of any court order issued under this act is punishable as a contempt of
court.
(b) Upon finding that a defendant has violated willfully an order issued under this
act, the court may issue any additional orders necessary to abate the drug-related
nuisance.
(c) Upon motion. the court may vacate an order or judgment of abatement if the owner of
the property satisfies the court that the drug-related nuisance has been abated for the 90
days prior to the motion, corrects all housing code and health code violations on the
property, and deposits a bond in an amount to be determined by the court, which shall be
in an amount reasonably calculated to ensure continued abatement of the nuisance. Any bond
posted under this subsection shall be forfeited immediately if the drug-related nuisance
recurs during the following 2-year period. At the close of 2 years following the date on
which an order under this subsection is entered, the bond shall be returned.
Sec. 15. Interpretation.
This act shall be construed liberally in accordance with its remedial purposes. The
definition of a drug-related nuisance shall not be subject to any restrictions or
limitations upon public or private nuisance actions at common law. This action is civil in
nature and none of its provisions should be interpreted as punishment.
Sec. 16. Severability.
If any section, sentence, clause or phrase of this act is held invalid or
unconstitutional by any court of competent jurisdiction, than said ruling shall not affect
the validity of the remaining portions of this act
Sec. 17. Availability of other remedies.
The provisions of this act shall not limit the availability of other remedies under the
law or other equitable relief whether or not an adequate remedy exists at law.
Sec. 18. Fiscal impact statement.
The Council adopts the fiscal impact statement in the Committee Report as the fiscal
impact statement required by section 602(c)(3) of the District of Columbia Self-Government
and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 813; D.C. Code
§1233(c)(3)).
Sec. 19. Effective Date.
This act shall take effect following approval by the Mayor (or in the event of veto by
the Mayor, action by the Council to override the veto), approval by the Financial
Responsibility and Management Assistance Authority as provided in section 203(a) of the
District of Columbia Financial Responsibility and Management Assistance Act of 1995,
approved April 17, 1995 (109 Stat. 116; D.C. Code §47-392.3(a)), a 30-day period
of Congressional review as provided in section 602(c)(1) of the District of Columbia Home
Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code §1-233(c)(1)), and
publication in the District of Columbia Register.