5695-S AMH JUDI H2715.1

SSB 5695 - H COMM AMD

By Committee on Judiciary

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Building" includes, but is not limited to, any structure or any separate part or portion thereof, whether permanent or not, or the ground itself.

(2) "Criminal activity" means a pattern of criminal activity including felonies and misdemeanors.

NEW SECTION. Sec. 2. Every building or unit within a building used for the purpose of aiding, promoting, or conducting criminal activity is a nuisance which shall be enjoined, abated, and prevented, whether it is a public or private nuisance. In a multiunit building only the offending unit shall be declared a nuisance, and only the offending unit shall be enjoined, abated, and prevented. Nothing in this chapter shall apply to property used for the purpose of, or activity involved in, providing health services, food and financial assistance, treatment, counseling, training, religious services, education, civic involvement, or any social service or charitable assistance.

NEW SECTION. Sec. 3. Any person who resides, works in, or owns property in the same multifamily building, apartment complex, or within a one-block radius of the property where the nuisance is alleged to exist may bring an action as provided for in section 2 of this act by filing a complaint with a law enforcement agency in the county in which the property is located. Such action shall be commenced by the filing of a complaint alleging the facts constituting the nuisance. Such action may also be commenced by any public agency.

Any complaint filed under this chapter shall be verified or accompanied by affidavit. A copy of the complaint and affidavit must be served on the occupant and the owner of the property according to the rules of civil procedure. In addition to showing that the occupant and the owner or his or her agent has had an opportunity to abate the nuisance, the affidavit shall contain a description of all attempts by the applicant to notify and locate the occupant and the owner of the property or the owner's agent, including at least one attempt to notify the occupant and the owner or owner's agent by registered mail.

In addition, the affidavit shall describe in detail the adverse impact associated with the property on the surrounding neighborhood. "Adverse impact" includes, but is not limited to, the following: Any recent search warrants served on the property where evidence of criminal activity was seized; recent arrests of persons who frequent the property for purposes of criminal activity; a recent increase in the number of complaints made to law enforcement of illegal activity associated with the property which result in arrests for criminal activity; and recent increases in arrests for weapons violations of persons who frequent the property.

Upon receipt of the complaint, the law enforcement agency shall conduct an investigation into the allegations and, if probable cause is found that a violation of this chapter is occurring, the complaint and results of the investigation shall be filed in the county superior court. After receiving the complaint, the court shall grant a hearing as soon as practicable as required by section 6 of this act.

NEW SECTION. Sec. 4. Upon application for a temporary restraining order or preliminary injunction, the court may, upon a showing of good cause, issue an ex parte restraining order or preliminary injunction, preventing the occupant and all other persons, other than the owner, from removing or in any manner interfering with the personal property and contents of the place where the nuisance is alleged to exist and may grant such preliminary equitable relief as is necessary to prevent the continuance or recurrence of the nuisance pending final resolution of the matter on the merits. However, pending the decision, the stock in trade may not be so restrained, but an inventory and full accounting of all business transactions may be required. Such ex parte restraining order or preliminary injunction shall remain in effect no more than fifteen days from the date of issuance, except as provided in section 8 of this act.

The restraining order or preliminary injunction shall be served on the occupant and the owner personally or by handing to and leaving a copy with any person of suitable age and discretion who is in charge of the place or residing in the place. Where such a person cannot with reasonable diligence be served as described, the restraining order or preliminary injunction may be served by posting a copy in a conspicuous place and by thereafter mailing a copy by registered mail to the person to be served at his or her usual mailing address. The officer serving the order or injunction shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining the nuisance. Additionally a copy of the restraining order or preliminary injunction must be sent by registered mail to the occupant and the owner of the building.

NEW SECTION. Sec. 5. A temporary restraining order or preliminary injunction shall not issue under this chapter except upon the giving of a bond or security by the applicant, in the sum that the court deems proper, but not less than one thousand dollars, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully restrained or enjoined. A bond or security shall not be required of the state of Washington, municipal corporations, or political subdivisions of the state of Washington.

NEW SECTION. Sec. 6. An action under this chapter shall have precedence over all other actions, except prior matters of the same character, actions under chapter 7.43 RCW, criminal proceedings, election contests, hearings on temporary restraining orders and injunctions, child dependency hearings, foreclosures by a legal owner, and actions to forfeit vehicles used in violation of the uniform controlled substances act.

NEW SECTION. Sec. 7. (1) If the complaint under this chapter is filed by a citizen, the complaint shall not be dismissed by the citizen for want of prosecution except upon a sworn statement made by the citizen and the citizen's attorney, if the citizen has one. The statement shall set forth the reasons why the action should be dismissed. The case shall only be dismissed if so ordered by the court.

(2) In case of failure to prosecute the action with reasonable diligence, or at the request of the plaintiff, the court, in its discretion, may substitute any other citizen consenting to be substituted for the plaintiff.

NEW SECTION. Sec. 8. A copy of the complaint, together with a notice of the time and place of the hearing of the action shall be served upon the occupant and the owner at least six business days before the hearing and as provided for in section 4 of this act. If the hearing is then continued at the request of any defendant, all temporary orders and injunctions shall be extended upon good cause shown.

NEW SECTION. Sec. 9. (1) Except as provided in subsection (2) of this section, if the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the final judgment in the case. Plaintiff's costs in the action, including those of abatement, are a lien upon the building or unit within a building, subject to the lien of the legal owner. The lien is enforceable and collectible by execution issued by order of the court.

(2) If the court finds and concludes that the occupant or the owner of the building or unit within a building:

(a) Had no knowledge of the existence of the nuisance or has been making reasonable efforts to abate the nuisance;

(b) Has not been guilty of any contempt of court in the proceedings; and

(c) Will make reasonable efforts to immediately abate any such nuisance that may exist at the building or unit within a building and prevent it from being a nuisance within a period of one year thereafter, the court shall, if satisfied of the occupant's or the owner's good faith, order the building or unit within a building to be delivered to the occupant or the owner, and no order of abatement shall be entered. If an order of abatement has been entered and the occupant or the owner subsequently meets the requirements of this subsection, the order of abatement shall be canceled.

(3) For the purposes of determining whether the occupant or owner of the building or unit within a building made reasonable efforts to abate the nuisance, the court shall consider such factors as whether the occupant or owner:

(a) Terminated or attempted to terminate the tenancy or lease of a tenant or leaseholder where the nuisance is occurring if the tenant or leaseholder is involved in the criminal activity;

(b) Placed restrictions on the rental agreement or lease;

(d) Cooperated with law enforcement to attempt to stop the criminal activity; and

(e) Any other factors the court finds relevant.

(4) If the court finds there is insufficient evidence to establish the existence of the nuisance, the court shall order the person to pay the occupant and the owner their reasonable attorney fees and costs to defend the action, any loss of rent or revenue experienced as a result of the action, restraining order, or preliminary injunction, and damages up to five hundred dollars to each.

NEW SECTION. Sec. 10. Any final order of abatement issued under this chapter shall:

(1) Direct the removal of all personal property subject to seizure and forfeiture under RCW 69.50.505 or other law from the building or unit within a building, and direct the commencement of proceedings to forfeit the property under the forfeiture provisions of RCW 69.50.505 or other law;

(2) If the building or unit is not subject to the interests of innocent occupants or innocent legal owners, provide for the immediate closure of the building or unit within a building against its use for any purpose, and for keeping it closed for a period of one year unless released sooner as provided in this chapter; and

(3) State that while the order of abatement remains in effect the building or unit within a building shall remain in the custody of the court.

NEW SECTION. Sec. 11. In all actions brought under this chapter, the proceeds and all moneys forfeited under the forfeiture provisions of RCW 69.50.505 or other law shall be applied as follows:

(1) First, to the fees and costs of the removal and sale;

(2) Second, to the allowances and costs of closing and keeping closed the building or unit within a building;

(3) Third, to the payment of the plaintiff's costs in the action; and

(4) Fourth, the balance, if any, to the owner of the forfeited property.

If the proceeds of the sale of items subject to seizure and forfeiture do not fully discharge all of the costs, fees, and allowances, the building or unit within a building shall then also be sold under execution issued upon the order of the court, and the proceeds of the sale shall be applied in a like manner.

A building or unit within a building shall not be sold under this section unless the court finds and concludes by clear and convincing evidence that the occupant and the owner of the building or unit within a building had actual or constructive knowledge or notice of the existence of the nuisance. However, this shall not be construed as limiting or prohibiting the entry of any final order of abatement as provided in this chapter.

NEW SECTION. Sec. 12. Whenever the owner of a building or unit within a building upon which the act or acts constituting the contempt have been committed, or the owner of any interest in the building or unit has been found in contempt of court, and fined in any proceedings under this chapter, the fine is a lien upon the building or unit within a building to the extent of the owner's interest, subject to the lien of the legal owner. The lien is enforceable and collectible by execution issued by order of the court.

NEW SECTION. Sec. 13. The abatement of a nuisance under this chapter does not prejudice the right of any person to recover damages for its past existence.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 15. Sections 1 through 14 of this act constitute a new chapter in Title 7 RCW."

EFFECT: (1) Applies the nuisance action only to buildings or units that are used for the purpose of aiding, promoting, or conducting criminal activity (as opposed to those buildings and any building or unit where such acts take place);

(2) Excludes property used for the purpose of providing health services, food and financial assistance, treatment, counseling, training, religious services, education, civic involvement, or any social service or charitable assistance;

(3) Clarifies who may bring an action (person who resides, works in, or owns property in the same multifamily building, apartment complex, or within a one-block radius of the nuisance);

(4) Requires notice to be given to both the occupant and the owner, requires notice to be served according to the rules of civil procedure, and requires notice to be served at least 6 days before the hearing (instead of 3 days);

(5) Removes the consideration of any "recent increase graffiti and garbage" from the list of what can be an "adverse impact";

(6) Requires the court to grant a hearing "as soon as practicable" (instead of within 5 business days or 7 calendar days);

(7) Makes an ex parte temporary restraining order or preliminary injunction effective for no more than 15 days;

(8) Adds child dependency cases to the list of actions that take precedence over nuisance actions for the purposes of a court granting hearings;

(9) Removes provisions making violations of an order or injunction contempt of court;

(10) Requires a court to award reasonable attorney fees, costs, any loss of rent or revenue, and up to $500 damages each to the occupant and the owner if the court finds there is insufficient evidence of a nuisance.

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