BILL REQ. #:  H-4774.3 

READ FIRST TIME 02/02/10.   

     AN ACT Relating to abatement of nuisances involving criminal street gang activity; adding a new chapter to Title 9 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   Notwithstanding the provisions of any other law or ordinance, the legislative authority of a county or municipality may, by ordinance, to protect the public health, safety, and welfare of the residents of the county or municipality, adopt procedures pursuant to which a public agency may file a nuisance action in superior court to seek any or all of the forms of relief detailed in this chapter. The legislative authority of a county or municipality may further authorize and adopt rules providing for a nuisance action instituted by a person who resides, works in, or owns property in the same multifamily building or apartment complex or within a one-block radius of the property where the nuisance is alleged to exist. A nuisance action instituted by a person may only be brought against a building or a unit within a building as defined in section 2 of this act. A nuisance action authorized under this section is subject to the provisions set forth in sections 2 through 14 of this act.

NEW SECTION.  Sec. 2   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 separate part or portion thereof, whether permanent or not, or the ground itself.
     (2) "Criminal street gang activity" means a pattern of criminal street gang activity as defined in RCW 9.94A.030.
     (3) "Criminal street gang associate or member" and "criminal street gang-related offense" have the meaning prescribed in RCW 9.94A.030.
     (4) "Public agency" includes a county, city, town, municipal corporation, and an office, department, division, or agency thereof.

NEW SECTION.  Sec. 3   An ordinance may authorize a nuisance action providing for a restraining order, preliminary injunction, or permanent injunction against a specific criminal street gang associate or member to enjoin his or her activity that is associated with any criminal street gang activity or any criminal street gang-related offense and that is occurring within the county or municipality.

NEW SECTION.  Sec. 4   An ordinance may authorize a nuisance action providing for a restraining order, preliminary injunction, or order of abatement against any building or unit within a building used for the purpose of aiding, promoting, or conducting criminal street gang activity. 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 applies 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. 5   (1) Upon application for a temporary restraining order or preliminary injunction, the court may, upon a showing of good cause, (a) issue an ex parte restraining order or preliminary injunction, preventing the defendant and all other persons, other than the legal 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 (b) grant preliminary equitable relief as is necessary to prevent the continuance or recurrence of the nuisance pending final resolution of the matter on the merits. Such ex parte restraining order or preliminary injunction may remain in effect no more than fifteen days from the date of issuance, except as provided in section 7 of this act.
     (2) The restraining order or preliminary injunction issued under subsection (1) of this section in an action under section 3 of this act must be served on the defendant personally, or by leaving a copy at the dwelling house or usual place of abode of the defendant with any person of suitable age and discretion residing therein. 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 at the dwelling house or usual place of abode of the defendant and thereafter mailing a copy by registered mail to the defendant at his or her usual mailing address.
     (3) The restraining order or preliminary injunction issued under subsection (1) of this section in an action under section 4 of this act must be served on the occupant and the owner of the building or unit personally, or by leaving a copy with any person of suitable age and discretion who is in charge of the property or who is residing at the property. 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 on the property and thereafter mailing a copy by registered mail to the person to be served at his or her usual mailing address. Additionally, a copy of the restraining order or preliminary injunction must be sent by registered mail to the owner of the building.

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, actions to forfeit vehicles used in violation of the uniform controlled substances act, and any other case determined to be a priority by statute or by the court.

NEW SECTION.  Sec. 7   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 defendant at least six business days before the hearing, and as provided for in section 5 of this act. If the hearing is then continued at the request of any defendant, all temporary orders and injunctions shall be extended as a matter of course.

NEW SECTION.  Sec. 8   (1) Except as provided in subsection (2) of this section, (a) if the existence of the nuisance under section 3 of this act is established in the action, a permanent injunction must be entered as part of the final judgment in the case, and (b) if the existence of the nuisance under section 4 of this act is established in the action, an order of abatement must be entered as part of the final judgment in the case. The plaintiff's costs in the action, including those of abatement, are a lien upon the building or unit within a building to the extent of the owner's interest. The lien must be filed as a judgment summary stating the name of the owner and the legal description of the real property. The lien must be recorded and enforced as a judgment summary.
     (2) If the court finds and concludes that 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 immediately abate any such nuisance that may exist at the building or unit within a building and prevent it from being a nuisance for a period of one year thereafter, the court shall, if satisfied with the owner's good faith, order the building or unit within a building to be delivered to the owner, and no order of abatement shall be entered. If an order of abatement has been entered and the owner subsequently meets the requirements of this subsection, the order of abatement shall be canceled.
     (3) For the purposes of determining whether the 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 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 street gang activity;
     (b) Placed restrictions on the rental agreement or lease;
     (c) Adopted feasible measures on the property to try to prevent the criminal street gang activity;
     (d) Cooperated with law enforcement to attempt to stop the criminal street gang activity; and
     (e) Made other efforts the court finds relevant.
     (4) In an action filed under section 4 of this act, if the court finds there is insufficient evidence to establish the existence of the nuisance, the court may order the person who filed the complaint to pay the owner reasonable attorneys' 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 each.

NEW SECTION.  Sec. 9   Any final order of abatement issued under this chapter must:
     (1) If the building or unit is not subject to the interests of 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;
     (2) 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; and
     (3) Authorize a law enforcement officer to enter the building or unit within a building to create an inventory of the personal property and contents located in the building or unit within a building for submission to the court.

NEW SECTION.  Sec. 10   An intentional violation of a restraining order, preliminary injunction, permanent injunction, or order of abatement in an action brought by a public agency under this chapter is a misdemeanor and shall be punishable as such. If the violation also constitutes a criminal offense under another provision of the law, the violation may be prosecuted pursuant to this section or the other provision of law, or both.

NEW SECTION.  Sec. 11   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. The lien must be filed as a judgment summary stating the name of the owner and the legal description of the real property. The lien must be recorded and enforced as a judgment summary.

NEW SECTION.  Sec. 12   An action may not be brought pursuant to this section against any governmental entity or any charitable or nonprofit organization that is conducting, with ordinary care and skill, activities relating to prevention or education concerning criminal street gangs.

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 9 RCW.