BILL REQ. #:  H-4612.2 

READ FIRST TIME 02/03/10.   

     AN ACT Relating to abatement of nuisances involving criminal street gang activity; adding a new chapter to Title 7 RCW; and prescribing penalties.

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

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 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.

NEW SECTION.  Sec. 2   Every building or unit within a building used for the purpose of aiding, promoting, or conducting criminal street gang activity is a nuisance that must be enjoined, abated, and prevented, whether it is a public or private nuisance. In a multiunit building, only the offending unit may be declared a nuisance, and only the offending unit must 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. 3   (1) 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 under this chapter by filing a complaint in the county superior court in which the property is located alleging the facts constituting the nuisance. The action may also be brought by any public agency.
     (2) Any complaint filed under this chapter must be verified or accompanied by an 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 must 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.
     (3) The affidavit filed under subsection (2) of this section must describe in detail the adverse impact associated with the property on the surrounding neighborhood. For the purposes of this chapter, "adverse impact" includes, but is not limited to, the following: Seizure of property pursuant to search warrants issued as a result of criminal street gang activity; recent arrests of persons who frequent the property for purposes of criminal street gang 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 street gang activity; and recent increases in arrests for weapons violations of persons who frequent the property.
     (4) Upon receipt of the complaint filed under this chapter, the court shall grant a hearing as soon as practicable as required by section 6 of this act.
     (5) Upon request by a complainant who has filed or intends to file an action under this chapter and to the extent permitted under chapter 42.56 RCW, a law enforcement agency shall provide the complainant with any relevant information in the agency's possession concerning the property that is the subject of the complainant's action.

NEW SECTION.  Sec. 4   (1) 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 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 may 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 8 of this act.
     (2) The restraining order or preliminary injunction issued under subsection (1) of this section must be served on the occupant and the owner personally or leaving a copy with any person of suitable age and discretion who is in charge of the property or 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 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 make and return to the 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   Before issuing a temporary restraining order or preliminary injunction under this chapter, a court may require the applicant to give a bond or security, in the sum that the court deems proper, for the payment of costs and damages that may be incurred or suffered by any party who is found to have been wrongfully restrained or enjoined. A bond or security is not 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 has 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   (1) If the complaint under this chapter is filed by a citizen, the complaint may 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 must set forth the reasons why the action should be dismissed. The case may 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 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, must 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 continued at the request of any defendant, all temporary orders and injunctions must be extended upon the showing of good cause.

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 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 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 immediately make reasonable efforts to 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 with 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 may 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 must 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 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) 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 occupant and the owner their 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. 10   Any final order of abatement issued under this chapter must:
     (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 must remain in the custody of the court.

NEW SECTION.  Sec. 11   (1) 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 must be applied as follows:
     (a) First, to the fees and costs of the removal and sale;
     (b) Second, to the allowances and costs of closing and keeping closed the building or unit within a building;
     (c) Third, to the payment of the plaintiff's costs in the action; and
     (d) Fourth, the balance, if any, to the owner of the forfeited property.
     (2)(a) Except as provided in (b) of this subsection, 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 must be sold under execution issued upon the order of the court, and the proceeds of the sale must be applied in a like manner.
     (b) A building or unit within a building may not be sold under this section unless the court finds and concludes by clear and convincing evidence that the owner of the building or unit within a building had knowledge or notice of the existence of the nuisance. However, this subsection may 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 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. 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.