PRINTER'S NO. 3534
No. 2616 Session of 1996
INTRODUCED BY BROWNE, MARKOSEK, BAKER, FEESE, DENT, RUBLEY,
ARGALL, GEIST, FAJT, STURLA, HARHART, WOGAN, FAIRCHILD,
FICHTER, ADOLPH, SERAFINI, ARMSTRONG, BELFANTI, TRELLO,
SEMMEL, YOUNGBLOOD, FARGO, E. Z. TAYLOR, PISTELLA, NYCE,
HABAY, SHEEHAN, TRUE, STISH, DiGIROLAMO, CLARK, HENNESSEY,
HASTE, RAMOS AND DeLUCA, MAY 13, 1996
REFERRED TO COMMITTEE ON URBAN AFFAIRS, MAY 13, 1996
AN ACT
1 Providing for drug nuisance abatement; providing for the nature
2 of action, jurisdiction, parties, notice, the issuance of
3 orders, injunction and other relief, for civil and criminal
4 penalties, settlements, liens, costs, contempt, the release
5 of premises, evidence, liability and for civil actions and
6 immunities; and establishing the Treatment for Displaced
7 Residents Fund.
8 The General Assembly finds as follows:
9 (1) Despite efforts by law enforcement, private and
10 commercial premises remain the sites of repeated drug
11 distribution violations. These locations attract criminals and
12 the violence and threat of violence associated with illicit drug
13 trade.
14 (2) The continued occurrence of criminal activities at these
15 locations is detrimental to the public health, safety and
16 welfare. Drug nuisances reduce property values, injure
17 legitimate businesses and commerce and erode the quality of life
18 for law-abiding persons working or residing in or near these
1 locations.
2 (3) Property owners, landlords, managers and operators have
3 an affirmative duty to take the actions necessary to prevent
4 drug violations from occurring on their properties and to abate
5 existing drug nuisances. These affirmative duties are no less
6 important than the duty to maintain properties in accordance
7 with applicable building, fire, zoning, safety and similar
8 codes, ordinances, rules and regulations designed to protect the
9 health, safety and welfare of residents, workers, invitees,
10 neighbors and other persons.
11 (4) The ongoing existence of a drug nuisance is detrimental
12 to the public interest and warrants prompt injunctive relief by
13 the courts. It is the express policy of this Commonwealth to
14 authorize and encourage courts to issue temporary restraining
15 orders or preliminary injunctions pursuant to the provisions of
16 this act upon a finding that a drug nuisance exists. It is not
17 necessary for any authorized plaintiff seeking temporary or
18 preliminary injunctive relief to establish any specific or
19 irreparable injury arising from the drug nuisance. The existence
20 of any remedy at law shall not prevent the granting of
21 injunctive relief pursuant to this act.
22 (5) The civil actions for injunctive relief, damages and
23 penalties authorized by this act are remedial rather than
24 punitive in nature. Penalties collected pursuant to section 501
25 are intended not to punish culpable defendants but rather to
26 compensate the community at large by providing funding for
27 additional treatment, neighborhood rehabilitation, drug
28 prevention and drug education costs. Damages awarded to
29 individual plaintiffs pursuant to section 512 are intended to
30 compensate the individuals for specific losses to their
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1 businesses or properties.
2 (6) It is the policy of this Commonwealth to ensure that the
3 civil actions and remedies authorized by this act be heard by
4 the courts on a priority basis to expeditiously identify and
5 abate drug nuisances.
6 (7) It is necessary to ensure the certain, expeditious and
7 uniform enforcement by the courts of the rights, duties and
8 remedies established in this act. Certainty, predictability and
9 uniformity in enforcement are essential to encourage property
10 owners, landlords, managers and operators to take affirmative
11 steps necessary to prevent their properties from first becoming
12 the sites of drug violations.
13 (8) The purpose of this act is to authorize temporary,
14 preliminary and permanent injunctive relief and other remedies
15 to abate drug nuisances. An additional purpose is to encourage
16 owners, landlords, operators and managers of buildings, places
17 or premises, hereinafter referred to as "premises" to take the
18 affirmative steps necessary to prevent drug violations on their
19 properties.
20 TABLE OF CONTENTS
21 Chapter 1. Preliminary Provisions
22 Section 101. Short title.
23 Section 102. Definitions.
24 Chapter 3. Abatement Procedure
25 Section 301. Nature of actions and jurisdiction.
26 Section 302. Standard of proof.
27 Section 303. Parties.
28 Section 304. Notice to interested parties.
29 Section 305. Substitution of plaintiff.
30 Section 306. Continuances.
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1 Section 307. Issuance of preliminary orders.
2 Section 308. Enforcement of preliminary orders.
3 Section 309. Notification and provision of treatment resources.
4 Section 310. Premises involving multiple residences or
5 businesses.
6 Section 311. Vacating or modifying closing order.
7 Section 312. Permanent injunction and other relief.
8 Section 313. Closure.
9 Chapter 5. Other Related Matters
10 Section 501. Penalties.
11 Section 502. Settlements.
12 Section 503. Recovery of costs.
13 Section 504. Liens.
14 Section 505. Contempt.
15 Section 506. Release of premises upon inspection or repair.
16 Section 507. Cumulative remedies.
17 Section 508. Admissibility of evidence.
18 Section 509. Relationship to criminal proceedings.
19 Section 510. Liability for damage to closed properties.
20 Section 511. Civil immunity.
21 Section 512. Civil action.
22 Section 513. Use of property for treatment and other purposes.
23 Chapter 11. Miscellaneous Provisions
24 Section 1101. Effective date.
25 The General Assembly of the Commonwealth of Pennsylvania
26 hereby enacts as follows:
27 CHAPTER 1
28 PRELIMINARY PROVISIONS
29 Section 101. Short title.
30 This act shall be known and may be cited as the Drug Nuisance
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1 Abatement Act.
2 Section 102. Definitions.
3 The following words and phrases when used in this act shall
4 have the meanings given to them in this section unless the
5 context clearly indicates otherwise:
6 "Controlled substance," "manufacture," "distribution," "sale"
7 and "possession with intent to sell or distribute." The terms
8 shall have the same meaning as those terms are used in the act
9 of April 14, 1972 (P.L.233, No.64), known as The Controlled
10 Substance, Drug, Device and Cosmetic Act.
11 "Drug distribution event." The unlawful manufacture,
12 distribution, sale or possession with intent to distribute, sell
13 or deliver a controlled substance or an unlawful attempt or
14 conspiracy to commit such act.
15 "Drug nuisance." A premises at which:
16 (1) the site was used or is being used in any way in
17 furtherance of or to promote or facilitate the commission of
18 any drug distribution event; or
19 (2) on two or more separate occasions within the period
20 of one year prior to the commencement of the civil action
21 under this act, two or more persons who did not reside in or
22 upon such site gathered for the principal purpose of
23 unlawfully ingesting, injecting, inhaling or otherwise using
24 a controlled substance, whether or not any such controlled
25 substance was unlawfully distributed or purchased at such
26 location.
27 "Model Expedited Eviction of Drug Traffickers Act." The act
28 of October 11, 1995 (1st Sp.Sess., P.L.1066, No.23).
29 "Neighborhood or community organization." A group, whether
30 or not incorporated, which consists of persons who reside or
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1 work at or in a building, complex of buildings, street, block or
2 neighborhood any part of which is located on or within 1,000
3 feet of the premises alleged to be a drug nuisance, which has
4 the purpose of benefiting the quality of life in its
5 neighborhood or community, including treatment programs.
6 "Owner." Any person in whom is vested the ownership and
7 title of property and who is the owner of record. The term shall
8 include any Federal, State, city or local governmental entity.
9 "Person." A natural person, corporation, association,
10 partnership, trustee, lessee, agent, assignee, enterprise,
11 governmental entity, and any other legal entity or group of
12 individuals associated in fact which is capable of holding a
13 legal or beneficial interest in property.
14 CHAPTER 3
15 ABATEMENT PROCEDURE
16 Section 301. Nature of actions and jurisdiction.
17 The causes of action established in this act are civil
18 actions to enjoin the commission of drug distribution events, to
19 close down and physically secure premises or portions thereof
20 which constitute drug nuisances and to otherwise abate such drug
21 nuisances, and to impose civil penalties. These actions shall be
22 brought in the court of common pleas, which shall have
23 jurisdiction to issue temporary, preliminary or permanent
24 injunctive or other equitable relief, whether or not an adequate
25 remedy exists at law.
26 Section 302. Standard of proof.
27 Except as may otherwise be expressly provided, the civil
28 causes of action established in this act shall be proved by a
29 preponderance of the evidence.
30 Section 303. Parties.
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1 (a) Who may bring actions.--A civil action for temporary,
2 preliminary or permanent injunctive relief or for penalties
3 pursuant to this act may be brought by:
4 (1) the solicitor for a county or a municipality
5 representing any State, county or municipal governing body
6 which has jurisdiction over the location at which the alleged
7 drug nuisance exists;
8 (2) the Attorney General and district attorney having
9 jurisdiction where the alleged drug nuisance exists;
10 (3) any neighborhood or community organization as
11 defined in this act; or
12 (4) any person who resides, is employed full-time or
13 part-time at the site of a business premises or owns or
14 operates a business premises on or within 1,000 feet of any
15 alleged drug nuisance.
16 (b) Defendants to the action.--A civil action pursuant to
17 this act shall be brought against the owner and may also be
18 brought against any person within the jurisdiction of the court
19 who is a landlord, tenant, manager, operator or supervisor of
20 any premises alleged to be a drug nuisance. In addition, the
21 court shall have in rem jurisdiction over the premises alleged
22 to be a drug nuisance, and the complaint initiating a civil
23 action pursuant to this act shall name as a defendant the
24 premises involved, describing it by block, lot number and street
25 address, or by such other means as are appropriate in the
26 circumstances.
27 (c) Protections against frivolous actions and sanctions for
28 unfounded or unwarranted pleadings, motions or other papers.--
29 (1) In any action brought pursuant to this act, every
30 pleading, motion and other paper of a party shall be signed
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1 by at least one attorney of record in the attorney's
2 individual name, whose address shall be stated. Such
3 signature of an attorney constitutes a certificate by the
4 signer that the signer has read the pleading, motion or other
5 paper; that to the best of the signer's knowledge,
6 information and belief formed after reasonable inquiry it is
7 well grounded in fact and is warranted by existing law or a
8 good faith argument for the extension, modification or
9 reversal of existing law and that it is not interposed for
10 any improper purpose, such as to harass or to cause
11 unnecessary delay or needless increase in the cost of
12 litigation.
13 (2) If a pleading, motion or other paper is not signed,
14 it shall be stricken unless it is signed promptly after the
15 omission is called to the attention of the pleader or movant.
16 (3) If a pleading, motion or other paper is signed in
17 violation of this subsection, the court, upon motion or upon
18 its own initiative, shall impose upon the person who signed
19 it or a represented party, or both, an appropriate sanction,
20 which may include an order to pay to the other party or
21 parties the amount of the reasonable expenses incurred
22 because of the filing of the pleading, motion or other paper,
23 including a reasonable attorney fee.
24 (d) No bond or security required.--No person or entity shall
25 be required to post any bond or security as a condition of
26 initiating or prosecuting any action brought pursuant to this
27 act.
28 (e) Ready availability of ownership information to potential
29 plaintiffs.--Any person or entity who upon an oath in writing
30 states the affiant is preparing to initiate an action pursuant
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1 to this act may request that the county prothonotary promptly
2 provide the name and address of all owners of the premises as
3 reflected upon the current county records, without charge.
4 (f) Presumption of ownership.--The person in whose name the
5 premises involved is recorded in the county prothonotary's
6 office shall be presumed to be the owner thereof.
7 (g) Presumption of agency.--Whenever there is evidence that
8 a person was the manager, operator or supervisor or was in any
9 other way in charge of the premises involved at the time a
10 conduct constituting the drug nuisance is alleged to have been
11 committed, such evidence shall be rebuttably presumptive that he
12 or she was an agent or employee of the owner, landlord or lessee
13 of the premises.
14 Section 304. Notice to interested parties.
15 (a) Notice to defendants.--A complaint initiating an action
16 pursuant to this act shall be personally served and notice to
17 all in personam defendants shall be provided in the same manner
18 as serving complaints in civil actions. After filing an
19 affidavit that personal service cannot be had after due
20 diligence on one or more in personam defendants within 20 days
21 after the filing of the complaint, the plaintiff may:
22 (1) cause a copy of the complaint to be mailed to the
23 defendant by certified mail, restricted delivery, return
24 receipt to the clerk of court requested, and
25 (2) cause a copy of the complaint to be affixed
26 conspicuously to the premises alleged to be a drug nuisance.
27 Service shall be deemed completed five days after filing with
28 the court proof of such mailing and an affidavit that a copy
29 of the complaint has been affixed to the premises.
30 (b) Notice to affected tenants, residents and guests.--All
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1 tenants or residents of any premises which is used in whole or
2 in part as a business, home, residence or dwelling, other than
3 transient guests of a guest house, hotel or motel, who may be
4 affected by any order issued pursuant to this act shall be
5 provided such reasonable notice as shall be ordered by the court
6 and shall be afforded opportunity to be heard at all hearings.
7 (c) Lis pendens.--Notice of lis pendens shall be filed
8 concurrently with the commencement of the action in the same
9 manner as is generally provided for by law or court rule.
10 Section 305. Substitution of plaintiff.
11 When a court determines in its discretion that the plaintiff
12 bringing an action pursuant to this act has failed to prosecute
13 the matter with reasonable diligence, the court may substitute
14 as plaintiff any person or entity that consents thereto,
15 provided that such person or entity would have been authorized
16 pursuant to this act to initiate the action.
17 Section 306. Continuances.
18 (a) General policy.--All actions for injunctive relief or
19 civil penalties brought pursuant to this act shall be heard by
20 the court on an expedited and priority basis.
21 (b) No continuances.--The court shall not grant a
22 continuance except for compelling and extraordinary reasons or
23 on the application of a criminal prosecuting agency for good
24 cause shown.
25 (c) Stay pending criminal proceedings.--The court shall not
26 stay the civil proceedings pending the disposition of any
27 related criminal proceeding except for compelling and
28 extraordinary reasons or except upon the application of a
29 criminal prosecuting agency for good cause shown.
30 (d) Dismissal of actions for want of prosecution.--The court
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1 shall not dismiss an action brought pursuant to this act for
2 want of prosecution unless the court is clearly convinced that
3 the interests of justice require such dismissal. In that event
4 and upon such a finding, the dismissal shall be without
5 prejudice to the right of the plaintiff or any other person or
6 entity authorized to bring an action pursuant to this act to
7 reinstitute the action.
8 Section 307. Issuance of preliminary orders.
9 (a) General rule.--Any person or entity authorized to bring
10 a civil action for injunctive relief pursuant to this act may
11 file a complaint seeking preliminary injunctive relief by
12 alleging that the premises constitutes 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 pursuant to section 304(a) not less than 5 days prior to the
17 hearing. In the event that service cannot be completed in time
18 to give the owners the minimum notice required by this
19 subsection, the court may set a new hearing date.
20 (b) Preliminary closing order.--If the court finds that a
21 substantial likelihood that the plaintiff by a preponderance of
22 the evidence will be able to establish at trial:
23 (1) that the premises constitutes a drug nuisance;
24 (2) that at least 30 days prior to the filing of the
25 complaint seeking preliminary injunctive relief, the owner or
26 the owner's agent had been notified by certified letter of
27 the drug nuisance; and
28 (3) that the public health, safety or welfare
29 immediately requires a preliminary closing order,
30 the court shall issue an order to close the premises involved or
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1 the portions appropriate in the circumstances. The order shall
2 direct actions necessary to physically secure the premises, or
3 appropriate portions thereof, against use for any purpose. The
4 preliminary closing order shall also restrain the defendant and
5 all persons from removing or in any manner interfering with the
6 furniture, fixtures and movable or personal property located on
7 or within the premises constituting the drug nuisance.
8 (c) Other preliminary relief.--If the court finds that the
9 premises constitutes a drug nuisance but that immediate closing
10 of the premises is not required under subsection (b), the court
11 may enjoin the drug nuisance and issue an order restraining the
12 defendants and all other persons conducting, maintaining,
13 aiding, abetting or permitting drug distribution events
14 constituting the drug nuisance. Plaintiffs need not show that
15 they have no adequate remedy at law or will suffer irreparable
16 harm nor any other common law element applicable to a
17 preliminary injunction to obtain a preliminary closing order.
18 Additionally, the court may issue an order appointing a
19 temporary receiver to manage or operate the premises. A
20 temporary receiver shall have such powers and duties
21 specifically authorized pursuant to section 312(f).
22 (d) Admissible evidence.--In determining whether the public
23 health, safety or welfare immediately requires a preliminary
24 closing order, the court shall consider any relevant evidence
25 presented concerning any attendant circumstances, including, but
26 not limited to, whether the alleged drug distribution events or
27 related activities involve the use or threat of violence at or
28 near the site alleged to be a drug nuisance or whether the
29 alleged drug distribution events in any way involve distribution
30 or sale of a controlled substance by or to a juvenile or whether
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1 the site alleged to be a drug nuisance is located within a drug-
2 free zone within the meaning of 18 Pa.C.S. § 6314 (relating to
3 sentencing and penalties for trafficking drugs to minors).
4 Section 308. Enforcement of preliminary orders.
5 (a) Entities enforcing orders.--Upon order of the court,
6 preliminary restraining and closing orders shall be enforced by
7 the sheriff, local police department, or, if no local police are
8 available, then by the Pennsylvania State Police.
9 (b) Inventory of personal property.--The officers serving a
10 temporary closing order or a temporary restraining order shall
11 file with the court an inventory of the personal property
12 situated in or on the premises closed and shall be allowed to
13 enter the premises to make the inventory. The inventory shall
14 provide an accurate representation of the personal property
15 subject to such inventory, including, but not limited to,
16 photographing of furniture, fixtures and other personal or
17 movable property.
18 (c) Vacation of premises.--The officers serving a
19 preliminary closing order shall, upon service of the order,
20 demand all persons present in the premises closed to vacate such
21 premises, or portion thereof, forthwith unless the court orders
22 otherwise. The premises or portion thereof shall be securely
23 locked and all keys shall be held by the agency closing the
24 premises.
25 (d) Posting of court order.--Upon service of a preliminary
26 closing order or a preliminary restraining order, the officer
27 shall post a copy thereof in a conspicuous place or upon one or
28 more of the principal doors at entrances of the premises. In
29 addition, where a preliminary closing order has been granted,
30 the officers shall affix, in a conspicuous place or upon one or
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1 more of the principal entrances of such premises, a printed
2 notice that the entire premises or portion thereof have been
3 closed by court order, which notice shall contain the legend
4 "Closed by Court Order" in block lettering of sufficient size to
5 be observed by anyone intending or likely to enter the premises.
6 The printed notice shall also include the date of the order, the
7 court which issued the order and the name of the office or
8 agency posting the notice. In addition, where a preliminary
9 restraining order has been granted, the officer shall affix, in
10 the same manner, a notice similar to the notice provided for in
11 relation to a preliminary closing order except that the notice
12 shall state that certain activity is prohibited by court order
13 and that removal of furniture, fixtures or other personal or
14 movable property is prohibited by court order.
15 (e) Mutilation or removal of posted court order.--Any person
16 who without lawful authority mutilates or removes any order or
17 notice posted in accordance with the provisions of subsection
18 (d) commits a misdemeanor.
19 (f) Violation of court order.--Any person who knowingly or
20 purposely violates any preliminary restraining order or closing
21 order issued pursuant to this act shall be subject to civil
22 contempt as well as punishment for criminal contempt pursuant to
23 18 Pa.C.S. §§ 4955 (relating to violation of orders) and 5101
24 (relating to obstructing administration of law or other
25 governmental function).
26 Section 309. Notification and provision of treatment resources.
27 (a) Notification to persons present.--The officers serving a
28 preliminary closing order as provided in section 308(c) shall
29 provide outreach information and referral materials to all
30 residents present on how to obtain alcohol and other drug
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1 treatment.
2 (b) Notification to social services agencies.--The court, no
3 less than 10 days prior to the removal of any persons pursuant
4 to this act, shall cause notice to be provided to the local
5 alcohol and other drug agency, the local child welfare agency
6 and other appropriate social service agencies of the ordered
7 removal of any persons pursuant to this act.
8 (c) Posting of notification.--A one-page summary of such
9 information and materials shall be posted next to any
10 preliminary closing order or preliminary restraining order
11 posted in accordance with section 308(d).
12 (d) Preparation and dissemination of treatment resource
13 information.--The Office of Drug and Alcohol Programs in the
14 Department of Health or its designee shall prepare all materials
15 described in subsections (a) and (b) and shall disseminate them
16 to all sheriff departments, local police departments or other
17 appropriate agencies which are empowered to enforce closing
18 orders under this act.
19 Section 310. Premises involving multiple residences or
20 businesses.
21 (a) Limiting order to nuisance portion of premises.--Where
22 the premises constituting the drug nuisance includes multiple
23 residences, dwellings or business establishments, a preliminary
24 or permanent closing order issued pursuant to any provision of
25 this act shall, so far as is practicable, be limited to that
26 portion of the entire premises necessary to abate the nuisance
27 and prevent the recurrence of drug distribution events.
28 (b) Duty of certain landlords to displaced innocent
29 tenants.--In addition to any other relief expressly authorized
30 by this act, the court may order a defendant who knew or had
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1 reason to know of the nuisance to provide relocation assistance
2 to any tenant ordered to vacate a premises pursuant to this act,
3 provided that the court determines that such tenant was not
4 involved in any drug distribution event constituting the
5 nuisance and did not knowingly aid in the commission of any such
6 drug distribution event. Relocation assistance shall be in the
7 amount necessary to cover moving costs, security deposits for
8 utilities and comparable housing, any lost rent and any other
9 reasonable expenses the court may deem fair and reasonable as a
10 result of the court's order to close a premises or any portion
11 thereof pursuant to this act.
12 Section 311. Vacating or modifying closing order.
13 (a) General rule.--The court upon application of a defendant
14 may, at any time before trial, vacate or modify a closing order,
15 after notice to the person or entity bringing the action
16 pursuant to this act, where the defendant clearly and
17 convincingly shows that he was not in any way involved in the
18 commission of any drug distribution event constituting the
19 nuisance, and he further:
20 (1) provides a bond or undertaking in an amount equal to
21 the assessed value, for property tax purposes, of the
22 premises or portion thereof subject to the closure order or
23 such other amount fixed by the court, and the court
24 determines that the public safety or welfare will be
25 adequately protected thereby; or
26 (2) establishes by clear and convincing evidence that
27 the drug nuisance has been satisfactorily abated and will not
28 recur. In determining whether the drug nuisance has been
29 satisfactorily abated and will not recur, the court shall
30 consider the nature, severity and duration of the drug
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1 nuisance and all other relevant factors, including, but not
2 limited to, the following:
3 (i) whether the defendant through the exercise of
4 reasonable diligence should have known that drug
5 distribution events were occurring on the premises and
6 whether the defendant took steps necessary and
7 appropriate in the circumstances to prevent the
8 commission of such events;
9 (ii) whether the defendant has in good faith
10 initiated eviction or removal actions pursuant to the
11 Model Expedited Eviction of Drug Traffickers Act against
12 tenants or other persons who committed drug distribution
13 events on the premises involved, immediately upon
14 learning of a factual basis for initiating such eviction
15 or removal action;
16 (iii) whether the defendant has developed an
17 abatement plan which has been agreed to by the person or
18 entity bringing the action pursuant to this act and has
19 been approved by the court. Such abatement plan may
20 provide for the following:
21 (A) Hiring an on-site manager to prevent the
22 recurrence of drug distribution events.
23 (B) Making capital improvements to the property,
24 such as security gates.
25 (C) Installing improved interior or exterior
26 lighting.
27 (D) Employing security guards.
28 (E) Installing electronic security or visual
29 monitoring systems.
30 (F) Establishing tenant-approved security
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1 procedures.
2 (G) Attending property management training
3 programs.
4 (H) Making cosmetic improvements to the
5 property.
6 (I) Providing, at no cost, suitable space and
7 facilities for a local enforcement agency to
8 establish a police substation or ministation on or
9 near the site of the drug nuisance.
10 (J) Establishing any other program or initiative
11 designed to enhance security and prevent the
12 recurrence of drug distribution events on or near the
13 premises involved.
14 (b) Forfeiture of bond.--Where the court accepts a bond or
15 undertaking under subsection (a) and conduct constituting a drug
16 nuisance recurs, the bond or undertaking shall be forfeited
17 unless the court finds compelling and extraordinary reasons why
18 such forfeiture would not be in the interests of justice. Any
19 moneys forfeited pursuant to this section shall be paid into the
20 dedicated fund established in section 501(d).
21 Section 312. Permanent injunction and other relief.
22 Where the court after trial finds that a premises is a drug
23 nuisance, the court shall grant permanent injunctive relief and
24 shall issue orders as are necessary to abate the drug nuisance
25 and to prevent to the extent reasonably possible the recurrence
26 of the drug nuisance. The court's order may include, but need
27 not be limited to, all of the following:
28 (1) Seizure and sale of personal property.--Directing
29 the sheriff or other appropriate agency to seize and remove
30 from the premises all material, equipment and
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1 instrumentalities used in the creation and maintenance of the
2 drug nuisance and directing the sheriff to sell the property
3 in the manner provided for the sale of personal property
4 under execution in accordance with the general rules of civil
5 procedure. The net proceeds of any such sale, after the
6 deduction of all lawful expenses involved, shall be paid into
7 the dedicated fund established in section 501(d).
8 (2) Restoration of premises.--Authorizing the plaintiffs
9 to make repairs, renovations and construction and structural
10 alterations or to take such other actions necessary to bring
11 the premises into compliance with all applicable housing,
12 building, fire, zoning, health and safety codes, ordinances,
13 rules, regulations or statutes. Expenditures may be filed as
14 a lien against the property.
15 (3) Closing of premises.--Directing the closing of the
16 premises, or appropriate portion thereof, to the extent
17 necessary to abate the nuisance, and directing the officer or
18 agency enforcing the closure order to post a copy of the
19 judgment and a printed notice of such closing order
20 conforming to the requirements of section 308(d). The closing
21 directed by the judgment shall be for such period of time as
22 the court may direct but, subject to the provisions of
23 section 503, shall not be for a period of more than one year
24 from the posting of the judgment provided for in this
25 subsection.
26 (4) Suspension of licenses.--Suspending or revoking any
27 business, professional, operational or liquor license.
28 (5) Suspension of government subsidies.--Ordering the
29 suspension of any State, city or local governmental subsidies
30 payable to the owners of the property, such as tenant
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1 assistance payments to landlords, until the nuisance is
2 satisfactorily abated.
3 (6) Appointment of receiver.--Appointing a temporary
4 receiver to manage or operate the premises for such time as
5 the court deems necessary to abate the nuisance. A receiver
6 appointed pursuant to this section shall be paid by the owner
7 of the property a reasonable fee as established by the court
8 and shall have such powers and duties as the court shall
9 direct, including, but not limited to, the following:
10 (i) Collecting, holding and dispersing the proceeds
11 of all rents due from all tenants.
12 (ii) Leasing or renting portions of the premises
13 involved.
14 (iii) Making or authorizing other persons to make
15 necessary repairs or to maintain the property.
16 (iv) Hiring security or other personnel necessary
17 for the safe and proper operation of the premises.
18 (v) Retaining counsel to prosecute or defend suits
19 arising from his or her management of the premises.
20 (vi) Expending funds from the collected rents in
21 furtherance of the foregoing powers.
22 A receiver appointed by the court pursuant to this section or
23 section 307(c) shall upon entering his duties be sworn and
24 shall affirm faithfully and fairly to discharge the trust
25 committed to him. In addition, the receiver may be required
26 to post a bond or undertaking in an amount to be fixed by the
27 court making the appointment to ensure that such receiver
28 will faithfully discharge his duties.
29 (7) Combination of remedies.--Imposing any or all of the
30 foregoing remedies in combination with each other.
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1 Section 313. Closure.
2 (a) Presumption of closure.--Where the court after trial
3 determines that a premises constitutes a drug nuisance, the
4 court shall order the closure of the premises or appropriate
5 portion or portions thereof pursuant to section 312(c), unless
6 the court is clearly convinced that any vacancy resulting from
7 the closure would exacerbate rather than abate the nuisance or
8 would otherwise be extraordinarily harmful to the community or
9 the public interest.
10 (b) Vacation of closure order.--The court at any time after
11 trial may vacate the provisions of the judgment that direct the
12 closing of the premises or any portion thereof provided that the
13 defendant establishes by clear and convincing evidence that the
14 drug nuisance has been satisfactorily abated and is not likely
15 to recur. In determining whether the drug nuisance has been
16 satisfactorily abated and is not likely to recur, the court
17 shall consider the nature, severity and duration of the drug
18 nuisance and all other relevant factors, including, but not
19 limited to, those factors set forth in section 311(a).
20 CHAPTER 5
21 OTHER RELATED MATTERS
22 Section 501. Penalties.
23 (a) Civil penalties for culpable defendants.--Where the
24 court after trial finds that a premises is a drug nuisance, the
25 court in addition to granting appropriate injunctive relief
26 shall impose a civil penalty against a defendant who knowingly
27 conducted, maintained, aided, abetted or permitted a drug
28 nuisance. The penalty shall be $25,000 or the market value of
29 the entire premises involved, whichever amount is greater,
30 unless the court finds, based on the evidence, that imposition
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1 of such penalty would constitute a miscarriage of justice under
2 the totality of the circumstances. In such case it may lower the
3 penalty amount to the extent necessary to avoid such miscarriage
4 of justice.
5 (b) Prima facie evidence of defendant's culpability.--For
6 the purpose of imposing a civil penalty pursuant to this
7 section, the following shall be prima facie evidence that the
8 defendant knowingly permitted the drug nuisance:
9 (1) the defendant failed to initiate an eviction action
10 under the Model Expedited Eviction of Drug Traffickers Act,
11 against a tenant after being notified by certified or
12 registered mail of the tenant's drug distribution events
13 committed on the leased premises; or
14 (2) a closure order was vacated under section 313(b)
15 within two years before the occurrence of the instant drug
16 nuisance.
17 (c) Waiver of penalty upon transfer of title.--The court at
18 any time shall waive, suspend or revoke any unpaid civil penalty
19 imposed pursuant to this section where it is satisfied that:
20 (1) the defendant against whom the penalty has been
21 imposed has not violated any order issued pursuant to any
22 provision of this act; and
23 (2) the defendant has transferred title to the premises
24 to the plaintiff or any other neighborhood or community
25 organization approved by the court, provided that the
26 recipient is a nonprofit incorporated organization or
27 association which is exempt from taxation under 26 U.S.C. §
28 501(c) (relating to list of exempt organizations) and which
29 is authorized by its corporate charter or bylaws to
30 rehabilitate, restore, maintain, manage or operate any
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1 commercial or residential premises. Unless otherwise agreed
2 to by the recipient organization, the defendant shall
3 personally retain all State and local tax liability, and the
4 obligation shall attach to any other real property in the
5 county owned by the defendant.
6 (d) Collection and disposition of proceeds.--All civil
7 penalties imposed pursuant to this section shall be collected in
8 the manner provided by law or by rule of court. Ten percent of
9 the penalties shall be retained by the court to offset the costs
10 of collection. Half of all remaining moneys collected pursuant
11 to this section shall be deposited in a nonlapsing revolving
12 county fund to be known as the Nuisance Abatement and
13 Neighborhood Rehabilitation Fund. Moneys in this fund shall be
14 appropriated by the county on an annual basis for the purpose of
15 funding local drug nuisance abatement, drug prevention,
16 education and housing and neighborhood rehabilitation programs.
17 All of the remaining funds shall be deposited in a nonlapsing
18 revolving fund which is hereby established in the State
19 Treasury, and which shall be known as the Treatment for
20 Displaced Residents Fund. This fund shall be administered by the
21 Office of Drug and Alcohol Programs, in the Department of
22 Health. Its purpose shall be to fund the treatment of displaced
23 residents determined to be addicted pursuant to section 26 of
24 the Model Expedited Eviction of Drug Traffickers Act or for
25 providing treatment for displaced residents under this act. None
26 of these funds shall be used to supplant existing Federal,
27 State, county or municipal resources for the courts, nuisance
28 abatement, drug prevention, education, housing or neighborhood
29 rehabilitation programs or treatment.
30 Section 502. Settlements.
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1 (a) Court-approved settlements.--Nothing in this act shall be
2 construed in any way to prevent the parties to the action at any
3 time before or after trial from negotiating and agreeing to a
4 fair settlement of the dispute, subject to the approval of the
5 court.
6 (b) Vacation of closure order upon transfer of title.--The
7 court, on application of a plaintiff may vacate a closing order
8 issued pursuant to this act, where the defendant has transferred
9 title to the premises to the plaintiff or any other neighborhood
10 or community organization approved by the court, provided that
11 the recipient is a nonprofit incorporated organization or
12 association which is exempt from taxation under 26 U.S.C. §
13 501(c) (relating to list of exempt organizations) and which is
14 authorized by its corporate charter or bylaws to rehabilitate,
15 restore, maintain, manage or operate any commercial or
16 residential premises. In that event, the requirements for
17 prerelease inspection set forth in section 506 shall not apply.
18 Section 503. Recovery of costs.
19 Whenever an action for injunctive relief or penalties brought
20 pursuant to this act terminates in a settlement or judgment
21 favorable to the plaintiff, the plaintiff shall be entitled to
22 recover the actual cost of the suit, including, but not limited
23 to, reasonable attorney fees and all expenses and disbursements
24 by the plaintiff and any other governmental entity in
25 investigating, bringing, maintaining and enforcing the action
26 and any court orders issued pursuant thereto. All defendants
27 shall be jointly and severally liable for the payment of taxed
28 costs imposed pursuant to this section.
29 Section 504. Liens.
30 A judgment awarding a permanent injunction pursuant to this
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1 act shall be a lien upon the premises declared to be a drug
2 nuisance. In addition, a judgment against an in personam
3 defendant imposing a civil penalty or bill of taxed costs
4 pursuant to this act shall be a lien upon the real estate owned
5 by the defendant at the time of such rendition, and also upon
6 all real estate the defendant may subsequently acquire, for a
7 period of ten years from the date of the judgment.
8 Section 505. Contempt.
9 Any person who knowingly violates any order issued pursuant
10 to this act shall be subject to civil contempt as well as
11 punishment for criminal contempt under 18 Pa.C.S. §§ 4955
12 (relating to violation of orders) and 5101 (relating to
13 obstructing administration of law or other governmental
14 function). Nothing in this act shall be construed in any way to
15 preclude or preempt a criminal prosecution for violation of a
16 controlled substance offense or any other criminal offense.
17 Section 506. Release of premises upon inspection or repair.
18 (a) Compliance with codes as prerequisite to opening.--
19 Subject to the provision of section 502(b), and unless the court
20 expressly orders otherwise, no premises or portion thereof
21 ordered to be closed pursuant to any provision of this act shall
22 be released or opened unless it has been inspected by the
23 appropriate county agency and found to be in compliance with
24 applicable State or local housing, building, fire, zoning,
25 health and safety codes, ordinances, rules, regulations or
26 statutes. Where the inspection reveals violations of any such
27 code, ordinance, rule, regulation or statute, the court shall
28 issue such orders or grant such relief as may be necessary to
29 bring the premises or portion thereof into compliance. In that
30 event, the court may order the premises or portion thereof to
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1 remain closed pending such necessary repairs or modification,
2 notwithstanding that the order of closure may exceed the one-
3 year time limit prescribed in section 312(c).
4 (b) Authorization to inspect or repair.--The court may
5 authorize any person or government official to enter a premises
6 or portion thereof closed pursuant to this act for the purpose
7 of conducting an inspection or making any repairs or
8 modifications necessary to abate the nuisance or to bring the
9 premises or portion thereof into compliance with any applicable
10 housing, building, fire, zoning, health or safety code,
11 ordinance, rule, regulation or statute.
12 Section 507. Cumulative remedies.
13 The causes of action and remedies authorized by this act
14 shall be cumulative with each other and shall be in addition to,
15 not in lieu of, any other causes of action or remedies which may
16 be available at law or equity.
17 Section 508. Admissibility of evidence.
18 (a) General rule.--In any action brought pursuant to this
19 act, all relevant evidence, including evidence of the use or
20 threat of violence, evidence of reputation in a community and
21 any prior efforts or lack of efforts by the defendant to abate
22 the drug nuisance shall be admissible to prove the existence of
23 a drug nuisance.
24 (b) Effect of criminal conviction or adjudication of
25 delinquency.--Where a criminal prosecution or adjudication
26 proceeding involving the drug distribution event constituting
27 the drug nuisance results in a criminal conviction or
28 adjudication of delinquency, such conviction or adjudication
29 shall create a rebuttable presumption that the drug distribution
30 event occurred. Any evidence or testimony admitted in the
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1 criminal or juvenile proceedings, including transcripts or a
2 court reporter's notes of the transcripts of the adult or
3 juvenile criminal proceedings, whether or not they have been
4 transcribed, may be admitted in the civil action brought
5 pursuant to this act.
6 (c) Use of sealed criminal proceeding records.--In the event
7 that the evidence or records of a criminal proceeding which did
8 not result in a conviction or adjudication of delinquency have
9 been sealed in accordance with applicable law, the court in a
10 civil action brought pursuant to this act may, notwithstanding
11 any other provision of this act, order such evidence or records
12 to be unsealed if the court finds that such evidence or records
13 would be relevant to the fair disposition of the civil action.
14 (d) Protection of threatened witnesses or affiants.--If
15 proof of the existence of the drug nuisance depends, in whole or
16 in part, upon the affidavits or testimony of witnesses who are
17 not peace officers, the court may, upon a showing of prior
18 threats of violence or acts of violence by any defendant or any
19 other person, issue orders to protect those witnesses,
20 including, but not limited to, the nondisclosure of the name,
21 address or any other information which may identify those
22 witnesses.
23 (e) Availability of law enforcement resources to plaintiffs
24 or potential plaintiffs.--A law enforcement agency may make
25 available to any person or entity seeking to secure compliance
26 with this act any police report, or edited portion thereof, or
27 forensic laboratory report, or edited portion thereof,
28 concerning drug distribution events committed on or within the
29 premises involved. A law enforcement agency may also make any
30 officer or officers available to testify as a fact or expert
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1 witness in a civil action brought pursuant to this act. The
2 agency shall not disclose such information where, in the
3 agency's opinion, such disclosure would jeopardize an
4 investigation, prosecution or other proceeding or where such
5 disclosure would violate any Federal or State statute.
6 Section 509. Relationship to criminal proceedings.
7 A civil action may be brought and maintained pursuant to this
8 act, and the court may find the existence of a drug nuisance,
9 notwithstanding that a drug distribution event or events used to
10 establish the existence of the drug nuisance have not resulted
11 in an arrest, prosecution, conviction or adjudication of
12 delinquency.
13 Section 510. Liability for damage to closed properties.
14 (a) Effect of court-ordered closing.--A court-ordered
15 closing of a premises or portion thereof pursuant to this act
16 shall not constitute an act of possession, ownership or control
17 by the court, the plaintiff or any government official or entity
18 responsible for enforcing the court order.
19 (b) Immunity of plaintiffs and enforcing agencies.--Any
20 person or entity bringing, maintaining or enforcing any civil
21 action or order issued in accordance with the provisions of this
22 act shall have immunity from any civil liability that might
23 otherwise be incurred for any theft of or loss, damage or injury
24 to any premises constituting the drug nuisance, or to any
25 fixture, furniture or personal or movable property located in or
26 on any such premises.
27 Section 511. Civil immunity.
28 Any person or entity who in good faith institutes,
29 participates in, testifies in or encourages any person or entity
30 to institute, participate in or testify in a civil action
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1 brought pursuant to this act or who in good faith provides any
2 information relied upon by any person or entity in instituting
3 or participating in a civil action pursuant to this act shall
4 have immunity from any civil liability that might otherwise be
5 incurred or imposed for such actions or conduct.
6 Section 512. Civil action.
7 (a) Right of action for damages.--Notwithstanding the
8 provisions of section 303(a), any person damaged in his business
9 or property by reason of a drug nuisance may bring a separate
10 civil action for actual damages in the court of common pleas
11 against any persons who knowingly conducted, maintained, aided,
12 abetted or permitted any drug distribution event constituting
13 the drug nuisance.
14 (b) Effect of prior notification of owner concerning
15 nuisance.--In a civil action for damages pursuant to this
16 section, the failure of an owner or landlord to initiate an
17 eviction action against a tenant under the Model Expedited
18 Eviction of Drug Traffickers Act if the owner or landlord has
19 been notified by certified or registered mail of the tenant's
20 drug distribution events committed on the leased premises shall
21 be prima facie evidence that the owner knowingly gave permission
22 to engage in conduct constituting the drug nuisance.
23 (c) Admissibility of expert testimony.--In a civil action
24 for damages pursuant to this section, expert testimony may be
25 used to determine the amount of any actual damage or loss
26 incurred by reason of the drug nuisance.
27 (d) Attorney fees and other costs to prevailing plaintiff.--
28 Whenever an action for damages brought pursuant to this section
29 terminates in a settlement or judgment favorable to the
30 plaintiff, the plaintiff shall be entitled to recover the actual
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1 cost of the suit, including, but not limited to, reasonable
2 attorney fees and all expenses and disbursements by the
3 plaintiff in investigating, bringing and maintaining the action.
4 All defendants shall be jointly and severally liable for the
5 payments of taxed costs imposed pursuant to this section.
6 (e) General admissibility of evidence.--In any civil action
7 for damages brought pursuant to this section, any evidence
8 admitted or admissible in a civil action for injunctive relief
9 or penalty pursuant to this act shall be admissible.
10 Section 513. Use of property for treatment and other purposes.
11 Where title to property has been transferred to any
12 neighborhood or community organization pursuant to section
13 501(c), or pursuant to any negotiated settlement of any action
14 brought pursuant to this act, such property may, subject to the
15 approval of the court in which the civil action was initiated,
16 be used to house an alcohol and other drug prevention,
17 education, intervention or licensed alcohol and other drug
18 counseling or treatment program. Nothing herein shall be
19 construed in any way to exempt such property from the
20 requirements of any applicable zoning, fire, safety or health
21 code, ordinance, rule, regulation or statute.
22 CHAPTER 11
23 MISCELLANEOUS PROVISIONS
24 Section 1101. Effective date.
25 This act shall take effect in 180 days.
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