HF 1137

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to public nuisance; modifying the grounds and 
  1.3             procedure for proving a nuisance; providing for a 
  1.4             meeting to attempt resolution of the issue; amending 
  1.5             Minnesota Statutes 1994, sections 617.80, subdivisions 
  1.6             2, 4, 5, and 8, and by adding a subdivision; 617.81, 
  1.7             subdivisions 1, 2, and 3; 617.82; 617.83; 617.84; 
  1.8             617.85; and 617.87; proposing coding for new law in 
  1.9             Minnesota Statutes, chapter 617; repealing Minnesota 
  1.10            Statutes 1994, section 617.81, subdivisions 2a and 3. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  Minnesota Statutes 1994, section 617.80, 
  1.13  subdivision 2, is amended to read: 
  1.14     Subd. 2.  [BUILDING.] "Building" means a structure suitable 
  1.15  for human shelter, a commercial structure that is maintained for 
  1.16  business activities that involve human occupation, or any 
  1.17  portion of such structures, or the curtilage of such 
  1.18  structures.  If the building is a multiunit dwelling, a hotel or 
  1.19  motel, or a commercial or office building, the term "building," 
  1.20  for purposes of sections 617.80 to 617.87, means only the 
  1.21  dwelling unit, room, suite of rooms, office, or other unit of 
  1.22  space in which a nuisance is maintained or permitted. 
  1.23     Sec. 2.  Minnesota Statutes 1994, section 617.80, 
  1.24  subdivision 4, is amended to read: 
  1.25     Subd. 4.  [PROSTITUTION.] "Prostitution" or "prostitution- 
  1.26  related offenses activity" means the conduct defined in sections 
  1.27  609.321 to 609.324. 
  1.28     Sec. 3.  Minnesota Statutes 1994, section 617.80, 
  2.1   subdivision 5, is amended to read: 
  2.2      Subd. 5.  [GAMBLING.] "Gambling" or "gambling-related 
  2.3   offenses activity" means the conduct described in sections 
  2.4   609.75 to 609.762. 
  2.5      Sec. 4.  Minnesota Statutes 1994, section 617.80, 
  2.6   subdivision 8, is amended to read: 
  2.7      Subd. 8.  [INTERESTED PARTY.] "Interested party," for 
  2.8   purposes of sections 617.80 to 617.87, means any known lessee or 
  2.9   tenant of a building or affected portion of a building and; any 
  2.10  known agent of an owner, lessee, or tenant; or any other person 
  2.11  who maintains or permits a nuisance and is known to the city 
  2.12  attorney, county attorney, or attorney general. 
  2.13     Sec. 5.  Minnesota Statutes 1994, section 617.80, is 
  2.14  amended by adding a subdivision to read: 
  2.15     Subd. 9.  [PROSECUTING ATTORNEY.] "Prosecuting attorney" 
  2.16  means the attorney general, county attorney, or attorney serving 
  2.17  the jurisdiction where the nuisance is located. 
  2.18     Sec. 6.  Minnesota Statutes 1994, section 617.81, 
  2.19  subdivision 1, is amended to read: 
  2.20     Subdivision 1.  [INJUNCTION.] In order to obtain a 
  2.21  temporary injunction under section 617.82 or a permanent 
  2.22  injunction or order of abatement under section 617.83 617.815, 
  2.23  the provisions of sections 617.80 to 617.87 must be followed. 
  2.24     Sec. 7.  Minnesota Statutes 1994, section 617.81, 
  2.25  subdivision 2, is amended to read: 
  2.26     Subd. 2.  [ACTS CONSTITUTING A NUISANCE.] (a) For purposes 
  2.27  of sections 617.80 to 617.87, a public nuisance exists upon 
  2.28  proof of three or more misdemeanor convictions or two or more 
  2.29  convictions, of which at least one is a gross misdemeanor or 
  2.30  felony, two or more separate behavioral incidents of any one or 
  2.31  more of the following kinds of conduct within the previous two 
  2.32  years 12 months for:  
  2.33     (1) acts of prostitution or prostitution-related offenses 
  2.34  activity committed within the building; 
  2.35     (2) acts of gambling or gambling-related offenses activity 
  2.36  committed within the building; 
  3.1      (3) keeping or permitting a disorderly house within the 
  3.2   building; 
  3.3      (4) unlawful sale or, possession, storage, delivery, 
  3.4   giving, manufacture, cultivation, or use of controlled 
  3.5   substances committed within the building; 
  3.6      (5) unlicensed sales of alcoholic beverages committed 
  3.7   within the building in violation of section 340A.401; 
  3.8      (6) unlawful sales or gifts of alcoholic beverages by an 
  3.9   unlicensed person committed within the building in violation of 
  3.10  section 340A.503, subdivision 2, clause (1); or 
  3.11     (7) unlawful use or possession of a firearm in violation of 
  3.12  section 609.66, subdivision 1a, 609.67, or 624.713, committed 
  3.13  within the building. 
  3.14     (b) A second or subsequent conviction under paragraph (a) 
  3.15  may be used to prove the existence of a nuisance if the conduct 
  3.16  on which the second or subsequent conviction is based occurred 
  3.17  within two years following the first conviction, regardless of 
  3.18  the date of the conviction for the second or subsequent offense. 
  3.19     Sec. 8.  Minnesota Statutes 1994, section 617.81, 
  3.20  subdivision 3, is amended to read: 
  3.21     Subd. 3.  [NOTICE.] Notice of a conviction described in 
  3.22  subdivision 2, or of a qualifying event described in subdivision 
  3.23  2a, must be mailed by the court administrator to the owner of 
  3.24  the building where the offense was committed and all other 
  3.25  interested parties and must be filed with the county recorder's 
  3.26  office.  This notice is considered sufficient to inform all 
  3.27  interested parties that the building or a portion of it is being 
  3.28  used for purposes constituting a public nuisance. 
  3.29     (a) When a prosecuting attorney has reason to believe that 
  3.30  a nuisance is maintained or permitted in the jurisdiction the 
  3.31  prosecuting attorney serves, the prosecuting attorney shall by 
  3.32  personal service or first class mail provide the written notice 
  3.33  described in paragraph (b) to the owner and all interested 
  3.34  parties known to the prosecuting attorney. 
  3.35     (b) The written notice must: 
  3.36     (1) state that a nuisance as defined in subdivision 2 is 
  4.1   maintained or permitted in the building and must specify the 
  4.2   kind or kinds of nuisance being maintained or permitted; 
  4.3      (2) summarize the evidence that a nuisance is maintained or 
  4.4   permitted in the building, including the dates on which 
  4.5   nuisance-related activities are alleged to have occurred; 
  4.6      (3) inform the recipient of the date, time, and place of a 
  4.7   meeting that has been set to arrange to take action to abate the 
  4.8   notice, and request the recipient's attendance at the meeting; 
  4.9   and 
  4.10     (4) inform the recipient that failure to appear at the 
  4.11  meeting may result in the filing of a complaint for relief in 
  4.12  district court that could, among other remedies, result in 
  4.13  enjoining the use of the building for any purpose for one year 
  4.14  or longer. 
  4.15     Sec. 9.  [617.815] [MEETING; COMPLAINT; RELIEF.] 
  4.16     Subdivision 1.  [MEETING; RECOMMENDATIONS.] The prosecuting 
  4.17  attorney shall meet with all recipients of the notice sent under 
  4.18  section 617.81, subdivision 3.  The meeting must be held not 
  4.19  sooner than seven days after personal service of the notice or 
  4.20  14 days after service has been mailed.  Not later than ten days 
  4.21  after the meeting, the prosecuting attorney shall give each 
  4.22  recipient of the notice reasonable recommendations to abate the 
  4.23  nuisance.  Reasonable recommendations include: 
  4.24     (1) abating the nuisance; 
  4.25     (2) activity requiring a tenant who is responsible for 
  4.26  maintaining or permitting a nuisance to cease it; or 
  4.27     (3) any action listed under subdivision 3, clause (6).  
  4.28     The recommendations shall be provided by personal service 
  4.29  or first class mail. 
  4.30     Subd. 2.  [COMPLAINT.] The prosecuting attorney may file a 
  4.31  complaint in district court against a recipient of the notice 
  4.32  under section 617.81, subdivision 3, in any of the following 
  4.33  circumstances: 
  4.34     (1) the recipient did not appear at the meeting held under 
  4.35  subdivision 1; 
  4.36     (2) the recipient appeared at the meeting held under 
  5.1   subdivision 1, but did not agree to follow reasonable 
  5.2   recommendations by the prosecuting attorney designed to abate 
  5.3   the nuisance; 
  5.4      (3) the recipient agreed to follow the recommendations to 
  5.5   abate the nuisance but subsequently failed to act on the 
  5.6   agreement; or 
  5.7      (4) the recipient otherwise has failed to make a good faith 
  5.8   effort to abate the nuisance.  Compliance with the 
  5.9   recommendations of the prosecuting attorney constitutes a good 
  5.10  faith effort to abate the nuisance. 
  5.11     Before filing a complaint under this subdivision, the 
  5.12  prosecuting attorney shall notify the persons who received 
  5.13  notice under section 617.81, subdivision 3, that a specified 
  5.14  recipient has failed to satisfactorily comply with 
  5.15  recommendations developed under subdivision 1 and that the 
  5.16  prosecuting attorney intends to file an action in district court 
  5.17  to abate the nuisance.  The notice required under this 
  5.18  subdivision must be provided by personal service or first class 
  5.19  mail. 
  5.20     Subd. 3.  [RELIEF.] The court shall order appropriate 
  5.21  relief under this section or other applicable law upon proof 
  5.22  that a nuisance as defined in section 617.81, subdivision 2, is 
  5.23  maintained or permitted.  When a complaint is filed under this 
  5.24  section, the prosecuting attorney may seek any one or more of 
  5.25  the following forms of relief: 
  5.26     (1) an order of abatement directing the closing of a 
  5.27  building or any portion of a building where a nuisance has been 
  5.28  maintained or permitted, unless released sooner under section 
  5.29  617.87 for the applicable time period under section 617.83; 
  5.30     (2) a permanent injunction enjoining any named defendant 
  5.31  from maintaining or permitting a nuisance in this state and 
  5.32  describing the conduct prohibited; 
  5.33     (3) an order directing the removal and sale under section 
  5.34  617.84 of movable property used in conducting or maintaining a 
  5.35  nuisance; 
  5.36     (4) an order directing the owner to file a motion to cancel 
  6.1   the lease under section 617.85 or to assign to the prosecuting 
  6.2   attorney the owner's right to cancel the lease under that 
  6.3   section; 
  6.4      (5) an order directing the owner to provide relocation 
  6.5   assistance to displaced tenants if the tenants did not maintain 
  6.6   or permit the nuisance; or 
  6.7      (6) an order directing the owner to more effectively manage 
  6.8   the building, including but not limited to any of the following 
  6.9   actions: 
  6.10     (i) making capital improvements to the property of a nature 
  6.11  designed to reduce the likelihood of nuisance activity; 
  6.12     (ii) improving exterior or interior lighting; 
  6.13     (iii) installing surveillance cameras; 
  6.14     (iv) employing security guards or a building manager and 
  6.15  providing appropriate training to employees; 
  6.16     (v) posting signs warning against illegal activity; 
  6.17     (vi) participating in neighborhood or local merchants' 
  6.18  organizations; 
  6.19     (vii) modifying lease provisions or screening prospective 
  6.20  tenants; or 
  6.21     (viii) attending a training course in property management. 
  6.22     Subd. 4.  [RELOCATION ASSISTANCE.] The unit of government 
  6.23  on whose behalf an action is brought under this section may 
  6.24  provide reasonable nonfinancial relocation assistance to a 
  6.25  tenant who did not maintain or permit a nuisance and who is 
  6.26  displaced as a result of a court order under this section. 
  6.27     Sec. 10.  Minnesota Statutes 1994, section 617.82, is 
  6.28  amended to read: 
  6.29     617.82 [TEMPORARY ORDER.] 
  6.30     Whenever a city attorney, county attorney, or the attorney 
  6.31  general prosecuting attorney has cause to believe that a 
  6.32  nuisance described in section 617.81, subdivision 2, exists 
  6.33  within the jurisdiction the attorney serves, that the 
  6.34  prosecuting attorney may by verified petition seek a temporary 
  6.35  injunction in district court in the county in which the alleged 
  6.36  public nuisance exists.  No temporary injunction may be issued 
  7.1   without a prior show cause notice of hearing to the respondents 
  7.2   named in the petition and an opportunity for the respondents to 
  7.3   be heard.  Upon proof of a nuisance described in section 617.81, 
  7.4   subdivision 2, the court shall issue a temporary injunction.  
  7.5   Any temporary injunction issued must describe the conduct to be 
  7.6   enjoined. 
  7.7      Sec. 11.  Minnesota Statutes 1994, section 617.83, is 
  7.8   amended to read: 
  7.9      617.83 [INJUNCTION; ORDER OF ABATEMENT.] 
  7.10     Subdivision 1.  [FIRST NUISANCE.] Upon proof of a nuisance 
  7.11  described in section 617.81, subdivision 2, the court shall 
  7.12  issue a permanent injunction and enter an order of abatement.  
  7.13  The permanent injunction must describe the conduct permanently 
  7.14  enjoined and must be directed at the building and at the owner's 
  7.15  conduct anywhere in this state.  The order of abatement must 
  7.16  direct the closing of the building or a portion of it for one 
  7.17  year, except as otherwise provided in subdivision 2 or section 
  7.18  617.84 or 617.85, unless sooner released pursuant to section 
  7.19  617.87.  
  7.20     Subd. 2.  [SECOND OR SUBSEQUENT NUISANCE.] Upon proof of a 
  7.21  second or subsequent nuisance described in section 617.81, 
  7.22  subdivision 2, maintained or conducted by the same owner within 
  7.23  five years, whether in the same building where an earlier 
  7.24  nuisance existed or in another building in this state, the court 
  7.25  shall issue an order of abatement directing the closing of the 
  7.26  building or a portion of it for two years or more, except as 
  7.27  otherwise provided by section 617.84 or 617.85, and unless 
  7.28  earlier released under section 617.87. 
  7.29     Subd. 3.  [NOTICE; APPEAL.] Before an abatement order is 
  7.30  enforced against a building or portion of it, the owner must be 
  7.31  served with the abatement order and a notice of the right to 
  7.32  file a motion under section 617.85 in the same manner that a 
  7.33  summons is served under the rules of civil procedure.  A copy of 
  7.34  the abatement order shall also be posted in a conspicuous place 
  7.35  on the building or affected portion.  
  7.36     Sec. 12.  Minnesota Statutes 1994, section 617.84, is 
  8.1   amended to read: 
  8.2      617.84 [MOVABLE PROPERTY.] 
  8.3      The order of abatement may must direct the removal of 
  8.4   movable property, including any displays, used in conducting or 
  8.5   maintaining the nuisance and direct the sale of property 
  8.6   belonging to a respondent who was notified or appeared.  The 
  8.7   sale shall be conducted pursuant to the provisions of chapter 
  8.8   550 on the sale of property on execution.  A person appointed by 
  8.9   the court as receiver of the building may use a building or 
  8.10  portion of it which is the subject of an abatement order in a 
  8.11  manner approved by the court.  Costs of the sale on execution, 
  8.12  moving and storage fees, and any receivership must be paid out 
  8.13  of the receipts from the sale of the movable property or any 
  8.14  rents collected during the receivership.  The balance from the 
  8.15  sale of movable property must be paid to the owner of the 
  8.16  property used to fund community crime prevention programs in the 
  8.17  jurisdiction whose prosecuting attorney brought the action under 
  8.18  section 617.815.  The balance from any rents collected during 
  8.19  any receivership shall be paid to the treasury of the unit of 
  8.20  government which brought the abatement action. 
  8.21     Sec. 13.  Minnesota Statutes 1994, section 617.85, is 
  8.22  amended to read: 
  8.23     617.85 [NUISANCE; MOTION TO CANCEL LEASE.] 
  8.24     Where an abatement of If a nuisance is sought and the 
  8.25  circumstances that are the basis for the requested abatement 
  8.26  involved the acts of maintained or conducted by a commercial or 
  8.27  residential tenant or lessee of part or all of a building, the 
  8.28  owner of the building that is subject to the abatement 
  8.29  proceeding, if the prosecuting attorney so recommends, may file 
  8.30  before the district court that has jurisdiction over the 
  8.31  abatement proceeding where the building is located a motion to 
  8.32  cancel the lease or otherwise secure restitution of the premises 
  8.33  from the tenant or lessee who has maintained or conducted the 
  8.34  nuisance.  The owner may assign to the prosecuting attorney the 
  8.35  right to file this motion.  In addition to the grounds provided 
  8.36  in chapter 566, the maintaining or conducting of a nuisance as 
  9.1   defined in section 617.81, subdivision 2, by a tenant or lessee, 
  9.2   is an additional ground authorized by law for seeking the 
  9.3   cancellation of a lease or the restitution of the premises.  It 
  9.4   is no defense to a motion under this section by the owner that 
  9.5   the lease or other agreement controlling the tenancy or 
  9.6   leasehold does not provide for eviction or cancellation of the 
  9.7   lease upon the ground provided in this section. 
  9.8      Upon a finding by the court that the tenant or lessee has 
  9.9   maintained or conducted a nuisance in any portion of the 
  9.10  building under the control of the tenant or lessee, the court 
  9.11  shall order cancellation of the lease or tenancy and grant 
  9.12  restitution of the premises to the owner.  The court must not 
  9.13  order abatement of the premises if the court:  
  9.14     (a) upon the motion of the building owner cancels a lease 
  9.15  or tenancy and grants restitution of that portion of the 
  9.16  premises to the owner; and 
  9.17     (b) further finds that the acts constituting the nuisance 
  9.18  as defined in section 617.81, subdivision 2, were committed in a 
  9.19  portion of the building under the control of the tenant or 
  9.20  lessee whose lease or tenancy has been canceled pursuant to this 
  9.21  section. 
  9.22     Sec. 14.  Minnesota Statutes 1994, section 617.87, is 
  9.23  amended to read: 
  9.24     617.87 [RELEASE OF PROPERTY.] 
  9.25     If, after an order of abatement has been entered, the owner 
  9.26  appears and pays the costs of the action and files a bond in an 
  9.27  amount determined by the court, but not to exceed $50,000, 
  9.28  conditioned that the owner will immediately abate the nuisance 
  9.29  for a period of one year, the court may, if satisfied of the 
  9.30  owner's good faith, order the release of the building or portion 
  9.31  of it which is subject to the order of abatement.  If the 
  9.32  premises are released, for each day during the term of the bond 
  9.33  that the owner knowingly permits any part of the premises to be 
  9.34  used for any activity which was the basis of the abatement 
  9.35  order, the owner shall forfeit $1,000 under the bond.  
  9.36  Forfeiture under the bond does not relieve the owner from 
 10.1   prosecution for contempt.  Release of the property pursuant to 
 10.2   this section does not release it from an injunction issued under 
 10.3   section 617.83 617.815 or 617.83 or any other judgment, penalty, 
 10.4   lien, or liability to which it may be subject by law. 
 10.5      Sec. 15.  [REPEALER.] 
 10.6      Minnesota Statutes 1994, section 617.81, subdivisions 2a 
 10.7   and 3, are repealed.