Each Probate Judge, Sheriff, District Court Clerk, the
Clerk and Register of the Circuit Court, County Commission
Chairman and Municipal Clerk is required by law to
preserve this slip or pamphlet in a book kept in his office
until the Act is published in permanent form.

ALABAMA LAW
        (Regular Session, 1996)

Act No. 96-566                          S. 141 - Senator McClam

AN ACT

    To provide a civil remedy for the abatement of drug-related nuisances; to make
legislative findings; to define certain terms; to set out adverse impacts of
drug related nuisances; to require notice to owners of property where drug related
nuisances occur; to provide jurisdiction in circuit courts to provide standing to
certain officials and private parties who may institute drug-related nuisance
proceedings; to provide for hearings on preliminary injunctions; to provide for ex
parte restraining orders, civil penalties, and protection of witnesses to provide that a
drug conviction not be required; to provide for security bends and limitations thereof;
to permit use of evidence of the general reputation of the property of the defendant to
prove nuisance to authorize judgments and remedies; to define burden of proof
required; to prohibit punitive damages; to set out factors which may be considered in
determining existence of a drug nuisance; to provide for punishment for contempt
and for violations of court orders; to provide for cancellation of court orders and
circumstances therefor; to provide for award of costs and attorney fees for frivolous
and bad faith proceedings brought by private parties; and to provide for severability.

Be It Enacted by the Legislature of Alabama:

     Section 1.  The Legislature finds and declares the following:

    (1) There is a drug crisis in the State of Alabama which
is plaguing our neighborhoods and our housing and rental
accommodations.

    (2) Drugs have caused an increase in crime and violence and a
deterioration in the habitability of housing and rental
accommodations, as well as diminished property values.

    (3) Currently there are inadequate incentives for property
owners to take a more active role in preventing the use of their
property for the manufacture, use, sale, storage, or distribution of
drugs.

    Section 2.  The following words and phrases when used in
this act shall have the meanings given to them in this section
unless the context clearly indicates otherwise:
(1) COMMUNITY-BASED ORGANIZATION. Any group,
whether incorporated or unincorporated, affiliated with or
organized for the benefit of one or more communities or
neighborhoods containing an alleged drug-related nuisance, or any
group organized to improve the quality of life in a residential area
containing the alleged drug-related nuisance.

    (2) CONTROLLED SUBSTANCE ACTS. The provisions of
Sections 20-2-1 et seq., Code of Alabama 1975, known as the
"Alabama Uniform Controlled Substance Act," and Sections
13A-12-201 et seq., Code of Alabama 1975, known as "The Drug
Predator Act of 1987," and Sections 13A-12-210 et seq., Code of
Alabama 1975, known as "The Drug Crimes Amendments Act of
1987."

    (3) DRUG-RELATED NUISANCE. a. Any property, in whole or
in part, used or intended to be used to facilitate any violation of the
Controlled Substance Acts or any similar ordinance of any
municipality in this state or a similar act of the United States or
any other state.

    b.  The  use,  sale,  distribution,  possession,  storage,
transportation, or manufacture of any controlled substances in
violation of the Controlled Substance Acts, or similar act of the
United States or any other state.

    c. Drug-related nuisance includes, but is not limited to, conduct
unlawful in itself or unreasonable under the circumstances,
knowingly or recklessly creating or maintaining a condition which
endangers the safety or health of persons not occupying the
property alleged to be a drug-related nuisance, and knowingly or
recklessly conducting or maintaining any premises or place where
persons gather for purposes of engaging in drug-related activities.
For purposes of this definition, "knowingly" means either actual
awareness or should have reasonably known.

    (4) MANUFACTURING. The production, preparation,
propagation, compounding, conversion, or processing of a controlled
substance, either directly or indirectly, by extraction from
substances of natural origin or independent means of chemical
synthesis, including any packaging or repackaging of the drug or
labeling or relabeling of its container.

    (5) OWNER. An individual, corporation, partnership, trust
association, joint venture, or any other business entity, and the
respective agents of the individuals or entities, in whom is vested
all or any part of the title to the property alleged to be a drug-
related nuisance.

(6) PROPERTY. Tangible real property, or an interest in real
property, including an interest in any leasehold, license, or real
estate, including any house, apartment building, condominium,
cooperative, office building, store, restaurant, tavern, nightclub, or
warehouse, and the land extending to the boundaries of the lot upon
which the structure is situated, and anything growing on, affixed to,
or found on the land.

    (7) PROSECUTING ATTORNEY. The Attorney General,
district attorney, or county, municipal, or private attorney bringing
a drug-related nuisance action.

    (8) TENANT. A person who resides in or occupies property
belonging to another person pursuant to a lease agreement, or
pursuant to a tenancy under the common law.

    Section 3.  Wherever there is reason to believe that a
drug-related nuisance exists, the Attorney General, district
attorney, the attorney for the county ar municipality, a person
residing in the county in which the property is located including a
tenant of the property, or any community-based organization, may
file an action in the circuit courts of this state to abate, enjoin, and
prevent the drug-related nuisance. The actions shall be commenced
by the filing of a complaint in circuit court of the county in which
the nuisance is situated alleging the facts constituting the
drug-related nuisance.

    Section 4.  (a) The complaint or an affidavit attached thereto
shall describe the adverse impact associated with the drug-related
nuisance upon the surrounding neighborhood. Adverse impact
includes, without limitation, the presence of any one or more of the
following conditions:

 (1) Diminished property value.

    (2) Increased fear of residents to walk through or in public
areas, including sidewalks, streets, alleys, and parks.

    (3) Increased volume of vehicular and pedestrian traffic to and
from the property.

    (4) An increase in the number of ambulance or police calls to the
property which are related to the use of drugs, or to violence
stemming from drug-related activity.

    (5) Bothersome solicitors or approaches by strangers wishing to
sell drugs, or the aggressive solicitation of aims, on or near the
property.

(6) The display of dangerous weapons on or near the property.


(7) Investigative purchases of drugs by law enforcement officers
on or near the property.

 (8) Arrests of persons on or near the property.
 (9) Housing code violations relating to the property,
 (10) Health code violations relating to the property.

 (11) Accumulation of trash and refuse in common areas on or
adjacent to the property.

 (12) Unsecured entryways on the property.

 (13) Loitering.
 (14) Unreasonable noise.

 (15) Search warrants served or executed at the property.
    (16) The number of complaints made to law enforcement and
other government officials about the alleged illegal activity
associated with the property.

 (17) The discharge of a firearm at the property.

 (18) Violations of zoning laws or regulations at the property.

    (b) The complaint shall contain a description of attempts made
by the plaintiff, or any other person or entity, to notify the owner of
the property on which the drug-related nuisance is situated and the
resulting adverse impact thereof. No complaint shall be flied unless
there has been at least one notice to the owner of the alleged
drug-related nuisance 21 days prior to the filing of the complaint.
Notice shall be served on the owner in accordance with the Alabama
Rules of Civil Procedure. If personal service can not be made,
service may be made by posting the papers at the property.

    (c) When an action is brought under this act by a private
individual, the complaint shall be supported by at least five
residents residing or owning real property within 1,000 feet of the
premises alleged to be a drug-related nuisance. The support shall be
in the form of an affidavit attesting to the fact that the residence of
the affiant is within 1,000 feet of the alleged drug-related nuisance,
and that the affiants have witnessed the alleged drug-related
nuisance, and are aware of an adverse impact of the alleged
drug-related nuisance.

    Section 5.  A copy of the summons and complaint shall be
served upon the defendant at least five business days prior to the
first hearing in the action. Service shall be made in accordance with
the Alabama Rules of Civil Procedure. 1f personal service cannot be

made, service may be made by posting the papers at the property. If
service is made by posting papers to the preperty, a copy of the
summons and complaint shall be mailed to the last known mailing
address, if any, of the defendant.

    Section 6.  (a) Upon a filing of a motion for a preliminary
injunction to abate the drug-related nuisance, the plaintiff shall be
entitled to a hearing on the motion within 10 business days of the
filing. If it appears by affidavit or otherwise, that there is a
substantial likelihood that the plaintiff will be able to prove a
drug-related nuisance by a preponderance of evidence, the circuit
court may issue a preliminary injunction and grant other relief as
the court may deem to be appropriate, including those remedies
provided by Section 14.

    (b) When appropriate, the court shall order the trial of the
action on the merits to be advanced and consolidated with the
hearing on the motion for a preliminary injunction.

    (c) This section shall not be construed to prohibit the application
for or the granting of a temporary restraining order or other
equitable relief provided by law.

    Section 7.  (a) The court, upon the application of the plaintiff,
may issue an ex parte restraining order, restraining the defendant
and all other persons from removing, or in any manner interfering
with, the personal property and contents of the place where the
drug-related nuisance is alleged to exist, until a decision of the
court granting or refusing to grant a temporary injunction, or until
further order of the court.

    (b) The restraining order may be served by handing it to and
leaving a copy of the order with any person appearing to reside
therein, or by posting a copy thereof in a conspicuous place at or
upon one or more of the principal doors or entrances to the place, or
by both delivery and posting.
    (c) The officer serving a restraining order shall forthwith
attempt to make and return to the court an inventory of the
personal property and contents situated in, and apparently used in,
conducting or maintaining the drug-related nuisance. Any violation
of the restraining order shall be a contempt of court, and where the
order is posted, if it is removed or mutilated while it remains in
force, is a contempt of court, provided that the posted order contains
a notice to that effect.

    Section 8.   In any action brought under this act, the
complainants may request, and the court at its discretion may order
a civil penalty of up to one thousand dollars ($1,000) for each day
the nuisance exists, with the penalty payable to the general fund of
the municipality in which the nuisance was located, or one-half to
the state and one-half to the general fund of the county if situated
outside the boundaries of a municipality.
    Section 9.  If proof of the existence of the drug-related
nuisance depends, in whole or in part, upon the affidavits of
witnesses who are not law enforcement officers, upon a showing of
prior threats of violence or acts of violence by any defendant or
other person using the property alleged to be a drug-related
nuisance, the court may issue orders to protect those witnesses,
including, but not limited to, nondisclosure of the name, address, or
any other identifying information.

    Section 10.  A previous conviction of the defendant, or
anyone, shall not be required to demonstrate a drug-related
nuisance.

    Section 11.  No security bond shall be required to issue a
preliminary injunction or temporary restraining order sought by the
Attorney General, district attorney, or an attorney appearing for the
county or municipality. Otherwise, at the discretion of the court, a
security bond may be required to issue a preliminary injunction or
temporary restraining order. Where relief is issued after an
evidentiary hearing at which witnesses are subject to cross
examination, the court shall not require a security bond in excess of
one thousand dollars ($1,000).

    Section 12.  In an action brought under this act, evidence of
the general reputation of the property of the defendant shall be
admissible for the purpose of proving a drug-related nuisance, and
for the purpose of proving the knowledge of the defendant of the
drug-related nuisance.

    Section 13.  (a) If a complaint is filed by a private citizen, it
may not be dismissed except upon a sworn statement by the
complainant and his or her attorney, setting forth the reason why
the action should be dismissed. A copy of the sworn statement shall
be sent to the Attorney General and the district attorney at least
seven days prior to its presentment to the court.

    (b) If the court is of the opinion that the action should not to be
dismissed, it may direct the district attorney or prosecuting
attorney to prosecute the action to judgment.
    (c) Any citizen of the county in which the alleged drug-related
nuisance is located, or an interested community-based organization,
may be substituted for the complainant and prosecute the action to
judgment.


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    Section 14.  (a) The plaintiff is required by a preponderance of
the evidence to establish that a drug-related nuisance exists. The
plaintiff is required by clear and convincing evidence to establish
that the owner of the property who is not a resident or in actual
possession of the property was criminally culpable in aiding and
abetting in the drug related nuisance.
    (b) If the existence of a drug-related' nuisance is found, the
judgment may include actual damages and an injunction to
restrain, abate, and prevent the continuance or recurrence of the
drug-related nuisance. The court may grant declaratory relief,
mandatory orders, or any other relief deemed necessary to
accomplish the purposes of the injunction or order and enforce the
judgment or order.

    (c) The court may retain jurisdiction of the case for the purpose
of enforcing its orders.

    (d) If the existence of a drug-related nuisance is found, the court
shall have additional power to fashion any one or more of the
following remedies:

    (1) Assess damages against the defendant in favor of each
plaintiff of not less than three hundred dollars ($300) nor more than
forty thousand dollars ($40,000), or a lien on the property.

(2) Assess costs of the action against the defendant.

    (3) Assess reasonable attorney fees since the filing of the
complaint, payable to a private attorney filing the complaint or the
municipal, county, or state agency by which the prosecuting
attorney is employed.

    (4) When a government agency is a plaintiff in the action, assess
a fine against the defendant of not less than five hundred dollars
($500) nor more than fifty thousand dollars ($50,000) in addition to
attorney fees.

    (5) Order the owner to clean up the property and make repairs
upon the property.

    (6) Suspend or revoke any business, housing, operational, or
liquor license. The suspension of any beer, wine, or liquor license
held by or belonging to the defendant for at least 90 days is
mandatory if the court finds a drug-related nuisance.

    (7) Order the owner to make additional reasonable expenditures
upon the property, including, but not limited to, installing secure
locks on doors, hiring private security personnel, increasing lighting
in common areas, and using videotaped surveillance of the property
and adjacent alleyways, sidewalks, and parking lots.


8

    (8) Order all rental income from the property to be placed in an
escrow account with the court for up to 90 days or until the
drug-related nuisance is abated.

    (9) Order all rental income for property transferred to a trustee,
to be appointed by the court, who shall be empowered to use the
rental income to take reasonable expenditures related to the
property in order to abate the drug-related nuisance.

    (10) Order. the suspension of any state, city, or local
governmental subsidies payable to the owners of the property,
including, but not limited to, tenant assistance payments to
landlords, until the nuisance is abated.
    (11) Allow the plaintiff to seal the property with the cost of
sealing payable by the defendant.

    (e) In making any order under this act, the court shall consider,
among others, the following factors:

    (1) The effect the drug-related nuisance has had on the
community.
  (2) The number of people residing at the property.
  (3) The proximity of the property to other residential structures.
 (4) The number of times the property has been cited for housing 
code or health code violations. 
  (5) The number of times the owner has been notified of
drug-related problems at the property.
    (6) The extent and duration of the drug-related nuisance at the
time of the order.
    (7) Prior efforts or lack of effort by the defendant to abate the
drug-related nuisance.
  (8) The involvement of the owners in the drug-related nuisance.
    (9) The costs incurred by the jurisdiction, community-based
organization, individuals, or their attorneys, investigating,
correcting, or attempting to correct the drug-related nuisance.
     (10) Whether the drug-related nuisance was continuous or 
recurring. 
    (11) The economic or financial benefit accruing or likely to
accrue to the defendant as a result of the conditions constituting the 
drug-related nuisance. 
(12) Any other factors the court deems relevant.

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    (f) In making an order under subsection (d), the court shall not
consider the lack of action by other property owners to abate alleged
drug-related nuisances.

    (g) If the building is ordered closed, then the court shall appoint
a receiver to sell all of the furnishings and fixtures located in the
building which are owned by the building owner, and place the
funds from the sale in an escrow account to be used to satisfy the
judgment. If the proceeds are inadequate to pay the judgment, the
court may order public sale of the property with the proceeds to be
paid into an escrow account.

    (h) The owner of the property on which a tenant maintains a
drug-related nuisance may in the same proceeding seek the eviction
of the tenant.

    Section 15.  (a) A violation of any court order issued pursuant
to this act is punishable as a contempt of court by a fine of not less
than five hundred dollars ($500) nor more than seventy-five
thousand dollars ($75,000), or by imprisonment for not more than
one year, or both. Evidence concerning the duration and repetitive
nature of the violations shall be considered by the court in
determining the penalty for contempt.

    (b) Upon finding that a defendant has willfully violated an order
issued pursuant to this act, the court may issue any additional
orders necessary to abate the drug-related nuisance or to carry out
the punishment for contempt.

    (c) The court may suspend the effectiveness of an order of
abatement for no more than 90 days if the owner of the property
establishes that he or she had no knowledge of the drug-related
nuisance, and could not reasonably be expected to have knowledge,
and the owner avers under oath that he or she will immediately
undertake specified measures to abate the nuisance for the following
two-year period. An abatement order issued pursuant to this
subsection may not be issued for the benefit of a defendant who has
been found in contempt of court as part of the same action. An order
issued pursuant to this subsection is a suspension and is not a
withdrawal of the original order.

    (d) The courts shall cancel the order of abatement if the owner
of the property satisfies the court that the drug-related nuisance
has been abated for the past 90 days, corrects all housing code and
health code violations, and posts a bond in an amount to be
determined by the court, which shall be immediately forfeitable if
the drug-related nuisance recurs during the following two-year
period.

10

    Section 16.  If the action is brought by a private citizen and
the court finds that the action was frivolous or motivated by bad
faith, costs and attorney fees may be taxed to the person.

    Section 17.  The provisions of this act are severable. If any
part of this act is declared invalid or unconstitutional, that
declaration shall not affect the part which remains.

    Section 18.  All laws or parts of laws which conflict with this
act are repealed. 

    Section 19.  This act shall become effective immediately upon
its passage and approval by the Governor, or upon its otherwise
becoming a law.

Approved May 20, 1996

Time: 9:30 A.M.

    I hereby certify that the foregoing copy of an Act of the
Legislature of Alabama has been compared with the enrolled Act
and it is a true and correct copy thereof.

Given under my hand this 20th day of May, 1996.

McDOWELL LEE
     Secretary of Senate