SENATE BILL NO. 323
AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2
AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO CERTAIN NUISANCES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :
Section 1. Amend sections 7101, 7102, 7103, 7104, 7105, 7106, 7107, 7108, 7109, 7201, 7202, 7203, 7204, 7205, 7206, 7207, 7208, 7209 and 7210 of Title 10 of the Delaware Code by striking said sections in their entirety, and by substituting in lieu thereof the following:
“§7101. Short title.
This chapter shall be known as and may be cited as the Delaware Drug Nuisance and Social Vices Abatement Act.
§7102. Purpose; construction.
(a) This chapter shall be liberally construed and applied so as to promote its underlying purposes, which are:
(1) to authorize temporary and permanent abatement relief and other remedies to abate drug nuisance or illegal drug activity as defined herein, as well as a variety of nuisances involving social vices such as lewdness, assignation, prostitution and illegal gambling;
(2) to eliminate locations that otherwise attract criminals, violence and the threat of violence associated with either illegal drug trade or any of the other nuisances involving social vices cited above;
(3) to abate drug nuisances and illegal drug activity as well as the other nuisances involving social vices cited above that otherwise reduce property values, injure legitimate businesses and commerce and erode the quality of life for law-abiding persons working or residing in or near these locations;
(4) to ensure that the civil actions and remedies authorized by this Chapter be heard by the courts on a priority basis to expeditiously identify and abate all nuisances, particularly those involving illegal drug trade or activity; and
(5) to encourage owners, landlords, operators and managers of buildings, places or premises (hereinafter referred to as ‘premise’) to take the affirmative steps necessary to prevent violations on their properties involving any of the above nuisances, particularly those involving illegal drug trade or activity.
(b) Any action brought pursuant to this Chapter, regardless of the remedy or remedies sought or ordered, is intended to be by the General Assembly and shall be deemed to be an action for abatement of a nuisance.
As used in this chapter, unless the context indicates differently:
(a) ‘Illegal drug activity’ means the unlawful selling, serving, storing, giving away or manufacturing (which includes the production, preparation, compounding, conversion, processing, packaging or repackaging) of any drug, including all narcotic or psycho-active drugs, cannabis, cocaine and all controlled substances as defined in Chapter 47 of Title 16 of the Delaware Code.
(b) ‘Nuisance’ means that which is defined and declared by statutes to be such and also means any one place or building in or upon which a drug nuisance, drug distribution event, lewdness, assignation, prostitution, illegal gambling or illegal drug activity is conducted, permitted, continued, or exists, and the personal property and contents used in conducting or maintaining any such place or building for any such purpose. The term ‘lewdness’ includes all manner of lewd sexual conduct or live exhibition and shall include, but is not limited to, any one place or building, in or upon which obscene films or plate negatives, film or plate positives, films designed to projected on a screen for exhibition, films, or glass slides either in negative or positive form designed for exhibition by projection on a screen are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and any place or building where obscene books, magazines or articles are the principal part of the stock in trade.
(c) ‘Drug distribution event’ means the unlawful manufacture, distribution, sale, or possession with intent to distribute, sell or deliver a controlled substance, or any act or acts which constitute any felony set forth in Chapter 47 of Title 16 of the Delaware Code, or an unlawful attempt or conspiracy to commit such an act.
(d) ‘Controlled substance,’ ‘manufacture,’ ‘distribution,’ ‘sale,’ and ‘possession with intent to sell or distribute’ shall have the same meaning as those terms are used in Chapter 47 of Title 16 of the Delaware Code.
(e) ‘Court’ means the Superior Court of the State of Delaware.
(f) ‘Drug nuisance’ means a single building or premises at which:
(1) three or more separate drug distribution events have occurred within the period of one year prior to the commencement of the civil action under this Chapter, provided that at least one such event formed the basis of a criminal prosecution during which a finding of probable cause was made by either a neutral magistrate or a Grand Jury; or
(2) on three or more separate occasions within the period of six months prior to the commencement of the civil action under this Chapter, three or more persons who did not reside in or upon such site gathered for the principal purpose of unlawfully ingesting, injecting, inhaling, or otherwise using a controlled substance, whether or not any such controlled substance was unlawfully distributed or purchased at such location, provided that at least one of such events formed the basis of a criminal prosecution during which a finding of probable cause was made by either a neutral magistrate or a Grand Jury; or
(3) any amount of controlled substance has been manufactured, unlawfully stored, warehoused or otherwise kept in at least the following amounts:
(A) 5 or more pounds of marijuana; or
(B) 15 or more grams of cocaine; or
(C) 50 or more doses of LSD, or 5 or more milligrams if in liquid form; or
(D) any other controlled substance in an amount of 15 grams or more, whether or not three or more separate such unlawful acts have occurred within any prescribed period of time provided that at least one of such events described in subparagraphs (A), (B), (C), or (D) above formed the basis of a criminal prosecution during which a finding of probable cause was made by either a neutral magistrate or a Grand Jury.
(g) ‘Landlord’ shall have the same meaning as that term is defined in 25 Del. C. Sec. 5141.
(h) ‘Neighborhood or community organization’ means a group, whether or not incorporated, which consists of persons who reside, work or worship at or in a building, complex of buildings, street, block or neighborhood, any part of which is located on or within 1,000 feet of the premises alleged to be a nuisance, which has a purpose of benefiting the quality of life in its neighborhood or community, including treatment programs.
(i) ‘Obscene material’ is any material that:
(1) the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest; and
(2) the material depicts or describes:
A. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or
B. Patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals; and
C. The work taken as a whole lacks serious literary, artistic, political or scientific value.
(j) ‘Owner’ means any person in whom is vested the ownership and title of property, and who is the owner of record. ‘Owner’ shall include any local, city, county, state or federal governmental entity.
(k) ‘Person’ means any individual, corporation, association, partnership, trustee, landlord, lessee, agent, assignee, enterprise, governmental entity, and any other legal entity or group of individuals associated in fact which is capable of holding a legal or beneficial interest in property.
(l) ‘Place,’ ‘site,’ or ‘premises’ includes any building, structure, erection, or any separate part or portion thereof, whether used as a residence, for commercial purposes or a house of worship, or the ground itself.
§7104. Maintenance of nuisance or illegal drug activity.
Any person who uses, occupies, establishes, or conducts a nuisance or illegal drug activity as defined in §7103 of this Chapter, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance, together with the persons employed in or in control of any such nuisance by any such owner, agent, or lessee shall be guilty of maintaining a nuisance and shall be enjoined as provided in this chapter.
§7105. Action to abate nuisance or illegal drug activity.
Whenever a nuisance or illegal drug activity exists, the Attorney General, or any person as so defined in §7103 and §7107 of this Chapter, may bring an action in abatement in the name of the State, upon the relation of the Attorney General, or such person, to abate such a nuisance or illegal drug activity, to prohibit the commission of same or drug distribution events, to close down and physically secure premises or portions thereof which constitute nuisances and to otherwise abate such nuisances or illegal drug activity and to perpetually prohibit the person maintaining the same from further maintenance thereof as well as seek and obtain the imposition of civil penalties.
§7106. Jurisdiction; complaint; notice of lis pendens.
(a) Any action under this Chapter shall be brought in the Superior Court of the county in which the property is located.
(b) At or before the commencement of the action a verified complaint alleging the facts constituting the nuisance or illegal drug activity shall be filed in the office of the Prothonotary of Superior Court, together with a notice of the pendency of the action, containing the names of the parties, the object of the action, and a brief description of the property affected thereby. Such notice of lis pendens shall be immediately recorded by the Prothonotary.
(a) A civil action for temporary or permanent abatement relief or for penalties pursuant to this chapter may be brought by:
(1) the municipal or county attorney representing any municipal or county governing body which has jurisdiction over the location at which the alleged nuisance exists; or
(2) the Attorney General; or
(3) any neighborhood or community organization as defined in this chapter; or
(4) any person who resides, worships or works full or part-time at or in a building, complex of buildings, street, block or neighborhood, any part of which is located on or in within 1,000 feet of the premises alleged to be a nuisance, or any person who owns or operates a business premises which is located on or in within 1,000 feet of the premises alleged to be a nuisance, or
(5) any landlord, manager or operator of any premises alleged to be a drug nuisance.
(b) A civil action pursuant to this chapter shall be brought against the owner unless said action is brought by an owner or landlord of the premises alleged to be a nuisance, and may also be brought against any person within the jurisdiction of the court who is a landlord, tenant, occupant, manager, operator or supervisor of any premises alleged to be a nuisance. However, in any action initiated against an owner or landlord, it shall be a valid defense for the owner or landlord to establish, by a preponderance of the evidence, that said owner or landlord attempted to abate the alleged nuisance by previously notifying or contacting the local police about the alleged nuisance or by bringing an eviction action pursuant to this Chapter or a summary possession action pursuant to Chapter 57 of Title 25 of the Delaware Code. Further, the court shall have in rem jurisdiction over the premises alleged to be a nuisance, and the complaint initiating a civil action pursuant to this Chapter shall name as a defendant the premises involved, describing it by block, lot number and street address, or by such other means as are appropriate in the circumstances.
(c) No person or entity shall be required to post any bond or security as a condition of initiating or prosecuting any action brought pursuant to this chapter.
(d) Any person or entity who upon an oath in writing states the affiant is preparing to initiate an action pursuant to this chapter may request that the Recorder of Deeds for the county in which the premises are located promptly provide the name and address of all owners of the premises as reflected upon the current county records, without charge.
(e) The person in whose name the premises involved is recorded in the Recorder of Deeds office shall be presumed to be the owner thereof.
(f) Whenever there is evidence that a person was the manager, operator, supervisor or was in any other way in charge of the premises involved at the time of any conduct constituting the nuisance is alleged to have been committed, such evidence shall be rebuttably presumptive that he or she was an agent or employee of the owner, landlord or lessee of the premises.
§7108. Notice to interested parties.
(a) A complaint initiating an action pursuant to this chapter shall be personally served and notice to all in personam defendants shall be provided in the same manner as serving complaints in civil actions. Where the in personam defendant is an owner or landlord, notice shall also be served by leaving a copy of the complaint at the landlord's address as set forth in the lease or as otherwise provided by landlord with an adult person residing therein, or with an agent or other person in the employ of the owner or landlord whose responsibility it is to accept such notice. If the owner or landlord is an artificial entity pursuant to Supreme Court Rule 57, service of the notice or process may be made by leaving a copy thereof at its office or place of business as set forth in the lease with an agent authorized by appointment or by law to receive service of process. Where the in personam defendant is a tenant, notice shall also be served by leaving a copy of the complaint at the person's rental unit or usual place of abode with an adult person residing therein. After filing an affidavit that personal service cannot be had after due diligence on one or more in personam defendants, within twenty days after the filing of the complaint, the plaintiff may serve a copy of the complaint by registered or certified mail or First Class mail as evidenced by a certificate of mailing postage-prepaid, addressed to the owner or landlord at the owner or landlord's business address as set forth in the lease or as otherwise provided by the owner or landlord, or if the owner or landlord is an artificial entity, pursuant to Supreme Court Rule 57, at its office or place of business, or if the defendant is a tenant , to said tenant at the leased premises. The return receipt of the notice, whether signed, refused or unclaimed, sent by registered or certified mail, or the certificate of mailing if sent by First Class mail, shall be held and considered to be prima facie evidence of the service of the notice or process. The plaintiff shall also cause a copy of the complaint to be affixed conspicuously to the premises alleged to be the site of a nuisance. Service shall be deemed completed five days after filing with the court proof of such mailing and an affidavit that a copy of the complaint has been affixed to the premises.
(b) All tenants or residents of any premises which is used in whole or in part as a business, home, residence or dwelling, other than transient guests of a guest house, hotel, or motel, who may be affected by any order issued pursuant to this Chapter shall be provided such reasonable notice as shall be ordered by the court and shall be afforded opportunity to be heard at all hearings.
§7109. Substitution of plaintiff.
When the court determines in its discretion that the plaintiff bringing an action pursuant to this chapter has failed to prosecute the matter with reasonable diligence, the court may substitute as plaintiff any person or entity that consents thereto, provided that such person or entirety would have been authorized pursuant to this chapter to initiate the action.
§7110. Delay and dismissal of actions.
(a). All actions brought pursuant to this Chapter shall be heard by the court on an expedited and priority basis. The court shall not grant a continuance except for compelling and extraordinary reasons, or upon the application of the Attorney General for good cause shown.
(b) The court shall not stay the civil proceedings pending the disposition of any related criminal proceeding except for compelling and extraordinary reasons or except upon the application of the Attorney General for good cause shown.
(c) The court shall not dismiss an action brought pursuant to this Chapter for want of prosecution unless the court is clearly convinced that the interests of justice require such dismissal. In that event and upon such a finding, the dismissal shall be without prejudice to the right of the plaintiff or any other person or entity authorized to bring an action pursuant to this Chapter to re-institute the action.
§7111. Issuance of ex parte temporary order to abate nuisance; temporary abatement order; procedure; hearing for nuisance.
(a) Any person or entity authorized to bring a civil action for abatement relief pursuant to this chapter may file a complaint seeking temporary relief by alleging that the premises constitute a nuisance or drug nuisance. Upon receipt of the complaint, the Court, on application of the plaintiff, may issue an ex parte temporary abatement order prohibiting the defendants and all other persons from committing or permitting any act or acts of waste to the premises, or to the personal property and contents thereof, and from knowingly tampering with any evidence likely to be used by any party in any judicial proceeding until the decision of the Court granting or refusing the temporary abatement order thereon. Absent such ex parte relief by the Court, then upon receipt of the complaint, the court shall order a preliminary hearing which shall not be later than 10 days from the date of said order. Service shall be made upon all in personam defendants pursuant to §7108 of this Chapter not less than five days prior to the hearing. In the event that service cannot be completed in time to give the owners or tenants the minimum notice required by this subsection, the court may set a new hearing date.
(b) If the court finds 1) that the premises constitute a nuisance or drug nuisance, 2) that at least 30 days prior to the filing of the complaint seeking temporary abatement relief, the owner or the owner's agent (or tenant, where such is an in personam defendant) had been notified by certified letter of the nuisance or drug nuisance, and 3) that the public health, safety or welfare immediately requires a temporary closing order and unless the owner or the owner's agent shows to the satisfaction of the court that the nuisance or illegal drug activity complained of has been abated, or that such person proceeded forthwith to enforce his or her rights under this Chapter as more fully set forth herein, the court shall issue a temporary abatement order to close the premises involved or the portions appropriate in the circumstances. The order shall direct actions necessary to physically secure the premises, or appropriate portions thereof, against use for any purpose. The temporary abatement order shall also prohibit the defendant and all persons from removing or in any manner interfering with the furniture, fixtures and movable or personal property located on or within the premises constituting the nuisance or drug nuisance. Where a tenant is a defendant, the court may issue a closing order prohibiting him or her from residing at or having contact with the premises.
(c) If the court finds that the premises constitute a nuisance or drug nuisance but that immediate closing of the premises is not required pursuant to subsection (b), the court may abate the nuisance or illegal drug activity by issuing an order prohibiting the defendants and all other persons from conducting, maintaining, aiding, abetting or permitting events constituting the nuisance or illegal drug activity, or from otherwise having contact with the premises. Additionally, the court may issue an order appointing a temporary receiver to manage or operate the premises. A temporary receiver shall have such powers and duties specifically authorized pursuant to § 7113 of this Chapter.
(d) In determining whether the public health, safety or welfare immediately requires a temporary abatement order, the court shall consider any relevant evidence presented concerning any attendant circumstances, including but not limited to whether the alleged nuisance, drug nuisance or illegal drug activity, or drug distribution events or related activities involve the use or threat of violence at or near the site alleged to be a nuisance or site of illegal drug activity, or whether the alleged distribution events in any way involve distribution or sale of a controlled substance by or to a juvenile, or whether the site alleged to be a nuisance or location of illegal drug activity is located within a drug-free zone within the meaning of §§ 4767 and 4768 of Title 16 of the Delaware Code.
(e) The abatement order shall be served pursuant to the procedures set forth in § 7108 of this Chapter, and by both such delivery and posting. The officer serving such abatement order shall forthwith make and return into Court an inventory of the personal property and contents situated in and used in conducting or maintaining the nuisance. Any violation of such abatement order shall be a contempt of court, and where such order is so posted, mutilation or removal thereof, while the same remains in force, shall be a contempt of court, provided such posted order contains thereon or therein a notice to that effect.
(f) A copy of the complaint together with a notice of the time and place of the hearing of the application for a temporary abatement order shall be served upon the defendants at least 5 days before the hearing. If the hearing be then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course.
(g) Each defendant so notified shall serve upon the complainant, or his attorney, a verified answer on or before the date fixed in the notice for the hearing and such answer shall be filed with the Prothonotary’s Office wherein the cause is triable, but the Court may allow additional time for so answering, providing such extension of the time shall not prevent the issuing of the temporary writ as prayed for. The allegations of the answer shall be deemed to be denied without further pleading.
(h) If upon the hearing the allegations be sustained to the satisfaction of the Court, the Court shall issue a temporary abatement order without bond prohibiting the defendants and any other person or persons from continuing the nuisance. When the temporary abatement order has been granted, it shall be binding on the defendants. Any violation thereof shall be contempt of court, to be punished as provided in this chapter.
(i) If at the time of granting a temporary abatement order, it further appears that the person owning, in control, or in charge of the nuisance so abated has received 5 days notice of the hearing, and unless such person shows to the satisfaction of the Court that the nuisance complained of has been abated, or that such person proceeded forthwith to enforce his rights under this chapter, the Court shall forthwith issue an order closing the place against its use for any purpose until the final decision is rendered on the application for a permanent abatement order. Such order shall also continue in effect for such further period as the abatement order provided for in the section if already issued, or, if not so issued, shall include such an order prohibiting for such period the removal or interference with the personal property and contents located thereat or therein as provided in this section, and such abatement order shall be served and the inventory of such property shall be made and filed as provided in this section.
(j) The owner or owners of any real or personal property so closed or prohibited, or to be closed or prohibited, may appear at any time between the filing of the complaint and the hearing on the application for a permanent abatement order, and, upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the Court in an amount not to exceed 50% of the value of premises alleged to a nuisance, said value to be ascertained by the court conditioned that such owner or owners will immediately abate the nuisance and prevent the same from being established or kept until the decision of the Court has been rendered on the application for a permanent abatement order, then and in that case, the Court, if satisfied of the good faith of the owner of the real property and of the lack on the part of any owner of the personal property of any actual knowledge of the use of such personal property as a nuisance, and that, with reasonable care and diligence, such owner could not have known thereof, shall deliver such real or personal property, or both, to the respective owners thereof, and cancel or refrain from issuing at the time of the hearing on the application for the temporary abatement order, as the case may be, any order or orders closing such real property or prohibiting the removal or interference with such personal property.
(k) The release of any real or personal property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subjected by law.
(l) Notwithstanding any provision of this section to the contrary, no person who is a tenant of any premises which is found by the court to constitute a nuisance or drug nuisance shall be evicted or otherwise removed from said premises pursuant to an ex parte order if he or she is a tenant of such premises pursuant to a valid lease, nor shall any such person be evicted or otherwise removed from said premises unless he or she is first provided with reasonable notice of any hearing and an opportunity to be heard at any such hearing.
§7112. Enforcing ex parte and temporary abatement orders.
(a) Upon order of the court, ex parte closing orders and temporary abatement orders shall be enforced by the appropriate police agency having jurisdiction over the area where the premises are located.
(b) The officers serving an ex parte closing order or a temporary abatement order shall file with the court an inventory of the personal property situated in or on the premises closed and shall be allowed to enter the premises to make the inventory. The inventory shall provide an accurate representation of the personal property subject to such inventory including, but not limited to, photographing of furniture, fixtures and other personal or movable property.
(c) The officers serving an ex parte closing order shall, upon service of the order, demand all persons present in the premises closed, to vacate such premises or portion thereof forthwith unless the court orders otherwise. The premises or portion thereof shall be securely locked and all keys shall be held by the agency closing the premises.
(d) Upon service of an ex parte closing order or a temporary abatement order, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of the premises. In addition, where an ex parte closing order has been granted, the officers shall affix, in a conspicuous place or upon one or more of the principal entrances of such premises, a printed notice that the entire premises or portion thereof have been closed by court order, which notice shall contain a legend ‘Closed by Court Order’ in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises. The printed notice shall also include the date of the order, the court which issued the order and the name of the office or agency posting the notice. In addition, where a temporary abatement order has been granted, the officer shall affix, in the same manner, a notice similar to the notice provided for in relation to an ex parte closing order except that the notice shall state that certain activity is prohibited by court order and that removal of furniture, fixtures or other personal or movable property is prohibited by court order.
(e) Any person who knowingly or purposely violates any ex parte closing order or temporary abatement order issued pursuant to this Chapter shall be subject to civil contempt as well as punishment for criminal contempt pursuant to §§1271-1272 of Title 11 of the Delaware Code and §7129 of this Chapter.
§7113. Permanent abatement for all nuisance actions; hearing; admissible evidence.
(a) An action, when brought under this chapter, shall be noticed for trial at a time to be fixed by the Superior Court.
(b) In the action evidence of the general reputation of the place, or an admission, or finding of guilt of any person under the criminal laws against illegal drug activity, prostitution, lewdness, illegal gambling, or assignation at any such place, shall be admissible for the purpose of proving the existence of the nuisance, and shall be prima facie evidence of such nuisance and of knowledge of and of acquiescence and participation therein on the part of the person charged with maintaining the nuisance as defined in this chapter.
(c) If the complaint is filed by a person who is a citizen of the county, or has an office therein, it shall not be dismissed except upon a sworn statement by the plaintiff and his attorney, setting forth the reasons why the action should be dismissed and the dismissal approved by the Attorney General in writing, or before the Court. If the Court is of the opinion that the action ought not to be dismissed, it may direct the Attorney General to prosecute the action to judgment at the expense of the county, and if the action is continued more than 4 months, any person who is a citizen of the county, or has an office therein, or the Attorney General, may be substituted for the plaintiff and prosecute the action to judgment.
(d) If the action is brought by a person who is a citizen of the county, or has an office therein, and the Court finds that there were no reasonable grounds or cause for the action, the costs may be taxed to such person.
(e) If the existence of the nuisance is established upon the trial, the Court shall grant permanent abatement relief which perpetually prohibits the defendants and any other person from further maintaining the nuisance at the place complained of, and the defendants from maintaining such nuisance elsewhere within the State and shall issue such other orders as are necessary to abate the nuisance and to prevent to the extent reasonably possible the recurrence of the nuisance. The Court’s order may include, but need not be limited to all of the following:
(1) Directing the sheriff or other appropriate agency to seize and remove from the premises all material, equipment and instrumentalities used in the creation and maintenance of drug nuisance, and directing the sheriff to sell the property in the manner provided for the sale of property under execution in accordance with the general rules of civil procedure. The net proceeds of any such sale, after the deduction of all lawful expenses involved, shall be paid pursuant to §7114 of this Chapter.
(2) Authorizing the plaintiffs, subsequent to an order granting plaintiffs the right to seize the property in question, to make repairs, renovations and construction and structural alterations or to take such other actions necessary to bring the premises into compliance with all applicable housing, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. Such repairs, renovations or construction shall only be undertaken after the appropriate regulatory agency has first inspected the property in question, determined that code, ordinance or statutory violations exist and has reported same to the Court. If no order of seizure is granted and the owner or owners of the property remain in possession, the Court may order said owner or owners to make the appropriate repairs as set forth herein following the inspection and determination of violations by the appropriate regulatory agency. Expenditures by the plaintiffs pursuant to this paragraph may be filed as a lien against the property.
(3) Directing the closing of the premises, or appropriate portion thereof, to the extent necessary to abate the nuisance, and directing the officer or agency enforcing the closure order to post a copy of the judgment and a printed notice of such closing order conforming to the requirements of §7111 of this Chapter. The closing directed by the judgment shall be for such a period of time as the court may direct but, subject to the provisions of §7121 of this Chapter, shall not be for a period of more than one year from the posting of the judgment provided for in this subsection.
(4) Suspending or revoking any business, operational or liquor license.
(5) Suspending or revoking any lease.
(6) Ordering the suspension of any state, city or local governmental subsidies payable to the owners of the property, such as tenant assistance payments to landlords, until the nuisance is satisfactorily abated.
(7) Appointing a temporary receiver to manage or operate the premises for such a time as the court deems necessary to abate the nuisance. A receiver appointed pursuant to this section shall have such powers and duties as the court shall direct, including but not limited to:
A. Collecting, holding and dispersing the proceeds of all rents from all tenants;
B. Leasing or renting portions of the premises involved;
C. Making or authorizing other persons to make necessary repairs
or to maintain the property;
D. Hiring security or other personnel necessary for the safe and proper operation of the premises;
E. Retaining counsel to prosecute or defend suits arising from his or her management of the premises;
F. Bringing actions for summary possession of any premises; and
G. Expending funds from the collected rents in furtherance of the foregoing powers.
(8) A receiver appointed by the court pursuant to this section or §7111 of this Chapter shall upon entering upon his or her duties be sworn and shall affirm faithfully and fairly to discharge the trust committed to him or her. In addition, the receiver may be required to post a bond in an amount to be fixed by the court making the appointment, to ensure that such receiver will faithfully discharge his or her duties.
(9) If the existence of a nuisance as defined in this Chapter is admitted or established in an action under this chapter, the Court may, in addition to the aforementioned remedies or sanctions, order the removal from the place of the nuisance all personal property and contents used in conducting the nuisance and not already released under authority of the Court as provided in §7111 of this Chapter, and shall further direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution.
Such order shall also require the renewal for one year of any bond furnished by the owner of the real property as provided in §7111 of this Chapter or, if not so furnished, shall continue for one year any closing order issued at the time of granting the temporary abatement order or, if no such closing order was then issued, may include an order directing the effectual closing of the place against its use for any purpose, and so keeping it closed for a period of one year unless sooner released.
(f) The owner of any place so closed and not released under bond as provided in §7111 of this Chapter and this section may now appear and obtain such release in the manner and upon fulfilling the requirements as provided in such sections. The release of the property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject to law.
(g) Owners of unsold personal property and contents so seized must appear and claim same within 10 days after such order of abatement is made. The burden shall be on the owner to show, to the satisfaction of the Court, lack of any knowledge of the use thereof, and that with reasonable care and diligence they could not have known thereof. Every defendant in the action shall be presumed to have had knowledge of the general reputation of the place. If such innocence be so established, such unsold personal property and contents shall be delivered to the owner; otherwise it shall be sold as provided in this Chapter.
(h) If any person breaks and enters, or uses a place so directed to be closed, he shall be punished as for contempt as provided in this chapter.
(i) For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the place and keeping it closed, a reasonable sum shall be allowed by the Court.
(j) Imposing any or all of the foregoing remedies in combination with each other.
§7114. Duty of Attorney General; proceeds of sale in all nuisance actions.
(a) In case the existence of facts, circumstances and/or conditions that would constitute any nuisance is established in a criminal proceeding in any court of competent jurisdiction, the Attorney General shall proceed promptly to enforce the provisions and penalties of this chapter, and the finding of the defendant guilty in such criminal proceedings, unless reversed or set aside, shall be conclusive as against such defendant as to the existence of the nuisance.
(b) All monies collected under this Chapter, including but not limited to proceeds of the sale of personal property, as provided in §7113 of this Chapter, shall first be applied in payment of the costs of the action and abatement and then in payment of reasonable attorney fees. In the event the action is brought by the Attorney General, all monies collected in excess of costs and reasonable attorney fees shall be paid to the Special Law Enforcement Assistance Fund, as established in §§4110 - 4116 of Title 11 of the Delaware Code. In actions brought under this chapter by a county of municipality, all monies collected in excess of costs and reasonable counsel fees shall be paid to said county or municipality. In all actions brought under this chapter by a person or persons other than noted above, all monies collected in excess of costs, reasonable attorney fees and damage awards shall be paid to the Special Law Enforcement Assistance Fund.
§7115. Lease void if building used for nuisance.
Notwithstanding any law, rule or regulation to the contrary, if a tenant or occupant of a building or tenement, under a lawful title, is found after a hearing at which the tenant or occupant has appeared to have used such place for the purpose of illegal drug activity, a drug nuisance, lewdness, assignation, illegal gambling, or prostitution, such use makes void the lease or other title under which the tenant or occupant holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert to vest in such owner.
§7116. Civil penalty.
Obscene matter is contraband and there are no property rights therein. All monetary consideration received in exchange therefore, or as admission price to exhibitions thereof, and the subject matter itself, are the subject of forfeiture in the manner and under the terms set forth in §7114 of this Chapter and are recoverable as damages in the county wherein such matter is sold or exhibited.
The provisions of any criminal statutes with respect to the exhibition of, or the possession with the intent to exhibit, any obscene film shall not apply to a motion picture projectionist, usher or ticket taker acting within the scope of employment, provided that such projectionist, usher or ticket taker has no financial interest in the place wherein so employed. Such person shall be required to give testimony regarding such employment in all judicial proceedings brought under this chapter when granted immunity by the Court. The procedure for determining granting of immunity shall be the same procedure used by the Superior Court in criminal actions pursuant to §3506 of Title 11 of the Delaware Code.
§ 7118. Notification and provision of treatment resources.
(a) The officers serving an ex parte closing order as provided in §7111 of this Chapter shall provide outreach information and referral materials to all residents present on how to obtain alcohol and other drug treatment.
(b) In any case in which the court orders the removal of any person from any dwelling pursuant to this Chapter, the Court shall cause notice to be provided to the local alcohol and drug agency, the Division of Family Services, and other appropriate social services agencies.
(c) A one-page summary of such information and materials shall be posted next to any ex parte closing order or temporary abatement order posted in accordance with §7112 of this Chapter.
(d) The State Division of Alcoholism, Drug Abuse and Mental Health or its designee shall prepare all materials described in subsections (a) and (b), and shall disseminate them to all which are empowered to enforce closing orders under this Chapter.
§7119. Premises involving multiple residences or businesses.
(a) Where the premises constituting the nuisance includes multiple residences, dwellings or business establishments, a temporary or permanent closing order issued pursuant to any provision of this Chapter shall, so far as is practicable, be limited to that portion of the entire premises necessary to abate the nuisance and prevent the recurrence of drug distribution events.
(b) In addition to any other relief expressly authorized by this Chapter, the court may order a defendant who actually knew or, based on information provided to said defendant had reason to know of the nuisance, to provide relocation assistance to any tenant ordered to vacate a premises pursuant to this Chapter, provided that the court determines that such tenant was not involved in the nuisance or any drug distribution event constituting the nuisance and did not knowingly aid in the commission of any such drug distribution event. Relocation assistance shall be in the amount necessary to cover moving costs, security deposits for utilities and comparable housing, any lost rent, and any other reasonable expenses the court may deem fair and reasonable as a result of the court’s order to close a premises or any portion thereof pursuant to this Chapter.
§7120. Defense application to vacate or modify closing order prior to trial.
(a) The court upon application of a defendant may, at any time before trial, vacate or modify a closing order, after notice to the person or entity bringing the action pursuant to this Chapter, where the defendant, by a preponderance of the evidence shows that he or she was not in any way involved in the commission of the nuisance or any drug distribution event constituting the nuisance, and where he or she further:
(1) provides payment of all costs, and further, provides a bond with sureties to be approved by the court in the full value of the premises or portion thereof subject to the closure order as ascertained by the court and the court determines that the public safety or welfare will be adequately protected thereby; or
(2) submits clear and convincing proof to the court that the nuisance has been satisfactorily abated and will not recur. In determining whether the nuisance has been satisfactorily abated and will not recur, the court shall consider the nature, severity and duration of the nuisance and all other relevant factors, including but not limited to the following:
A. whether the defendant through the exercise of reasonable diligence should have known that the nuisance or drug nuisance events were occurring on the premises, and whether the defendant took steps necessary and appropriate in the circumstances to prevent the commission of such events;
B. whether the defendant has in good faith initiated and litigated eviction or removal actions pursuant to either this Chapter or a summary possession action pursuant to Chapter 57 of Title 25 of the Delaware Code against tenants or other persons who committed the nuisance or drug distribution events on the premises involved, immediately upon learning of a factual basis for initiating such eviction or removal action;
C. whether the defendant has developed an abatement plan which has been agreed to by the person or entity bringing the action pursuant to this Chapter and has been approved by the court. Such abatement plan may provide for:
(i) Hiring an on-site manager to prevent the recurrence of the nuisance or drug distribution events;
(ii) Making capital improvements to the property, such as security gates;
(iii) Installing improved interior or exterior lighting;
(iv) Employing security guards;
(v) Installing electronic security or visual monitoring systems;
(vi) Establishing tenant-approved security procedures;
(vii) Attending property management training programs;
(viii) Making cosmetic improvements to the property;
(ix) Providing, at no cost, suitable space and facilities for a local enforcement agency to establish a police substation on or near the site of the nuisance; or
(x) Establishing any other program or initiative designed to enhance security and prevent the recurrence of the nuisance or drug distribution events on or near the premises involved.
(b) Where the court accepts a bond pursuant to subsection (a), and conduct constituting a nuisance recurs, the bond shall be forfeited unless the court finds compelling and extraordinary reasons why such forfeiture would not be in the interests of justice. Any monies forfeited pursuant to this section shall be paid in the manner set forth in §7114 of this Chapter
§7121. Presumption against closure; vacating closure after abatement of nuisance and proof nuisance is not likely to occur.
(a) Where the court after trial determines that a premises constitutes a nuisance, the court shall not order the closure of the premises or appropriate portion or portions thereof pursuant to §7111 of this Chapter unless no less onerous penalty is likely to provide for the abatement of the nuisance. Further, no order of closure shall occur if the court is clearly convinced that any vacancy resulting from the closure would exacerbate rather than abate the nuisance or would otherwise be extraordinarily harmful to the community or the public interest.
(b) The court at any time after trial may vacate the provisions of the judgment that direct the closing of the premises or any portion thereof provided that the defendant submits clear and convincing proof to the court that the nuisance has been satisfactorily abated and is not likely to recur. In determining whether the nuisance has been satisfactorily abated and is not likely to recur, the court shall consider the nature, severity and duration of the nuisance and all other relevant factors, including but not limited to those factors set forth in §7113 of this Chapter.
§7122. Standard of Proof.
Except as may otherwise be expressly provided, the civil causes of action established in this Chapter shall be proved by a preponderance of the evidence.
§ 7123. Admissibility of evidence to prove nuisance.
(a) In any action involving any nuisance, evidence of the general reputation of the place or an admission or finding of guilty of any person under the criminal laws against illegal drug activity, a drug nuisance, prostitution, lewdness, illegal gambling or assignation at any such place is admissible for the purpose of proving the existence of said nuisance and is prima facie evidence of such nuisance and of knowledge of and of acquiescence and participation therein on the part of the person charged with maintaining said nuisance.
(b) In any action brought pursuant to this Chapter, any evidence of any prior efforts or lack of efforts by the defendant to abate the nuisance shall be admissible, and shall be considered by the Court in its decision as to what, if any, remedies or penalties shall be imposed.
(c) Where a criminal prosecution or juvenile delinquency proceeding, including those involving a drug distribution event constituting the drug nuisance, results in a criminal conviction or adjudication of delinquency, such conviction or adjudication shall create a reputable presumption that the nuisance or drug distribution event occurred. Any evidence or testimony admitted in the criminal or juvenile proceedings, including transcripts or a court reporter’s notes of the transcripts of the adult or juvenile criminal proceedings, whether or not they have been transcribed, may be admitted in the civil action brought pursuant to this Chapter.
(d) In the event that the evidence or records of a criminal proceeding which did not result in a conviction or adjudication of delinquency have been sealed in accordance with 29 Del. C. §10002(d), 11 Del. C. §4322(a), and 10 Del. C. §§ 1001-1002, 1063; the court, in a civil action brought pursuant to this Chapter may, notwithstanding any other provision of this Chapter, order such evidence or records to be unsealed if the court finds that such evidence or records would be relevant to the fair disposition of the civil action.
(e) If proof of the existence of the nuisance depends, in whole or in part, upon the affidavits or testimony of witnesses who are not peace officers, the court may upon a showing of prior threats of violence or acts of violence by any defendant or any other person, issue orders to protect those witnesses including, but not limited to, the non-disclosure of the name, address or any other information which may identify those witnesses.
(f) A law enforcement agency may make available to any person or entity seeking to secure compliance with this Chapter any police report, or edited portion thereof, or forensic laboratory report, or edited portion thereof concerning the alleged nuisance or any alleged drug distribution events committed on or within the premises involved. A law enforcement agency may also make any officer or officers available to testify as a fact or expert witness in a civil action brought pursuant to this Chapter. The agency shall not disclose such information where, in the agency’s opinion, such disclosure would jeopardize an investigation, prosecution, or other proceeding, or where such disclosure would violate any federal or state statute.
§7124. Relationship to criminal proceedings.
A civil action may be brought and maintained pursuant to this Chapter, and the court may find the existence of a nuisance, notwithstanding that an event or events used to establish the existence of the nuisance have not resulted in an arrest, prosecution, conviction or adjudication of delinquency.
§7125. Release of premises upon inspection or repair.
(a) Subject to the provision of §7120 of this Chapter and unless the court expressly orders otherwise, no premises or portion thereof ordered to be closed pursuant to any provision of this Chapter shall be released or opened unless it has been inspected by the appropriate license and inspection authority or agency and found to be in compliance with applicable local or state housing, building, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. Where the inspection reveals violations of any such code, ordinance, rule, regulation or statute, the court shall issue such orders or grant such relief as may be necessary to bring the premises or portion thereof into compliance. In that event, the court may order the premises or portion thereof to remain closed pending such necessary repairs or modification, notwithstanding that the order of closure may exceed the one year time limit prescribed in §7113 of this Chapter.
(b) The court may authorize any person or government official to enter a premises or portion thereof closed pursuant to this Chapter for the purpose of conducting an inspection or making any repairs or modifications necessary to abate the nuisance or to bring the premises or portion thereof into compliance with any applicable housing, building, fire, zoning, health or safety code, ordinance, rule, regulation or statute.
§ 7126. Penalties.
(a) Where the court after trial finds that a premises is a nuisance, the court in addition to granting appropriate abatement relief shall impose a civil penalty against a defendant who knowingly conducted, maintained, aided, abetted or permitted the nuisance. The penalty shall be $25,000.00 or the market value of the entire premises involved, whichever is greater, unless the court finds, based on the evidence, that imposition of such penalty would constitute a miscarriage of justice under the totality of the circumstances. In such case, it may lower the penalty amount to the extent necessary to avoid such miscarriage of justice. In any event, the Court shall, in each and every case initiated under this Act, impose the least onerous penalty possible.
(b) For the purpose of imposing a civil penalty pursuant to this section, the following shall be prima facie evidence that the defendant knowingly permitted the nuisance:
(1) the defendant failed to initiate an eviction action, pursuant to the provisions of this Chapter or a summary possession action pursuant to Chapter 57 of Title 25 of the Delaware Code or against a tenant after being notified by certified or registered mail of the facts pertaining to the tenant's alleged illegal activities constituting a nuisance, including but not limited to drug activities, involvement with a drug nuisance or drug distribution events committed on the leased premises which would in turn cause a reasonable person to believe the allegations are likely to be true; or
(2) a closure order was vacated under §7121 of this Chapter within two years before the occurrence of the instant nuisance.
(c) The court at any time shall waive, suspend or revoke any unpaid civil penalty imposed pursuant to this section where it is satisfied that:
(1) the defendant against whom the penalty has been imposed has not violated any order issued pursuant to any provision of this Chapter; and
(2) the defendant has transferred title to the plaintiff, a government agency, or any other neighborhood or community organization approved by the court, provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C. 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate any commercial or residential premises. Unless otherwise agreed to by the recipient organization, the defendant shall personally retain all state and local tax liability and the obligation shall attach to any other real property in the county owned by the defendant.
(a) Nothing in this Chapter shall be construed in any way to prevent the parties to the action at any time before or after trial from negotiating and agreeing to a fair settlement of the dispute, subject to the approval of the court.
(b) The court, on application of a plaintiff may vacate a closing order issued pursuant to this Chapter where the defendant has transferred title to the premises to the plaintiff, a government agency, or any other neighborhood or community organization approved by the court, provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C. 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate by commercial or residential premises. In that event, the requirements for pre-release inspection set forth in §7125 of this Chapter shall not apply.
§7128. Recovery of Costs.
(a) Whenever an action for abatement relief or penalties brought pursuant to this Chapter terminates in a settlement or judgment favorable to the plaintiff, the plaintiff and any other governmental entity shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and expenses and disbursements by the plaintiff or any governmental entity in investigating, bringing, maintaining, and enforcing the action and any court orders issued pursuant thereto. All defendants shall be jointly and severally liable for the payment of taxed costs imposed pursuant to this section.
(b) A judgment awarding a permanent abatement pursuant to this Chapter shall be a lien upon the premises declared to be a drug nuisance unless title thereto has been transferred pursuant to §§7126 and 7127 of this Chapter. In addition, a judgment against an in personam defendant imposing a civil penalty or bill of taxed costs pursuant to this Chapter shall be a lien upon the real estate owned by the defendant at the time of such rendition, and also upon all real estate the defendant may subsequently acquire, for a period of ten years from the date of the judgment, subject to renewal of the judgment pursuant to §4711 of Title 10 of the Delaware Code.
(a) Any person who knowingly violated any order issued pursuant to this Chapter shall be subject to civil contempt as well as punishment for criminal contempt under 11 Del. C. §§ 1271-1272. Nothing in this Chapter shall be construed in any way to preclude or preempt a criminal prosecution for violation of a controlled substance offense or any other criminal offense.
(b) In case of the violation of any abatement or closing order granted under this Chapter, or the commission of any contempt of court in proceedings under this Chapter, the court may summarily try and punish the offender.
(c) The proceeding shall be commenced by filing in the pending action with the Prothonotary’s Office a Motion for A Rule to Show Cause pursuant to Superior Court Civil Rule 64.1, accompanied by an affidavit showing service on the defendant and setting forth the facts constituting the violation. The court shall thereupon cause a subpoena to issue under which the defendant shall be required to appear and defend the allegations. The hearing shall be oral before the court, unless otherwise ordered by the court and either party may demand the production and oral examination of the witnesses.
(d) A party found guilty of contempt under this Chapter shall be fined not less than $500.00 nor than $10,000.00, or imprisoned not less than 3 months nor more than 1 year, or both.. In addition, the court may impose an order of restitution or other conditions as the court deems appropriate.
§7130. Cumulative remedies.
The causes of action and remedies authorized by this Chapter shall be cumulative with each other and shall be in addition to, not in lieu of, any other causes of action or remedies which may be available at law or equity. Further, nothing herein shall be construed as to limit the power or authority of the Court in the enforcement of this chapter. However, in every case initiated under this Act, the Court shall impose the least onerous remedy possible.
§7131. Liability for damage to closed properties.
(a) A court-ordered closing of a premises or portion thereof pursuant to this Chapter shall not constitute an act of possession, ownership or control by the court, the plaintiff or any government official or entity responsible for enforcing the court order.
(b) Any person or entity bringing, maintaining or enforcing any civil action or order issued in accordance with the provisions of this Chapter shall have immunity from any civil liability that might otherwise be incurred for any theft of, or loss, damage or injury to any premises constituting the drug nuisance, or to any fixture, furniture, personal or movable property located in or on any such premises.
§ 7132. Civil immunity.
Any person or entity who, in good faith, institutes, participates in, testifies in, or encourages any person or entity to institute, participate in or testify in a civil action brought pursuant to this Chapter or who in good faith provides any information relied upon by any person or entity in instituting or participating in a civil action pursuant to this Chapter, including but not limited to those persons defined or otherwise identified in §§7103 and 7107 of this Chapter, shall have immunity from any civil liability that might otherwise be incurred or imposed.
§ 7133. Civil action for damages resulting from nuisance.
(a) Notwithstanding the provisions of §7107 of this Chapter, any person damaged in his or her business or property by reason of a nuisance may bring a separate civil action for actual damages in the Superior Court against any person who knowingly conducted, maintained, aided, abetted or permitted any illegal drug activity or other nuisance as defined in this Chapter or any drug distribution event constituting the drug nuisance.
(b) In a civil action for damages pursuant to this section, the failure of an owner or landlord to initiate an eviction action against a tenant in accordance with the provisions of Chapter 57 of Title 25 of the Delaware Code, if the owner or landlord has been notified by certified or registered mail of the tenant’s illegal drug activity or nuisance as defined in this Chapter or any drug distribution events committed on the leased premises, shall be prima facie evidence that the owner knowingly gave permission to engage in conduct constituting the drug nuisance.
(c) In a civil action for damages pursuant to this section, expert testimony may be used to determine the amount of any actual damage or loss incurred by reason of the nuisance or illegal drug activity or drug nuisance.
(d) Whenever an action for damages brought pursuant to this section terminated in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and all expenses and disbursements by the plaintiff in investigating, bringing and maintaining the action. All defendants shall be jointly and severally liable for the payments of taxed costs imposed pursuant to this section.
(e) In any civil action for damages brought pursuant to this section, any evidence admitted or admissible in a civil action for abatement relief or penalty pursuant to this Chapter shall be admissible.”
Section 2. If any provision of this Act or application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or application of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
Section 3. The repeal or amendment of any statute by this Act shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under such statute, and such statute shall be treated as remaining in full force and effect for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute repealed or amended by this Act shall be preserved and shall not become illegal or terminated, irrespective of the stage of such proceeding. For the purpose of such proceedings, the prior law shall remain in full force and effect.
Section 4. This Act shall be effective upon the signature of the Governor.
Approved August 04, 2000