CHAPTER 158

FORMERLY

SENATE BILL NO. 80

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO NUISANCE ABATEMENT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend §7103(1) of Title 10 of the Delaware Code by inserting the phrase “, ‘trafficking’,” between the word “‘sale’” and the word “and” as they appear in said subsection.

Section 2. Amend §7103(3) of Title 10 of the Delaware Code by inserting the phrase “trafficking,” between the phrase “distribution,” and the word “sale” as they appear in said subsection.

Section 3. Amend §7103(4)b. of Title 10 of the Delaware Code by striking the phrase “for the principal purpose of unlawfully ingesting, injecting, inhaling, or otherwise using” as it appears in said paragraph and inserting in lieu thereof the following: “with the intent to unlawfully ingest, inject, inhale or otherwise use”.

Section 4. Amend §7103(4)c.2. of Title 10 of the Delaware Code by striking the word “Fifteen” as it appears in said sub-subparagraph and inserting in lieu thereof the word “Ten”.

Section 5. Amend §7103(4)c. of Title 10 of the Delaware Code by striking the word “or” at the end of subparagraph 3., by redesignating the existing subparagraph 4. as subparagraph 5. and by inserting a new subparagraph 4. to read as follows:

“4. Two and one-half grams of heroin or any mixture containing heroin; or”.

Section 6. Amend the newly designated §7103(4)c.5. of Title 10 of the Delaware Code by striking the phrase “sub-subparagraphs 1., 2., 3. or 4. of this subparagraph” as it appears therein and inserting in lieu thereof the phrase “subparagraphs 1., 2., 3., 4. or 5 of this paragraph”.

Section 7. Amend §7103(5) of Title 10 of the Delaware Code by inserting the phrase “trafficking, possession with intent to deliver,” between the word “means” and the phrase “the unlawful selling,” as they appear in said subsection.

Section 8. Amend §7104 of Title 10 of the Delaware Code by inserting the phrase “promotes, permits, facilitates,” between the phrase “establishes,” and the phrase “or conducts” as they appear in said section; and by striking the phrase “guilty of” and substituting in lieu thereof the phrase “liable for” in said section.

Section 9. Amend §7107(b) of Title 10 of the Delaware Code by striking the second sentence of said subsection in its entirety and substituting in lieu thereof the following: “However, in any action initiated against an owner or landlord, it shall be an affirmative 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 prior to receiving notice in writing of any party’s intent to bring a nuisance abatement action regarding the premises. Examples of actions that are indicia of attempts to abate alleged nuisances include but are not limited to:  (1) Sending or delivering a notice pursuant to 25 Del. C. Section 5513 that the conduct of the tenant, or their guests or invitees, breaches a rule or covenant that is material to the rental agreement; (2) Sending or delivering a termination notice pursuant to 25 Del. C. Section 5513(a) or (b); (3) Filing an action for summary possession of the rental unit; (4) Seeking police intervention to have those responsible for the action prosecuted and actively assisting the police in efforts to prosecute those responsible for the actions or activities being complained of by the complainants.

Section 10. Amend §7111(a) of Title 10 of the Delaware Code by striking the third and fourth sentences of said subsection in their entireties and substituting in lieu thereof the following: “Absent such ex parte relief by the court, the court shall order a preliminary hearing which shall be held no later than 10 days from the date upon which service upon all parties was completed, unless otherwise agreed to by the parties.”

Section 11. Amend §7111(b) of Title 10 of the Delaware Code by inserting the word “sufficiently” between the phrase “has been” and the word “abated,” as they appear in the first sentence of said subsection.

Section 12. Amend §7111(b) of Title 10 of the Delaware Code by striking the phrase “or the portions appropriate in the circumstances” as it appears at the end of the first sentence of said subsection and inserting in lieu thereof the following: “, the portions appropriate in the circumstances, or any other temporary abatement remedy requested by the party bringing the action”.

Section 13. Amend §7111(c) of Title 10 of the Delaware Code by striking the second sentence of said subsection in its entirety and substituting in lieu thereof the following: “Additionally, the court may issue an order appointing a temporary receiver to manage or operate the premises or order that any defendant take immediate actions including, but not limited to, the remedies listed in §7113(e)(7) of this title.”

Section 14. Amend §7111(d) of Title 10 of the Delaware Code by inserting at the end of said subsection the following: “Notwithstanding the Delaware Rules of Evidence, any police report concerning the premises, and any witness statements contained therein, may be admitted into evidence in determining the existence of a nuisance or whether any form of temporary abatement relief is appropriate.”

Section 15. Amend §7111(e) of Title 10 of the Delaware Code by inserting immediately after the second sentence of said subsection the following: “The parties may enter into a consent order in relation to or with respect to temporary abatement relief or permanent abatement relief. Any such order must be approved by the court.”

Section 17. Amend §7121 of Title 10 of the Delaware Code by deleting subsection (a) of said section in its entirety and substituting in lieu thereof the following:

“(a) Where the court after trial determines that a premises or appropriate portion or portions thereof pursuant to §7111 of this title constitutes a nuisance, the court shall order the closure of the premises. No such closure shall be granted unless, in the totality of the circumstances, 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. In determining whether closure is the least onerous penalty, the court shall consider:

(1) whether any previously agreed upon abatement plan, consent order, or other steps taken by a defendant have abated the nuisance;

(2) the duration that any nuisance has existed on the premises and whether any court has previously found the existence of a nuisance on the premises;

(3) the severity of the nuisance;

(4) whether the defendant has the ability to control the conduct on the premises or the ability to abate the nuisance;

(5) the impact of the continuation of the nuisance upon any neighborhood or community organization; and

(6) the position of any community or civic association which represents the communities in which the premises are located.”

Section 19. Amend §7123(c) of Title 10 of the Delaware Code by striking the word “reputable” as it appears between the phrase “shall create a” and the word “presumption” as they appear in the first sentence of said subsection and substituting in lieu thereof the word “rebuttable”.

Section 20. Amend §7126(a) of Title 10 of the Delaware Code by striking the last sentence of said subsection in its entirety.

Section 21. Amend §7126(b) of Title 10 of the Delaware Code by striking the period “.” at the end of paragraph (2) of said subsection and inserting the following: “; or (3) the defendant furthered, conspired as to, or participated in the commission of a crime on the premises.”

Section 22. Amend §7127(a) of Title 10 of the Delaware Code by inserting at the end of said subsection the following: “Any such settlement, once approved by the court, shall be entered as an order of the court. Any violation of such an order by the defendant shall be punishable as contempt as provided in this chapter.”

Approved July 18, 2007