Substitute House Bill No. 5073
          Substitute House Bill No. 5073

              PUBLIC ACT NO. 98-220


AN  ACT  CONCERNING NUISANCE ABATEMENT AND QUALITY
OF LIFE.


    Be it enacted  by  the  Senate  and  House  of
Representatives in General Assembly convened:
    Section 1. (NEW)  (a) For the purposes of this
act,  a  person  creates  or  maintains  a  public
nuisance  if  such   person  erects,  establishes,
maintains, uses, owns  or leases any real property
or  portion  thereof   for  any  of  the  purposes
enumerated in subdivisions  (1) to (7), inclusive,
of subsection (c) of this section.
    (b) The state has the exclusive right to bring
an action to abate a public nuisance involving any
real property or  portion  thereof,  commercial or
residential,  including  single   or   multifamily
dwellings, provided there  have been three or more
arrests for conduct  on the property documented by
a law enforcement  officer of any for the offenses
enumerated in subdivisions  (1) to (7), inclusive,
of subsection (c) of this section within the three
hundred sixty-five days  preceding commencement of
the action.
    (c) Three or  more  arrests  for the following
offenses shall constitute  the  basis for bringing
an action to abate a public nuisance:
    (1) Prostitution under section 53a-82, 53a-83,
53a-86, 53a-87, 53a-88  or  53a-89  of the general
statutes.
    (2)  Promoting  an   obscene   performance  or
obscene material under section 53a-196 or 53a-196b
of the general  statutes,  employing a minor in an
obscene performance under  section 53a-196a of the
general statutes, or importing or possessing child
pornography under section  53a-196c or 53a-196d of
the general statutes.
    (3) Transmission of gambling information under
section  53-278b  or   53-278d   of   the  general
statutes, or maintaining  of  a  gambling premises
under section 53-278e of the general statutes.
    (4)  Offenses  for   the  sale  of  controlled
substances,  possession of  controlled  substances
with intent to sell, or maintaining a drug factory
under section 21a-277,  21a-278 or 21a-278a of the
general  statutes,  or  use  of  the  property  by
persons  possessing  controlled  substances  under
section 21a-279 of  the  general statutes. Nothing
in this section  shall prevent the state from also
proceeding against property  under section 21a-259
or 54-36h of the general statutes.
    (5)  Unauthorized  sale  of  alcoholic  liquor
under section 30-74  of  the  general statutes, or
disposing of liquor without a permit under section
30-77 of the general statutes.
    (6)  Violations  of  the  inciting  injury  to
persons or property  law under section 53a-179a of
the general statutes.
    (7)  Maintaining a  motor  vehicle  chop  shop
under section 14-149a of the general statutes.
    Sec. 2. (NEW)  (a)  The Chief State's Attorney
or  a  deputy   chief  state's  attorney,  state's
attorney or assistant  or deputy assistant state's
attorney desiring to commence an action to abate a
public nuisance shall attach his proposed unsigned
writ,  summons  and  complaint  to  the  following
documents:
    (1) An application  directed  to  the Superior
Court to which  the action is made returnable, for
the  remedies  requested   to   abate  the  public
nuisance; and
    (2) An affidavit  sworn to by the state or any
competent affiant setting  forth  a  statement  of
facts showing by probable cause the existence of a
public nuisance upon  the  real  property  or  any
portion thereof.
    (b) The court,  or  if  the  court  is  not in
session, any judge  of  the  Superior  Court,  may
order that a show cause hearing be held before the
court or a  judge  thereof to determine whether or
not  the  temporary  relief  requested  should  be
granted and the  court  shall  direct the state to
give notice to  any  defendant  of the pendency of
the application and  of  the  time when it will be
heard by causing  a  true and attested copy of the
application, the proposed  unsigned writ, summons,
complaint, affidavit and of its order to be served
upon  the defendant  by  some  proper  officer  or
indifferent   person.  Such   hearing   shall   be
scheduled  within  ten   days   after  service  is
effected by the state.
    (c) If in  the application, the state requests
the issuance of a temporary ex parte order for the
abatement of a  public  nuisance, the court, or if
the court is  not  in  session,  any  judge of the
Superior Court, may  grant  a  temporary  ex parte
order to abate  the  public nuisance. The court or
judge shall direct  the  state  to give notice and
service of such documents, including a copy of the
ex parte order,  in accordance with subsection (b)
of this section.  At  such  hearing, any defendant
may show cause  why  the  abatement order shall be
modified or vacated. No such ex parte order may be
granted unless it  appears from the specific facts
shown by affidavit  and by verified complaint that
there is probable  cause  to believe that a public
nuisance exists and the temporary relief requested
is necessary to protect the public health, welfare
or  safety.  Such  show  cause  hearing  shall  be
scheduled within five  business days after service
is effected by  the  state.  The  affidavit may be
ordered  sealed by  the  court  or  judge  upon  a
finding that the state's interest in nondisclosure
substantially outweighs the  defendant's  right to
disclosure. A copy  of the state's application and
the temporary order  to  cease and desist shall be
posted on any  outside door to any building on the
real property.
    (d) Such a public nuisance proceeding shall be
deemed a civil  action  and venue shall lie in the
Superior Court for  the  judicial  district within
which the real  property  alleged  to constitute a
public nuisance is  located. Service shall be made
in accordance with  chapter  896  of  the  general
statutes. In addition,  service  of process may be
made by an  inspector  of the Division of Criminal
Justice  or  sworn   member   of  a  local  police
department or the division of state police.
    (e) At the show cause hearing, the court shall
determine  whether  there  is  probable  cause  to
believe that a  public  nuisance  exists, and that
the  circumstances  demand  the  temporary  relief
requested be ordered,  or  the  temporary ex parte
order be continued  during  the  pendency  of  the
public nuisance proceeding.  The  court  may, upon
motion by the  state  or any defendant, enter such
orders  as  justice   requires.  The  court  shall
schedule  the evidentiary  hearing  within  ninety
days from the show cause hearing.
    (f) The record owner of the real property, any
person claiming an  interest of record pursuant to
a bona fide mortgage, assignment of lease or rent,
lien or security in the property and any lessee or
tenant   whose  conduct   is   alleged   to   have
contributed to the public nuisance shall be made a
defendant to the  action,  except  that  the state
shall exempt as a defendant any owner, lienholder,
assignee,   lessee,   tenant   or   resident   who
cooperates with the  state  in  making  bona  fide
efforts to abate  the  nuisance  or  any tenant or
resident who has  been factually uninvolved in the
conduct contributing to  such  public nuisance. If
the state exempts  as a defendant any record owner
or  any person  claiming  an  interest  of  record
pursuant to a  mortgage,  assignment  of  lease or
rent, lien or  security in the property, notice of
the commencement of a nuisance proceeding shall be
given by certified mail, return receipt requested,
with a copy  of  such  summons and complaint and a
notice of exemption  and  right  to  be added as a
party to any  such  person  at  his usual place of
abode or business.  Any  such exempted person may,
at his option, enter an appearance and participate
in the nuisance proceeding to protect his property
rights.  Notice of  the  commencement  of  such  a
public  nuisance  proceeding  shall  be  given  by
certified mail to  the highest elected official of
the municipality in  which  the  real  property is
located.
    (g)   If  the   defendant   is   a   financial
institution  and the  record  owner  of  the  real
property,  or if  the  defendant  is  a  financial
institution  claiming  an   interest   of   record
pursuant to a  bona  fide  mortgage, assignment of
lease  or rent,  lien  or  security  in  the  real
property and is  not  determined to be a principal
or an accomplice  in  the conduct constituting the
public nuisance, the  court  shall  not  enter any
order against such defendant. The state shall have
the burden of  proving  by  clear  and  convincing
evidence  that  any  such  defendant  claiming  an
interest of record  under  this  subsection  is  a
principal or an  accomplice in the alleged conduct
constituting the public nuisance. For the purposes
of this subsection,  "financial institution" means
a bank as  defined  in  subdivision (4) of section
36a-2  of the  general  statutes,  as  amended  by
section 1 of  public  act  97-223, an out-of-state
bank, as defined  in  subdivision  (41) of section
36a-2  of the  general  statutes,  as  amended  by
section  1 of  public  act  97-223,  institutional
lender or any  subsidiary  or  affiliate  of  such
bank, out-of-state bank  or  institutional  lender
who  directly  or  indirectly  acquires  the  real
property   pursuant   to    strict    foreclosure,
foreclosure   by   sale    or    deed-in-lieu   of
foreclosure, and with  the  intent  of  ultimately
transferring  the  property,   or   other   lender
licensed by the Department of Banking.
    (h) For any defendant who fails to appear, the
court may enter a default following an evidentiary
showing by the  state  in  support  of  the relief
requested, which shall  include  affidavits or the
testimony of witnesses.  When  the  court enters a
judgment upon default,  the  court  may enter such
orders as appear reasonably necessary to abate the
public nuisance.
    (i) At the evidentiary hearing upon the public
nuisance  complaint,  the  state  shall  have  the
burden of proving by clear and convincing evidence
of the existence  of  a  public  nuisance upon the
real property as defined in section 1 of this act.
If  the  state   presents   clear  and  convincing
evidence  that  there  have  been  three  or  more
arrests for conduct  on  the  real property or any
portion thereof documented  by  a  law enforcement
officer for any  of  the  offenses  enumerated  in
subdivisions (1) to  (7), inclusive, of subsection
(c) of section  1  of  this  act, within the three
hundred sixty-five days  preceding commencement of
the  action,  this   shall   create  a  rebuttable
presumption of the existence of a public nuisance.
Any defendant may  offer  evidence  by  way  of an
affirmative defense that  he  has taken reasonable
steps to abate  the  public nuisance, but has been
unable to abate the nuisance.
    Sec. 3. (NEW)  In  any  proceeding  to abate a
public  nuisance,  the   state  may  request  such
remedies or relief  as are reasonably necessary to
abate the nuisance  including, but not limited to,
orders  for  repair  or  alteration  to  the  real
property or any  portion thereof, temporary orders
to cease and desist, orders to cease and desist or
appointment of a  receiver  of  rents. In any such
action, the court  may  enter any orders necessary
and proper to abate the nuisance.
    Sec. 4. (NEW)  Any  person  who  intentionally
violates a temporary order issued pursuant to this
act may be fined not more than one hundred dollars
or imprisoned not  more  than six months, or both,
in addition to any other remedy provided by law.
    Sec.  5.  (NEW)   (a)   The  court  may,  upon
application of the  state,  appoint  a receiver to
operate and manage  the  property  or  any portion
thereof in accordance  with the provisions of this
section during the pendency of the public nuisance
proceeding  and  shall  include  such  powers  and
duties as the court may direct.
    (b) The receiver  shall  with  all  reasonable
speed,   remove   the   delinquent   matters   and
deficiencies  in  the   property  or  any  portion
thereof constituting a  serious  fire  hazard or a
serious threat to  life,  health or safety. During
the term of  the  receivership, the receiver shall
repair and maintain  the  property  or any portion
thereof in a  safe  and  healthful  condition. The
receiver shall have  the  power  to  let contracts
therefor  in accordance  with  the  provisions  of
local  laws, ordinances,  rules  and  regulations.
Notwithstanding any such  laws,  ordinances, rules
or regulations, the  receiver may let contracts or
incur expenses for  individual  items  of repairs,
improvements or supplies  without advertisement or
the  procurement of  competitive  bids  where  the
total amount of  any such individual item does not
exceed five hundred  dollars or where there exists
a  condition which  constitutes  an  imminent  and
substantial danger to  life, health or safety, but
in  such event  the  receiver  shall  endeavor  to
obtain contracts on the most advantageous terms.
    (c) The receiver shall collect the accrued and
accruing rents, issues and profits of the property
or any portion  thereof  and apply the same to the
cost of removing  or  remedying  such nuisance, to
the payment of  expenses  reasonably  necessary to
the  proper  operation   and   management  of  the
property, including insurance  and the fees of the
managing  agent, if  any,  and  to  unpaid  taxes,
assessments,  water  rents  and  sewer  rents  and
penalties and interest thereon.
    (d) Any excess  of  income  of the property in
the hands of  the receiver shall be applied to the
necessary expenses in  regard  to such property of
his office as  receiver  and  then  to sums due to
mortgagees or lienors.
    (e) The receiver shall have the power to bring
a  summary  process   action   pursuant   to   the
provisions of chapter 832 of the general statutes,
against any tenant or occupant of the property.
    (f) Following appointment,  the receiver shall
keep complete written  records,  including records
of all receivership  funds  on deposit and records
itemizing all receipts and expenditures.
    (g) The receiver's  accounts  shall be open to
inspection by any  defendant  having  an ownership
interest in the  real  property,  the  state,  the
court or any  defendant  with a record interest in
the leases or rents.
    (h) Upon motion  by  any  defendant  having an
interest in the  real  property  or  the state, or
upon its own  motion,  the  court  may  direct the
receiver to render  a  periodic  accounting to the
court.
    (i) A receiver  shall act until removed by the
court. Upon the  termination  of the receivership,
the receiver shall  render  to  the  court a final
accounting of all  funds  pertaining  to  the real
property  on  deposit,   as  well  as  records  of
receipts  and  expenditures.  The  receiver  shall
deliver ledgers, records  and the receiver's files
and notes pertaining  to  any  litigation or claim
arising out of  management of the real property to
any person designated by the court.
    (j)  A receiver  appointed  pursuant  to  this
section shall not  be  liable  in  his capacity as
receiver to any  person  except for intentional or
wilful misconduct.
    Sec. 6. (NEW)  (a) If the court finds by clear
and convincing evidence  that  a  public  nuisance
exists, the court may enter such orders as justice
requires to abate  the  public nuisance, including
but not limited  to,  an  order  to close the real
property or any  portion  thereof. The court shall
retain jurisdiction over the case until it appears
that the nuisance  no  longer  exists.  The  state
shall post a  copy of any court order to close the
real  property  or  any  portion  thereof  on  any
outside door of  the  premises.  The  order  shall
include a notice  that  any  person  who  removes,
mutilates or defaces  the  closing  order  may  be
punished, upon conviction, by a fine not to exceed
two hundred fifty  dollars  or  by imprisonment of
fifteen days, or both.
    (b) At any  time  after entry of an order, any
defendant may apply to the court to have any order
vacated or modified  for  good cause. Prior to any
decision on a defendant's application to vacate or
modify an order,  the  state  shall  be afforded a
reasonable  opportunity  to   inspect   the   real
property or any portion thereof to verify that the
public nuisance has  been  abated,  and  the court
shall provide the  state with an opportunity to be
heard to contest the defendant's application.
    (c) Where the  court  vacates  or modifies any
order,  it  may  condition  its  decision  on  the
posting of a  bond  in an amount not to exceed the
current fair market value of the real property, as
stated in an  independent appraisal by a certified
real   estate   appraiser,   as   surety   against
recurrence of the public nuisance.
    (d) Where the  court  finds that real property
or  any  portion   thereof  constitutes  a  public
nuisance and enters  a  final  judgment, the state
shall record a  copy  of  such  judgment  and  any
orders on the  land  records  in the town in which
such real property  is  located. At any time after
the entry of  judgment, any defendant may apply to
the court to modify or vacate any order, including
the reduction of  the  amount  of,  or  release of
liability  for  any   bond  required  pursuant  to
section 6 of  this  act.  The court may grant such
application  for  good   cause  shown,  which  may
include, but not  be limited to, a showing by such
defendant by clear  and  convincing evidence that:
(1) All court orders have been complied with, that
any  named  persons   have   ceased   any  conduct
constituting  a  public  nuisance  upon  the  real
property  or any  portion  thereof  and  that  the
nuisance has abated;  (2)  the defendant wishes to
refinance  or  sell   the   real  property  to  an
identified bona fide  purchaser  for  value  whose
proposed  use  for  the  real  property  will  not
constitute a public nuisance; or (3) the defendant
has demolished or  razed any buildings, structures
or features upon  the  real  property  capable  of
supporting  a  public   nuisance.   Prior  to  any
decision on a defendant's application to vacate or
modify a final  order or release a lien, the state
shall  be afforded  a  reasonable  opportunity  to
inspect the real  property or any portion thereof.
Any modification to any order shall be recorded on
the land records  in  the  town in which such real
property is located.
    (e) Where the  state  applies  for an order to
close the real  property  or  any portion thereof,
the court shall take into consideration the rights
of all interested  parties  and  shall  limit  the
scope of a closing order to minimize dispossession
or dislocation of  tenants  or  residents who have
been   factually   uninvolved   in   the   conduct
contributing  to  the   public   nuisance,  unless
continued occupation of  the property is necessary
to protect public health, safety or welfare.
    Sec.  7.  (NEW)   (a)   In   any   case  where
dispossession  or  dislocation   of   tenants   or
residents who have  been factually uninvolved with
the conduct contributing  to  such public nuisance
is necessary to  abate  the  public  nuisance, the
court  may  impose   the   reasonable   costs   of
relocating  such tenants  or  residents  upon  any
defendant determined by the court to be liable for
the public nuisance.
    (b) In any  public  nuisance  proceeding,  the
court  may  impose   the   reasonable   costs   of
investigation, prosecution and  any  extraordinary
expenses incurred in  abating  the public nuisance
upon any defendant  determined  by the court to be
liable for the  public  nuisance.  In  any  public
nuisance proceeding, the  court  may  award to the
state or any  municipality the reasonable costs of
investigation, prosecution and  any  extraordinary
expenses incurred in  abating the public nuisance.
The  state  or   municipality   shall   submit  an
affidavit and such  other  documents  as the court
directs in support  of  a  request  for  award  of
costs.
    (c) The court  may  authorize the state or its
agents to make  any  repairs or alterations to the
real property or  any  portion thereof to bring it
into compliance with  applicable  state  and local
building, fire, health,  housing or similar codes.
The court may  impose  the  actual  costs  of  any
repairs   or  alterations   upon   any   defendant
determined by the  court  to  be  liable  for  the
public nuisance. The  court  shall award the state
the  actual  costs   of   any   such   repairs  or
alterations.
    (d) In any  public  nuisance  proceeding,  any
monetary  penalty  imposed   by  the  court  on  a
defendant with an  ownership  interest in the real
property and any award of costs to the state shall
constitute a judgment  lien  on the real property,
and shall be  recorded as such on the land records
in the town  where  the  property  is  located. In
addition, the state  may,  at its election, pursue
any  remedy  under  chapter  906  of  the  general
statutes.
    (e) If any  defendant  in  a  public  nuisance
proceeding subject to  a  court order to abate the
nuisance  intentionally violates  any  such  court
order entered in  judgment  in  a  public nuisance
proceeding under this  act, the court may impose a
civil  penalty  of  not  more  than  one  thousand
dollars for each  day the public nuisance is found
to have existed  after  such order. Upon recovery,
such penalty shall  be  deposited  in  the General
Fund.
    (f) Any person  who  was  not a defendant in a
public nuisance action  who intentionally violates
any court order  entered  in  judgment in a public
nuisance proceeding, may  be  fined  not more than
one hundred dollars  or  imprisoned  not more than
six months or both.
    Sec.  8.  (NEW)  (a)  The  state  may  use  an
inspector of the Division of Criminal Justice or a
state or municipal police officer to assist in the
enforcement  of  any   court  order  in  a  public
nuisance  proceeding.  Where  a  municipal  police
officer acts at the direction of a prosecutor, the
state shall first  obtain  the  permission  of the
municipal  chief  of  police.  Where  a  municipal
police  officer  acts   at   the  direction  of  a
prosecutor or pursuant  to  a  court  order  in  a
public  nuisance  matter,   the  officer  and  the
municipality  shall  be  indemnified  against  any
losses, damages or  liabilities arising within the
scope of such duties, and the police officer shall
be deemed an employee of the state for purposes of
indemnification.
    (b)  In any  public  nuisance  proceeding,  an
order by the  court  closing  the real property or
any portion thereof  shall  not  be deemed to pass
dominion, title, possession  or  control  over the
real property to the state.
    Sec. 9. (NEW)  Availability  to  the  state of
other remedies at  law or equity shall not prevent
the granting of relief under this act.
    Sec. 10. This  act  shall  take effect July 1,
1998.

Approved June 4, 1998