Humboldt County Municipal Code Ch. 3 Use of Buildings for Sale of Controlled Substances Prohibited

Sections: Purpose and Intent. Public Nuisance Declared. Persons Authorized to Commence Nuisance Proceedings. Notice. Types of Actions That May Be Maintained. Authorized Remedies. Bond Requirement. 353-1. Purpose and Intent. It is the desire and intent of the Board of Supervisors of the County of Humboldt to eliminate, within any and every building or place in the unincorporated areas of Humboldt County, the unlawful selling, serving, storing, keeping, manufacturing or giving away of any controlled substance, precursor or analog, as defined under Health and Safety Code Sections 11000 and 11400, et seq. (Ord. 2576, § 6, 06/27/2017) (a) The Board of Supervisors finds that the unlawful selling, serving, storing, keeping, manufacturing, or giving away of any controlled substance, precursor, or analog, in any building or place in the County of Humboldt is injurious to the health, safety, and general welfare of the County, interferes with the comfortable enjoyment of life and property, and is a condition that is dangerous to human life, and is unsafe and detrimental to the public health and safety. (Ord. 2576, § 6, 6/27/2017) (b) Section 11570 of the Health and Safety Code of California states that every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away controlled substances, precursor, or analog, as defined in Health and Safety Code sections 11000 and 11400 et sequitur, is a nuisance which shall be enjoined, abated and prevented and for which damages may be recovered. (Ord. 2576, § 6, 6/27/ 2017) (c) The laws of the State of California define nuisance and the abatement thereof and provide for the enjoining of such acts. The Board of Supervisors intend hereby to declare those activities hereinafter set forth as a nuisance, and provide a procedure for determining that a nuisance exists. (Ord. 2576, § 6, 6/27/2017) 353-2. Public Nuisance Declared. The Board of Supervisors finds and declares that every and any building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog, as defined under the California Uniform Controlled Substance Act, Section 11000 and 11400 et sequitur of the Health and Safety Code is a nuisance, whether public or private. (Ord. 2576, § 6, 6/27/2017) 353-3. Persons Authorized to Commence Nuisance Proceedings. (a) In the name of the people, the Code Enforcement Unit and/or District Attorney of the County of Humboldt is authorized to abate, prevent, perpetually enjoin and seek damages against the person conducting or maintaining the nuisance of unlawful selling, serving, storing, keeping manufacturing or giving away of any controlled substance, precursor, or analog, and the owner, tenant, their agent, or anyone else associated with the building or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting the nuisance, when such nuisance occurs within any building or place in the unincorporated areas of the County of Humboldt as hereinafter provided, and there is reason to believe that a nuisance exists under Health and Safety Code section 11570. (Ord. 2269, 4/23/2002; Ord. 2576, § 6, 6/27/2017) (b) Any citizen of the State of California, residing in the County of Humboldt, in his or her own name is authorized to abate, prevent, perpetually enjoin and seek damages against the person conducting or maintaining the nuisance of unlawful selling, serving, storing, keeping manufacturing or giving away of any controlled substance, precursor, or analog, and the owner, tenant, their agent, or anyone else associated with the building or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting the nuisance, when such nuisance occurs within any building or place in the unincorporated areas of the County of Humboldt as hereinafter provided, and there is reason to believe that a nuisance exists under Health and Safety Code section 11570. Any complaint filed by such a citizen, pursuant to these provisions, must be verified. (Ord. 2049, § 1, 8/16/ 1994; Ord. 2576, § 6, 6/27/2017) 353-4. Notice. (a) Prior to bringing or maintaining an action to abate or prevent, perpetually enjoin a nuisance or seek damages therefrom, as described in Section 353-2 of the Humboldt County Code, the person(s) authorized to commence nuisance proceedings shall give notice to the owner, tenant, their agent and anyone else associated with the nuisance of the building or place including but not limited to owners as shown by the records of the County Recorder or Assessor, business tax records, records of the Secretary of State in the case of corporate ownership or interest and any other evidence showing occupancy or presence associated with the nuisance where the nuisance is alleged to exist and shall request that the nuisance be abated within a reasonable time of the receipt of the notice. (Ord. 2049, § 1, 8/16/1994; Ord. 2576, § 6, 6/27/2017; Ord. 2585, § 7, 11/7/2017) (b) The notice shall contain as enclosures documentation to establish that a nuisance exists in or upon the building or place. (Ord. 2576, § 6, 6/27/2017) (c) The notice shall be served on the owner, tenant, their agent, or anyone else associated with the nuisance by personal service or by certified mail. (Ord. 2576, § 6, 6/27/2017)

(d) “Reasonable time” shall mean at least thirty (30) days, unless a shorter time period is agreed to by the parties herein. (Ord. 2576, § 6, 6/27/2017) (e) The subdivision shall apply only to an action brought or maintained by the Code Enforcement Unit and/or District Attorney: (Ord. 2576, § 6, 6/27/2017) (f) This notice shall not be required prior to bringing or maintaining an action to enjoin, abate, prevent a nuisance and seek damages if any one of the following exist: (1) There is a danger to the public; (Ord. 2576, § 6, 6/27/2017) (2) The notice would impede an investigation; (Ord. 2576, § 6, 6/27/2017) (3) The Code Enforcement Unit and/or District Attorney determines there is good cause to forego the notice; (Ord. 2576, § 6, 6/27/2017) (4) For the purposes of this paragraph, “good cause” includes, but is not limited to, when an owner, tenant, their agent, or anyone else associated with the nuisance is unavailable or is evading service of process; (Ord. 2576, § 6, 6/27/2017) (5) The issuing agency shall provide the identified owner, tenant, their agency, or other person associated with the nuisance with the opportunity to demonstrate to that agency that the notice was issued on insufficient grounds or the owner, tenant, their agency or other person associated with nuisance was mistakenly identified. This agency shall present the Code Enforcement Unit and/or District Attorney with all information received in any request for action under this section. (Ord. 2269, 4/23/2002; Ord. 2576, § 6, 6/27/ 2017) (Ord. 2576, § 6, 6/27/2017) 353-5. Types of Actions That May Be Maintained. (a) Temporary Restraining Order. (1) A temporary restraining order may be sought to maintain the status quo and to encourage expeditious abatement. Although ex parte in nature, reasonable notice to the opposing party is required unless the applicant shows good cause why notice should be excused. (Code of Civil Procedure section 527(a)). (Ord. 2576, § 6, 6/27/2017) (2) The temporary restraining order is limited in duration to up to fifteen (15) days, or twenty (20) if good cause can be shown. The temporary restraining order can order that no further illegal drug activity take place, it can allow the County to post a sign stating the same and it can freeze all movable property. The County can also obtain an order allowing entry onto the premises to take an inventory of personal property to ensure that anything of value remains on the premises until the time of the final hearing on the matter. (Ord. 2576, § 6, 6/27/2017)

(b) Preliminary Injunction. (1) At the expiration of the temporary restraining order, the order to show cause hearing on the preliminary injunction, is held. Closure will only be ordered during the preliminary injunction stage if a prior order has been violated. Thus, if the temporary restraining order was violated, closure can be sought at the preliminary injunction hearing. Also closure can be sought at any time while the preliminary injunction is in effect, as its violation is violation of the court’s prior order. (Health and Safety Code section 11573.5(b)). (Ord. 2576, § 6, 6/ 27/2017) (c) Closure of the Premises. (1) At the preliminary injunction phase, the court can order that rent be placed in escrow for up to ninety (90) days or until the nuisance is abated. When closure is sought prior to final judgment, all tenants who may be affected by the closure must be provided with reasonable notice and an opportunity to be heard at all closure request hearing before a closure order can be issued. (Health and Safety Code section 11573.5(c)). In determining whether to close a premises prior to judgment, Health and Safety Code section 11573.5 requires the judge to consider: (A) The extent and duration of the nuisance. (Ord. 2576, § 6, 6/27/2017) (B) Prior efforts by the defendant to comply with previous court orders regarding the nuisance. (Ord. 2576, § 6, 6/27/2017) (C) The effect of the nuisance on other persons, including residents or businesses. (Ord. 2576, § 6, 6/27/ 2017) (D) The effect of placing rental payments into an escrow account on abatement efforts. (Ord. 2576, § 6, 6/27/2017) (E) The effect of closure on unnamed residents or occupants of the premises. (Ord. 2576, § 6, 6/27/ 2017) (Ord. 2576, § 6, 6/27/2017) (d) Relocation Payments. (1) A defendant shall provide relocation assistance to innocent tenants if a building or place is ordered closed, including moving costs, security deposits for utilities and comparable housing, adjustments for lost rent and any other costs the court deems reasonable and fair. The judge may also order the enforcing governmental agency seeking closure to make reasonable attempts to seek additional sources of funds for relocation assistance to displaced tenants. A receiver can be appointed to distribute relocation funds from the escrow account. (Health and Safety Code Section 11573.5(d) and (e)). (Ord. 2576, § 6, 6/27/2017) (e) Stipulated Judgment.

(1) Once a temporary restraining order issues or a preliminary injunction is granted, negotiation for a stipulated judgment requiring either the sale of the property, eviction of the nuisance causing tenant(s), or closure of the premises may be commenced. (Ord. 2576, § 6, 6/27/2017) (f) Permanent Injunction. (1) If a stipulated judgment cannot be reached, a trial on the permanent injunction is held. (Ord. 2576, § 6, 6/ 27/2017) 353-6. Authorized Remedies. (a) Closure as a First Priority. (1) Under the abatement law, the judgment requires the removal from the premises and the sale of all fixtures, musical instruments and other movable property used in conducting, maintaining, aiding or abetting the nuisance. The premises must be closed for one year unless the court finds that a vacant building would be more harmful to the community than an occupied one. The legislative intent in the closure provision indicated that closure is the first priority. If the building is not ordered vacated, the defendant can be required to pay damages equivalent to one year’s fair market rental value of the building. (Health and Safety code section 11581). (Ord. 2576, § 6, 6/27/2017) (b) Damages. (1) In addition to actual damages, damages of up to twenty- five thousand dollars ($25,000) may be assessed against any or all of the defendant as a civil penalty. (Health and Safety Code section 11581). Civil penalties shall be apportioned pursuant to Health and Safety Code section 11489. (Ord. 2576, § 6, 6/27/2017) (c) Lien. (1) Once the existence of a nuisance is established, an order of abatement is entered as part of the judgment and the plaintiff’s costs are a lien upon the building or place. The lien is enforceable and collectible by execution issued by order of the court. (Health and Safety Code sections 11579, 11582). The court retains custody of the building or place for the duration of the abatement order. (Ord. 2576, § 6, 6/27/2017) (d) Contempt. (1) A violation of any of the abatement orders, from the temporary restraining order through the final judgment, is punishable as contempt of court with attendant fines from five hundred dollars ($500) through ten thousand dollars ($10,000) or a county jail sentence of not less than one nor more than six months or both. Fines collected for contempt must be used as a first priority for relocation payments to innocent tenants. (Health and Safety Code section 11580.) (Ord. 2576, § 6, 6/27/2017) (e) Sale of Assets.

(1) The County’s costs may be recouped from the sale of the movable property. In addition if the movable property proceeds do not satisfy the plaintiff’s costs, the building or place can be sold. (Health and Safety Code section 11585). (Ord. 2576, § 6, 6/27/2017) (f) Release of Building to Owner. (1) The building or place may be released to the owner, if the owner has not been guilty of any contempt during the court proceedings, pays all costs and fees that are a lien on the building or places and files a bond in the full value of the property conditioned that the owner will immediately abate any nuisance that may exist at the building and will do this for a period of one year. (Health and Safety Code section 11586). (Ord. 2576, § 6, 6/27/2017) 353-7. Bond Requirement. The court may require that a private citizen maintaining an action under these provisions post a bond. In setting the amount of the bond, the court shall consider the relative hardship on the parties and the goal of encouraging citizen use of these provisions. The amount of the bond shall not exceed the potential financial injury to the defendant(s), and may be waived in the court’s discretion. (Ord. 2049, § 1, 8/16/1994; Ord. 2576, § 6, 6/27/2017) § 354-1. § 354-2. § 354-3. § 354-11. § 354-12. § 354-13. § 354-14. § 354-15. § 354-16. § 354-17. § 354-21. § 354-22. § 354-23. § 354-24.