§712-1280  Place.  "Place" as
used in this part means any building, structure, or place, or any separate part
or portion thereof, whether permanent or not, or the ground itself. [L 1979, c
181, pt of §2; am L 1996, c 246, §11]



 



COMMENTARY ON §§712-1270 TO 1280



 



  Act 181, Session Laws 1979, established this part to provide
a remedy to abate as nuisances, offenses against public health and morals in
the nature of offenses defined as prostitution, the display of indecent matter,
and the like.  It is based largely on sections 11225 to 11235 of the California
Penal Code.



  In enacting §712-1279, the legislature thought it desirable
to place the burden upon the property owner to take appropriate action against
the lessee to abate the nuisance, but felt that a categorical mandate requiring
notice of revocation might raise collateral problems, particularly where chains
of subleases were involved.  Accordingly, the legislature chose to require the
courts to consider the giving of notice and other actions the owner may or may
not have taken to abate the nuisance when deliberating upon the issue of
criminal contempt.  Senate Standing Committee Report No. 892 (1979) states:



  "Such treatment prevents the imposition of penalty
against the owner who may not have technically given notice but who, under
peculiar circumstances, may have taken other reasonable and possibly more
effective measures to abate the nuisance, and thereby acted in...good
faith."



  Act 158, Session Laws 1990, amended this section to expand
the nuisance law to permit closure of premises where drug offenses repeatedly
occur.  The legislature emphasized that this amendment is not intended to be
applied to innocent landlords whose property may be inadvertently involved in
drug offenses.  Conference Committee Report No. 30.



  Act 246, Session Laws 1996, amended §§712-1270 to 712-1280,
by, inter alia, allowing any organization to bring a nuisance abatement suit
and providing that the court may order that the person causing the nuisance be
excluded from the premises under certain conditions.  The Act also allowed the
abatement of a nuisance that involves the manufacture as well as the
distribution of drugs, and made the language in the statutes more consistent
and comprehensive by referring to "buildings" and "premises"
as well as a "place".  The legislature believed that places used for
illicit drugs, prostitution, or pornography were major factors contributing to
the decline of neighborhoods, and that permitting any organization to bring a
nuisance abatement action and allowing a court to exclude persons causing the
nuisance strengthened part IV of chapter 712 to deal with these problems. 
Conference Committee Report No. 35, Senate Standing Committee Report No. 2618.



  Act 286, Session Laws 1998, added §712-1270.5 to allow
injunctions against entering or residing in any public or private building,
premises, or place to issue against the person causing the nuisance.  The
legislature found that in 1996, Act 246 was passed, which amended various
sections in chapter 712.  The purpose of Act 246 was to allow organizations to
maintain nuisance abatement suits and thereby obtain injunctive relief against
persons utilizing certain buildings, premises, or places, to commit offenses
against public health and morals.  The legislature also found that the
department of the prosecuting attorney, relying on Act 246, began to move for
injunctions barring prostitutes from certain areas of Waikiki.  The legal
reasoning upon which Act 246 was applied to prostitutes was that prostitutes
who solicit on public streets aggressively hinder both pedestrian and vehicular
traffic and harass visitors to the point where their activity becomes a public
nuisance.  However, the circuit courts denied the motions for injunctions
against prostitutes on the grounds that the nuisance abatement statute did not
expressly apply to individuals.



  In passing Act 246, the legislature expressly intended that
the court could order, as part of the abatement of the nuisance, the exclusion
of the person causing the nuisance from the place, building, or premises
involved.  Act 286 will solve the apparent ambiguity in the law by specifically
stating that nothing in the nuisance abatement law prohibits injunctions
against persons causing the nuisance.  House Standing Committee Report No.
613-98, Conference Committee Report No. 93.



  Act 286, Session Laws 1998, amended §712-1271 to provide that
no actions authorized under part V of chapter 712 which seeks to abate or
prevent a nuisance shall be filed or maintained against the State or any
political subdivision thereof.  Conference Committee Report No. 93.



  Act 286, Session Laws 1998, amended §712-1273 to allow
evidence of a person's general reputation to be introduced to prove the
existence of a nuisance.  Conference Committee Report No. 93.



  Act 44, Session Laws 2004, added §712-1270.3 and amended
§§712-1276 and 712-1278, to allow citizens to recover attorneys' fees and to
receive the same protection as crime victims do.  House Standing Committee
Report No. 495-04.



  Act 123, Session Laws 2005, added §712-1271.5, to establish
that a preponderance of the evidence is the standard of proof applicable to
nuisance abatement actions, §712-1271.6, to authorize a court to issue a
protective order to prevent the disclosure of the identity of a witness when
presented with evidence of acts of violence or prior threats of violence by any
defendant in a nuisance abatement action, and §712-1277.5, to subject an
individual who knowingly violates a protective order to civil as well as criminal
contempt of court.



  Act 123 also amended §§712-1270.5, 712-1271, 712-1272,
712-1273, 712-1275, and 712-1276 to, among other things, allow injunctions
against persons who maintain, aid, abet, or permit a nuisance from entering or
residing in any place where the nuisance exists and enable a court to enter an
order suspending or revoking any business, professional, operational, or liquor
license if the holder of the license is involved in maintaining, aiding,
abetting, or permitting the nuisance.  The legislature found that the Act would
encourage neighborhood residents to report community nuisances such as drug
activity by increasing the protections for witnesses in nuisance abatement
actions, expanding the scope of injunctions to include persons associated with
the nuisance, and providing law enforcement additional tools to abate a
nuisance.  Conference Committee Report No. 11, House Standing Committee Report
No. 1288, Senate Standing Committee Report No. 638.