CHAPTER 7. ACTIONS FOR INDECENT NUISANCES
IC 32-30-7
Chapter 7. Actions for Indecent Nuisances
IC 32-30-7-1
"Indecent nuisance" defined
Sec. 1. As used in this chapter, "indecent nuisance" means a:
(1) place in or upon which prostitution (as described inIC 35-45-4);
(2) public place in or upon which deviate sexual conduct (asdefined in IC 35-41-1-9) or sexual intercourse (as defined inIC 35-41-1-26); or
(3) public place in or upon which the fondling of the genitals ofa person;
is conducted, permitted, continued, or exists, and the personalproperty and contents used in conducting and maintaining the placefor such a purpose.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-2
"Person" defined
Sec. 2. As used in this chapter, "person" has the meaning set forthin IC 35-41-1-22.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-3
"Place" defined
Sec. 3. As used in this chapter, "place" includes any part of abuilding or structure or the ground.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-4
"Prosecuting official" defined
Sec. 4. As used in this chapter, "prosecuting official" refers topublic officials who have concurrent jurisdiction to enforce thischapter, including:
(1) the attorney general;
(2) the prosecuting attorney of the circuit in which an indecentnuisance exists;
(3) the corporation counsel or city attorney of the city (if any)in which an indecent nuisance exists; or
(4) an attorney representing the county in which an indecentnuisance exists.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-5
"Public place" defined
Sec. 5. As used in this chapter, "public place" means any place towhich the public is invited by special or an implied invitation.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-6
Persons guilty of maintaining an indecent nuisance
Sec. 6. The following are guilty of maintaining an indecentnuisance and may be enjoined from maintaining the indecentnuisance under this chapter:
(1) A person who uses, occupies, establishes, maintains, orconducts an indecent nuisance.
(2) The owner, agent, or lessee of any interest in an indecentnuisance.
(3) A person employed in an indecent nuisance.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-7
Action by prosecuting official; actions by other persons
Sec. 7. (a) If an indecent nuisance exists, a prosecuting official orany resident of the county in which the indecent nuisance exists maybring an action to abate the indecent nuisance and to perpetuallyenjoin the maintenance of the indecent nuisance.
(b) If a person other than a prosecuting official institutes an actionunder this chapter, the complainant shall execute a bond to theperson against whom complaint is made, with good and sufficientsurety to be approved by the court or clerk in a sum of at least onethousand dollars ($1,000) to secure to the party enjoined the damagesthe party may sustain if:
(1) the action is wrongfully brought;
(2) the action is not prosecuted to final judgment;
(3) the action is dismissed;
(4) the action is not maintained; or
(5) it is finally decided that the injunction ought not to havebeen granted.
The party aggrieved by the issuance of the injunction has recourseagainst the bond for all damages suffered, including damages to theaggrieved party's property, person, or character and includingreasonable attorney's fees incurred in defending the action.
(c) A person who institutes an action and executes a bond mayrecover the bond and reasonable attorney's fees incurred in trying theaction if the existence of an indecent nuisance is admitted orestablished in an action as provided in this chapter.
(d) If a prosecuting official institutes an action under this chapter(or IC 34-1-52.5 or IC 34-19-2 before their repeal) and the existenceof an indecent nuisance is admitted or established in the action, thegovernmental entity that employs the prosecuting official is entitledto all reasonable attorney's fees incurred by the entity in institutingthe action. The fees shall be deposited in:
(1) the state general fund, if the action is instituted by theattorney general;
(2) the operating budget of the office of the prosecutingattorney, if the action is instituted by a prosecuting attorney;
(3) the operating budget of the office of the corporation counselor city attorney, if the action is instituted by a corporation
counsel or city attorney; or
(4) the county general fund, if the action is instituted by anattorney representing the county.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-8
Venue
Sec. 8. An indecent nuisance action must be brought in the circuitor superior court of the county in which the alleged indecentnuisance is located. The action is commenced by filing a verifiedcomplaint alleging the facts constituting the indecent nuisance.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-9
Preliminary injunction; hearing; restraining order; service
Sec. 9. (a) After filing the complaint, a complainant may apply tothe court for a preliminary injunction. The court shall grant a hearingon the complainant's motion for preliminary injunction not later thanten (10) days after it is filed.
(b) If an application for a preliminary injunction is made, thecourt may, on application of the complainant showing good cause,issue an ex parte restraining order restraining the defendant and allother persons from removing or in any manner interfering with thepersonal property and contents of the place where the indecentnuisance is alleged to exist until the decision of the court granting orrefusing a preliminary injunction and until further order of the court.However, pending the court's decision, the stock in trade may not berestrained, but an inventory and full accounting of businesstransactions after the restraining order may be required.
(c) A restraining order issued under subsection (b) may be servedby:
(1) handing to and leaving a copy of the order with a personwho is:
(A) in charge of the place; or
(B) a resident of the place; or
(2) posting a copy of the order in a conspicuous place at or uponat least one (1) of the principal doors or entrances to the place.
(d) The officer serving a restraining order issued under subsection(b) shall immediately make and return into court an inventory of thepersonal property and contents situated in and used in conducting ormaintaining alleged the indecent nuisance.
(e) Violation of a restraining order served under subsection (c) (orIC 34-1-52.5-4 or IC 34-19-2-4 before their repeal) is a contempt ofcourt.
(f) If a restraining order is posted under subsection (c)(2),mutilation or removal of the order while it is in force is a contemptof court if the order contains a notice stating that mutilating orremoving the order while it is in force is a contempt of court.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-10
Complaint; notice; hearing; service
Sec. 10. (a) In an action under this chapter:
(1) a copy of the complaint; and
(2) a notice of the time and place of the hearing on theapplication for a preliminary injunction, if the complainant hasapplied for a preliminary injunction under section 9(a) of thischapter;
shall be served upon the defendant at least five (5) days before thehearing.
(b) The owners of the place where the alleged indecent nuisanceis located may be served by posting the papers in the mannerprescribed by section 9(c) of this chapter for serving a restrainingorder.
(c) If a defendant:
(1) is granted a request for continuance; or
(2) moves for a change of venue or a change of judge;
the preliminary writ shall be granted as a matter of course.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-11
Consolidation of trial on merits and hearing on request forpreliminary injunction
Sec. 11. (a) If the complainant has applied for a preliminaryinjunction under section 9(a) of this chapter, the court may order thetrial of the action on the merits to be advanced and consolidated withthe hearing on the application for the preliminary injunction:
(1) before or after the commencement of the hearing on anapplication for a preliminary injunction; and
(2) upon:
(A) application of either of the parties; or
(B) the court's own motion.
(b) Any evidence received upon an application for a preliminaryinjunction that is admissible in the trial on the merits becomes a partof the record of the trial and does not need to be repeated as to theparties at the trial on the merits.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-12
Preliminary injunction; burden of proof; temporary forfeiture;closure pending final decision on permanent injunction
Sec. 12. (a) If the plaintiff has applied for a preliminary injunctionunder section 9(a) of this chapter and, at the preliminary injunctionhearing, the plaintiff proves by a preponderance of the evidence thatthe indecent nuisance exists as alleged in the complaint, the courtshall issue a preliminary injunction, without additional bond,restraining the defendant and any other person from continuing theindecent nuisance.
(b) If a defendant is enjoined under subsection (a) and it appearsthat the person owning, in control of, or in charge of the indecent
nuisance received five (5) days notice of the hearing, the court shall:
(1) declare a temporary forfeiture of the use of the real propertyupon which the indecent nuisance is located and the personalproperty located at the site; and
(2) immediately issue an order closing the place against its usefor any purpose until a final decision is rendered on theapplication for a permanent injunction;
unless the person owning, in control of, or in charge of the indecentnuisance shows to the satisfaction of the court, by competent andadmissible evidence subject to cross-examination, that the indecentnuisance complained of has been abated by the person.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-13
Effect of preliminary injunction; restraining orders
Sec. 13. An order issued under section 12(b)(2) of this chapterclosing a place continues in effect while the restraining order issuedunder section 9(b) of this chapter is in effect. If a restraining orderhas not been issued under section 9(b) of this chapter, the orderclosing the place under section 12(b)(2) of this chapter must includean order restraining the removal or interference with the personalproperty and contents.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-14
Restraining orders; service; inventory
Sec. 14. If a restraining order is issued under section 9(b) or 13 ofthis chapter:
(1) the restraining order shall be served under section 9(c) ofthis chapter; and
(2) the inventory of the property shall be made and filed asprovided in section 9(d) of this chapter.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-15
Owner of real property; payment of costs; surety; abatement ofindecent nuisance; showing good faith; discharge of preliminaryinjunction
Sec. 15. (a) The owner of real property that has been closed or isto be closed under this chapter may appear after the filing of thecomplaint and before the hearing on the application for a permanentinjunction and do the following:
(1) Pay all costs incurred.
(2) File a bond with sureties to be approved by the court:
(A) in the full value of the property to be ascertained by thecourt; and
(B) conditioned upon the owner immediately abating theindecent nuisance and preventing the indecent nuisance frombeing established or kept until the decision of the court isrendered on the application for a permanent injunction. (b) If the defendant complies with subsection (a) and the court issatisfied:
(1) of the good faith of the owner of the real property; and
(2) that the owner did not know and, with reasonable care anddiligence, could not have known that the real property was usedas an indecent nuisance;
the court shall, at the time of the hearing on the application for thepreliminary injunction, refrain from issuing an order closing the realproperty or restraining the removal or interference with the personalproperty. If a preliminary injunction has already been issued, thecourt shall discharge the order and deliver the property to the owners.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-16
Owner of personal property; petition for release of property; goodfaith; discharge of preliminary injunction
Sec. 16. The owner of the personal property that has beenrestrained or is to be restrained under this chapter may appear afterthe filing of the complaint and before the hearing on the applicationfor a permanent injunction and petition the court to release thepersonal property. If the court is satisfied that the owner:
(1) has acted in good faith; and
(2) did not know and, with reasonable care and diligence, couldnot have known that the personal property was used as anindecent nuisance;
the court shall, at the time of the hearing on the application for thepreliminary injunction, refrain from issuing any order restraining theremoval or interference with the personal property. If the preliminaryinjunction has been issued, the court shall discharge the order anddeliver the property to the owner.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-17
Release of property; liens
Sec. 17. The release of any real or personal property under section15 or 16 of this chapter does not release the property from anyjudgment, lien, penalty, or liability to which it is subject.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-18
Precedence of indecent nuisance action
Sec. 18. An indecent nuisance action under this chapter shall beset down for trial without delay and takes precedence over all othercases except crimes, election contests, or injunctions.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-19
Evidence
Sec. 19. In an indecent nuisance action under this chapter,evidence of the general reputation of the place is: (1) admissible to prove the existence of the indecent nuisance;and
(2) presumptive evidence that a person who:
(A) owned;
(B) was in control of; or
(C) was in charge of;
the indecent nuisance knew the indecent nuisance existed andused the place for an act constituting an indecent nuisance.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-20
Actions by private persons; dismissal; prosecution by prosecutingattorney; costs
Sec. 20. (a) This section applies to an indecent nuisance complaintunder this chapter filed by a private person.
(b) The court shall not voluntarily dismiss the complaint unless:
(1) the complainant and the complainant's attorney file a swornstatement setting forth the reason why the action should bedismissed; and
(2) the dismissal is approved in writing or in open court by theprosecuting attorney of the circuit in which the alleged indecentnuisance is located.
(c) If the judge believes that the action should not be dismissed,the judge may direct the prosecuting attorney to prosecute the actionto judgment at the expense of the county.
(d) If:
(1) the action is brought by a private person;
(2) the court finds that there were no reasonable grounds orprobable cause for bringing said action; and
(3) the case is dismissed either:
(A) for the reason described in subdivision (2) before trial;or
(B) for want of prosecution;
the costs may be taxed to the person who brought the case.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-21
Burden of proof; judgment for perpetual enjoinment
Sec. 21. If at the permanent injunction hearing the plaintiff provesby a preponderance of the evidence that the indecent nuisance existsas alleged in the complaint, the court shall enter a judgment thatperpetually enjoins:
(1) the defendant and any other person from further maintainingthe indecent nuisance at the place described in the complaint;and
(2) the defendant from maintaining an indecent nuisanceelsewhere.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-22 Order of abatement; requirements; release of property; claimingproperty
Sec. 22. (a) If the existence of an indecent nuisance is admitted orestablished as provided in section 21 of this chapter, the court shallenter an order of abatement as a part of the judgment in the case. Theorder of abatement must:
(1) direct the removal of all personal property and contents that:
(A) are located at the place described in the complaint;
(B) are used in conducting the indecent nuisance; and
(C) have not already been released under authority of thecourt as provided in sections 15 and 16 of this chapter;
(2) direct the sale of personal property that belongs to thedefendants who were notified or appeared at the hearing, in themanner provided for the sale of chattels under execution; and
(3) require one (1) of the following:
(A) The renewal for one (1) year of any bond furnished bythe owner of the real property under section 15(a)(2) of thischapter.
(B) If a bond was not furnished, continue for one (1) yearany closing order issued under section 12(b)(2) of thischapter at the time of granting the preliminary injunction.
(C) If a closing order was not issued when the preliminaryinjunction was granted, direct the effectual closing of theplace against its use for any purpose for one (1) year, unlesssooner released.
(b) The owner of a place that has been closed and not releasedunder bond may appear and obtain a release in the manner and uponfulfilling the requirements provided in sections 15 and 16 of thischapter.
(c) The release of property under this section does not release theproperty from any judgment, lien, penalty, or liability to which theproperty may be subject.
(d) Owners of unsold personal property and contents seized undersubsection (a) may:
(1) appear and claim the property within ten (10) days after anorder of abatement is made; and
(2) prove to the satisfaction of the court:
(A) that the owner is innocent of any knowledge of the useof the property; and
(B) that with reasonable care and diligence the owner couldnot have known of the use of the property.
(e) If an owner meets the requirements set forth in subsection (d),the unsold personal property and contents shall be delivered to theowner. Otherwise, the unsold personal property and contents shall besold as provided in this section.
(f) The officer who removes and sells the personal property andcontents under subsection (e) may charge and receive the same feesas the officer would receive for levying upon and selling similarproperty on execution.
(g) If an order of abatement requires the closing of a place under
subsection (a)(3)(C), the court shall allow a reasonable sum to bepaid for the cost of closing the place and keeping it closed.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-23
Violation of court orders
Sec. 23. In case of:
(1) the violation of any injunction or closing order grantedunder this chapter;
(2) the violation of a restraining order issued under this chapter;or
(3) the commission of any contempt of court in proceedingsunder this chapter;
the court may summarily try and punish the offender. The trial maybe upon affidavits or either party may demand the production andoral examination of the witnesses.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-24
Collected money paid to county treasurer; proceeds of salesapplied to costs
Sec. 24. (a) All money collected under this chapter shall be paidto the county treasurer.
(b) The proceeds of the sale of the personal property under section22 of this chapter, or as much of the proceeds as necessary, shall beapplied in payment of the costs of the action and abatement,including the complainant's costs.
As added by P.L.2-2002, SEC.15.
IC 32-30-7-25
Indecent nuisances created by tenants; voidable title; reversion toowner; entry
Sec. 25. (a) This section applies to a tenant or occupant of abuilding or tenement, under a lawful title, who uses the place for actsthat create an indecent nuisance.
(b) The owner of a place described in subsection (a) may void thelease or other title under which the tenant or occupant holds. The useof the place to create an indecent nuisance, without any act of theowner of the place, causes the right of possession to revert and vestin the owner. Without process of law, the owner may makeimmediate entry upon the premises.
As added by P.L.2-2002, SEC.15.