Under the Drug Abatement Act, a lawsuit can be filed against the property owner if the renter is engaged in drug traffic.
By Joseph M. Schilling,
Deputy City Attorney,
City of San Diego
Everyone in the neighborhood knew about the “Titus” house. This was the place to buy the generic size baggie of marijuana or rock cocaine – just like a neighborhood convenience store. Located in a single family residential neighborhood, the Titus family had distributed drugs from this site for nearly ten years. Everyone in the family had some involvement, ranging from three teenage grandsons to the 58-year-old grandmother, the suspected manager of this family-run business.
Neighbors were terrified to complain to the police. Groups of teenagers would loiter in the front yard of the Titus house closing drug deals almost every hour of the day or night. Loud, raucous parties would routinely occur on the weekends. Cars would double park on the street while drivers raced to the front door to get their weekly supplies. The entire neighborhood was disrupted by this drug business.
During 1987, the San Diego Police Department conducted several undercover purchases with the assistance of confidential informants. This resulted in the execution of four search warrants which netted approximately $4,000 in rock cocaine and marijuana. Twenty-nine drug-related arrests were made at this address between March 1987 and January 1988.
Drug activity was not confined just to this address. From May 1, 1987, until November 13, 1987, over 200 people were arrested within a two-block radius of the Titus house. Ninety of these arrests were for drug charges, while the others included drug-related offenses like burglary, battery, petty and grand theft, and assault with a deadly weapon.
Unfortunately, given our over-crowded jails and overworked criminal justice system, few of these arrests immediately banned the “businessmen of drugs” from the streets of this neighborhood. Instead of going directly to court, first-time adult offenders were diverted to drug treatment programs. The grandsons in the Titus family enthusiastically “took the rap” since juvenile records are sealed once they reach emancipation. A few of the arrests were lost in motions to suppress. Despite hundreds of hours invested by the Police Department using traditional law enforcement techniques, the Titus family continued their successful drug business.
This scenario is quite prevalent throughout the nation. Recently, ABC Anchorman Peter Jennings aired a special documentary on the “War against Drugs.” It graphically displayed how illegal drugs permeate every facet of daily life. While the Federal Drug Enforcement Administration (DEA) concentrates upon drug smugglers, and state and local law enforcement officers try to crack down on major distributors and drug manufacturers, the neighborhood dealer often escapes such enforcement efforts.
Rock houses and other distribution sites are important cogs in this cycle of the drug culture. Local narcotics businesses are establishing their roots right in our own backyards! Frustrated law enforcement officials continue to search for fresh and creative approaches to disrupt these neighborhood establishments. One starts to wonder if we are really winning the war against drugs. “Just Say No” is a great slogan, but it may not be enough.
In response to this mounting frustration, City Attorney John Witt’s Code Enforcement Unit filed a civil complaint against both the landlord and the tenants of the Titus house, invoking a little-used provision of the California Health and Safety Code, the Drug Abatement Act. This new approach generated significant media attention and the interest of property and apartment owners throughout San Diego.
This article is the first in a series explaining in depth the rationale and reasons behind the use of the Drug Abatement Act in San Diego. It will analyze the legal principles associated with Drug Abatement and describe how San Diego’s Drug Abatement Task Force operates to implement this statute. In coming months, we will discuss some common sense techniques that rental owners can use to prevent drug dealers from taking over their rental units, as well as the sources which property owners can call for assistance fro law enforcement and the City Attorney’s Office.
What is the Drug Abatement Act?
California Health and Safety Code section 11570 et. seq. is a specialized public nuisance statute. Patterned after the turn-of-the-century Redlight Abatement Act, the act declares:
“Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing or giving away any controlled substance, precursor or analog, specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated and prevented, and for which damages may be recovered, whether it is a public or private nuisance”.
As a creative alternative to traditional law enforcement, the Drug Abatement Act authorizes District Attorneys, City Attorneys or private citizens to file civil complaints seeking equitable relief to abate and perpetually enjoin the owners, lessees, agents or responsible persons from conducting or maintaining these public nuisances. The focus of the action is on the place as well as the persons committing the illegal drug acts. Thus, court orders under the Drug Abatement Act provide for relief in rem (against the property) and in personum (against the person). The court is empowered to issue temporary restraining orders and preliminary injunctions in an effort to abate and prevent the recurrence of the nuisance.
Recognizing the quasi-criminal nature of this action, the legislature granted the courts extraordinary powers to abate this unique type of public nuisance:
Seizure of all fixtures, musical instruments and other moveable property which is used to maintain the nusiance,
Closure of the building for any use for a period of one year,
Assessment of a maximum civil penalty of $25,000 against any of the defendants, depending upon the severity and duration of the nusiance; and
Payment of damages equal to the fair market rental value of the property for one year instead of closing the building.
Obviously, the ultimate threat is the court’s power of contempt and possible execution and sale of the building itself. Section 11580 allows the court to punish violations of the abatement order by a fine between $200 and $1,000 or imprisonment for a minimum of one month and not more than six months, or both fine and imprisonment.
The personal property seized can be sold under execution to pay the costs of keeping the building closed and to pay for the city’s costs in the action. If the proceeds from the personal property fail to fully discharge all of the costs, the building can be sold under order of the court per California Health and Safety Code Section 11585. This is also one of those rare instances where the court can award reasonable attorney’s fees to the prevailing party in a lawsuit brought by a public agency. Please refer to California Civil Code Section 3496.
Advantages of Drug Abatement
A civil action under the Drug Abatement Act generates some concrete advantages. The main advantage is time. Instead of wading through the delays of criminal enforcement, a civil complaint which seeks either a temporary restraining order or preliminary injunction can result in immediate relief. Written declarations and affidavits are used to support the request for provisional relief under these summary court proceedings.
In the Titus case, City Attorney John Witt’s Code Enforcement Unit obtained a temporary restraining order within 24 hours which banned all drug activities and prohibited the removal of personal property. Signs were posted advising drug dealers about the court order and the police department’s continued surveillance. The police department served the order and inventoried the personal property to ensure that nothing of value was removed until the hearing on the preliminary injunction a few weeks away. While no drugs were confiscated, six handguns and rifles were impounded. Thus, the City Attorney was able to provide the residents in this neighborhood with some immediate relief from the disruptive activities of the Titus family instead of waiting several months for a trial or preliminary hearing on criminal charges.
Another advantage is the burden of proof. At trial, the plaintiff’s burden is to show by a mere preponderance of the evidence that a public nuisance exists at the property because of the illegal drug activities. At the summary hearings for preliminary injunctive relief, the burden is even less. California courts have derived a special rule when governmental entities seek provisional equitable relief. The plaintiff need only show a likelihood of success on the merits of the case where the ordinance or statute expressly provides for injunctive relief – the harm to the public is presumed.
Evaluating the evidence
In considering whether to file this and other Drug Abatement actions, the City Attorney carefully evaluates the evidence. Not every case is ripe for Drug Abatement. Does the evidence show a pattern of continuous and repeated drug activity? Can the property owner achieve permanent abatement without a court action?
Most public nuisance statutes are silent on the amount and type of evidence necessary to obtain abatement orders. No published cases exist from California’s Appellate Courts and Supreme Court which interpret the Drug Abatement Act. Therefore, guidance can only be gleaned from appellate decisions interpreting its sister statute, the Redlight Abatement Act, and general principles which apply to standard nuisance abatement actions.
One of those principles is the continuous nature of the activity. Where the drug activities have occurred over a prolonged period of time, a Drug Abatement action may be the most appropriate method to abate this public nuisance. Twenty-nine arrests were made at the Titus house for drug charges in less than a year. Please note that arrests alone may be a sufficient indicator of the drug activity regardless of conviction.
Statements from neighbors are another excellent source of evidence. Neighbors can sign declarations under the penalty of perjury which describe the long history of drug activities in their neighborhood. This is particularly persuasive in court. Not al citizens, however, are so bold as to sign such declarations. The tenants in the Titus case refused to sign such statements because they feared reprisals.
The general reputation of the property is another relevant fact where the neighbors can offer their testimony. This source is supported from case law interpreting the provisions of the Redlight Abatement Act. The general reputation of a business is admissible circumstantial evidence of a public nuisance. See People v. Macy, 43 Cal.App479, 481, 184 Pac. 1008 (1919) (lewd acts); and People ex rel. Hicks v. Sarong Gals, 42 Cal.App 3d 556, 561, 117 Cal.Rptr 24 (1974).
One of the most controversial issues under the Drug Abatement Act is the property owner’s personal knowledge and culpability. In California, the general rule for basic public nuisances and Redlight and Drug Abatement is analogous to strict liability. “ showing of personal knowledge on the part of the owner or operator of the premises is not a perquisite to relief under the Redlight Abatement Law.” People ex rel. Hicks v,. Sarong Gals, 42 Cal.App 3d at 461 (citations omitted).
“This is unfortunate that such drastic punishment must be inflicted on the innocent to prevent similar occurrences; but the evil sought to be remedied demands harsh treatment and the owner whose premises are used for immoral purposes must suffer the consequences.” People v. Bayside Land Co., 48 Cal.App 257, 261, 291 Pac. 994 (1920) (Redlight Abatement).
In the Titus case, the City Attorney’s investigation failed to connect the property owner to any of the illegal drug activities. Despite his lack of knowledge, however, the court issued the appropriate equitable relief under the principles of strict liability.
San Diego’s Task Force in action.
Despite the presence of the Drug Abatement Act, the City Attorney had to consider the practical limitations of manpower and time in successfully prosecuting such complex civil actions. San Diego established its own internal Drug Abatement Task Force to assist in the identification and coordination of these civil actions. This experience has shown that most, if not all, of the buildings where illegal drug activities were carried out contained numerous building, fire, health and zoning violations.
Broken windows.
Therefore, instead of relying entirely upon the Drug Abatement Act, the civil complaint also incorporates actions to enforce municipal code violations at the property. This integrated approach increases the likelihood that an owner will take more responsibility in the management of his or her property and thereby restore some stability to the neighborhood.
The relationship between criminal activity and dilapidated buildings has been well documented by numerous social psychologists. (See “Broken Windows” by Professor James Q. Wilson and George L. Kelling of Harvard in the March, 1982, issue of the Atlantic Monthly.)
The City of San Diego’s Drug Abatement Task Force is comprised of supervisors from the Police Department’s Narcotics Street Team and WE-CAN Detail, the City Attorney’s Office, City Manager, and the Zoning, Building Inspection and Fire Departments. At its monthly meetings, the Task force discusses and identifies targets throughout the city for investigation.
In reviewing a site, the Police Department researches the computerized crime history of the location and checks with its Narcotics Street Team and other specialized anti-drug units to determine the amount and type of drug activity. If an undercover purchase is made, a search warrant is usually executed against the tenants.
Once the police secure the premises, the City Attorney’s Office coordinates a joint inspection with members from various Building, Fire and Zoning Departments. The inspectors take pictures and document the violations on the premises.
Inspection reports from the police and these departments are then evaluated by the City Attorney’s Office to determine the most appropriate enforcement action. If the drug activity is significant and continuous, a civil complaint may be prepared pursuant to the Drug Abatement Act. Building fire and zoning violations are included in the complaint as well. If the drug activity is minimal, the departments are instructed to proceed with standard enforcement policies regarding the building, fire and zoning violations while the police continue to monitor the property for any increases in drug activity.
Not every case is ripe for the immediate filing of a civil complaint without advance notice to the owner. Where the property owner appears genuinely cooperative with police and city authorities, a demand letter may be mailed to establish a schedule for voluntary abatement of all violations.
Since its first meeting in October 1987, the Drug Abatement Task Force has considered over 30 properties and has targeted nearly a dozen single family and multifamily buildings for Drug Abatement. Almost all of these structures exhibit significant housing, fire and zoning violations, thereby providing empirical evidence to support the relationship between crime and dilapidated and abandoned property as explained in the “Broker Window Theory.”
Results at the Titus house.
Olivewood Terrace is once again a quiet, single-family neighborhood for the first time in nearly ten years. No more crowds loiter in front of the Titus house. No more drug deals. No more loud parties. No more cars buzzing through the neighborhood.
As part of a stipulated final judgment, the owner agreed to evict the residents to settle this litigation. They were served with a thirty-day notice to quit and vacated the property. The buildings have been properly secured per the Uniform Fire Code until the owner makes the necessary repairs or demolishes the structure within the next 90 days. This permanent injunction forbids any future drug activity at this location during the owner’s tenure. It also requires him to provide subsequent owners with notice of this action.
What about the Titus family? After the successful Drug Abatement action, the grandmother decided to plead guilty to one of her pending criminal cases for possession and sale o rock cocaine. At her sentencing, the judge thoroughly reviewed our civil complaint and declarations which documented the extensive history of this family operation. As a result, the grandmother will serve time in jail instead of being placed on probation.
Is this a solution to the drug crisis?
Will this Drug Abatement action permanently stop the rest of the Titus family or others from dealing drugs? No, of course not. Despite all of its advantages, a civil action under the Drug Abatement Act is not going to solve our nation’s drug crisis. This crisis is deeply rooted in a maze of complex socio-economic and cultural norms. But Drug Abatement is an innovative treatment which local officials can use to isolate this disease which is spreading into the heart of our neighborhoods.
Drug Abatement concentrates on one of the forgotten victims in the war against drugs – the neighbors of the drug dealer. These are often the innocent people who are terrorized by the local rock houses next door.
Drug Abatement actions also create a partnership between property owner and government in a joint battle against the proliferation of illegal drugs. It reminds negligent landlords about their responsibilities as property owners. No one expects property owners to monitor the daily lives of their residents. Yet, negligent property owners cannot ignore the continuous and repeated drug deals and the rapid deterioration of their property.
The City Attorney recognizes, however, that these situations involve a small number of property owners. SDAA members as a whole are responsible and conscientious property owners who are concerned and frustrated about the growing proliferation of illegal drugs in San Diego’s neighborhoods.
What can responsible property owners do to join the City of San Diego’s battle against illegal drugs? That will be the topic of the next article in this important series.
Reprinted from
Rental Owner Magazine