TITLE 10 Courts and Judicial Procedure Special Proceedings
CHAPTER 71. CRIMINAL NUISANCE ABATEMENT
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TITLE 10
Courts and Judicial Procedure
Special Proceedings
CHAPTER 71. CRIMINAL NUISANCE ABATEMENT
§ 7101. Short title.
This chapter shall be known as and may be cited as the "Criminal Nuisance Abatement Act".
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 2.;
§ 7102. Purpose; construction.
(a) This chapter shall be liberally construed and applied so as to promote its underlying purposes, which are:
(1) To authorize temporary and permanent abatement relief and other remedies to abate any criminal nuisance as defined herein;
(2) To eliminate locations that otherwise attract criminals, violence and the threat of violence associated with either illegal drug trade or any of the other nuisances defined herein;
(3) To abate drug nuisances and illegal drug activity as well as the other nuisances defined herein that otherwise reduce property values, injure legitimate businesses and commerce and erode the quality of life for law-abiding persons working or residing in or near these locations;
(4) To ensure that the civil actions and remedies authorized by this chapter be heard by the courts on a priority basis to expeditiously identify and abate all nuisances, particularly those involving illegal drug trade or activity; and
(5) To encourage owners, landlords, operators and managers of buildings, places or premises (hereinafter referred to as "premise") to take the affirmative steps necessary to prevent violations on their properties involving any of the above nuisances, particularly those involving illegal drug trade or activity.
(b) Any action brought pursuant to this chapter, regardless of the remedy or remedies sought or ordered, is intended to be by the General Assembly and shall be deemed to be an action for abatement of a criminal nuisance.
(c) Any action brought on the basis of a criminal nuisance defined at § 7103(5)b. of this title is intended to abate the criminal nuisance existing on those properties where illegal firearms exist and those who use illegal firearms congregate. It is not intended to interfere with the right to lawful possession or use of firearms by law abiding citizens.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 3-7.;
§ 7103. Definitions.
As used in this chapter, unless the context indicates differently:
(1) "Adverse impact" means the presence of 1 or more of the following conditions:
a. Diminished real property value related to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances in or near the property;
b. Increased fear of residents to walk through or in public areas, including sidewalks, streets, and parks, due to the presence of nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
c. Increased volume of vehicular and pedestrian traffic to and from the property that is related to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
d. An increase in the number of police calls to the property that are related to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
e. Bothersome solicitations or approaches by persons wishing to engage in prostitution or to sell controlled substances or drug paraphernalia on or near the property;
f. The presence, use, or display or discharge of illegal firearms at or near the property;
g. Investigative purchases of controlled substances or drug paraphernalia, or investigative actions relating to prostitution by undercover law-enforcement officers at or near the property;
h. Arrests of persons on or near the property for criminal conduct relating to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
i. Search warrants served or executed at the property relating to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
j. A substantial number of complaints made to law enforcement and other government officials regarding nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
k. Increased number of housing or health code violations relating to nuisances associated with drug activity, illegal firearms, criminal gangs, violent felonies, prostitution, and other public nuisances;
l. Any other impact the Court deems to be relevant and consistent with safeguarding the public health, safety, and welfare of the community.
(2) "Controlled substance," "manufacture," "distribution," "sale," "trafficking," and "possession with intent to sell or distribute" shall have the same meaning as those terms are used in Chapter 47 of Title 16. (3) "Court" means the Superior Court of the State of Delaware.
(4) "Criminal gangs" means any criminal street gangs or youth gangs as defined in §§ 616-617 of Title
11. "Pattern of criminal gang activity" shall have the same meaning as defined in § 616(a)(2) of Title 11.
(5) "Criminal nuisance" means any real property at which:
a. An illegal drug event has occurred within the period of 1 year prior to the commencement of the civil action under this chapter; or
b. The illegal use, manufacture, causing to be manufactured, importation, possession, possession for sale, sale, furnishing, storing or delivery of ammunition or firearms has occurred, or any act or acts which constitute any felony set forth in subpart E of subchapter VII of Chapter 5 of Title 11 or an unlawful attempt or conspiracy to commit such an act; or
c. Prostitution is promoted, facilitated or permitted in violation §§ 1342-1344 and 1351-1356 of Title 11; or
d. Criminal gangs are engaging in a pattern of criminal gang activity; or
e. An act that would constitute a violent felony, as defined by § 4201(c) of Title 11, has occurred within the period of 1 year prior to the commencement of the civil action under this chapter; or
f. A material annoyance, inconvenience, discomfort, or a tangible injury occurs to neighboring properties or persons, and which a court considers objectionable under the circumstances, or any other public nuisance defined by state or municipal codes or Delaware law.
(6) "Firearm" shall have the same meaning as that term is used in § 222 of Title 11. "Ammunition" shall have the same meaning as that term is used in § 1448(c) of Title 11.
(7) "Illegal drug events" means the unlawful manufacture, distribution, trafficking, sale or possession with intent to distribute, sell or deliver a controlled substance, or any act or acts which constitute any felony set forth in Chapter 47 of Title 16, or an unlawful attempt or conspiracy to commit such an act.
(8) "Landlord" shall have the same meaning as that term is defined in § 5141 of Title 25.
(9) "Owner" means any person in whom is vested the ownership and title of property, and who is the owner of record. "Owner" shall include any local, city, county, state or federal governmental entity.
(10) "Person" means a human being who has been born and is alive, and, where appropriate, a public or private corporation, a trust, a firm, a joint stock company, a union, an unincorporated association, a partnership, a government or a governmental instrumentality.
(11) "Place," "site" or "premises" includes any building, structure, erection, or any separate part or portion thereof, whether used as a residence, for commercial purposes or a house of worship, or the ground itself.
30 Del. Laws, c. 234, § 1; Code 1935, § 5272; 10 Del. C. 1953, § 7101; 53 Del. Laws, c. 360; 69 Del. Laws, c. 248, §§ 1, 2; 72 Del. Laws, c. 31, §§ 1, 2; 72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, §§ 1-7; 78 Del. Laws, c. 161, § 8.;
§ 7104. Maintaining a criminal nuisance.
Any person, including but not limited to any owner, agent, employee or lessee, who uses occupies, establishes, promotes, permits, facilitates, or conducts a criminal nuisance, or aids or abets therein, shall be liable for maintaining a criminal nuisance and shall be enjoined as provided in this chapter.
30 Del. Laws, c. 234, § 2; Code 1935, § 5273; 10 Del. C. 1953, § 7102; 72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, § 8; 78 Del. Laws, c. 161, § 9.;
§ 7105. Action to abate criminal nuisance.
(a) Whenever a criminal nuisance exists and it adversely impacts the community, the Attorney General may bring an action to abate a criminal nuisance under this title to obtain temporary and permanent abatement relief under §§ 7111 and 7113 of this title and to seek civil penalties provided under § 7126 of this title.
(b) Any other person, as defined in § 7103 of this title, may bring an action to abate a criminal nuisance under this title on behalf of the Attorney General in the name of the State, provided the person serves the State Solicitor with a copy of the complaint within 5 days of filing. The Attorney General may elect to intervene and proceed with the action after it receives a copy of the complaint. If the Attorney General reviews the complaint and determines that there is insufficient evidence to support the claim, the Attorney General may dismiss the complaint.
30 Del. Laws, c. 234, § 3; Code 1935, § 5274; 10 Del. C. 1953, § 7103; 72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 10.;
§ 7106. Jurisdiction; complaint; notice of lis pendens.
(a) Any action under this chapter shall be brought in the Superior Court of the county in which the property is located.
(b) At or before the commencement of the action a verified complaint alleging the facts constituting the criminal nuisance shall be filed in the office of the Prothonotary of Superior Court, together with a notice of the pendency of the action, containing the names of the parties, the object of the action, and a brief description of the property affected thereby. Such notice of lis pendens shall be immediately recorded by the Prothonotary.
(c) The Court shall have in rem jurisdiction over the premises alleged to be a criminal nuisance, and the complaint initiating the civil action pursuant to this chapter shall name as a defendant the premises involved, describing it by block, lot number and street address, or by such means as are appropriate in the circumstances.
30 Del. Laws, c. 234, § 4; Code 1935, § 5275; 10 Del. C. 1953, § 7104; 72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 11, 12.;
§ 7107. Affirmative defenses.
It shall be an affirmative defense for the owner or landlord to establish, by a preponderance of the evidence, that said owner or landlord attempted to abate the alleged criminal nuisance prior to receiving notice in writing of the State's intent to bring a criminal nuisance abatement action regarding the premises. Examples of actions that are indicia of attempts to abate alleged criminal nuisances include but are not limited to:
(1) Sending or delivering a notice pursuant to § 5513 of Title 25 that the conduct of the tenant, or their guests or invitees, breaches a rule or covenant that is material to the rental agreement;
(2) Sending or delivering a termination notice pursuant to § 5513(a) or (b) of Title 25;
(3) Filing an action for summary possession of the rental unit;
(4) Seeking police intervention to have those responsible for the action prosecuted and actively assisting the police in efforts to prosecute those responsible for the actions or activities being complained of by the complainants.
72 Del. Laws, c. 484, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 158, § 9; 78 Del. Laws, c. 161, § 13.;
§ 7108. Notice to interested parties.
(a) A complaint initiating an action pursuant to this chapter shall be personally served and notice to all in personam defendants shall be provided in the same manner as serving complaints in civil actions. Where the in personam defendant is an owner or landlord, notice shall also be served by leaving a copy of the complaint at the landlord's address as set forth in the lease or as otherwise provided by landlord with an adult person residing therein, or with an agent or other person in the employ of the owner or landlord whose responsibility it is to accept such notice. If the owner or landlord is an artificial entity pursuant to Supreme Court Rule 57, service of the notice or process may be made by leaving a copy thereof at its office or place of business as set forth in the lease with an agent authorized by appointment or by law to receive service of process. Where the in personam defendant is a tenant, notice shall also be served by leaving a copy of the complaint at the person's rental unit or usual place of abode with an adult person residing therein. After filing an affidavit that personal service cannot be had after due diligence on 1 or more in personam defendants, within 20 days after the filing of the complaint, the plaintiff may serve a copy of the complaint by registered or certified mail or first class mail as evidenced by a certificate of mailing postage-prepaid, addressed to the owner or landlord at the owner or landlord's business address as set forth in the lease or as otherwise provided by the owner or landlord, or if the owner or landlord is an artificial entity, pursuant to Supreme Court Rule 57, at its office or place of business, or if the defendant is a tenant, to said tenant at the leased premises. The return receipt of the notice, whether signed, refused or unclaimed, sent by registered or certified mail, or the certificate of mailing if sent by first class mail, shall be held and considered to be prima facie evidence of the service of the notice or process. The plaintiff shall also cause a copy of the complaint to be affixed conspicuously to the premises alleged to be the site of a nuisance. Service shall be deemed completed 5 days after filing with the court proof of such mailing and an affidavit that a copy of the complaint has been affixed to the premises.
(b) All tenants or residents of any premises which is used in whole or in part as a business, home, residence or dwelling, other than transient guests of a guest house, hotel, or motel, who may be affected by any order issued pursuant to this chapter shall be provided such reasonable notice as shall be ordered by the court and shall be afforded opportunity to be heard at all hearings.
72 Del. Laws, c. 484, § 1.;
§ 7109. Substitution of plaintiff. (72 Del. Laws, c. 484, § 1; repealed by 78 Del. Laws, c. 161 § 14, eff. Aug. 3, 2011. )
§ 7110. Delay and dismissal of actions.
(a) All actions brought pursuant to this chapter shall be heard by the court on an expedited and priority basis. The court shall not grant a continuance except for compelling and extraordinary reasons, or upon the application of the Attorney General for good cause shown.
(b) The court shall not stay the civil proceedings pending the disposition of any related criminal proceeding except for compelling and extraordinary reasons or except upon the application of the Attorney General for good cause shown.
(c) The Court shall not dismiss an action brought pursuant to this chapter for want of prosecution unless the Court is clearly convinced that the interests of justice require such dismissal. In that event and upon such a finding, the dismissal shall be without prejudice to the right of the plaintiff to re-institute the action.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 15.;
§ 7111. Temporary abatement hearing; order; procedure.
(a) To bring a civil action for abatement relief pursuant to this chapter, the Office of the Attorney General, or any other person authorized, may file a complaint seeking temporary relief by alleging that the premises constitute a criminal nuisance which adversely impacts the community. Upon receipt of the complaint, the Court, on application of the plaintiff, may issue an ex parte temporary abatement order prohibiting the defendants and all other persons from committing or permitting any act or acts of waste to the premises, or to the personal property and contents thereof, and from knowingly tampering with any evidence likely to be used by any party in any judicial proceeding until the decision of the Court granting or refusing the temporary abatement order thereon. Absent such ex parte relief by the Court, the Court shall order a preliminary hearing which shall be held no later than 10 days from the date upon which service upon all parties was completed, unless otherwise agreed to by the parties. In the event that service cannot be completed in time to give the owners or tenants the minimum notice required by this subsection, the Court may set a new hearing date.
(b) A copy of the complaint together with a notice of the time and place of the hearing of the application for a temporary abatement order shall be served upon the defendants at least 5 days before the hearing. If the hearing be then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course.
(c) Each defendant so notified shall serve upon the complainant, or the complainant's attorney, a verified answer on or before the date fixed in the notice for the hearing and such answer shall be filed with the prothonotary's office wherein the cause is triable, but the Court may allow additional time for so answering, providing such extension of the time shall not prevent the issuing of the temporary writ as prayed for. The allegations of the answer shall be deemed to be denied without further pleading.
(d) If the Court finds:
(1) That the premises constitute a criminal nuisance that adversely impacts the community,
(2) That at least 10 days prior to the filing of the complaint seeking temporary abatement relief, the owner or the owner's agent (or tenant, where such is an in personam defendant) had been notified by certified letter of the criminal nuisance, and
(3) That the public health, safety or welfare immediately requires a temporary closing order and unless the owner or the owner's agent shows to the satisfaction of the Court that the criminal nuisance complained of has been sufficiently abated, or that such person proceeded forthwith to enforce his or her rights under this chapter as more fully set forth herein,
the Court shall issue a temporary abatement order to close the premises involved, the portions appropriate in the circumstances, or any other temporary abatement remedy requested by the Attorney General's Office. The order shall direct actions necessary to physically secure the premises, or appropriate portions thereof, against use for any purpose. The temporary abatement order may also prohibit the defendant and all persons from removing or in any manner interfering with the furniture, fixtures and movable or personal property located on or within the premises constituting the criminal nuisance. Where a tenant is a defendant, the Court may issue a closing order prohibiting him or her from residing at or having contact with the premises.
(e) To determine whether the health, safety, or welfare of the community immediately requires a temporary abatement order, the Court shall consider any relevant evidence presented concerning any attendant circumstances, including but not limited to:
(1) The extent and duration of the criminal nuisance and severity of the impact on the community;
(2) The proximity of the property to other residential structures;
(3) the number of times the owner or tenant has been notified of criminal nuisance related problems at the property;
(4) The prior efforts, or lack of efforts, by the defendant to abate the criminal nuisance;
(5) The involvement of the owner or tenant in the criminal nuisance;
(6) The costs incurred by the jurisdiction or community based organizations in investigating or attempting to correct the criminal nuisance;
(7) Whether the criminal nuisance is continuous or recurring;
(8) Whether the criminal nuisance involves the use or threat of violence; or
(9) Any other factor the Court deems relevant and in the interests of the public health, safety, or welfare of the community.
(f) If the Court finds that the premises constitute a criminal nuisance but that immediate closing of the premises is not required pursuant to subsection
(d) of this section, the Court may abate the criminal nuisance by issuing an order prohibiting the defendants and all other persons from conducting, maintaining, aiding, abetting or permitting events constituting the criminal nuisance, or from otherwise having contact with the premises. Additionally, the Court may issue an order appointing a temporary receiver to manage or operate the premises or order that any defendant take immediate actions including, but not limited to, the remedies listed in § 7113
(e)(7) of this title. A temporary receiver shall have such powers and duties specifically authorized pursuant to § 7113 of this title.
(g) Notwithstanding the Delaware Rules of Evidence, any police report concerning the premises, and any witness statements contained therein, may be admitted into evidence in determining the existence of a criminal nuisance or whether any form of temporary abatement relief is appropriate.
(h) The abatement order shall be served pursuant to the procedures set forth in § 7108 of this title, and by both such delivery and posting. The officer serving such abatement order shall forthwith make and return into Court an inventory of the personal property and contents situated in and used in conducting or maintaining the criminal nuisance. The parties may enter into a consent order in relation to or with respect to temporary abatement relief or permanent abatement relief. Any such order must be approved by the Court. Any violation of such abatement order shall be a contempt of court, and where such order is so posted, mutilation or removal thereof, while the same remains in force, shall be a contempt of court, provided such posted order contains thereon or therein a notice to that effect.
(i) The temporary abatement order shall remain in place until a permanent abatement hearing. Any violation of the Court's temporary abatement order shall be contempt of court, to be punished as provided in this chapter.
(j) The owner or owners of any real or personal property so closed or prohibited, or to be closed or prohibited, may petition the court for an expedited schedule for the permanent abatement hearing.
(k) The release of any real or personal property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subjected by law.
30 Del. Laws, c. 234, § 4; Code 1935, § 5275; 10 Del. C. 1953, § 7105; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, §§ 10-15; 78 Del. Laws, c. 13, § 2; 78 Del. Laws, c. 161, § 16.;
§ 7112. Enforcing ex parte and temporary abatement orders.
(a) Upon order of the court, ex parte closing orders and temporary abatement orders shall be enforced by the appropriate police agency having jurisdiction over the area where the premises are located.
(b) The officers serving an ex parte closing order or a temporary abatement order shall file with the court an inventory of the personal property situated in or on the premises closed and shall be allowed to enter the premises to make the inventory. The inventory shall provide an accurate representation of the personal property subject to such inventory including, but not limited to, photographing of furniture, fixtures and other personal or movable property.
(c) The officers serving an ex parte closing order shall, upon service of the order, demand all persons present in the premises closed, to vacate such premises or portion thereof forthwith unless the court orders otherwise. The premises or portion thereof shall be securely locked and all keys shall be held by the agency closing the premises.
(d) Upon service of an ex parte closing order or a temporary abatement order, the officer shall post a copy thereof in a conspicuous place or upon 1 or more of the principal doors at entrances of the premises. In addition, where an ex parte closing order has been granted, the officers shall affix, in a conspicuous place or upon 1 or more of the principal entrances of such premises, a printed notice that the entire premises or portion thereof have been closed by court order, which notice shall contain a legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises. The printed notice shall also include the date of the order, the court which issued the order and the name of the office or agency posting the notice. In addition, where a temporary abatement order has been granted, the officer shall affix, in the same manner, a notice similar to the notice provided for in relation to an ex parte closing order except that the notice shall state that certain activity is prohibited by court order and that removal of furniture, fixtures or other personal or movable property is prohibited by court order.
(e) Any person who knowingly or purposely violates any ex parte closing order or temporary abatement order issued pursuant to this chapter shall be subject to civil contempt as well as punishment for criminal contempt pursuant to §§ 1271-1272 of Title 11 and § 7129 of this title.
72 Del. Laws, c. 484, § 1.;
§ 7113. Permanent abatement for all criminal nuisance actions; hearing; admissible evidence.
(a) An action, when brought under this chapter, shall be noticed for trial at a time to be fixed by the Superior Court.
(b) In the action evidence of the general reputation of the place, or an admission, or finding of guilt of any person under the criminal laws at any such place, shall be admissible for the purpose of proving the existence of the criminal nuisance, and shall be prima facie evidence of such criminal nuisance and of knowledge of and of acquiescence and participation therein on the part of the person charged with maintaining the criminal nuisance as defined in this chapter.
(c) If the existence of the criminal nuisance is established upon the trial, the Court shall grant permanent abatement relief which perpetually prohibits the defendants and any other person from further maintaining the criminal nuisance at the place complained of, and the defendants from maintaining such criminal nuisance elsewhere within the State and shall issue such other orders as are necessary to abate the criminal nuisance and to prevent to the extent reasonably possible the recurrence of the criminal nuisance. The Court's order may include, but need not be limited to all of the following:
(1) Directing the sheriff or other appropriate agency to seize and remove from the premises all material, equipment and instrumentalities used in the creation and maintenance of the criminal nuisance, and directing the sheriff to sell the property in the manner provided for the sale of property under execution in accordance with the general rules of civil procedure. The net proceeds of any such sale, after the deduction of all lawful expenses involved, shall be paid pursuant to § 7114 of this title.
(2) Authorizing the plaintiffs, subsequent to an order granting plaintiffs the right to seize the property in question, to make repairs, renovations and construction and structural alterations or to take such other actions necessary to bring the premises into compliance with all applicable housing, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. Such repairs, renovations or construction shall only be undertaken after the appropriate regulatory agency has first inspected the property in question, determined that code, ordinance or statutory violations exist and has reported same to the Court. If no order of seizure is granted and the owner or owners of the property remain in possession, the Court may order said owner or owners to make the appropriate repairs as set forth herein following the inspection and determination of violations by the appropriate regulatory agency. Expenditures by the plaintiffs pursuant to this paragraph may be filed as a lien against the property.
(3) Directing the closing of the premises, or appropriate portion thereof, to the extent necessary to abate the criminal nuisance, and directing the officer or agency enforcing the closure order to post a copy of the judgment and a printed notice of such closing order conforming to the requirements of § 7111 of this title. The closing directed by the judgment shall be for such a period of time as the Court may direct but, subject to the provisions of § 7121 of this title, shall not be for a period of more than 1 year from the posting of the judgment provided for in this subsection.
(4) Suspending or revoking any business, operational, rental or liquor license.
(5) Suspending or revoking any lease.
(6) Ordering the suspension of any state, city or local governmental subsidies payable to the owners of the property, such as tenant assistance payments to landlords, until the criminal nuisance is satisfactorily abated.
(7) Appointing a temporary receiver to manage or operate the premises for such a time as the Court deems necessary to abate the nuisance. A receiver appointed pursuant to this section shall have such powers and duties as the Court shall direct, including but not limited to:
a. Collecting, holding and dispersing the proceeds of all rents from all tenants;
b. Leasing or renting portions of the premises involved;
c. Making or authorizing other persons to make necessary repairs or to maintain the property;
d. Hiring security or other personnel necessary for the safe and proper operation of the premises;
e. Retaining counsel to prosecute or defend suits arising from his or her management of the premises;
f. Bringing actions for summary possession of any premises; and
g. Expending funds from the collected rents in furtherance of the foregoing powers.
(8) A receiver appointed by the court pursuant to this section or § 7111 of this title shall upon entering upon his or her duties be sworn and shall affirm faithfully and fairly to discharge the trust committed to him or her. In addition, the receiver may be required to post a bond in an amount to be fixed by the Court making the appointment, to ensure that such receiver will faithfully discharge his or her duties.
(9) If the existence of a criminal nuisance as defined in this chapter is admitted or established in an action under this chapter, the Court may, in addition to the aforementioned remedies or sanctions, order the removal from the place of the criminal nuisance all personal property and contents used in conducting the criminal nuisance and not already released under authority of the Court as provided in § 7111 of this title, and shall further direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution.
(d) Owners of unsold personal property and contents so seized must appear and claim same within 10 days after such order of abatement is made. The burden shall be on the owner to show, to the satisfaction of the Court, lack of any knowledge of the use thereof, and that with reasonable care and diligence they could not have known thereof. Every defendant in the action shall be presumed to have had knowledge of the general reputation of the place. If such innocence be so established, such unsold personal property and contents shall be delivered to the owner; otherwise it shall be sold as provided in this chapter.
(e) If any person breaks and enters, or uses a place so directed to be closed, that person shall be punished as for contempt as provided in this chapter.
(f) For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as that officer would for levying upon and selling like property on execution, and for closing the place and keeping it closed, a reasonable sum shall be allowed by the Court.
(g) The Court may impose any or all of the foregoing remedies in combination with each other.
30 Del. Laws, c. 234, § 5; Code 1935, § 5276; 10 Del. C. 1953, § 7106; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 17.;
§ 7114. Duty of Attorney General; proceeds of sale in all criminal nuisance actions.
(a) In case the existence of facts, circumstances and/or conditions that would constitute any criminal nuisance is established in a criminal proceeding in any court of competent jurisdiction, the Attorney General shall proceed promptly to enforce the provisions and penalties of this chapter, and the finding of the defendant guilty in such criminal proceedings, unless reversed or set aside, shall be conclusive as against such defendant as to the existence of the criminal nuisance.
(b) All moneys collected under this chapter, including but not limited to proceeds of the sale of personal property, as provided in § 7113 of this title, shall first be applied in payment of the costs of the action and abatement and then in payment of reasonable attorney fees. In the event the action is brought by the Attorney General, all moneys collected in excess of costs and reasonable attorney fees shall be paid to the Special Law Enforcement Assistance Fund, as established in §§ 4110-4116 of Title 11. In actions brought under this chapter by a county or municipality, all moneys collected in excess of costs and reasonable counsel fees shall be paid to said county or municipality. In all actions brought under this chapter by a person or persons other than noted above, all moneys collected in excess of costs, reasonable attorney fees and damage awards shall be paid to the Special Law Enforcement Assistance Fund.
30 Del. Laws, c. 234, § 7; Code 1935, § 5278; 10 Del. C. 1953, § 7108; 72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 18.;
§ 7115. Lease void if building used for criminal nuisance.
Notwithstanding any law, rule or regulation to the contrary, if a tenant or occupant of a building or tenement, under a lawful title, is found after a hearing at which the tenant or occupant has appeared to have used such place for a criminal nuisance-related purpose, such use makes void the lease or other title under which the tenant or occupant holds, at the option of the owner, and, without any act of the owner, causes the right of possession to revert to vest in such owner.
59 Del. Laws, c. 257, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 19, 20.;
§ 7116. Civil penalty. (59 Del. Laws, c. 257, § 1; 72 Del. Laws, c. 484, § 1;repealed by 78 Del. Laws, c. 161 § 21, eff. Aug. 3, 2011. )
§ 7117. Immunity. (59 Del. Laws, c. 257, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 484, § 1; repealed by 78 Del. Laws, c. 161 § 22, eff. Aug. 3, 2011. )
§ 7118. Notification and provision of treatment resources.
(a) The officers serving a closing order involving a criminal nuisance as defined in § 7103(5)(a) of this title shall provide outreach information and referral materials to all residents present on how to obtain alcohol and other drug treatment.
(b) In any case in which the court orders the removal of any person from any dwelling pursuant to this chapter, the court shall cause notice to be provided to the local alcohol and drug agency, the Division of Family Services, and other appropriate social services agencies.
(c) A 1-page summary of such information and materials shall be posted next to any ex parte closing order or temporary abatement order posted in accordance with § 7112 of this title.
(d) The State Division of Substance Abuse and Mental Health or its designee shall prepare all materials described in subsections (a) and (b) of this section, and shall disseminate them to all which are empowered to enforce closing orders under this chapter.
72 Del. Laws, c. 484, § 1; 73 Del. Laws, c. 41, § 1; 78 Del. Laws, c. 161, § 23.;
§ 7119. Premises involving multiple residences or businesses.
(a) Where the premises constituting the criminal nuisance includes multiple residences, dwellings or business establishments, a temporary or permanent closing order issued pursuant to any provision of this chapter shall, so far as is practicable, be limited to that portion of the entire premises necessary to abate the criminal nuisance and prevent its recurrence.
(b) In addition to any other relief expressly authorized by this chapter, the court may order a defendant who actually knew or, based on information provided to said defendant, had reason to know of, the criminal nuisance, to provide relocation assistance to any tenant ordered to vacate a premises pursuant to this chapter, provided that the court determines that such tenant was not involved in the criminal nuisance or any criminal nuisance constituting the criminal nuisance and did not knowingly aid in the commission of any such criminal nuisance. Relocation assistance shall be in the amount necessary to cover moving costs, security deposits for utilities and comparable housing, any lost rent, and any other reasonable expenses the court may deem fair and reasonable as a result of the court's order to close a premises or any portion thereof pursuant to this chapter.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 24-26.;
§ 7120. Defense application to vacate or modify closing order prior to trial. (72 Del. Laws, c. 484, § 1; 70 Del. Laws, c. 186, § 1; repealed by 78 Del. Laws, c. 161 § 27, eff. Aug. 3, 2011. )
§ 7121. Presumption against closure; vacating closure after abatement of nuisance and proof nuisance is not likely to occur.
(a) Where the court after trial determines that a premises or appropriate portion or portions thereof pursuant to § 7111 of this title constitutes a nuisance, the court shall order the closure of the premises. No such closure shall be granted unless, in the totality of the circumstances, no less onerous penalty is likely to provide for the abatement of the nuisance. Further, no order of closure shall occur if the court is clearly convinced that any vacancy resulting from the closure would exacerbate rather than abate the nuisance or would otherwise be extraordinarily harmful to the community or the public interest. In determining whether closure is the least onerous penalty, the court shall consider:
(1) Whether any previously agreed upon abatement plan, consent order, or other steps taken by a defendant have abated the nuisance;
(2) The duration that any nuisance has existed on the premises and whether any court has previously found the existence of a nuisance on the premises;
(3) The severity of the nuisance;
(4) Whether the defendant has the ability to control the conduct on the premises or the ability to abate the nuisance;
(5) The impact of the continuation of the nuisance upon any neighborhood or community organization; and
(6) The position of any community or civic association which represents the communities in which the premises are located.
(b) The court at any time after trial may vacate the provisions of the judgment that direct the closing of the premises or any portion thereof provided that the defendant submits clear and convincing proof to the court that the nuisance has been satisfactorily abated and is not likely to recur. In determining whether the nuisance has been satisfactorily abated and is not likely to recur, the court shall consider the nature, severity and duration of the nuisance and all other relevant factors, including but not limited to those factors set forth in § 7113 of this title.
72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, § 17.;
§ 7122. Standard of proof.
Except as may otherwise be expressly provided, the civil causes of action established in this chapter shall be proved by a preponderance of the evidence.
72 Del. Laws, c. 484, § 1.;
§ 7123. Admissibility of evidence to prove criminal nuisance.
(a) In any action involving any criminal nuisance, evidence of the general reputation of the place or an admission or finding of guilty of any person under the criminal laws at any such place is admissible for the purpose of proving the existence of said criminal nuisance and is prima facie evidence of such criminal nuisance and of knowledge of and of acquiescence and participation therein on the part of the person charged with maintaining said criminal nuisance.
(b) In any action brought pursuant to this chapter, any evidence of any prior efforts or lack of efforts by the defendant to abate the criminal nuisance shall be admissible, and shall be considered by the court in its decision as to what, if any, remedies or penalties shall be imposed.
(c) Where a criminal prosecution or juvenile delinquency proceeding results in a criminal conviction or adjudication of delinquency, such conviction or adjudication shall create a rebuttable presumption that the criminal nuisance occurred. Any evidence or testimony admitted in the criminal or juvenile proceedings, including transcripts or a court reporter's notes of the transcripts of the adult or juvenile criminal proceedings, whether or not they have been transcribed, may be admitted in the civil action brought pursuant to this chapter.
(d) In the event that the evidence or records of a criminal proceeding which did not result in a conviction or adjudication of delinquency have been sealed in accordance with § 10002(g) of Title 29, § 4322(a) of Title 11, and §§ 1001-1002 and 1063 of this title, the court, in a civil action brought pursuant to this chapter may, notwithstanding any other provision of this chapter, order such evidence or records to be unsealed if the court finds that such evidence or records would be relevant to the fair disposition of the civil action.
(e) If proof of the existence of the criminal nuisance depends, in whole or in part, upon the affidavits or testimony of witnesses who are not peace officers, the court may upon a showing of prior threats of violence or acts of violence by any defendant or any other person, issue orders to protect those witnesses including, but not limited to, the nondisclosure of the name, address or any other information which may identify those witnesses.
(f) A law-enforcement agency may make available to any person or entity seeking to secure compliance with this chapter any police report, or edited portion thereof, or forensic laboratory report, or edited portion thereof, concerning the alleged criminal nuisance on or within the premises involved. A law-enforcement agency may also make any officer or officers available to testify as a fact or expert witness in a civil action brought pursuant to this chapter. The agency shall not disclose such information where, in the agency's opinion, such disclosure would jeopardize an investigation, prosecution or other proceeding, or where such disclosure would violate any federal or state statute.
72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, § 19; 78 Del. Laws, c. 161, §§ 28-32.;
§ 7124. Relationship to criminal proceedings.
A civil action may be brought and maintained pursuant to this chapter, and the court may find the existence of a criminal nuisance, notwithstanding that an event or events used to establish the existence of the criminal nuisance have not resulted in an arrest, prosecution, conviction or adjudication of delinquency.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 33.;
§ 7125. Release of premises upon inspection or repair.
(a) Unless the court expressly orders otherwise, no premises or portion thereof ordered to be closed pursuant to any provision of this chapter shall be released or opened unless it has been inspected by the appropriate license and inspection authority or agency and found to be in compliance with applicable local or state housing, building, fire, zoning, health and safety codes, ordinances, rules, regulations or statutes. Where the inspection reveals violations of any such code, ordinance, rule, regulation or statute, the court shall issue such orders or grant such relief as may be necessary to bring the premises or portion thereof into compliance. In that event, the court may order the premises or portion thereof to remain closed pending such necessary repairs or modification, notwithstanding that the order of closure may exceed the 1-year time limit prescribed in § 7113 of this title.
(b) The court may authorize any person or government official to enter a premises or portion thereof closed pursuant to this chapter for the purpose of conducting an inspection or making any repairs or modifications necessary to abate the criminal nuisance or to bring the premises or portion thereof into compliance with any applicable housing, building, fire, zoning, health or safety code, ordinance, rule, regulation or statute.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 34, 35.;
§ 7126. Penalties.
(a) Where the court after trial finds that a premises is a criminal nuisance, the court in addition to granting appropriate abatement relief shall impose a civil penalty against a defendant who knowingly conducted, maintained, aided, abetted or permitted the criminal nuisance. The court shall order civil penalties in the amount of $25,000 or the court, at its discretion, may order a civil penalty up to $1,000 for each day the criminal nuisance exists, whichever is greater, unless imposition of such penalty would constitute a miscarriage of justice under the totality of the circumstances. In such case, it may lower the penalty amount to the extent necessary to avoid such miscarriage of justice.
(b) For the purpose of imposing a civil penalty pursuant to this section, the following shall be prima facie evidence that the defendant knowingly permitted the criminal nuisance:
(1) The defendant failed to initiate an eviction action pursuant to the provisions of this chapter or a summary possession action pursuant to Chapter 57 of Title 25 or against a tenant after being notified by certified or registered mail of the facts pertaining to the tenant's alleged illegal activities constituting a criminal nuisance committed on the leased premises which would in turn cause a reasonable person to believe the allegations are likely to be true; or
(2) A closure order was vacated under § 7121 of this title within 2 years before the occurrence of the instant criminal nuisance; or
(3) The defendant furthered, conspired as to, or participated in the commission of a crime on the premises.
(c) The court at any time shall waive, suspend or revoke any unpaid civil penalty imposed pursuant to this section where it is satisfied that:
(1) The defendant against whom the penalty has been imposed has not violated any order issued pursuant to any provision of this chapter; and
(2) The defendant has transferred title to the plaintiff, a government agency or any other neighborhood or community organization approved by the court, provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C. § 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate any commercial or residential premises. Unless otherwise agreed to by the recipient organization, the defendant shall personally retain all state and local tax liability and the obligation shall attach to any other real property in the county owned by the defendant.
72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, §§ 20, 21; 78 Del. Laws, c. 161, §§ 36-39.;
§ 7127. Settlements.
(a) Nothing in this chapter shall be construed in any way to prevent the parties to the action at any time before or after trial from negotiating and agreeing to a fair settlement of the dispute, subject to the approval of the court. Any such settlement, once approved by the court, shall be entered as an order of the court. Any violation of such an order by the defendant shall be punishable as contempt as provided in this chapter.
(b) The court, on application of a plaintiff may vacate a closing order issued pursuant to this chapter where the defendant has transferred title to the premises to the plaintiff, a government agency or any other neighborhood or community organization approved by the court, provided that the recipient is a nonprofit incorporated organization or association which is exempt from taxation under 26 U.S.C. § 501(c) and which is authorized by its corporate charter or bylaws to rehabilitate, restore, maintain, manage or operate by commercial or residential premises. In that event, the requirements for prerelease inspection set forth in § 7125 of this title shall not apply.
72 Del. Laws, c. 484, § 1; 76 Del. Laws, c. 158, § 22.;
§ 7128. Recovery of costs.
(a) Whenever an action for abatement relief or penalties brought pursuant to this chapter terminates in a settlement or judgment favorable to the plaintiff, the plaintiff and any other governmental entity shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and expenses and disbursements by the plaintiff or any governmental entity in investigating, bringing, maintaining and enforcing the action and any court orders issued pursuant thereto. All defendants shall be jointly and severally liable for the payment of taxed costs imposed pursuant to this section.
(b) A judgment awarding a permanent abatement pursuant to this chapter shall be a lien upon the premises declared to be a criminal nuisance unless title thereto has been transferred pursuant to §§ 7126 and 7127 of this title. In addition, a judgment against an in personam defendant imposing a civil penalty or bill of taxed costs pursuant to this chapter shall be a lien upon the real estate owned by the defendant at the time of such rendition, and also upon all real estate the defendant may subsequently acquire, for a period of 10 years from the date of the judgment, subject to renewal of the judgment pursuant to § 4711 of this title.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 40.;
§ 7129. Contempt.
(a) Any person who knowingly violated any order issued pursuant to this chapter shall be subject to civil contempt as well as punishment for criminal contempt under §§ 1271 and 1272 of Title 11. Nothing in this chapter shall be construed in any way to preclude or preempt a criminal prosecution for violation of a controlled substance offense or any other criminal offense.
(b) In case of the violation of any abatement or closing order granted under this chapter, or the commission of any contempt of court in proceedings under this chapter, the court may summarily try and punish the offender.
(c) The proceeding shall be commenced by filing in the pending action with the Prothonotary's Office a Motion for a Rule to Show Cause pursuant to Superior Court Civil Rule 64.1, accompanied by an affidavit showing service on the defendant and setting forth the facts constituting the violation. The court shall thereupon cause a subpoena to issue under which the defendant shall be required to appear and defend the allegations. The hearing shall be oral before the court, unless otherwise ordered by the court and either party may demand the production and oral examination of the witnesses.
(d) A party found guilty of contempt under this chapter shall be fined not less than $500 nor than $10,000, or imprisoned not less than 3 months nor more than 1 year, or both. In addition, the court may impose an order of restitution or other conditions as the court deems appropriate.
30 Del. Laws, c. 234, § 8; Code 1935, § 5279; 10 Del. C. 1953, § 7109; 72 Del. Laws, c. 484, § 1.;
§ 7130. Cumulative remedies.
The causes of action and remedies authorized by this chapter shall be cumulative with each other and shall be in addition to, not in lieu of, any other causes of action or remedies which may be available at law or equity. Further, nothing herein shall be construed as to limit the power or authority of the court in the enforcement of this chapter. However, in every case initiated under this chapter, the court shall impose the least onerous remedy possible.
72 Del. Laws, c. 484, § 1.;
§ 7131. Liability for damage to closed properties.
(a) A court-ordered closing of a premises or portion thereof pursuant to this chapter shall not constitute an act of possession, ownership or control by the court, the plaintiff or any government official or entity responsible for enforcing the court order.
(b) Any person or entity bringing, maintaining or enforcing any civil action or order issued in accordance with the provisions of this chapter shall have immunity from any civil liability that might otherwise be incurred for any theft of, or loss, damage or injury to any premises constituting the criminal nuisance, or to any fixture, furniture, personal or movable property located in or on any such premises.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, § 41.;
§ 7132. Civil immunity.
Any person or entity who, in good faith, institutes, participates in, testifies in, or encourages any person or entity to institute, participate in or testify in a civil action brought pursuant to this chapter or who in good faith provides any information relied upon by any person or entity in instituting or participating in a civil action pursuant to this chapter, including but not limited to those persons defined or otherwise identified in §§ 7103 and 7107 of this title, shall have immunity from any civil liability that might otherwise be incurred or imposed.
72 Del. Laws, c. 484, § 1.;
§ 7133. Civil action for damages resulting from nuisance.
(a) Notwithstanding the provisions of § 7105 of this title, any person damaged in his or her business or property by reason of a criminal nuisance may bring a separate civil action for actual damages in the Superior Court against any person who knowingly conducted, maintained, aided, abetted or permitted criminal nuisance as defined in this chapter.
(b) In a civil action for damages pursuant to this section, the failure of an owner or landlord to initiate an eviction action against a tenant in accordance with the provisions of Chapter 57 of Title 25, if the owner or landlord has been notified by certified or registered mail of the tenant's involvement in a criminal nuisance on the leased premises, shall be prima facie evidence that the owner knowingly gave permission to engage in conduct constituting the criminal nuisance.
(c) In a civil action for damages pursuant to this section, expert testimony may be used to determine the amount of any actual damage or loss incurred by reason of the criminal nuisance as defined in this chapter.
(d) Whenever an action for damages brought pursuant to this section terminated in a settlement or judgment favorable to the plaintiff, the plaintiff shall be entitled to recover the actual cost of the suit, including but not limited to reasonable attorney fees and all expenses and disbursements by the plaintiff in investigating, bringing and maintaining the action. All defendants shall be jointly and severally liable for the payments of taxed costs imposed pursuant to this section.
(e) In any civil action for damages brought pursuant to this section, any evidence admitted or admissible in a civil action for abatement relief or penalty pursuant to this chapter shall be admissible.
72 Del. Laws, c. 484, § 1; 78 Del. Laws, c. 161, §§ 42-47.;
§ 7134. Presumptions.
(a) The person in whose name the premises involved is recorded in the recorder of deeds office shall be presumed to be the owner thereof.
(b) Whenever there is evidence that a person was the manager, operator, supervisor or was in any other way in charge of the premises involved at the time of any conduct constituting the criminal nuisance is alleged to have been committed, such evidence shall be rebuttably presumptive that such person was an agent or employee of the owner, landlord or lessee of the premises.
78 Del. Laws, c. 161, § 48.;
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