§ 5-74-109 - Premises and real property used by criminal gangs, organizations, or enterprises, or used by anyone in committing a continuing series of violations -- Civil remedies.
5-74-109. Premises and real property used by criminal gangs, organizations, or enterprises, or used by anyone in committing a continuing series of violations -- Civil remedies.
(a) Intent. The intent of the General Assembly in this section is to enact civil remedies that eliminate the availability of any premises for use in the commission of a continuing series of criminal offenses.
(b) Common nuisance declared. Any premises, building, or place used to facilitate the commission of a continuing series of three (3) or more criminal violations of Arkansas law is declared to be detrimental to the law-abiding citizens of the state and may be subject to an injunction, a court-ordered eviction, or a cause of action for damages as provided for in this subchapter.
(c) Action to abate -- Permanent injunction -- Verification of complaint. (1) When there is reason to believe a common nuisance under subsection (b) of this section is kept or maintained, or exists in any county, the prosecuting attorney of the county in the name of the state, or the city attorney of any incorporated city, or any citizen of the state or a resident of the county in his or her own name, may enjoin permanently the person conducting or maintaining the nuisance and the owner, lessee, or agent of the building or place in or upon which the nuisance exists from directly or indirectly maintaining or permitting the nuisance.
(2) Unless filed by the prosecuting attorney, the complaint in the action shall be verified.
(d) Inspection warrant. When there is reasonable cause to believe that any premises is being maintained in violation of this section, any judicial officer may, upon the petition of the prosecuting attorney, issue an inspection warrant for the premises.
(e) Temporary injunction -- Bond required -- Exceptions. (1) If the existence of the nuisance is shown in the action to the satisfaction of the court, the court shall allow a temporary writ of injunction to abate and prevent the continuance or recurrence of the nuisance.
(2) (A) On granting the temporary writ, the court shall require a bond on the part of the applicant to the effect that the applicant shall pay to the enjoined defendant such damages, not exceeding an amount to be specified, as the defendant sustains by reason of the injunction should the court finally decide that the applicant was not entitled to the injunction.
(B) No bond is required when the proceeding is instituted by the prosecuting attorney or city attorney.
(f) Precedence of action -- Exceptions. The action shall be filed in the circuit court and have precedence over all other actions except election contests and hearings on injunctions.
(g) Dismissal for want of prosecution. If the complaint is filed by a citizen, it shall not be dismissed by him or her or for want of prosecution except upon a sworn statement made by him or her setting forth the reasons why the action shall be dismissed, and by dismissal ordered by the court.
(h) Costs. If the action is brought by a citizen and the court finds there was reasonable ground or cause for the action, costs shall be assessed against him or her.
(i) Order of abatement -- Lien for costs -- Enforcement. (1) If the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the judgment in the case, and the plaintiff's costs in carrying out the order are a lien upon the building or place.
(2) The lien is enforceable and collectible for execution issued by order of the court.
(j) Order of abatement -- Damages. (1) If the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the judgment, and the order shall direct the removal from the building or place of all fixtures and other movable property used in conducting, maintaining, aiding, or abetting the nuisance and shall direct their sale in the manner provided for the sale of chattels under execution.
(2) (A) The order shall provide for any appropriate equitable relief as determined by the court to be necessary to abate the nuisance and may further provide, if determined to be the least restrictive alternative available to effectively accomplish the abatement, for the effectual closing of the building or place for such period of time as determined to be necessary by the court as adequate to abate the nuisance.
(B) An alternative to closure may be considered only as provided in this section.
(3) (A) (i) If the court finds that any vacancy resulting from closure of the building or place may create a nuisance or that closure is otherwise harmful to the community, in lieu of ordering the building or place closed, the court may order the person who is seeking to keep the premises open to pay damages in an amount equal to the fair market rental value of the building or place, for such period of time as determined appropriate by the court, to the city attorney or county prosecutor.
(ii) These funds are to be used to investigate and litigate future nuisance abatement actions, or the funds are to be used by the city or county in whose jurisdiction the nuisance is located for the purpose of carrying out its drug prevention and education programs.
(iii) If awarded to a city, eligible programs may include those developed as a result of cooperative programs among schools, community agencies, and the local enforcement agency.
(iv) If awarded to a county, funds shall be used for those programs that are part of any county program in place or used by the county law enforcement agency.
(v) These funds shall not be used to supplant existing city, county, state, or federal resources used for drug prevention and education programs.
(B) (i) For purpose of subdivision (j)(3) of this section, the actual amount of rent being received for the rent of the building or place, or the existence of any vacancy in the building or place, may be considered, but shall not be the sole determinant of the fair market rental value.
(ii) Expert testimony may be used to determine the fair market rental value.
(4) (A) In addition, the court may award damages equal to the plaintiff's cost in the investigation and litigation of the abatement action, not to exceed five thousand dollars ($5,000), against any defendant based upon the severity of the nuisance and its duration.
(B) The damages may be collected in any manner provided for the collection of any civil judgment.
(k) Custody of building. While the order of abatement remains in effect, the building or place is in the custody of the court.
(l) Fees -- Closing of building or place. For removing and selling the movable property, the city, county, or responsible law enforcement agency is entitled to charge and receive the same fees as could be charged and received for levying upon and selling like property on execution, and for closing the premises and keeping the premises closed, a reasonable sum shall be allowed by the court.
(m) Disposition of sale proceeds. The proceeds of the sale of the movable property shall be applied as follows:
(1) First, to the fees and costs of the removal and sale;
(2) Second, to the allowances and costs of closing and keeping closed the building or place;
(3) Third, to the payment of the plaintiff's costs in the action; and
(4) Fourth, the balance, if any, to the owner of the property.
(n) Release of the building to owner. (1) If the owner of the building or place has not been guilty of any contempt of court in the proceedings and appears and pays all costs, fees, and allowances that are liens on the building or place and files a bond in the full value of the property conditioned that the owner shall immediately abate any nuisance that may exist at the building or place and prevent it from being a nuisance within a period of one (1) year thereafter, the court may, if satisfied of the owner's good faith, order the building or place to be delivered to the owner and the order of abatement cancelled so far as it may relate to the property.
(2) The release of property under a provision of this section does not release it from any judgment, lien, penalty, or liability to which it may be subject.
(o) Fine as lien -- Enforcement. (1) When the owner of a building or place upon which the act or acts constituting contempt have been committed, or the owner of any interest in the building or place, has been guilty of contempt of court and fined in any proceeding under this subchapter, the fine is a lien upon the building or place to the extent of his or her interest in it.
(2) The lien is enforceable and collectible by execution issued by order of the court.
(p) Violations -- Criminal penalties. A violation of or disobedience of an injunction or order for abatement is punishable as contempt of court by a fine of not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000) or by imprisonment in the county jail for not less than one (1) month nor more than six (6) months, or by both.
(q) Forfeiture. (1) This section does not provide for the property to be forfeited to the state.
(2) However, the state may at any time amend its petition to seek forfeiture if the property is subject to forfeiture under other Arkansas law.