Legislature(1995 - 1996)
02/07/1996 01:40 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 446 - NUISANCE INJUNCTIONS BY HOME RULE MUNI'S REPRESENTATIVE NORMAN ROKEBERG came forward to address HB 446 as sponsor. He pointed out that on the face of it, this bill seemed like a simple and harmless bill, but that it had significant meaning. This legislation would allow municipalities to bring a cause of action in equity to enjoin nuisances through an Alaska Statute under the heading of "Abatement of Lewd Houses." He stated that this was an old statute which had been on the books for a number of years. Under this provision, the Attorney General of the State of Alaska, as well as a private citizen, have standing to enjoin lessees, agents or owners of a particular premise from particular activities, most specifically prostitution, gambling, and the use of controlled substances. Representative Rokeberg stressed that the latter was a major issue. REPRESENTATIVE ROKEBERG referenced a letter in the bill packet from the Deputy Chief of Police of Anchorage, Duane S. Udland, as well as, a Resolution from the Anchorage Chamber of Commerce, which was a major piece of the mayor's fight against of crime in the City of Anchorage. Number 260 REPRESENTATIVE BUNDE asked that in it's basic terms this legislation would allow a municipality to close down a crack house. REPRESENTATIVE ROKEBERG said that this was correct. REPRESENTATIVE VEZEY asked if any home rule municipalities had attempted to obtain an injunction against a particular property owner, as engaging in acts considered a nuisance and was then denied this right. He stated that this was one of those areas where he was unsure whether the legislature needed to give authority to a sovereign entity when that right had never been taken away in the first place. Number 336 REPRESENTATIVE ROKEBERG said he couldn't answer this question, but deferred to the legal experts on teleconference in Anchorage. Representative Rokeberg stressed that where the Attorney General of Alaska had been requested to take action regarding nuisances and because they have indicated they don't have the resources, or perhaps not even the will to do so, he felt that this was good reason for the requested statutory revision. Number 400 MARY HUGHES, Municipal Attorney, Municipality of Anchorage, testified by teleconference from Anchorage. She responded to the question by Representative Vezey regarding whether the municipality had ever sought injunctive relief. The municipal law department believed that under the statute as it now exists, the municipality may not seek injunctive relief. This was not a stick in the bundle of sticks which they might use to prevent crime in the Municipality of Anchorage. MS. HUGHES stated that this was one of the areas in which the department proposed a resolution short of the enactment of the proposed legislation before the committee now. Last year the department talked to the Attorney General asking that they be given special (indisc.) and the result was the appointment in effect, of an almost, Assistant Attorney General to enforce these injunctive acts. Unfortunately, this entire process had taken longer than expected. MS. HUGHES stated that some of the requirements of this special appointment were ones that she could not agree to. For instance, in order that this specially appointed person to enforce an act vis-a-vis the state of Alaska, they would be required to report to one of the Assistant Attorney General's in Anchorage. This type of reporting system was not suitable from Ms. Hugh's perspective and it was probably inappropriate for an Assistant Municipal Attorney to do so. MS. HUGHES stressed that the municipality would like the power to act on nuisance claims independent of the state of Alaska. The municipality had exhausted this other alternative. Ms. Hughes pointed out that they have situations in which this law could be used right now. She noted that, especially in Anchorage, the landlords are not very cooperative. Equipped with this particular provision, along with the municipal law office's willingness to pursue these cases, Ms. Hughes thought they could make a dent in those areas of crime where this type of civil abatement may be the only way in which to get a landlord's attention. MS. HUGHES noted that the municipality tried to resolve this problem in other ways and when she mentioned this proposed legislation to the Attorney General, he understood. Number 670 REPRESENTATIVE VEZEY asked Ms. Hughes if she had ever gone to court and been denied authority over these types of nuisance cases or if the municipal assembly had ever tried to adopt these provisions on their own. MS. HUGHES said that the department doesn't interpret the law as having the ability to do this. In other words, the law specifically states that the "Attorney General shall or a private citizen may..." She noted that the Attorney General's office does not meet the description as being a private citizen. The municipality has not utilized this particular law because they feel as though they cannot do so. REPRESENTATIVE VEZEY again asked if there had been any effort to establish authority in the municipality to do this. As a home rule municipality, he was unclear as to whether or not the state had actually taken this power away from them. He asked if they had tried to establish their authority under ordinance or bylaw which would permit this. Number 770 MS. HUGHES pointed out, as in many cases, the department always tries to anticipate defense council's arguments and because this particular law is on the books, the defense could argue that the legislature has only allowed the Attorney General of the State of Alaska or a private citizen to pursue this remedy. This was not within the remedies available to the municipality. Therefore, the municipality could find themselves in court arguing against the argument that they don't have this authority. Ms. Hughes added in theory that there was a possibility they may have the power to this, but she was more comfortable pursuing the proposed the legislation as a remedy. Number 875 LESLIE SCHUMACHER, Assistant Municipal Attorney, Municipality of Anchorage, testified by teleconference. She pointed out that one of the important aspects of this legislation was that, it not only allows the municipality to go after a tenant who might be selling drugs, for example, but also allows them to go after a landlord who rents to such a tenant. Ms. Schumacher also added, that if they were required to enact a similar ordinance in the municipal code, they probably could not specify anything related to landlord/ tenant laws, since these are already enumerated in state statute. MS. SCHUMACHER said that if a nuisance was found under this legislation, the court would automatically terminate the lease between the landlord and tenant. The building would also be closed for a year. The landlord would have to prove that he had been trying to resolve this problem without success before the municipality became involved. He would pay all attorney's fees in the action and post a bond to ensure the nuisance would not happen again if he was found in contempt of court. Number 977 VICE CHAIRMAN GREEN asked about a particular situation where the landlord is an absentee landlord, say for example, if he does not live in the same municipality or area where the abuse is taking place. MS. SCHUMACHER pointed out that under this situation the landlord would still be subject to the provisions just discussed. The question relies on where the property is located. REPRESENTATIVE VEZEY noted that as a landlord he was in a similar situation with a tenant who was trafficking drugs. He wondered about reasonable steps that would be allowed for an absentee landlord to rectify a problem such as this one. Number 1124 MS. HUGHES said that she had been in the identical situation. This present legislation was drafted to anticipate a situation where, for example, drug trafficking had been taking place for an extended period of time such as 6 months to a year. She stressed that typically it would be a situation where a landlord would have knowledge of the nuisance for a very extended period of time. MS. HUGHES stated that these types of cases would be referred to the Attorney General's office for prosecution, but because of budget cuts and limited man power, this in the past, had not been successful. Number 1326 REPRESENTATIVE CON BUNDE asked what would trigger the use of this provision other than prosecutorial discretion. MS. HUGHES stated that it wouldn't be initiated from a prosecutorial side since this would be a civil action, but the Anchorage Attorney's office would decide if this was an appropriate action under the circumstances. The municipality would have to then prove these circumstances in a court of law. Number 1424 REPRESENTATIVE ROKEBERG requested Ms. Hughes to clarify, in terms of a remedy and the procedure, whether or not it would be possible to require a forfeiture of sale of the property. MS. SCHUMACHER stated that this provision wouldn't provide for a sale or a forfeiture, but the landlord would be required to remove any furniture or fixtures which were used to perpetuate the nuisance. If the property owner did not respond at all, they would be held in contempt of court and they would be required to pay up to $1000 fine and could be imprisoned from a minimum of three months to six months. If they didn't pay the $1000 fine, it would become a lien on the property. The property could eventually be forfeited to the municipality in this way, if the fine wasn't paid. Number 1555 REPRESENTATIVE BUNDE made a motion to move HB 446 from the Judiciary Committee with the attached zero fiscal note with individual recommendations. Hearing no objection it was so moved.