HB3857 96TH GENERAL ASSEMBLY

LRB096 10334 RLC 22383 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3857

Introduced 2/26/2009, by Rep. Dennis M. Reboletti

SYNOPSIS AS INTRODUCED:

New Act

Creates the Rental Housing Nuisance Act. Defines certain real property leased for residential purposes as potential nuisance property if certain criminal activity was conducted on the property on 3 or more instances during any 120 day period as a result of any 3 separate factual events that have been independently investigated by any law enforcement agency that have resulted in an arrest, issuance of a warrant for an arrest, issuance of a ticket or citation or the filing of a police report. Provides that after independent review of any police reports and determination by the chief law enforcement officer that the activity described in the police reports as occurring upon the property meets the definition of nuisance activity and that the owner permitted the property to become a potential nuisance property, the chief law enforcement officer may require that the owner of the property or his or her or its property manager or other designee meet with the chief law enforcement officer to discuss the nuisance activity and steps the owner can take to mitigate or abate the activity. Provides that the chief law enforcement officer in the name of the municipality or county, in a civil action in a court of proper jurisdiction, may seek a declaration that the property is a nuisance property under the Act if mitigation efforts fail. Establishes civil penalties if the court determines the property to be nuisance property. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning nuisance activity abatement.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Rental Housing Nuisance Act.

Section 5. Legislative findings. The General Assembly finds that criminal activities sometimes exist on rental residential property that cause unsafe conditions for neighboring residents, disrupts neighborhood and community tranquility, and causes a disproportionate strain on municipal and county law enforcement resources. These activities can become a nuisance to the municipalities and counties. Further, the General Assembly finds that an effective method of abatement of such criminal activities is to foster collaboration between the owner of the rental property and local law enforcement officials.

The General Assembly also finds that a state law providing for a uniform manner for municipalities to address these criminal activities and abate these activities is desirable in order to alleviate the problems caused by these criminal activities in rental housing.

Section 10. Definitions.

(a) "Chief law enforcement officer" means the chief law enforcement officer of the municipality or county or his or her designee.

(b) "Nuisance activity" means any activities described in items (i) through (xiv) of subsection (f) of this Section.

(c) "Nuisance property" means a potential nuisance property that has been adjudicated by a civil court pursuant to Section 15 of this Act to meet the elements of Section 15 of this Act and a penalty is imposed by the court pursuant to Section 20 of this Act.

(d) "Owner" means any person having any legal or equitable interest to title in the property in question.

(e) "Person" means any natural person, partnership, limited partnership, corporation, limited liability company, or other entity organized under the laws of any state or the United States.

(f) "Potential nuisance property" means property upon which 3 or more instances of any one or any combination of the activities listed below have occurred during any 120 day period as a result of any 3 separate factual events that have been independently investigated by any law enforcement agency that have resulted in an arrest, issuance of a warrant for an arrest, issuance of a ticket or citation or the filing of a police report:

(i) Disorderly conduct as defined in Section 26-1 of the Criminal Code of 1961.

(ii) Unlawful use of weapons as defined in Section 24-1 of the Criminal Code of 1961.

(iii) Mob action as defined in Section 25-1 of the Criminal Code of 1961.

(iv) Aggravated discharge of a firearm as defined in Section 24-1.2 and 24-1.2-5.

(v) Gambling as defined in Section 28-1 of the Criminal Code of 1961.

(vi) Possession, manufacture or delivery of a controlled substance as defined in Section 401 of the Illinois Controlled Substances Act.

(vii) Assault or battery or any related offense as defined in Article 12 of the Criminal Code of 1961.

(viii) Criminal sexual abuse or related offenses as defined in Sections 12-15 and 12-16 of the Criminal Code of 1961.

(ix) Public indecency as defined in Section 11-9 of the Criminal Code of 1961.

(x) Prostitution as defined in Section 11-14 of the Criminal Code of 1961.

(xi) Criminal damage to property as defined in Section 21-1 of the Criminal Code of 1961.

(xii) Possession, cultivation, manufacture or delivery of cannabis as defined in the Cannabis Control Act.

(xiii) Illegal consumption or possession of alcohol as defined in the Liquor Control Act of 1934.

(xiv) Violation of any municipal ordinance or State of Illinois statute controlling or regulating the sale or use of alcoholic beverages.

(g) "Permitted" means to knowingly suffer, allow, consent to, acquiesce or expressly assent or agree to the doing of an act.

(h) "Property" means any real property and fixtures thereof leased for residential purposes or any part or portion thereof whether under an oral or written agreement.

Section 15. Scope of authority of municipality and county. The authority given under this Act shall be exercised by a municipality with respect to property within its corporate limits, and by a county with respect to property within unincorporated areas of the county.

Section 20. Procedure for the addressing potential nuisance property.

(a) After independent review of any police reports and determination by the chief law enforcement officer that the activity described therein as occurring upon the property meets the definition of nuisance activity and that the owner permitted the property to become a potential nuisance property, the chief law enforcement officer may require that the owner thereof or his or her or its property manager or other designee meet with the chief law enforcement officer to discuss the nuisance activity and steps the owner can take to mitigate or abate the activity in accordance with the following procedure:

(1) The chief law enforcement officer shall notify the owner and any local property manager, agent or employee of the owner known to the chief law enforcement officer in writing that the property is a potential nuisance property. Such notice shall be provided by either personal delivery or by certified mail or by other reputable courier service that provides written confirmation of delivery, addressed to the owner and any local property manager, agent or employee of the owner, known to the chief law enforcement officer that is responsible for the property. The chief law enforcement officer shall also send notice by first class mail or other reputable courier service that provides written confirmation of delivery to the tenant at the address of the property and also to such other person and such other address as may be shown on the tax rolls of the county in which the property is located. The notice shall contain the following information:

(i) The street address or a legal description sufficient for identification of the potential nuisance property.

(ii) A statement that the chief law enforcement officer has information that the property constitutes a potential nuisance property as defined by this Act, with a concise description of the nuisance activity that may exist, or that has occurred that the chief law enforcement officer believes classifies the property as a potential nuisance property.

(iii) Demand that the owner or his or her or its property manager or other designee respond and meet with the chief law enforcement officer within 20 days of personal delivery or receipt of the notice sent by reputable courier service or by certified mail to discuss the nuisance activity. Refusal of receipt of the notice by the owner shall be deemed receipt of the notice for purposes of this Section.

(2) At the meeting between the chief law enforcement officer and the owner or his or her or its property manager or other designee, the chief law enforcement officer may request that the owner or his or her or its property manager or other designee implement a reasonable abatement plan designed to alleviate and prevent future occurrences of the nuisance activity upon the property. The mitigation or abatement plan may include, but is not limited to, a review of the property's access and security, lighting, access to common areas, graffiti removal, the posting of "No Trespass" signs and municipal assistance with eviction. The mitigation or abatement plan shall be reasonable under the circumstances in its objective, cost and scope, and shall be implemented within 60 days of the meeting with the chief law enforcement officer or such longer period if not practically feasible to do so within 60 days.

If the nuisance activity complained of has or is being conducted by a tenant residing in or on the property, the chief law enforcement officer may request that the owner evict the tenant. If eviction is requested, the owner shall proceed with such an action in good faith. The municipality or county shall assist in the eviction action by reasonably cooperating with the owner, including, but not limited to, providing law enforcement officers or other municipal or county employee as witnesses regarding the nuisance activity if relevant.

(b) If, after complying with the procedures of paragraph (2) of subsection (a) of this Section: (i) between 90 and 365 days after the meeting, the chief law enforcement officer receives a report documenting the occurrence of a subsequent instance of nuisance activity upon the property, or

(i) between 90 and 365 days after the meeting, the chief law enforcement officer receives a report documenting the occurrence of a subsequent instance of nuisance activity upon the property, or

(ii) the owner, within 60 days of the meeting or such other reasonable amount of time under the circumstances, fails to cause the implementation of a reasonable mitigation or abatement plan as requested by the chief law enforcement officer, or

(iii) the owner fails to respond and meet with the chief law enforcement officer within the 20 day period without good cause, then the municipality or county may seek to have the property declared a nuisance property in a civil action in a court of proper jurisdiction.

(c) When an owner or his or her or its property manager or other designee responds and meets with the chief law enforcement officer as required above, no statements made in connection with the furnishing of that response or in a meeting shall constitute or be used as an admission that any nuisance activity has or is occurring. This subsection (c) does not require the exclusion of any other evidence which is otherwise admissible and offered for any other purpose than an admission by the owner or his or her or its property manager or other designee.

Section 25. Commencement of action; burden of proof; determination of nuisance property; defenses:

(a) A municipality or county, in a civil action in a court of proper jurisdiction, may seek a declaration that the property is a nuisance property under this Act. The municipality or county shall have the initial burden of showing by a preponderance of the evidence that:

(i) the property is one upon which 3 or more instances of nuisance activity as set forth in the notice by the chief law enforcement officer pursuant to clause (a)(1) of Section 20 were permitted by the owner to have occurred during any 120 day period, as a result of any 3 separate factual events that have been independently investigated by any law enforcement agency that have resulted in an arrest, issuance of a warrant for an arrest, issuance of a ticket or citation or the filing of a police report,

(ii) the procedures of Section 20 were followed by the chief law enforcement officer, and

(iii) either (a) the owner or his or her or its property manager or other designee failed to respond and meet with the chief law enforcement officer within 20 days of delivery or receipt of notice of a meeting under Section 20 without good cause, or (b) failed, within a reasonable time period under the circumstances, to implement a reasonable mitigation or abatement plan requested by the chief law enforcement officer, or (c) the owner Permitted a subsequent instance of any nuisance activity between 90 and 365 days after meeting with the chief law enforcement officer under Section 20.

(b) Upon the court determining that the elements of subsection (a) of this Section have been met, then the court may, after the consideration of any defenses set forth below and all other facts and circumstances deemed relevant by the court, declare the property to be a nuisance property.

(c) It is a defense to an action seeking the declaration of the property as a nuisance property that the owner of the property at the time in question could not, in the exercise of reasonable care or diligence, determine that nuisance activity was occurring upon the property, or could not, in spite of the exercise of reasonable care and diligence, prevent a third party from engaging in the conduct constituting the nuisance activity complained of by the municipality or county in the civil action. It shall also be a defense for an owner, if prior to the owner being served process of the civil action, the owner or his or her or its property manager or other designee, notified a law enforcement agency of suspected illegal activity and has started the eviction process against any tenant or occupant responsible for the nuisance activity complained of by the municipality or county in its civil action. It shall also be a defense if an owner has made a good faith effort to implement the reasonable mitigation or abatement plan requested by the chief law enforcement officer, pursuant to clause (a)(2) of Section 20 but the nuisance activity has not been mitigated or abated. It shall also be a defense if an owner, in trying to mitigate or abate the nuisance activity prosecuted an eviction action against the tenant but the eviction was denied by a court.

Section 30. Penalties.

(a) If a court determines that the property is a nuisance property under Section 25, the following abatement or penalties may be imposed by the court upon the owner:

(1) For a first offense, a civil fine not to exceed $1000 or an injunction requiring the abatement of the nuisance activity that resulted in the property being declared a nuisance property by the court.

(2) For a subsequent offense, a civil fine not to exceed $5000 or an injunction requiring abatement of the nuisance activity that resulted in the property being declared a nuisance property by the court or an injunction prohibiting the occupancy of the property for a period of up to 6 months, or in the case of a multi-unit property, any unit thereof in question for a period of up to 6 months.

(3) Notwithstanding clauses (a)(1) and (2) of this Section, and whether or not it is a first or subsequent offense, if the court finds that an owner failed to respond and meet with the chief law enforcement officer within the time prescribed above without good cause, or if the court finds that an owner willfully failed to implement a reasonable mitigation or abatement plan requested by the chief law enforcement officer, then the court may impose a civil fine not to exceed $10,000 or an injunction requiring abatement of the nuisance activity that resulted in the property being declared a nuisance property by the court or an injunction prohibiting the occupancy of the property for a period of up to 6 months, or in the case of a multi-unit property, any unit thereof in question for a period of up to 6 months.

(b) If the court issues an injunction requiring the abatement of nuisance activity by a date certain set forth in the order for injunctive relief, the court, in its discretion, may impose a further fine not to exceed $100 per day for each day the nuisance activity persists after the date certain.

(c) In imposing any penalty, the court shall consider the following factors, and shall cite those found applicable:

(1) The action or lack of action taken by the owner to mitigate or abate the nuisance activity upon the property.

(2) Whether the nuisance activity upon the property was repeated or continuous.

(3) The magnitude or gravity of the nuisance activity.

(4) The cooperation of the owner with the chief law enforcement officer.

(5) The cost to the municipality or county for investigating and correcting or attempting to correct nuisance activity.

(6) Whether or not the nuisance activity could have been prevented by the owner exercising reasonable care under the circumstances.

Section 35. Licensing. Nothing in this Act shall be construed as authorizing non-home rule municipalities to license owners of residential rental property.

Section 99. Effective date. This Act takes effect upon becoming law.