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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Courts and Civil Proceedings
Chapter : SPECIAL ACTIONS AND PROCEEDINGS IN WHICH THE STATE IS A PARTY
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12-801 General definitions
In this article, unless the context otherwise requires:
1. "Person" means individuals, corporations, associations, partnerships, trustees,
lessees, agents and assignees.
2. "Building" means and includes so much of any building or structure of any kind
as is or may be entered through the same outside entrance.
12-802 Abatement of certain nuisances
Every building or place used for the purpose of lewdness, assignation or
prostitution and every building or place wherein or upon which acts of lewdness,
assignation or prostitution are held or occur, is a nuisance which shall be enjoined,
abated and prevented as provided by this article whether it is a public or private
nuisance.
12-803 Parties and scope of action
When there is reason to believe that a nuisance as defined in section 12-802 is
kept, maintained or exists in any county or city and county, the county attorney of the
county in the name of the people of the state shall, or any citizen of the state resident
within the county or city and county in his own name may, maintain an action to abate and
prevent the nuisance and to enjoin perpetually the person or persons 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.
12-804 Temporary injunction; affidavit and verified complaint
A. When existence of a nuisance as defined in section 12-802 is shown in the action
to the satisfaction of the court or judge thereof either by verified complaint or
affidavit, the court or judge shall make a temporary restraining order to abate and
prevent continuance or recurrence of the nuisance.
B. The complaint in the action shall be verified unless filed by the county
attorney.
12-805 Precedence of action; reputation of place as evidence; dismissal; substitution of plaintiffs; costs
A. When the action described in section 12-803 is filed, it shall have precedence
over all actions except criminal proceedings, election contests and hearings on
injunctions.
B. In the action, evidence of the general reputation of the building or place shall
be admissible for the purpose of proving existence of the nuisance.
C. If the complaint is filed by a citizen, it shall not be dismissed by plaintiff
or for want of prosecution except upon a sworn statement made by plaintiff and his
attorney, if any, setting forth the reasons why the action should be dismissed. The
dismissal may be ordered by the court.
D. In case of failure to prosecute the action with reasonable diligence, or at the
request of plaintiff, the court, in its discretion, may substitute any citizen consenting
thereto for plaintiff.
E. If the action is brought by a citizen and the court finds there was no
reasonable ground or cause for the action, costs shall be taxed against the citizen.
12-806 Order of abatement; custody of building; fees for closing of premises and sale of movable property
A. If the existence of the nuisance is established in an action as provided in this
article, an order of abatement shall be entered as a part of the judgment in the action.
B. The order shall direct:
1. Removal from the building or place of all fixtures, musical instruments and
movable property used in conducting, maintaining, aiding or abetting the nuisance.
2. Sale of such fixtures, musical instruments and movable property in the manner
provided for sale of chattels under execution.
3. The effectual closing of the building or place to use for any purpose.
4. Keeping such building or place so closed for a period of one year unless
released as provided in section 12-808.
C. While the order remains in effect as to closing and the provisions of section
12-808 are not availed of or complied with, the building or place shall be in custody of
the court.
D. For removing and selling the movable property, the officer shall be entitled to
charge and receive the same fees as for levying upon and selling like property on
execution.
E. For closing the premises and keeping them closed, a reasonable sum shall be
allowed by the court.
12-807 Application of proceeds of sale; sale of building to make up deficiency
A. The proceeds of sale of the property shall be applied in the following order:
1. To the fees and costs of the removal and sale.
2. To the allowances and costs of closing and keeping the building or place closed.
3. To the payment of plaintiff's costs in the action.
4. The balance, if any, shall be paid to the owner of the property sold.
B. If the proceeds of the sale do not fully discharge all the costs, fees and
allowances, the building and place shall then also be sold under execution issued upon
order of the court or judge and the proceeds of the sale applied in like manner.
12-808 Release of property; bond and conditions; exception
A. If the owner of the building or place has not been guilty of contempt of court
in the proceedings, and appears and pays all costs, fees and allowances, which are a lien
on the building or place, and files a bond in the full value of the property as
ascertained by the court, with sureties to be approved by the court or judge, conditioned
that he will immediately abate any such nuisance that may exist at the building or place
and prevent the nuisance from being established or kept at the building or place within a
period of one year thereafter, the court or judge may, if satisfied of the owner's good
faith, order the premises closed under the order of abatement to be delivered to the
owner, and the order of abatement cancelled so far as it relates to the property.
B. The release of the property under this section shall not release it from any
judgment, lien, penalty or liability to which it is subject by law.
12-809 Contempt fine as lien on premises; execution
When an act or acts constituting a contempt have been committed upon a place or
building and the owner of an interest therein has been found guilty of such contempt and
a fine imposed, the fine shall be a lien upon the place or building to the extent of the
interest therein of the person fined. The lien shall be enforceable and collectible by
execution issued by order of the court.
12-810 Violation as contempt; classification
A violation or disobedience of either an injunction or order expressly provided for
by this article shall be punished as a class 2 misdemeanor.
12-811 Definitions
In this article, unless the context otherwise requires:
1. "Motion picture film" means any film or plate negative, film or plate positive,
film or tape designed to be projected on a screen for exhibition, or films, glass slides
or transparencies, either in negative or positive form, designed for exhibition by
projection on a screen.
2. "Nuisance" means any place for the sale or exhibition of obscene motion picture
films or pictorial publications.
3. "Obscene motion picture film or obscene pictorial publication" means any motion
picture, film, video reproduction or pictorial publication which would constitute an
obscene item as defined in section 13-3501.
4. "Person" means any individual, association, partnership, corporation, trustee,
lessee, agent or assignee.
5. "Pictorial publication" means any book, magazine or pamphlet containing one or
more drawings, pictures, photographs or illustrations.
6. "Place" means any building, enclosure or any separate part or portion thereof
whether permanent or not or the ground itself.
12-812 Nuisance
A. Any person who maintains, establishes or conducts a nuisance, or aids or abets
therein, and the agent or lessee of any interest in any such nuisance together with the
persons in control of any such nuisance by any such agent or lessee can be enjoined from
maintaining a nuisance pursuant to this article.
B. Upon receiving notice pursuant to section 12-814, such persons are deemed to
have knowledge of the nuisance and are liable for its maintenance.
12-813 Abatement of nuisance
If a nuisance exists, the attorney general, the county attorney of the county in
which such nuisance exists or the city attorney of the city in which such nuisance exists
may bring an action in the name of the state to abate such nuisance and to enjoin the
person maintaining the nuisance from further maintenance.
12-814 Procedure in injunction action
A. An action instituted pursuant to section 12-813 shall be brought in the superior
court of the county in which the property is located. At the commencement of the action
a verified complaint alleging the facts constituting the nuisance shall be filed in the
office of the clerk of the court.
B. After the filing of the complaint, application for a preliminary injunction may
be made to the court which shall grant a hearing within twenty days after the
filing. Where such application for a preliminary injunction is made, the court may, on
application of the complainant, issue an ex parte restraining order, restraining the
defendant from removing or in any manner interfering with any obscene motion picture film
or obscene pictorial publication or other item directly related to the conduct or
maintenance of the place where such nuisance is alleged to exist and which is alleged in
the complaint to constitute a nuisance until further order of the court. The restraining
order may be served by handing to and leaving a copy of such order with the manager or
person in charge of such place. Any violation of such restraining order is a contempt of
court.
C. A copy of the complaint, together with a notice of the time and place of the
hearing of the application for a preliminary injunction shall be served upon the
defendant at least fifteen days before such hearing.
D. Before or after the commencement of the hearing of an application for a
preliminary injunction, the court on application of the defendant, may order that the
trial of the action on the merits be advanced and consolidated with the hearing on the
application for a preliminary injunction. Evidence which would be admissible at trial
shall become a part of the record and need not be reintroduced at the trial.
E. If upon hearing the allegations of the petition it appears to the court that
there is sufficient evidence to establish that a nuisance as alleged in the complaint
exists and that the plaintiff is likely to prevail at the trial on the merits, the court
shall issue a preliminary injunction without additional bond restraining the defendant
from continuing the nuisance. Such order shall also continue in effect for such further
period of the restraining order if already issued, or, if not issued, it shall include an
order restraining for such period the removal or interference with any obscene motion
picture film or obscene pictorial publication or other item directly related to the
obscene motion picture film or obscene pictorial publication including, but not limited
to, promotional material for such film or publication and printing plates used to print
such publication.
12-815 Priority of action; evidence; costs
A. An action instituted pursuant to this article shall have precedence over all
other cases except criminal actions, election contests, injunctions, habeas corpus
proceedings, temporary restraining orders and juvenile proceedings.
B. If the existence of the nuisance is established upon the trial, a judgment shall
be entered which shall enjoin the defendant from further maintaining the nuisance at the
place complained of and the defendant from maintaining such nuisance elsewhere. Such
judgment shall also provide that the defendant reimburse the plaintiff for the
plaintiff's expenses in bringing the action, including attorney's fees and court costs.
12-816 Content of judgment and order
If the existence of a nuisance is admitted or established in an action pursuant to
this article, an order of abatement shall be entered as a part of the judgment in the
case. The order of abatement shall direct the removal from the place of the motion
picture or pictorial publication found to be obscene and items directly related to such
motion picture film or pictorial publication and shall direct the sheriff of the county
in which the action was brought to seize and destroy such film, publication and other
items directly related to such film or publication including, but not limited to,
promotional material for such film or publication and printing plates used to print the
publication.
12-817 Civil penalty; forfeiture; accounting
A. Obscene motion picture films and obscene pictorial publications pursuant to this
article are contraband and are not subject to any property rights.
B. Any and all monies received in payment for obtaining or viewing any obscene
motion picture films and obscene pictorial publications are subject to forfeiture to the
county in which the abatement action is brought as restitution for damages done to the
public welfare, public health and public morals. Such monies may be traced to and shall
be recoverable from those persons as set forth in section 12-812 who have knowledge of
the nuisance, from and after the issuance of a preliminary injunction against the conduct
of such persons pursuant to section 12-814.
C. Upon the issuance of a judgment pursuant to section 12-815, subsection B, the
defendants named in such judgment shall make an accounting of all monies received by them
in payment for obtaining or viewing obscene motion picture films or obscene pictorial
publications subject to such judgment.
12-818 Petition by commercial operators or qualified electors for action
If the attorney general, a county attorney or a city attorney receives a petition
alleging the existence of a nuisance subject to the provisions of this article and
determines that there are reasonable grounds to believe that such a nuisance exists, an
action to abate such nuisance shall be brought forthwith. Such petition may be signed by
only persons who operate commercial enterprises within a one-half mile radius of the
location of the alleged nuisance or who are qualified electors whose voting address is
within a one-half mile radius of the location of the alleged nuisance. Such petition
must be signed by at least one hundred of the persons eligible to sign or fifty per cent
of the persons eligible to sign, whichever is greater.
12-820.01 Absolute immunity
A. A public entity shall not be liable for acts and omissions of its employees
constituting either of the following:
1. The exercise of a judicial or legislative function.
2. The exercise of an administrative function involving the determination of
fundamental governmental policy.
B. The determination of a fundamental governmental policy involves the exercise of
discretion and shall include, but is not limited to:
1. A determination of whether to seek or whether to provide the resources necessary
for any of the following:
(a) The purchase of equipment.
(b) The construction or maintenance of facilities.
(c) The hiring of personnel.
(d) The provision of governmental services.
2. A determination of whether and how to spend existing resources, including those
allocated for equipment, facilities and personnel.
3. The licensing and regulation of any profession or occupation.
4. The establishment, implementation and enforcement of minimum safety standards
for light rail transit systems.
12-820.02 Qualified immunity
A. Unless a public employee acting within the scope of the public employee's
employment intended to cause injury or was grossly negligent, neither a public entity nor
a public employee is liable for:
1. The failure to make an arrest or the failure to retain an arrested person in
custody.
2. An injury caused by an escaping or escaped prisoner or a youth committed to the
department of juvenile corrections.
3. An injury resulting from the probation, community supervision or discharge of a
prisoner or a youth committed to the department of juvenile corrections, from the terms
and conditions of the prisoner's or youth's probation or community supervision or from
the revocation of the prisoner's or youth's probation, community supervision or
conditional release under the psychiatric security review board.
4. An injury caused by a prisoner to any other prisoner or an injury caused by a
youth committed to the department of juvenile corrections to any other committed youth.
5. The issuance of or failure to revoke or suspend any permit, license,
certificate, approval, order or similar authorization for which absolute immunity is not
provided pursuant to section 12-820.01.
6. The failure to discover violations of any provision of law when inspections are
done of property other than property owned by the public entity in question.
7. An injury to the driver of a motor vehicle that is attributable to the violation
by the driver of section 28-693, 28-1381 or 28-1382.
8. The failure to prevent the sale or transfer of a handgun to a person whose
receipt or possession of the handgun is unlawful under any federal law or any law of this
state.
9. Preventing the sale or transfer of a handgun to a person who may lawfully
receive or possess a handgun.
10. The failure to detain a juvenile taken into temporary custody or arrested for a
criminal offense or delinquent or incorrigible act in the appropriate detention facility,
jail or lockup described in section 8-305.
B. The qualified immunity provided in this section applies to a public entity or
public employee if the injury or damage was caused by a contractor's employee or a
contractor of a public entity acting within the scope of the contract. The qualified
immunity provided in this section does not apply to the contractor or the contractor's
employee.
12-820.03 Affirmative defense
Neither a public entity nor a public employee is liable for an injury arising out of
a plan or design for construction or maintenance of or improvement to highways, roads,
streets, bridges, or rights-of-way if the plan or design is prepared in conformance with
generally accepted engineering or design standards in effect at the time of the
preparation of the plan or design, provided, however, that reasonably adequate warning
shall be given as to any unreasonably dangerous hazards which would allow the public to
take suitable precautions.
12-820.04 Punitive and exemplary damages; immunity
Neither a public entity nor a public employee acting within the scope of his
employment is liable for punitive or exemplary damages.
12-820.05 Other immunities
A. Except as specifically provided in this article, this article shall not be
construed to affect, alter or otherwise modify any other rules of tort immunity regarding
public entities and public officers as developed at common law and as established under
the statutes and the constitution of this state.
B. A public entity is not liable for losses that arise out of and are directly
attributable to an act or omission determined by a court to be a criminal felony by a
public employee unless the public entity knew of the public employee's propensity for
that action. This subsection does not apply to acts or omissions arising out of the
operation or use of a motor vehicle.
12-820.08 Potable water systems; standard of care
With regard to actions for personal injury arising out of the use or consumption of
water, water shall be deemed reasonably safe and fit for consumption and use if it
complies with the more stringent of the primary maximum contaminant levels that are
established either pursuant to title 49, chapter 2, article 9, or to the safe drinking
water act (P.L. 93-523; 83 Stat. 1666; 42 United States Code section 201).
12-820.09 Transportation, distribution or use of remediated water; definitions
A. For a personal injury or property damage action that arises out of the
transportation, distribution or use of remediated water, remediated water is deemed
reasonably safe and fit for consumption and use and the provider or user is deemed to
have acted reasonably if any of the following applies:
1. The remediated water complies with applicable state or federal standards.
2. The remediation has been conducted pursuant to an approved remedial action plan
under the water quality assurance revolving fund program established pursuant to title
49, chapter 2, article 5.
3. The remediation has been conducted pursuant to an approved consent decree under
the comprehensive environmental response, compensation, and liability act of 1980, as
amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657).
B. For purposes of this section:
1. "Provider" means an owner or operator of a constructed water conveyance system
that conveys water for industrial, municipal, agricultural or irrigation purposes.
2. "User" means an entity that accepts remediated water and uses that water for
industrial, municipal, agricultural or irrigation purposes.
12-820 Definitions
In this article, unless the context otherwise requires:
1. "Employee" includes an officer, director, employee or servant, whether or not
compensated or part time, who is authorized to perform any act or service, except that
employee does not include an independent contractor. Employee includes noncompensated
members of advisory boards appointed as provided by law.
2. "Injury" means death, injury to a person, damage to or loss of property or any
other injury that a person may suffer that would be actionable if inflicted by a private
person.
3. "Maintenance" means the establishment or continuation in existence of
facilities, highways, roads, streets, bridges or rights-of-way by a public entity and
does not mean or refer to ordinary repair or upkeep.
4. "Prisoner" means a person incarcerated while awaiting sentence or while serving
a sentence imposed by a court of law.
5. "Public employee" means an employee of a public entity.
6. "Public entity" includes this state and any political subdivision of this state.
7. "State" means this state and any state agency, board, commission or department.
12-821.01 Authorization of claim against public entity or public employee
A. Persons who have claims against a public entity or a public employee shall file
claims with the person or persons authorized to accept service for the public entity or
public employee as set forth in the ARIZONA rules of civil procedure within one hundred
eighty days after the cause of action accrues. The claim shall contain facts sufficient
to permit the public entity or public employee to understand the basis upon which
liability is claimed. The claim shall also contain a specific amount for which the claim
can be settled and the facts supporting that amount. Any claim which is not filed within
one hundred eighty days after the cause of action accrues is barred and no action may be
maintained thereon.
B. For purposes of this section, a cause of action accrues when the damaged party
realizes he or she has been damaged and knows or reasonably should know the cause,
source, act, event, instrumentality or condition which caused or contributed to the
damage.
C. Notwithstanding subsection A, any claim which must be submitted to a binding or
nonbinding dispute resolution process or an administrative claims process or review
process pursuant to a statute, ordinance, resolution, administrative or governmental rule
or regulation, or contractual term shall not accrue for the purposes of this section
until all such procedures, processes or remedies have been exhausted. The time in which
to give notice of a potential claim and to sue on the claim shall run from the date on
which a final decision or notice of disposition is issued in an alternative dispute
resolution procedure, administrative claim or review process. This provision shall not
be construed to prevent the parties to any contract from agreeing to extend the time for
filing such notice of claim.
D. Notwithstanding subsection A, a minor or an insane or incompetent person may
file a claim within one hundred eighty days after the disability ceases.
E. A claim against a public entity or public employee filed pursuant to this
section is deemed denied sixty days after the filing of the claim unless the claimant is
advised of the denial in writing before the expiration of sixty days.
F. This section shall apply to all causes of action which accrue on or after the
effective date of this section.
12-821 General limitation; public employee
All actions against any public entity or public employee shall be brought within one
year after the cause of action accrues and not afterward.
12-822 Change of venue
A. Service of summons in an action against any public entity or public employee
involving acts that are alleged to have occurred within the scope of the public
employee's employment shall be made pursuant to ARIZONA rules of civil procedure.
B. In an action against this state upon written demand of the attorney general,
made at or before the time of answering, served upon the opposing party and filed with
the court where the action is pending, the place of trial of any such action shall be
changed to Maricopa county.
12-823 Judgment for plaintiff; amount; interest and costs
If judgment is rendered for the plaintiff, it shall be for the amount actually due
from the public entity to the plaintiff, with legal interest thereon from the time the
obligation accrued and with court costs.
12-826 Report of judgments to legislature by governor; payment
A. The governor shall report to the legislature at each session judgments rendered
against the state, and not theretofore reported.
B. The director of the department of administration shall draw his warrant for
payment of the judgment upon presentation to him of an authenticated copy of the judgment
together with the approval of the judgment by the attorney general.
C. The director of the department of administration shall not draw the warrant
until an appropriation therefor is made by the legislature. 12-861 Criminal contempt defined
A person who wilfully disobeys a lawful writ, process, order or judgment of a
superior court by doing an act or thing therein or thereby forbidden, if the act or thing
done also constitutes a criminal offense, shall be proceeded against for contempt as
provided in sections 12-862 and 12-863.
12-862 Order to show cause; service; return; attachment of person or sequestration of property
A. When it appears to the superior court by the return of a proper officer on
lawful process, or upon affidavit of some credible person, or by information filed by the
county attorney, that there is reasonable ground to believe that a person is guilty of
the disobedience described in section 12-861, the court may order the person so charged
to show cause at the time and place the court directs why he should not be punished for
such disobedience.
B. The order, with a copy of the affidavit or information, shall be served upon the
person charged within sufficient time to enable him to prepare and make return to the
order, and if by the return the alleged contempt is not purged, a trial shall be directed
at a time fixed by the court.
C. If the person allegedly in contempt fails or refuses to make return to the
order, a warrant of arrest may issue directing the sheriff or any constable of the county
where the person charged resides or may be found, to arrest him and bring him before the
court at a time and place directed by the court, and such person may be required to give
bail for his attendance at the trial and his submission to final judgment of the court.
D. If accused is a corporation, an attachment for sequestration of its property
may be issued upon refusal or failure to answer.
12-863 Trial; classification; appeal
A. The trial as provided in section 12-862 may be by the court, or, upon demand of
the person allegedly in contempt, shall be by a jury as upon a trial for a misdemeanor.
B. Any person found in contempt is guilty of a class 2 misdemeanor.
C. The fine shall be paid to the clerk of the court, or to the party injured by the
act constituting the contempt, or may be apportioned where more than one party is
damaged.
D. An appeal may be taken as in criminal cases and the appeal shall stay execution
of the sentence and the person found guilty of contempt, if sentenced to imprisonment,
shall be admitted to bail.
12-864.01 Proof of contempt of court
A. If a person is ordered to pay child support and there is proof that the person
has failed to comply with the order together with proof that the order was made and was
filed and served on that person or proof that the person was present in court at the time
the order was made, then the court may presume that the person is in contempt of court.
B. The respondent may affirmatively defend and prove that the respondent is unable
to comply with the court order.
C. A person found in contempt of court pursuant to this section has the burden to
prove by a preponderance of the evidence that the person is unable to purge the contempt
order as prescribed by the court.
12-864 Direct or constructive contempts; punishment
Contempts committed in the presence of the court or so near thereto as to obstruct
the administration of justice, and contempts committed by failure to obey a lawful writ,
process, order, judgment of the court, and all other contempts not specifically embraced
within this article may be punished in conformity to the practice and usage of the common
law.
12-865 One year limitation on contempt proceeding; contempt proceeding no bar to criminal prosecution
A. No proceeding for contempt shall be instituted against any person unless begun
within one year from the date of the act complained of.
B. The proceeding for contempt or a satisfied judgment thereon shall not bar a
criminal prosecution for the same act.
12-881 Conditions under which property escheats
If the owner of property, without devise thereof and having no heirs, is absent from
his domicile for five years successively and is not known to exist, the estate shall
escheat to and vest in the state.
12-882 Duty of department of revenue regarding escheats; complaint and parties
A. When the director of the department of revenue has reason to believe that
property or estate has escheated to the state, he shall file a complaint in behalf of the
state in the superior court of the county where such property or some part thereof is
situated, setting forth:
1. A description of the property or estate.
2. The name of the person last lawfully seized or possessed thereof.
3. The names of tenants or persons in actual possession, if any, and the names of
persons claiming the property or estate, if any are known to claim it.
4. The facts and circumstances in consequence of which such property or estate is
claimed to have escheated.
5. A prayer for a writ of possession for the property or estate in behalf of the
state.
B. The tenants or persons in actual possession of the property or estate, and the
persons claiming it, or any right, title or interest therein, shall be named parties
defendant in the complaint.
12-883 Summons; service and publication
Upon filing of the complaint described in section 12-882, a summons shall issue,
service thereof shall be made and the summons shall also be published in a newspaper in
the manner and for the time provided for the service of summons in a civil action by
publication, and the action shall proceed as other civil actions.
12-884 Judgment and costs
A. If upon the trial it appears that the state has good title to all or any part of
the property or estate described in the complaint, judgment shall be given that the state
is seized or possessed thereof. A judgment for the state shall contain a description of
the property and shall vest the title thereof in the state.
B. If it appears that the state has no title, judgment shall be rendered dismissing
the action, and the court may award costs to defendant.
12-885 Seizure and sale of escheated property; disposal of proceeds; exception
A. A writ shall be issued to the sheriff or a constable of the county where the
property is situated, commanding the sheriff or constable to seize the property vested
in the state.
B. Except for personal property transferred to the ARIZONA state library,
archives and public records under section 41-1353, the officer shall dispose of the
property at public auction in the manner provided by law for sale of property under
execution. The proceeds of the sale shall be paid to the department of revenue and
deposited, pursuant to sections 35-146 and 35-147, into a clearing account from which
payment of claims for the proceeds may be made. The proceeds shall remain in the
clearing account for twelve months and then shall be credited to the permanent state
school fund.
C. The director of the department of revenue shall keep accounts and records of
all such proceeds paid into the clearing account and of all such lands vested in the
state.
12-886 Claim by heir, devisee or owner of proceeds from sale of escheated property
If a person appears and claims any of the proceeds from the sale of escheated
property as an heir or devisee, or as the owner who was absent for five years, he may
file a claim to the proceeds with the department of revenue on a form prescribed by the
department. A person has seven years from the time of sale of the escheated property to
file a claim with the department of revenue for the proceeds.
12-887 Determination of claims; appeal
A. The department of revenue shall consider any claim filed under section 12-886
and may hold a hearing and receive evidence concerning it. If a hearing is held, the
department of revenue shall prepare a finding and a decision in writing on each claim
filed, stating the substance of any evidence heard by the department and the reasons for
its decision. The decision is a public record.
B. If the claim is allowed, the department shall make payment immediately.
C. Any person aggrieved by a decision of the department of revenue or on whose
claim the department has failed to act within ninety days after the filing of the claim
may commence an action in the superior court to establish the claim. The proceeding
shall be brought within ninety days after the decision of the department or within one
hundred eighty days from the filing of the claim if the department fails to act.
12-888 Concurrent authority of the department of revenue
A. The department of revenue shall have concurrent authority with the department of
law as prescribed by subsection C of section 41-193.
B. The department of revenue shall institute investigations for discovery of
property which may have escheated or would escheat to the state, and for such purpose,
through the department of law, may require any person before the superior court to answer
investigations, produce books and render accounts relating to the property. The director
of the department of revenue, through the department of law, may institute action in the
superior court of the county in which the property is located for recovery of escheats.
12-889 Escheated property; rules and regulations; salary
A. The department of revenue shall administer the provisions of this article.
B. The department of revenue may promulgate necessary rules and regulations to
carry out the provisions of this article.
12-890 Agreement to recover property
A. A written, signed agreement to pay for the recovery or for assistance in the
recovery of property under this article is unenforceable if the fee or payment agreed on
exceeds thirty per cent of the value of the recoverable property.
B. Nothing in this section shall be construed to prevent an owner from asserting,
at any time, that a written, signed agreement to recover property is based on excessive
or unjust consideration.
12-901 Definitions
In this article, unless the context otherwise requires:
1. "Administrative agency" or "agency" means every agency, board, commission,
department or officer authorized by law to exercise rule-making powers or to adjudicate
contested cases, whether created by constitutional provision or legislative enactment.
Except as provided in section 33-1905, administrative agency or agency does not include
an agency in the judicial or legislative departments of the state government, any
political subdivision or municipal corporation or any agency of a political subdivision
or municipal corporation.
2. "Administrative decision" or "decision" means any decision, order or
determination of an administrative agency that is rendered in a case, that affects the
legal rights, duties or privileges of persons and that terminates the proceeding before
the administrative agency. In all cases in which a statute or a rule of the
administrative agency requires or permits an application for a rehearing or other method
of administrative review, and an application for a rehearing or review is made, no
administrative decision of such agency is final as to the party applying for the
rehearing or review until the rehearing or review is denied or the decision on rehearing
or review is rendered. Administrative decision or decision does not include either:
(a) Rules, standards or statements of policy of general application issued by an
administrative agency to implement, interpret or make specific the legislation enforced
or administered by it unless the rule, standard or statement of policy is involved in a
proceeding before the agency and its applicability or validity is in issue in the
proceeding.
(b) Rules concerning the internal management of the agency and not affecting
private rights or interests.
12-902 Scope of article
A. This article applies to and governs:
1. Every action to review judicially a final decision of an administrative agency
except public welfare decisions pursuant to title 46, or if the act creating or
conferring power on an agency or a separate act provides for judicial review of the
agency decisions and prescribes a definite procedure for the review.
2. An action to review the decision at an administrative hearing held pursuant to
section 33-1905.
B. Unless review is sought of an administrative decision within the time and in the
manner provided in this article, the parties to the proceeding before the administrative
agency shall be barred from obtaining judicial review of the decision. If under the terms
of the law governing procedure before an agency an administrative decision becomes final
because of failure to file any document in the nature of an objection, protest, petition
for hearing or application for administrative review within the time allowed by the law,
the decision is not subject to judicial review under the provisions of this article
except for the purpose of questioning the jurisdiction of the administrative agency over
the person or subject matter.
12-903 Power of supreme court to make procedural rules
The supreme court may make rules of pleading, practice and procedure supplementary
to but not inconsistent with the provisions of this article, and to amend such rules, for
the purpose of making this article effective for the convenient administration of
justice, and simplifying procedure so far as it affects judicial review of administrative
decisions.
12-904 Commencement of action; transmission of record
A. An action to review a final administrative decision shall be commenced by filing
a complaint within thirty-five days from the date when a copy of the decision sought to
be reviewed is served upon the party affected. The method of service of the decision
shall be as provided by law governing procedure before the administrative agency, or by a
rule of the agency made pursuant to law, but if no method is provided a decision shall be
deemed to have been served when personally delivered or mailed by certified mail to the
party affected at the party's last known residence or place of business. Service is
complete on personal service or five days after the date that the final administrative
decision is mailed to the party's last known address.
B. Within ten days after filing a complaint pursuant to this article, the party
seeking judicial review shall file a notice of the action with the office of
administrative hearings or the agency that conducted the hearing, and the office of
administrative hearings or the agency that conducted the hearing shall transmit the
record to the superior court. The record shall consist of the following:
1. The original agency action from which review is sought.
2. Any motions, memoranda or other documents submitted by the parties to the
appeal.
3. Any exhibits admitted as evidence at the administrative hearing.
4. The decision by the administrative law judge and any revisions or modifications
to the decision.
5. A copy of the transcript of the administrative hearing, if the party seeking
judicial review desires a transcript to be included in the record and provides for
preparation of the transcript at the party's own expense. Any other party may have a
transcript included in the record by filing a notice with the office of administrative
hearings or the agency that conducted the hearing within ten days after receiving notice
of the complaint and providing for preparation of the transcript at the party's own
expense.
12-905 Jurisdiction and venue
A. Jurisdiction to review final administrative decisions is vested in the superior
court.
B. If the venue of the action to review a final administrative decision is
expressly prescribed in the statute under authority of which the decision was made, such
venue shall control, but if the venue is not prescribed, an action to review a final
administrative decision may be commenced in the superior court of any county in which any
of the following conditions obtains:
1. Any part of the hearing or proceeding culminating in the decision of the
administrative agency was held.
2. Any part of the subject matter involved is situated.
3. Any part of the transaction giving rise to the proceedings before the agency
occurred.
12-906 Service of process
In an action to review the decision of an administrative agency, a copy of the
summons and complaint shall be served as in civil actions and as provided by the rules of
civil procedure, upon the agency at its principal office and upon all other defendants.
12-907 Appearance of defendants
Within twenty days after service of the summons and complaint, the defendant agency
and all other defendants shall answer the complaint.
12-908 Parties
In an action to review a final decision of an administrative agency, the agency and
all persons, other than the plaintiff, who are parties of record in the proceedings shall
be made defendants.
12-909 Pleadings and record on review
A. The complaint shall contain a statement of the findings and decision or part
thereof sought to be reviewed, and shall clearly specify the grounds upon which review is
sought. It shall also state whether a transcript is to be designated as part of the
record pursuant to section 12-904, subsection B, paragraph 5.
B. Except as otherwise provided, the defendant shall file an
answer. Notwithstanding section 12-904, subsection B, by order of the court or by
stipulation of all parties to the action, the record may be shortened or supplemented.
C. If the cause is remanded to the administrative agency and a review thereafter is
sought of the administrative decision, the original and supplemental record, or so much
thereof as is determined by court order or stipulation of all the parties, shall
constitute the record on review.
12-910 Scope of review
A. An action to review a final administrative decision shall be heard and
determined with convenient speed. If requested by a party to an action within thirty
days after filing a complaint, the court shall hold an evidentiary hearing, including
testimony and argument, to the extent necessary to make the determination required by
subsection E of this section. The court may hear testimony from witnesses who testified
at the administrative hearing and witnesses who were not called to testify at the
administrative hearing.
B. Relevant and admissible exhibits and testimony that were not offered during the
administrative hearing shall be admitted, and objections that a party failed to make to
evidence offered at the administrative hearing shall be considered, unless either of the
following is true:
1. The exhibit, testimony or objection was withheld for purposes of delay,
harassment or other improper purpose.
2. Allowing admission of the exhibit or testimony or consideration of the objection
would cause substantial prejudice to another party.
C. For review of final administrative decisions of agencies that are exempt from
sections 41-1092.03 through 41-1092.11, pursuant to section 41-1092.02, the trial shall
be de novo if trial de novo is demanded in the complaint or answer of a defendant other
than the agency and if a hearing was not held by the agency or the proceedings before the
agency were not stenographically reported or mechanically recorded so that a transcript
might be made. On demand of any party, if a trial de novo is available under this
section, it may be with a jury, except that a trial of an administrative decision under
section 25-522 shall be to the court.
D. The record in the superior court shall consist of the record of the
administrative proceeding, and the record of any evidentiary hearing, or the record of
the trial de novo.
E. The court may affirm, reverse, modify or vacate and remand the agency action.
The court shall affirm the agency action unless after reviewing the administrative record
and supplementing evidence presented at the evidentiary hearing the court concludes that
the action is not supported by substantial evidence, is contrary to law, is arbitrary and
capricious or is an abuse of discretion.
12-911 Powers of trial court
A. The superior court may:
1. With or without bond, unless required by the statute under authority of which
the administrative decision was entered, and before or after answer, stay the decision in
whole or in part pending final disposition of the case, after notice to the agency and
for good cause shown, except that the court shall not stay an administrative decision
wherein unemployment compensation benefits have been allowed to a claimant pursuant to
title 23, chapter 4.
2. Make any order that it deems proper for the amendment, completion or filing of
the record of the proceedings of the administrative agency.
3. Allow substitution of parties by reason of marriage, death, bankruptcy,
assignment or other cause.
4. Dismiss parties or realign parties plaintiff and defendant.
5. Modify, affirm or reverse the decision in whole or in part.
6. Specify questions or matters requiring further hearing or proceedings and give
other proper instructions.
7. When a hearing has been held by the agency, remand for the purpose of taking
additional evidence when from the state of the record of the administrative agency or
otherwise it appears that such action is just.
8. In the case of affirmance or partial affirmance of an administrative decision
requiring payment of money, enter judgment for the amount justified by the record and for
costs, upon which execution may issue.
B. Technical errors in the proceedings before the administrative agency or its
failure to observe technical rules of evidence shall not constitute grounds for reversal
of the decision, unless it appears to the trial court that the error or failure affected
the rights of a party and resulted in injustice to him.
C. On motion of a party before rendition of judgment, the trial court shall make
findings of fact and state conclusions of law upon which its judgment is based.
12-912 Costs
Costs may be awarded defendant agency if a judgment adverse to the plaintiff is
rendered. Such costs may be awarded in an amount deemed reasonable by the trial court,
based upon the expense the defendant agency has incurred in preparing the record of the
proceedings before trial.
12-913 Appellate review
The final decision, order, judgment or decree of the superior court entered in an
action to review a decision of an administrative agency may be appealed to the supreme
court.
12-914 Rules of civil procedure
Where applicable, the rules of civil procedure in superior courts, including rules
relating to appeals to the supreme court, shall apply to all proceedings except as
otherwise provided in this article.
12-931 Proceeding in state court; stay, hearing and precedence of appeal
A. When a proceeding is begun in a court in this state for the purpose of enforcing
a statute of the state or an administrative order of a board, commission, or other agency
of the state, and in defense thereto the assertion is made that the statute or
administrative order is unconstitutional and invalid, the court in which the defensive
proceeding is begun may grant a stay of all other proceedings under the statute or order
by any state officer or officers pending determination of such defensive proceeding.
B. The defensive proceeding, and an appeal therefrom, shall be given precedence,
and expedited in every way, and shall be assigned for hearing at the earliest practicable
day.
12-932 Proceeding in federal court; jurisdiction of state court; stay, notice and precedence of appeal
A. When an action praying for a preliminary injunction is begun in a federal
district court to restrain an official or officials of this state from enforcing or
administering a statute or administrative order of this state, or to set aside or enjoin
such statute or administrative order, any defendant in the action, or the attorney
general of the state, may bring an action to enforce the statute or order in the superior
court of the state at any time before final hearing on the application for an injunction
in the action in the federal court, and jurisdiction is conferred upon the superior court
of this state, and on the supreme court on appeal, to entertain such action.
B. The superior court shall, when the action is brought, grant a stay of
proceedings by any state officer or officers under such statute or order, pending
determination of the action in the courts of the state and the superior court shall, upon
the bringing of such action therein, at once cause a notice thereof, together with a copy
of the stay order, to be filed in the federal district court in which the action was
originally begun.
C. The action in the superior court, and an appeal therefrom, shall be given
precedence, expedited in every way, and shall be assigned for hearing at the earliest
practicable day.
12-941 Disposal of certain unclaimed property in custody of state, county, city or town officer; disposal of found property; disposal of items to charities and museums; sale of coins
A. All money or property used as evidence and remaining unclaimed in the hands of a
state, county, city or town officer, after final disposition of the cause in which so
used, or seized by a peace officer as being used unlawfully or for an unlawful purpose
and held unclaimed from the date of seizure, or coming into the hands of any state,
county, city or town officer as unclaimed or contraband, shall, if no other disposal is
prescribed by law, be delivered to the clerk of the superior court if held by a state or
county officer, or to the clerk of a city court if held by a city officer, or to the
justice of the peace if held by a town officer. Those items that have a useful value to a
law enforcement agency may be retained and utilized by that law enforcement agency.
B. Tangible personal property turned over to a state, county, city or town officer
as lost may be returned to the person who found and turned it over if all of the
following conditions apply:
1. The property is not contraband.
2. No other disposition of the property is specifically provided by law.
3. The property remains unclaimed for ninety days after reasonable efforts have
been made to locate and notify the owner.
4. The person who found and turned over the property is not a public officer or
employee of the federal, a state or local government who found the property in the course
of performing the duties of the office of employment.
C. If money is delivered to the proper officer by virtue of the provisions of
subsection A, it shall be deposited in the general fund of the state, county, city or
town, as the case may be.
D. Items valued at twenty-five dollars or less or items which have been rejected by
the clerk of the court may be given to an appropriate charity.
E. Items that have military or historical value may be given to an appropriate
museum.
F. Coins that have a value lesser or greater than face value may be sold to a
dealer or for fair market value, whichever is greater.
G. A record of all transactions will be maintained for at least twenty-four months.
12-942 Disposal of property unclaimed for ninety days
If any such money or property as described in section 12-941 is not claimed and
taken away within ninety days after the time it has been delivered to the officer
receiving custody of the property pursuant to section 12-941, the officer may at any time
thereafter proceed to dispose of it in the manner provided in this article.
12-943 Petition for disposal or sale of property
A. Except as provided in subsection B of this section, an officer having custody of
property under section 12-941 shall file a petition in the superior court in the county
where the property or some part thereof is located, setting forth a description of the
property, the name of the person last lawfully seized or possessed thereof, the names, if
any, of the persons claiming the property, the facts and circumstances in consequence of
which such property is unclaimed, and requesting that such property be sold as provided
by section 12-945.
B. Any property which in the opinion of the officer having custody of the property
has a value in its present condition of twenty-five dollars or less or property which has
been rejected by the clerk of the court may be given to an appropriate charity or may be
destroyed by the officer after the period prescribed in section 12-942 has lapsed. Items
that have a useful value to a law enforcement agency may be retained and utilized by that
agency. Tangible personal property turned over to a state, county, city or town officer
as lost and remaining unclaimed after the period prescribed in section 12-942 has lapsed
may be awarded to the finder upon application to the court provided the finder is not a
public officer or employee of the federal, a state or local government who found the
property in the course of performing the duties of the office or employment. The officer
shall deliver any property which is not destroyed or retained to the clerk of the
superior court to be sold at public auction. An officer who destroys property or
delivers property to the clerk pursuant to this subsection is not required to give notice
of the destruction or delivery of the property.
12-944 Notice of sale; service and publication
Before any property described in the petition as provided by section 12-943 is sold,
if the name and residence of the owner thereof is known, the petitioner shall give at
least sixty days notice of the petition to the owner, either personally or by mail, or by
leaving a notice at his residence or place of business. If the name and residence of the
owner are not known, the petitioner shall cause a notice containing a description of the
property to be published once in a newspaper published in the county. If no newspaper is
published in the county, the notice shall be published in a newspaper of general
circulation in the county. The publication of the notice shall be at least eighteen days
prior to the date of sale.
12-945 Sale of property
A. If after sixty days notice has been given, the owner or person entitled to the
property has not taken it away or answered the petition filed concerning the property,
the court shall order the property sold. The property shall be sold in the manner
provided by law for the sale of personal property under execution in a civil action. The
proceeds shall be paid to the general fund of the jurisdiction from which the unclaimed
property was received pursuant to section 12-941.
B. If upon a hearing of the petition and answer it appears that the state, county,
city or town has good title to such estate or property or any part thereof, the court
shall order the property sold in the manner provided in subsection A. The proceeds of
such sale shall be paid to the general fund of the jurisdiction from which the unclaimed
property was received pursuant to section 12-941.
12-946 Unclaimed money
A. In the case of unclaimed money, the person having custody of the money pursuant
to section 12-941 shall file a petition to have the money escheated. The petition shall
be in the form required by section 12-943, except for the request for sale. Notice of
the petition to escheat shall be given by the officer as provided in section 12-944. If
after proper notice has been given, the owner or person entitled to the money has not
taken it away or answered the petition filed concerning the money, the court shall order
the money paid into the general fund of the jurisdiction from which the unclaimed money
was received pursuant to section 12-941, except that if the money was lost and the finder
who turned the property over to the state, county, city or town is not a person who is a
public officer or employee of the federal, a state or a local government who found the
money in the course of the performance of the duties of the office or employment, the
court shall order all of the money paid as a reward to the finder who turned the money
over to a state, county, city or town officer .
B. If upon a hearing of the petition and answer it appears that the state, county,
city or town has good title to the unclaimed money, or any part thereof, judgment shall
be given that the state, county, city or town be seized or possessed thereof, and an
order made that the money be paid into the general fund of the jurisdiction from which
the unclaimed money was received pursuant to section 12-941.
12-961 Definitions
In this article, unless the context otherwise requires:
1. "Medical care and treatment" includes hospital, medical, psychological, surgical
and dental care, ambulance services, prostheses, medical appliances and supplies,
pharmaceutical supplies, occupational therapy and physical therapy.
2. "Third person" includes any governmental entity, corporation, company,
partnership, firm, association, society and a natural person. 12-962 Recovery of cost of medical care
A. If this state or any of its political subdivisions provides medical care and
treatment to a person who is injured or suffers from a disease under circumstances
creating tort liability upon a third person, the state or political subdivision, either
jointly or severally, may recover from the third person or the injured or diseased person
the reasonable value of the medical care and treatment. To the extent of this right,
this state or a political subdivision is subrogated to the injured or diseased person or
the person's guardian, personal representative, estate, dependents or survivors with
reference to any right or claim they might have against the third person. The head of
the department or agency furnishing the medical care or treatment may require the injured
or diseased person or the person's guardian, personal representative, estate, dependents
or survivors to assign the claim or cause of action against the third person to the
extent of the reasonable value of the medical care or treatment.
B. To enforce this right, the state or political subdivision may do the following:
1. Intervene or join in any action or proceeding brought by the injured or diseased
person or the person's guardian, personal representative, estate, dependents or survivors
against the third person who is liable for the injury or disease.
2. If an action or proceeding is not brought by the injured or diseased person, or
the person's guardian, personal representative, estate, dependents or survivors within
six months after the first day on which the medical care and treatment were furnished,
institute and prosecute legal proceedings against the third person who is liable for the
injury or disease for which the medical care and treatment were furnished. The action or
proceeding may be brought in state or federal court, either in the name of the state or
political subdivision, or in the name of the injured or diseased person or the person's
guardian, personal representative, estate, dependents or survivors, or in conjunction
with the injured or diseased person or the person's guardian, personal representative,
estate, dependents or survivors.
3. Recover the cost of care from the injured or diseased person or the person's
estate to the extent that such person has received money in settlement of the claim or
satisfaction of a judgment against the third party.
C. If an action or proceeding is brought in the name of the state or political
subdivision pursuant to subsection B, paragraph 2, the injured or diseased person or the
person's guardian, personal representative, estate, dependents or survivors shall not be
required to join the action or proceeding.
12-963 Compromise or waiver of claim
A. This state or any of its political subdivisions required by law to furnish
medical care and treatment may either:
1. Compromise, or settle and execute a release of, any claim which it has pursuant
to section 12-962.
2. Waive any claim it has pursuant to section 12-962 in whole or in part either for
its convenience or if it determines that collection would result in undue hardship upon
the person who suffered the injury or disease resulting in care and treatment.
B. Actions taken by this state or a political subdivision in connection with the
rights afforded under this article shall not operate to deny the injured or diseased
person any recovery for that portion of his damage not covered by this article. A
release executed by the state or any of its political subdivisions shall not release a
third party from any claims of the injured or diseased person except that the third party
shall be entitled to offset amounts paid to the state or political subdivision if such
expenses are included in the claim of the injured or diseased person.
12-964 Limitation
This article does not affect any other provision of law providing for recovery by
this state or any of its political subdivisions of the cost of care and treatment
described in section 12-962.
12-971 Definitions
In this article, unless the context otherwise requires:
1. "Extraordinary emergency services" means:
(a) The actual and related costs of additional police, fire fighting, public works,
paramedic and medical personnel utilized other than those who are normally on duty; and
(b) The actual costs of rented or leased equipment reasonably needed by the state
or political subdivision in responding to the emergency; and
(c) The actual or replacement costs of chemicals or disposable materials utilized
in responding to the emergency; and
(d) Costs incurred in the evacuation or reasonable temporary housing of persons
displaced from their property by the emergency.
2. "Hazardous material" means a substance which has been determined by the United
States department of transportation under title 49, code of federal regulations, to be
capable of posing an unreasonable risk to health, safety and property if transported in
commerce.
3. "Hazardous substance" means a material, and its mixtures or solutions, which has
been determined by the United States department of transportation under title 49, code of
federal regulations, to be capable of posing an unreasonable risk to health, safety and
property if transported in commerce.
4. "Hazardous waste" means any material that is subject to the hazardous waste
manifest of the department of health services or the United States environmental
protection agency.
12-972 Liability for emergency services
A. A person is liable to this state or a political subdivision of this state for
extraordinary emergency services which are reasonably required as a result of the
person's negligence or intentional misconduct in the use, storage or transportation of
hazardous materials, hazardous substances or hazardous waste.
B. The provisions of this article shall not be construed as to limit the liability
of any person under other provisions of law.
12-981 Definitions
In this article, unless the context otherwise requires:
1. "Governmental entity" means a county, municipality, school district, chartered
unit or subdivision, a governmental unit or other special district or similar entity or
any association, authority, board, commission, division, office, officer, task force or
other agency of this state.
2. "Hospital" means a health care facility, whether organized for profit or not,
which provides medical services, nursing services, health screening services, other
health-related services or supervisory care services.
3. "Nonprofit corporation" means a corporation that is exempt from taxation
pursuant to section 501(a) of the internal revenue code.
4. "Nonprofit organization" means an organization that is exempt from taxation
pursuant to section 501(c) of the internal revenue code.
5. "Volunteer" means a person who performs services for a nonprofit corporation or
nonprofit organization, hospital or governmental entity without compensation other than
reimbursement of actual expenses incurred. The term includes a volunteer who serves as a
director, officer, trustee or direct service volunteer.
12-982 Qualified immunity; insurance coverage
A. A volunteer is immune from civil liability in any action based on an act or
omission of a volunteer resulting in damage or injury if:
1. The volunteer acted in good faith and within the scope of the volunteer's
official functions and duties for a nonprofit corporation or nonprofit organization,
hospital or governmental entity.
2. The damage or injury was not caused by wilful, wanton or grossly negligent
misconduct by the volunteer.
B. Notwithstanding subsection A of this section, in any suit against a nonprofit
corporation or nonprofit organization, hospital or governmental entity for civil damages
based on the negligent act or omission of a volunteer, proof that the act or omission was
within the scope of the volunteer's official functions and duties is sufficient to
establish the vicarious liability, if any, of the organization.
C. A motor vehicle liability policy, as defined in section 28-4001, which provides
coverage to the operator of a motor vehicle is subject to the following provisions which
need not be contained in the policy. The liability of the insurance carrier with respect
to the insured and any other person using the vehicle with the express or implied
permission of the insured shall extend to provide excess coverage for a nonprofit
corporation or nonprofit organization for the acts of the operator in operating a motor
vehicle at all times when the operator is acting as a volunteer for that nonprofit
corporation or nonprofit organization.
12-990 Definitions
In this article, unless the context otherwise requires:
1. "Clandestine drug laboratory" means real property on which methamphetamine,
ecstasy or LSD is being manufactured or where a person is arrested for having on any real
property chemicals or equipment used in manufacturing methamphetamine, ecstasy or LSD.
In the case of a space rental mobile home or recreational vehicle park, clandestine drug
laboratory means the mobile home or recreational vehicle in which methamphetamine,
ecstasy or LSD is being manufactured or where a person is arrested for having in the
mobile home or recreational vehicle chemicals or equipment used in manufacturing
methamphetamine, ecstasy or LSD.
2. "Drug laboratory site remediation firm" means a firm that is licensed by the
registrar of contractors pursuant to chapter 10 of this title and that performs
remediation of residual contamination from the manufacture of methamphetamine, ecstasy or
LSD or the storage of chemicals or equipment used in manufacturing methamphetamine,
ecstasy or LSD.
3. "Ecstasy" has the same meaning prescribed in section 13-3401, paragraph 6 and
includes any of the precursor chemicals, regulated chemicals, other substances or
equipment used in the unlawful manufacture of the dangerous drug.
4. "Gross contamination" means the chemicals, equipment and other items that are
found in a clandestine drug laboratory and that are removed by a law enforcement agency
or other agency.
5. "LSD" has the same meaning prescribed in section 13-3401, paragraph 6 and
includes any of the precursor chemicals, regulated chemicals, other substances or
equipment used in the unlawful manufacture of the dangerous drug.
6. "Methamphetamine" has the same meaning prescribed in section 13-3401, paragraph
6 and includes any of the precursor chemicals, regulated chemicals, other substances or
equipment used in the unlawful manufacture of the dangerous drug.
7. "Real property" includes the area within a structure and the area that surrounds
a structure and that is within the land boundary or property lines of any of the
following:
(a) Property that is used primarily for residential purposes.
(b) Property that is governed by the ARIZONA residential landlord and tenant act as
prescribed by title 33, chapter 10.
(c) A mobile home as defined in section 33-1409.
(d) A recreational vehicle as defined in section 33-2102.
8. "Residually contaminated portion of the real property" means the structure or
unit where gross contamination was removed and the area of any adjacent structure, unit
or land where visible evidence of residual contamination is observed by a peace officer,
including any of the following:
(a) If gross contamination is removed from a house, mobile home or recreational
vehicle and the notice of removal is posted for the entire house, mobile home or
recreational vehicle, the entire house, mobile home or recreational vehicle, not just the
room or rooms in which the gross contamination is found.
(b) If gross contamination is removed from a detached shed or garage, the other
structures on the land are not affected and the notice of removal is posted only for the
detached shed or garage, the detached shed or garage unless visible evidence of residual
contamination is found in any of the other structures.
(c) If gross contamination is removed from a hotel, motel room or apartment unit,
the adjacent rooms are not affected and the notice of removal is posted only for the
contaminated room or apartment unit, the contaminated room or apartment unit unless
visible evidence of residual contamination is found in an adjacent room or apartment
unit.
12-991 Nuisance; applicability; residential property used for crime; action to abate and prevent; notice; definitions
A. Residential property that is regularly used in the commission of a crime is a
nuisance, and the criminal activity causing the nuisance shall be enjoined, abated and
prevented.
B. If there is reason to believe that a nuisance as described in subsection A of
this section exists, the attorney general, the county attorney, the city attorney or a
resident of a county or city who is affected by the nuisance may bring an action in
superior court against the owner, the owner's managing agent or any other party
responsible for the property to abate and prevent the criminal activity.
C. The court shall not assess a civil penalty against any person unless that person
knew or had reason to know of the criminal activity.
D. An injunction that is ordered pursuant to this article shall be necessary to
protect the health and safety of the public or prevent further criminal activity.
E. An order shall not affect the owner's interest in the property unless all of the
following apply:
1. The owner is a defendant in the action.
2. The owner knew of the criminal activity.
3. The owner failed to take reasonable, legally available actions to abate the
nuisance.
F. If the owner, the owner's managing agent or the party responsible for the
property knows or has reason to know of the criminal activity and fails to take
reasonable, legally available actions to abate the nuisance, a governmental authority may
abate the nuisance. The court may assess the owner for the cost of abating the nuisance.
On recording with the county recorder in the county in which the property is located, the
assessment is prior to all other liens, obligations or encumbrances except for prior
recorded mortgages, restitution liens, child support liens and general tax liens. A city,
town or county may bring an action to enforce the assessment in the superior court in the
county in which the property is located.
G. For purposes of this section, an owner, the owner's managing agent or the party
responsible for the property is deemed to know or have reason to know of the nuisance if
the owner, the owner's managing agent or the party responsible for the property has
received notice from a governmental authority of documented reports of criminal offenses
occurring on the residential property.
H. A law enforcement agency, a city attorney, a county attorney, the attorney
general or any other person who is at least twenty-one years of age may serve the notice
provided for in subsection G of this section, either personally or by certified mail. If
personal service or service by certified mail cannot be completed or the address of the
person to be notified is unknown, notice may be served by publishing the notice three
times within ten consecutive days in a newspaper of general circulation in the county in
which the property is located. In all cases a copy of the notice shall be posted on the
premises where the nuisance exists.
I. The notice shall be printed in at least twelve point type in substantially the
following form:
Notice
This is formal notice that the property at (insert address and unit
number if applicable) has had (insert number of) arrests or (insert number of)
documented reports of alleged criminal activity and is considered a nuisance
under section 12-991, ARIZONA Revised Statutes. A copy of the police report
numbers is attached. Police reports are available at (insert applicable police
agency).
Within five business days you must begin to take action that is legally
available to you to abate the nuisance from the property. If you fail to do
so, a restraining order to abate and prevent continuing or recurring criminal
activity will be pursued.
If you fail to cooperate to abate the nuisance, the appropriate
authorities will abate the nuisance and their costs will be a lien on the
property.
You may contact (local agency) in order to obtain information on how to
abate the nuisance.
J. For the purposes of this article:
1. "Owner" means a person or persons or a legal entity listed as the current title
holder as recorded in the official records of the county recorder in the county in which
the title is recorded.
2. "Owner's managing agent" means a person, corporation, partnership or limited
liability company that is authorized by the owner to operate and manage the property.
12-992 Residential property nuisances; temporary restraining order; notice; hearing; costs
A. If the existence of a nuisance on a residential property as described in section
12-991 is shown in the action to the satisfaction of the court either by verified
complaint or affidavit and the court finds that the owner, the owner's managing agent or
the party responsible for the property knew or had reason to know of the criminal
activity and failed to take reasonable, legally available actions to abate the nuisance,
the court shall enter a temporary restraining order to abate and prevent continuance or
recurrence of the criminal activity. The court may issue any other order that is
reasonably necessary to abate the criminal activity. The complaint shall be verified
unless it is filed by the attorney general or a county or city attorney.
B. Notice of the entry of a restraining order, copies of the restraining order and
the complaint, and notice of an opportunity for a hearing shall be served on the
defendant named in the action or on the statutory agent, if applicable. Service shall be
made pursuant to section 12-991.
C. Notice of the entry of a restraining order, copies of the restraining order and
the complaint, and a notice of the possibility of a hearing shall be served on any legal
occupant whom the plaintiff believes may claim an interest related to the property that
is the subject of the action. Notice may be served personally, by first class mail or by
posting on the occupant's door. The name of the legal occupant is not required to be
included on the notice.
D. The notice required by subsection C of this section of the possibility of a
hearing shall be printed in at least twelve point type in substantially the following
form:
Notice
A notice of a nuisance action has been delivered to your property owner
or managing agent (landlord). A copy of that notice is attached. If your
property owner or managing agent does not remedy the problem, the appropriate
government authority is authorized to abate, or end, the nuisance. This could
include a closing order that may require you to move out and remove all your
belongings. If you do not exercise your right to appear in the case, you may
lose your right to contest a closing order or present other concerns.
You may request the court, the name of which is on the attached notice,
to permit you to appear in the action.
E. Any action filed pursuant to this article shall not be stayed or dismissed due
to the failure to serve notice pursuant to subsection C of this section if a good faith
attempt is made to serve the notice.
F. A person who is directed to abate criminal activity pursuant to a temporary
restraining order issued pursuant to subsection A of this section may request a hearing
within ten days after receiving the notice. If a hearing is requested, the person shall
file a verified answer to the complaint with the request for a hearing and shall serve
notice of the request on the plaintiff. The temporary restraining order remains in effect
until the hearing is completed.
G. A hearing shall be scheduled within ten days after a verified answer and request
for a hearing is filed. The court may order any discovery that it considers to be
reasonably necessary and appropriate.
H. Any legal occupant who claims an interest related to the property that is the
subject of the action and who is so situated that the disposition of the action may as a
practical matter impair or impede the person's ability to protect that interest shall be
permitted to intervene in the action.
I. At the hearing, evidence of the general reputation of the property, building or
place is admissible for the purpose of proving the existence of the nuisance.
J. If at the hearing the court determines that reasonable grounds exist to believe
that a nuisance, as described in section 12-991, exists, the court shall issue a
permanent injunction abating the criminal activity and may do any of the following:
1. Issue any other order that is reasonably necessary to abate the criminal
activity, including orders to pay damages.
2. Award expenses incurred in abating the nuisance, including the costs of
investigation and enforcement of the restraining order, temporary injunction or permanent
injunction, the costs of compensation for a temporary receiver, the expenditures incurred
by a temporary receiver and reasonable attorney fees.
3. Order a civil penalty of not more than ten thousand dollars.
4. Order the appointment of a temporary receiver pursuant to section 12-996.
5. Issue a closing order pursuant to section 12-997.
K. If an answer to the complaint is not filed or a hearing is not requested, the
allegations are deemed to be admitted. The court shall enter judgment for the plaintiff
and shall issue a permanent injunction abating the criminal activity.
L. On entry of a second or subsequent injunction under this section within a three
year period, the court may order the property owner to pay three times the costs of the
abatement. For the purposes of this subsection, "costs" includes all of the costs
provided for in subsection J of this section.
M. The court shall terminate a restraining order and dismiss the complaint that was
issued solely based on criminal activity committed by a tenant if the defendant attempts
a forcible entry and detainer action against the tenant, unless the court finds that the
defendant prosecuted the forcible entry and detainer action in bad faith.
12-993 Precedence of action; resident actions; costs
A. An action that is filed pursuant to section 12-991 or 12-998 has precedence in
the trial courts over all actions except juvenile proceedings, criminal proceedings,
election contests and hearings on injunctions.
B. If the action is brought by a resident and the court finds that there was no
reasonable basis for bringing the action, the court may assess costs and reasonable
attorney fees against the resident. If the court determines that reasonable grounds do
exist and issues a final judgment in favor of the plaintiff, the court may assess costs
and reasonable attorney fees against the defendant.
12-994 Violation; classification
A. A person who intentionally or knowingly violates or disobeys a temporary
restraining order, a preliminary injunction, a permanent injunction or any other order
issued by the court pursuant to section 12-992 is guilty of a class 5 felony.
B. A person who intentionally or knowingly violates or disobeys a temporary
restraining order, a preliminary injunction, a permanent injunction or any other order
issued pursuant to section 12-998 or 12-999 is guilty of a class 6 felony.
C. This section does not prevent the court from issuing any other order to enforce
a temporary restraining order, a preliminary injunction, a permanent injunction or any
other order issued pursuant to this article.
12-995 Recording notice of action; subsequent acquisition of property
A. The plaintiff in an action brought pursuant to section 12-991 shall file a
notice of the abatement action in the office of the recorder of the county in which the
property that is the subject of the action is located. The notice shall state the
following:
1. The name of the parties.
2. A legal description of the property.
3. The superior court case number of the action.
B. The recorder shall file, record and index the notice under the names of the
parties to the action.
C. After the notice of abatement is recorded, both of the following apply:
1. A person who acquires the property that is the subject of the action is deemed
to have notice of the action.
2. Any sale or other transfer of the property that is the subject of the action
does not terminate the action. The action continues against subsequent owners, and the
owners are bound by the terms and conditions of any order issued by the court in the
abatement action.
D. The sale or other transfer to a third party of the property that is the subject
of the action does not render moot an action or proceeding that is brought pursuant to
this article.
12-996 Appointment of temporary receiver; term; duties; accounting
A. In any judicial proceeding brought under sections 12-991 and 12-992, if the
court determines that a nuisance exists and that the appointment of a temporary receiver
is necessary to abate the nuisance or to otherwise enforce any order issued by the court,
the court, on its own motion or on the motion of any party, may order the appointment of
a temporary receiver to manage or operate the premises for as long as the court deems
necessary to abate the nuisance. The court shall not appoint a temporary receiver for a
term of more than one year.
B. A temporary receiver who is appointed pursuant to subsection A of this section
either shall be a real estate licensee specializing in property management or an attorney
specializing in real estate law and shall swear or affirm to faithfully and fairly
discharge the receiver's duties. The court may require the temporary receiver to post a
bond in an amount fixed by the court.
C. The court shall determine the following:
1. The management duties of the receiver.
2. The amount of compensation to be paid to the receiver.
3. The method of payment.
4. The payment periods.
D. The temporary receiver shall continue to manage the property during the pendency
of any appeal or until relieved by the court. The court may remove a temporary receiver
on its own motion or on the motion of any party or the temporary receiver.
E. The temporary receiver may do any of the following:
1. Take control of the property.
2. Pay the mortgage on the property if there are sufficient monies derived from the
income of the property to do so.
3. Collect rents due on the property.
4. Make or have made any repairs that are necessary to bring the property into
compliance with any statute or ordinance.
5. Make payments that are necessary for the maintenance or restoration of utilities
to the property.
6. Purchase materials that are necessary to make repairs.
7. Renew, terminate or modify existing rental contracts and leases as provided by
law.
8. Enter into new rental contracts and leases.
9. Affirm, renew or terminate an existing insurance contract that covers the
property as provided by law.
10. Enter into a new contract that provides insurance coverage on the property.
11. Hire security or other personnel that are necessary for the safe and proper
operation and maintenance of the property.
12. Prosecute or defend suits that flow from the management of the property and
retain counsel.
13. Exercise all other authority that an owner of the property would have except the
authority to sell the property.
F. Before the receiver spends monies in excess of ten thousand dollars the court
and the party who is responsible for the payment of the temporary receiver's expenditures
shall approve the expenditure of those monies.
G. The costs of compensation to and expenditures by the temporary receiver shall be
paid in the following order of priority:
1. From the income that is derived from the property and that is available after
all taxes and mortgages are satisfied.
2. From monies that are collected pursuant to a court order issued pursuant to
section 12-992 for the compensation and expenditure costs of a temporary receiver.
3. By the party who requested the appointment of the temporary receiver.
H. On filing with the county recorder of the county in which the property is
located, a lien is created in favor of the party other than the defendant who pays the
temporary receiver's costs of compensation and expenditures. The lien is prior to all
other liens, obligations or encumbrances except for prior recorded mortgages, restitution
liens, child support liens and general tax liens.
I. On the completion of the receivership, the temporary receiver shall file with
the court a full accounting of all costs and expenses incurred and all income received
during the course of the receivership.
J. On finding that the appointment of a temporary receiver is no longer warranted,
the court on its own motion or the motion of any party may terminate the temporary
receivership.
12-997 Closing orders; enforcement; notice; moving assistance; violation; classification
A. In any judicial proceeding brought under sections 12-991 and 12-992, the court,
on its own motion or on the motion of any party, may issue an order to close all or part
of the premises involved if the court finds both of the following:
1. A nuisance exists.
2. The public health, safety or welfare immediately requires the closing.
B. A closing order shall both:
1. Direct the actions that are necessary to physically secure the premises or part
of the premises that is closed against use for any purpose.
2. Restrain the defendant and any other person from removing or in any manner
interfering with the furniture, fixtures and movable or personal property on or within
the premises that constitute the nuisance, except as otherwise provided in this section.
C. On order of the court, the local law enforcement agency shall enforce a closing
order. The law enforcement officer who serves a temporary closing order shall allow the
owner of any personal property twenty-four hours to remove the property.
D. On service of the closing order and unless otherwise ordered by the court, the
law enforcement officer who serves the order shall demand all persons who are present on
the premises to be closed to immediately vacate the premises or part of the premises
affected by the order. The agency closing the premises shall securely lock the premises
or part of the premises to be closed and shall hold all of the keys to the premises.
E. If the premises that constitute a nuisance include multiple residences or
dwellings, the court shall limit the closing order to that portion of the entire premises
that is necessary to abate the nuisance and to prevent the recurrence of the nuisance.
F. On service of a closing order, the law enforcement officer shall post both of
the following in a conspicuous place or on one or more of the principal doors at
entrances to the premises:
1. A copy of the order.
2. A written notice that states that the entire premises or part of the premises
has been closed by court order. The notice shall contain the heading "closed by court
order" in block lettering of sufficient size to be observed by any person who intends or
is likely to enter the premises. The notice shall also include the date of the order, the
court that issued the order and the name of the office or agency that posted the notice.
G. In addition to any other relief authorized by this article, the court may order
a defendant who knew or had reason to know of the nuisance and who failed to take
reasonable and legally available actions to abate the nuisance to provide refunds of any
deposits and reasonable moving assistance to any tenant who is ordered to vacate the
premises if the court determines that the tenant was not involved in any event
constituting the nuisance and did not knowingly aid in the commission of any such event.
The court shall determine the amount of moving expenses.
H. If the court orders refunds of any deposits and moving assistance pursuant to
subsection G of this section and the defendant fails to comply with the order, a lien for
the amount of court ordered moving expenses may be filed against the defendant with the
county recorder of the county in which the property is located. The lien is prior and
superior to all other liens, obligations or encumbrances except for liens under section
12-991 or 12-996, prior recorded mortgages, restitution liens, child support liens and
general tax liens.
I. If after a hearing the court on its own motion or the motion of any party finds
that any of the criteria for issuing the closing order no longer exists, the court shall
terminate the closing order.
J. A person who without lawful authority removes or mutilates an order or notice
posted pursuant to this section is guilty of a class 1 misdemeanor.
12-998 Nuisance; commercial buildings used for crime; action to abate and prevent
A. The use of a commercial building or place regularly used in the commission of a
crime is a nuisance and the criminal activity causing the nuisance shall be enjoined,
abated and prevented and damages may be recovered.
B. If there is reason to believe that a nuisance as described in subsection A
exists, the attorney general, the county attorney, the city attorney or a resident of a
county or city who is affected by the nuisance may bring an action in superior court to
abate and prevent the criminal activity, except that:
1. The court shall not assess a civil penalty against any person unless that person
knew of the unlawful acts.
2. The court shall not enter an order of closure.
3. The injunction shall be necessary to protect the health and safety of the public
or to prevent further criminal activity.
4. The order shall not affect the owner's interest in the building or place used
for the criminal activity.
12-999 Commercial property nuisances; temporary restraining order; notice; hearing
A. If the existence of a nuisance on commercial property as described in section
12-998 is shown in the action to the satisfaction of the court either by verified
complaint or affidavit, the court shall enter a temporary restraining order to abate and
prevent continuance or recurrence of the criminal activity. The complaint shall be
verified unless it is filed by the attorney general or a county or city attorney.
B. Notice of the entry of a temporary restraining order, copies of the temporary
restraining order and the complaint and notice of an opportunity for a hearing shall be
served on the defendant named in the action. Service shall be made pursuant to the
ARIZONA rules of civil procedure.
C. A person who is directed to abate criminal activity pursuant to a temporary
restraining order issued pursuant to subsection A of this section may request a hearing
within ten days after receiving the notice. A verified answer to the complaint shall be
filed with the request for a hearing. If a hearing is requested, notice of the request
shall be served on the plaintiff. The temporary restraining order remains in effect until
the hearing is completed.
D. If at the hearing the court determines that reasonable grounds exist to believe
that a nuisance, as described in section 12-998, subsection A, exists, the court shall
issue a permanent injunction abating the criminal activity and may issue any other order
that is reasonably necessary to abate the criminal activity, including damages. If the
court determines that reasonable grounds do not exist to believe that a nuisance exists,
the court shall dismiss the action and terminate the temporary restraining order.
E. A hearing on an action under this section shall be set within thirty days after
the request is filed or after a verified answer to the complaint is filed if a temporary
restraining order has not been issued. Before the hearing, the court may order any
discovery that the court considers to be reasonably necessary and appropriate.
F. If a hearing is not requested, the court shall issue a permanent injunction
abating the criminal activity.
12-1000 Clandestine drug laboratories; notice; cleanup; residual contamination; civil penalty; immunity; restitution; violation; classification
A. If a peace officer discovers a clandestine drug laboratory or arrests a person
for having on any real property chemicals or equipment used in manufacturing
methamphetamine, ecstasy or LSD or a derivative of methamphetamine, ecstasy or LSD, the
peace officer:
1. At the time of the discovery or arrest, shall deliver a copy of the notice of
removal pursuant to subsection B of this section to the owner of the real property if the
owner is on the site at the time of delivery, the on-site manager if the manager is on
the site at the time of delivery or the on-site drop box if available. In the case of a
tenant-owned unit in a space rental mobile home or recreational vehicle park, the officer
shall deliver a copy of the notice of removal to the occupant of the unit if the occupant
is on site at the time of delivery and to the on-site park landlord if the park landlord
is on site at the time of delivery.
2. Within two business days after the discovery or arrest, shall send the notice of
removal by certified mail to the owner of the real property and the owner's on-site
manager or, in the case of a space rental mobile home or recreational vehicle park, to
the owner of the mobile home or recreational vehicle, if applicable, and to the park
landlord. These persons are deemed to receive the notice of removal five days after the
notice is mailed. The notice shall be sent to the following:
(a) The owner's address on file with the county assessor. The county shall waive
any fee or charge for the owner's address information.
(b) The county health department.
(c) The appropriate local fire department.
(d) The state board of technical registration.
3. After a law enforcement or other agency removes the gross contamination on the
real property, shall order the removal of all persons from the residually contaminated
portion of the real property or dwelling unit, if applicable, or, in the case of a space
rental mobile home or recreational vehicle park, from the unit located on the real
property.
4. After the peace officer removes all persons pursuant to paragraph 3 of this
subsection, shall affix the notice of removal in a conspicuous place on the real property
or, in the case of a space rental mobile home or recreational vehicle park, on the unit
located on the real property. The notice of removal shall state that it is unlawful for
any person other than the owner, landlord or manager to enter the residually contaminated
portion of the property until the owner remediates the residually contaminated portion of
the property.
B. The notice of removal shall be in writing and shall contain all of the
following:
1. The word "warning" in large bold type at the top and bottom of the notice.
2. A statement that a clandestine drug laboratory was seized or a person was
arrested on the real property for having chemicals or equipment used in the manufacturing
of methamphetamine, ecstasy or LSD on the real property.
3. The date of the seizure or arrest.
4. The address or location of the real property, including the identification of
any dwelling unit, room number, apartment number or vehicle number.
5. The name of the law enforcement agency or other agency that seized the
clandestine drug laboratory or made the arrest and the agency's contact telephone number.
6. A statement that hazardous substances, toxic chemicals or other waste products
may still be present on the real property or, in the case of a space rental mobile home
or recreational vehicle park, in the unit located on the real property.
7. A statement that it is unlawful for any unauthorized person to enter the
residually contaminated portion of the real property or, in the case of a space rental
mobile home or recreational vehicle park, the unit located on the real property, until
the owner, landlord or manager establishes that the portion of the real property noticed
as residually contaminated has been remediated by a drug laboratory site remediation
firm.
8. A statement that it is a class 6 felony to violate this section.
9. A statement that it is a class 2 misdemeanor to disturb the notice of removal
posted on the real property.
10. A statement that the owner of the real property shall remediate the residually
contaminated portion of the property in compliance with subsection C of this section.
11. A statement that if an owner fails to provide any notice required by this
section, the owner is subject to a civil penalty and a buyer, tenant or customer may void
a purchase contract, rental agreement or other agreement.
C. The owner of the real property shall remediate the residually contaminated
portion of the real property within twelve months after the date of notice of removal by
retaining a registered drug laboratory site remediation firm pursuant to title 32,
chapter 1. If the owner of the real property fails to remediate the property under this
subsection, a county or city in this state may remediate the property using a registered
remediation firm contracted by any county or city in this state with the cost of
remediation passed on to the property owner in the form of a lien on the property title.
D. A drug laboratory site remediation firm that remediates the residually
contaminated portion of any real property pursuant to this section shall comply with the
requirements established and the best practices and standards for remediation of residual
contamination adopted by the state board of technical registration pursuant to title 32,
chapter 1. When remediation is complete, the drug laboratory site remediation firm shall
remove the posted notice and shall issue a document stating that the residually
contaminated portion of the real property has been remediated. Within twenty-four hours
after the remediation is complete, the drug laboratory site remediation firm shall
deliver the document or send the document by certified mail to each person and entity
listed in subsection A, paragraph 2 of this section and the law enforcement agency that
issued the notice under that subsection. After the document has been issued, both of the
following apply:
1. The owner, landlord or manager of the real property is not required to comply
with subsection F of this section.
2. Any person may use, enter, occupy, rent or sell the real property.
E. The county health department shall maintain and make available on request any
documents that are received pursuant to subsection D of this section.
F. The following notice requirements apply until the remediation is complete as
provided in subsection D of this section:
1. Within five days after a buyer signs a contract to purchase the real property,
the owner shall notify the buyer in writing that methamphetamine, ecstasy or LSD was
manufactured on the real property or that an arrest was made pursuant this section. The
buyer shall acknowledge receipt of the notice. A buyer may cancel the real estate
purchase contract within five days after receiving the notice. If the owner does not
comply with this paragraph, the buyer may cancel the purchase contract.
2. The landlord shall notify a prospective tenant for a dwelling unit that was the
subject of the notice in writing that methamphetamine, ecstasy or LSD was manufactured on
the real property or that an arrest was made pursuant to this section. The tenant shall
acknowledge receipt of the notice before taking possession of the real property or before
signing a rental agreement for the real property. The notice shall be attached to the
rental agreement. If the landlord does not comply with this paragraph, the tenant may
void the rental agreement.
3. Before a customer occupies a room that was the subject of the notice, the owner
or manager shall notify the customer in writing that methamphetamine, ecstasy or LSD was
manufactured in the room or that an arrest was made pursuant to this section. If the
owner or manager does not comply with this paragraph, the customer may void the
agreement.
4. The owner shall notify a buyer or prospective tenant in writing that
methamphetamine, ecstasy or LSD was manufactured in the mobile home or recreational
vehicle or that an arrest was made pursuant to this section. The buyer shall acknowledge
receipt of the notice before taking possession of the mobile home or recreational
vehicle. A buyer may cancel the purchase contract within five days after receiving the
notice. The tenant shall acknowledge receipt of the notice before taking possession of
the mobile home or recreational vehicle or before signing a rental agreement for the
mobile home or recreational vehicle. The notice shall be attached to the rental
agreement. If the owner does not comply with this paragraph, the tenant may void the
rental agreement.
5. If a mobile home or recreational vehicle in a space rental park contains a
clandestine drug laboratory, the landlord, on receipt of a notice pursuant to this
section, shall notify the lienholder of record and the owner of record of the unit to
remove it from the park within thirty days. If the unit is not removed within thirty
days, the landlord may remove or demolish the unit and dispose of it as junk and shall
notify the department of transportation of the demolition. A landlord that complies with
this subsection is not liable for such action.
G. If an owner fails to provide any notice required by this section, the owner is
subject to a civil penalty of one thousand dollars and is liable for any harm resulting
from the owner's failure to comply with the requirements of this section.
H. A state or local government and a state or local government's employees or
authorized representatives are not responsible parties as prescribed by section 49-283
and are not liable for costs or damages incurred as a result of action taken in
compliance with this section. This subsection does not preclude liability for costs or
damages that result from gross negligence or intentional misconduct by a state or local
government. For the purposes of this subsection, "gross negligence" means reckless,
wilful or wanton misconduct.
I. A person who operates a clandestine drug laboratory and who is not the owner of
the real property shall pay restitution to the owner of the real property for all costs
that the owner incurred to remediate the property.
J. A person who knowingly violates an order or notice of removal that is issued by
a peace officer under this section is guilty of a class 6 felony. A person who knowingly
disturbs a notice of removal posted on the real property is guilty of a class 2
misdemeanor. 12-1001 Joint legislative oversight committee on residual contamination of drug properties
A. The joint legislative oversight committee on residual contamination of drug
properties is established.
B. The committee consists of the following members:
1. Three members of the house of representatives who are appointed by the speaker
of the house of representatives, not more than two of whom shall be members of the same
political party.
2. Three members of the senate who are appointed by the president of the senate,
not more than two of whom shall be members of the same political party.
3. One industrial hygienist who is appointed by the governor.
4. One member of the board of technical registration who is appointed by the
governor or the director of the board of technical registration.
5. One person who represents the residential real estate industry and who is
appointed by the governor.
6. One public health official from a county with a population of less than four
hundred thousand persons and one public health official from a county with a population
of four hundred thousand persons or more who are appointed by the governor.
7. Two peace officers who are appointed by the ARIZONA peace officer standards and
training board.
8. One prosecutor from a county with a population of less than four hundred
thousand persons and one prosecutor from a county with a population of four hundred
thousand persons or more who are appointed by the ARIZONA prosecuting attorneys' advisory
council.
9. Two members of the public who are appointed by the governor.
10. The attorney general or the attorney general's designee.
C. The committee shall annually elect a chairperson from among its members.
D. The attorney general shall submit best practices and standards for the
remediation of residual contamination found on real property from the manufacture of
methamphetamine, ecstasy or LSD or the storage of chemicals or equipment used in
manufacturing methamphetamine, ecstasy or LSD. The committee shall review the best
practices and standards and forward them to the state board of technical registration.
The board shall adopt these best practices and standards by rule not later than July 31,
2003.
E. The committee shall study and make recommendations regarding the effectiveness
of the program established by section 12-1000 and shall submit a report of its findings
and recommendations to the governor, the president of the senate and the speaker of the
house of representatives on or before December 15 of each year. The committee shall
provide a copy of this report to the secretary of state and the director of the ARIZONA
state library, archives and public records.
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