(A) Drug nuisances prohibited. No person shall create, cause, continue, allow or maintain any drug nuisance, as defined herein, in the city.
(B) Definitions. For the purposes of this section, the following definitions apply:
(1) DRUG NUISANCE.
(a) The use of a property to commit an act constituting an offense under IC 35-48-4; or
(b) An attempt to commit or conspiracy to commit an act described in division (B)(1)(a).
(2) PROPERTY. A house, building, mobile home, or an apartment that is leased for residential or commercial purposes. The term includes an entire building or complex of buildings and mobile home communities, and all real property of any nature appurtenant to and used in connection with the house, building, mobile home, or apartment, including all individual rental units and common areas. The term does not include a hotel, motel, or other guest house, part of which is rented to a transient guest.
(3) TENANT. A person who leases or resides in a property. The term does not include a person who owns a mobile home, leases or rents a site in a mobile home community for residential use, and resides in a mobile home community; that a person is an “owner”.
(C) Actions to abate drug nuisance; persons authorized to initiate. An action to abate a drug nuisance under this section may be initiated by the Prosecuting Attorney of Montgomery County, the Crawfordsville City Attorney, or the owner of the affected property.
(D) Notice.
(1) A person initiating an action under this section to abate a drug nuisance existing on a property shall, at least ten days before filing the action in court, provide written notice that a drug nuisance exists on the property to:
(a) Each tenant of the property; and
(b) The owner of record;
(2) The notice required under this section must specify the following:
(a) The date and time the drug nuisance was first discovered; and
(b) The location on the property where the drug nuisance is allegedly occurring.
(3) The notice to each tenant and the owner of record of the property where the drug nuisance is allegedly occurring must be:
(a) Hand delivered; or
(b) Sent by certified mail, return receipt requested;
(4) A person initiating an action to abate a drug nuisance under this section shall:
(a) When notice is provided under this section, produce all nonprivileged or nonconfidential evidence in the person’s possession or control of the existence of the drug nuisance; and
(b) If requested by the owner, assist the owner in the production of nonprivileged or nonconfidential witness and physical evidence concerning the drug nuisance.
(E) Action to abate nuisance initiated or joined by owner of record; exempt from notice requirement. If the owner of record of a property that is the subject of an action under this section initiates or joins in the action under this section, the requirement under division (D) of this section to provide notice at least ten days before filing does not apply to the action.
(F) Application of trial rules to notice; posting requirement.
(1) Notice of a complaint initiating an action under this section must be made as provided in the Indiana Rules of Trial Procedure.
(2) Except in an action under this section in which the owner of record of the property that is the subject of the action initiates or joins the action as a party, the person who initiates an action under this section, not later than 48 hours after filing a complaint under this section, shall post a copy of the complaint in a conspicuous place on the property alleged by the complaint to be a drug nuisance.
(G) Service upon defendant.
(1) If the defendant has not been personally served with process despite the exercise of due diligence, the person initiating an action under this section, not more than 20 days after the filing of a complaint and the filing of an affidavit that personal service on the defendant cannot be had after due diligence, may cause a copy of the complaint to be mailed to the defendant’s last known address by certified mail, restricted delivery, return receipt to the clerk of court requested. Service is considered completed when the following are filed with the court:
(a) Proof of the mailing by certified mail to that last known address; and
(b) An affidavit that a copy of the complaint has been posted on the property alleged to be a drug nuisance.
(2) This division does not apply to transient guests of a hotel, motel, or other guest house. All tenants or residents of a property that is used in whole or in part as a business, home, residence, or dwelling who may be affected by an order issued under this section must be:
(a) Provided reasonable notice as ordered by the court having jurisdiction over the drug nuisance action; and
(b) Afforded an opportunity to be heard at all proceedings in the action.
(3) Except in an action under this section in which the owner of record of the property that is the subject of the action initiates or joins the action as a party, notice of lis pendens shall be filed concurrently with the initiation of an action under this section.
(H) Hearing; service upon owner of property.
(1) Except as otherwise provided in the Indiana Rules of Trial Procedure, upon the filing of a complaint initiating an action under this section, the court shall schedule a hearing not later than 20 days after the filing date.
(2) Service of process must be made upon the owner of the property that is alleged in the notice filed under division (D) of this section to be a drug nuisance at least five days before the hearing. If service cannot be completed in time to give the owner the minimum notice required by this subsection, the court may set a new hearing date.
(I) Equitable relief. The court may issue an injunction or order other equitable relief under this section regardless of whether an adequate remedy exists at law.
(J) Order to vacate. Notwithstanding any other provision of law, and in addition to or as a component of a remedy ordered under division (I) of this section, the court, after a hearing, may order a tenant that created a drug nuisance on the property leased by the tenant to vacate the property within 72 hours after the issuance of the order.
(K) Restitution; possession; removal of tenant’s personal property.
(1) The court, after a hearing under this chapter, may grant a judgment of restitution or the possession of the property found to constitute a drug nuisance to the owner if:
(a) The owner and tenant are parties to the action; and
(b) The tenant has failed to obey an order issued under division (I) or (J) of this section.
(2) If the court orders the owner to have possession of the property found to constitute a drug nuisance, the court shall require the sheriff to execute the order of possession not later than five days after the order is issued.
(3) If the owner is awarded possession of the property found to constitute a drug nuisance, the owner may seek an order from the court allowing removal of a tenant’s personal property under IC 32-31-4.
(L) Plan for correction. If the owner is a party to the action and knew of the existence of the nuisance prior to notice of a drug nuisance being given, the court may order the owner of the property found to constitute a drug nuisance to submit for court approval a plan for correction to ensure, to the extent reasonably possible, that the property will not again be used for a drug nuisance.
(M) Proof that defendant knew of drug nuisance not required. Except as provided in division (L) of this section, the court may order appropriate relief under this section without proof that a defendant knew of the existence of the drug nuisance.
(N) Evidence. In any action brought under this section:
(1) Evidence of the general reputation of the property alleged to constitute a drug nuisance is admissible to corroborate testimony based on personal knowledge or observation, or to corroborate evidence seized during the execution of a search and seizure warrant, but is not per se sufficient to establish the existence of a drug nuisance under this section; and
(2) Evidence that the drug nuisance had been discontinued at the time of the filing of the complaint or at the time of the hearing does not bar the imposition of appropriate relief by the court under this section.
(O) Penalties. In addition to any specific remedies provided by this section, all other penalties applicable to nuisances generally, including fines, court costs, attorney fees, and restitution shall apply and may be ordered by the court.
(Ord. 20-2006, passed 11-13-06)