hb4695 sub

COMMITTEE SUBSTITUTE
FOR
H. B. 4695
(By Delegate Hunt)

(Originating in the House Committee on the Judiciary)

[March 2, 2000]

A BILL to amend chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-a, relating to the Real Estate used for Illegal Purposes Act; setting forth legislative purpose; prohibiting owners from permitting the use of rental property for certain illegal purposes; defining a right to evict for the use of real property for illegal purposes; providing a mechanism to give notice to owners concerning illegal activities on real property; forbidding discrimination; providing for reports, investigations and notices by law-enforcement agencies; establishing criteria for determining a violation under the article; providing that the existence of eviction proceedings are a defense for an owner; setting forth the necessary party to name in the event of multiple units; providing for the filing of criminal charges; requiring law-enforcement agencies to train, educate and assist landlords in avoiding violations under the article; providing for the defense of owners from certain suits; and providing for criminal penalties.

Be it enacted by the Legislature of West Virginia:

That chapter thirty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article six-a, to read as follows:
ARTICLE 6A. REAL ESTATE USED FOR ILLEGAL PURPOSES ACT.
§37-6A-1. Purpose.
The Legislature finds it to be in the best interest of the residents of this state and the general public to provide for the regulation of conduct it considers to be offensive; to prevent vice, disorder and immorality; and to promote public peace, health and safety.
§37-6A-2. Permitting the use of real property for illicit drug activity or prostitution.

(a) No owner of real property located in this state may knowingly allow real property to be used as a site for any illegal possession, manufacture or sale of controlled substances, as defined in chapter sixty-a of this code or prostitution as defined in article eight, chapter sixty-one of this code, after having received written notice from any law-enforcement agency in this state that a present occupant or tenant of that property has been illegally possessing, manufacturing or selling controlled substances or allowing the illegal possession, manufacture or sale of controlled substances or has been engaging in or allowing illegal prostitution on the real property.

(b) For the purposes of this article, a person is an owner of real property if he or she, alone or with others, has legal title to any residential dwelling or dwelling unit.
§37-6A-3. Eviction proceedings arising out of use of real property for illegal purposes.

(a) The owner of real property has the absolute right to terminate the tenancy or evict any tenant or occupant from real property which is the subject of the notice required in subsection (f) of section five of this article upon the receipt of the notice.

(b) The court may order the termination of a tenancy upon a showing by a preponderance of the evidence that the tenant or occupant of the real property has illegally possessed, manufactured or sold a controlled substance or allowed the illegal possession, manufacture or sale of a controlled substance, or has been engaging in illegal prostitution at the real property.

(1) The tenant's participation in the illegal activities; or

(2) The tenant's knowledge of the participation of a member of the tenant's household or a tenant's guest in the illegal activities.

(d) Any act done by a member of the tenant's household or a tenant's guest is presumed to be known by the tenant. This presumption may be rebutted by a preponderance of the evidence that the tenant could not reasonably have known that the act would occur or that the tenant took reasonable measures to prevent the act from occurring.

(e) The court shall consider all circumstances surrounding the tenant's eviction, including the seriousness of the illegal activity, the extent of participation by household members and the effect on household members not involved.
§37-6A-4. Discrimination forbidden.

Nothing in this article may be construed to encourage or authorize the discrimination of any person based upon the race, creed, religion, sex, age or national origin of the person. It is the intent of this article to hold persons accountable for acquiescing in or participating in the continued illegal use of their property, after having received notice as prescribed by this article.
§37-6A-5. Reports, investigations and notices by law-enforcement agencies.
(a) Any complaint of suspected illegal activities involving controlled substances or prostitution by tenants, or other persons on the real property, made by the lessor, other tenants or persons residing or working in the vicinity of the real property, or by officials or representatives of a governmental agency, are to be submitted to the law-enforcement agency responsible for receiving these types of complaints and each complaint is to be individually logged by the law-enforcement agency.

(b) Upon receipt of a complaint, the law-enforcement agency shall determine whether there is a need to investigate, including whether surveillance of the real property would be prudent and appropriate.

(c) The law-enforcement agency that received the complaint shall notify all other applicable and relevant agencies of government, including those who enforce applicable city or county provisions related to building, zoning and health, in order to afford those agencies the opportunity to inspect the property for violations and if appropriate issue citations.

(d) In the event a law-enforcement agency upon sufficient investigation concludes there is probable cause that illegal activity is taking place at the real property, that agency shall send a warning letter to the owner of the real property with a copy to the tenant whose real property is the subject of the investigation. The notice is to be sent by certified mail, return receipt requested, and it is to inform the owner of the investigation of the suspected illegal activity.

(e) In the event a search warrant is obtained to search the real property, the law-enforcement agency shall send a second notice to the owner of the real property, by certified mail, return receipt requested. This notice is to inform the owner that the warrant was served, that the investigation at the real property is continuing, and that legal proceedings may be commenced. The second notice must also inform the owner of his or her obligation to take remedial action. A copy of the letter is to be sent to the county prosecuting attorney's office and to the tenant of the real property.

(f) Upon receipt of a copy of the second notice, the prosecuting attorney's office may proceed to abate or enjoin any suspected illegal activity. If the prosecuting attorney decides to proceed in abatement or injunction, he or she shall provide notice advising that legal proceedings will be instituted against the owner and that the owner has an obligation to commence eviction proceedings against the offending tenant.
§37-6A-6. Criteria for establishing a violation.
A violation of the provisions of this article is based upon the totality of the circumstances present, including, but not limited to, whether the owner has received sufficient notice pursuant to the provisions of this article. Notice is deemed sufficient under the provisions of this article if a certification of the notice required under subsection (f), section five of this article is filed with the clerk of the county commission of the county where the real property is located thirty days prior to the institution of the criminal proceeding.
§37-6A-7. Eviction proceedings as a defense.
No person may be charged with a violation of any provision of this article if the person has instituted eviction proceedings within thirty days of receipt of notice as provided for under the provisions of subsection (f), section five of this article.
§37-6A-8. Multiple unit dwellings.
In the case of a multiple unit dwelling, the only person necessary to name in an eviction proceeding is the tenant or other person actually occupying the unit who is suspected of illegal activity.
§37-6A-9. Filing of criminal charges.
Charging an owner of real property with a violation under this article is in addition to, and not a substitute for, any criminal charges filed as a result of an investigation by a law- enforcement agency against occupants or tenants of an owner's real property.
§37-6A-10. Assistance by law enforcement.
Any law-enforcement agency that acts pursuant to the provisions of this article shall use reasonable efforts to disseminate information designed to educate and assist owners of real property in preventing and addressing violations of any provision of this article.
§37-6A-11. Defense of owners of real property.
It is an absolute defense against any claim for damages instituted against the owner of real property by a tenant, occupant, former tenant or former occupant arising out of eviction proceedings instituted against them to prevent prosecution under this article.
§37-6A-12. Penalty.
Any person violating the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined up to two hundred fifty dollars and any costs of prosecution.

This article is new; therefore, strike-throughs and underscoring have been omitted.