Colorado § 16-13-302 - Public nuisances - policy.

§ 16-13-302. Public nuisances - policy.

(1) It is the policy of the general assembly that every public nuisance shall be restrained, prevented, abated, and perpetually enjoined. It is the duty of the district attorney in each judicial district of this state to bring and maintain an action, pursuant to the provisions of this part 3, to restrain, prevent, abate, and perpetually enjoin any such public nuisance and to seek the forfeiture of property as provided in this part 3. The general assembly intends that proceedings under this part 3 be remedial and equitable in nature. Nothing contained in this part 3 shall be construed as an amendment or repeal of any of the criminal laws of this state, but the provisions of this part 3, insofar as they relate to those laws, shall be considered a cumulative right of the people in the enforcement of such laws. The provisions of this part 3 shall not be construed to limit or preempt the powers of any court or political subdivision to abate or control nuisances.

(2) It is also the policy of the general assembly that asset forfeiture pursuant to this part 3 shall be carried out pursuant to the following:

(a) Generation of revenue shall not be the primary purpose of asset forfeiture.

(b) No prosecutor's or law enforcement officer's employment or level of salary shall depend upon the frequency of seizures or forfeitures which such person achieves.

(c) All seizures of real property pursuant to this part 3 shall be made pursuant to a temporary restraining order or injunction based upon a judicial finding of probable cause.

(d) Each seizing agency shall have policies and procedures for the expeditious release of seized property which is not subject to forfeiture pursuant to this part 3, when such release is appropriate.

(e) Each seizing agency retaining forfeited property for official law enforcement use shall ensure that the property is subject to controls consistent with controls which are applicable to property acquired through the normal appropriations process.

(f) Each seizing agency which receives forfeiture proceeds shall conform with reporting, audit, and disposition procedures enumerated in this article.

(g) Each seizing agency shall prohibit its employees from purchasing forfeited property.

Source: L. 72: R&RE, p. 259, § 1. C.R.S. 1963: § 39-13-302. L. 87: Entire section amended, p. 630, § 2, effective July 1. L. 92: Entire section amended, p. 446, § 1, effective July 1.

Cross references: For the authority of counties and municipalities to control public nuisances, see § 31-15-401.

ANNOTATION

Law reviews. For article, "Civil Remedies for Criminal Wrongs: The Colorado Public Nuisance Act", see 20 Colo. Law. 2061 (1991).

The purpose of the Colorado public nuisance statute is to restrain, prevent, abate, and perpetually enjoin every public nuisance. People v. Garner, 732 P.2d 1194 (Colo. 1987).

The general assembly has declared that forfeiture proceedings of public nuisances are remedial and equitable in nature and the trial court properly determined that intervenor acquired an equitable interest in the vehicle based upon his payment of $500. People v. One 1968 Chevrolet 2-Door, 895 P.2d 1177 (Colo. App. 1995).

Purpose is the suppression of the unlawful nuisance. Since the purpose of this part is not the infliction of punishment against the offender, that being left to the criminal law, but the suppression of the unlawful keeping, the claim that keeping a bawdy house is a criminal offense under the statute makes no difference and there can be no successful assault upon this part because it provides an action to enjoin the violation of a criminal statute. Gregg v. People, 65 Colo. 390, 176 P. 483 (1918) (decided under repealed laws antecedent to CSA, C 1, § 3).

The principle upon which forfeiture statutes are based is that the property itself is the offender and may therefore be subject to forfeiture even though the owners of the property might be innocent of any wrongdoing. People v. Garner, 732 P.2d 1194 (Colo. 1987).

Legislative intent was to divest owner of all legal title as of the date of seizure, since otherwise the owner could alter the ownership rights prior to a final order under § 16-13-309. United States v. Wilkinson, 686 P.2d 790 (Colo. 1984), aff'd, 628 F. Supp. 29 (D. Colo. 1985).

But only if there is a subsequent judgment of forfeiture. Eggleston v. Colo., 636 F. Supp. 1312 (D. Colo. 1986).

The principle of laches contravenes this section. People v. Perez, 192 Colo. 562, 561 P.2d 7 (1977).