Colorado § 16-13-308 - Temporary restraining order - preliminary injunction - when to issue.

§ 16-13-308. Temporary restraining order - preliminary injunction - when to issue.

(1) (a) If probable cause for the existence of a class 1 public nuisance is shown to the court by means of a complaint supported by an affidavit, the court shall issue a temporary restraining order to abate and prevent the continuance or recurrence of the nuisance or to secure property subject to forfeiture pursuant to this part 3. Such temporary restraining order shall:

(I) Direct the sheriff or a peace officer to seize and, where applicable, close the public nuisance and keep the same effectually closed against its use for any purpose until further order of the court;

(II) Direct the seizure or holding, if previously seized, of all personal property subject to the provisions of this part 3; and

(III) Restrain and enjoin persons from selling, transferring, encumbering, damaging, destroying, or using as security for a bond any property subject to this part 3.

(b) The temporary restraining order may make such provisions as the court finds reasonable for the maintenance, utilities, insurance, and security with respect to real property subject to a public nuisance temporary restraining order, including imposing those responsibilities on the owner or defendant, if said owner or defendant is allowed reasonable access to the property consistent with those limited purposes.

(c) The court may order that all fixtures and contents of a public nuisance be stored on the premises of such public nuisance while an action under this part 3 is pending.

(d) The court may require that documents evidencing title or registration or that keys to property subject to this part 3 be deposited with a sheriff or peace officer, to be kept in the constructive custody of the court, while an action under this part 3 is pending.

(e) The court may require the sheriff or peace officer executing the order to post a copy of the order on property subject to the order.

(f) Any person with an ownership interest adversely affected by a temporary restraining order issued pursuant to this subsection (1) may file a motion to vacate the temporary restraining order. Such motion shall be filed within fourteen days of the time said person is served with or otherwise has notice of the temporary restraining order. The motion shall be set for hearing within fourteen days after its filing. At said hearing, the court shall determine whether the various provisions of the temporary restraining order should remain in effect pending final determination of the action. No part of the temporary restraining order shall be vacated unless the proponent of the motion demonstrates that there is no probable cause to believe that a public nuisance exists or that the public nuisance acts underlying the action occurred, or that the proponent has a reasonable likelihood of prevailing on the merits of the case with respect to the temporary seizure or closure of the property. No issue regarding the forfeiture of the property shall be raised at the hearing on the motion, except the court may consider an innocent owner defense pursuant to section 16-13-303 (5.2) by a proponent who has not been charged in a parallel criminal action arising from the same activity giving rise to the forfeiture proceedings. When the innocent owner defense is raised as grounds for vacating the order, the issues at the hearing shall be limited to modifying the order to provide for the use of the property during the pendency of the action by an innocent owner, but only if such use is consistent with preserving it for forfeiture as to any other interest. Such a modifying order may include, without limitation, reasonable provisions for the continued occupancy of a residence, or the operation of a business and the sale or disposition of business inventory. However, no such modifying order shall include the release of currency. The determination of the facts by the court at the hearing is independent of and shall not be considered in the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrences. Any motion to vacate a temporary restraining order shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing. Until vacated, the temporary restraining order shall remain in full force and effect.

(2) In an action to abate a class 2 public nuisance, the court may, as a part of a preliminary injunction, direct the sheriff to seize and close such public nuisance and to keep the same effectually closed against its use for any purpose, until further order of the court. While the preliminary injunction remains in effect, the building or place seized and closed, and all personal property seized thereunder, shall be subject to the orders of the court.

(3) Temporary restraining orders and preliminary injunctions for public nuisances other than class 1 public nuisances may be issued as provided by the Colorado rules of civil procedure. No bond or security shall be required of the district attorney or the people of the state in any action to abate a public nuisance.

Source: L. 72: R&RE, p. 262, § 1. C.R.S. 1963: § 39-13-308. L. 81: (1) amended, p. 956, § 4, effective July 1. L. 83: (1) amended, p. 684, § 3, effective July 1. L. 87: (1) and (3) R&RE, p. 635, § 6, effective July 1. L. 95: (1)(f) amended, p. 1097, § 15, effective May 31. L. 2002: (1)(f) amended, p. 920, § 4, effective July 1. L. 2003: (1)(f) amended, p. 891, § 3, effective July 1. L. 2012: (1)(f) amended, (SB 12-175), ch. 208, p. 856, § 91, effective July 1.

Cross references: For preliminary injunctions, see C.R.C.P. 65(a).

ANNOTATION

Annotator's note. Since § 16-13-308 is similar to repealed laws antecedent to CSA, C 1, § 3, relevant cases construing those provisions have been included in the annotations to this section.

The injunctive features of this section are broad with no designation of the parties who shall be made defendants. It may, therefore, be assumed that it was intended that the owner of the premises, as well as the keeper of the place operating as a nuisance, might be made parties. Gregg v. People, 65 Colo. 390, 176 P. 483 (1918).

Restraining order under this section analogous to order involving execution of a writ of attachment and levy upon a debtor's property; thus sheriff had the duty of care of a bailee and the jury should have been so instructed. Kessman v. City and County of Denver, 709 P.2d 975 (Colo. App. 1985).

Temporary restraining order may be issued to abate a nuisance and to secure property subject to forfeiture only upon a showing of probable cause to believe that such property is a public nuisance; People must establish probable cause to believe that there is a substantial connection between property to be forfeited and nuisance activity. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Error in preliminary injunction immaterial. In an action brought under this part 3, whether or not error was committed in the granting of a temporary injunction was held to be of no consequence where a final decree of abatement was properly entered. Mongone v. People, 84 Colo. 516, 271 P. 617 (1928).

Property seized pursuant to this section is forfeited at the time of seizure, not upon entry of a final order. United States v. Wilkinson, 686 P.2d 790 (Colo. 1984).

A sheriff or officer who takes custody of the property of another pursuant to a temporary restraining order may be a constructive bailee and may be sued for negligence for property lost or injured during bailment. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Order under this section does not amount to an order authorizing warrantless entry and search of premises. People v. Taube, 864 P.2d 123 (Colo. 1993).

Court's finding of probable cause to believe that a house constituted a public nuisance was not equivalent to a finding that probable cause existed to enter and search the contents of the house. People v. Taube, 864 P.2d 123 (Colo. 1993).

Applied in Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).