Tennessee § 29-3-101 - Definitions — Maintenance and abatement of nuisance — Forfeiture of property — Payment of moneys from forfeiture into general funds.

§ 29-3-101. Definitions — Maintenance and abatement of nuisance — Forfeiture of property — Payment of moneys from forfeiture into general funds.

As used herein: “Lewdness” includes all matter of lewd sexual conduct or live exhibition, and includes, but is not limited to, possession, sale or exhibition of any: Obscene films or plate positives; Films designed to be projected upon a screen for exhibition; or Films or slides, either in negative or positive form, designed for projection on a screen for exhibition; “Nuisance” means that which is declared to be a nuisance by other statutes, and, in addition, means: Any place in or upon which lewdness, prostitution, promotion of prostitution, patronizing prostitution, unlawful sale of intoxicating liquors, unlawful sale of any regulated legend drug, narcotic, other controlled substance or controlled substance analogue, any sale or possession with intent to sell of drug paraphernalia, as defined by § 39-17-402, unlawful gambling, any sale, exhibition or possession of any material determined to be obscene or pornographic with intent to exhibit, sell, deliver or distribute matter or materials in violation of §§ 39-17-901—39-17-908, § 39-17-911, § 39-17-914, § 39-17-918, or §§ 39-17-1003—39-17-1005, quarreling, drunkenness, fighting, breaches of the peace are carried on or permitted, and personal property, contents, furniture, fixtures, equipment and stock used in or in connection with the conducting and maintaining any such place for any such purposes; A criminal gang, as defined by § 40-35-121(a), that regularly engages in gang related conduct. “Gang related conduct” occurs when one (1) or more criminal gang member or members, as defined by § 40-35-121(a), regularly engages in the following: Intimidating, harassing, threatening, stalking, provoking or assaulting any person; Possessing weapons prohibited under §§ 39-17-1302 and 39-17-1307, knowingly remaining in the presence of anyone who is in possession of such weapons, or knowingly remaining in the presence of such weapons; Unlawfully damaging, defacing or marking any public or private property of another or possessing tools for the purpose of unlawfully damaging, defacing or marking any public or private property of another; Selling, possessing, manufacturing or using any controlled substance, drug paraphernalia, as defined in § 39-17-402, or controlled substance analogue, as defined in § 39-17-454, knowingly remaining in the presence of anyone selling, possessing, manufacturing or using any controlled substance, controlled substance analogue or drug paraphernalia, knowingly remaining in the presence of any controlled substance, controlled substance analogue or drug paraphernalia, driving under the influence of any controlled substance or controlled substance analogue in violation of § 55-10-401, or being under the influence of any controlled substance or controlled substance analogue in public in violation of § 39-17-310; Using, consuming, possessing or purchasing alcoholic beverages unlawfully, including, but not limited to, public intoxication in violation of § 39-17-310 or driving under the influence of alcohol in violation of § 55-10-401; Criminal trespassing in violation of § 39-14-405; Taking any action to recruit gang members or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace or destroy the personal property of anyone as an incentive to join a gang; Taking any action to stop a gang member from leaving a gang or making any threats or promises to shoot, stab, strike, hit, assault, injure, disturb the peace or destroy the personal property of anyone as an incentive not to leave a gang; Engaging in a criminal gang offense as defined by § 40-35-121(a); Disorderly conduct in violation of § 39-17-305; or Contributing to or encouraging the delinquency or unruly behavior of a minor in violation of § 37-1-156; or Any place in or upon which a person knowingly takes, by defrauding, or conspiring or colluding with, the recipient of public assistance benefits funded in whole or in part by the federal government or state of Tennessee, any part of such benefits knowing the person is not authorized or entitled by law to receive the portion of benefits taken; “Person” means and includes any individual, corporation, association, partnership, trustee, lessee, agent or assignee; and “Place” means and includes any building, room enclosure or vehicle, or separate part or portion thereof or the ground itself and all the property on which the nuisance is located that is under the ownership, management or control of the violator. Any person who uses, occupies, establishes or conducts a nuisance, or aids or abets therein, and the owner, agent or lessee of any interest in any such nuisance, together with the persons employed in or in control of any such nuisance by any such owner, agent or lessee, is guilty of maintaining a nuisance and such nuisance shall be abated as provided hereinafter. All motor vehicles, furnishings, fixtures, equipment, moneys and stock, used in or in connection with the maintaining or conducting of a nuisance, are subject to seizure, immediately upon detection by any law enforcement officer and are subject to forfeiture to the state by order of a court having jurisdiction upon application by any of the officers or persons authorized by § 29-3-102, to bring action for the abatement of such nuisance; provided, that seizure for the possession of obscene matter shall be in accordance with §§ 39-17-901—39-17-908 and seizure for violations of §§ 39-17-1003—39-17-1005 shall be in accordance with §§ 39-17-1006 and 39-17-1007. Any property so forfeited shall be disposed of by public auction or as otherwise provided by law. All moneys from such forfeiture and all proceeds realized from the enforcement of this section shall be paid equally into the general funds of the state and the general funds of the political subdivision or other public agency, if any, whose officers made the seizure, except as otherwise provided by law. Upon a person's second or subsequent conviction for promoting prostitution or patronizing prostitution, any vehicle in which such offense was committed is subject to seizure and forfeiture in accordance with the procedure established in title 39, chapter 11, part 7; provided, however, that nothing contained within this subsection (e) shall be construed to authorize seizure of such vehicle at any time prior to such conviction. Subdivision (e)(1) applies only if the violations making the vehicle subject to seizure and forfeiture occur in Tennessee and at least one (1) of the previous violations occurs on or after July 1, 2002, and the second or subsequent offense after July 1, 2002, occurs within five (5) years of the most recent prior offense occurring after July 1, 2002. Acts 1913 (2nd Ex.Sess.), ch. 2, § 1; Shan., § 5164a1; Code 1932, § 9324; Acts 1943, ch. 118, § 1; C. Supp. 1950, § 9324; Acts 1973, ch. 277, §§ 1-4; T.C.A. (orig. ed.), § 23-301; Acts 1990, ch. 1092, § 8; 2002, ch. 847, §§ 1-3; 2006, ch. 763, §§ 1, 2; 2009, ch. 571, § 1; 2012, ch. 848, § 7; 2013, ch. 247, § 1; 2014, ch. 631, § 1. Compiler's Notes. This section was declared unconstitutional on grounds that it would permit seizures solely on officer's conclusion of obscenity and that “place” as defined could include a home. See Airway Theater, Inc. v. Canale, 366 F. Supp. 343 (W.D. Tenn. 1973), annotated below. See also § 1-3-110 relating to severability. Acts 2006, ch. 556, §§ 1 and 2 purported to amend this section by amending subdivisions (a)(2) and (4) effective July 1, 2006. Although the act was signed by the governor, the act did not go into effect because the secretary of state was informed that the act was defective. Amendments. The 2012 amendment, in the definition of “nuisance”, substituted “narcotic, other controlled substance or controlled substance analogue” for “narcotic or other controlled substance” in (A), and rewrote (B)(iv) which read: “Selling, possessing, manufacturing or using any controlled substance or drug paraphernalia as defined in § 39-17-402 , knowingly remaining in the presence of anyone selling, possessing, manufacturing or using any controlled substance or drug paraphernalia, knowingly remaining in the presence of any controlled substance or drug paraphernalia, driving under the influence of any controlled substance in violation of § 55-10-401 or being under the influence of any controlled substance in public in violation of § 39-17-310 ;”. The 2013 amendment, in (a), inserted “any sale or possession with intent to sell of drug paraphernalia, as defined by § 39-17-402 ,” in (A) of the definition of “nuisance”. The 2014 amendment added (a)(2)(C). Effective Dates. Acts 2012, ch. 848, § 99. May 15, 2012. Acts 2013, ch. 247, § 2. July 1, 2013. Acts 2014, ch. 631, § 2. July 1, 2014. Cross-References. Abatement of exercise of unlicensed privilege, §§ 67-4-202 , 67-4-216 . Circuit court jurisdiction, § 16-10-110 . Gambling devices, § 39-17-505 . Sexual exploitation of children, title 39, ch. 17, part 10. Unauthorized signal light on highway declared nuisance, § 54-5-602 . Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Constitutional Law, §§ 30, 58, 61; 16 Tenn. Juris., Intoxicating Liquors, §§ 19-27; 20 Tenn. Juris., Nuisances, §§ 1, 4, 10, 20. Law Reviews. Business Associations — 1961 Tennessee Survey (II) (Kenneth L. Roberts), 15 Vand. L. Rev. 840. The Rights of Nonsmokers in Tennessee, 54 Tenn L. Rev. 671 (1987). The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189. The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281. The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241. The Tennessee Court System — Criminal Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 319. The Tennessee Court System — Prosecution, 8 Mem. St. U.L. Rev. 477. Torts — Crematorium as a Nuisance — Anticipatory Injunction — Psychic and Aesthetic Injury, 34 Tenn. L. Rev. 329. Attorney General Opinions. Lotteries, reverse raffles and gaming laws, OAG 84-221 (7/18/84); OAG 84-272 (9/27/84). A proposed bill, which would provide for the forfeiture of motor vehicles used in the commission of a person's second or subsequent violation for promoting prostitution or patronizing prostitution, would not violate the excessive fines provisions of the United States or Tennessee Constitutions. OAG 02-055 (4/30/02). A proposed bill, which would provide for the forfeiture of motor vehicles used in the commission of a person's second or subsequent violation for promoting prostitution or patronizing prostitution, would not be facially unconstitutional under the excessive fines clauses of the United States or Tennessee Constitutions, although it could be held unconstitutional as applied in certain circumstances. OAG 02-055 (4/30/02). Comparative Legislation. Abatement of nuisances: Ala. Code § 6-5-120 et seq. Ark. Stat. Ann. §§ 14-268-105 , 16-90-409 . Ga. Code Ann. § 3-10-8 . Ky. Rev. Stat. Ann. § 381.770. Miss. Code Ann. §§ 95-3-1 — 95-3-29 . N.C. Gen. Stat. §§ 19-1 — 19-1.5, 19-2.1 — 19-20. Va. Code §§ 48-1 — 48-6. Cited: Henderson v. Grundy County Beer Committee, 176 Tenn. 397, 141 S.W.2d 901, 1939 Tenn. LEXIS 130 (1940); State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 1956 Tenn. LEXIS 399 (1956); Boles v. City of Chattanooga, 892 S.W.2d 416, 1994 Tenn. App. LEXIS 367 (Tenn. Ct. App. 1994); Cooper v. Parrish, 20 F. Supp. 2d 1204, 1998 U.S. Dist. LEXIS 14223 (W.D. Tenn. 1998); King of Clubs v. Gibbons, 9 S.W.3d 796, 1999 Tenn. App. LEXIS 372 (Tenn. Ct. App. 1999); Cooper v. Parrish, 203 F.3d 937, 2000 FED App. 47P, 2000 U.S. App. LEXIS 1718 (6th Cir. Tenn. 2000); Town of Nolensville v. King, 151 S.W.3d 427, 2004 Tenn. LEXIS 1109 (Tenn. 2004).