Tennessee § 29-3-110 - Order of abatement.

§ 29-3-110. Order of abatement.

If, upon the trial, the existence of the nuisance is established under § 29-3-101(a)(2)(A), an order of abatement shall be entered as part of the judgment or decree of the court, which order shall direct the removal from the building or place where the nuisance exists or is maintained of all means, appliances, fixtures, appurtenances, materials, supplies and instrumentalities used for the purpose of conducting, maintaining or carrying on the unlawful business, occupation, game, practice or device constituting the nuisance; and shall direct the sale thereof, or such portion thereof as may be lawfully sold, upon such terms as the court may order, and the payment of the proceeds into court to be applied to costs or paid over to the owner, and the destruction of such portion thereof, if any, as cannot be lawfully sold within this state; and the judgment or decree shall perpetually enjoin the defendant from engaging in, conducting, continuing, or maintaining the nuisance, directly or indirectly, by the defendant or defendant's agents or representatives, and perpetually forbidding the owner of the building from permitting or suffering the nuisance to be done in the building. Upon any hearing or trial, the establishment of a criminal gang as a nuisance under § 29-3-101(a)(2)(B) need only be proven by clear and convincing evidence, notwithstanding any references under this chapter to the criminal code. Neither a criminal conviction nor a finding of juvenile delinquency is required in order to prove, by clear and convincing evidence, that particular conduct is gang related conduct to be abated as a nuisance under this chapter. Gang related conduct to be abated as a nuisance may be proven through the testimony of a fact witness, an expert witness, or a combined fact-expert witness pursuant to the rules of evidence. If, upon any hearing or trial, the existence of a gang related nuisance is established under § 29-3-101, an order of abatement shall be entered as part of the judgment or decree of the court. That order shall enjoin perpetually the defendant or defendants from engaging in, conducting, continuing, aiding or abetting the nuisance, directly or indirectly. In addition to the relief permitted in subdivision (b)(2), the court may designate a certain geographically defined area or areas in any temporary or permanent gang injunction, which are narrowly tailored in compliance with prevailing constitutional case law for one (1) or more of the following purposes: Preventing the gang from gathering in public in groups of two (2) or more members; and Preventing any gang member from entering any specific public park or parcel of property where the gang has been found to have carried out its operations. All gang injunctions shall also include an “opt out” provision permitting an individual to seek an order of dismissal from the injunction upon proper application to the court, with thirty (30) days' notice to the petitioner, truthfully stating that the individual renounces involvement with that particular gang, which is the subject of the gang injunction, and for the last two (2) years: Has not committed any crimes or engaged in any form of criminal conduct, not including any time spent incarcerated; Has not been in the company, or association, of any person found under this chapter to be a gang member, other than an immediate family member; and Has not obtained any new gang related tattoos. In the order of abatement, the court may also assess costs of public services required to abate or manage the nuisance, including, but not limited to, law enforcement costs, if any, caused by the public nuisance. The governmental entity shall submit evidence of such costs to the court. Any person who is not specifically named in a gang injunction issued pursuant to subsection (b) may be subject to the injunction by service upon the person of: A petition by the original petitioner to amend the injunction to specifically include the person; or A summons and a copy of the injunction. Service of the petition or summons shall include a date, time, and place of a hearing, where the original petitioner shall be required to show why the person should be subject to the injunction. A person who is added to the injunction under subdivision (d)(1) shall be subject to § 29-3-111 for any conduct occurring after the date the person is added to the injunction. A person who is added to the injunction under subdivision (d)(1) shall be afforded the same opt-out provisions under subdivision (b)(4). No later than April 1 of each year, the commissioner of safety, after consulting with the petitioners where gang injunctions permitted by this act are in effect, shall submit a detailed, written report to the judiciary committee of the senate and the judiciary committee of the house of representatives regarding the implementation of chapter 865 of the Public Acts of 2014 and containing relevant data for the previous calendar year that shall include, but not be limited to: The number of injunctions against criminal gangs in effect; The number of persons charged with violating a gang injunction under Section 29-3-111(a); The number of persons convicted for violating a gang injunction under Section 29-3-111(a); and All criminal charges filed during the previous calendar year against persons specifically named in a gang injunction. Acts 1913 (2nd Ex. Sess.), ch. 2, § 6; Shan., § 5164a11; Code 1932, § 9334; T.C.A. (orig. ed.), § 23-311; Acts 2009, ch. 571, § 2; 2013, ch. 463, § 1; 2014, ch. 865, §§ 4, 5, 8; 2019, ch. 345, § 146. Compiler's Notes. Acts 2014, ch. 865, § 1 provided that this act, which amended this section, shall be known and may be cited as the “Community Safety Act”. Amendments. The 2013 amendment added (c). The 2014 amendment rewrote (b) which read: “If, upon the trial, the existence of the nuisance is established under § 29-3-101(a)(2)(B) , an order of abatement shall be entered as part of the judgment or decree of the court, which order shall perpetually enjoin the defendant or defendants from engaging in, conducting or continuing the nuisance, directly or indirectly.” and added (d) and (e). The 2019 amendment substituted “judiciary” for “civil justice” preceding “committee of the house of representatives” in (e). Effective Dates. Acts 2013, ch. 463, § 2. May 20, 2013. Acts 2014, ch. 865, § 9. July 1, 2014. Acts 2019, ch. 345, § 148. May 10, 2019. Law Reviews. Criminal Law and Procedure — 1960 Tennessee Survey (Robert E. Kendrick), 13 Vand. L. Rev. 1059. Attorney General Opinions. Constitutionality of amendments by Senate Bill 1634 (Acts 2014, ch. 865) regarding abatement of gang-related conduct. OAG 14-35, 2014 Tenn. AG LEXIS 36 (3/21/14). Cited: State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975); King of Clubs v. Gibbons, 9 S.W.3d 796, 1999 Tenn. App. LEXIS 372 (Tenn. Ct. App. 1999).