|Legal Opinion: |
Text of Document:
January 14, 2003
Re: nuisance abatement
You called me concerning a situation which has arisen in your City. It seems there are recurring problems at a residence involving underage drinking and other illegal activities. You inquired about a section in the city code concerning “houses of ill repute,” if my memory is correct. I could not locate the exact section you were speaking of in my office, but it does sound like a code provision which is outdated, and possibly unconstitutional. I notice that your City, according to the code copy maintained here, adopted an anti-noise ordinance which may be helpful. In any event, even if the noise level was such as this section of the code could be used, we generally advise cities that the best course of action in similar situations is a nuisance abatement case.
Unfortunately, there is no basis in Tennessee law upon which a nuisance ordinance can be passed an used as the basis for action by a city. The General Assembly has rather vested the power to abate nuisances in the district attorney. If the activity complained of can be classified as a nuisance it will be considered a misdemeanor punishable under state law. T.C.A. § 39-11-111.
There is another avenue through which you may take action for the city in a trial court. T.C.A. § 29-3-101, et. seq., provides jurisdiction in chancery, circuit and criminal courts to abate public nuisances upon petition by the state, through the attorney general and reporter, or any district attorney general, city or county attorney, or “upon the relation of ten (10) or more citizens and freeholders of the county wherein such nuisances may exist...” T.C.A. § 29-3-102. Nuisance is defined as:
...any place in or upon which lewdness, assignation, prostitution,
unlawful sale of intoxicating liquors, unlawful sale of any regulated
legend drug, narcotic or other controlled substance, unlawful
gambling, any sale, exhibition or possession of any material deter-
mined to be obscene or pornographic with intent to exhibit or
sell....quarreling, drunkenness, fighting or beaches of the peace
are carried on or permitted...
T.C.A. § 29-3-101(2).
Suit may be filed for injunctive relief to abate the nuisance if injury has occurred, or is imminent. State ex rel. Cunningham v. Feezell, 400 S.W.2d 716 (Tenn. 1966). The test in such cases is not the number of unlawful acts which have occurred on the property, but whether the evidence as a whole indicate recurrent acts which amount to a nuisance. State v. James, 145 S.W.2d 783 (Tenn. 1940). The petition may seek a temporary injunction, pending trial. T.C.A. § 29-3-105.
If a nuisance is found to exist at trial, an order of abatement will issue which will effectively evict the tenant or owner and permit the removal and sale of all furnishings, appliances, and anything else used by the defendant to perpetrate the nuisance, and which will further perpetually enjoin the defendant from engaging in such nuisance. T.C.A. § 29-3-110. If any person breaks into or enters a building closed under a temporary injunction or order issued under the statute, such person has committed a class C misdemeanor. T.C.A. § 29-3-111.
The City therefore has the option of filing a petition seeking to abate the activity through yourself as the city attorney, the appropriate official or group of homeowners. It may be advisable to first issue citations to document activities and later file suit.
I hope this information is helpful. Please let me know if you need any further information.
Melissa A. Ashburn