SB 1725 — marijuana smoke; public; private nuisance

Fifty-seventhSenate LegislatureEngrossed Judiciarymarijuana andsmoke; Elections Second Regular Session S.B.

1725public; PROPOSED SENATE AMENDMENTS TO S.B.

private nuisance State of Arizona Senate Fifty-seventh Legislature Second Regular Session SENATE BILL 1725 (ReferenceAN toACT printedAMENDING bill)TITLE Amendment12, instructionCHAPTER key:7, ARTICLE 12, ARIZONA REVISED STATUTES, BY ADDING SECTION 12-991.01;

[GREENAMENDING UNDERLININGSECTION IN13-2917, BRACKETS]ARIZONA indicatesREVISED textSTATUTES; added to statute or previously enacted session law.

[GreenRELATING underliningTO inPUBLIC brackets]AND indicatesPRIVATE textNUISANCES. added to new session law or text restoring existing law.

[GREEN(TEXT STRIKEOUTOF INBILL BRACKETS]BEGINS indicatesON newNEXT textPAGE) removed- fromi statute- orS.B. previously enacted session law.

[Green1725 strikeoutBe init brackets]enacted indicatesby textthe removedLegislature fromof existingthe statute,State previouslyof enactedArizona: session law or new session law.

<<GreenSection carets>>1. indicate a section added to the bill.

<<GreenTitle strikeout12, inchapter carets>>7, indicatesarticle a12, sectionArizona removedRevised fromStatutes, theis bill.amended by adding section 12-991.01, to read:

The12-991.01. bill as proposed to be amended is reprinted as follows:

<<SectionExcessive 1.marijuana odor;

Sectioninterference; 12-991, Arizona Revised Statutes, is amended to read:

12-991.nuisance;

Nuisance;failure to comply;

applicability;violation;

residentialclassification; property used for crime;

actiondefinition toA. abate and prevent;

notice;EXCESSIVE MARIJUANA SMOKE OR ODOR THAT CROSSES A PROPERTY BOUNDARY AND SUBSTANTIALLY AND UNREASONABLY INTERFERES WITH THE USE AND ENJOYMENT OF NEARBY PRIVATE PROPERTY CONSTITUTES A PRIVATE NUISANCE.

definitionsLAWFUL A.POSSESSION OR USE OF MARIJUANA DOES NOT PRECLUDE A FINDING OF NUISANCE UNDER THIS SECTION, EXCEPT THAT A COURT MAY CONSIDER AS A MITIGATING FACTOR POSSESSION OF A VALID REGISTRY IDENTIFICATION CARD AS DEFINED IN SECTION 36-2801.

Residential property that is regularly used in the commission of a crime is a nuisance, and the criminal activity causing the nuisance shall be enjoined, abated and prevented.

If there is reason to believe that a nuisance as described in subsection A ofPERSON thisIS sectionNOT exists,LIABLE theUNDER attorneyTHIS general,SECTION theUNLESS countyTHE attorney,PERSON theHAS cityRECEIVED attorney,NOTICE anOF associationTHE ofINTERFERENCE homeownersAND orFAILS propertyTO ownersABATE establishedIT byWITHIN aFIVE recordedDAYS. contract or other declaration, including a condominium association as defined in section 33-1202 and a planned community association as defined in section 33-1802, or a resident of a county or city who is affected by the nuisance may bring an action in superior court against the owner, the owner's managing agent or any other party responsible for the property to abate and prevent the criminal activity.

TheAN courtAFFECTED shallPROPERTY notOWNER assessOR aRESIDENT civilMAY penaltySEEK againstINJUNCTIVE anyRELIEF, personCOMPENSATORY unlessDAMAGES thatFOR personLOSS knewOF orUSE hadAND reasonENJOYMENT, toCOSTS knowAND ofREASONABLE theATTORNEY criminalFEES activity.AND OTHER EQUITABLE RELIEF THE COURT DEEMS APPROPRIATE.

AnTHIS injunctionSECTION thatDOES isNOT orderedPREEMPT pursuantA toLOCAL thisORDINANCE articleTHAT shallIS beMORE necessaryPROTECTIVE toOF protectPRIVATE thePROPERTY healthRIGHTS. and safety of the public or prevent further criminal activity.

IF A CITY, TOWN OR COUNTY HAS ADOPTED AN ORDINANCE REGULATING EXCESSIVE MARIJUANA SMOKE OR ODOR, AN AFFECTED PROPERTY OWNER OR RESIDENT SHALL FIRST FILE A COMPLAINT WITH THE LOCAL JURISDICTION BEFORE FILING AN ACTION UNDER THIS SECTION.

IF THE LOCAL JURISDICTION DECLINES TO ACT OR DOES NOT TAKE FINAL ACTION WITHIN THIRTY DAYS AFTER THE COMPLAINT IS FILED, THE AFFECTED PROPERTY OWNER OR RESIDENT MAY BRING AN ACTION IN JUSTICE COURT.

THIS SECTION DOES NOT PRECLUDE A HOMEOWNERS' ASSOCIATION OR CONDOMINIUM ASSOCIATION FROM TAKING ACTION AGAINST A PROPERTY OWNER.

AnA orderPERSON shallCOMMITS notFAILURE affectTO theCOMPLY owner'sWITH interestA inMARIJUANA theSMOKE propertyNUISANCE unlessABATEMENT allORDER ofIF theBOTH followingOF apply:THE FOLLOWING EXIST:

TheA ownerCOURT isOF aCOMPETENT defendantJURISDICTION inOR theA action.CITY, TOWN OR COUNTY ACTING UNDER LAWFUL AUTHORITY HAS ISSUED A WRITTEN ORDER DIRECTING THE PERSON TO ABATE EXCESSIVE MARIJUANA SMOKE OR ODOR THAT CONSTITUTES A NUISANCE PURSUANT TO THIS SECTION OR AN APPLICABLE LOCAL ORDINANCE.

TheTHE ownerPERSON knewKNOWINGLY ofVIOLATES theOR criminalREFUSES activity.TO COMPLY WITH THE ORDER.

Senate Amendments to S.B.

1725 3.

The owner failed to take reasonable, legally available actions to abate the nuisance.

IfEACH theDAY owner,A theVIOLATION owner'sCONTINUES managingAFTER agentTHE orORDER theIS partySERVED responsibleCONSTITUTES forA theSEPARATE propertyOFFENSE. knows or has reason to know of the criminal activity and fails to take reasonable, legally available actions to abate the nuisance, a governmental authority may abate the nuisance.

The court may assess the owner for the cost of abating the nuisance.

On recording with the county recorder in the county in which the property is located, the assessment is prior to all other liens, obligations or encumbrances except for prior recorded mortgages, restitution liens, child support liens and general tax liens.

A city, town or county may bring an action to enforce the assessment in the superior court in the county in which the property is located.

ForFAILURE purposesTO ofCOMPLY thisWITH section,A anMARIJUANA owner,SMOKE theNUISANCE owner'sABATEMENT managingORDER agentIS orA thePETTY partyOFFENSE. responsible for the property is deemed to know or have reason to know of the nuisance if the owner, the owner's managing agent or the party responsible for the property has received notice from a governmental authority of documented reports of criminal offenses occurring on the residential property.

AFOR lawTHE enforcementPURPOSES agency,OF aTHIS citySECTION, attorney,"EXCESSIVE aMARIJUANA countySMOKE attorney,OR theODOR" attorneyMEANS generalAIRBORNE orEMISSIONS anyRESULTING otherFROM personTHE whoBURNING, isHEATING atOR leastVAPORIZING twenty-oneOF yearsMARIJUANA ofOR ageMARIJUANA mayPRODUCTS serveTHAT theBOTH: notice provided for in subsection G of this section, either personally or by certified mail.

If- personal1 service- orS.B. service by certified mail cannot be completed or the address of the person to be notified is unknown, notice may be served by publishing the notice three times within ten consecutive days in a newspaper of general circulation in the county in which the property is located.

In1725 all1. cases a copy of the notice shall be posted on the premises where the nuisance exists.