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Statute # 22-3901
Chapter 22.--CRIMINAL PROCEDURE
Article 39.--ABATEMENT OF COMMON NUISANCES
Scope.
The following unlawful activities and the
use of real and personal property in maintaining
and carrying on such activities are hereby
declared to be common nuisances:
(a) Commercial gambling;
(b) dealing in gambling devices;
(c) possession of gambling devices;
(d) promoting obscenity;
(e) promoting prostitution;
(f) habitually promoting prostitution;
(g) violations of any law regulating
controlled substances;
(h) habitual violations of any law
regulating the sale or exchange of alcoholic
liquor or cereal malt beverages, by any person
not licensed pursuant to chapter 41 of the Kansas
Statutes Annotated; or
(i) habitual violations of any law
regulating the sale or exchange of cigarettes or
tobacco products, by any person not licensed
pursuant to article 33 of chapter 79 of the
Kansas Statutes Annotated.
Any real property used as a place where any
such activities are carried on or permitted to be
carried on and any effects, equipment,
paraphernalia, fixtures, appliances, musical
instruments or other personal property designed
for and used on such premises in connection with
such unlawful activities are subject to the
provisions of K.S.A. 22-3902, 22-3903 and
22-3904, and amendments thereto.
Statute # 22-3902
Chapter 22.--CRIMINAL PROCEDURE
Article 39.--ABATEMENT OF COMMON NUISANCES
Procedure.
(1) Unless otherwise provided by law,
proceedings under K.S.A. 22-3901 through 22-3904,
and amendments thereto, shall be governed by the
provisions of the Kansas code of civil procedure
relating to the abatement of common nuisances.
(2) In addition to the procedure
established by this section, if a person is
arrested for an unlawful act listed in K.S.A.
22-3901, and amendments thereto, the attorney
general, city, county or district attorney may
petition the court for a hearing to determine
whether an unlawful activity is or has been
occurring on such owner's property. The owner of
the property on which such person is or was
committing an unlawful activity may be given
notice of such hearing. A hearing shall be held
before the court within 30 days of the
notification. If the court determines by a
preponderance of the evidence that an unlawful
act occurred, such act shall render void any
lease under which a tenant holds possession, and
shall cause the right of possession to revert to
the owner who may evict the tenant. If the owner
does not commence eviction proceedings against
the tenant within 30 days of the court
determination, the attorney general or the city,
county or district attorney may proceed to file a
petition pursuant to subsection (3). The
provisions of this subsection are in addition to
any remedy provided pursuant to the residential
landlord and tenant act.
(3) Proceedings under K.S.A. 22-3901
through 22-3904, and amendments thereto, shall be
instituted only in the name of the state of
Kansas upon the petition of the attorney general
or the city, county or district attorney to
enjoin a nuisance within the city, county or
district.
(4) The petition shall describe any real
estate alleged to be used or to have been used as
a place where such common nuisance is or was
maintained or permitted and shall identify the
owner or person in charge of such real estate. It
shall describe any effects, equipment,
paraphernalia, fixtures, appliances, musical
instruments or other personal property designed
for and used in such unlawful activity. It shall
pray for the particular relief sought with
respect to such property.
(5) The petition for injunction may include
or be accompanied by an application for an order
for the seizure of the effects, equipment,
paraphernalia, fixtures, appliances, musical
instruments or other personal property described
in the petition. If the court finds that there is
probable cause to believe that the personal
property described is or has been used for any of
the unlawful purposes set forth in K.S.A. 22-3901
and amendments thereto, the court may order the
sheriff or other law enforcement officer to seize
such personalty and to hold it in custody pending
further order of the court. An order for seizure
shall particularly describe the personal property
to be seized.
(6) An order for seizure of materials
alleged to be obscene shall not be issued until
after a hearing at which evidence in support of
the application for such order has been heard. At
least three days notice of such hearing shall be
given to the owner or person in possession of
such material. Pending such hearing, the court
may make an order prohibiting the owner or person
in possession from removing such material from
the jurisdiction of the court.
(7) No bond or other security shall be
required for any restraining order, order for
seizure or injunction issued under K.S.A. 22-3901
through 22-3904, and amendments thereto, in an
action brought by the attorney general or city,
county or district attorney.
(8) The provisions of K.S.A. 22-3901
through 22-3904, and amendments thereto, shall
not limit nor otherwise affect proceedings under
K.S.A. 60-908 and amendments thereto, but shall
be supplemental and in addition to, and not in
lieu of, the remedy provided by that statute.
(9) The attorney general or the city,
county or district attorney shall give notice of
proceedings under K.S.A. 22-3901 through 22-3904
and amendments thereto by sending a copy of the
petition to enjoin a nuisance by certified mail,
return receipt requested, to each person having
ownership of or a security interest in the
property if: (a) The property is of a type for
which title, registration or deed is required by
law; (b) the owner of the property is known in
fact at the time of seizure; or (c) the property
is subject to a security interest perfected in
accordance with the uniform commercial code. The
attorney general or the city, county or district
attorney shall be obligated only to make diligent
search and inquiry as to the owner of the
property and if, after diligent search and
inquiry, the attorney general or city, county or
district attorney is unable to ascertain the
owner, the requirement of actual notice by mail
with respect to persons having perfected security
interest in the property shall not be applicable.
Statute # 22-3903
Chapter 22.--CRIMINAL PROCEDURE
Article 39.--ABATEMENT OF COMMON NUISANCES
Proceedings in rem.
The real or personal property against which
the order of abatement is sought may be named as
a party defendant in a proceeding under this
article. In such case, summons shall be served on
the owner or person in possession of such
property. Any person claiming an interest in the
property shall, upon application be permitted to
intervene as a party defendant.
Statute # 22-3904
Chapter 22.--CRIMINAL PROCEDURE
Article 39.--ABATEMENT OF COMMON NUISANCES
Judgment.
(1) Upon final judgment that any real
property is being or has been used as a place
where any of the unlawful activities set forth in
K.S.A. 22-3901 and amendments thereto are carried
on or permitted to be carried on, the court may
order that any house, building, room or other
structure located on such real estate be closed
and padlocked for a period of not more than two
years, subject to modification in the manner
provided by K.S.A. 60-910 and amendments thereto,
if the court finds that the owner of the property
knew or should have known under the circumstances
of the maintenance of a common nuisance on the
property and did not make a bona fide attempt to
abate such nuisance under the circumstances. The
court may require, as part of the judgment, that
the owner, lessee, tenant or occupant enter into
a bond to the state of Kansas, in such amount and
with security as the court may require,
conditioned that such owner, lessee, tenant or
occupant will not within a period of two years
use or permit the use of such real estate in
violation of law. If any condition of such bond
is violated, the whole amount may be recovered as
a penalty. In addition, the court may assess a
civil penalty not to exceed $25,000 against any
or all defendants, based upon the severity of the
nuisance and its duration. Such penalty shall be
paid into the county treasury, if recovered by a
county or district attorney, and into the city
treasury, if recovered by a city attorney.
(2) Upon final judgment that any effects,
equipment, paraphernalia, fixtures, appliances,
musical instruments or other personal property
are designed for and have been used in carrying
on any of the unlawful activities set forth in
K.S.A. 22-3901 and amendments thereto, the court
may order that such effects, equipment,
paraphernalia, fixtures, appliances, musical
instruments and other personal property be
publicly destroyed by the sheriff or other law
enforcement officer or that such personal
property be sold in the manner provided for sales
in execution of judgment.
(3) The proceeds of any sale of personal
property pursuant to subsection (2) shall be
applied as follows:
(a) First, to the fees and costs of the
removal and sale.
(b) Second, to the costs of closing the
structure and keeping it closed.
(c) Third, to payment of the costs of the
action.
(d) Fourth, to payment of any civil penalty
imposed pursuant to this section or any fine
imposed for contempt in the proceedings.
(e) Fifth, to the owner of the personal
property.
(4) Subject to the provisions of subsection
(3), upon final judgment for the state the court
shall adjudge that any defendant who was
maintaining the common nuisance pay all costs,
including a reasonable fee, fixed by the court,
to be paid to the prosecuting attorney. Such
costs shall be a lien upon any real property
against which an order of abatement is obtained,
if the court finds that the owner of such
property knew or should have known under the
circumstances of the maintenance of the common
nuisance on the property and did not make a bona
fide attempt to abate such nuisance under the
circumstances.
(5) For purposes of this section, evidence
of a bona fide attempt to abate such nuisance by
the owner of the property shall include, but not
be limited to, the filing of a written report, by
such owner or at such owner's direction, to the
local law enforcement agency that the property is
suspected by the owner of the property of being
used in maintaining and carrying on any of the
unlawful activities set forth in K.S.A. 22-3901
and amendments thereto.
Statute # 41-805
Chapter 41.--INTOXICATING LIQUORS AND BEVERAGES
Article 8.--MISDEMEANORS AND NUISANCES
Nuisances; places and properties operated or used in violation of act; lien for fines and costs; leases void; procedure for seizure and sale of vehicles and airplanes; appeals; stay of proceedings.
(1) Any room, house, building, boat,
vehicle, airplane, structure or place of any kind
where alcoholic liquors are sold, manufactured,
bartered or given away, in violation of this act,
or any building, structure or boat where persons
are permitted to resort for the purpose of
drinking alcoholic liquors, in violation of this
act, or any place where such liquors are kept for
sale, barter or gift, in violation of this act,
and all such liquors, and all property kept in
and used in maintaining such a place, are each
and all of them hereby declared to be a common
nuisance. Any person who maintains or assists in
maintaining such common nuisance is guilty of a
misdemeanor punishable by imprisonment for not
more than one year or by a fine not exceeding
$25,000, or by both. If the court finds that the
owner of real property knew or should have known
under the circumstances of the maintenance of a
common nuisance on such property, contrary to the
liquor laws of this state, and did not make a
bona fide attempt to abate such nuisance under
the circumstances, such property shall be subject
to a lien for, and may be sold to pay all fines
and costs assessed against the occupant of such
building or premises for any violation of this
act; and such lien shall be immediately enforced
by civil action, in any court having
jurisdiction, by the county or district attorney
of the county wherein such building or premises
may be located, or by the attorney for the
director, when ordered by the director. For
purposes of this section, evidence of a bona fide
attempt to abate such nuisance by the owner of
the property shall include, but not be limited
to, the filing of a written report, by such owner
or at such owner's direction, to the local law
enforcement agency that the property is suspected
by the owner of the property of being used in
maintaining a common nuisance as set forth in
K.S.A. 22-3901, and amendments thereto, contrary
to the liquor laws of this state. If a tenant of
any building or premises uses the building or
premises, or any part thereof, in maintaining a
common nuisance as hereinbefore defined, or
knowingly permits such use by another, such use
shall render void the lease under which the
tenant holds, and shall cause the right of
possession to revert to the owner or lessor, who
may make immediate entry upon the premises, or
may invoke the remedy provided for the forcible
detention thereof.
(2) Upon the filing of a complaint or
information charging that a vehicle or airplane
is a common nuisance as above declared, a warrant
shall be issued authorizing and directing the
officer to whom it is directed to arrest the
person or persons described in the complaint or
information or the person or persons using the
vehicle or airplane in violation of this act and
to seize and take into the officer's custody all
such vehicles and airplanes so used which the
officer finds, and safely keep them subject to
the order of the court. In the complaint or
information it shall not be necessary to
accurately describe the vehicle or airplane so
used, but only such description shall be
necessary as will enable the officer executing
the warrant to identify it properly.
Whenever any vehicles or airplanes shall be
seized under any such warrant, whether an arrest
has been made or not, a notice shall issue within
48 hours after the return of the warrant in the
same manner as a summons, directed to the
defendant in such action and to all persons
claiming any interest in such vehicles or
airplanes, fixing a time, to be not less than 60
days, and place at which all persons claiming any
interest therein may appear and answer the
complaint made against such vehicles or airplanes
and show cause why they should not be adjudged
forfeited and sold as hereinafter provided. Such
notice shall be served upon the defendant in the
action in the same manner as a summons if the
defendant be found within the jurisdiction of the
court, and a copy thereof shall also be posted in
one or more public places in the county in which
the cause is pending. If at the time for filing
answer the notice has not been duly served or
sufficient cause appear, the time for answering
shall be extended by the court and such other
notice issued as will supply any defect in the
previous notice and give reasonable time and
opportunity for all persons interested to appear
and answer. At or before the time fixed by
notice, any person claiming an interest in the
vehicles or airplanes seized, may file an answer
in writing, setting up a claim thereto, and shall
thereupon be admitted as a party defendant to the
proceedings against such vehicles or airplanes.
The complaint or information and answer or
answers that may be filed shall be the only
pleadings required. At the time fixed for answer,
or at any other time to be fixed by the court, a
trial shall be held in a summary manner before
the court on the allegation of the complaint or
information against the property seized. Whether
any answer shall be filed or not, it shall be the
duty of the county or district attorney to appear
and adduce evidence in support of such
allegation.
(3) If the court finds that such vehicles
or airplanes were at the time a common nuisance,
as defined in this section, the court shall
adjudge forfeited so much thereof as the court
finds to be a common nuisance, and shall order
the officer in whose custody they are to sell
them publicly. The officer shall cause notice to
be given by publication for at least one week in
the official county paper of the time and place
of the sale of the property and shall file in the
court a return showing the sale of the property
and the amount received therefor and shall pay
the same into court to await the order of the
court. The court, if it approves such sale, shall
declare forfeited the proceeds of the sale and,
after paying out of the proceeds of the sale the
costs of the action, including costs of sale and
the keeping and maintenance of the property,
shall out of the balance of the money received
from the property at the sale, pay all liens,
according to their priorities, which are
established by intervention or otherwise at the
hearing or another proceeding brought for that
purpose as being bona fide and for value and as
having been created without the lienor having any
notice that the vehicle or airplane was being
used in so violating the provisions of this act
and without the lienor having any notice at any
time subsequent to the creation of the lien and
prior to the seizure in time to have protected
the lien that the vehicle was so being used. The
balance remaining shall be paid to the state
treasurer pursuant to K.S.A. 20-2801, and
amendments thereto, except that, if upon proper
proof, a lien as herein provided is established
in excess of the value of the vehicle as found by
the court, the court may order, without sale, the
surrender of such vehicle to such lienor upon the
payment of all costs as is herein provided.
(4) Either the state or any defendant or
other person claiming the vehicle or airplane
seized, or an interest therein, may appeal from
the judgment of the court in any such proceedings
against the property seized in the manner
provided for taking appeals in criminal cases.
Any claimant of such property who appeals, in
order to stay proceedings, must enter into an
undertaking with two or more sureties to the
state of Kansas, to be approved by the judge of
the district court, in the sum of not less than
$100 nor less than double the amount of the value
of the property as fixed by the court and the
costs adjudged against the property, conditioned
that the claimant will prosecute the appeal
without unnecessary delay, and if judgment is
entered against the claimant on appeal, the
claimant will satisfy the judgment and costs, and
no bond shall be required for an appeal by the
state, and such appeal shall stay the execution
of the judgment.