la municipal ordinance re counterfeiting location as nuisance

8/9/2019 LA Municipal Ordinance Re Counterfeiting Location as Nuisance

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ORDINANCE NO. __ ' 1 _ 8 _ 0 - , - ' _ 2 _ ~ _ _An ordinance adding Section 41.72 to the Los Angeles Municipal Code toestablish a Counterfeit Goods Nuisance Abatement Law for the abatement of propertiesthat are used for the purpose of manufacturing, selling or possessing counterfeit goodsand recordings that do not disclose the origins of the recordings.WHEREAS, the use of properties within the City of Los Angeles for the purposeof manufacturing, distributing, selling, or possessing for sale, counterfeit goods, orrecordings or audiovisual works which are improperly labeled under California PenalCode section 653w, substantially interferes with the interest of the public in the quality oflife and community peace; andWHEREAS, such activity also interferes with lawful commerce in the City,diminishes property values, and is detrimental to the public health, safety, and welfareof the City's residents, its businesses, and its visitors; andWHEREAS, the City Council finds that such properties constitute publicnuisances that must be abated.NOW THEREFORE,

THE PEOPLE OF THE CITY OF LOS ANGELESDO ORDAIN AS FOLLOWS:Section 1. Section 41.72 is added to the Los Angeles Municipal Code to read:

SEC. 41.72. COUNTERFEIT GOODS NUISANCE ABATEMENT LAW.(A) Definitions. As used in this section:

1. "City" means the City of Los Angeles.2. "Property" means any real property located in the City of LosAngeles, including all buildings, structures and other improvements thereon.

(8) Nuisance.1. Definition of Nuisance.

A Property used for the purpose of knowingly manufacturing, selling, orpossessing for sale any of the following is a public nuisance which may berestrained, enjoined, abated, and prevented pursuant to the provisions of thisSection.

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(a) Any counterfeit of a mark, or goods containing any counterfeit of amark, registered with the California Secretary of State or registered on thePrincipal Register of the United States Patent and Trademark office; or(b) Any recording or audiovisual work where the cover, box, jacket, orlabel fails to accurately disclose the information regarding the manufacturer and

the author, artist, performer, producer, programmer, or group, as proscribed byCalifornia Penal Code section 653w.2. Maintaining Nuisance.

No person shall knowingly conduct, permit or maintain the nuisancedefined in Subsection B.1 of this Section on any Property. Each day suchnuisance continues to exist shall be a new and separate offense.3. Action to Abate Nuisance.

The City Attorney may bring and maintain a civil action in the name of theCity of Los Angeles in the superior court to abate and prevent a public nuisanceas defined in Subsection B.1 of this Section and to restrain and enjoin the personor persons conducting, maintaining or permitting the public nuisance from furtherconducting, maintaining, or permitting such public nuisance.4. Notice of Nuisance.

If the Property owner is not the person conducting, maintaining orpermitting the nuisance, at least 30 days before an action is filed against aProperty owner, the Property owner shall be notified that the Property is beingused in violation of subsection B.1. This requirement is satisfied if the CityAttorney sends a notice by certified or registered mail with return receiptrequested to the Property owner.5. In Rem Jurisdiction.

The City Attorney may name as a defendant, in any action brought underthis Section, the Property where the public nuisance is being conducted, ormaintained or permitted, by describing it by the assessor's parcel number andstreet address. The City Attorney shall cause a summons to be affixed to theprincipal door or entrance of the Property, or other visible, conspicuous placethereon, and thereafter mails the summons by certified or registered mail, returnreceipt requested, to the owner of the Property as reflected on public records onfile with the Los Angeles County Recorder.

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(C) Pre-Judgment Remedies.1. Temporary Restraining Order or Injunction.If the existence of the nuisance in the action is shown to the satisfaction ofthe court, either by verified complaint or affidavit, the court may allow atemporary restraining order or injunction to abate and prevent the continuance orrecurrence of the nuisance.2. Closure.

(a) The City Attorney may seek a temporary restraining order orpreliminary injunction to close all or part of the Property pending trial when a priororder or injunction has not resulted in abatement of the nuisance. The durationof the order shall be in the court's discretion but in no event shall the closureexceed one year. The City Attorney may seek an order further directing that theproperty owner or person in control of the Property is to padlock the Property andprovide the keys to the Los Angeles Police Department or the Department ofBuilding and Safety upon a request by that department.

(b) The City Attorney may seek a pre-judgment closure order directingthat if the Property is not closed as ordered by the court, the Department ofBuilding and Safety may close it and board and secure it. The order further maydirect the Police Department and the victim of the activity referenced in B. 1 (a)or (b) or its agent, to enter the property in order to prepare a report regardingpersonal property situated at the Property. The report may consist ofphotographs of the personal Property.(c) The City Attorney shall send the pre-judgment closure order to the

Property owner and the person in control of the Property. If the Property owneror the person in control of the Property fails to comply, the Department ofBuilding and Safety may, when requested by the Los Angeles PoliceDepartment, barricade, padlock, fence or secure the Property by whatevermeans necessary to secure compliance.(d) When the Department of Building and Safety closes a Propertypursuant to this section, the Department shall post a warning placard or sign in aconspicuous place near the entrance. A warning placard or sign posted pursuantto this section shall not be removed, defaced, covered or hidden from view in anymanner. The placard or sign shall read substantially as follows:

PROPERTY VACATED BY COURT ORDERDO NOT ENTERIT IS A MISDEMEANOR TO ENTER, TO REMAIN, TO OCCUpy OR BE PRESENTUNLAWFULLY IN OR ON THIS PROPERTY. IT IS A MISDEMEANOR TO REMOVE,DEFACE, COVER OR HIDED THIS PLACARD.

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3. Defendant's Remedies.(a) If the Property owner files a bond in an amount equal to the fullassessed value of the Property ordered to be closed and submits proof to thecourt that the nuisance has been abated and will not be created, maintained, orpermitted for such period of time as the Property has been directed to be closed,

the court may vacate the pre-judgment closure order. Proof that the nuisancewill not be created, maintained, or permitted in the future, shall include, but notbe limited to, a written statement setting forth the proactive steps the owner willtake to ensure that no such nuisance shall recur on the Property. The provisionsof Section 995.010 et seq. of the Code of Civil Procedure shall apply to any bondposted under this subsection.(b) The City Attorney shall request that any order vacating a pre-judgment closure order include a provision authorizing the Police Department toperiodically and without notice, inspect the Property that is the subject of anaction pursuant to this section during the pendency of the action, for the purpose

of ascertaining whether or not the public nuisance has recurred on the Property.(D) Judgment.1. Permanent Injunction.

If the existence of the nuisance in the action is established to thesatisfaction of the court, the court may enter a judgment which includes apermanent injunction enjoining the nuisance.2. Closure.

(a) The City Attorney may seek a permanent injunction that includesclosure of all or part of the Property. The duration of the order shall be in thecourt's discretion but in no event shall the closure aspect of the order exceed oneyear. The order may further direct that the Property owner or person in control ofthe Property is to padlock the Property and provide the keys to the PoliceDepartment or the Department of Building and Safety upon a request by thatdepartment.(b) The closure order may direct that if the Property is not closed asordered by the court, the Department of Building and Safety may close it and

board and secure it. The order may further direct the Police Department to enterthe Property in order to prepare a report regarding personal property situated atthe Property. The report may consist of photographs of the personal property.(c) The City Attorney shall send the closure order to the Propertyowner and the person in control of the Property. If the Property owner or theperson in control of the Property fails to comply, the Department of Building and

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Safety may, when requested by the Los Angeles Police Department, barricade,padlock, fence or secure the Property by whatever means necessary to securecompliance.(d ) When the Department of Building and Safety closes a Propertypursuant to this section, the Department shall post a waming placard or sign in a

conspicuous place near the entrance. A warning placard or sign posted pursuantto this section shall not be removed, defaced, covered or hidden from view in anymanner. The placard or sign shall read substantially as follows:PROPERTY VACATED BY COURT ORDERDO NOT ENTER

IT IS A MISDEMEANOR TO ENTER, TO REMAIN, TO OCCUPY OR BE PRESENTUNLAWFULLY IN OR ON THIS PROPERTY. IT IS A MISDEMEANOR TO REMOVE,DEFACE, COVER OR HIDE THIS PLACARD.3. Defendant's Remedies.

(a) If the owner files a bond in the amount equal to the full assessedvalue of the property ordered to be closed and submits proof to the court that thenuisance has been abated and will not be created, maintained, or permitted forsuch period of time as the Property has been directed to be closed, the courtmay vacate the closure order. Proof that the nuisance will not be created,maintained, or permitted in the future, shall include, but not be limited to, awritten statement setting forth the proactive steps the owner will take to ensurethat no such nuisance shall recur on the Property. The provisions of Section995.010 et seq. of the Code of Civil Procedure shall apply to any bond postedunder this subsection.

(b) The City Attorney may seek an order that includes a provisionauthorizing the Police Department to periodically and without notice, inspect theProperty that is the subject of an action pursuant to this section, for the purposeof ascertaining whether or not the public nuisance has recurred on the Property.4. Sale of Chattels.

The City Attorney may seek an order of abatement directing the seizureand removal from the Property of all fixtures and moveable property used in thecreation and/or maintenance of the public nuisance and directing the sale by thesheriff of such personal property in the manner provided for the sale of chattelsunder execution. For removing and selling the fixtures and moveable property,the sheriff's office shall be entitled to charge and receive the same fees as he orshe would for levying upon and selling like property upon execution. The netproceeds of any such sale, after the sheriff's expenses have been paid, shall beused to first defray all the lawful expenses incurred by the City, including, but not

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limited to, fees and costs of the removal and sale, allowances and costs ofkeeping the Property closed, and costs of the City's action. The balance, if any,shall be paid to the owner of the chattels.5. Civil Penalty.

If a defendant has conducted, maintained or permitted a public nuisanceas defined in this section, the civil penalty shall not to exceed $1,000 for eachcounterfeit of a mark registered with the California Secretary of State orregistered on the Principal Register of the United States Patent and Trademarkoffice, or for any recording or audiovisual work where the cover, box, jacket, orlabel fails to accurately disclose the information regarding the manufacturer andthe author, artist, performer, producer, programmer, or group, as proscribed byCalifornia Penal Codes section 653w, that is knowingly manufactured, sold, orpossessed for sale on the Property. Upon recovery, such penalties shall be paidto the City of Los Angeles.In assessing the amount of the civil penalty under this section, the courtmay consider anyone or more of the relevant circumstances presented by any ofthe parties to the action, including, but not limited to, the following: the nature andseriousness of the misconduct, the number of violations, the persistence of themisconduct, the length of time over which the misconduct occurred, and thedefendant's assets, liabilities, and net worth.

(E) Costsof Abatement.In any action to abate a nuisance pursuant to this Section, the owner of theProperty upon which the nuisance is found to exist shall be liable for all costs of

abatement incurred by the City, including but not limited to, administrative costs and allcosts incurred in the physical abatement of the nuisance. In addition to the penaltiesherein provided, upon entry of a second or subsequent judgment pursuant to thissection that issues within a two-year period, the court may order the owner to pay treblethe costs of abatement.(F) Violations.1. Violationof Orderor Injunction.

A violation or disobedience of any provision of an order or injunctionissued pursuant to this section is a misdemeanor.2. FailuretoComplywithClosureOrder.

A Property owner or person in control of the Property who fails to complywith any pre-judgment closure order or closure order shall be guilty of amisdemeanor.

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3. Defacement or Removal of Placard or Sign.Any person who defaces, covers, hides, or removes any placard or signposted pursuant to subsection C. 2 (d) or D. 2 (d) of this section shall be guilty ofa misdemeanor.

4. Entry Onto or Occupation of Closed Property.Any person who enters, remains, occupies or is present in a Property thathas been posted pursuant to subsection C. 2 (d) or D.2 (d) of this section shall beguilty of a misdemeanor. This prohibition shall not apply to public officers orpublic employees acting in the performance of their official duties.Notwithstanding any other provision of the Los Angeles Municipal Code to thecontrary, a police officer with the Los Angeles Police Department shall have theauthority to enter any building posted by the Department pursuant to this division,and arrest anyone entering the posted Property without authorization.

(G) Nonexclusive Remedies.The remedies provided in this section are cumulative and non-exclusiveand they shall not exclude the City's use of any other remedy provided by law forthe protection of the health, safety and welfare of the people of the City of LosAngeles.

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Sec. 2. The City Clerk shall certify to the passage of this ordinance and have itpublished in accordance with Council policy, either in a daily newspaper circulatedin the City of Los Angeles or by posting for ten days in three public places in the City ofLos Angeles: one copy on the bulletin board located at the Main Street entrance to theLos Angeles City Hall; one copy on the bulletin board located at the Main Streetentrance to the Los Angeles City Hall East; and one copy on the bulletin board locatedat the Temple Street entrance to the Los Angeles County Hall of Records.

I hereby certify that this ordinBe w~s~sed by the Council of the City ofLos Angeles, at its meeting of 0 . .

JUNE LAGMAY, City Clerk

Deputy

Approved -----'1~8 2 0 0 9

MayorApproved as to Form and Legality

ROCKARD J. DELGADILLO, City Attomey

BY~WILLIAM H. KYSEL ,JDeputy City Attomey

Date _-",t;'-I~_O--,,__FileNo 08-1411

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la municipal ordinance re counterfeiting location as nuisance

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