This post is part of a series of posts on Minnesota’s Public and Private Nuisance Laws.
State Public Nuisance Law
The key element of Minnesota’s statutory public nuisance law is a civil process through which the creation or continuation of common public nuisance activities can be prevented. This process is described below.
The law also includes special provisions for particular types of public nuisance, including gang activity and nuisances affecting the public health, and for particular types of damage, such as graffiti. These provisions are also described below.
General Public Nuisance Activity
What types of activity are considered a public nuisance?
In general, Minnesota’s public nuisance law defines “nuisance activity” to include either one behavioral incident or two separate behavioral incidents committed within a building1 within the previous 12 months.
One incident of any of the following activities is sufficient to constitute a public nuisance:
- prostitution or prostitution-related activity
- unlawful activity involving controlled substances (drugs)
- unlawful use of a dangerous weapon2
Alternatively, two or more incidents involving any one or a combination of the following activities constitute a public nuisance:
- gambling or gambling-related activity
- unlicensed sales of alcoholic beverages
- unlawful furnishing of alcoholic beverages to a person under age 21
- maintaining or permitting a condition that unreasonably annoys, injures, or endangers the safety, health, morals, or repose of any considerable number of members of the public
- engaging in any other activity declared by law to be a public nuisance
- the violation by any commercial enterprise of a local nuisance ordinance or regulation3
- permitting real property to be used to maintain a public nuisance, or renting the property knowing it will be used to maintain a public nuisance, by whoever maintains control of the property
Where within a building must the nuisance activity occur?
Nuisance activity is considered to have occurred within the building if it takes place in any portion of it or on the surrounding property. If the building is a multiunit building, usually only the unit where the activity occurs comes within the scope of the nuisance civil action. However, tenants are responsible for nuisance activity they or their guests commit inside or outside the tenant’s unit, and the building owner4 is responsible for nuisance acts committed by the owner or persons under the owner’s control anywhere in the building.5
Who may bring an action in court to stop a nuisance activity from continuing?
The law specifies that only a prosecuting attorney may bring an action in court to stop nuisance activity from occurring. A “prosecuting attorney” means either a city attorney, county attorney, or the state attorney general.6
If a prosecuting attorney has reason to believe a nuisance exists in any building in a neighborhood, he or she may bring a civil action in district court to put an end to the nuisance activity. Before filing the action, the prosecuting attorney must send a written notice by personal service or certified mail to the owner of the property and all other known interested parties.7 The written notice must:
- specify the type of nuisance being maintained or permitted;
- summarize the evidence, including the dates on which nuisance-related activities arealleged to have occurred;
- inform the recipient that failure to abate the conduct or otherwise resolve the matter within 30 days may result in the filing of a nuisance action in court and that the court action may result in an injunction closing the building for one year or, in the case of a tenant, cancellation of the lease; and inform the owner of the option of canceling the offending tenant’s lease in a separate court action and, thereby, avoid a nuisance action.8How can the owner avoid the filing of a nuisance action?
If the owner either abates (ends) the nuisance activity or enters into an abatement plan with the prosecuting attorney within 30 days of receiving the written notice, the prosecutor may not file the nuisance action with the court. However, if the owner fails to act within this time period or fails to comply with the abatement plan, the prosecuting attorney may file the nuisance action.9
What procedures must the prosecuting attorney follow when filing a nuisance action?
The prosecuting attorney must first file a petition seeking a temporary injunction to abate the nuisance. The court then must hold a “show cause” hearing and provide the respondents an opportunity to be heard on the allegations contained in the petition. If the court finds that there is reason to believe nuisance activity has occurred, it must issue the temporary injunction describing the conduct enjoined. After the temporary injunction is issued, the court must issue a permanent injunction and an order of abatement if it finds, by clear and convincing evidence, that a nuisance exists.10
What is the effect of an order of abatement?
The effect of the order of abatement is to close the building or a portion of it for up to one year. The abatement order must be posted conspicuously on the building so as to inform the building occupants and the public of the order’s contents. In addition to closing the building, the abatement order may order the removal of moveable property used to conduct or maintain the nuisance and may order the sale of any property owned by a respondent who was notified of or appeared in the nuisance action.
Instead of closing the building, the court may appoint a receiver to oversee use of the building during the abatement period. Net proceeds of any rents collected during the receivership are paid to the treasury of the local government unit.11
How can an owner avoid an abatement order?
The law provides three ways for building owners to avoid the issuance or enforcement of an abatement order.
The owner may enter into an abatement plan with the prosecuting attorney. The owner may also independently abate the nuisance without entering into a formal plan for abatement. The nuisance activity must be abated, or the plan entered into, within 30 days of receipt of notice from the prosecuting attorney to prevent the issuance or enforcement of an order.12
Motion to cancel lease
Second, if the nuisance activity was conducted by a tenant in the building, the owner may file a motion in court to cancel the tenant’s lease.13 The owner may conduct the eviction action directly or assign that right to the prosecuting attorney. In that proceeding, the court shall order the tenant evicted if it finds that the tenant was responsible for the nuisance activity. Moreover, the court may not issue or enforce an abatement order against the building unless it further finds that the tenant was acting in conjunction with or under the control of the owner.
For more information on evicting a tenant for illegal activity, click here.
Third, the court may release the building from the abatement order if: (1) the owner pays the costs of the nuisance action; (2) the owner posts a bond in an amount determined by the court, up to $50,000, conditioned on the abatement of the nuisance for one year; and (3) the court is satisfied the owner is acting in good faith. The injunction against further nuisance activity continues in full force, however, and the law directs that the owner forfeits $1,000 of the bond for each day that the owner knowingly violates the abatement order.14
What is the penalty for violating an injunction or abatement order?
The law states that any violation of a temporary or permanent injunction or abatement order issued under the nuisance law shall be treated as contempt of court.15
Can a person who engages in a public nuisance be prosecuted for a crime?
Minnesota law does provide a criminal penalty for activities that constitute a public nuisance. A misdemeanor charge may be brought against a person who:
- maintains or permits a condition that unreasonably annoys, injures, or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public;
- interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public; or
- is guilty of any other act or omission declared by law to be a public nuisance and for which no sentence is specifically provided.16
Only a county attorney, city attorney, or the attorney general may prosecute a person for this crime. In order to be convicted of the crime of public nuisance, the prosecuting attorney must prove the defendant’s guilt beyond a reasonable doubt.17
Proving criminal liability for a public nuisance is more difficult than proving a public nuisance for purposes of obtaining a civil order for abatement of the activity, as described above. It is within the discretion of the prosecuting authority to determine whether criminal charges are appropriate in a particular case.
Minnesota’s Public and Private Nuisance Laws
Gang Nuisance Activity
In 2007, a new law was enacted to address public nuisances occurring as a result of gang activity. The law establishes a process separate from the general public nuisance abatement process described above as a means to remedy the problem.
What constitutes a gang nuisance?
The law declares two types of gang-related public nuisance:
- a criminal gang that continuously or regularly engages in gang activity
- the continuous or regular use of a place by a lessee or tenant to engage in or allow gang activity, if the gang activity is knowingly permitted by the owner or other person responsible for maintaining that particular place18
The law defines “continuously or regularly” to mean three separate incidents or occurrences within a 12-month period.19
“Gang activity” includes an extensive list of offenses, including those for which a mandatory minimum sentence is required (in general, the most serious criminal offenses that physically harm a victim),20 plus first- or second-degree criminal damage to property, trespass, and disorderly conduct.21
A “place” for purposes of the law includes a commercial or residential structure, including the land surrounding the structure that is under the control of the structure’s owners and vacant parcels of land that are under the control of an owner or person responsible for maintaining the land. If necessary, the definition permits “place” to be narrowed to a specific location in the structure (such as an apartment, office, garage, etc.).22Who may bring an action to prevent or abate gang activity that is a public nuisance?
Like the more general public nuisance statute, a city or county attorney, or the attorney general, has the authority to bring a civil action in court to stop the nuisance gang activity from occurring.
The suit may be brought against a specific person who engages in the activity (or against a group of persons).23 A suit may also be filed against an owner or person responsible for maintaining the particular place at which the gang nuisance is alleged to have occurred, if that person knowingly permitted the activity to occur.24 The owner or responsible person may offer evidence in their defense to prove that an attempt was made to prevent the gang activity from occurring at the location.25
What are the penalties if a court finds that the gang activity does constitute a public nuisance?
If the court finds by the preponderance of the evidence26 that a criminal gang constitutes a nuisance, the court may issue an order prohibiting the individual defendant(s) from engaging in gang activity and imposing other reasonable requirements to prevent future gang activity. In imposing other reasonable requirements, the court is required to balance the need for public safety with the defendant’s constitutional rights.27
The court may also impose reasonable requirements to prevent further use of a place for gang activity, including cancellation of an applicable lease if necessary.28
A person who violates a court order related to nuisance gang activity is subject to a fine for contempt ranging between $1,000 and $10,000. If a person knowingly violates the order, the person is guilty of a misdemeanor offense. Attorney’s fees may also be awarded to the prevailing party.29
While not technically defined to be a nuisance in Minnesota statute, a building or other property that is “tagged” with graffiti can cause damage and may be considered an eyesore by neighbors and members of the public. A civil remedy is provided in statute to address graffiti-related problems.30
The owner of public or private property may bring an action in court to recover damages related to graffiti.31 Unlike the public nuisance laws, this provision allows the owner of the property to bring the action; the involvement of a city or county attorney or the attorney general is not required.
If successful, the owner may recover either three times the cost of restoring the property or the court may order the defendant to perform the actual work required for restoration. The court may also award attorney’s fees to the property owner. If the graffiti was placed on the property by a minor individual, the damages may be recovered from the parent of that minor.32 In most cases, the liability of the parent may not exceed $1,000.33
The content of this post and any related posts has been copied or adopted from the Minnesota House of Representatives Research Department’s Information Brief, Minnesota’s Public and Private Nuisance Laws, written by legislative analyst Matt Gehring.
This post is also part of a series of posts on Minnesota’s Public and Private Nuisance Laws.
1 “Building” includes both residences and any commercial structure maintained for business activities involving human occupation. The term also includes the land surrounding the structure. Minn. Stat. § 617.80, subd. 2.
2 “Dangerous weapon” includes any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm. Minn. Stat. § 609.02, subd. 6.
3 Minn. Stat. § 617.81, subd. 2.
4 “Owner” is the person whose name is on the property tax record for the building. Minn. Stat. § 617.80, subd. 7.
5 Minn. Stat. § 617.81, subd. 2.
6 Minn. Stat. § 617.80, subd. 9.
7 “Interested parties” include any known lessee or tenant, any known agent of the owner, lessee, or tenant, and any other person who maintains or permits a nuisance and is known to the prosecuting attorney. Minn. Stat. § 617.80, subd. 8.
8 This notice provision was added for the purpose of resolving nuisance problems without court involvement, where possible. Minn. Stat. § 617.81, subd. 4.
9 Minn. Stat. § 617.82
10 Minn. Stat. §§ 617.82; 617.83. “Clear and convincing evidence” means that it is “highly probable” or “reasonably certain” that a nuisance exists
11 Minn. Stat. §§ 617.83; 617.84.
12 Minn. Stat. § 617.82.
13 Minn. Stat. § 617.85. The law provides that the maintaining or conducting of nuisance activity is grounds for cancellation of the lease and eviction even if the lease document itself is silent on this point.
14 Minn. Stat. § 617.87.
15 Minn. Stat. § 617.86.
16 Minn. Stat. § 609.74. In addition to the activities described in this publication, there are many other provisions declaring certain activities to be a public nuisance. These other provisions are best described as “miscellaneous” and appear in various chapters of statute based upon the general subject matter of the activity at issue. Most of these provisions, and those included in this publication, may be enforced using the misdemeanor criminal penalty described here.
17 “Beyond a reasonable doubt” means that a defendant may only be convicted if there is no reasonable possibility, based on the evidence, that he or she is not guilty of the crime.
18 Minn. Stat. § 617.92.
19 Minn. Stat. § 617.91, subd. 2.
20 Relevant crimes include: “murder in the first, second, or third degree; assault in the first, second, or third degree; burglary; kidnapping; false imprisonment; manslaughter in the first or second degree; aggravated robbery; simple robbery; first-degree or aggravated first-degree witness tampering; criminal sexual conduct under the circumstances described in sections 609.342, subdivision 1, clauses (a) to (f); 609.343, subdivision 1, clauses (a) to (f); and 609.344, subdivision 1, clauses (a) to (e) and (h) to (j); escape from custody; arson in the first, second, or third degree; drive-by shooting under section 609.66, subdivision 1e; harassment and stalking under section 609.749, subdivision 3, clause (3); possession or other unlawful use of a firearm in violation of section 609.165, subdivision 1b, or 624.713, subdivision 1, clause (b), a felony violation of chapter 152; or any attempt to commit any of these offenses.” Minn Stat. § 609.11, subd. 9.
21 Minn. Stat. § 617.91, subd. 4.
22 Minn. Stat. § 609.11, subd. 5.
23 Minn. Stat. § 617.93.
25 Minn. Stat. § 617.97.
26 The “preponderance of the evidence” standard means that, on the whole, there is more evidence in favor of there being nuisance gang activity than not.
27 Minn. Stat. § 617.94. 28 Id.
29 Minn. Stat. § 617.95.