GA Code § 41-3-1 (2021)
2021 Georgia Code|Title 41 - Nuisances|Chapter 3 - Places Used for Unlawful Sexual and Drug Activities|§ 41-3-1. "Sexually Related Charges" Defined; Establishment, Maintenance, or Use of Building, Structure, or Place for Sexually Related Activities; Evidence of Nuisance

  As used in this Code section, the term "sexually related charges" means a violation of Code Section 16-5-46, 16-6-2, 16-6-8, 16-6-9, 16-6-10, 16-6-11, 16-6-12, 16-6-15, or 16-6-16 when:   Returned in an indictment by a grand jury; or   Filed as an accusation by a prosecuting attorney that results in a conviction, a plea of guilty under any first offender statute, a plea of nolo contendere, adjudication in an accountability court, or a dismissal as a result of successful completion of a pretrial diversion program.     Whosoever shall knowingly erect, establish, continue, maintain, use, own, or lease any building, structure, or place for the purposes of sexually related charges shall be guilty of maintaining a nuisance; and the building, structure, or place, and the ground itself in or upon which such sexually related charges occurred or were conducted, permitted, carried on, continued, or shall exist, and the furniture, fixtures, and other contents of such building or structure shall be deemed to be a nuisance and may be enjoined or otherwise abated as provided in this chapter.   The occurrence of either of the following shall be prima-facie evidence of the nuisance and the existence thereof:   A conviction, a plea of guilty under any first offender statute, a plea of nolo contendere, an adjudication in an accountability court, or a dismissal as a result of successful completion of a pretrial diversion program of the owner or operator of any building, structure, or place for any sexually related charges, based on conduct or an act or occurrence in or on the premises of such building, structure, or place; or   When the prosecuting attorney of the county in which the property is located notifies the owner in writing of two or more unrelated incidents of sexually related charges occurring within a 24 month period preceding such notice and, after the receipt of such notice and within 24 months of the first of the incidents resulting in a sexually related charge which is the subject of such notice, another additional unrelated incident occurs which results in a sexually related charge.     Any such sexually related charges which result directly from cooperation between the property owner or his or her agent and a law enforcement agency shall not be considered as evidence of a nuisance under this Code section.   The provisions of this Code section are cumulative of any other remedies and shall not be construed to repeal any other existing remedies for sexually related nuisances.    (Ga. L. 1917, p. 177, § 1; Code 1933, § 72-301; Ga. L. 1975, p. 402, § 2; Ga. L. 1979, p. 1025, § 1; Ga. L. 2019, p. 74, § 1-9/SB 158.)    The 2019 amendment,  effective July 1, 2019, rewrote this Code section, which read: "(a) Whosoever shall knowingly erect, establish, continue, maintain, use, own, or lease any building, structure, or place used for the purpose of lewdness, prostitution, sodomy, the solicitation of sodomy, or masturbation for hire shall be guilty of maintaining a nuisance; and the building, structure, or place, and the ground itself in or upon which such lewdness, prostitution, sodomy, the solicitation of sodomy, or masturbation for hire shall be conducted, permitted, carried on, continued, or shall exist, and the furniture, fixtures, and other contents of such building or structure are also declared to be a nuisance and may be enjoined or otherwise abated as provided in this chapter.   "(b) The conviction of the owner or operator of any building, structure, or place for any of the offenses stated in subsection (a) of this Code section, based on conduct or an act or occurrence in or on the premises of such building, structure, or place, shall be prima-facie evidence of the nuisance and the existence thereof." See Editor's notes for applicability.   Cross references.   - Provisions regarding public nuisance status of premises used in violation of laws relating to obscenity, § 16-12-82.   Editor's notes.   - Ga. L. 2019, p. 74, § 1-1/SB 158, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-Human Trafficking Protective Response Act.'"   Ga. L. 2019, p. 74, § 3-1/SB 158, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2019, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2019, shall be governed by the statute in effect at the time of such offense, and any resulting conviction shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction."   Law reviews.   - For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019).   JUDICIAL DECISIONS   Use of evidentiary standard did not convert action to equitable proceeding.    - When a party elected to proceed under former Code 1933, § 72-301 (see now O.C.G.A. § 41-2-5), it was an action at law and using the evidentiary standard contained in former Code 1933, § 72-401 (see now O.C.G.A. § 41-3-1) did not convert the proceeding into an equitable one. Yield, Inc. v. City of Atlanta, 145 Ga. App. 172, 244 S.E.2d 32, cert. dismissed, 241 Ga. 593, 247 S.E.2d 764 (1978).   Allegations establishing cause of action.    - Petition by the solicitor general (now district attorney) to abate described premises as a public nuisance, alleging that the premises are being maintained and used for the purpose of prostitution and assignation, in violation of this section, et seq., and attaching as a part of the petition affidavits by three persons who testify that the premises have been used as alleged, states a cause of action; a judgment overruling a general demurrer (now motion to dismiss) to the petition is not erroneous. Carpenter v. State ex rel. Hains, 194 Ga. 395, 21 S.E.2d 643 (1942).    Petition, alleging in substance that the defendant was operating a lewd house; was operating and maintaining a gaming house; was illegally selling beer, whiskey and other alcoholic beverages to minors; was maintaining on the defendant's premises a juke box whose loud playing was disturbing the neighborhood and people passing by on the highway; and was providing a gathering place for minors and the general public to drink, dance, and carouse, was sufficient to state a cause of action for abatement of a public nuisance by the solicitor general (now district attorney). Lee v. Hayes, 215 Ga. 330, 110 S.E.2d 624 (1959).   Modification of judgment so as to release building and contents.    - In a proceeding to abate as a nuisance a described tourist camp owned by the defendant on the ground that "said place and its contents" were being knowingly maintained and used by the defendant for the purpose of lewdness, assignation, and prostitution, when the judge, by consent trying the case, without a jury, found and decreed that all of the buildings in the tourist camp, with the personalty in each, were used by the defendant "as one plant or combine" for the purpose of lewdness and prostitution, the defendant, after an affirmance of such judgment by the Supreme Court, could not obtain a modification of the judgment so as to release one of the buildings and the building's contents, by showing that this part of the tourist camp was in no way connected with the alleged nuisance; the original finding and decree as to this matter being conclusive. Carpenter v. State, 195 Ga. 434, 24 S.E.2d 404 (1943).    Cited in Crews v. State ex rel. Hayes, 215 Ga. 698, 113 S.E.2d 116 (1960); Whitehead v. Hasty, 235 Ga. App. 331, 219 S.E.2d 443 (1975); Yield, Inc. v. City of Atlanta, 239 Ga. 578, 238 S.E.2d 351 (1977); 660 Lindbergh, Inc. v. City of Atlanta, 492 F. Supp. 511 (N.D. Ga. 1980); Gateway Books, Inc. v. State, 247 Ga. 16, 276 S.E.2d 1 (1981).   RESEARCH REFERENCES   Am. Jur. 2d.   - 24 Am. Jur. 2d, Disorderly Houses, § 40. 58 Am. Jur. 2d, Nuisances, §§ 39-53, 300.   C.J.S.   - 66 C.J.S., Nuisances, §§ 67, 71-73, 124.   ALR.    - Disorderly character of house as affected by the number of females who reside therein or resort thereto for immoral purposes, 12 A.L.R. 529.   Validity and construction of statute or ordinances forbidding treatment in health clubs or massage salons by persons of the opposite sex, 51 A.L.R.3d 936.   Massage parlor as nuisance, 80 A.L.R.3d 1020.