Minnesota Public Nuisance Law

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. If you own or manage a building in Minnesota, that process is the one that can close your property, so it is described in detail below.

The law also includes special provisions for particular types of public nuisance, including gang activity, 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?

Under Minn. Stat. § 617.81, subd. 2, how many incidents it takes depends on the conduct. One or more separate behavioral incidents establish a public nuisance for prostitution or prostitution-related activity, unlawful controlled-substance activity, certain unlawful alcohol sales in a building the owner or tenant does not occupy, and unlawful use or possession of a dangerous weapon. Two or more are required for gambling, maintaining a public nuisance under Minn. Stat. § 609.74, clause (1) or (3), permitting a public nuisance under § 609.745, unlicensed alcohol sales outside that single-incident case, and a commercial enterprise’s violation of business licensing rules that prohibit maintaining or controlling a public nuisance. Either way, the incidents must be committed within the building within the previous 12 months. This definition governs the building abatement statutes, Minn. Stat. §§ 617.80 to 617.87, and not the separate misdemeanor offense described later on this page.

One incident of any of the following activities, committed within the building during the previous 12 months, is sufficient to constitute a public nuisance under Minn. Stat. § 617.81, subd. 2(a):

• prostitution or prostitution-related activity committed within the building
• unlawful sale, possession, storage, delivery, giving, manufacture, cultivation, or use of controlled substances committed within the building
• unlawful use or possession of a dangerous weapon2 committed within the building
• unlawful sales or gifts of alcoholic beverages in violation of Minn. Stat. § 340A.401 or § 340A.503, subdivision 2, clause (1), if multiple violations occur during the same behavioral incident and the building is not occupied by the owner or a tenant, lessee, or occupant

The word “unlawful” in the controlled substance item now carries real weight. The controlled substance item reaches only the unlawful sale, possession, storage, delivery, giving, manufacture, cultivation, or use of controlled substances. Minn. Stat. § 617.81, subd. 2(a). Cannabis is a Schedule III controlled substance under Minn. Stat. § 152.02, subd. 4, and an adult 21 or older who stays within the possession, home-cultivation, and location limits of Minn. Stat. § 342.09 is acting lawfully. Cannabis activity outside those limits still counts, as does unlawful activity involving any other controlled substance. Minnesota also created a separate cannabis nuisance action: use of adult-use cannabis flower that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property is a nuisance, and a person who is injuriously affected or whose personal enjoyment is lessened may sue for injunctive relief and the greater of actual damages or a $250 civil penalty, with a $500 civil penalty where a landlord or association fails to enforce its own lease, governing document, or policy related to the use of adult-use cannabis flower. Minn. Stat. § 342.82.

Alternatively, two or more separate behavioral incidents involving any one or a combination of the following activities, committed within the building within the previous 12 months, constitute a public nuisance:3

• gambling or gambling-related activity committed within the building
• maintaining or permitting a condition that unreasonably annoys, injures, or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public (Minn. Stat. § 617.81, subd. 2(a)(iii); Minn. Stat. § 609.74, clause (1))
• maintaining a public nuisance by any other act or omission declared by law to be a public nuisance and for which no sentence is specifically provided (Minn. Stat. § 617.81, subd. 2(a)(iii); Minn. Stat. § 609.74, clause (3))
• permitting a public nuisance in violation of Minn. Stat. § 609.745, which reaches a person having control of real property who permits it to be used to maintain a public nuisance or lets the property knowing it will be so used
• unlicensed sales of alcoholic beverages committed within the building in violation of Minn. Stat. § 340A.401 (Minn. Stat. § 617.81, subd. 2(a)(vi))
• unlawful sales or gifts of alcoholic beverages by an unlicensed person to a person under 21, in violation of Minn. Stat. § 340A.503, subdivision 2, clause (1), except that a single behavioral incident is enough when multiple such violations occur during that incident and the building is not occupied by the owner or a tenant, lessee, or occupant (Minn. Stat. § 617.81, subd. 2(a)(vii)-(viii))
• the violation by a commercial enterprise of local or state business licensing regulations, ordinances, or statutes prohibiting the maintenance of a public nuisance as defined in Minn. Stat. § 609.74 or the control of a public nuisance as defined in Minn. Stat. § 609.745

A further limit governs the two-incident branch. If the building contains more than one rental unit, the two or more behavioral incidents must consist of conduct anywhere in the building by the same tenant, lessee, or occupant, or by persons acting in conjunction with or under that person’s control; conduct by any person inside a rental unit while that same tenant, lessee, or occupant occupies it, or inside two or more units occupied by that person; or conduct by the owner or by persons acting in conjunction with or under the owner’s control.5 Unrelated incidents by different tenants in different units do not add up.

Where within a building must the nuisance activity occur?

Nuisance activity counts as occurring within the building when it takes place in any portion of the structure or on the land surrounding it. If the property is a multiunit dwelling, a hotel or motel, or a commercial or office building, the statutes define “building” as only the portion, inside or outside the structure, in which the nuisance is maintained or permitted, such as a dwelling unit, room, suite of rooms, office, common area, storage area, garage, or parking area. Minn. Stat. § 617.80, subd. 2.1 The civil action and any abatement order reach that portion rather than the whole structure, and the covered portion is not limited to a rental unit: a nuisance maintained in a hallway, laundry room, storage locker, garage, or parking area is itself within scope.

Where two or more incidents are required and the building contains more than one rental unit, Minn. Stat. § 617.81, subd. 2(b) decides which incidents can be added together. Conduct anywhere in the building by the same tenant, lessee, or occupant counts, as does conduct by persons acting in conjunction with or under that person’s control. Conduct by any person inside a rental unit also counts while that same tenant, lessee, or occupant occupies it, whether or not that person is a guest. Conduct by the building’s owner, or by persons acting in conjunction with or under the owner’s control, counts anywhere in the building, and carries no unit-level limit. For the single-incident items, one qualifying incident committed within the building during the previous 12 months is enough, whoever committed it. Minn. Stat. § 617.81, subd. 2(a).

Who may bring an action in court to stop a nuisance activity from continuing?

The civil abatement action in court to stop nuisance activity under sections 617.80 to 617.87 is brought by a prosecuting attorney, who serves the required written notice and may then petition the district court. Minn. Stat. § 617.81, subdivision 4; Minn. Stat. § 617.82. A “prosecuting attorney” means the attorney general, a county attorney, a city attorney, or the attorney serving the jurisdiction where the nuisance is located.6 The prosecuting attorney may by verified petition seek a temporary injunction in the district court of the county in which the alleged public nuisance exists, provided that at least 30 days have expired since service of the notice required under Minn. Stat. § 617.81, subdivision 4. Minn. Stat. § 617.82.

That allocation governs this abatement chapter only. It does not close the courthouse to a private party. The building owner may file a motion inside the abatement case to cancel the offending tenant’s lease and recover the premises, Minn. Stat. § 617.85, and a person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance may sue separately under Minn. Stat. § 561.01, under which the nuisance may be enjoined or abated and damages recovered. A private person may reach a public nuisance on a showing of “an injury special or peculiar to himself which is not common to the general public.” Hill v. Stokely-Van Camp, Inc., 260 Minn. 315, 321, 109 N.W.2d 749, 753 (1961); accord North Star Legal Foundation v. Honeywell Project, 355 N.W.2d 186, 189 (Minn. Ct. App. 1984) (“Private persons may not bring a cause of action for public nuisance unless they allege some special or peculiar injury.”).

The nuisance must be one described in Minn. Stat. § 617.81, subd. 2. A prosecuting attorney who has cause to believe that such a nuisance exists within the jurisdiction the attorney serves may seek that temporary injunction only after serving the written notice required by section 617.81, subdivision 4, and waiting at least 30 days. Minn. Stat. § 617.82, paragraph (c). Before filing the action, the prosecuting attorney must serve the required written notice by personal service or certified mail, return receipt requested, on all owners4 and interested parties known to the prosecuting attorney.7 That sequence is not a formality: to obtain a temporary injunction under section 617.82, or a permanent injunction or order of abatement under section 617.83, the provisions of sections 617.80 to 617.87 must be followed. Minn. Stat. § 617.81, subd. 1. The written notice must:

• state that a nuisance as defined in subdivision 2 is maintained or permitted in the building, and specify the kind or kinds of nuisance being maintained or permitted;
• summarize the evidence that a nuisance is maintained or permitted in the building, including the date or dates on which nuisance-related activity or activities are alleged to have occurred;
• inform the recipient that failure to abate the conduct constituting the nuisance or to otherwise resolve the matter with the prosecuting attorney within 30 days of service of the notice may result in the filing of a complaint for relief in district court that could, among other remedies, result in enjoining use of the building for any purpose for one year or, in the case of a tenant, lessee, or occupant, cancellation of the lease; and
• inform the owner of the options available under Minn. Stat. § 617.85, which lets the owner file a motion to cancel the offending tenant’s lease and recover the premises in the court that has jurisdiction over the abatement proceeding, and which bars an order abating the premises when the court cancels that lease, grants restitution of that portion of the premises, and finds the tenant committed the nuisance acts and was not acting in conjunction with or under the owner’s control.8

How can you avoid the filing of a nuisance action?

If the recipient abates the conduct constituting the nuisance within 30 days of service of the notice, or enters into an agreed abatement plan within those 30 days and complies with the agreement within the stipulated time period, the prosecuting attorney may not file a nuisance action on that property for the nuisance activity described in the notice. If the recipient fails to comply with the agreed plan, the prosecuting attorney may file a complaint for relief in district court.9 The protection is scoped: it reaches only the specified property and only the nuisance activity described in the notice.

What procedures must the prosecuting attorney follow when filing a nuisance action?

The prosecuting attorney may first file a verified petition seeking a temporary injunction to abate the nuisance, and no petition may be brought until at least 30 days have expired since service of the notice. No temporary injunction may issue without prior show cause notice of hearing to the respondents named in the petition and an opportunity for them to be heard. Upon proof of a nuisance described in Minn. Stat. § 617.81, subd. 2, the court must issue a temporary injunction, and any temporary injunction issued must describe the conduct to be enjoined. Minn. Stat. § 617.82. The hearing, not the court’s discretion, is where your defense has to land.

The same proof compels permanent relief. Upon proof of a nuisance described in section 617.81, subdivision 2, meaning each element of the conduct constituting the nuisance is established by clear and convincing evidence,10 the court shall issue a permanent injunction and enter an order of abatement, “except as otherwise provided by section 617.85.” Minn. Stat. § 617.83. That exception is the lease-cancellation path: the court must not order abatement of the premises where it cancels the offending tenant’s lease or tenancy, grants restitution of that portion of the premises to the owner, and further finds the nuisance acts were committed by that tenant and not in conjunction with or under the control of the owner. Minn. Stat. § 617.85. The permanent injunction must describe the conduct permanently enjoined. Minn. Stat. § 617.83.

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 one year, except as otherwise provided in section 617.84 or 617.85, unless sooner released pursuant to section 617.87. Minn. Stat. § 617.83. A copy of the abatement order must also be posted in a conspicuous place on the building or affected portion, and before the order is enforced the owner must be served with it, along with notice of the right to file a motion under section 617.85, in the same manner a summons is served under the Rules of Civil Procedure. Minn. Stat. § 617.83.

In addition to closing the building, the abatement order may direct the removal of movable property used in conducting or maintaining the nuisance and direct the sale of property belonging to a respondent who was notified or appeared, with that sale conducted under the chapter 550 provisions on the sale of property on execution. “Movable property” means furniture and fixtures. Minn. Stat. § 617.80, subd. 3.

Closing is not the only outcome. A person the court appoints as receiver of the building may use the building, or a portion of it, that is subject to the abatement order in a manner the court approves. Costs of the sale on execution, moving and storage fees, and any receivership are paid out of the sale receipts or the rents collected during the receivership. The balance from the sale of the movable property is paid to the owner of the property, and the balance from any rents collected during the receivership is paid to the treasury of the unit of government that brought the abatement action.11

How can an owner avoid an abatement order?

The law provides three ways for building owners to head off an abatement order or to undo one already entered.

Abatement

You may enter into an agreed abatement plan with the prosecuting attorney, and you may also abate the conduct constituting the nuisance independently, without entering into a plan at all. The statute states the two paths in the alternative. The conduct must be abated, or the plan entered into, within 30 days of service of the prosecuting attorney’s notice, and a plan protects you only so long as you comply with it within the stipulated time period. Minn. Stat. § 617.82.12 That notice is the written notice described in Minn. Stat. § 617.81, subd. 4.

Motion to cancel lease

Second, if the nuisance activity was conducted by a commercial or residential tenant or lessee, you may file a motion to cancel that tenant’s lease, or otherwise secure restitution of the premises, in the court that has jurisdiction over the abatement proceeding.13 You may also assign to the prosecuting attorney the right to file that motion. Under Minn. Stat. § 617.85, maintaining or conducting a nuisance is an additional ground for cancellation on top of the grounds provided in sections 504B.281 to 504B.371, and service of the motion must satisfy the Rules of Civil Procedure and those same sections.

Upon a finding that the tenant or lessee has maintained or conducted a nuisance in any portion of the building, the court shall order cancellation of the lease or tenancy and grant restitution of the premises to the owner. The court must not order abatement of the premises if it both cancels the lease or tenancy and grants restitution of that portion of the premises to the owner, and further finds that the nuisance acts were committed by the tenant or lessee whose lease or tenancy was canceled and that the tenant was not committing those acts in conjunction with or under the control of the owner. Minn. Stat. § 617.85.

For more information on evicting a tenant for illegal activity, see Evicting Tenants for Drugs, Prostitution, or Other Illegal Activity.

Bond

Third, after an order of abatement has been entered, the court may release the building, or the portion of it subject to the order, if the owner appears and pays the costs of the action, files a bond in an amount determined by the court but not to exceed $50,000, conditioned that the owner will immediately abate the nuisance for a period of one year, and the court is satisfied of the owner’s good faith. Release is discretionary, not automatic on posting the bond. For each day during the term of the bond that the owner knowingly permits any part of the premises to be used for an activity that was the basis of the abatement order, the owner forfeits $1,000 under the bond, and that forfeiture does not relieve the owner from prosecution for contempt.14

What is the penalty for violating an injunction or abatement order?

Whoever violates a temporary injunction, permanent injunction, or abatement order granted under sections 617.80 to 617.87 may be adjudged in contempt of court.15 The statute is permissive rather than mandatory: it authorizes the court to find contempt in its discretion, and contempt is available in addition to whatever other relief the abatement proceeding produces.

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, by an act or a failure to perform a legal duty, intentionally does any of the following:16

• 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.

Both elements in that opening line do work. The conduct must be intentional, and it can consist of a failure to perform a legal duty rather than an affirmative act, so an owner who does nothing about a condition he has a legal duty to address is within the statute’s reach. The catch-all in the third item is also narrower than it looks: it reaches conduct declared a public nuisance by another law only where that other law provides no sentence of its own.

The first item has a judicial gloss worth knowing. To sustain a conviction under Minn. Stat. § 609.74, clause (1), for endangering the safety of the public, the state “must prove through testimony and evidence that the public was in fact endangered.” State v. Otterstad, 734 N.W.2d 642, 647 (Minn. 2007). Endangerment cannot be inferred from the nature of the conduct or from a defendant’s intent to draw attention.

Minn. Stat. § 609.74 defines the offense and grades it a misdemeanor, but it says nothing about who prosecutes. That allocation comes from Minn. Stat. § 484.87, subd. 3, which, except as subdivision 2 and other law provide, assigns misdemeanor violations of state law to the attorney of the statutory or home rule charter city where the violation is alleged to have occurred when the city’s population exceeds 600, and otherwise to the county attorney of the county in which the alleged violation occurred. A city of 600 or less may give the duty to the county attorney by council resolution with county board approval, and a city may contract with the county board and county attorney for prosecution services. Separate allocation rules apply in Hennepin and Ramsey Counties, where the attorney of the municipality in which the violation is alleged to have occurred has charge of prosecuting state-law violations, Minn. Stat. § 484.87, subd. 2, and in Anoka, Carver, Dakota, Scott, and Washington Counties. Under Minn. Stat. § 8.01, at a county attorney’s request the attorney general appears in the criminal cases the attorney general deems proper, and prosecutes a person charged with an indictable offense on the governor’s written request.

In order to convict, the prosecuting attorney must prove every element of the offense, including intent, beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970); Minn. Stat. § 611.02.17 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: a civil order of abatement under sections 617.80 to 617.87 rests on proof of each of the elements of the conduct constituting the nuisance by clear and convincing evidence, rather than proof beyond a reasonable doubt. Minn. Stat. § 617.81, subd. 2(c).

Whether criminal charges are appropriate in a particular case is within the discretion of the prosecuting authority. As the Minnesota Supreme Court put it, “a prosecutor has broad discretion in the exercise of the charging function and ordinarily, under the separation-of-powers doctrine, a court should not interfere with the prosecutor’s exercise of that discretion.” State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996) (order). That discretion is broad but not unlimited, because it “is not unbounded, infallible, or immune to appellate review.” A charging decision that rests on a rational basis does not violate equal protection, and a person who claims he was charged when a similarly situated person was not bears the burden of establishing, by a preponderance of the evidence, that the decision was invidious. In re Welfare of B.A.H., 845 N.W.2d 158, 165-66 (Minn. 2014). Mere disagreement by a trial court with the prosecutor’s exercise of the charging discretion does not constitute “special circumstances,” and the inherent judicial authority is to be “relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.” State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996) (order).

Gang Nuisance Activity

In 2007, Minnesota enacted a separate law addressing criminal gangs and gang activity as public nuisances. Minn. Stat. §§ 617.91 to 617.97. The law establishes a process separate from the general public nuisance abatement process described above as a means to remedy the problem. The separation is not total. Where the nuisance involves the use of a place, the owner or the person responsible for maintaining that place on the owner’s behalf may be made a defendant pursuant to the procedures applicable to owners under sections 617.81 to 617.87. Minn. Stat. § 617.93. The court’s order may also include cancellation of any applicable lease pursuant to the procedures in Minn. Stat. § 617.85. Minn. Stat. § 617.94, paragraph (c).

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 activities
• the continuous or regular use of a place by a lessee or tenant to engage in or allow gang activity by a criminal gang, knowingly permitted by the owner or by a person who is responsible for maintaining the place on behalf of the owner18

The law defines “continuously or regularly” to mean at least three separate incidents or occurrences in a period of not more than 12 months,19 and “criminal gang” takes the meaning given in Minn. Stat. § 609.229.

“Gang activity” means committing one or more of the offenses listed in Minn. Stat. § 609.11, subd. 9, which covers violent crimes such as murder, assault, kidnapping, robbery, carjacking, and criminal sexual conduct along with burglary, arson, escape from custody, witness tampering, felony controlled substance crimes, and unlawful possession of a firearm or ammunition,20 plus criminal damage to property in the first or second degree, trespass, disorderly conduct, and unlawful possession of a firearm by a minor.21 Subdivision 9 is a sentencing provision, and the gang activity definition borrows its list of offenses rather than the mandatory minimum sentences that section 609.11 attaches to them. Minn. Stat. § 609.11, subd. 9.

A “place” under the gang nuisance law includes a structure suitable for human shelter or a commercial structure maintained for business activities, a portion of that structure, and the land surrounding it that is under the control of the person who owns or is responsible for maintaining the structure, as well as a parcel of land with no structure on it that is under such a person’s control. If the property is a multiunit dwelling, a hotel or motel, or a commercial or office building, the statute narrows “place” to only the portion in which the nuisance is maintained or permitted, such as a dwelling unit, room, suite of rooms, office, common area, storage area, garage, or parking area.22

Who may bring an action to prevent or abate gang activity that is a public nuisance?

Like the more general public nuisance statute, a county or city attorney, or the attorney general, may sue to enjoin a public nuisance under sections 617.91 to 617.97.

A person may be made a defendant if that person continuously or regularly engages in gang activity as a member of a criminal gang, and where the nuisance involves the use of a place, the owner or the person responsible for maintaining that place on the owner’s behalf may also be made a defendant, under the procedures applicable to owners in sections 617.81 to 617.87.23

The owner’s exposure comes with a burden shift. Proof that gang activity by a member of a criminal gang is continuously or regularly committed at a place, or that a place is continuously or regularly used for gang activity by a member of a criminal gang, is prima facie evidence that the person who owns or is responsible for maintaining the place knowingly permitted the act.24 An owner or person responsible for maintaining the place can defeat that presumption by proving, by a preponderance of the evidence, that the person made reasonable efforts to prevent the gang activity from occurring, which may include cancelling or attempting to cancel the lease.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 public nuisance, the court may enter a temporary or permanent order enjoining a defendant in the suit from engaging in the gang activities and imposing other reasonable requirements to prevent the defendant from engaging in future gang activities. A “reasonable requirement” means an injunctive limitation on gang behavior and social interaction that reduces the opportunity for gang activity, and in imposing reasonable requirements the court must balance state interests in public safety against constitutional freedoms.27

If the court finds, by a preponderance of the evidence, that a place is continuously or regularly used in a manner that constitutes a public nuisance, the court may also include in its order reasonable requirements to prevent the use of the place for gang activity, which may include cancellation of any applicable lease following the procedures in Minn. Stat. § 617.85 as to a tenant or lessee who has maintained or conducted the public nuisance.28

A person who violates a temporary or permanent injunctive order issued under Minn. Stat. § 617.94 is subject to a fine for civil contempt of not less than $1,000 nor more than $10,000, and a person who knowingly violates such an order is guilty of a misdemeanor. In an action brought under sections 617.91 to 617.97, the court may also award a prevailing party reasonable attorney fees and costs.29

Graffiti

Minnesota statute does not define graffiti as a nuisance, but 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. Statute does define graffiti,30 and it provides a civil remedy. Minn. Stat. § 617.90, subd. 2.

“Graffiti” means unauthorized markings of paint, dye, or other similar substance placed on real or personal property such as buildings, fences, transportation equipment, or other structures, or the unauthorized etching or scratching of the surfaces of such property, any of which markings, scratchings, or etchings are visible from premises open to the public. Etching and scratching count, and damage that is out of public view falls outside the cause of action.

The owner of public or private property on which graffiti has been placed may bring an action for the damage.31 Unlike the state abatement statutes described above, which run through a prosecuting attorney, this provision gives the action to the property owner, and the involvement of a city or county attorney or the attorney general is not required.

If successful, you may recover three times the cost of restoring the property, or the court may order the defendant to perform the work of restoring the property. The court may also award attorney fees and costs to a prevailing plaintiff. If a minor placed the graffiti, damages may also be recovered from that minor’s parent, though the parent’s liability is limited to the amount specified in Minn. Stat. § 540.18, which makes a parent or guardian jointly and severally liable with a minor under 18 living with them who willfully or maliciously causes damage “to an amount not exceeding $1,000,” with recovery limited to special damages. The minor remains personally liable for the full amount.

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This post was originally adapted from the Minnesota House of Representatives Research Department’s Information Brief, Minnesota’s Public and Private Nuisance Laws, written by legislative analyst Matt Gehring, and has since been rewritten and verified against the current text of the governing statutes and case law.

This post is also part of a series of posts on Minnesota’s Public and Private Nuisance Laws.

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1 “Building” means a structure suitable for human shelter, a commercial structure maintained for business activities that involve human occupation, any portion of that structure, or the land surrounding the structure. If the property is a multiunit dwelling, a hotel or motel, or a commercial or office building, the term reaches only the portion of the building, within or outside the structure, in which a nuisance is maintained or permitted, such as a dwelling unit, room, suite of rooms, office, common area, storage area, garage, or parking area. Minn. Stat. § 617.80, subd. 2.

2 “Dangerous weapon” means 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. The same subdivision defines “flammable liquid” as a liquid with a flash point below 100 degrees Fahrenheit and a vapor pressure not exceeding 40 pounds per square inch (absolute) at 100 degrees Fahrenheit, excluding intoxicating liquor, and “combustible liquid” as a liquid with a flash point at or above 100 degrees Fahrenheit. “Great bodily harm,” which the definition turns on three times, means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm. Minn. Stat. § 609.02, subd. 8.

3 Minn. Stat. § 617.81, subd. 2. The condition described in the second bullet and the catchall in the third are defined by Minn. Stat. § 609.74, clauses (1) and (3), which section 617.81, subdivision 2(a)(iii), incorporates.

4 “Owner” means a person having legal title to the premises, a mortgagee or vendee in possession, a trustee in bankruptcy, a receiver, or any other person having legal ownership or control of the premises. Minn. Stat. § 617.80, subd. 7.

5 Minn. Stat. § 617.81, subd. 2(b).

6 Minn. Stat. § 617.80, subd. 9.

7 “Interested party” means any known lessee or tenant of a building or affected portion of a building, any known agent of an owner, lessee, or tenant, or any other person who maintains or permits a nuisance and is known to the city attorney, county attorney, or attorney general. Minn. Stat. § 617.80, subd. 8. “Occupant” means a person who occupies or resides in a building or rental unit with the permission of the owner or a tenant or lessee. Minn. Stat. § 617.80, subd. 7a.

8 Before seeking abatement, the prosecuting attorney must serve this notice, and the notice must tell the recipient that failure to abate the conduct or otherwise resolve the matter with the prosecuting attorney within 30 days of service may result in the filing of a complaint for relief in district court. Minn. Stat. § 617.81, subd. 4. No petition may be brought until at least 30 days have expired since service of that notice, so the owner has a 30-day window to resolve the matter before any action is filed. Minn. Stat. § 617.82.

9 Minn. Stat. § 617.82.

10 “Clear and convincing evidence” requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt, and is met when the truth of the fact to be proven is “highly probable.” Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978); Gassler v. State, 787 N.W.2d 575, 583 (Minn. 2010). To prove a claim by that standard, a party’s evidence “should be unequivocal, intrinsically probable and credible, and free from frailties.” Gassler, 787 N.W.2d at 583. Under Minn. Stat. § 617.81, subd. 2(c), each element of the conduct constituting the nuisance must be established by that standard.

11 Minn. Stat. § 617.83 (one-year closing, service, and posting); Minn. Stat. § 617.84 (movable property, execution sale, receivership, and disposition of proceeds); Minn. Stat. § 617.80, subd. 3 (defining “movable property” as furniture and fixtures).

12 Minn. Stat. § 617.82.

13 Minn. Stat. § 617.85. It is no defense to a motion under this section by the owner or the prosecuting attorney that the lease or other agreement controlling the tenancy or leasehold does not provide for eviction or cancellation of the lease upon the ground provided in this section.

14 Minn. Stat. § 617.87.

15 Minn. Stat. § 617.86.

16 Minn. Stat. § 609.74. The offense carries up to 90 days in jail, a fine of up to $1,000, or both. Minn. Stat. § 609.03(3). In addition to the activities described in this publication, there are many other provisions declaring certain activities to be a public nuisance, appearing in various chapters of statute based upon the general subject matter of the activity at issue. Such a provision may be enforced using the misdemeanor criminal penalty described here where that other law provides no sentence of its own, because section 609.74, clause (3), reaches “any other act or omission declared by law to be a public nuisance and for which no sentence is specifically provided.”

17 In a criminal case the defendant “is presumed innocent until the contrary is proved and, in case of a reasonable doubt, is entitled to acquittal.” Minn. Stat. § 611.02. Minnesota’s recognized articulation of that burden is that “[p]roof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs,” that “[a] reasonable doubt is a doubt based upon reason and common sense,” and that it “does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.” State v. Smith, 674 N.W.2d 398 (Minn. 2004). Smith adds that the standard does not require the case to be proved to a mathematical certainty, and that trial courts “are not bound to use any particular form of words to define the government’s burden of proof as long as, taken as a whole, the concept of reasonable doubt is correctly conveyed to the jury.” Smith remains binding. State v. Thao, 875 N.W.2d 834 (Minn. 2016). See also In re Winship, 397 U.S. 358 (1970) (due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”).

18 Minn. Stat. § 617.92.

19 Minn. Stat. § 617.91, subd. 2.

20 The listed crimes are: “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; carjacking in the first, second, or third degree; first-degree or aggravated first-degree witness tampering; criminal sexual conduct under the circumstances described in sections 609.342, subdivision 1, and subdivision 1a, clauses (a) to (f) and (i); 609.343, subdivision 1, and subdivision 1a, clauses (a) to (f) and (i); and 609.344, subdivision 1, clauses (a) to (c) and (d), under the conditions described in section 609.341, subdivision 24, clause (2), item (i), (ii), or (iii), and subdivision 1a, clauses (a) to (e), (h), and (i), under the conditions described in section 609.341, subdivision 24, clause (2), item (i), (ii), or (iii); escape from custody; arson in the first, second, or third degree; drive-by shooting under section 609.66, subdivision 1e; harassment under section 609.749, subdivision 3, paragraph (a), clause (3); possession or other unlawful use of a firearm or ammunition in violation of section 609.165, subdivision 1b, or 624.713, subdivision 1, clause (2), 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. § 617.91, subd. 5.

23 Minn. Stat. § 617.93.

24 Minn. Stat. § 617.97, paragraph (a).

25 Minn. Stat. § 617.97, paragraph (b).

26 Minn. Stat. § 617.94, paragraph (a), which conditions the order on the court’s finding “by a preponderance of the evidence.”

27 Minn. Stat. § 617.94, paragraphs (a) and (b).

28 Minn. Stat. § 617.94, paragraph (c).

29 Minn. Stat. § 617.95 (civil contempt fine and misdemeanor); Minn. Stat. § 617.96 (attorney fees and costs).

30 Minn. Stat. § 617.90, subd. 1.

31 Minn. Stat. § 617.90, subd. 2.

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