CopyCited 6 times | Published | Supreme Court of Georgia | Jun 21, 2021 | 311 Ga. 784
...nuisance claim under the Georgia Street Gang Terrorism and
Prevention Act, OCGA §
16-15-1 et seq. (the “Gang Act”). Hernandez
claimed that he was entitled to treble damages (i.e., three times the
actual damages he sustained in the shooting) and punitive damages
under OCGA §
16-15-7 (c) because his injuries occurred as a result
of a criminal street gang creating a public nuisance on Star
Residential’s property.1 See OCGA §
16-15-7 (a) (“Any real property
which is erected, established, maintained, owned, leased, or used by
any criminal street gang for the purpose of conducting criminal gang
activity shall constitute a public nuisance and may be abated as
provid...
...Star Residential moved to
dismiss Hernandez’s nuisance claim, but the trial court denied the
motion.
The Court of Appeals affirmed the trial court’s denial of the
motion to dismiss, holding, in relevant part, that whether to hold a
property owner liable under OCGA §
16-15-7 (c) of the Gang Act for
maintaining a public nuisance is always a question for the factfinder
to decide, and not for the court....
...Thus, whether the present
action is consistent with the intent set forth in OCGA §
16-15-2 is
not a threshold issue for courts to resolve[.]”). We granted Star
Residential’s petition for a writ of certiorari to determine whether
the Court of Appeals properly construed the civil liability provision
of OCGA §
16-15-7 (c)....
...criminal gang activity may bring an action to enjoin
violations of this chapter in the same manner as provided
in Code Section
16-14-6 [Civil remedies under the Georgia
Racketeer Influenced and Corrupt Organizations Act].
Read as a whole, OCGA §
16-15-7 provides different causes of
action for different remedies with different plaintiffs and
defendants....
...A complaint must be filed by the
district attorney, solicitor-general, city attorney, or county attorney on behalf
of the public. However, a public nuisance may be abated upon filing of a
complaint by any private citizen specially injured.” OCGA §
41-2-2. While
OCGA §
16-15-7 (b) lists many of the same entities referenced in OCGA § 41-
2-2 as proper plaintiffs to pursue an action for abatement under the Gang Act,
OCGA §
16-15-7 (b) also contains some significant differences from OCGA § 41-
2-2. Specifically, OCGA §
16-15-7 (b) adds the “prosecuting attorney of a
municipal court or city” to the list of potential plaintiffs who may file a
complaint to abate a nuisance under the Gang Act, but deletes from that list
the “city attorney” referenced in OCGA §
41-2-2. Furthermore, unlike OCGA §
41-2-2, OCGA §
16-15-7 (b) does not contain any reference to specially injured
individuals being allowed to pursue an action for abatement.
7
attorney.” This demonstrates that the General Assembly intended
that private...
...Hernandez cannot pursue any form of damages or abatement in
connection with a public nuisance created by criminal gang activity.
Separate from the nuisance abatement action created by
subsections (a) and (b) for certain public officials, the next cause of
action created by OCGA §
16-15-7 is defined in subsection (c)....
...ed by Hernandez,
because the Gang Act does not establish a cause of action for
damages under subsection (c) arising from a public nuisance created
abatement remedy referenced in subsections (a) and (b) is underscored by the
final section of OCGA §
16-15-7....
...officials
provided in subsections (a) and (b), nor does it have anything to do with
damages as provided in subsection (c). The terms of subsection (d) cannot be
rationally grafted onto the terms of subsections (a) to (c). The plain language
of OCGA §
16-15-7 makes clear that the statute provides for several separate
remedies in its separate subsections.
12
by gang activity as defined under subsections (a) and (b), the Court
of Appeals erred in concluding otherwise....
...Fielden,
280 Ga. 444, 448 (629 SE2d 252) (2006) (“[U]nder our system of
separation of powers this Court does not have the authority to
rewrite statutes.”).
2. The Court of Appeals also erred in its interpretation of the
following language of OCGA §
16-15-7 (c):
No judgment shall be awarded unless the finder of fact
determines that the action is consistent with the intent of
the General Assembly as set forth in Code Section 16-15-
2.
(Emphasis supplied).
The Court...
... of action is submitted to the factfinder for decision, that factfinder
must be instructed on the legislative intent codified in OCGA § 16-
15-2 in order to determine if the circumstances of the case warrant
the imposition of liability under OCGA §
16-15-7 (c).5 The statute
simply does not say that a factfinder must determine the meaning
of subsection (c) in the first instance, which is a role reserved for the
courts.6
Judgment reversed. All the Justices concur.
5 In this regard, OCGA §
16-15-2 acts as a limit on the scope of conduct
for which defendants may be held liable for damages under OCGA §
16-15-7
(c)....
