§ 18-9-309.5 — Civil remedies - injunctions - forfeiture

Colorado § 18-9-309.5

• Jurisdiction: Colorado
• Title 18: Criminal
• Art.: Offenses Against Public Peace,

Text

(1) Whenever it
appears that any person is engaged in or about to engage in any act which
constitutes or will constitute a violation of section 18-9-309 (2) or (3), the attorney
general, the district attorney, a representative of a telecommunications provider, or
any person or company harmed by such alleged violation may initiate a civil
proceeding in a district court to enjoin such violation and may petition the court to
issue an order for the discontinuance of telecommunications service, used in
violation of section 18-9-309 (2) or (3).

(2) An action under this section shall be brought in the county in which the
subject matter of the action, or some part thereof, is located or found and shall be
commenced by the filing of a complaint, which shall be verified by affidavit.

(3) If it is shown to the satisfaction of the court, either by verified complaint
or affidavit, that a person is engaged in or about to engage in any act which
constitutes a violation of section 18-9-309 (2) or (3), the court shall issue a
temporary restraining order to abate and prevent the continuance or recurrence of
such act. The court shall direct the sheriff to seize and retain until further order of
the court any device which is being used in violation of section 18-9-309 (2) or (3).
While the temporary restraining order remains in effect, all property seized
pursuant to the order of the court shall remain in the custody of the court. Within
fourteen days following the filing of a motion of any person adversely affected by a
temporary restraining order, the court shall conduct a hearing and determine
whether such temporary restraining order shall be continued pending final
determination of the action. Until such hearing takes place, the temporary
restraining order shall remain in full force and effect.

(4) The court may issue a permanent injunction to restrain, abate, or prevent
the continuance or recurrence of the violation of section 18-9-309 (2) or (3). The
court may grant declaratory relief, mandatory orders, or any other relief deemed
necessary to accomplish the purposes of the injunction. The court may retain
jurisdiction of the case for the purpose of enforcing its orders.

(5) If it is shown to the satisfaction of the court, either by verified complaint
or affidavit, that a person is engaged in or is about to engage in any act which
constitutes a violation of section 18-9-309 (2) or (3), the court may issue an order
which shall be promptly served upon the person in whose name the illegal
telecommunications equipment is listed, requiring the party, within a reasonable
time to be fixed by the court but not exceeding forty-eight hours from the time of
service of the petition on said party, to show cause before the judge why
telecommunications service should not promptly be discontinued. At the hearing
the burden of proof shall be on the complainant.

(6) Upon a finding by the court that the illegal telecommunications
equipment is being used or has been used in violation of section 18-9-309 (2) or (3),
the court shall issue an order requiring the telephone company which is rendering
service over the device to disconnect such service. Upon receipt of such order,
which shall be served upon an officer of the telephone company by the sheriff of
the county in which the illegal telecommunications equipment is installed or by a
duly authorized deputy, the telephone company shall proceed promptly to
disconnect and remove such device and discontinue all telecommunications service
until further order of the court.

(7) The telecommunications provider who petitions the court for the removal
of any illegal telecommunications equipment under this section shall be a
necessary party to any proceeding or action arising out of or under section 18-9-309 (2) or (3).

(8) No telephone company shall be liable for any damages, penalty, or
forfeiture, whether civil or criminal, for any act performed in good faith and in
compliance with any order issued by the court.

(9) Property seized pursuant to the direction of the court which the court has
determined to have been used in violation of section 18-9-309 (2) or (3) shall be
forfeited to the state. Prior to the disposition of the seized property, a petition for
the remission or mitigation of forfeiture may be filed. The court may remit or
mitigate the forfeiture upon terms and conditions as the court deems reasonable if
it finds that such forfeiture was incurred without willful negligence or without any
intention on the petitioner to violate the law or finds the existence of such
mitigating circumstances as to justify the remission or the mitigation of the
forfeiture. In determining whether to remit or mitigate forfeiture, the court shall
consider losses which may have been suffered by victims as the result of the use of
the forfeited property.

Legislative History

Source: L. 90: Entire section added, p. 995, � 2, effective April 3. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 873, � 131, effective July 1.