§ 125.069.Use of Place; Evidence

The evidentiary rule for a place-based public nuisance, with one exception.

Proof that gang activity by a member is frequently committed at a place, or proof that a place is frequently used for engaging in gang activity by a member, is prima facie evidence that the proprietor knowingly permitted the act.

The presumption solves the same problem as its counterpart in the common nuisance subchapter. Knowledge is internal, and a proprietor will rarely admit it; frequency is observable.

Two routes to the presumption are given, and they differ. Gang activity frequently committed at a place is one; the place frequently used for gang activity is the other — which reaches a location serving as a meeting point without offenses occurring there.

"Prima facie evidence" shifts the burden of production, not the burden of proof. A proprietor may rebut it, and the ultimate burden stays with the plaintiff.

The exception is precise: unless the act constitutes conspiring to commit gang activity.

The reason is that a conspiracy is invisible. A proprietor can see a fight or a drug sale; they cannot see an agreement being reached at a table, and the presumption would attribute knowledge nobody could have.

The presumption runs against the proprietor, matching the suit provision’s second category of defendant — the person who owns or is responsible for maintaining the place.

Note what this subchapter does not carry. The common nuisance subchapter protects an owner who called for law enforcement assistance and admits reputation evidence; neither rule appears here.