Go Directly to Court

In a high-stakes showdown, Miami hopes to put some muscle on its enfeebled Nuisance Abatement Board

A month later the police came back to the board to tell of several more arrests for drug dealing or possession at the Stardust. This time the owner agreed to close seven more rooms and to make another effort to clean up the place. At the next NAB hearing, two months later, the board learned still more drug and prostitution arrests had been made at the Stardust. They were not pleased. "With all the evidence presented at the hearing, we decided we had to close the whole building," says board chairman Robert Valledor. "Because we had St. Petersburg hanging over our heads, we gave them a chance, but it was almost as if they had been ignoring us." After legal maneuverings by the owner failed, the Stardust closed its doors last month.

"Potentially there could be a lawsuit against every municipality for every property they close down," says Gihwala's attorney David Forestier. "[Bowen] was saying, 'You have the police powers to do what you did. However, if you close me completely, you have deprived me of all economic use and must compensate me.'" Gihwala claims he will lose more than $20,000 per month with the motel out of commission. Forestier, who served until about a year ago as the assistant Miami city attorney prosecuting all cases before the NAB, thinks the board acted foolishly by putting the City of Miami at risk of losing thousands of dollars to the owner of a sleazy motel. "They're gambling that a higher court is going to agree with them," Forestier says. "Come on: What politician in a city that's broke is going to want to pay to keep a business closed? I don't think the Nuisance Abatement Board will continue to exist as it once did."

The city is set to file a motion for summary judgment, arguing that the Bowen ruling isn't applicable in this situation because, among other reasons, the Miami board tried several gentler approaches before complete closure in an effort to allow the owner at least some income.

"We had to be cautious," says Jose Fernandez, Forestier's successor as assistant city attorney for the NAB. "We didn't want to close them right from the start. But within a month [after the second seven-room closure], sure enough, there were more narcotics transactions, so we said enough is enough; piecemeal closing doesn't work. We took the position the NAB has to stand for something. Let's fight. We've got the moral right, let's go for it, let's close it. They said, 'You're going to pay.' But we felt that Bowen is bad law, and we're not going to be intimidated by bad law.

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