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This most recent closure, though, took some gall on the part of the NAB members, who knew the city -- already $68 million in the red -- was going to be sued the minute the Stardust was forced to close its doors. The board shut it down anyway, in a challenge to a controversial court ruling that for the past several months has chilled the actions of nuisance abatement boards all over the state and, in the opinion of some observers, rendered the boards almost powerless.
Nuisance abatement boards are quasijudicial panels, meaning they have been empowered by the Florida legislature to make rulings and mete out punishment to owners of businesses or properties considered public nuisances because of gambling, prostitution, drug- or gang-related activities, or excessive noise. In the City of Miami, complaints may be lodged by residents or police with the City Attorney's Office, which then issues a formal complaint against the business and summons the owner to a hearing before the five-member Nuisance Abatement Board, whose members are appointed by the city commission.
To be declared a public nuisance, a business must have been the site of at least seven arrests (or three arrests with one conviction) in the course of six months. The boards can fine recalcitrant businesses ($250 or $500 for each time a case is made against it) or can temporarily close the property for up to a year. If such punishments aren't enough to force a business owner to fix the problems that have brought it to the board's attention, the NAB can seek enforcement from the courts; likewise, an NAB order can be appealed within the judicial system, as it was in the Stardust case.
A lawsuit filed in Dade circuit court on behalf of Stardust owner Harish Gihwala argues that the City of Miami, by closing his business, confiscated private property and must compensate him for lost income. It's the same argument that St. Petersburg apartment owner William Bowen used back in 1993. A Pinellas County circuit judge agreed with Bowen and ordered the City of St. Petersburg to pay Bowen for income (about $100,000, plus attorney's fees) lost during the time his building was closed because of drug transactions. A Second District Court of Appeal panel in 1996 upheld the lower court's ruling, writing that the city has the authority to close private property, but if the closure prevents the owner from earning an income from the property, the city (or any other governing entity) must pay compensation. Both the Florida Supreme Court and U.S. Supreme Court declined to hear the case, thereby allowing the ruling to become binding in the St. Petersburg area.
St. Petersburg Police Department legal adviser Sherman Smith says the city's NAB hasn't shut down any businesses since the Bowen ruling and is doing the best it can to deter nuisances by levying fines and charging attorneys' fees. Such financial penalties were approved by the legislature this year in the wake of the Bowen case (although many jurisdictions, including Miami, already had similar ordinances on their books). "This case does put a question on [nuisance abatement boards'] authority," concedes Jane Hayman, deputy general counsel for the Florida League of Cities in Tallahassee, one of the approximately 40 organizations, municipalities, police departments, and other governmental bodies across the nation that submitted briefs to the U.S. Supreme Court in support of St. Petersburg. "It's a case we're interested in because we felt it might set a trend."
It has certainly made many boards more cautious. "I know a lot of [NABs] have really retreated, since the only significant authority they had was the the threat of closure," St. Petersburg's Smith says. "The mere threat would convince most property owners to do what they had to do. The boards still have the authority to close places, but with the financial impact [of forced compensation], it's not going to be freely exercised. The opinions issued by the courts were absolutely wrong. We're really hoping that in some other part of the state we'll get a conflicting opinion."
And that is also what Miami's NAB is hoping. No matter what the decision is in Gihwala's suit, the losing side is certain to appeal to the Third District Court of Appeal. If that appellate court issues an opinion opposed to the St. Petersburg ruling, the Florida Supreme Court will have to decide between the two. "If this isn't a test case, I don't know what is," says Miami Police Lt. Sebastian Aguirre, the officer in charge of the various reverse-sting operations that resulted in numerous arrests at the Stardust.
The case against the local motel was several months in the making. Police officers reported to the city's NAB in February 1997 that they had made more than twenty arrests of prostitutes and drug dealers transacting business at the Stardust during the previous eight months. Residents of nearby Upper Eastside neighborhoods complained that the Stardust (which is less than 1000 feet from Morningside Elementary School) was a hazard to their children and their peace of mind. The NAB conferred with Gihwala and his lawyer. All decided on what the board members thought was a very lenient action: Gihwala agreed to temporarily close 5 of his 48 rooms and take steps to improve the quality of his clientele.
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.