But Gihwala insists the City of Miami went too far recently when it blamed his motel for that illegal activity and closed it down. Now, he says, the city must pay him the money he lost. "I was born and raised in South Africa," notes the 38-year-old Gihwala. "I have been expropriated by the government there. I have been through this before. I have done nothing illegal. For the government to expropriate me here, it will have to change the U.S. Constitution."
So far, Florida courts have sided with Gihwala. On April 13 Dade Circuit Court Judge Amy Dean issued a summary judgment holding the city liable for profits lost by Gihwala owing to the closure. But the case continues. Cash-strapped Miami appears ready to spend more money to appeal. "Morningside Elementary School sits less than 1000 feet away from this place," says Assistant City Attorney Jose Fernandez. "There are moral issues here, and people have to feel they have some kind of control over their neighborhoods." Also at stake throughout South Florida is the future of Nuisance Abatement Boards, the tool citizens use to clean up their neighborhoods.
Miami's Nuisance Abatement Board (NAB), a five-member appointed body, closed the Stardust, located in the heart of the city's most publicly sinful strip, from September 1997 to this past February. Responding to complaints from neighbors and police, the board compiled a long list of narcotics and prostitution-related arrests at the motel, 36 during one six-month stretch.
For example, on February 4, 1997, according to police records, an undercover cop bought crack cocaine at the Stardust with the help of a prostitute. The hooker then offered him sex in exchange for a rock. One-stop shopping, say police.
The hotel owner stresses this is not his doing. The Stardust charges $30 per night for a single, while many other motels along the boulevard are cheaper, Gihwala says. The rooms are spare but clean. The Stardust also offers amenities such as free HBO and a beer machine in the lobby, where a Heineken costs only $1.25. Maybe it is those attractions, plus its provocative color, that have drawn customers -- and trouble -- to the Stardust. "I'm a businessman and I give the customer what he wants," maintains Gihwala.
Too much of what certain customers want, according to the city.
"There are a lot of questionable motels on Biscayne Boulevard, but people in the community say this is the worst," remarks Douglas Broeker, counsel to the Miami NAB. The board cited the Stardust in late 1996. At that time, Gihwala agreed to renovate some rooms, which would theoretically attract a better clientele, and he also agreed to be more vigilant. But according to police, the offenses continued, and the city finally closed the motel September 3, 1997, just one day after Morningside Elementary began its fall term. "The crime rate went down in that area during the six months it was closed," notes attorney Fernandez.
The city, however, had entered extremely tricky legal territory. The NAB has shuttered dozens of commercial and private properties since it began operation six years ago. In fact, the NAB had closed the Stardust for a time in 1992. Then in 1995 a single legal case radically altered the power of NABs. A circuit court in St. Petersburg ruled that the city had to pay apartment building owner William A. Bowen for closing his property, even though that city had designated the building a nuisance because of drug dealing.
In effect, the court said operating an apartment complex is not a crime, despite the activities of the tenants, and Bowen should not be punished. That decision was upheld in 1996 by the Second District Court of Appeal, which ruled that the city had violated the landlord's Fifth Amendment rights by committing an illegal seizure of his property. Both the Florida Supreme Court and the U.S. Supreme Court refused to hear subsequent appeals. Bowen was compensated.
"St. Petersburg v. Bowen changed the whole ballgame," says David Forestier, the attorney representing the Stardust, who is demanding $175,000 for Gihwala. That amount includes estimated losses of $25,000 per month plus attorney's fees. Forestier knows all about the importance of the Bowen case. He formerly worked as an assistant city attorney and represented Miami's NAB against nuisance properties. "In fact, it was I who closed down the Stardust in 1992," he says proudly. "Before Bowen, abatement boards all around the state wielded a heavy tool. We would close places down and have jurisdiction over them for a year. But after Bowen, lots of NABs just closed down and went out of business."
The network of NABs that survived in the state has been badly hamstrung ever since. Last year the Florida legislature gave NABs the right to impose a series of fines against nuisance properties, up to a total of $5000 per year. But both Broeker, counsel to the Miami NAB, and Assistant City Attorney Fernandez say such relatively small fines do not deter nuisance properties, which is why they are urging the city to appeal the case, despite the fact that Forestier and Gihwala are willing to negotiate. An appeal must be filed by May 13.
"Our case against the Stardust is different than Bowen," Broeker argues. "The Stardust had a history of being closed. We gave them a chance to fix things and they didn't. Bowen was closed outright. We can win this." Broeker and Fernandez also think they can win for NABs the tools they need to operate again. "A property owner is jointly responsible for the activity on his property," says Broeker. "That is the principle abatement boards have used to clean up neighborhoods."
On Biscayne Boulevard a veteran prostitute named Maggie says she has heard about problems at the Stardust. Her geographical position is on the side of the street, but her political position is strictly middle of the road. "The Stardust is an all-right place," she says. "The rooms are clean. But it's a good thing they are going after the drugs, sugar. Those crack people, you never know what they're going to do.
