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Property owners too have felt blindsided by the cozy relationship between the NAB and the West Palm Beach Police Department. Some owners have been hauled in front of the board for a nuisance created only by a handful of undercover police drug buys. And whereas the suspects charged with dealing narcotics, selling sex, or fencing stolen goods have the right to legal representation if they can't afford it, property owners and tenants must pony up for their own defense.
Such is the power of the nuisance board that few of the property owners, tenants, and even lawyers involved in NAB cases were willing to comment openly for this article. Transcripts of board meetings, however, capture the heated exchanges between the board and those called before it. These verbal clashes are a microcosm of the conflicting political and social forces now vying for the streets and neighborhoods of West Palm Beach.
Modern public-nuisance law has its origins in English common law, first intended to protect public rights of way from petty criminal offenses, according to Mary Spector, an assistant professor of law at Southern Methodist University in Dallas who has studied the effects of nuisance laws in America and written on the subject. By the 18th Century, nuisance laws had come to include a variety of criminal offenses, from damaging public highways to "running a bawdy-house." Prosecutions in such cases often proved ineffective because corporations were immune from criminal liability. Thus, over time, nuisance laws became civil matters. As America's war on drugs in the 1970s began employing forfeiture laws to confiscate cars, homes, and furniture owned by drug dealers, the use of nuisance laws also vastly expanded. As civil matters, forfeiture and nuisance cases need not be proven "beyond a reasonable doubt" but require only "clear and convincing" or "a preponderance of" evidence. Forfeiture laws prohibit confiscation where the property owner can establish "innocence of the underlying offense," Spector writes, but few public-nuisance statutes provide for such a defense, and jury trials are generally not an option for these cases.
"Governments are given very broad power over the legitimate exercise of their police power to protect the citizens of the community," Spector tells New Times. "Nuisance abatement is one of those things that historically governments have been able to use to exercise that power." Spector suggests that closure of homes should be a last resort, after the board has weighed the degree of harm of the nuisance on the occupants and the availability of alternative, affordable housing.
Chairwoman Hyman says the West Palm Beach board always considers the fates of tenants. "Anything we do is ultimately going to be a bad result for somebody -- they may be evicted or move out of their home," she explains. "Before we impose a sanction that has some profound effects on a family, we take a very hard look at it to see if there's any other way of achieving the goals of the board."
The West Palm NAB, working closely with police, has broad discretion in meting out penalties for the 50 or so cases that come before it annually, as demonstrated in a recent case involving H.F. Menge, a 79-year-old white man who lives in a single-family home on 48th Street. Menge resides with his 18-year-old grandson, Lawrence Hamm. A granddaughter, Dawn Hamm, and her boyfriend, Torry Daniels, live in an efficiency apartment attached to the house. In May, a West Palm Beach police informant allegedly bought cocaine from Daniels three times at the apartment. The case came before the NAB in July; after taking jurisdiction of the property, the board forbade Daniels and Lawrence Hamm -- neither of whom was charged -- from setting foot on the property. Police later determined that both men had entered the property, and the NAB began fining Menge $100 a day.
Dawn Hamm and her sister, Kimberly Hamm, vociferously argued against the restriction on their brother, claiming that their grandfather suffered from Alzheimer's disease and required him as a caretaker. Dawn Hamm disputed a police report that she had been uncooperative with police. The board would have none of it. As the two women muttered to themselves, Hyman said that another hearing could be held if they wished and that the appropriate police officers would be called to testify. "In the meantime, there's an order requiring that both these guys -- YOU CAN'T HEAR ME IF YOU'RE TALKING!" Hyman snapped at the pair. "The order requires that both of them be off the property, OK? We're not going to argue about the situation."
That stance had softened considerably by the next month's meeting in November, when Sergeant Ghianda informed the board that he'd visited with Menge and decided that the grandson's presence was "essential for the well-being" of the elderly man and that the 18-year-old had been only "peripherally" involved in the illegal activity. The NAB amended the order to allow the young man to stay and waived the $100-a-day fine that had accrued for his violation.
The NAB can be swayed by the cooperation offered by property owners. That, however, can be paradoxical for owners or their attorneys who might consider mounting an aggressive defense. With cases involving the NAB, it's not better to have fought and lost than to have never fought at all.