By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
Delia Judd's jaw visibly grinds as she stands before the Nuisance Abatement Board. The gaunt black woman gazes at the floor, shakes her head slowly, and shifts with agitation. Her face is obscured by wraparound sunglasses and a baseball cap pulled down over her forehead. A tangle of silver necklaces sways across her floppy sweatshirt. She and her husband, who stands passively just behind her, are listening to a litany of crimes that the West Palm Beach Police Department claims have emanated from the Judd family home on 18th Street. The board has declared the house a public nuisance after police said an informant bought crack cocaine there on three recent occasions.
"Five-oh-two 18th Street is synonymous with drug sales, violence, and every possible crime I've been involved with while on the force for 16 years," asserts Sgt. Ronald Ghianda, who stands behind a lectern 30 feet from the Judds. Between the two opposing camps are the five members of the board, which meets once a month in the City Commission's chamber at City Hall. Ghianda is flanked by five beefy narcotics cops, each wearing a black ski mask for anonymity, a thin slit open for their eyes. The crimes, Ghianda continues, have spanned decades and include the sale of cocaine, possession of cocaine, aggravated battery, robbery, possession of illegal firearms, and disorderly conduct. All the Judd children have been deeply involved, he asserts. "The family has about 300 arrests combined," he says. His speech quickening, Ghianda claims the property was used as a safe house for fugitives charged with robbery and murder who at times hid beneath removable floorboards. "I've seen stolen property stacked up to the ceiling in this house." His words choke with abhorrence. Then, directly addressing the board, Ghianda says, "I don't know why the house has never been brought before you before. It is the most despicable property I can think of."
Ghianda becomes silent. The accusations seem to have sucked the oxygen out of the room. Board members look to Judd for a response.
"Ain't nobody there but me, my husband, and my daughter-in-law," Delia Judd hisses. "I don't have people running in and out my house all the time like he says. Don't nobody sells inside my house. Ain't but three people there. None of my children live there. They're gone."
Lest the board relent, Ghianda presses on. "They're all violent people. There's no stopping this family. We want something done, the maximum. Nothing she can say or do will end this problem."
Board Chairwoman Sherry Hyman asks the woman, "So, you're saying what he's testifying to isn't true?"
Judd responds: "It's not true. Honest to God, it's not true. Don't nobody stay in that house."
"And what of you, Mr. Judd?" Hyman queries.
A soft-spoken man with graying hair and mustache, Judd's husband answers hesitantly, "I don't know what goes on during the day because I leave at 5 or 5:30 in the morning, and I don't get home until 5:30 at night. At night, nobody's in the house."
Ghianda then comes as close to commiseration as he will on this particular case. "Mr. Judd, I apologize. You work. I don't know how you survive in that residence. You've always been pleasant to me and the Police Department -- unlike the rest of your family."
Hyman quickly volunteers her assessment of the case, choosing her words deliberately. "My own thoughts are that the use of the property as a haven for illegal purposes is inextricably entwined with [the residence]. There's no other way to solve this than board it up for a period of time." Inextricably entwinedsums up a legal precedent that gives the board free rein to close down property without compensating its owners. With little discussion, the board unanimously orders the Judds to board up the house and move out for ten months.
"I have no place to go," Delia Judd mumbles, less an entreaty than a stab at full comprehension.
"If you fail to board and secure before our next meeting, there will be a $100-a-day fine," Hyman instructs evenly. "I hope you'll go and get some help and clean up your act."
West Palm's Nuisance Abatement Board, or NAB, draws little public attention, but its power over private property owners is substantial: displacing tenants, boarding up properties, levying fines up to $15,000. Its role is likely to become more prominent as the city continues its efforts to revitalize the downtown Clematis Street area, nurture CityPlace at downtown's south edge, and make way for gentrification in other neighborhoods. West Palm Mayor Joel Daves in October appointed assistant city administrator John Zakian as a "downtown czar," giving him charge over police and code enforcement in the Clematis district. In addition, the Police Department recently formed an "innovative response unit," which is intended to tackle so-called quality-of-life crimes such as lewd behavior and prostitution. Ghianda is in charge of the response unit and also serves as the liaison between the department and the nuisance board. Thus, enforcement by NAB will undoubtedly grow.
Many municipalities in Florida have NABs, and they operate with varying zeal. With its shift toward renewal and its ongoing problems with illegal drug sales, West Palm Beach has a particularly aggressive NAB, established in 1988. While many would applaud its get-tough attitude, the board's actions exacerbate racial and class tensions by coming down most vigorously on the city's poorest residents. By prohibiting some landlords from renting to tenants with criminal backgrounds, the board in essence denies equal housing because poor blacks are statistically more likely to have criminal records. Such housing prohibitions have a ripple effect on extended families, who become guilty by association. Some find themselves homeless by NAB edict.
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.
More confounding still are instances when the property owner actually initiates police action. Consider, for example, the boarding house at 117 S. Rosemary Ave., owned by an elderly couple, Jean and R.P. Philips. "This piece of property, being so close to CityPlace, is a major concern to the mayor and Police Department," Officer Brad Emmons told the board in May. Jean Philips, whose husband had died in March, not only had cooperated in the case but had requested police help. The irony that she was now confronted with signing a stipulation giving the NAB jurisdiction over the property was not overlooked by her attorney, William Broome.
"I was here last month and realized the broad range of cooperation you seem to face with owners," Broome said calmly. "Some are very cooperative, and some don't turn out to be. I wanted to be sure that if we wind up back here again because of that property that you remember that we were so cooperative that we started this. The owner's representative actually went to the law-enforcement officers to ask for help with the two guys who were a problem. They arranged controlled drug buys with them which created the three instances that made the nuisance."
On the other hand, in July, when owner James McCarthy objected to a proposed NAB stipulation as the result of undercover drug buys at his apartment building at 318 N. Sapodilla Ave. -- police action with which he cooperated fully -- the case was dropped.
Broome argues that the city's ordinance should be amended to raise the threshold for activating NAB involvement, specifically exempting owner-initiated cases. "It would promote self-policing," he says.
Indeed, some attorneys privately question whether three police-orchestrated buys can even be deemed a bona fide nuisance, given that the problem wouldn't exist without police involvement.
Frankel Enterprises, a Jupiter-based real-estate development company, is about as far removed from the tired rental properties in West Palm Beach as one could imagine. The company's digs are on the fourth floor of the golf clubhouse at Admiral's Cove, a posh development just off Alternate A1A. The ornate clubhouse is bedecked with mahogany woodwork and brass fixtures. Sherry Hyman works full-time as in-house legal counsel for the company, and her large office window overlooks a serene marina and rolling green hills. Hyman is petite, with curly, dark-blond hair. She smiles sparingly and exudes the same aura of authority here as she does chairing the board. Still, sitting behind her desk this day, she seems somewhat uncomfortable answering questions about the NAB, perhaps because the board draws little attention from the local press. (She later denies a request by New Times to send a photographer to an NAB meeting.) At times, she pages through her files while she replies.
Hyman was appointed chairwoman of the NAB in 1996 by Mayor Nancy Graham. The unpaid post must be filled by an attorney, and Hyman, a real-estate lawyer and long-time resident of West Palm Beach, seemed a good fit. The remaining four members -- Dean Marlin, Scott Addlesberger, David Smith, and Emerald Smith, the board's only black member -- are also mayoral appointees. Board members are allowed to serve up to three consecutive two-year terms.
There is no question that parts of the city are "fraught with illegal activities," she says. "Certainly with prostitution, you can drive down the street and see that going on. The drugs? I don't typically... I'm not sure I frequent the neighborhoods at night where these drugs [sales] are taking place, but I certainly know these things are going on."
Hyman bristles at the suggestion that she appears impatient with some property owners during hearings. "I think I have a lot of patience up there," she retorts. "What happens is that property owners try to explain to us that they didn't know what was going on. Our position is that if you own a piece of property in West Palm Beach, you're responsible for making sure it's free of every illegal activity." That begins, she says, with investigating would-be renters. The board's standard stipulation for offending landlords requires that they submit the names of prospective tenants to the Palm Beach County Sheriff's Office for a criminal background check, then turn over the results to West Palm Beach police for approval. The stipulation does not indicate the criteria for that approval.
"Some [landlords] buy property in the poorest sections of West Palm Beach, take the rent from these poor people in these dilapidated houses, and they never go there," she says. "You don't have to go through someone's drawers to see if there is drug activity. Often, there are crowds of people gathering outside the property, people driving up, back and forth."
At times, however, even tenants themselves claim they aren't aware of drug sales taking place. The outcome in such cases can be heartbreaking.
In May, police brought before the NAB a case involving what one officer called "probably the worst drug house" in the city at 906 Fourth St. The property consisted of a main house, a small side apartment, and a small cottage in the rear. Police requested that the entire property be vacated and boarded for a year because of ongoing illegal drug sales.
"My name's Mattie Daniel," a black woman said, addressing the board, her voice a rasp from infirmity and old age. "My son owns the property. Me and my five grandchildren live there. He lives in the back house. Me and my children don't have anywhere else to go." The children were ages 10, 12, 13, 16, and 17. A police officer testified that there was no evidence the grandmother and minors had sold drugs but maintained that drugs had been sold in the main house.
"I've never seen him sell drugs," Daniel said of her son. "Of course, I stay back there in my room most the time because I'm sick and don't be out much. I ain't seen him sell out the house."
Daniel's daughter-in-law, who had lived on the property for the past three years, vowed that she would henceforth be vigilant in preventing drug sales. She hadn't done so in the past because she "just went about my business."
Hyman jumped in: "It's that type of attitude that leaves us in the position we're in now. If someone had just taken the initiative and said, "This is wrong.' You're not the owners; the owners are in jail. But if you wanted to continue to live there, it's your responsibility to see that there are no illegal activities taking place."
The NAB moved to board up all the buildings for six months, giving the seven tenants 20 days to get out.
"Some of the decisions made by the board are gut-wrenching," Hyman confesses from her Jupiter office. "But we can't solve all of society's problems."
Evernia Street runs east-west through downtown West Palm Beach, cutting directly through redevelopment czar John Zakian's new turf and scraping the north end of CityPlace. The 600 block lies on a steep grade, and the homes and apartment buildings that line the western end are a mixed bag of the refurbished and the awaiting refurbishment. The two-story, salmon-colored house at 631 Evernia was at one time a single-family home but has been converted into apartments. With its weather-beaten open porch, worn wooden front steps, faded paint, and cursory landscaping, it has the look of a rundown rental building. This summer, the building's owners ran afoul of the NAB, and a cantankerous exchange left the landlords feeling gut-punched.
During a July NAB meeting, Gerald and Deborah Meitz are listening to the testimony of a ski-masked narcotics officer about their building at 631 Evernia. The white couple wear matching green T-shirts sporting the logo "Meitz Property Management." The cop describes three "controlled purchases" of cocaine from tenant Christopher Odom. (He has pleaded not guilty, and the case is pending.)
The upstairs tenants have been evicted, Gerald Meitz tells the board, and Odom is in the process of being evicted, though he's currently in jail. But there's a snag. Odom's girlfriend, Lisa Winston, and their daughter also live there. Meitz attempted a speedy eviction, but Winston wrote the judge asking for more time. "I need to find another place and that takes some time to do," she wrote. "Your honor... this is my responsibility for getting things taken care of." The judge granted a hearing, which slowed the eviction.
Meitz tells the board that he knew there was a problem with drug-dealing at 631 or at one of the two houses he owns across the street. "We'd evicted three or four people in the last four months from those two houses," Meitz explains. "My wife on several occasions talked to police officers asking what could be done. They always told her, "Well, if you've got a problem, evict them.'"
For the most part, board members remain quiet, although at times, Hyman, almost as an aside, asks Addlesberger at her right for his opinion. Wearing glasses that give him the look of an academic, Addlesberger projects as stern an image as the chairwoman.
Hyman asks whether the Meitzes had tried to remove Winston from the apartment. "She'd have to go under [Odom's] eviction," Meitz responds. "We can't just make her leave, because we don't have a rental agreement with her. As the officers will attest to, the fact that she lives there means she needs to be evicted. She can't be told to leave."
When Hyman learns that Meitz has not retained an attorney to carry out the eviction, she becomes slightly agitated. "A suggestion: You need to have a lawyer for this. Because if you're not able to get someone evicted who has no lease with you and has not paid rent and there's illegal activity on the property, then you're not doing something you ought to be doing."
"With all due respect," Meitz fires back, "I've been doing this for 20 years. You can ask any of these officers here. Say I have an apartment that was vacant yesterday and I've got people living there today -- hookers, drug dealers. If an officer comes in and asks, "Do you live here?' and he sees milk in the refrigerator and toilet paper on the wall, he'll turn to me and say, "You need to evict.'"
"Look," Hyman says, cutting him off. "We're not up here to go into a whole lecture on eviction. It's hard for us to believe that you're taking all measures to get them out when this should be a simple eviction." She continues in a new vein. "I think the fact that you don't have a written lease is pretty inexcusable. The condition of the property is not our concern. But the fact you don't have a written lease promotes the kind of tenants you apparently are getting. That's not acceptable to this board. Do you have a minimum rental period, or do you let them come in for any period?"
"Weekly or greater," Meitz answers.
"That's another thing," Hyman barks. "Weekly rentals promote transients -- people who don't have ties to the community."
"Well, this guy's lived in the apartment for ten years," Meitz snaps back.
"Then there's no reason he shouldn't have a lease," Hyman retorts.
"Then there's no reason to think he doesn't have ties to the community," he counters.
"Then he's an exception," she says.
Addlesberger jumps in. "If he's in jail, I don't think he's an exception to the rule."
Meitz's face twists with agitation, and his voice raises. "The fact that he's in jail doesn't have anything to do with what we're talking about here," he snarls. "He could be in there for a... a... motorcycle incident. I don't know."
The board moves unanimously to take jurisdiction of the property for a year, which means if there is even one report of illegal activity, Meitz will be called back before the board for further action, which could include fines and boarding of the building.
Meitz bridles. "I disagree sharply on that. We weren't made privy to any of those busts. Nobody told us that, yes, we know who this is. On the contrary, we told police officers, at least three or four, that we've got a problem back there but we're not sure who it is and can't get rid of them and we'd like you to make a bust."
Hyman interrupts, "One more incident will bring you back before the board. I appreciate that you don't agree with it --"
"I don't," Meitz jumps in. "I think the implication here is that if there's three such incidents that, well, maybe the owner didn't know about the first or even second one but ultimately chose to do nothing. Obviously, we were doing the best to evict these people."
Hyman tells him that he can either sign the stipulation or the board will force it upon him.
"I don't want to sign it," Meitz growls. "It doesn't matter, though, does it? The board will impose what it wants." Meitz can't resist getting in a parting shot. "And you also have someone who'll go with me now and take [Winston] out of there?"
"I don't think we're going to do that," Hyman sniffs. "We're not in that business."
"No," Meitz concludes acidly. "I didn't think you were going to do that. I didn't think so."
Northwood Street, 26 blocks north of Clematis, offers immediate visual clues that it's in the midst of gentrification. The narrow east-west avenue has been tailored for foot traffic with its wide sidewalks and paver-covered crosswalks. There is no trash in sight. Most of the one- and two-story shops have been painted in degrees of pastel. And like most nascent revitalizations, it gives way quickly to the more dilapidated neighborhoods that ring it. Those streets, occupied almost entirely by black residents, are riddled with boarded-up and burned-out homes.
Rod Tinson became the father of the Northwood Street renaissance when, two years ago, he moved his antiques and restoration business into an abandoned bottling warehouse. The interior is rustic, with exposed ceiling timbers, a look congruent with the business. "These buildings were all abandoned-looking," Tinson says while seated on an antique love seat. "The doors on this building were busted in, absolutely trashed. I thought if I could move in here and turn the neighborhood around, well, it was just obvious to me that it could be a great little antique, art, and design district."
Tinson, who is white, extols the racial mix on Northwood Street. "Many of us are good friends, and we're of different ethnic backgrounds," he says. "It's sort of a San Francisco atmosphere, and we'd like it to stay that way."
But as the character of the area began to change, so too did attitudes toward loitering, drug-dealing, and prostitution. That's when the Kwik Stop at 2401 Spruce Ave., a block north of Northwood Street, became a lightning rod earlier this year. The property was owned by Lynda Swinney and Karolyn Hornsby, two sisters who live in the St. Petersburg area. The property was leased by Allan Ati, and many in the neighborhood had complained about prostitutes and drug dealers loitering in the convenience store's parking lot. This winter, West Palm Beach police charged Ati with fencing stolen goods on three occasions, so the case was brought before the NAB. The board took jurisdiction of the property for a year and required Ati's eviction. In the meantime, however, Ati sold the business and assigned the lease to the new owner. Swinney and Hornsby, in turn, entered into an agreement to sell the property to that new business owner. Hence, Swinney and Hornsby did not commence eviction proceedings for Ati. The NAB considered the owners in violation and ordered the building boarded up for six months.
The owners hired West Palm Beach attorney Michael Morell to contest the closure. Morell argued that the NAB would have to compensate the owners for any "temporary taking," and he filed a lawsuit in federal court seeking damages. The NAB held two special meetings to deal with the issue, during which some residents requested that the store be shut down permanently. On a deeper level, the Kwik Stop touched upon the class and racial tensions that frequently flare during gentrification.
Arlene Kutera, a woman who lived close to the Kwik Stop, testified that the convenience store was needed. "If it's a convenience for the people that live in that neighborhood, why should it be shut down?" Kutera asked. "They can tell you they came by and they were solicited, but you'd better believe they don't come around that area. If they have businesses in the day, they are shut after 5 and 6 o'clock. They wouldn't be caught dead up there. It's like they're trying to say, keep the people on that side where they don't have to come over to the Northwood side. That way, we don't have to worry about those blacks entering into our Northwood community, breaking into our houses."
Tinson recalls the store as being a problem. "I used to go to the restaurant that was by it, and cars were broken into on the street," he says. "People were hailing you down as you went by for drugs and prostitution. It was trashy, very rundown."
Morell believed that his clients had a high probability of winning in court. Two NAB cases were then awaiting decisions by the Florida Supreme Court, one of which was similar to the Kwik Stop case. In 1993, the NAB in St. Petersburg had closed an apartment building because of drug-dealing by tenants. Owner Joseph Kablinger sued, arguing that he had nothing to do with the illegal activity and should be compensated for the closure. A jury agreed, as did the Second District Court of Appeal after the city appealed. The city appealed the case again to the Florida Supreme Court, which in July affirmed the lower-court decision. The justices concluded that "the St. Petersburg NAB closed the apartment complex solely on a finding that the apartment had been the site of cocaine sales on more than two occasions" and that "there was not extensive record indicating that the drug activity had become an inseparable part of the operation of the apartment complex." Kablinger must be compensated, the court ordered.
In a companion case reviewed at the same time, however, the Florida Supreme Court upheld a Third District Court of Appeal decision that the owner of the Stardust Motel in Miami should not be compensated for an NAB closure in 1998. In that case, the illegal activity had become "inextricably intertwined" with the operation of the motel, the justices wrote.
Although the Kablinger decision certainly shores up legal defense for some property owners, it does nothing for poor tenants and families entangled in uglier nuisance cases.
Morell dropped the federal case this summer when the NAB agreed to let the new owners remove the boards after making improvements, such as painting the exterior and interior of the store, landscaping, removing the Kwik Stop sign and pole, and taking down posters and signs from the windows. The NAB's Hyman defends such aesthetic requirements, claiming they were intrinsic to the business. "And that business was so inextricably intertwined with [illegal activities] that we had to show everyone that it's not business as usual anymore."