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Business Observer Friday, Nov. 7, 2003 15 years ago

Kangaroo Court?

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Sarasota's Nuisance Abatement Board puts local property owners on the hook for the actions of their tenants. Ignorance is no excuse.

Kangaroo Court?

Sarasota's Nuisance Abatement Board puts local property owners on the hook for the actions of their tenants. Ignorance is no excuse.

By Sean Roth

Real Estate Editor

Even its harshest critics believe that the objective of Sarasota's Nuisance Abatement Board is a positive one. No one disagrees that cleaning up the streets is a noble goal. The problem is in the way the board chooses to achieve its goal - trampling on due process, allowing hearsay and generally putting the burden of proof on property owners.

"There is no question it's a good goal," says Alex Lancaster, a partner in the Sarasota law firm of Lancaster & Eure PA and a property owner prosecuted by the board. "But you can't let a kangaroo court do the job of the police department."

In 1996, Sarasota city commissioners formed a seven-member board of local residents, appointed by the commission, to hear complaints of repeated malfeasance. Those offenses include prostitution, drug dealing, street gang activity or stolen property trafficking. The board was charged with prosecuting landlords for allowing these offenses to occur on their property.

The board holds quasi-judicial hearings, which allows witnesses to be heard under oath, and at the end of the hearing the board makes a judgment. That judgment could mean imposing civil penalties, costs for prosecution and investigation, mandatory attendance at landlord classes or the payment of attorney's fees.

The board's goal: Make property owners accountable for their tenants' repeated criminal actions. Proponents of the board say it is accomplishing its goal.

"This is an example of what can happen when citizens, the police and the legal community all work together for something positive," says Edwin Robinson, a member of the Nuisance Abatement Board. "We (the board) are saying, 'Not in our backyard,' and our backyard is the entire city of Sarasota. We want to help and to educate landlords. We want good landlord-tenant relations."

But the board's critics say it's unfair to property owners.

Amy Sergent, also with Lancaster & Eure, has represented property owners in 10 cases involving the Nuisance Abatement Board since 2000, including the representation of her partner Lancaster. She says that the police and the board have expanded prosecutions far beyond what is legal. "You can't prosecute landlords for what their tenants do without their knowledge," she says. Sergent points to Linda Carter's case.

After a thorough background check, Carter leased property to a tenant at 4922 and 4924 David Ave. Unbeknownst to Carter, her tenant let her sister stay with her for a few weeks. According to police, the tenant's sister sold drugs from the property. No one told Carter, but the police started an undercover investigation. After the investigation was completed, Carter was brought before the board and charged $1,515.84 for having a nuisance on the property.

"The police didn't give any notice," Sergent says. "Landlords have some liability, but the police never even told them there was a problem."

What happened in the Linda Carter case is common. The police department as a policy doesn't inform landlords of its operations because of security concerns for its confidential informants (CIs) and undercover officers. But critics argue that if a landlord isn't told there is a problem they shouldn't be punished for inaction.

There is also the case of Beresford and Albennie Powell. Police conducted several undercover narcotics buys on a rental home owned by the Powells at 1559 19th St. from April 10 to Aug. 8 of 2001. The police never told the Powells that there was drug activity on one of the properties; but instead the Powells were brought before the Nuisance Abatement Board. The Powells lost the hearing, but were not assessed a fine. Instead, the board assessed investigatory, attorney's fees and administrative costs to the Powells of $1,534.04.

While this case was being appealed, Beresford Powell says he became concerned that an unauthorized person had moved into his property at 1847 20th St.. He went to the police and was told that it was a civil matter; and he would have to pursue an eviction. So Powell met with an attorney and posted a notice on the property to evict the tenant within three days. At the same time that Powell was trying to evict the tenant, the police were conducting undercover drug buys at the building. By the time the police served a search warrant on the site, the tenant had moved out. Even though, Powell evicted the tenant the board still found that the property had been a nuisance. Presently, the case is still under review.

This has critics and attorneys asking, "What does a landlord have to do to protect themselves from a nuisance abatement hearing?"

"Tenants have rights," Sergent says. "No landlord can patrol their grounds all the time. There are cases were a cousin of a tenant has sold drugs from the property, but the landlord is still held responsible. Some of these landlords have done their homework and have screened their tenants. They are still held liable. It's just insane."

Board member Linda Holland defends the board's actions. "In most of the cases these are absentee landlords," She says. "A lot of times their attitude is that it is some other person's responsibility. It is the responsibilty of the property owner to know what going on at their property."

Critics say that that the way the board hearings are set up makes the board predisposed to find landlords guilty; a charge board members and the city attorney dispute. The quasi-judicial hearings are one-part courtroom drama and one-part public hearing. There is a prosecutor-defendant back and forth between the city attorney and the landlord (or landlord's attorney) followed by public comment and board discussion.

In most cases, the only evidence of a nuisance itself is the sworn testimony of an undercover officer. That officer will testify that on three particular days, a CI was used to buy drugs at the property in question. Because the hearing is merely quasi-judicial, similar to an administrative hearing, the officer is able to use hearsay from the CI, who is never brought to the hearing to testify. Further, during most hearings the undercover officer is hidden behind a cement wall to protect his identity.

"Yet, he has to give his name," says Mark Gruwell, a Sarasota attorney in private practice, who has represented a number of property owners in nuisance abatement disputes. Gruwell says in the five hearings he has participated in the police officers have always testified from behind a wall and sometimes have even read from notes to answer questions. Both of which would not be allowed in a criminal or civil trial.

So to whom does the citizen board turn when it has legal questions? Why, the city attorney, of course. Gruwell says that is a clear conflict of interest to put the city attorney, who acts as the prosecutor in the hearing, in a position as legal authority for the board.

Morgan Bentley, an attorney with the Sarasota firm of Williams Parker Harrison Dietz and Getzen, says that the timing of the complaint letter creates an additional inequality. "As a practical matter, they will attach the documents for the hearing a week to three days in advance," Bentley says. "That is a very short period of time to respond." In a typical civil or criminal case the defense would have a minimum of 20 days after a complaint is filed to respond. "Of course, we all trust the officers," Bentley says. "We would never accuse an officer of doing something in bad faith. But it is only human for them to want to present things in a certain light. For example say a cop comes in and says he took a tenant out of the apartment with $7,000 in his pocket. We need sufficient time to investigate this report. Maybe the guy just sold his car that week, or he got a worker's comp settlement."

Not surprising, most property owners who come before the board have their properties found to be a nuisance. Of the 119 cases: 85 (71%) involved the board abating the property. In 24 (20%) of the remaining cases, property owners avoided prosecution by entering a delayed prosecution program, available only to first-time defendants. Five of the properties were sold to another owner before the case came to the board. In three cases, the owners were not charged because they were the informants. In no case were any properties found to not be a nuisance.

Even more troubling, critics say, is the fact that the people who are breaking the law are not always arrested or prosecuted, while their landlords are still charged. Typically the police department will send in a CI to buy drugs as part of a routine narcotics investigation, because CIs can blend into the area more easily than an undercover officer. The bad news is that CIs can't be used to directly arrest a suspect. Given current state statues, the CI will have to perform three drug buys in order for the police to obtain a search warrant. It is the evidence obtained from the search warrant that leads either to an arrest or to no criminal charges being filed. Meanwhile, the legal standard for nuisance abatement is much lower - merely "a preponderance of the evidence." Meaning a landlord might be forced by the board to attempt to evict a tenant that the police haven't arrested or charged with a crime.

Get ready for the lawsuits.

In April, the Second District Court of Appeal in Lakeland found that Sarasota had "denied Maple Manor (a local apartment complex) fair notice by imposing various penalties on it - including the fine at issue - without allowing it an adequate opportunity to voluntarily abate the nuisance." The city had found Maple Manor, the owner of the Kings Way Apartments, guilty of nuisance abatement twice, charging a total of $23,803.63 in fines and costs. One of the owners, Eleanor Nestor, says that the board prevented the apartment owners from getting HUD tenants, which forced the group into Chapter 7 bankruptcy. Mark Singer, a partner with Taylor, Lawless and Singer PA and previously the city's nuisance abatement attorney, disputes Nestor's assertion.

But based on that that decision and several other cases, Sergent plans to file a civil suit against the nuisance abatement board. Asked how much liability the city was facing from the board action, Sergent says. "Maple Manor was a multi-million complex. I would say millions."

Gruwell, whose clients - the Powells - have successfully appealed one of the board's decisions, plans to make a claim against the city for attorney's fees. He says there is a fair chance of a class action suit against the city over the board's actions.

Meanwhile, board procedure is changing.

Use of the delayed prosecution program, which allows property-owners to avoid a board hearing on their first official complaint, has doubled annually over the past three years.

At the most recent meeting, the board decided to hire a separate attorney to answer board questions.

"This is just an evolutionary process," Singer says. "What we are really trying to do is educate landlords as to the appropriate way any landlord should rent to a tenant to minimize the chances that their property will be used illegally."

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