Becker v. State

• Decision Date: 02 March 2001
• Docket Number: No. 111,111
• Citation: 363 Md. 77,767 A.2d 816
• Parties: Allen BECKER, v. STATE of Maryland and Patricia C. Jessamy.
• Court: Maryland Court of Appeals

767 A.2d 816

363 Md. 77

Allen BECKER, v. STATE of Maryland and Patricia C. Jessamy.

No. 111, Sept. Term, 1999.

Court of Appeals of Maryland.

March 2, 2001.

Ira L. Oring (Fedder and Garten Professional Ass'n, on brief), Baltimore, for petitioner.

Andrew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, Patricia C. Jessamy, State's Attorney got Baltimore City, and Ann Refolo and Latonya B. Dargen, Assistant State's Attorneys, on brief), Baltimore, for respondents.

Anne L. Blumeberg, Alan T.L. Sun, Community Law Center Inc., Baltimore, for brief of amicus curiae in support of the respondents.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL and HARRELL, JJ.

ELDRIDGE, Judge.

Maryland Code (1974, 1996 Repl.Vol., 2000 Supp.), § 14-120 of the Real Property Article authorizes a state's attorney, a county attorney, an affected community association, or a municipality to bring an action in the District Court of Maryland for abatement of a nuisance against a property owner or occupant when real property is used in connection with illegal drug activity. Pursuant to such an action for abatement, the petitioner in this case was ordered to destroy his property. We issued a writ of certiorari to decide whether § 14-120 authorized the court order requiring the owner to demolish the property.

I.

Petitioner Allen Becker is the owner of record of the corner property located at 2900 Springhill Avenue in a residential area of Baltimore City. Becker conveyed the property to Ulysses Holmes in 1992 pursuant to a land installment contract.² The property is a two-story structure. Holmes operated a grocery store on the first floor and resided on the second floor.

In August 1998, the State's Attorney for Baltimore City filed a "Complaint for Abatement of Nuisance and Other Relief" in the District Court, Baltimore City, against Holmes and Becker in connection with the property.³ The complaint alleged that Holmes and Becker "created a nuisance at the Property by allowing the Property to be used for the purpose of illegally distributing, storing, and administering" controlled dangerous substances. The complaint stated that drug users "frequently gather inside, in front of, on the side of, and in back of the Property for the purpose of purchasing and using controlled dangerous substances." The complaint further stated that drug dealers obtain their drugs from "inside or about the Property" and sell the drugs daily in the neighborhood. It was also alleged that drug users loiter on the steps of nearby properties, deposit trash including needles, block traffic, and make noise while waiting to purchase drugs. As a result of the illegal drug activity, the complaint asserted, residents of the community are afraid to leave their homes or park their cars near the property.

The complaint requested the court to declare the property a nuisance, order Holmes to vacate the property, and require Becker to maintain the property so as to abate the nuisance. The complaint also sought an order requiring Becker to submit for court approval a plan to ensure that the property will not again be used for a nuisance and requested "such other and further relief as the nature of the case may require." Upon filing the complaint, notice was duly posted on the property as required by § 14-120(d) which states the following:

"(d) Posted notices.—(1) In addition to any service of process required by the Maryland Rules, the plaintiff shall cause to be posted in a conspicuous place on the property no later than 48 hours before the hearing the notice required under paragraph (2) of this subsection.

(2) The notice shall indicate:

(i) The nature of the proceedings;

(ii) The time and place of the hearing; and

(iii) The name and telephone number of the person to contact for additional information."

The trial against Holmes and Becker commenced on February 23, 1999. Five police officers testified to the rampant drug activity at the corner property and nearby area during all hours of the day and night. According to their testimony, drug users went into the grocery store and purchased drugs from employees behind the counter. The police officers described sting operations conducted by the Baltimore City Police Department where individuals came into the store and requested drugs from undercover officers posing as employees. The police officers also testified that drug dealers used the grocery store as a "habitat," stashing their product in and near the store, including in the door jamb, by the front steps, and in the rear of the property. The officers testified that the grocery store's reputation among drug users and dealers was widespread, attracting drug-related activity from outside areas. Moreover, one neighborhood resident testified that the drug activity at and near the property was just as prevalent at night after the store was closed. In all, according to the testimony, Baltimore City police officers responded to 486 drug-related calls concerning the property and the nearby area between January 1, 1995, and February 18, 1999. Each of the officers testified that closing the grocery store was the only way to stop the drug activity on the property.

The District Court found that the property was a nuisance as defined by § 14-120(a)(4) which provides:

"(4) Nuisance means a property that is used:

(i) By persons who assemble for the specific purpose of illegally administering a controlled dangerous substance;

(ii) For the illegal manufacture, or distribution of:

1. A controlled dangerous substance; or

2. Controlled paraphernalia, as defined in Article 27, § 287(d) of the Code; or

(iii) For the illegal storage or concealment of a controlled dangerous substance in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture, distribute, or dispense:

1. A controlled dangerous substance; or 2. Controlled paraphernalia, as defined in Article 27, § 287(d) of the Code."

The court stated that "[t]he store at 2900 Springhill Avenue is a convenience store. I am convinced ... its primary convenience is to people who are selling narcotics." The court also found that Holmes had knowledge of the nuisance and that, while there was no evidence that Holmes participated in the illegal drug activity, his acquiescence facilitated the drug operation in and around the grocery store. Although there was no evidence that Becker had actual knowledge of the illegal drug activity on or near the property, the District Court held that knowledge of the nuisance could be imputed to him from the time the notice was posted in August 1998.

The District Court reviewed the remedies that were available under the statute and stated that, in its view, it could order Becker to raze the property. Subsections (e) and (f) set forth the remedies available in an action brought under § 14-120. Subsection (e), relating to equitable remedies, states as follows:

"(e) Jurisdiction.—The court may issue an injunction or order other equitable relief whether or not an adequate remedy exists at law."

Subsection (f)(1) through (4) sets forth additional remedies as follows:

"(f) Remedies.—(1) Notwithstanding any other provision of law, and in addition to or as a component of any remedy ordered under subsection (e) of this section, the court, after a hearing, may order a tenant who knew or should have known of the existence of the nuisance to vacate the property within 72 hours.

(2) The court, after a hearing, may grant a judgment of restitution or the possession of the property to the owner if:

(i) The owner and tenant are parties to the action; and

(ii) A tenant has failed to obey an order under subsection (e) of this section or paragraph (1) of this subsection.

(3) If the court orders restitution of the possession of the property under paragraph (2) of this subsection, the court shall immediately issue its warrant to the sheriff or constable commanding execution of the warrant within 5 days after issuance of the warrant.

(4) In addition to or as a part of any injunction, restraining order, or other relief ordered, the court may order the owner of the property to submit for court approval a plan of correction to ensure, to the extent reasonably possible, that the property will not again be used for a nuisance if:

(i) The owner is a party to the action; and

(ii) The owner knew or should have known of the existence of the nuisance."⁴

The case was continued until March 1999 in order to permit Becker to prepare and present a corrective plan "to ensure, to the extent reasonably possible, that the property will not again be used for a nuisance." § 14-120(f)(4). The court ordered the grocery store closed pending the March hearing.

At the March hearing, the State offered testimony of another police officer and an individual from the Department of Housing and Community Development. Becker was then allowed to present his corrective plan. He proposed that the grocery store be closed and that the property be rehabilitated into a residence. The court stated that the plan was "too late" and that the court was "convinced that this property is a rabbit warren that exists for the convenience of the drug dealers and not for any legitimate purpose." Accordingly, the court issued an order as follows:

"ORDERED:

1. That the Defendant Ulysses Holmes and all other occupants of the Property vacate the Property by March 11, 1999, and stay out of and away from the Property permanently; and

2. That Defendant Allen Becker shall raze the property by March 31, 1999, at his own expense. Razing shall be done by a contractor licensed to do demolition work in Baltimore City; and

3. The Defendant Allen Becker shall ensure that the demolition contractor or another licensed contractor remove all debris from the demolition site and properly dispose of it, and that the site shall be properly graded; and

4. That the Defendant Allen Becker shall...