City of Seattle v. McCoy
| Decision Date | 24 April 2000 |
| Docket Number | No. 42873-0-I.,42873-0-I. |
| Citation | 997 P.2d 985 |
| Court | Washington Court of Appeals |
| Parties | The CITY OF SEATTLE, a municipal corporation, and The Seattle Police Department, Respondents, v. Oscar MCCOY and Barbara McCoy, husband and wife d/b/a Oscar's II, Appellants, Wilmer P. Morgan n/k/a Maagnus Morgan, a single man, and Gwen D. Dixon, a single woman; and Real Property Located at 2051 E. Madison Street, Seattle, Washington, County of King, Defendants. |
David Robert Osgood, Seattle, for Appellants.
Shelley Jayne Hickey, Assistant City Attorney, Seattle, for Respondents.
David Zuckerman, Seattle, for Amicus Curiae (1) American Civil Liberties Union.
Jeanie J. Mohler, Office of City Attorney, Spokane, for Amicus Curiae (2) Wash. State Assn. of Municipal Attorney.
Richard Dale Shepard, Tacoma, for Amicus Curiae (3) Northwest Legal Foundation.
John William Cobb, Deputy Prosecuting Attorney, Seattle, for Amicus Curiae (4) WA Assn. of Pros. Attorneys.
John Charles McCullough, Jr., Seattle, for Amicus Curiae (5 & 6) Rainier Chamber of Commerce Downtown Seattle Assn.
Artee Felicita Young, Seattle, for Amicus Curiae (7) Pac. N.W. Chapter Nat'l. Black Chamber.
James Lawrence Varnell, Ziontz Chestnut Varnell Berley & Slonim, Seattle, for Defendants Wilmer P. Morgan, Gwen D. Dixon.
Oscar and Barbara McCoy own Oscar's II, a restaurant and lounge in Seattle. The City of Seattle filed a complaint against the McCoys, alleging that the building constituted a drug nuisance under RCW 7.43, because of illegal drug activity on the premises. The trial court found that Oscar's "is a drug nuisance pursuant to Chapter 7.43 RCW and for one year shall be abated and closed to further operation of Oscar's by and through the [d]efendants' McCoy." The order triggered a statutory provision placing the property in custody of the court. A stay was entered pending appeal.
The McCoys challenge the constitutionality of RCW 7.43 under the United States Constitution as a taking without compensation both facially and as applied, as a violation of due process, and as void for vagueness. The McCoys also challenge evidentiary rulings of the trial court. Amicus alleges application of the statute is unconstitutional on the basis of discriminatory application against African-Americans.1 We hold that RCW 7.43 as applied to the McCoys violates the Fifth and Fourteenth Amendments to the United States Constitution. The application of the statute on these facts constitutes a taking of property without compensation and without due process of law. State nuisance and property common law is not an exception to a taking under these facts. We do not reach the vagueness issue, having found the statute unconstitutional on other grounds.
The McCoys have not preserved their objection to the evidentiary issues. The record is not adequate to allow consideration of the discrimination claims.
Therefore, we vacate the order of abatement entered by the trial court.
Oscar and Barbara McCoy are the owners and operators of Oscar's II, a restaurant and lounge in Seattle's Central District. They lease the property at that location from Wilmer Morgan and Gwen Dixon.2 Oscar McCoy opened his restaurant in 1976, and moved it to its present location in February 1986. From the beginning, the restaurant catered to an older crowd, and operated for thirteen years without any particular problems.
At some point in 1989, an establishment called the "Cotton Club" closed, and its patrons, a younger clientele, began frequenting Oscar's. With the younger crowd, the McCoys began experiencing difficulties with fights and disturbances, some of which were gang-related.3 At approximately the same time, the McCoys were contacted by two beat officers assigned to patrol "hot spots" in the Central District, Sam Derezes and Eric Zerr. Both officers worked with the McCoys to implement security measures inside of Oscar's, including hiring security, checking patrons' identification at the door, and maintaining a trespass list. According to Officer Derezes, Oscar McCoy followed all of the suggestions made to him to help keep the criminal element out of the business. The McCoys allowed agents of the United State Drug Enforcement Agency to use their establishment as a place to surveil narcotics activity on the street. And, Oscar McCoy routinely testified in court against people "trespassed" from his business, that is, people removed from the premises for violating a prior police notice not to come onto the property.
For a five year period beginning in 1994, Officers Derezes and Zerr assisted the McCoys with maintaining order at Oscar's, routinely identifying to Oscar McCoy persons they had arrested, or persons known to them as being suspected narcotics traffickers. Invariably, Oscar McCoy would ban these suspected traffickers from the establishment.
In 1994, due to a manpower shortage, the Seattle Police Department (SPD) discontinued the operation of regular footbeat patrols in the area where Oscar's is located, and Officers Derezes and Zerr were transferred out of the area. However, the SPD continued to regularly patrol the area around Oscar's by vehicle and uniformed patrol officers occasionally walked through Oscar's. Patrol officers continued to make drug arrests inside Oscar's. Patrol and community police team officers notified Oscar McCoy of these narcotics arrests and the narcotics trafficking occurring in and around his business, and gave Oscar McCoy suggestions on how he could prevent drug trafficking at Oscar's. The McCoys asked for an increased police presence in the area and a better 911 response. The McCoys' requests were denied on the basis of insufficient police resources. And, in late 1994, the police department initiated a drug abatement file on Oscar's. The police also discontinued their practice of providing information to the McCoys about known drug dealers.
The SPD then formally notified Oscar McCoy in writing of the illegal drug sales occurring at Oscar's, told him of his responsibility to operate his business in a manner which did not allow drug trafficking to occur on the premises, and warned him of the potential closing of his business pursuant to the Drug Nuisance statute, RCW 7.43, if drug trafficking was not prevented. The SPD and Oscar McCoy met to discuss these matters at which time Oscar McCoy was presented with a Drug Elimination Plan (DEP), consisting of fifteen suggested actions the McCoys could take to deter drug trafficking at Oscar's.
The suggestions contained in the DEP were: 1) a SPD record check of all employees; 2) no violation of state liquor codes; 3) locked bathrooms with one employee in control of the keys; 4) employment of security personnel on weekends and evenings and security checking of all customers for weapons; 5) maintenance of an "86" list documenting persons who have been excluded from the business; 6) inside and outside lighting sufficient to allow employees to observe customer activity; 7) installation of a video camera; 8) posting of "no loitering" and "no drug activity" signs on the front door; 9) removal of inside pay phone and restricting use of inside phones to employees only; 10) identification checking of all customers; 11) initiating a criminal trespass agreement with the Community Police Team (CPT) to allow the police to exclude unauthorized persons when requested to do so by the McCoys; 12) institution of an entry fee and re-admittance fee; 13) institution of a policy to contact a CPT officer, the Anti-Crime Team officer or call 911 to report drug activity; 14) securing of the back door to make it exit only (with alarmed emergency exit bar); and 15) implementing a dress code, i.e., not allowing any gang attire.
The McCoys had been implementing some suggestions already and implemented many others. The parties dispute the timing, duration, or extent of the. implementation of locked bathrooms, installation of a video camera or dummy camera, removal of the phone, and securing of the back door. The trial court's memorandum decision4 states that the proposals that had "not been implemented [were] for the most part too expensive or [ineffective]." Oscar's was a continuing target for abatement by the SPD.
Over a period of twenty-seven months, covering parts of 1995 through 1997, confidential informants worked under the direction of the SPD and made eighteen narcotics purchases inside of Oscar's. The SPD used various confidential informants and purchased from different drug dealers, except on one occasion where a dealer was paged for a second purchase. The dealer arrived at Oscar's by car in response to the page. These undercover narcotics purchases did not result in arrests. Nor did the SPD inform the McCoys that the purchases were being made inside their business or that these suspected drug dealers were operating out of Oscar's. The alleged drug dealers were never identified to the McCoys. Seattle Police Detective Diaz clearly testified that these investigations were conducted for the sole purpose of abating Oscar's.
No one linked Oscar or Barbara McCoy to drug sales in the establishment, and the unrefuted testimony of their employees and patrons indicated that none of them had ever witnessed drug sales on the premises.
On November 5, 1997, the City of Seattle filed a complaint against the McCoys in King County Superior Court, alleging that the McCoys "are and have been using, maintaining or permitting Oscar's ... to be used for the purpose of unlawfully manufacturing, delivering, selling, storing, or giving away controlled substances[.]" The City sought a declaration that the property on which Oscar's is located is a drug nuisance under RCW 7.43. Accordingly, it asked the court to close Oscar's and to prohibit its "use for any purpose" for one year.
The trial court's memorandum decision stated that the McCoys made "reasonable efforts to address the problem[,]" and "have not in any sense `permitted'...
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