Madison Park N. Apartments, L.P. v. Comm'r Housing

• Decision Date: 03 May 2013
• Docket Number: Sept. Term, 2012.,No. 0071,0071
• Citation: 66 A.3d 93,211 Md.App. 676
• Parties: MADISON PARK NORTH APARTMENTS, L.P. v. The COMMISSIONER OF HOUSING & COMMUNITY DEVELOPMENT.
• Court: Court of Special Appeals of Maryland

211 Md.App. 676

66 A.3d 93

MADISON PARK NORTH APARTMENTS, L.P.

v.The COMMISSIONER OF HOUSING & COMMUNITY DEVELOPMENT.

No. 0071, Sept. Term, 2012.

Court of Special Appeals of Maryland.

May 3, 2013.

Thomas M. Wood IV & Brian M. Boyle, (Neuberger, Quinn, Gielen, Rubin & Gibber, PA, on the brief), Baltimore, MD, for Appellant.

Daniel J. Sparaco, (Baltimore City Law Department, on the brief), Baltimore, MD, for Appellee.

Panel: WRIGHT, KEHOE, NAZARIAN, JJ.

WRIGHT, J.

This appeal arises from a decision of the Circuit Court for Baltimore City denying appellant's, Madison Park Partnership's (“Madison Park”), Petition for a Writ of Administrative Mandamus & Petition for Judicial Review (“Petition”). The Petition sought reversal of a decision by appellee, the Commissioner ¹ of the Baltimore City Department of Housing and Community Development (“Department”), revoking Madison Park's Multiple–Family Dwelling License.

Questions Presented

Madison Park presented the following three questions for our review:

1. Did the Circuit Court err when it ruled that the regulation requiring multiple family license holders to “prevent” criminal activity was not void for vagueness?

2. Did the Circuit Court err when it found the Commissioner had not violated [Madison Park]'s due process rights?

3. Did the Circuit Court err in affirming the Commissioner's Decision was supported by competent, material, and substantial evidence?

The Commissioner asks an additional question in its reply brief:

In the absence of legislative authorization, does [Madison Park] have the right to take an appeal of [the Commissioner]'s determination to this Court?

For the reasons set forth below, we find the Commissioner's decision to be supported by substantial evidence and affirm the decision of the circuit court.

Facts and Procedural History

Madison Park owns and operates Madison Park North Apartments (“MPNA”), comprising approximately two city blocks along North Avenue in Baltimore City. MPNA consists of twenty-six apartment buildings and fifty-two townhouses, totaling over two hundred units. The North Avenue area where MPNA is located is notorious for crime, particularly rampant drug trafficking and associated violence.

By letter dated August 16, 2010 (“Notice of Hearing”), the Commissioner notified Madison Park that the Department would hold a hearing on September 9, 2010, to “determine if the [License] for the property should be revoked.” The Notice of Hearing cited Baltimore City Code (“BCC”), Art. 13, §§ 5–15 and 5–16, which state:

§ 5–15. Revocation of license—In general.

Subject to the hearing provisions of § 5–16 of this subtitle, the Commissioner may revoke a license if the Commissioner finds, or if the Fire Chief, Health Commissioner, or Police Commissioner certify to the Commissioner, that:

(1) the owner or lessee of a multiple-family dwelling or rooming house has failed to comply with any lawful notice or order to correct a violation that affects the health, safety, morals, or general welfare of the occupants of the property or of the general public; or

(2) the owner or lessee of a multiple-family dwelling or rooming house, or any agent of the owner or lessee:

(i) has allowed the premises to be used for the purpose [of] prostitution, drug trafficking, or other criminal activity or for any other activity that creates or constitutes a nuisance; or

(ii) knew or should have known that the premises were being used for one of these purposes and failed to prevent them from being so used.

§ 5–16. Revocation of license—Notice and hearing.

(a) In general.

No license may be revoked unless the Commissioner first gives the licensee:

(1) not less than 10 days notice in writing of the Commissioner's intent to revoke the license; and

(2) an opportunity to be heard as to why the license should not be revoked.

(b) Exception.

The Commissioner may revoke a license without prior notice and opportunity to be heard if, in the opinion of the Commissioner or the Fire Chief, Health Commissioner, or Police Commissioner, the health, safety, or welfare of the occupants or of the general public are in imminent danger.

The Notice of Hearing cited numerous instances where the police responded to crime at the complex and stated:

There is sufficient evidence to establish that MPNA is being used for the purposes of drug usage, storage and trafficking and other drug-related activity that creates and constitutes a nuisance, as well as violent criminal activity constituting a nuisance, and that you knew or should have known that the premises were being used for these purposes and failed to prevent such use. By letter dated October 3, 2008, I alerted you to the overwhelming amount of serious, illegal drug activity, including drug-related crimes of violence, at MPNA in the hope that you would take whatever steps were necessary to prevent the premises from being so used. Unfortunately, you have failed to prevent the premises from being so used. Between October 3, 2008 and August 7, 2010, the police have been called to [the complex] hundreds of times....

It also stated, “You have the right to be heard and represented at the hearing. Failure to appear at the hearing will not prevent the Commissioner or the Commissioner's designee from issuing a default order to revoke the [License]. In revoking the [License], neither the Commissioner, the [Department], nor the City of Baltimore are taking possession, ownership or control of the property.” The Notice of Hearing further explained where the hearing would be held and the procedures Madison Park should follow to request a postponement.

The Rules adopted by the Commissioner, pursuant to BCC Art. 13, § 5–2, gave Madison Park the right to present evidence, call witnesses, make objections and argument, and established that the Commissioner “may revoke a license upon a finding by a ‘preponderance of the evidence....’ ” Madison Park was granted a postponement by letter dated September 2, 2010, and the hearing was rescheduled for September 22, 2010. Settlement attempts were unsuccessful between the parties prior to the hearing.

On September 22 and 23, 2010, the Commissioner conducted the revocation hearing. Testimony was taken from four Baltimore City police officers, a City official, a general partner of Madison Park, MPNA's property manager and maintenance supervisor, the commanding officer of the security company hired to police MPNA, a property management consultant, several MPNA residents, and a neighborhood community organizer. The Commissioner received into evidence 55 exhibits from the Department, including 49 police reports and other documentation of criminal activity in or around MPNA and 11 exhibits from Madison Park. Madison Park introduced evidence regarding how it had implemented crime-reduction measures at MPNA.

On October 15, 2010, the Commissioner issued a decision and order revoking Madison Park's License. In its decision, the Commissioner stated in part: ²

There was substantial credible testimony about the amount of crime at the complex. Major [Dennis] Smith [of the Baltimore Police Department (“BPD”) ] testified that the complex is “the most violent area in my district” ... [and] ... there are “at least three drug shops that I know of in the complex [or] related to the complex.”

* * *

Major Smith testified that the shops deal right out of the complex, and that “[s]everal of the players use the apartments to package their narcotics, store their narcotics.”

Lt. [Dorsey] McVicker [of the BPD] also testified that M[PNA] was used for drug trafficking, and named one dealer in particular....

Sgt. [Harvey] Martini [of the BPD] testified that he executed search and seizure warrants at “numerous locations” within the complex, based in part on sending confidential informants to purchase narcotics from someone in the complex. He testified that drugs were “stashed on the grounds, under the steps, in the stairwells, in the cellar parts, the basement parts of the buildings,” as well as in tenants' mailboxes.... Sgt. Martini concluded, “Due to the sheer volume of people that were in that complex,” the volume of crime was “worse in the complex” than it was in the Reservoir Hill neighborhood generally....

The extensive evidence of criminal activity at the complex, including [Department] exhibits 1–49, which are a collection of police documents showing mostly drug-trafficking related incidents on the property, was separately corroborated by a key MPNA witness, Lt. [Kirk] Kluver, commander of [MPNA]'s security forces....

The Commissioner found Lt. Kluver's testimony to be less credible than that of the BPD officers, and found that “Lt. Kluver suggested that crime had substantially dropped-off in the complex, but it was clear he was, at best, referring to the past month or two.” Overall, the Commissioner “found the testimony of the witnesses from BPD to be credible because it was candid, unrehearsed, and did not appear to be self-serving.” In contrast, the Commissioner found

that much of [Lt. Kluver's] testimony concerning the effectiveness of his own security efforts and what he called the diminishing amount of crime at the complex to be much less credible. It was contradicted by other substantial evidence of criminal activity.... I do not doubt Lt. Kluver's desire to see progress and improved security at the complex, but statements such as these [that no drug shops currently operate in MPNA], in light of the evidence, amount to an exaggeration of the success of the work of his security company.

Regarding Madison Park's plans and efforts to prevent crime, the Commissioner found:

Ms. [Shelby] Kaplan [the general partner of Madison Park] received a letter from Commissioner Graziano, in October 2008 [after Madison Park no longer employed off-duty BPD officers as security personnel]. Subsequent to receiving the letter, Ms. Kaplan, together with other managers of the complex, Ms. Lumley and Ms. Sherwell, met with City and BPD...