Opinion
No. 78252.
Decided June 7, 2001.
Civil appeal from the Court of Common Pleas Case No. CV-407017.
ANTHONY D. JORDAN, ESQ., Chief Asst. Director of Law, for Plaintiff-Appellant.
SCOTT J. DAVIS, ESQ., Asst. Director of Law 601 Lakeside Avenue, #106 Cleveland, Ohio 44114.
JOHN J. KULIG, ESQ., ALAN GREENBERG, ESQ., DAVID A. SNOW, ESQ., for Defendants-Appellees.
JOURNAL ENTRY AND OPINION
Appellant, The State of Ohio ex rel. City of Cleveland, is appealing the trial court's judgment denying appellant's petition to abate a nuisance. The alleged nuisance occurred on the premises of appellee, Beehive Tavern, which was owned by appellee, Floyd Whittington. For the following reasons, we reverse and remand.
Timothy Melena testified that he is the councilman for Ward 17, where the Beehive Tavern is located. In late 1999, many of Melena's constituents complained about drug dealing, gambling, underage drinking and weapons violations at the Beehive Tavern.
Alex Brazynetz, who lived and worked in the neighborhood, testified that the Beehive had a reputation for rowdiness and fights. Over the last six months, the premises had become noisier and more crowded.
Jean Borlinghausen testified that she lives in a house directly behind the Beehive Tavern. She has seen people in the parking lot of the Beehive smoking marijuana. She has seen people outside the Beehive exchange items for money. She thinks the items were drugs.
Detective Dvorak of the Cleveland Police Department testified that confidential reliable informants made three controlled drug buys of cocaine in the Beehive Tavern. Two of the controlled buys were made from bar employees. A search warrant was obtained and executed. The police found eighty-five grams of marijuana in thirty separate baggies, crack cocaine and a crack pipe. These items were thrown on the dance floor by unknown persons. Floyd Whittington, the bar owner, was found in possession of less than one gram of cocaine. Another male had two bags of cocaine, each containing less than one gram. In the basement, the officers found suspected packaging material for cocaine, suspected cut from cocaine and a spoon that someone had used to cook crack cocaine. There were four guns in Whittington's office, three of which were loaded. Six people were arrested in the raid.
Barbara Hamila testified that she sold the bar to Floyd Whittington in October of 1999. The liquor license had not yet transferred to Whittington.
Floyd Whittington testified that there were as many as sixty patrons in the bar at once. There were video cameras installed in the bar, that he monitors for illegal activities. He also has video surveillance of the parking lot. The baggies and ties were in the basement because they were used to package sandwiches. Whittington had a baggie of drugs on him when arrested because he had picked it up off the floor of the bar, and did not realize what the bag contained. He did not know of any of his employees that used or sold drugs. Whittington has since withdrawn his application to have the liquor license transferred to him.
I.
Appellant's first assignment of error states:
AS A MATTER OF LAW, THE TRIAL COURT ERRED IN HOLDING THAT, PLAINTIFF MUST PROVE KNOWLEDGE, ACQUIESCENCE, AND PARTICIPATION, ON THE PART OF A COMMERCIAL PROPERTY OWNER, IN ORDER TO FIND THAT OWNER GUILTY OF THE CIVIL OFFENSE OF MAINTAINING A NUISANCE UNDER R.C. 3767.01.
The trial court's journal entry states that the court can not order an injunction on a nuisance unless the State proves that the owner negligently or knowingly acquiesced or participated in the creation or perpetration of the nuisance. This statement is partially incorrect.
The civil offense of maintaining nuisance does not require proof that owner of the property acquiesced to or participated in the creation of the nuisance. State ex rel. Pizza v. Rezcallah (1998), 84 Ohio St.3d 116. An injunction closing the place where the nuisance is found for one year can not be issued against an owner who did not acquiesce or participate in the creation or perpetration of nuisance. Id. If the court determines the owner acted in good faith, and was innocent of any acquiescence to or participation in the conduct establishing the nuisance, and took prompt action to abate the nuisance, no closure order shall be issued under R.C. 3767.06(A) and no tax shall be imposed pursuant to R.C. 3767.09. Id. The court may still impose an abatement order and permanent injunction to stop the nuisance, even if the owner was not negligent and did not have knowledge of the nuisance. Id.
The trial court was correct in that an injunction closing the property for one year can not be imposed against an owner who did not acquiesce or participate in the nuisance. An injunction order to stop the nuisance can be imposed, however. See State ex. rel. Pizza, supra.
Accordingly, this assignment of error is sustained.
II.
Appellant's second assignment of error states:
THE TRIAL COURTS FINDING THAT APPELLANT HAD NOT PROVEN, BY CLEAR AND CONVINCING EVIDENCE, THE EXISTENCE OF A NUISANCE AT THE SUBJECT PREMISES IS AGAINST THE WEIGHT OF THE EVIDENCE.
Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279 . The credibility of witnesses is primarily for the trier of fact. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. If our review of the record does not reveal any basis for denying the petition, or any competent, credible evidence in support of the trial court's decision, the decision may be reversed as against the manifest weight of the evidence. Sroka v. Sroka (1997), 121 Ohio App.3d 728.
A nuisance means any place where beer or intoxicating liquor is sold where the operation of that place:
. . . substantially interferes with public decency, sobriety, peace, and good order. "Violation of law" includes, but is not limited to . . . any violation of section 2925.03 (drug trafficking) of the Revised Code.
R.C. 3767.01(C)(3). A premises upon which a felony violation of Chapter 2925 (drug offenses) of the Revised Code occurs constitutes a nuisance subject to abatement. R.C. 3719.10, see also R.C. 3767.01(C)(1). To prove a nuisance under R.C. 3719.10, a plaintiff must show by clear and convincing evidence that chronic felony violations of R.C. Chapter 2925 occurred on the premises. State ex rel. Freeman v. Pierce (1991), 61 Ohio App.3d 663, 670; State ex rel. Miller v. Anthony (1995), 72 Ohio St.3d 132, 135. Only proof of a de facto `violation' of criminal law, not a de jure conviction is required. State ex rel. Freeman, supra, at 667.
Here, there was evidence that: (1) Confidential reliable informants purchased cocaine in the Beehive on three separate occasions; (2) Marijuana in separate baggies was found by police during a raid, but they were not in possession of anyone; (3) The owner of the bar, Whittington, was in possession of less than one gram of cocaine; (4) a neighbor observed suspicious exchanges in the parking lot; (5) the councilman received complaints about drug activity. The sale or possession of cocaine in an amount less than five grams, or of crack cocaine in an amount less than one gram is a fifth degree felony. See R.C. 2925.11(C)(4)(a); 2925.03(C)(4)(a).
The trial court apparently believed Whittinger's testimony that he did not knowingly possess cocaine. The court's journal entry stated that the State did not establish that Whittington or any of his employees committed a crime or were indicted on felony drug charges. It is not required that the owner or the employees must participate in the nuisance. See State ex. rel. Pizza, supra. Even if Whittington did not commit a felony violation, there was still considerable evidence that chronic drug trafficking was taking place at the bar.
There was no evidence disputing the three separate controlled buys of cocaine at the Beehive. Also, on another occasion, someone at the bar was in possession of 85 grams of marijuana in thirty baggies, which indicated drug trafficking. There was no reason to disbelieve the councilman's evidence concerning drug sale complaints. There was also no reason to disbelieve Ms. Borlinghausen's testimony concerning the suspicious transactions. There was clear and convincing evidence of chronic drug violations on the premises. The trial court had no reason to deny appellant's petition. The court's decision was not supported by competent, credible evidence.
The trial court found that there must be either evidence of the general reputation of the place or an admission or finding of guilt of prohibited conduct. See R.C. 3767.05(A). R.C. 3767.05(A) states that evidence of the general reputation of the place or an admission or finding of guilt of criminal conduct is admissible for the purpose of proving the existence of the nuisance and is prima-facie evidence of the nuisance. The statute does not say that such evidence is required. Moreover, the evidence indicated that the Beehive had a general reputation for illegal drug sales.
The trial court also denied the injunction because the State did not notify the department of liquor control of the abatement action. See R.C. 3767.03. R.C. 3767.03 provides that when a nuisance action against the holder of a liquor permit is brought, the State shall notify the department of liquor control. The State filed its action against the Beehive and Whittington, and technically, Mrs. Hamila was the holder of the liquor permit. Regardless, there is no authority that R.C. 3767.03 requires notification to the liquor control division in order to obtain abatement of a nuisance.
Accordingly, this assignment of error is sustained.
The decision of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellants recover of said appellees their costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA A. BLACKMON, J., CONCURS JAMES D. SWEENEY, J., DISSENTS (SEE ATTACHED DISSENTING OPINION)
________________ ANN DYKE, JUDGE
I respectfully dissent from the majority's resolution of this appeal.
The underlying action involved the shutting down of the defendant-appellee Beehive Tavern by the plaintiff-appellant City of Cleveland. The basis for the closure was that the bar constituted a public nuisance under R.C. 3767.01 et seq., in that there were complaints from community members of chronic drug sales, underage drinking, refuse in the parking lots, and weapons violations on the premises. These complaints were partially corroborated by two controlled drug sales (cocaine) by employees of the bar (not the owner) to confidential police informants over a period of several days. The owner, Floyd Whittington, denied any knowledge of his employees using or selling drugs.
The City points to a number of items seized when they raided the bar at 12:15 a.m., April 8, 2000, to justify the bar's closure, including the following: (1) gambling devices in the form of instant bingo slips [there was no evidence that the owner had any involvement with, or knowledge of, these items]; (2) four guns [one of which had the serial number filed off; the owner testified that the guns were in a locked room and that two of the guns, which were found in the parking lot or by the dumpster prior to his purchase of the bar, were left on the premises when he assumed ownership of the premises, and the other two weapons were the property of a former employee who had left his employment]; (3) material substance suspected of being used to cut/adulterate cocaine [the owner denied knowledge of it since he had recently purchased the bar]; (4) a spoon suspected to be used to cook cocaine [the owner denied knowledge of it since he had recently purchased the bar and because he does not use spoons in the operation of the bar]; and, (5) baggie ties commonly used for the sale of cocaine found in the basement office of the bar [the owner explained that baggies and baggie ties were in the office because he and his staff made and kept meat sandwiches in the office refrigerator]. The bar owner was found with a plastic ziploc baggie on his person (the owner explained that he picked this baggie off the floor when he saw it as a piece of trash while walking about the bar); the baggie tested positive for cocaine residue.
The trial court denied the City's request for an abatement order and for preliminary and permanent injunction against the bar. It is from this order that the City appeals. Two assignments of error are presented for review.
The first assignment of error provides:
I
AS A MATTER OF LAW, THE TRIAL COURT ERRED IN HOLDING THAT, PLAINTIFF MUST PROVE KNOWLEDGE, ACQUIESCENCE, AND PARTICIPATION, ON THE PART OF A COMMERCIAL PROPERTY OWNER, IN ORDER TO FIND THAT OWNER GUILTY OF THE CIVIL OFFENSE OF MAINTAINING A NUISANCE UNDER R.C. 3767.01.
The first assignment argues that the trial court applied the incorrect burden of proof with regard to the owner's knowledge and participation in the creation of the nuisance. In order to demonstrate the offense of maintaining a public nuisance under R.C. 3767, it need not be shown that the owner of the premises knew of, acquiesced in, or participated in the activities creating the nuisance. State ex rel. Pizza v. Rezcallah (1998), 84 Ohio St.3d 116, paragraph one of the syllabus. If a nuisance, as defined in R.C. 3767.02(A) is demonstrated, which is a very low threshold under that section, closure is mandated by R.C. 3767.06(A). However, the mandatory closure may be not be imposed and enforced against a property owner who lacks any culpability in the creation or perpetuation of a nuisance on the property. Rezcallah, at 132, citing Section 19, Article I of the Ohio Constitution.
The trial court based its denial of the mandatory closure of the premises on the City's failure to prove the owner's knowledge or participation in the creation of the nuisance, or perpetuation of the nuisance activities. The appellant-City argues that the trial court applied an improper burden of proof on the City when it stated in its order that, 3. A relator `must prove that the owner negligently or knowingly acquiesced or participated in the creation of a nuisance . . .'; the City seems to argue that the owner's knowledge and acquiescence is never material, overlooking the fact that Rezcallah provides for avoidance of the imposition of mandatory closure if an owner is not culpable in the creation of the nuisance and takes prompt action to abate or control the nuisance activities.
The evidence, particularly the testimony of the premises owner, supports the trial court's conclusion that mandatory closure should not be imposed due to the failure of the City to prove, by clear and convincing evidence, that the owner was culpable in the creation or perpetuation of the nuisance activities. Reading the owner's testimony, he outlines a number of steps he took to abate or control the nuisance activities once he purchased the bar in October of 1999, including: (1) hiring private security to guard the front and back entrance doors of the bar during operating hours and screen patrons for proper identification and stop any disturbances within the bar; (2) keeping the volume of the music within the bar at a level which would permit patrons to engage in conversation; (3) using four surveillance video cameras in each corner of the bar whose videotapes are reviewed by the owner for illegal or improper activity, and providing these tapes to the police and fire departments when those authorities need them; (4) providing bouncers, in addition to the security guards at the doors, to patrol the bar area to control fighting and disturbances by the patrons; (5) clearing the parking lot at 2:30 a.m., after the bar closing, so that the fire department has clear access to adjoining properties; (6) using a video surveillance camera, with a feed to a closed circuit monitor inside the bar, to observe the parking lots during operating hours for disturbances and to alert the bar when the parking or patrons obstruct the adjoining alleyway; (7) the owner regularly cleans the exterior of the property and picks up trash, packaging, wrapping, and bottles, some of which were not from the owner's bar; (8) the owner regularly cleaned up the yard and driveway of the property which adjoined the bar, including plowing the driveway during the winter; (9) keeping clean the interior and exterior of the bar; (10) talking to the local police district commander to see if there was anything that the bar could do to make the premises safe or to not pose a problem with the police; (11) using the guards to break up overly large groups of patrons who may mill around the property; (12) having signage on the premises prohibiting the use of drugs, and removing any person who violates this prohibition; (13) not allowing patrons to sit in their cars, instead, these patrons would be asked to leave or come inside the bar so as to reduce outside congestion and better aid police surveillance and patrol of the area; (14) not permitting patrons to carry their drinks outside the bar.
The owner testified that, to his knowledge, he has never had to call for the police to quell a disturbance at the bar and no one has ever been arrested at the bar, for any reason. Tr. 73.
It is somewhat ironic, and amusing, that many of these same sorts of objectionable activities (refuse, congestion, illicit sales, disorderly conduct) are present surrounding the major sports franchises in the City of Cleveland and these franchises use similar mitigation measures to control the development of nuisance activities at or near their events, events which are far larger in terms of patronage than the bar in question herein. Yet, there is no comparable action by the City to shutter those franchises' place of business as that employed against the Beehive Tavern.
Further corroborating the testimony of the owner that there was no perpetuation of criminal activity or chronic drug activity at the bar by the owner, Cleveland Police Detective Dvorak testified that there was no pattern of criminal activity at the bar, just isolated instances of disorderly conduct or marijuana usage, which is common in bars around the city. Tr. 54-55.
The first assignment of error should be overruled.
The second assignment of error provides:
II
THE TRIAL COURT'S FINDING THAT APPELLANT HAD NOT PROVEN, BY CLEAR AND CONVINCING EVIDENCE, THE EXISTENCE OF A NUISANCE AT THE SUBJECT PREMISES IS AGAINST THE WEIGHT OF THE EVIDENCE.
The second assignment argues that the manifest weight of the evidence supports the finding of a nuisance by clear and convincing evidence. While the nuisance itself is proven since the owner had an interest in the premises which constituted the nuisance, see R.C. 3767.02(A), the City overlooks the lack of clear and convincing evidence tying the owner to the creation of the nuisance activities or lack of controlling the continued existence of the nuisance activities. The trial court is the judge of the credibility of the witnesses. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Where the trial court has some competent and credible evidence to support its conclusion, its decision will not be reversed as being against the manifest weight of the evidence. See C.E. Morris Co. V. Foley Constr. Co. (1978), 54 Ohio St.2d 279. In the present case, the trial court had competent and credible evidence which it could believe to demonstrate that the owner was not culpable in the creation or maintenance of the nuisance and, therefore, that mandatory closure was not warranted.
The second assignment of error should be overruled.
In summary, I would affirm the judgment of the trial court.