Alston v. State

226 S.W.2d 988, 216 Ark. 604, 1950 Ark. LEXIS 586

• Court: Supreme Court of Arkansas
• Decided: February 13, 1950
• Docket: 4-9077
• Status: Published

Opinions

Dunaway, J.

Appellant Alston was permanently enjoined from operating liis cafe where beer was sold and from further operation of his adjoining dance hall located in the town of Altus, Arkansas. From the findings of the Franklin Circuit Court that appellant’s operations constituted a public nuisance and the judgment abating this nuisance, comes this appeal.

On February 21, 1949, the Prosecuting Attorney of the Fifteenth Judicial District, proceeding under Ark. Stats. (1947), §§ 34-101 et seq., filed a “Petition for Closing Order” alleging that appellant’s establishment, known as “Jim Jack’s Place” was operated as a public nuisance because of various violations of the law occurring there. The court entered a temporary closing order upon the filing of the petition. An amended petition was filed alleging additional grounds for closing appellant’s business. All allegations were denied by the proprietor, and at the trial of the cause on March 3,1949, the alleged and controverted law violations suffered on the premises were these: (1) Drunk and intoxicated persons are allowed to congregate about the premises; (2) beer and other intoxicating beverages are sold to minors; (3) fights, affrays and other public disturbances occur late at night; (4) persons and vehicles congregate about the place in such a manner as to constitute a traffic hazard; (5) loud and boisterous noises disturb the neighborhood; (6) beer is sold in a place where dancing is permitted on the same premises, in violation of § 40, Revised State Beer, Wine and Liquor Regulations, (1946) promulgated by the Commissioner of Revenues, said Regulations having the force and effect of law.

The court found that many intoxicated persons had been about the premises and a number arrested for drunkenness ; that on two occasions beer was served to minors; that there had been some fights; that empty liquor bottles had been found scattered about the premises; that crowds of from 150 to 400 or 500 came to appellant’s place of business; that no special permit authorizing dancing where beer was served had been obtained in accordance with the Revenue Commissioner’s Regulations. The judgment of the court concluded with this language:

“All of defendant’s operations were in violation of the laws of our State and against the well being of the citizenship of Altus and the surrounding communities, and constituted a public nuisance.

“It is therefore the order and judgment of the court that the defendant and all other persons are enjoined permanently from the further operation of the sale of beer or other intoxicants and dancing in the propel^ here involved. ’ ’

This cause was tried in the Circuit Court. The statute (Ark. Stats. 1947, § 34-102) confers jurisdiction to abate public nuisances on both Chancery and Circuit Courts and provides (Ark. Stats. 1947, § 34-105) that the proceedings “shall be conducted in accordance with the procedure of the courts of chancery where not otherwise expressly provided herein.” That the scope of our review in cases of this kind is the same- as in chancery appeals was stated in Click v. State, 206 Ark. 648, 176 S. W. 2d 920. The question before us then is whether the preponderance of the testimony supports the findings of the lower court that appellant’s business constituted a public nuisance.

The pertinent language of the statute under which this action was brought is as follows: (Ark. Stats. 1947, § 34-101) “The conducting, maintaining, carrying on, or engaging in the sale of alcoholic liquors, including wines and beer of all kinds, in violation of any of the laws of- this State, in any building, structure, or place within this State, and the conducting, maintaining, carrying on, or engaging-in the operation of auy so-called roadhouse or other similar place of entertainment, or of any so-called tourist camp, or of any public dance hall or place, in violation of any of the laws of this State, *! * * are hereby declared to be public nuisances, and may be abated under the provisions of this act (§§ 34-101 — 34-110). Any person, persons, firm or corporation conducting, maintaining, carrying on, or engaging in any of the businesses or occupations or undertakings aforesaid, who shall suffer or permit violations of any of the laws of this State in, upon or about the premises operated by him, them, or it, shall be deemed and held to be conducting, maintaining, carrying on, and engaging in the said business, or occupation, or undertaking-in violation of the laws of this State. ’ ’

It will be noted that this statute declares to be a public nuisance a place where the proprietor and his agents engage in certain affirmative acts violative of the law. Such a place of business may also be a nuisance, even in the absence of affirmative unlawful acts on the part of the proprietor or his agents and employees, if he “shall suffer or permit violations of any of the laws of this State” bn or about the premises. This court has frequently affirmed judgments abating as public nuisances enterprises such as the one in the case at bar, where there was no direct proof of willful law violations by the proprietor; but in these cases there has always been an allegation and proof of “frequent” violations, or of violations taking place “repeatedly” and as a “common occurrence” on the offending premises. See Portman v. State ex rel. Wood, 204 Ark. 349, 162 S. W. 2d 67; Click v. State, supra; Digiacomo v. State, 194 Ark. 24, 105 S. W. 2d 78. Unless a proprietor or those acting for him are shown to have committed some of the acts proscribed, or are shown to have acquiesced in allowing violations of the law by others, more than an isolated or occasional violation by some outsider is required before a person’s place of business can be abated as a nuisance on the theory that he “suffered or permitted” such violations.

The nature of the showing which- must be made to establish a place as a public nuisance under statutes similar to our own has been discussed by the courts of other jurisdictions. In State v. Bernweiser, 39 Wyo. 314, 271 Pac. 13, the Supreme Court of Wyoming- said at page 15:

“The fact that liquor has been sold once, or even oftener, in a building, does not necessarily establish the character of the building as a common nuisance. The test of a nuisance is not the number of sales, or the length of time liquor is kept, but whether the place is maintained for keeping and selling in the sense of the statute. In the equitable proceeding for injunction, the court is dealing with a place of a forbidden character and not with a forbidden act of sale. United States v. Ward (C.C.A.), 6 F.2d 182. For the punishment of a mere forbidden act of sale, the statutes providing for criminal prosecution furnish an adequate remedy. Barker v. United States (C.C.A.), 289 F. 249; Muncy v. United States (C.C.A.), 289 F. 780. Before a court of equity should declare a place a common nuisance under the statute, it should be convinced that the place has been used for the forbidden purpose habitually, continuously, or recurrently.

“ * * *, it is not necessary, in order to show a nuisance, that there shall be direct evidence of a series of sales throughout any particular period. Sales on a single day, or even a single sale, may be made in such circumstances as to justify the inference that use of the building in making the sale or sales proved was a part of a habit or practice. ’ ’

The same standard of proof was stated by the Supreme Court of Tennessee in State v. James, 177 Tenn. 21, 145 S. W. 2d 783 at page 785: “The logical test which ought to be applied in every case, is not the number of sales which the evidence establishes was made but whether the evidence taken as a whole indicates recurrent acts which amount to a nuisance, * "

The cafe in question is in a room about 30 by 40 feet and the dance hall occupies a space of about 40 by 80 feet in the same building. There is no door inside the building from one room to the other, and the outside entrances to the two rooms are about 20 feet apart.

The testimony introduced by the state to establish the existence of the nuisance alleged is as follows: Four boys, whose ages were 15, 18, 19 and 20 years, testified that on January 24, 1949, they went together into appellant’s cafe and sat in a booth. The two younger boys drank coca-colas, while the two older boys each had one bottle of beer. These boys testified that some man whom they had met in their home town of Clarksville, bnt whose name was unknown to them, had bought the beer and given it to them. Their positive testimony was that this man was not a clerk of appellant, and that he left the place after giving the beer to them. The 19 year old boy further testified that he had beer given to him on one or possibly two previous occasions; that on one of these occasions someone, not an employee of appellant, had brought a beer outside to him where he was sitting in a car. This is the only testimony that beer or any alcoholic beverage was ever consumed on the premises by minors. There was no evidence whatever that any sales of beer had ever been made to minors, and no proof that on the occasions above described appellant or his employees knew that any beer had been given to minors. In fact one of the State’s witnesses testified that he had once tried to buy beer but was refused because he was a minor.

Sheriff Bill Bussell testified that when appellant first started business there was some difficulty because of cars parking too close to the shoulder of the highway. This situation was corrected by the establishment of a parking area across the highway and the hiring of a man to park the cars. Clearance along the highway had been good since the problem was called to appellant’s attention. The Sheriff further testified that he had made “occasional” arrests at the place. The only fight he recalled was one which occurred after appellant had closed for the night and this took place in a filling station about 100 feet down the road from appellant’s building. As to finding empty whiskey bottles about the premises, the Sheriff testified he found eight bottles, some of which were in the parking area across the highway, and this was the day after the place had been closed by the temporary order. The Sheriff also testified that the most arrests for drunkenness he had made here on a Saturday night was three, and on some Saturday nights no arrests at all were made. His testimony further was that during his two years as Sheriff none of the neighbors had complained of noises or disturbances at appellant’s place, and that he had never received any complaints from citizens of Altus that this was a disorderly place of business.

James Shelton, marshal of Altus and deputy sheriff, gave this testimony: He spent part of every night at ‘ ‘ Jim Jack’s Place, ’ ’ where on Saturday nights there were sometimes as many as 400 people. During the past year he had made some arrests here, usually on Saturday nights and mostly for drunkenness. He recalled one fight starting inside the place, but this was stopped after ‘ ‘ one lick ’ ’ was struck. The only other fight he recalled was one on the outside. Appellant did not sell beer to minors and the witness never saw any minors drinking beer, though he had seen a number of young people in the cafe where sandwiches and soft drinks were sold. His testimony for the State concluded with the statement that the dance hall “is not a disorderly place.”

Jim Hyde, another witness for the State, testified that he was a deputy sheriff who worked at “Jim Jack’s Place” on Friday and Saturday nights for eight or ten weeks. He described “one or two little rows”, which were stopped just as they began. This witness further said that on some Saturday nights as many as four or five persons were arrested for drunkenness, while on other Saturday nights there were none. He stated that sometimes at this place, as at other beer taverns, people who had been drinking before arriving would become noticeably intoxicated after having a bottle or two of beer, and would have to be removed. On cross-examination, this witness admitted that only two people had been taken out of the cafe in a drunken condition to his knowledge, and that one middle-aged woman had been removed from the dance hall. He stated that he had never received any complaints that this was a disorderly place.

Lee Cannady, who lived in Altus 600 feet from appellant’s place, testifying for the State, said that he was disturbed at night by the cars passing his house on the highway. “Q. You haven’t noticed any fighting or any other disturbances? A. No sir.” . . . “Q. You are not objecting to his place of business? A. No, sir.”

This was all the proof made to show that appellant was maintaining a public unisance.

A large number of witnesses testified on behalf of appellant, some as to conditions existing according to their own observations and others as to the general reputation of the place as being orderly. Only a brief general statement of their testimony will be given. The mayor, recorder and two aldermen of Altus; the tax assessor of Franklin County and his deputy, a deputy sheriff, two school teachers, several business men and numerous others testified that the general reputation of the place as being orderly was good. The deputy sheriff testified that from his own personal knowledge he knew that many persons who had been arrested around “Jim Jack’s Place” for drunkenness had arrived there intoxicated and were arrested before they ever entered the cafe or dance hall. The revenue inspector for. Franklin County testified that he had recommended the issuance of appellant’s beer license, and had inspected the place from time to time. As to the sale of beer on the same premises where dancing was permitted, he testified that the practice under this regulation was not to require a special permit where there is no entrance connecting the room in which beer is sold with the dance hall.

We have concluded that the findings of the trial court are against the preponderance of the testimony. Giving the State’s testimony its strongest probative value, the proof is that drunks were arrested from time to time. There is no proof that they became intoxicated in appellant’s place of business or that they were permitted to congregate there. Indeed, the testimony of the deputy sheriffs is that appellant arranged-to have them on hand the nights large crowds were present for the very purpose of removing intoxicated persons and preventing them from congregating about'liis place.

The State relies on the case of Digiacomo v. State, supra, in arguing that sale of beer to minors has been sufficiently established in the instant case. The facts in that case were far different: There two young girls, 13 •and 17 years of age, testified that on several occasions they had been in Digiacomo’s combination meat market and cafe where they had been served beer. The defense was made that the girls’ escorts bought the beer and that the proprietor had given orders that no beer was to be sold to minors. The proof was undisputed, however, that the minors drank the beer at a table “close to the counter” while employees of the place “were standing right there” and that a waitress had served them the beer. It was held that in these circumstances the employer was responsible for the sales made by his employees. The distinction between that situation and the one here shown is obvious. There is no proof that anyone connected with appellant’s business either knew or could have known of the isolated instances where a minor consumed one bottle of beer.

Disregarding completely the testimony as to the good reputation of appellant’s place of business, the undisputed evidence shows no violations of the law by appellant or his agents, and recurrent permitted violations by others upon his premises are not shown by a preponderance of the testimony.

The judgment is reversed and the cause dismissed.

The Chief Justice and Mr. Justice Holt dissent; Mr. Justice McFaddin dissents in part.