Bashaw v. State

219 S.W.3d 146, 364 Ark. 272, 2005 Ark. LEXIS 750
CourtSupreme Court of Arkansas
DecidedDecember 1, 2005
Docket04-897
StatusPublished
Cited by1 cases

This text of 219 S.W.3d 146 (Bashaw v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bashaw v. State, 219 S.W.3d 146, 364 Ark. 272, 2005 Ark. LEXIS 750 (Ark. 2005).

Opinion

Donald L. Corbin, Justice.

Appellants Glen Bashaw, Harold D. Goffin, Sr., and the Monticello Social Club, Inc., appeal the judgment and order of the Drew County Circuit Court finding that the Club was a public nuisance and enjoining its operation. The trial court further ordered the premises to be closed, unless and until it is demonstrated that compliance with the injunction has been made. On appeal, Appellants argue that the trial court erred in holding that (1) the activities of the Club constituted a public nuisance; and (2) the trial court had jurisdiction for the issuance of an injunction abating the operation of the Club as a public nuisance. This case comes to us by certification from the court of appeals; thus, jurisdiction is proper under Ark. Sup. Ct. R. l-2(b)(l) and (b)(4), as this case involves an issue of first impression and substantial public interest. We find no error and affirm.

Appellant Goffin is the operator of the Club, a non-profit corporation. The Club is licensed by the Arkansas Alcohol Beverage Control Board (ABC) as a private club. The Club is located at 111 North Conley Street, Monticello, Arkansas, on property owned and leased by Appellant Bashaw. The Club has been the site of numerous alcohol-related violations, as well as other criminal activity. Specifically, ABC Agent Roger Archie testified that Goffin and the Club had been cited for multiple violations, fined $500.00, suspended for two weeks, and placed on probation. These violations include the selling of unauthorized alcohol; selling alcohol in unauthorized containers; allowing minors on the premises without food service; gambling on the premises; and allowing an unauthorized weapon. Archie further testified that during the Club’s suspension, the Club continued to violate the rules by dispensing alcohol, failing to cooperate with law enforcement, and failing to be a good neighbor by allowing altercations on the premises.

In addition to the ABC violations, on February 14, 2003, the Monticello Police Department executed a search warrant and raided the Club. The police found club patrons engaged in a dice game for money. The police seized $7,172.25 and arrested Goffin for operating a gambling house. Following Goffin’s arrest, Bashaw terminated the Club’s lease but he has allowed the Club to continue using the premises on a month-by-month basis.

Lastly, the Club has been the site of at least forty disturbances, ranging from vandalism to theft to homicides. Based upon the alcohol violations, the gambling, and the numerous public disturbances, the State filed a complaint for abatement of a nuisance. On February 19, 2004, the trial court issued an order finding that the operation of the Club constituted a public nuisance, enjoining Goffin from operating the Club, and finding that Bashaw has the obligation to not knowingly allow illegal activity to occur on his property. This appeal followed.

I. Public Nuisance

Appellants’ first argument can be broken down into three sub-parts: (1) that the Club is not a public nuisance; (2) that Bashaw, an owner of the premises who is not a participant in the alleged misconduct, cannot be subject to an injunction; and (3) that the allowance of police investigation reports was hearsay. We initially note that the hearsay argument is not preserved for appeal, because the objection was withdrawn below. This court has held that when an objection is withdrawn, it is as though the objection was never made. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). This court will not consider arguments raised for the first time on appeal. Id. Consequently, we will not address the hearsay argument.

Appellants’ public nuisance argument is essentially a challenge to the sufficiency of the evidence to support the trial court’s finding. Specifically, they challenge the trial court’s finding that the operation of the Club was a common-law public nuisance.

This court has repeatedly held that the operation of a gambling house is a public nuisance. See Masterson v. State, 329 Ark. 443, 949 S.W.2d 63 (1997); Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943). Additionally, this court has found that the illegal sale of alcohol is a public nuisance. Click v. State, 206 Ark. 648, 176 S.W.2d 920 (1944). 1 There, this court found that even if an appellant is not convicted of the unlawful sale of alcohol, “it does not follow that his place of business did not become a nuisance for other unlawful practices and conduct, as disclosed by the evidence.” Id. at 652, 176 S.W.2d at 922. Moreover, a public nuisance can exist where the place of business or activities that occur on the premises constitute a threat to public health and safety. See Masterson, 329 Ark. 443, 949 S.W.2d 63; State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). In reviewing the trial court’s decision, we will not reverse its findings and conclusions unless they are clearly erroneous. Masterson, 329 Ark. 443, 949 S.W.2d 63. With this in mind, we now turn to the present case.

In the present case, the trial court based its finding that the Club constituted a public nuisance upon a multitude of factors. Specifically, the trial court found that the Club was (1) unlawfully selling and dispensing alcoholic beverages; (2) permitting organized gambling on the premises; (3) selling alcohol in half-pints; (4) allowing minors into the Club; (5) selling alcohol for a flat fee; (6) allowing a shotgun to be accessible to patrons; and (7) advertising free alcohol. The court also noted that the Club and its immediate area have been the scene of numerous disturbances and breaches of the peace. Relying on this evidence, the court concluded that this unlawful activity in and around the Club constituted a threat to public health and safety and, thus, the Club was a public nuisance. This evidence is more than sufficient to support the trial court’s finding that the Club was a public nuisance.

Appellants’ remaining argument is that the trial court could not include Bashaw in its injunction because he was simply the owner of the premises and not a participant in the activities that created the public nuisance. While there is no Arkansas law directly on point, other jurisdictions have faced the issue of allowing an injunction in cases such as this.

In Armory Park Neighborhood Ass’n v. Episcopal Community Servs., 148 Ariz. 1, 712 P.2d 914 (1985), the Arizona Supreme Court explained that “[u]nder general tort law, liability for nuisance may be imposed upon one who sets in motion the forces which eventually cause the tortious act; liability will arise for a public nuisance when ‘one person’s acts set in motion a force or chain of events resulting in the invasion.’ ” Id. at 7, 712 P.2d at 920 (quoting Restatement (Second) of Torts § 824 cmt. b). Furthermore, in Packett v. Herbert, II, 237 Va.

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Bluebook (online)
219 S.W.3d 146, 364 Ark. 272, 2005 Ark. LEXIS 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bashaw-v-state-ark-2005.