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Atlantis Entertainment Group LLC v. City of Birmingham

Alabama Court of Civil Appeals

January 13, 2017

Atlantis Entertainment Group, LLC
v.
City of Birmingham

         Appeal from Jefferson Circuit Court (CV-15-284)

          DONALDSON, Judge.

         Atlantis Entertainment Group, LLC ("Atlantis"), appeals from the judgment of the Jefferson Circuit Court ("the trial court") affirming the resolution of the City of Birmingham ("the City") that revoked Atlantis's business licenses and rescinded approval of Atlantis's division I dance permit and special retail liquor license. We affirm the judgment.

         Facts and Procedural History

         Atlantis operated a nightclub and event venue ("the nightclub") in a building located within the territorial limits of the City. The building is in a shopping center that included a barbershop, a convenience store, a car wash, and a gas station. Daniel Vu, who is described in the record as the owner of Atlantis, also owns the properties in which the nearby businesses are located. An apartment complex is adjacent to those properties.

         In 2012, the Birmingham City Council ("the city council") issued resolutions approving of Atlantis's applications for a special retail liquor license and a dance permit.[1] Atlantis began operating under that license and permit. The City also issued business licenses to Atlantis, but the record does not indicate when those licenses were issued.

         On July 28, 2015, the city council conducted a public hearing ("the city council hearing") to consider revoking Atlantis's business licenses and rescinding its approval of Atlantis's special retail liquor license and dance permit. At the city council hearing, Steven Hoyt, a city council member, and Julie Barnard, a representative from the legal department of the City, both reported that the City had received a number of complaints about the operation of Atlantis. Although Hoyt praised Vu's operation of Atlantis, he stated that Vu had since turned over the operation of the business to other people. Hoyt expressed his concern for the safety of the patrons of Atlantis and residents living near the nightclub. Other council members also expressed their concerns over events that had been advertised and held by Atlantis.

         Ralph Patterson, a detective with the Birmingham Police Department and an investigator for the Alabama Public Safety Commission, stated that the city council members had been provided at the city council hearing with 12 police reports associated with Atlantis's operations. According to Patterson's statement, the police reports that were dated within six months of the hearing included descriptions of one false alarm, three incidents of assault resulting in injuries by gunshot, three incidents of shootings into occupied buildings, two incidents of shootings into occupied motor vehicles, and one incident involving the serving of an arrest warrant. Earlier police reports dated from October 26, 2014, to January 19, 2015, included incidents of harassment, a theft of personal property, a motor-vehicle break-in, a stolen motor vehicle, and a false alarm.

         Jeremy Cooper, a manager of Atlantis, along with Vu and his wife Stephanie Dang, spoke in favor of maintaining Atlantis's licenses and permits. Vu discussed efforts that had been made by Atlantis to provide sufficient security personnel for events. Vu stated that he was not aware of any shootings that had occurred at the nightclub, and he questioned the accuracy of the addresses used in the police reports. Cooper stated that the incidents referenced in the police reports happened nearby but not on Atlantis's property. In response to questions from city council members about the location of the reported shooting incidents, Patterson stated the following:

"Each incident report was done at a time when the club was open or closing. Those were Thursday nights, which fall into Friday, or Saturday nights, which go into Sunday morning.
"Each of these reports was done sometime between 11 p.m. and most often about 4 a.m. when this venue had been open. And the reports were done with a lot of specifics in the narrative of the incident reports where the individuals that are victims stated that they were leaving Club Atlantis when the shootings took place, whether they were shot in a vehicle, whether they were shot outside.
"The five incidents on the 16th of February, the first person that yelled at him in the narrative, LVP, LVP, LVP, and then they shot him.
"Then following that, there were four apartments adjacent to this location that were shot up.
"In all fairness, we want to be very fair to, not only ownership, the management, the patrons, but these are independent police reports that were done either by off-duty officers or officers that were called from the west precinct to the scene."

         Patterson stated that the police officers described the parking areas for patrons of Atlantis in their reports and further stated:

"There is parking directly across the street that they use. There is a car wash over there that is vacant. At night there is a barber shop that's across the street they use for parking. But everything is in close proximity to this establishment."

         At the city council hearing, the city council voted unanimously to revoke all of Atlantis's business licenses and permits and to rescind the approval of Atlantis's liquor license. The city council issued a resolution on July 28, 2015, declaring the following:

"WHEREAS, [the city council] heard testimony from [Atlantis's] representatives and the Birmingham Police Department related to the incidents and complaints at the business of persons injured or shot at or in the parking lot of Atlantis Center and damage to neighboring property that occurred in February and March, 2015; and,
"WHEREAS, [the city council] finds that the business activity as conducted by the licensee relates to the assaults and shootings at the property; and,
"WHEREAS, Ordinance No. 97-193, as amended, provides grounds for which [the city council] may revoke the business license for any business, including
"'If the licensee, his agent, servant, or employee has operated the business for which the license was issued in such a manner as to be detrimental to the public health, safety or welfare or so as to constitute a nuisance'; and,
"WHEREAS, Ala. Code 1975, Sec. 28-1-6(a), prescribes conditions under which [the city council] can refuse its consent to a business's licensing by the Alabama Alcoholic Beverage Control [('ABC')] Board and whereas [the city council] may consider those reasons to rescind its consent to a business's ABC license; and,
"WHEREAS, [the city council] finds the existence of conditions under Ala Code. 1975, Sec. 28-l-6(a)(1)b.2., 'Circumstances clearly detrimental to or which would adversely affect the public health, safety, and welfare of the adjacent residential neighborhoods, ' and Ala. Code 1975, Sec. 28-l-6(a)(1)b.7., 'Any other reason that poses a risk'; and,
"WHEREAS, [the city council] finds that it is in the best public interest of the City and the citizens of Birmingham that the business licenses previously issued to [Atlantis] ... be revoked and, furthermore, that Resolution No. 226-12 for a Special Retail Liquor License, approved on February 21, 2012, and Resolution No. 227-12, for a Division I Dance Permit, approved on February 21, 2012, for this business be rescinded.
"NOW THEREFORE BE IT THEREFORE RESOLVED by [the city council] of [the City], that the following business licenses issued to [Atlantis] ... under the following schedules of the Business License Code of the City of Birmingham, Ordinance No. 97-183, as amended, hereby are revoked and canceled:
"007A AGENTS, DEALERS OR OTHER BUSINESS 084A DIVISION I DANCING
"150M RETAIL BEER (ON-PREMISES AND OFF-PREMISES CONSUMPTION)
"1500 SPECIAL RETAIL - MORE THAN 30 DAYS
"150Y MONTHLY THREE PERCENT (3%) LIQUOR TAX
"213B REAL ESTATE LEASE OR RENTAL - SELF STORAGE
"BE IT FURTHER RESOLVED by [the city council] of [the City] that Resolution No. 226-12 for a Special Retail Liquor License, approved on February 21, 2012, and Resolution No. 227-12, for a Division I Dance Permit, approved on February 21, 2012, for this business are hereby rescinded and canceled."

         On August 4, 2015, Atlantis filed a complaint in the trial court alleging that the City had failed to follow its ordinances in revoking Atlantis's business licenses and rescinding approval of its liquor license and dance permit and/or that the City took such action in an arbitrary and capricious manner. The City answered the complaint and asserted various defenses. The trial court determined that Atlantis's complaint would be treated as a petition for the writ of certiorari and proceeded accordingly.

         The trial court received into evidence a video recording of the city council hearing, the police reports submitted to the city council with information redacted, and the police reports without any information redacted. The parties stipulated that Atlantis had received a properly issued liquor license before the city council hearing.

         Testimony at the hearing before the trial court established the following. Vu operated Atlantis when it was first formed in 2012. In July 2014, Cooper began managing Atlantis's operations. In March 2015, Patterson visited the nightclub and spoke to Cooper. According to Patterson's testimony, he informed Cooper of complaints that had been made against Atlantis and the reports of violence associated with the operation of the business. On July 8, 2015, Cooper and an attorney representing Atlantis attended a meeting of the City's public-safety committee. During that meeting, police reports listing the nightclub as the site of the incidents described in the reports were discussed. Cooper informed Vu about the meeting and the contents of the police reports. Several of the incidents described in the police reports presented at the city council hearing took place in the parking areas of the businesses located near the nightclub. The patrons of the nightclub used those areas for parking during events held by Atlantis. According to the testimony of several police officers, patrons of the nightclub also used the parking lots of a nearby apartment complex, resulting in complaints from residents of the apartments. Events at the nightclub often drew an audience of 300 to 400 people. Atlantis hired private contractors as well as off-duty Birmingham police officers to serve as security personnel. At Cooper's request, on-duty officers were called upon to help with the traffic congestion created by patrons leaving after large events.

         Vu testified that he hired 6 to 15 security personnel and a minimum of 2 to 15 off-duty police officers to provide security for events at the nightclub. Two police officers who worked off-duty at the nightclub during the six-month period before the city council hearing testified that normally four to five off-duty police officers provided security services during the nighttime operations at the nightclub, with one or two officers working outside in the parking area and the remainder working inside the building.

         Patterson testified that he had worked for the City's police department since 1992, that he had worked for 18 years investigating establishments with liquor licenses for compliance with licensing and permitting, and that he had worked as an off-duty police officer at establishments with liquor licenses. Patterson testified that the police reports listed the address of the nightclub as the site of incidents involving victims or perpetrators who were patrons of Atlantis. According to Patterson's testimony, the security personnel and safety measures utilized by Atlantis were insufficient for the size and type of the crowd attending Atlantis's events.

         Patterson testified that one of his duties was to collect all police reports, including reports of false-alarm incidents, listing the address of a licensed establishment in order to impartially present information to the city council at a hearing. The police reports presented to the city council in this case included reports of an incident involving a false alarm and of an incident involving the serving of an arrest warrant by an off-duty police officer. Atlantis presented testimony that the address for the site of the incidents on some of the police reports presented to the city council had been redacted. Patterson testified that, at the city council hearing, he had stated that the police reports listed the address of the nightclub. The trial court acknowledged that, in a video recording of the city council hearing, city council members did not appear ...


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