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Commonwealth v. Down Low Nightclub

March 12, 2010

COMMONWEALTH OF PENNSYLVANIA, BY THE CITY OF ALLENTOWN
v.
THE DOWN LOW NIGHTCLUB, THE DRAVECZ CORPORATION, AND GEZA FREY, SR., APPELLANTS



The opinion of the court was delivered by: Senior Judge Kelley

Argued: February 8, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Geza Frey, Sr., The Dravecz Corporation, and The Down Low Nightclub (hereinafter collectively referred to as "The Down Low") appeal from the April 24, 2009 Final Injunction and Order of Court entered by the Court of Common Pleas of Lehigh County (trial court) which, inter alia, enjoined The Down Low from operating for a period of one year. We affirm.

The Dravecz Corporation and The Down Low are owned by Geza Frey, Sr. The Down Low advertises as a weekend after hours non-alcoholic dance club and is located at 333-335 Hamilton Street, Allentown, Pennsylvania. The Down Low does not possess a license to sell alcoholic beverages in the Commonwealth of Pennsylvania.

On March 10, 2008, the City of Allentown (Allentown), in the name of the Commonwealth of Pennsylvania, filed a complaint with the trial court, pursuant to Section 611 of the Liquor Code,*fn1 requesting that The Down Low be enjoined for at least one year from occupying or using the premises upon which The Down Low was located and operated. On May 14, 2008, Allentown filed a motion for a preliminary injunction seeking to have The Down Low declared a nuisance and closed pending a final injunction hearing. Based on the evidence presented at the August 18, 2008 hearing on the motion for a preliminary injunction, the trial court found as follows.

On June 5, 2004, Jeremy Burton, a bartender at The Down Low, illegally sold an alcoholic beverage to an undercover officer of the Pennsylvania Bureau of Liquor Control Enforcement. Frey admitted that there was alcohol in a locked refrigerator behind the bar. Burton was convicted for the illegal liquor sale.

On May 6, 2006, Allentown police officers uncovered an illegal dog-fighting operation on the premises of The Down Low. Both the organizers and the spectators of the illegal dog fight were arrested and prosecuted. Frey was not present in The Down Low when the police discovered the dog fighting on May 6, 2006.

Roderick Jackson, a Liquor Control Officer with the Pennsylvania State Police, witnessed illegal sales of alcohol at The Down Low on several occasions in 2007; specifically, on March 11, 2007, June 3, 2007, June 23, 2007, Jackson purchased an alcoholic drink at The Down Low. Frey was present during the foregoing sales of alcohol and despite his denials, Frey knew alcohol was being sold at The Down Low each time Jackson purchased alcohol. Jackson notified the Allentown Police Department and Rafael Luis Sanchez was arrested and later convicted for the illegal liquor sales.

On January 14, 2007, February 4, 2007, March 11, 2007, April 21, 2007, January 12, 2008, and March 2, 2008, the Allentown Police Department responded to reports of assault and criminal activity at The Down Low. On February 11, 2007, April 8, 2007, September 23, 2007, and January 1, 2008, the police responded to reports of fights at The Down Low.

On August 22, 2008, the trial court entered an order granting the preliminary injunction and enjoining Frey, The Dravecz Corporation and The Down Low from conducting or operating the dance/music club known as the "Down Low" until further order of court in that The Down Low was a common nuisance pursuant to Section 611 of the Liquor Code. The August 22, 2008 preliminary injunction order further directed that, until further order of court, the business establishment located on the first floors and basement of 333-335 Hamilton Street shall not be occupied or used for any business purpose.

On March 11, 2009, Allentown filed a motion for contempt. Hearings on Allentown's complaint, request for final injunction and motion for contempt were conducted on March 13, and 30, 2009. The trial court found that Frey conducted business at The Down Low while the preliminary injunction was in effect, on November 15, 2008, November 16, 2008, February 1, 2009 and February 22, 2009, by admitting patrons on each of these dates for money or some other consideration to conduct dance, music and other events. As such, the trial court found The Down Low in contempt for violating the August 22, 2008 preliminary injunction order enjoining the club from operation.

The trial court also found, based on the evidence presented at the hearing on the request for preliminary injunction and the final hearings, that alcoholic beverages were possessed and sold at The Down Low, an establishment that lacked a liquor license, on June 5, 2004, and numerous occasions in 2007. Because of these incidents, the trial court found that The Down Low is a common nuisance under Section 611 of the Liquor Code, 47 P.S. §6-611. In deciding whether to close The Down Low, the trial court not only considered the illegal sale of alcohol but also the criminal activity that occurred inside and outside in the immediate vicinity of The Down Low. The trial court also took note of the increased security that The Down Low had put in place.

The trial court determined that the nuisance must be abated and that such abatement can occur for a period of up to one year under Section 611(c) of the Liquor Code, 47 P.S. ยง6-611(c). Because Frey and The Down Low had not yet complied with the order enjoining the business activities at 333-335 Hamilton Street, the trial court determined that the abatement of ...


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