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Brewington v. Davis

United States District Court, D. South Carolina, Florence Division

January 8, 2019

Henry Brewington and Virginia Brewington, individually and d/b/a Levelz Bar & Grill, Plaintiffs,
v.
Melvina Devine Davis and City of Myrtle Beach, Defendants.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE

         Plaintiffs Henry and Virginia Brewington filed this action in state court alleging the City of Myrtle Beach (“the City”) and Horry County (“the County”) unconstitutionally targeted their nightclub, Levelz Bar & Grill (“Levelz”), as part of a campaign to shut down undesirable businesses in the Myrtle Beach area. Plaintiffs asserted federal claims against the City and the County pursuant to 42 U.S.C. § 1983, and brought state law claims against the City, the County, and their landlord Melvina Davis (“Defendant Davis”). After the City removed the action to this Court, Defendant Davis filed a crossclaim against the City and the County under 42 U.S.C. § 1983.[1]

         The matter is now before the Court for a ruling on the City's motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons herein, the Court grants the motions as to Plaintiffs' and Davis's § 1983 claims and remands their pendent state law claims to state court.[2]

         Background

          In April 2014, Plaintiffs entered into a five-year lease agreement with Defendant Davis for property located at 515 9th Avenue North in the City.[3] Compl. [ECF No. 1-1] at ¶¶ 3, 9; Lease [ECF No. 16-1].[4] After renovating the existing building, Plaintiffs opened Levelz in July 2014. H. Brewington Dep. [ECF No. 76-3] at p. 30; H. Brewington Aff. [ECF No. 79-2] at p. 1; V. Brewington Aff. [ECF No. 79-3] at p. 1. Shortly thereafter, the Myrtle Beach Police Department (“MBPD”) began responding to multiple calls for service involving Levelz; these calls related to the following incidents:

October 18, 2014: Officer Lisa Robertson of the MBPD received an email from an agent of the South Carolina Law Enforcement Division (“SLED”) along with a picture indicating pyrotechnics were being served to customers on liquor bottles at Levelz. The information was conveyed to the Fire Marshal, who issued a citation to Mr. Brewington (he subsequently pled guilty and received a suspended fine).
1:33 AM on October 19, 2014: Two MBPD officers were conducting a “keep check” of Levelz due to a large crowd there, and while walking through the club, they found a patron with marijuana and arrested him.
2:20 AM on December 14, 2014: Police from the MBPD, SLED, and the Fifteenth Circuit Alcohol Enforcement Team conducted an operation at Levelz to determine if liquor was being sold after 2:00 AM on a Sunday in violation of S.C. Code Ann. § 61-6-1610. After a bartender served an undercover SLED agent a liquor drink, SLED issued Mr. Brewington an administrative violation. Officers also observed several liquor bottles on tables and patrons pouring drinks at their own will; SLED issued them a citation.
3:00 AM on December 14, 2014: Police arrested a patron who had marijuana. Additionally, an MBPD officer asked Plaintiffs about the strong odor of marijuana at Levelz, and Plaintiffs denied allowing any marijuana or illegal substances to be used at Levelz.

See MBPD Investigation File [ECF No. 76-11] at Bates #001-02, 004, 144-47, 149-61; Compl. At ¶¶ 14-16; H. Brewington Dep. at pp. 31-34; V. Brewington Dep. at pp. 32-36.

         Later in the day on December 14, 2014, Officer Robertson began a nuisance file on Levelz. See MBPD Investigation File at Bates #004. On December 17, Officer Robertson called Mr. Brewington and told him she needed to meet with him and his wife. Id. The next day (December 18), Officer Robertson and two other MBPD officers met with Plaintiffs at Levelz. Id.; V. Brewington Dep. at p.

         37. Plaintiffs told the MBPD officers that the “night had gotten out of control, ” that the security company they had hired “was not doing their job, ” and that they knew people were bringing alcohol inside Levelz and doing “free pours” (though Plaintiffs apparently did not realize this was illegal). See MBPD Investigation File at Bates #004. The MBPD officers advised Plaintiffs they were “on the radar for nuisance” because of the events that had occurred on December 14 (i.e., the after-hours sale of liquor and free pours of alcohol at tables).[5] Id. at Bates #004-05. However, the police visits continued:

3:20 AM on January 18, 2015: Mrs. Brewington called the MBPD about two men who started a fight inside Levelz that traveled outside into the parking lot; all subjects were gone when the MBPD arrived. Mrs. Brewington stated that one of the men was known to carry a pistol and that both men departed in a car driven by a man known “to do drive by shootings.”[6]
9:56 PM on January 24, 2015: An MBPD officer came to Levelz on a golf cart and told Plaintiffs that a shooting in a nearby city (Conway) was somehow linked to Levelz.
12:30 AM on January 25, 2015: Officers cited a passenger in the parking lot behind Levelz for simple possession of marijuana.
1:00 AM to 4:30 AM on January 25, 2015: Multiple MBPD officers (up to ten at a time) conducted multiple walkthroughs of Levelz.
1:07 AM on January 25, 2015: Officers conducted a walkthrough of Levelz and arrested a patron for marijuana.
2:24 AM on January 25, 2015: Four MBPD officers entered Levelz. One officer went to the men's restroom, one went onto the stage, and the other two went to the back of the building and then onto the stage. The officers left Levelz at 2:27 AM after finding no violations.
2:54 AM on January 25, 2015: Two females were having an argument near the rear entrance of Levelz, and after club staff diffused the argument, the women moved to the front of the club and began a fist fight. MBPD officers yelled for them to stop, but the fight continued with one of the individuals swinging at an officer and striking him in the head. Both parties were arrested and charged with fighting, assaulting a police officer, and resisting arrest.
2:54 AM on January 25, 2015: Officers arrested a person outside the front of Levelz for public intoxication, and also found marijuana during the arrest.

See MBPD Investigation File at Bates #002-03, 005, 064-65, 123-43; Compl. at ¶¶ 17-24; H. Brewington Dep. at p. 35; V. Brewington Dep. at pp. 38-40, 44-48.

         On January 26, 2015, Mrs. Brewington called Officer Robertson complaining of police harassment and excessive police presence at Levelz.[7] See Compl. at ¶ 25; V. Brewington Aff. at p. 2; MBPD Investigation File at Bates #006. Officer Robertson scheduled a meeting with Plaintiffs and City officials for February 2. Id.

         On January 27, 2015, Mr. Brewington signed a contract of sale with Natalie Litsey, who agreed to purchase Levelz for $150, 000 and assume the current lease with Defendant Davis. See Contract of Sale [ECF No. 79-1].

         On February 2, 2015, Plaintiffs attended the scheduled meeting with City officials (who included Officer Robertson, the Chief of the MBPD, and the City attorney) under the impression that the meeting would address their recent complaints of police harassment. See H. Brewington Aff. at pp. 2-3; V. Brewington Aff. at pp. 2-3; H. Brewington Dep. at pp. 39-40; V. Brewington Dep. at pp. 49-50. However, the meeting was not a discussion about their complaints, as Plaintiffs learned that the City desired to shut down Levelz. Id. The meeting was unfruitful and concluded with Plaintiffs refusing to voluntarily close Levelz. Id.

         Thereafter, on February 17, 2015, the State of South Carolina (on the relation of the Solicitor for the Fifteenth Judicial Circuit) commenced a public nuisance action against Plaintiffs pursuant to state law governing the abatement of nuisances. See State of South Carolina on the relation of Jimmy A. Richardson, II, Solicitor of the Fifteenth Judicial Circuit v. Henry Brewington & Virginia Brewington d/b/a Levelz Bar & Grill, Case No. 2015-CP-26-1228 [ECF No. 77-7]; see generally S.C. Code Ann. §§ 15-43-10 et seq. (codifying state procedure for abatement of nuisances).[8]

         Prior to the filing of the public nuisance action, the following events occurred. On February 5, 2015, Plaintiffs received correspondence from the Solicitor notifying them “‘that the property is reportedly being used for the unlawful possession and sale of controlled substances and for continuous breach of peace'” and that they had “ten days to abate the nuisance.”[9] Compl. at ¶ 28; V. Brewington Dep. at pp. 52-53. On February 10, the Solicitor sent the same notice to Plaintiffs' landlord, Defendant Davis. Notice [ECF No. 19-1 at p. 2]; see also Compl. at ¶ 29; H. Brewington Aff. at p. 3; V. Brewington Dep. at p. 54; Davis Dep. [ECF No. 91-1] at p. 2. Defendant Davis then informed Plaintiffs that she believed they had defaulted on their lease based on the public nuisance notice and that they needed to vacate the premises within ten days. Davis Correspondence [ECF No. 19-1 at pp. 1-3]; see also H. Brewington Aff. at p. 3; V. Brewington Aff. at pp. 2-3; H. Brewington Dep. at pp. 42-44.

         On February 15, 2015, a man was shot and killed outside Levelz. Compl. at ¶ 31; V. Brewington Dep. at p. 28; MBPD Investigation File at Bates #097-122. The victim had been a frequent patron at Levelz.[10] V. Brewington Dep. at pp. 58-59. Levelz had to immediately close because it was a crime scene. H. Brewington Dep. at p. 65.

         As mentioned above, on February 17, 2015, the Solicitor (in the name of the State of South Carolina) filed a verified petition seeking a temporary injunction and a permanent injunction against Levelz for operating a public nuisance in violation of S.C. Code Ann. §§ 15-43-10 et seq.[11] See Verified Petition/Nuisance Pleadings [ECF No. 77-7].[12] Plaintiffs were served with the petition. V. Brewington Dep. at p. 59. The state circuit court scheduled an emergency hearing for February 20, 2015. H. Brewington Dep. at p. 64. However, before the hearing, Plaintiffs-who were represented by counsel at the time-reached an agreement with the State, and the circuit court issued a consent order. See Order Granting Motion for Permanent Injunction [ECF Nos. 16-2 & 76-2]. Under the consent order dated February 20, 2015, Plaintiffs agreed to close Levelz for one year and were enjoined from operating a public nuisance anywhere in South Carolina. See Id. Specifically, the consent order provided:

1. Respondents Henry Brewington and Virginia Brewington d/b/a Levelz Bar & Grill, their agents, servants, subordinates, and employees, are enjoined and restrained from operating, using, maintaining, and assisting in the using and maintaining of Levelz Bar & Grill located at 515 9th Avenue North, Myrtle Beach, South Carolina in Horry County as ...

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