STATE OF OHIO EX REL. CITY OF CLEVELAND ETC. v. COLIE FOXWORTH, ET AL.
No. 101651
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 14, 2015
2015-Ohio-1825
Jones, P.J., Kilbane, J., and McCormack, J.
JOURNAL ENTRY AND OPINION
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-784968
BEFORE: Jones, P.J., Kilbane, J., and McCormack, J.
RELEASED AND JOURNALIZED: May 14, 2015
Colie R. Foxworth, pro se 5714 Outhwaite Avenue, #2 Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEES
Barbara A. Langhenry City Law Director
BY: Susan M. Bungard Assistant City Prosecutor City of Cleveland - Law Department City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114
{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.
{¶2} Defendant-appellant Colie Foxworth appeals from the trial court’s June 11, 2014 judgment in which the court found Foxworth in contempt of its September 25, 2012 order, declared the building at issue a nuisance, and granted a permanent injunction ordering it boarded up, and the liquor license to be held in safekeeping until it could be transferred to a neutral third-party. We affirm.
I.
{¶3} Plaintiff-appеllee the city of Cleveland initiated this action against Foxworth in June 2012 by filing a verified petition for injunctive relief and motion for an ex parte temporary restraining order. In those pleadings, the city alleged that Foxworth owned property located on Outhwaitе Avenue in Cleveland, and resided in an apartment also located on Outhwaite Avenue in Cleveland. The property that Foxworth owned was operated as a “corner store,” for which he had a liquor license.
{¶4} The pleadings further alleged that the cornеr store had a “general reputation for illegal drug sales and other illegal drug activity,” and constituted a nuisance in the neighborhood. Specifically, the Cuyahoga County Sheriff’s Office began investigating the store because of complaints it had received about drug activity at the store. As part of its investigation, in April 2012, the sheriff’s office, using a confidential reliable informant, made an undercover buy of Oxycontin from Foxworth. On April 30, 2012, the city
{¶5} The sheriff’s office plannеd another controlled buy with an informant for May 2, 2012. A detective from the sheriff’s office set up surveillance of the premises, and the informant was prepared for the transaction. An undercover purchase of Oxycontin from Foxworth was made. The Cleveland police were called to the scene.
{¶6} After the sale, law enforcement saw Foxworth exit the store and lock the premises. The police approached and arrested him. They advised him that he was under arrest for violations of state drug laws and that they had a search warrant for the store and his residence.
{¶7} After being advised of his rights, Foxworth told the police that there was crack cocaine near the cash register, but no other drugs were in the store. The search revealed, in part, the following:
- 33 individually wraрped white papers containing suspected crack cocaine located on a shelf near the cash register;
- $1,765 in a paper bag on a rack next to the cash register;
- $253 in the cash register;
- $12 in an air freshener box;
- a suspected drug ledger next to the cash register;
- a box of Chore Boys on a counter next to the cash register;1
- a silver grinder with suspected marijuana;
buckets and jars containing U.S. currency in coins; - 18 shotgun shells located on a shelf below the cash register; and
- a gun and ammunition on a shelf below the cash register.
{¶8} In regard to his residence, Foxworth told the police that there wаs a gun in it. The search of Foxworth’s residence revealed the following:
- $14,020 in a sock located in a ceiling tile;
- six guns;
- 2 baggies of suspected marijuana;
- numerous tablets of suspected Oxycontin;
- 2 scales (a digital and a balance); and
- 2 bracelets found in a sock in a ceiling tile.
{¶9} On May 11, 2012, Foxworth was indicted on drug trafficking, drug possession, having weapons while under disability, and possession of criminal tools charges.2 See State v. Foxworth, Cuyahoga C.P. No. CR-12-562324.
{¶10} Based on the above-mentioned allegations contained in the pleadings, the trial court granted the city’s ex parte motion for a temporary restraining order and found the store to be a nuisance; it ordered it closed during the pendency of the case. On June 25, 2012, the court held a preliminary injunction hearing, at the conсlusion of which it
{¶11} In September 2012, the city and Foxworth entered into an agreed judgment. The agreement, which was also signed and filed by the court, provided that Foxworth would abate the nuisance at the corner store by doing the following:
Colie Foxworth shall immediately begin prоcessing the necessary paperwork to transfer the business and liquor license to Tiffany Smith3 or an entity owned and operated by Tiffany Smith, who shall own and operate the permit Premises. Upon removal of the boards from the Premises, Colie Foxworth may work for 5 days аt the Premises to teach Tiffany Smith how to run the cash register and any other machinery, to order products, etc. However, beyond that time, he shall never work in the Premises again. If Cleveland Police or the Cuyahoga County Sheriff’s Office finds Colie Foxworth working at the Premises, it shаll be cause to re-board the Premises, as set forth in Paragraph below. Colie Foxworth shall not work at the Premises in any capacity. He shall not have any ownership interest in the business nor take any direct profits from the business.
{¶12} The parties’ agreement further provided that the court would retain jurisdiction over the matter and, that if the agreement was broken, the city had the right to file a motion to show cause and make the following requests:
- that the building must be re-boarded and the property shall be declared a nuisance, which rеsults in the building being put on the next ballet to vote whether it should be dry for the sale of alcoholic beverages; and/or
- that the Liquor Permit must be placed in safekeeping.
{¶13} On October 15, 2012, Foxworth was sentenced to a nine-month prison term, after having plead guilty in August 2012 to trafficking in drugs, having weapons while under disability, and possessing criminal tоols, with related forfeitures. The docket from his criminal case shows that Foxworth was not immediately taken into custody. He
{¶14} On May 8, 2014, the city filed a motion to show cause. In the motion, the city alleged that, although the parcel had been transferred to Smith, no paperwork had been filed to transfer the liquor license from Foxworth to Smith. The city further alleged that, on February 21, 2014, Foxworth was found working at the store; it attached the affidavit of Detective Ramon Kindell in support of that contention.
{¶15} In his affidavit, Kindell, a vice detective in the district where the store was located, averred that once Foxworth was released from prison, the Cleveland police began receiving complaints again about the store and that Foxworth was operating it. The detective further averred as follows:
on February 21, 2014, I walked into the [store], in an undercover capacity. Colie Foxworth, who I know from photos and previous dealings, was the only person in the store. Mr. Foxworth asked me, “What cаn I help you with?” I attempted to purchase alcohol but Mr. Foxworth informed me that he could not sell any alcohol until the following Sunday (as his license was under suspension) but directed me to the nearest location to purchase alcohol. It was obvious that Mr. Foxworth was working at the store as he was the only employee present.
{¶16} In June 2014, the trial court granted the motion, and set the matter for a contempt hearing, at which Foxworth was to appear and demonstrate why he should not be held in contempt.
{¶17} Detective Kindell testified at the hearing, the sum and substance of which
{¶18} Smith further testified that she and her father were not trying to be noncompliant, but that they both were “totally confused about this process.” She stated that “there’s no way that anybody can be compliant, not just us, but even the city.” She explained that the store has been Foxworth’s life’s work, that he attempted, unsuccessfully, to obtain other employment, and she did not “understand what the state or city would have him do if he’s not able to work.”
{¶19} Foxworth also testified. He reiterated his daughter’s testimony about the store being his life’s work, explaining that it had been his family’s business for generations. Hе admitted to helping Detective Kindell on the day in question, but testified that he happened to be outside when he saw that the detective was in the store and decided to help him. According to Foxworth, his (Foxworth’s) son was working the store at that time, but was in the bathroom, which wаs located in the basement, so he decided to help the customer. Foxworth testified that his son ran the store, but admitted that his son is a college student in Erie, Pennsylvania.
{¶20} Foxworth asked the court for another chance. He testified that he was not a
{¶21} In regard to Smith and Foxworth’s testimonies, the trial cоurt stated that it was “totally appalled at the total, incomplete utter lack of credibility.” The court declared the store a nuisance and ordered that it be boarded up and put on the next ballot for a ban on selling alcoholic beverages. The court also ordered the transfer of the liquor license in an “arm’s length transaction to any party not related in any manner to the present permit holder.”
{¶22} Foxworth now appeals, assigning the following two errors:
First Assignment of Error: The trial court erred when it declared the appellant had no constitutional right to earn a living through working for businesswoman in violation of the appellant[’]s constitutional rights on a state and federal level which being the absolute right to life, liberty, and the pursue [sic] of happiness.
Second Assignment of Error: Thе trial court denied transfer of license to relative as a business owner and operator.
II.
{¶23} In his two assignments of error, Foxworth challenges the trial court’s decision to grant the city’s request for a permanent injunction and its order that the liquor license be transferrеd to someone other than his daughter.
{¶24} The standard of review for this court regarding the granting of an injunction by a trial court is whether the trial court abused its discretion. Perkins v. Quaker City, 165 Ohio St. 120, 125, 133 N.E.2d 595 (1956). An abuse of discretion connotes more
{¶25} In determining whether to grant injunctive relief, courts take into consideration the following four factors: (1) the likelihood or probability of a plaintiff’s success on the merits; (2) whether the issuance of the injunction will prevent irreparable harm to the plaintiff; (3) what injury to others will be caused by the granting of the injunction; and (4) whether the public interest will be served by the granting of the injunction. Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 49, 619 N.E.2d 1145 (10th Dist.1993).
{¶26} Upon review, we find that the above factors weighed in favor of granting the injunction and that the trial court, therefore, did not abuse its discretion. Specifically, the record demonstrates that the city showed that Foxworth violated the terms of the September 2012 agreement. The trial court, who was in the best position to judge the credibility of the witnesses,4 found it incredible that neither Smith, a probation officer, nor Foxworth understoоd what Foxworth was agreeing to.5
{¶27} Further, Foxworth was given time prior to being remanded to prison to get
{¶28} On this record, any harm to Foxworth was outweighed by the harm that would bе caused to the city and the community by not granting the injunction. Foxworth does not have a constitutional right to work at that business as he contends. Moreover, we are also not persuaded by his contention that the court impermissibly interfered with this inheritance. He cannot use his inheritance to do that which is illegal.
{¶29} In light of the above, Foxworth’s two assignments of error are overruled.
{¶30} Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Proсedure.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and TIM McCORMACK, J., CONCUR