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Public Nuisance Conviction Avoided

A restaurateur was charged under the Roanoke public nuisance laws with providing alcohol to patrons and for allowing drug behavior to exist. Both are Class 1 misdemeanors punishable by up to 12 months in jail and a $2,500 fine. The restaurateur had an additional overcrowding charge that had been taken under advisement and was pending dismissal when he received the nuisance charges.

Our client owned and operated a restaurant that also served as a late-night club. The majority of patrons of another club down the road tended to park near our client’s restaurant. Police patrolled the area heavily, and continually charged individuals in the vicinity of our client’s restaurant with various crimes. The police wanted to hold our client accountable for the actions of patrons in the area. The restaurateur had a substantial traffic history, but the majority of his past criminal and traffic charges had been dismissed or nolle prosequied.

We reviewed his case, and found that the facts of the current public nuisance charges did not mirror the previous legal precedent established. The case law was not substantial on this type of charge; however, there is a knowledge component to both public nuisance offenses that prosecutors couldn’t prove with regard to our client. Further, the conduct potentially deemed a nuisance couldn’t be directly attributed to our client’s business, nor was it conducted inside the business or in any way affiliated with the business.

We argued for the cases to be dismissed. The prosecutor nolle prosequied the two nuisance charges after offering different options. The judge accepted the prosecutor’s motion to nolle prosequi the charges over our objection.

This case is unique as it seems these public nuisance statutes are beginning to garner some favor as of late. Business owners are being charged and prosecuted through either criminal or civil remedies — both of which are at prosecutors’ disposal.

Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.