DIVISION I

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN STROUD, JR.

ARKANSAS COURT OF APPEALS

CA01-691

January 9, 2002

BOB J. McADAMS AN APPEAL FROM PULASKI COUNTY

APPELLANT CHANCERY COURT, SECOND DIVISION

NO. IJ-2001-1671

V.

HONORABLE COLLINS KILGORE,

ALCOHOLIC BEVERAGE CONTROL CHANCELLOR

DIVISION

APPELLEE AFFIRMED

This is the third appeal brought to us in Bob J. McAdams's effort to prohibit the Alcoholic Beverage Control Board (ABC Board) from regulating the hours during which The Checkmate Club, a private club, can dispense alcohol to its members. The histories of the two other appeals, McAdams v. Alcoholic Beverage Control Division, No. CA01-825, and McAdams v. Alcoholic Beverage Control Division, No. CA01-732, are set forth in our opinions dated December 19, 2001.

On April 2, 2001, McAdams, appearing pro se, filed a complaint in the Second Division of the Pulaski County Chancery Court against the ABC Board, asserting that the ABC Board is not authorized by statute to regulate the hours during which alcoholicbeverages may be dispensed in private clubs. He contended that the ABC Board's regulation 5.48 (formerly published as 5.47), which purports to regulate such hours, is unconstitutional and violates his civil rights. McAdams asserted that the enforcement of this regulation threatens him with irreparable harm for which he has no adequate remedy at law.

On April 26, 2001, McAdams filed an affidavit wherein he stated:

1. I am a longtime member of the Checkmate Club at 122 E. 4^th Street in the City of North Little Rock having first become a member in 1968. I have been an employee of the Checkmate (Managing Agent) since approximately early 1997.

2. The Checkmate is historically a late night club.

3. When the Checkmate operated past 5:00 a.m. before the advent of the Class B Permit in 1987, problems that persist now, were not present then.

4. If the 5:00 a.m. blackout was removed it would alleviate putting large crowds of patrons on the street at 5:00 a.m. when the city has its night police shift on duty, which is not staffed as well as other shifts.

5. There may be other reasons for lifting the ABC blackout, but the most important is we now live in a global community and more and more people consistently get off work in the early morning between 5:00 a.m. and 10:00 a.m. and have no place to go socialize and drink in before turning in for the day as people that get off at 5:00 p.m. in the evening do. It is not practical for obvious reasons why these people, including me, should be forced to consume alcoholic beverages and socialize and drink with others just before they go to work rather than just before they go to bed.

6. The Checkmate has no desire to allow undesirable patrons in the club and force them out at 5:00 a.m. or to start some kind of live entertainment in the daytime as it has done in the past, as it believes its present permit allows for, in order to remain a viable entity, as it may be forced to do absent the ABC blackout being lifted.

7. I will suffer irreparable harm if the ABC 5:00 a.m. blackout is not lifted.

On May 7, 2001, the ABC Board filed a motion to dismiss for lack of subject-matter jurisdiction, stating that this lawsuit is the fourth in a series of lawsuits filed by McAdams regarding this subject. The ABC Board noted that a lawsuit involving the same issues was filed in the Third Division of the Pulaski County Circuit Court and that the circuit judge hadupheld the ABC Board's decision on February 21, 2001, and had denied McAdams's motion for reconsideration on April 2, 2001. The ABC Board also stated that a lawsuit involving the same issues was filed in the Sixth Division of Pulaski County Circuit Court and was dismissed without prejudice by that circuit judge on February 6, 2001; McAdams's motion for reconsideration was denied on March 1, 2001. Further, the ABC Board asserted that the same lawsuit was re-filed on March 7, 2001, in the Sixth Division of Pulaski County Circuit Court. The ABC Board asserted that, under the doctrine of judicial economy, McAdams must exhaust his remedies by filing an appeal of the Third Division circuit judge's decision, instead of filing three additional lawsuits on the same issues.

McAdams's complaint was heard on the merits on May 10, 2001. McAdams chose not to present any witnesses and simply argued his position to the chancellor, making essentially the same argument that he had made in each of the circuit court cases. He stated:

And we just come in here for a simple injunction because it won't hurt the ABC none, Your Honor, for them to let us operate. It's not going to cost them nothing. It is costing us money where we're closed up due to that arena situation over there. They've come over there and took over all the parking until Ten O'Clock .... You know, when people get off work at Four or Five O'Clock in the morning, well, they usually go to a club if there's one open, you know. It's just like when you leave here at the Court House at Four-thirty in the afternoon, you're apt to stop on the way home or some people are to socialize a little bit. It's the same way when you get off at Four A.M. in the morning.

The chancellor asked McAdams: "[I]f you had won down there, would you even be up here ...?" McAdams replied: "If we had won the first time that we brought this up, Your Honor, no, we wouldn't have went any further any place."

The chancellor entered an order on May 21, 2001, denying McAdams's request for an injunction, stating:

1. That Plaintiff has, on three occasions, filed this same lawsuit against the same party, Alcoholic Beverage Control Division, involving the same issue, which is whether the Defendant has the legal authority to regulate the hours of operation of private clubs in the State of Arkansas. The three prior lawsuits were filed in Third Division Circuit Court on July 6, 2000, as Case Number CV2000-5799, Sixth Division Circuit Court on October 23, 2000, as Case Number CV2000-9440 and in Sixth Division Circuit Court on March 7, 2001, as Case Number CV01-2027. Plaintiff has indicated that he has appealed or will appeal any adverse decision rendered in any of the above lawsuits.

2. That Plaintiff has an adequate remedy at law as to the issue of whether the Alcoholic Beverage Control Division has the legal authority to regulate the operating hours of private clubs in the state of Arkansas.

3. Further, Plaintiff has failed to demonstrate in what manner he will be harmed if the injunctive relief sought is not granted.

McAdams has raised six points on appeal, five of which mirror the arguments he made in CA01-825 and CA01-732. The chancellor, however, did not rule on any issue except whether McAdams had an adequate remedy at law and whether he had demonstrated that he would suffer irreparable harm. Therefore, the only arguments that we need address are whether the chancellor's findings that McAdams had an adequate remedy at law and that he had failed to demonstrate that he would be irreparably harmed are in error.

McAdams asserts that regulation 5.48 is invalid because it was adopted by the ABC Board without statutory authority and because it violates his constitutional rights. Equity will exercise jurisdiction to restrain acts or threatened acts of public officers, boards, or commissions that are beyond the scope of their authority, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which there would be no adequate remedy at law. Wilson v. Pulaski Ass'n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d221 (1997). However, for equity to act, there must be proof of (1) irreparable harm and (2) no adequate remedy at law. Id. It is axiomatic that, if an adequate remedy at law exists, no irreparable harm can result, so as to warrant equity jurisdiction, and equity as a result is deprived of jurisdiction. Arkansas State Med. Bd. v. Schoen, 338 Ark. 762, 1 S.W.3d 430 (1999). When a party has the right to an appeal from a circuit court decision, he cannot abandon his remedy at law and invoke the aid of chancery. See Special Sch. Dist. No. 50 v. Deason, 183 Ark. 102, 34 S.W.2d 1084 (1931).

However, the existence of a remedy at law does not deprive the chancery court of jurisdiction unless such remedy is clear, adequate, and complete. Townsend v. Arkansas State Highway Comm'n, 326 Ark. 731, 933 S.W.2d 389 (1996). Whether a legal remedy is of an adequate and complete character that will preclude relief by injunction must be determined under the circumstances of the case. 42 Am. Jur. 2d Injunctions § 24 (2000). McAdams correctly points out that Ark. Code Ann. § 25-15-212 (Supp. 2001), which provides an appeal of an agency's decision to circuit court, states in subsection (a): "Nothing in this section shall be construed to limit other means of review provided by law." Further, as McAdams argues, judicial review of an administrative appeal is somewhat limited. See Ark. Code Ann. § 25-15-212(f), (g), and (h) (Supp. 2001).

In our decision in McAdams v. Alcoholic Beverage Control Division, CA01-732, we affirmed the circuit judge's denial of appellant's petition for declaratory judgment on the ground that he had failed to exhaust his administrative remedies. The exhaustion-of-remedies doctrine is also relevant to whether a party seeking injunctive relief has an adequate remedy at law. See 42 Am. Jur. 2d Injunctions § 30 (2000). As the chancellor explained,appellant brought three prior lawsuits concerning the same issues in circuit court. We have affirmed two of the decisions rendered in those cases. The chancellor, therefore, did not err in finding that appellant had an adequate remedy at law.

Generally speaking, the granting or denying of an injunction is a matter within the discretion of the chancellor. Tri-County Funeral Serv., Inc. v. Eddie Howard Funeral Home, Inc., 330 Ark. 789, 957 S.W.2d 694 (1997). This court does not reverse unless there has been a clearly erroneous factual determination or unless the decision is contrary to some rule of equity or the result of an improvident exercise of judicial power. Id.; City Slickers, Inc. v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). The prospect of irreparable harm or the lack of an otherwise adequate remedy is at the foundation of the court's power to issue injunctive relief. Paccar Fin. Corp. v. Hummel, 270 Ark. 876, 606 S.W.2d 384 (Ark. App. 1980). To obtain injunctive relief, the injury or threat of injury must be real and immediate, not conjectural or hypothetical. 42 Am. Jur. 2d Injunctions § 32 (2000).

McAdams offered no testimony about irreparable harm at the hearing on the merits. In fact, he chose not to present any witnesses at the hearing. In Wilson v. Pulaski Association of Classroom Teachers, supra, the supreme court affirmed the chancellor's denial of a preliminary injunction because the appellants made no attempt to prove irreparable harm. The court stated:

Thus, in order for a chancellor to grant a preliminary injunction, the moving party must establish irreparable harm; this is true in all instances where injunctive relief is sought regardless of whether the party may additionally prove that an activity is illegal per se. In this case, appellants are precluded from establishing that the chancellor abused her discretion because they do not challenge her ruling that no irreparable harm had been suffered. Indeed, they contend that the strike was illegal per se and that this factor alone supports injunctive relief. For over a century, thiscourt has required proof of facts establishing that the moving party is entitled to injunctive relief from a court of equity. See, e.g., Foster Ex Parte, 11 Ark. 304 (1850) (requiring proof of irreparable harm to enjoin a trespass). Appellants make no attempt to prove irreparable harm. In effect, they ask us to change this court's longstanding posture on equity jurisdiction without the support of any convincing legal authority. Under such circumstances, this court has, and should, decline to do so. See, e.g., Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997).

330 Ark. at 302-03, 954 S.W.2d at 224.

Certainly, we cannot conclude as a matter of law that McAdams will suffer irreparable injury if the ABC Board prohibits The Checkmate Club from dispensing alcoholic beverages between 5:00 a.m. and 10:00 a.m. Therefore, we affirm the chancellor's findings that McAdams failed to prove the threat of irreparable harm and that he had an adequate remedy at law and, therefore, hold that the chancellor did not abuse his discretion in denying the petition for an injunction.

Affirmed.

Hart and Neal, JJ., agree.