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Questionable police search leads to investigation amid beer dispute

Longtime employee Charlie Bigham, right, serves customer Chris Moffat, left, in his cigar purchase Wednesday at BurnsTobacco.

 

A yellow sign is posted to warn customers…

 

Two Chattanooga police officers are being investigated in connection with a potential illegal entry into someone’s business, but that’s only part of a contract dispute between two entrepreneurs who can’t see eye to eye on beer.

Mike Hunter, of Burns Tobacconist, says the officers entered his business without a warrant around 3:30 a.m. April 21, 2017, opening a door with a security code and looking around the property without announcing themselves. And he says they were told to do it by his landlord.

The landlord, Phil Windham of the Chattanooga Billiard Club, says he talked to some officers earlier that night about doing a bar check but denied directing them to anything nefarious. Windham said he’d had concerns about Burns’ elevator being inoperable and creating a fire hazard. He said he asked some officers if they would check it sometime.

Document: Officer Ryan Lynn’s Report

Read the incident report

But, Windham said Thursday, “I did not suggest they go up there that night. And had I been there, I would have said no, I don’t think there’s any reason to go up there.”

The Chattanooga Police Department declined to comment, citing an Internal Affairs investigation into officers Ryan Lynn, Michael Newton and possibly others over allegations of misconduct in connection with the incident.

But six defense attorneys who reviewed Lynn’s public incident report said the search was improper, if not illegal. A beer board officer has wide latitude to enter a business that sells alcohol, they said, but patrol officers like Lynn must either get a warrant or witness some illegal behavior that justifies going inside.

“A cop can’t just willy- nilly look around in private areas,” said attorney Robin Flores. “That’s not a bar check. That is an intrusion into a private place.”

According to 911 records obtained through a public records request, Lynn drove to 110 Jordan Drive, where CBC and Burns Tobacconist are both located, to deal with two gangs in the parking lot at 2:56 a.m. About three minutes later, the only people out there “appeared to be going to their cars and leaving.”

But Lynn and a second officer, Austin Swafford, stayed on scene another hour, according to the 911 record.

Windham says he doesn’t know how the officers got inside Hunter’s business 30 minutes after CBC closed. CBC and Burns are next to each other and connected by a common, indoor hallway.

In a public incident report, Lynn said Windham “personally contacted” him around 10:30 that night to check for after-hours drinking at Burns. Although Burns closes around that time, it does allow premium customers to brown bag liquor in an upstairs lounge that stays open later. Since April 2016, Windham and Hunter had been fighting in court over access to that lounge.

However he got inside, Lynn couldn’t get up to the lounge without the right code to the stairwell door. He called a CBC manager for the code, the report says, but she didn’t have the right one. Instead, he forced the door’s magnetic lock open and went to the lounge with Swafford and another business associate of Windham’s at the time.

It was dark and empty as they walked around. Nobody had been there since 1 a.m., except for one person, Hunter, who was sleeping in a nearby bedroom.

A few minutes into their search, Hunter awoke to footsteps and flashlights. Thinking there was a break-in, he grabbed his gun, walked into a darkened hallway and came upon Lynn and Swafford. Once he realized they were cops, Hunter dropped his weapon.

Lynn said he was there to search for possible illegal activity, an inoperable elevator and a possible water leak. But Hunter said he wasn’t buying it: He knew the elevator worked because he had just watched Windham’s associate take it downstairs. Hunter said he’d blocked access to the elevator because Windham’s CBC employees sometimes used it to go up to the lounge after he’d closed up.

Hunter tried to report the incident an hour later, but he said the first officer he spoke to, Newton, never turned his complaint in to Internal Affairs, meaning the investigation didn’t start until Hunter followed up months later in November 2017.

“The cops don’t break into your place at 3:30 in the morning because the elevator isn’t working,” Hunter said. “Not unless you’re in the middle of a lawsuit.”

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CBC has been an institution in downtown Chattanooga since 1982, and Windham has been at the helm for years, operating locations on Jordan Drive and in Cleveland, Tenn.

But Windham owns other properties, too.

In May 2014, he subleased the Burns Tobacconist shop on Jordan Drive to Hunter. Things seemed OK, and in January 2015, he agreed to give Hunter another Burns store on Cherry Street.

By the following April, though, Windham sued Hunter for an alleged breach of contract and demanded $200,000, and Hunter countersued. That litigation is now being mediated in Hamilton County Chancery Court.

What caused the breakdown? It depends on which party you ask, but the common link is alcohol.

Before Hunter took over Burns and during his tenure there, Windham said he used CBC to serve food and alcohol to the upstairs lounge, where premium customers would hang out and watch TV or play pool.

It was a convenient setup: CBC made money and lounge customers could drink without walking downstairs. But Burns didn’t have beer or brown bag licenses at the time, so the City Attorney’s Office told Windham to “cease and desist” that practice, Windham said.

“Phil had told me we could do it legally [through the sublease],” Hunter said. “I was stupid and I listened to him and believed that he had worked it out and didn’t check for myself. Shame on me.”

Around the same time, Hunter successfully applied for both licenses in March 2016. In a phone interview Thursday, Windham said he didn’t have a problem with that, but in his 2016 lawsuit he alleged that it broke their sublease agreement.

Windham said he was concerned with Hunter’s patrons using the front door in between the stores after the cigar store was closed. Patrons could go to the lounge and drink an unsupervised amount of liquor from a brown bag, Windham said.

So after he sued, Windham closed that entrance altogether.

“Members would come from the lounge, open a door that was a fire exit only, and let patrons in without opportunity to check IDs,” Windham said, “and after the beer license was acquired, I was nervous about people accessing it through my space.”

Hunter denies nearly all of this. He’s most upset about the police search, which he described as an intimidation tactic by Windham. Hunter says Windham is acting out because of a disagreement over service to the lounge.

In early 2016, he said, Windham threatened to stop serving food and beverages unless Hunter hired a server. Like Windham, Hunter was worried about liability — as well as profit. Under that arrangement, Hunter would essentially be paying someone to make money for Windham.

Instead, Hunter said he asked Windham for permission to get a beer license. “‘Go for it,’ those were his exact words,” Hunter said. In his lawsuit, Windham says he never gave Hunter prior “written consent.”

Hunter said he also reviewed the sublease agreement with the attorney who wrote it and found nothing that prohibited him from selling beer. To this day, he sleeps at the Jordan Drive lounge a few nights a week to supervise the patrons.

The rest of the nights, Hunter said, he locks up the lounge around 9 p.m.

Hunter says the only thing that changed was he got a beer license that allowed him to profit from something Windham sold, too.

“Since the issuance of beer permits,” his attorney, Harry Cash, wrote, “[Windham has] consistently interfered with [Hunter’s] business by closing down an entrance to the building in an effort to make entry to [Hunter’s] business more restrictive.”

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