author: ROBERT H. HALL, District Judge.

text:
    Stephen L. BISHOP, Plaintiff, v. FAIR LANES BOWLING, INC., Defendant. Deborah A. SMITH and Randy L. Smith, Plaintiffs, v. FAIR LANES BOWLING, INC., Defendant.
    Civ. A. Nos. C84-1531A, C84-1532A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Dec. 19, 1985.
    As Amended Jan. 15, 1986.
    Gary S. Freed, Labovitz, Rosenberg & Campbell, Atlanta, Ga., Chester G. Rosenberg, Labovitz, Rosenberg & Campbell, for plaintiff.
    Lowell S. Fine, Atlanta, Ga., for defendant.
   ORDER

ROBERT H. HALL, District Judge.

Plaintiffs bring the above-styled actions essentially alleging that defendant was negligent in failing to ensure the safety and welfare of plaintiffs Stephen L. Bishop and Deborah A. Smith while they were invitees on defendant’s premises, a bowling alley located in Norcross, Gwinnett County, Georgia. Specifically, plaintiffs allege that defendant failed to conform to the standard of conduct required of it when it continued to serve alcoholic beverages to visibly intoxicated persons who had displayed aggression toward plaintiffs Stephen Bishop and Deborah Smith, when it failed to control the actions of dangerous intoxicated persons, when it failed to provide adequate security personnel at the premises, especially in the parking lot immediately after closing, and when it allowed the parking lot lights to turn off automatically 10 minutes after closing. (See plaintiffs’ response brief, pp. 5-6, summarizing plaintiffs’ claims).

Presently pending is defendant’s motion for summary judgment.

FACTS

Plaintiffs Stephen L. Bishop and Deborah A. Smith attended the “Midnight Madness” bowling session at Fair Lanes Georgia Bowling (“Fair Lanes”) on May 14, 1953, arriving at approximately 1:00 a.m.. (Bishop Deposition, pp. 24-25).

The bowling alley had facilities to sell refreshments, including alcoholic beverages, to its patrons.

After bowling for approximately 50-55 minutes, plaintiff Deborah Smith noticed that her pitcher of beer was missing. (D. Smith Deposition, p. 20). She then inquired of certain persons bowling in the lane to her right as to whether they had seen what had happened to the missing pitcher of beer. (Smith Deposition, pp. 21-22). Three of these other persons are now known as Janet Eldridge, Randall Eldridge, and Steven Burke (“the Burke group”). (M.S. Burke Deposition, p. 26). Neither the plaintiffs nor the managers on duty that night at Fair Lanes knew of or could recall having seen any member of this group at Fair Lanes previously. (D. Smith Deposition, p. 21; Bishop Deposition, p. 35; Swanson Deposition, p. 19; Goodin Deposition, p. 52).

Earlier in the evening, the Burke group had met at a local restaurant at approximately 6:00 to 7:00 p.m. for dinner. (R. Eldridge Deposition, p. 25). Members of the Burke group drank beer continuously through dinner, and throughout the course of the evening until the bowling alley closed at 2:30 a.m.. (J. Eldridge Deposition, p. 41; R. Eldridge Deposition, pp. 49-50; M.S. Burke, Deposition, p. 20). As a result, Randall Eldridge, Janet Eldridge and Steven Burke were visibly intoxicated when they purchased beer by the pitcher at Fair Lanes. (S. Burke Deposition, pp. 34-35; R. Eldridge Deposition, p. 41; J. Eldridge Deposition, p. 40).

After plaintiff Deborah Smith’s inquiry, the members of the Burke group then walked over to Bishop and Deborah Smith’s lane and began a loud conversation.

Janet Eldridge came to within 4-5 inches of Deborah Smith’s face and began speaking loudly to her, asking her if she and Bishop were accusing the Burke group of taking the pitcher of beer, asking if she and Bishop thought the Burke group couldn’t afford their own beer, and asking Smith if she and Bishop wanted to bowl a game for a pitcher of beer. (D. Smith Deposition, pp. 38-39).

Randy Eldridge, in a “threatening” and “slurring” manner, asked if Smith and Bishop wanted to “go outside and resolve the matter.” (D. Smith Deposition, p. 29).

Bishop perceived the Burke group to be “defensive”, “aggravated”, and “real disturbed” over being asked about the missing pitcher of beer. (Bishop Deposition, pp. 44, 63).

This conversation lasted anywhere from several minutes to 30 minutes. (Bishop Deposition, p. 57; M.S. Burke Deposition, p. 24). There is no evidence that any employee of defendant overheard or witnessed this confrontation.

After this confrontation ended, the Burke group returned to their lanes. (M.S. Burke Deposition, pp. 49-50). Thereafter, Bishop and Deborah Smith walked to the front counter to tell the manager on duty what happened. (D. Smith Deposition, pp. 40-41, 65-66; Bishop Deposition, pp. 69-71). Both Bishop and Smith specifically told the manager that the Burke group was intoxicated and being “loud”, “unruly” and “making a lot of commotion”, that they suspected that the Burke group had taken their pitcher of beer, that the Burke group had acted “aggressive” towards them, and that the Burke group was making Deborah Smith “uneasy” and “uncomfortable.” (D. Smith Deposition, pp. 41-42, 59-60, 66; Bishop Deposition, pp. 69-70). Bishop and Smith specifically requested the manager to watch the Burke group for the rest of the evening. (D. Smith Deposition, pp. 40-41, 59-60; 65-66; Bishop Deposition, pp. 69-70).

Neither Bishop nor Smith told the manager that they were in fear of bodily harm or asked him to make the Burke group leave the bowling alley or even change lanes. (D. Smith Deposition, pp. 41-42; Bishop Deposition, pp. 70-71).

Plaintiffs Bishop and Deborah Smith then returned to their lanes and continued to bowl until the bowling alley closed, approximately one-half hour later.

The Burke group thereafter proceeded to “harass”, “taunt”, and “cause a difficult time” for Bishop and Smith until the bowling alley closed. (Bishop Deposition, pp. 57-64; D. Smith Deposition, pp. 25-30). This “harassment” consisted of staring and making comments, loudly enough so that Bishop and Smith could hear them but not directly to them, such as “we better watch their [Bishop and Smith’s] beer and make sure no one takes it”, “we hope nobody takes our beer”, “maybe we should go tell the manager,” “who do they [Bishop and Smith] think they are.” (Bishop Deposition, pp. 57-58, 63; D. Smith Deposition, pp. 23-24). On at least one occasion, one member of the Burke group called Deborah Smith a “bitch” for accusing the Burke group of taking her beer. (D. Smith Deposition, pp. 23-24, 26). The Burke group also again challenged Smith and Bishop to a bowling game for a pitcher of beer and came over to their lane on several occasions to ask them what happened to their pitcher of beer. (D. Smith Deposition, p. 26). Bishop also heard Randy Elridge say he took the pitcher of beer intending for him and Smith to hear. (Bishop Deposition, p. 59).

As the bowling alley closed, Steve Burke approached Smith and Bishop and asked them sarcastically if they wanted half a pitcher of beer. When Bishop declined Burke retorted “look, I didn’t steal your pitcher of beer.” Bishop then said he had overheard Burke’s friend say he took the pitcher of beer and that Burke ought to teach his friends some manners. Burke replied that he didn’t know about his friends but he didn’t take it, adding, in a belligerent tone, that if somebody had taken his beer and he knew who did it, he’d “beat ass”, but that if anyone tried to hurt his friend, he would also “beat ass” to help him out. (Bishop Deposition, pp. 53-54, 65-66, 71; D. Smith Deposition, pp. 25-28). Bishop did not take this comment in anyway as a challenge by Burke to get into a fight or an altercation, but as a warning that if Bishop didn’t leave Burke alone, Burke would “take him outside.” (Bishop Deposition, p. 55).

At no time during the night did any member of the Burke group raise a fist to Bishop or Smith, make obscene gesters, touch Bishop or Smith, or otherwise use any threatening nonverbal form of communication. (Bishop Deposition, pp. 59-60). At no time did any member of the group explicitly threaten Bishop or Smith with physical harm. (Bishop Deposition, p. 74).

Neither the manager nor any other employee of Fair Lanes spoke to the Burke group about their behavior. In fact, neither Bishop, Deborah Smith or anyone in the Burke group noticed anyone from Fair Lanes monitoring their actions. (Bishop Deposition, p. 102; D. Smith Deposition, pp. 60, 65; S. Burke Deposition, p. 60; M.S. Burke Deposition, p. 27; J. Eldridge Deposition, pp. 48-49; R. Eldridge Deposition, p. 49).

The Burke group departed at approximately 2:30 a.m.. While the Burke group had said nothing to make Bishop think they would be waiting outside, Bishop and Smith waited five to ten minutes thereafter to avoid any possible additional problems with the Burke group in the parking lot. (Bishop Deposition, pp. 72, 74-75; D. Smith Deposition, pp. 31-36). An employee of defendant locked the doors behind Bishop and Smith as they departed since they were the last persons to leave the premises. (Bishop Deposition, pp. 109-111; D. Smith Deposition, pp. 60-61). Neither Bishop or Smith expressed to this employee any fear of a physical attack by the Burke group in the parking lot or elsewhere. The employee did not monitor the parking lot as Bishop and Smith departed.

In the parking lot, between 2:30 a.m. and 2:45 a.m., Bishop and Smith were confronted and accosted by the Burke group while they were getting in their car, and both Bishop and Smith were severely beaten. (Bishop Deposition, pp. 75-83; D. Smith Deposition, pp. 46-50). Smith ran to the front door while being chased by Janet Eldridge, and banged on the door to alert the employees of the bowling center. The manager responded and allowed Smith to enter the premises and call the police. (D. Smith Deposition, pp. 49-50; M.S. Burke Deposition, p. 38). Bishop was repeatedly struck in the face by Stephen Burke until the point of unconsciousness. (S. Burke Deposition, pp. 72-73; J. Eldridge Deposition, p. 55).

Either just prior to or during the altercation, the parking lot lights turned off, having been set on an automatic timer. (Goo-din Deposition, p. 72; Exhibit A to plaintiffs’ response brief).

Prior to this incident, there had never been a physical altercation between customers of the bowling alley in the parking lot. The only previous problems in the parking lot concerned the theft of hubcaps, loitering and “rowdiness”. (Exhibit A to plaintiffs’ response brief; Barone Deposition, pp. 27-28; Goodin Deposition, pp. 42-44).

Plaintiffs filed the instant actions against Fair Lanes on August 2, 1984. Plaintiffs seek recovery for medical expenses, lost wages, pain and suffering, punitive damages (for plaintiffs Deborah Smith and Bishop) and loss of consortium damages (for plaintiff Randy Smith).

Since the incident in defendant’s parking lot, one member of the Burke group has been convicted of criminal charges as a result of the attack on Bishop and Smith and criminal charges are presently pending against the two other members of the group.

DISCUSSION

Defendant moves for summary judgment on essentially two grounds. First, it submits that as a matter of law it has no tort liability for continuing to serve alcoholic beverages to the persons who intentionally assaulted plaintiffs Bishop and Smith. Second, it argues that there is no genuine dispute that it did not have the requisite knowledge of the “hazardous condition” on its premises leading to plaintiffs to make it liable for not protecting plaintiffs from this condition.

A. Tort liability for continuing to serve alcoholic beverages to noticeably intoxicated persons

1. Cause of action

The first question raised by defendant’s motion, simply stated, is as follows: is a person who sells or furnishes alcoholic beverages to a noticeably intoxicated person liable in tort to a third person who is subsequently injured by the intentionally tortious or criminal act of the intoxicated person?

Until recently, the answer to this question would have clearly been a resounding “no” as the case of Riverside Enterprises, Inc. v. Rahn, 171 Ga.App. 674, 320 S.E.2d 595 (1984), indicates. In Riverside Enterprises, the Georgia Court of Appeals, commenting on the general state of the law surrounding the liability of sellers of alcoholic beverages, stated that “for at least 94 years it has been the law of this State that the statute prohibiting the sale of alcoholic beverages to noticeably intoxicated persons [currently Ga. Off’l Code Ann. § 3-3-22] does not create any civil liability on the part of the sellers of alcoholic beverages____” and that the General Assembly “ ‘still has not enacted any legislation imposing such civil liability----’” Id. at 675, 320 S.E.2d 595, quoting Nunn v. Comidas Exquisitos, Inc., 166 Ga.App. 796, 305 S.E.2d 487 (1983). In support of this statement, the court cited the 1890 Georgia Supreme Court decision in Belding v. Johnson, 86 Ga. 177, 179-81, 12 S.E. 304 (1890), which has been characterized as holding that neither the common law of Georgia nor any statute in effect at that time created tort liability on the part of a tavern owner for selling alcoholic beverages to an intoxicated person. 171 Ga.App. at 675, 320 S.E.2d 595.

The Riverside Enterprises court’s statement of the law with respect to the civil liability of a seller of alcoholic beverages has been cast into doubt, however, by a recent decision of the Georgia Supreme Court. In Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985), the Supreme Court held that because the statutes prohibiting the furnishing of alcoholic beverages to a noticeably intoxicated person and to a person under 19 years of age (Ga. Off’l Code Ann. §§ 3-3-22 and 3-3-23(a)(1)) were enacted to “protect third parties as well as those noticeably intoxicated and under 19,” a cause of action against the provider of alcoholic beverages .to a noticeably intoxicated minor, by any party injured by the provision of such beverages to the intoxicated minor, exists under Ga. Off’l Code Ann. § 51-1-6. This section provides, in pertinent part, that:

When the law requires a person ... to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damages thereby.

Id. at 197, 327 S.E.2d 716.

The court then analyzed whether the negligence action before it satisfied the requisite proximate cause element of negligence, deciding that it did:

Under many circumstances the act which is the proximate cause of the damage resulting from a breach of duty relating to alcohol is the act of the consumer of the alcohol. Under such circumstances, the consumer is solely liable because the act of furnishing the alcohol.is too remote to be the proximate cause of the negligence of the consumer____ That is to say, the subsequent act of the consumer is not foreseeable to the provider, or the consumption of an excessive amount of alcohol is the intervening (unforeseeable) cause of the damage.
However, where one provides alcohol to a .noticeably intoxicated 17-year-old knowing that he will soon be driving his car, it is foreseeable to the provider that the consumer will drive while intoxicated and a jury would be authorized to find that it is foreseeable to the provider that the intoxicated driver may injure someone____ That is to say, a jury would be authorized to find that providing alcohol to a noticeably intoxicated 17-year-old automobile driver was one of the proximate causes of the negligence of the driver and of the injuries to the deceased____

Id. at 197-98, 327 S.E.2d 716 (Emphasis in original) (Citations and footnotes omitted).

In an appendix to the decision, the Georgia Supreme Court discussed a number of related cases, including Belding v. Johnson, supra, and Nunn v. Comidas Exquisitos, Inc., supra, (the cases relied on by the Riverside Enterprises court), and then stated:

From the foregoing, it can be seen that ... the provider of alcoholic beverages is not liable for intentional criminal acts (e.g., murder, battery) committed by the consumer upon third persons, even though the consumer was noticeably intoxicated at the time the alcohol was furnished. Belding v. Johnson, supra; Nunn v. Comidas Exquisitos, Inc., supra. Such criminal conduct is not the foreseeable result of furnishing alcohol to another who has displayed no aggression.

Id. at 200-01, 327 S.E.2d 716 (Emphasis added).

With the Georgia Supreme Court’s reliance on Ga. Off’l Code Ann. § 51-1-6, its emphasis on foreseeability, and its implicit suggestion that an intentionally criminal act could be the foreseeable result of furnishing alcoholic beverages if the consumer of the beverages had “displayed aggression,” this court cannot rely on Riverside Enterprises and similar cases which do not reflect a consideration of this statute or the aggression displayed by the noticeably intoxicated person, but must decide the question before it with only the benefit of the Sutter case.

The court, like the Sutter court, begins with an analysis of the relevance of Ga. Off’l Code Ann. § 51-1-6, quoted above. This requires the court to first determine whether the statute prohibiting the sale or furnishing of alcoholic beverages to noticeably intoxicated persons, Ga. Off’l Code Ann. § 3-3-22, is a “law requiring] a person ... to refrain from doing an act which may injure another”, as it is only such a law which would fall within § 51-1-6. Because the provision of alcoholic beverages to a noticeably intoxicated person may very well injure another indirectly—as when the intoxicated person then drives a car, as in the Sutter case, or when he or she commits a crime that he or she would not have committed in a sober or less intoxicated state—the court must conclude that § 3-3-22 is a law within the purview of § 51-1-6 and that, therefore, § 51-1-6 provides a cause of action to a party injured by a violation of the duty imposed by § 3-3-22.

This conclusion does not answer the question initially posed, however. The court must now apply the “traditional formula setting forth the elements of negligence,” Sutter, 254 Ga. at 196, 327 S.E.2d 716, in determining the limitations of the liability of providers of alcoholic beverages to noticeably intoxicated persons.

The elements of a negligence action, as stated by the Georgia Supreme Court in Sutter, are:

“1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
“2. A failure on his part to conform to the standard required____
“3. A resonable [sic] close causal connection between the conduct and the resulting injury____
“4. Actual loss or damage resulting to the interests of another.”

Id. at 196-97, 327 S.E.2d 716, quoting Prosser, Law of Torts, 4th ed., § 30 (1971).

Of the four elements—duty, breach of duty, proximate cause, and actual damage—the third is very significant to the question before the court: the requirement of proximate causation requires that the subsequent intentional tortious or criminal act of the intoxicated person be the foreseeable result of the act of furnishing the alcoholic beverage in order to establish actionable negligence on the part of the provider of the alcoholic beverage. Sutter, 254 Ga. at 197-98, 198 n. 6, and 200-01, 327 S.E.2d 716.

Is an intentionally tortious or criminal act ever the foreseeable result of furnishing alcoholic beverages to another? First, the court notes that the rule that intervening intentionally tortious or criminal acts insulates a defendant from liability does not apply if those acts are foreseeable. See Bradley Center v. Wessner, 250 Ga. 199, 202-03, 296 S.E.2d 693 (1982), cited favorably in Sutter v. Hutchings, supra, 254 Ga. at 198 n. 6, 327 S.E.2d 716. When does intentionally tortious or criminal conduct become foreseeable is the real question.

Unlike the negligence which can be an expected result of drinking too many alcoholic beverages, intentionally tortious or criminal conduct by an'intoxicated person is not so predictable since it is dependent upon the intoxicated person’s disposition towards violence or crime, a quality not always apparent to a psychiatrist much less the average person. Nevertheless, the court can envision instances where a person’s tendencies to become violent upon consuming alcohol would be, or should be, so apparent to a provider of alcohol that it would be, or should be, foreseeable to the provider that the intoxicated person may engage in intentionally tortious or criminal conduct if he or she is furnished more alcoholic beverages.

So that this conclusion is not taken to mean that a jury must decide the foreseeability of an intoxicated person’s “dangerousness” every time there is an allegation of a display of “aggression” by the intoxicated person, the court sets forth the minimum amount of evidence which it feels must be produced to warrant a finding that a subsequent intentionally tortious or criminal act was the foreseeable result of the act of furnishing alcoholic beverages: either the plaintiff must show that the provider of alcohol knew or should have known that the intoxicated person had shown physical manifestations of violence, either toward property or toward a person, prior to but within reasonable proximity to the time the alcohol was provided; or that the provider of alcohol knew or should have known that the intoxicated person had threatened physical violence prior to but within reasonable proximity to the time the alcohol was provided, either explicitly or through language which can be construed to constitute such a threat; or that the provider of alcohol knew or should have known the intoxicated person had a tendency to become physically violent subsequent to being verbally aggressive while drinking alcohol and the provider knew or should have known that that person had become verbally aggressive prior to but within reasonable proximity to the time the alcohol was provided.

To expect a provider of alcohol to foresee the dangerousness of another under circumstances other than these would amount to imposing strict liability on that person for serving intoxicated customers.

In sum, then, the court answers the question before it with a qualified “yes”—a person who sells or furnishes alcoholic beverages to a noticeably intoxicated person can be held liable in tort to a third person who is subsequently injured by the intentionally tortious or criminal act of the intoxicated person if the above circumstances existed at the time the alcohol was provided.

2. The instant defendant’s liability

While defendant has not argued that there is no genuine factual dispute precluding the entry of summary judgment for it on plaintiffs’ “§ 51-1-6/3-3-22 tort claim” (resting instead on the legal argument that Georgia does not have such a tort action), the court, from the undisputed facts established in connection with defendant’s other arguments, finds that there is no genuine dispute that defendant’s breach of its duty under § 3-3-22 was not the proximate cause of plaintiffs’ injuries and thus GRANTS defendant summary judgment on plaintiffs’ § 51-1-6/3-3-22 claim.

It is undisputed that defendant neither knew or should have known of the violent disposition of the Burke group. There is no evidence that defendant witnessed or should have witnessed the initial confrontation between plaintiffs Bishop and Deborah Smith and the Burke group, nor is there evidence that plaintiffs’ alerted defendant to anything other than that the Burke group was being loud and verbally obnoxious, were drunk, and had stolen a pitcher of beer. There is no evidence that defendant knew or should have known of any plan on the part of, or threat by, the Burke group to inflict physical injuries to plaintiffs as there is no evidence that there was such a plan or that any threat had been made. There is no evidence that the Burke group physically manifested any violent intent during the time defendant monitored or should have monitored the Burke group’s conduct.

The evidence shows only that the Burke group pestered or. taunted the plaintiffs with sarcastic and mocking remarks following the initial confrontation; this can hardly be deemed sufficient to establish that the violent attack on plaintiffs was foreseeable.

B. Tort liability for failing to exercise ordinary care in keeping premises and approaches safe.

1. Cause of action

Section 51-3-1 of the Georgia Code provides:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

Ga. Off’l Code Ann. § 51-3-1 (Emphasis added).

Pursuant to this section, the Georgia courts have held that

An occupier of land is liable for injuries sustained by an invitee upon his premises through a dangerous condition created by a third person only after the occupier has knowledge of, or by the exercise of ordinary care could have discovered, the hazardous condition, and then fails to use reasonable care to eliminate it.

Bowling v. Janmar, Inc., 142 Ga.App. 53, 54, 234 S.E.2d 849 (1977). In explaining this duty the Georgia Court of Appeals has stated:

If the [misconduct of an employee, customer or third person] and resulting injury happened suddenly and without warning and the defendant could not, by the exercise of reasonable care, have discovered or prevented it, there could be no recovery [under § 51-3-1] It is also true the owner or occupant of premises which are used for business purposes is not the insurer of the safety of invitees. However, ... a jury could reasonably find that the defendant [occupant of business premises] was guilty of negligence if he could expect or anticipate violent conduct on the part of one guest toward another guest____

Georgia Bowling Enterprises, Inc. v. Robbins, 103 Ga.App. 286, 288, 119 S.E.2d 52 (1961) (Emphasis added).

Thus, knowledge, or a failure to exercise reasonable care in acquiring knowledge, of the dangerous condition created by a third person is a prerequisite to recovery under § 51-3-1. See Holiday Inns, Inc. v. Newton, 157 Ga.App. 436, 437, 278 S.E.2d 85 (1981); Veterans Organization v. Potter, 111 Ga.App. 201, 205, 141 S.E.2d 230 (1965).

Knowledge of the dangerous condition created by a third party can, of course, be based on the conduct of the miscreant immediately leading up to the injurious misconduct if the conduct should have alerted the proprietor to the danger posed. See, e.g., Adamson v. Hand, 93 Ga.App. 5, 90 S.E.2d 669 (1955); Hall v. Davis, 75 Ga. App. 819, 822, 44 S.E.2d 685 (1947); Swope v. Farrar, 66 Ga.App. 52, 17 S.E.2d 92 (1941); Great Atlantic & Pacific Tea Co. v. Cox, 51 Ga.App. 880, 181 S.E. 788 (1935); Moone v. Smith, 6 Ga.App. 649, 65 S.E. 712 (1909).

Such knowledge can also be based on prior similar incidents, but the proprietor must have been aware of these incidents and the incidents must have been “substantially similar” to put the proprietor on notice of the “hazardous condition.” Donaldson v. Olympic Health Spa, Inc., 175 Ga. App. 258, 260, 333 S.E.2d 98 (1985); Arnold v. Athens Newspapers, Inc., 173 Ga. App. 735, 737-38, 327 S.E.2d 845, (1985). See also Atlantic Coast Line Railroad Co. v. Godard, 211 Ga. 373, 379, 382, 86 S.E.2d 311 (1955); Hewett v. First National Bank of Atlanta, 155 Ga.App. 773, 774, 272 S.E.2d 744 (1980); McClendon v. Citizens & Southern National Bank, 155 Ga.App. 755, 756, 272 S.E.2d 592 (1980); Munford v. Lay, 134 Ga.App. 642, 216 S.E.2d 123, rev’d 235 Ga. 340, 219 S.E.2d 416 (1975); Georgia Bowling Enterprises, Inc., supra. “Substantially similar” means that the pri- or incident is “sufficient to attract the owner’s attention to the dangerous condition____” Pembrook Management v. Cossaboon, 157 Ga.App. 675, 677, 278 S.E.2d 100 (1981). See also Tolbert v. Captain Joe’s Seafood, 170 Ga.App. 26, 28, 316 S.E.2d 11 (1984); McCoy v. Gay, 165 Ga. App. 590, 591-92, 302 S.E.2d 130 (1983).

In this regard, it has been held that “a crime against property only is [not] so substantially similar to a crime against the person such that knowledge of a single prior occurrence of a crime of the former type is notice of the foreseeable future occurrence of a crime of the latter type.” Tolbert v. Captin Joe’s Seafood, supra, 170 Ga.App. at 28, 316 S.E.2d 11.

When there is only a failure to exercise reasonable care in acquiring knowledge of a dangerous condition and no constructive or actual knowledge of the hazard, liability can only arise if the proprietor had superior opportunity to discover the condition. If the invitee knows of the condition or has equal opportunity to know of it then there is no liability on the proprietor for failure to act. See Arnold v. Athens Newspapers, Inc., supra, 173 Ga.App. at 738, 327 S.E.2d 845.

2. The instant defendant’s liability

Upon carefully considering the record, the court concludes that there is no genuine dispute that defendant did not know and had no reason to know the dangerous condition created by the Burke group, specifically, or the conditions of the parking lot, generally. Additionally, the court concludes that there is no genuine dispute that plaintiffs had an equal opportunity to discover the dangerousness of the Burke group and that, therefore, defendant cannot be liable for not “inspecting” the Burke group more than it did. Accordingly, the court finds that defendant is entitled to summary judgment on plaintiffs’ claim under § 51-3-1.

Regarding the defendant’s actual or constructive knowledge of the hazard presented by the Burke group, the court rests on its previous analysis of foreseeability.

Regarding the conditions of the parking lot, plaintiffs have failed to produce any evidence of “substantially similar” incidents to the one which befell them. Evidence of prior incidents of theft in the parking lot is evidence of prior crimes against property not against the person and thus is not substantially similar to the tortious attack on plaintiffs. Similarly, evidence of prior loitering and “rowdiness” is merely evidence of prior harmless disorder and was not sufficient to alert defendant to the dangerous condition created by not having security personnel and by not keeping the lights on longer.

CONCLUSION

In conclusion, the court GRANTS defendant’s motion for summary judgment.

This Order terminates this action.

      . The two actions were consolidated by this court on December 11, 1984.

      . Defendant entitles its motion a "motion for partial summary judgment" yet requests that judgment be entered for it on all of plaintiffs' claims.

      . This statement of facts was compiled from plaintiffs’ and defendant's respective statements of undisputed facts as well as from references to facts in the various briefs for which there is uncontroverted supporting evidence. All conflicting evidence was construed in plaintiffs' favor. Irrelevant undisputed facts were omitted. Where plaintiffs’ counsel’s characterization of the evidence did not reflect the evidence but reflected his own opinion as to what the evidence shows, the court, of course, relied on the evidence cited.

      . The Riverside Enterprises opinion is merely the latest pronouncement by the Georgia Court • of Appeals on the issue of "dramshop” liability. The Court of Appeals has stated the position taken by the Riverside Enterprises court on a number of occasions. See, e.g., Nunn v. Comidas Exquisitos, Inc., 166 Ga.App. 796, 305 S.E.2d 487 (1983); Keaton v. Kroger Co., 143 Ga.App. 23, 25, 237 S.E.2d 443 (1977); Henry Grady Hotel Co. v. Sturgis, 70 Ga.App. 379, 385-86, 28 S.E.2d 329 (1943).

      . The Georgia Supreme Court also apparently envisions such occasions as evidenced by its remarks in Sutter. See also Moone v. Smith, 6 Ga.App. 649, 652-53, 65 S.E. 712 (1909) ("There is no allegation ... that the intoxication of the men was caused by anything that they drank upon the premises; if so, the liability of the [proprietor] would be stronger, and clearer____”).
      The court also notes that a close reading of Belding v. Johnson reveals no holding that the intentionally tortious or criminal act of a person furnished with alcohol beverages can never be foreseeable by the provider of those beverages, contrary to the language of its progeny; the Belding court merely held that there were too many unforeseeable intervening acts between the furnishing of alcohol and the subsequent criminal act to find proximate causation. 86 Ga. at 180-81, 12 S.E. 304.


source: Caselaw Access Project

author: OBERDORFER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. David BENJAMIN, et al., Defendants.
    Crim. No. 85-0356.
    United States District Court, District of Columbia.
    Dec. 20, 1985.

      Joseph E. diGenova, U.S. Atty., Guy L. Goodwin and William C. Brown, Attys., Gen. Litigation & Legal Advice Section, Criminal Div., U.S. Dept, of Justice, Washington, D.C., for U.S.
    Thomas J. Nolan, Nolan & Parnés, Palo Alto, Cal., for Philip C. and Miriam R. Bourdette.
    John L. Williams, Manchester & Williams, San Jose, Cal., for Steven Simon.
    Jay W. Powell, Powell & MacGlashan, Visalia, Cal., for Cecelia Jason Dederich.
    Robert N. Harris, Los Angeles, Cal., for Elizabeth Missakian.
    Mark E. Overland, Overland, Berke, Wesley, Gits, Randolph & Levanas, Los Angeles, Cal., for Sybil Schiff.
    William W. Taylor, III, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, D.C., for Dan Sorkin.
    Robert D. Luskin, Onek, Klein & Farr, Washington, D.C., for David R. Benjamin.
    William G. Schaffer, Schaffer & Cooper, Washington, D.C., for Philip C. and Miriam Bourdette, Steven Simon, Cecilia Jason Dederich, Sybil Schiff and Elizabeth Missakin.
   MEMORANDUM

OBERDORFER, District Judge.

A twenty-two count indictment returned by a Grand Jury impaneled by this Court charges nine defendants with conspiracy, obstruction of justice and perjury; all of the nine defendants are charged in each count. Seven counts grow out of a dispute between Synanon Foundation, Inc. (“Synanon”), a California organization, and the Internal Revenue Service (“IRS”) as to whether Synanon was eligible for exemption from federal income tax under section 501(c)(3) of the Internal Revenue Code. The first count charges a conspiracy to alter or destroy documents and tapes which might support a revocation of Synanon’s tax exempt status and a continuing scheme of fraud and obstruction to conceal the destruction of evidence. Two of the federal counts charge that defendants, by their general counsel, Philip Bourdette, made false statements to IRS agents at a conference at IRS national headquarters in Washington, D.C., to which Synanon had appealed an adverse ruling of the IRS office in California. Four federal counts charge defendants with perjury and obstruction of justice in connection with the suit brought by Synanon against the United States pursuant to a statute which provides for judicial review in the District Court for the District of Columbia of IRS decisions denying tax exemption claims. See 26 U.S.C. § 7428. The remaining fifteen counts charge defendants with violation of the District of Columbia perjury laws in connection with a suit brought by Synanon in the Superior Court in a dispute over real estate in the District of Columbia (at issue was whether Synanon was a nonprofit corporation within the meaning of D.C. law).

The matter is presently before the Court on defendants’ motion to transfer the case to the District Court for the Eastern District of California, Fresno Division, either by operation of 18 U.S.C. § 3237(b) or Fed.R.Crim.P. 21(b).

The motion to transfer the federal counts invokes 18 U.S.C. § 3237(b) which provides that:

[WJhere an offense is described in section 7203 of the Internal Revenue Code of 1954 ... and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion ... elect to be tried in the district in which he was residing at the time the alleged offense was committed____

Section 7203 of the Internal Revenue Code provides in relevant part:

Any person ... required under this title or by regulations made under authority thereof to ... keep any records, or supply any information, who wilfully fails to ... keep such records, or supply such information, at the time or times required by law or regulations, shall ... be guilty of a misdemeanor____

Defendants claim that counts One, Two and Three allege willful failure to keep records or supply information required by tax statutes and regulations and that the “nature and effect” of this conduct are the same as conduct actionable under section 7203, making those counts subject to mandatory transfer under 18 U.S.C. § 3237(b) because the offense is “described” in section 7203.

Defendants further urge that counts Four through Seven charge acts “similar in kind to the counts subject to mandatory transfer” and that “the entire indictment charge[s] acts which principally concerned an attempt to withhold information from the Internal Revenue Service” and would require proof of the same facts. Defendants’ Reply Memorandum in Support of Motion to Transfer to Eastern District of California, Fresno Division (“Reply Memorandum”) at 6-7 (filed November 5, 1985). Consequently, defendants urge, the case should be transferred as a whole even if certain of the federal counts do not fall within § 3237(b). Defendants also make a special plea with respect to counts Five and Six. These counts charge that defendants endeavored to obstruct justice in the District of Columbia by preparing and signing in California and filing in this Court materially false declarations. Defendants claim that venue for these counts is proper only in the jurisdiction where the allegedly false declarations were prepared and mailed, and that venue does not lie in this district merely because the defendants caused the declarations to be filed here. They rely on United States v. Swann, 441 F.2d 1053, 1055 (D.C.Cir.1971), as authority for the proposition that defendants’ intention to influence proceedings here does not create venue here.

Finally, defendants ask transfer of the D.C. counts (alleging perjury in Superior Court) as well. Defendants argue that the Eastern District of California would have authority to adjudicate the D.C.Code offenses, and cite the policy of avoiding successive trials on charges that substantially overlap. See Defendants’ Supplemental Memorandum in Support of Transfer (“Supplemental Memorandum”) at 5-8 (filed November 18, 1985).

In general support of their motion, defendants point particularly to the statement in the Senate Report which made section 7203 indictments transferable: Prosecution of offenses described in that section “should be brought as close to the defendant’s residence as possible in order to avoid hardship to him, his attorneys and witnesses.” S.Rep. No. 1625, 89th Cong., 2d Sess. reprinted in [1966] U.S.Code Cong. & Ad.News 3676, at 3681. The defendants also quote the Senate Committee Report which originally recommended enactment of section 3237:

[T]oo frequently prosecutions are not brought in the defendants’ home districts but rather ... a considerable distance from the defendant’s home. The cost and inconvenience to the defendant may be substantial, especially in the case of an extended trial. The additional expense to the defendant living away from home, the problem of getting his local attorneys to leave their offices and practices for several days or weeks and the increased cost incurred thereby, the inconvenience to witnesses, these are all factors which the committee believes place a heavy burden upon the defendant which can be better borne by the Government.

S.Rep. No. 1952, 85th Cong., 2d Sess. reprinted in [1958] U.S.Code & Ad.News 3261, at 3262 (quoting comments from the House Report). Thus, defendants contend:

The purpose of section 3237(b) is to entitle a citizen accused of misleading agents of the Internal Revenue Service investigating his compliance with the federal tax laws at a trial to defend these accusations in the district of his residence. That right is not altered because ... a citizen is compelled to attend conferences in Washington, D.C., see Internal Revenue Manual §§ 4551.2(11) and .3 (“Conferences in Washington”), or because he is compelled by law to file suit in the federal courts in this city. See 26 U.S.C. § 7428(a)(2); Universal Life Church, Inc. v. Internal Revenue Service, 82-1 USTC 119390, at p. 84,076 (1981).

Reply Memorandum at 7-8 (footnote omitted).

In the alternative, defendants base their motion on Fed.R.Crim.P. 21(b). That rule authorizes a transfer of a case or any one or more of the counts for the convenience of parties and witnesses, and “in the interest of justice.” In support of this alternative, defendants point to the fact that most of the defendants reside in California. Synanon is incorporated and operates there. The alleged documents destruction occurred there. The allegedly false written statements were prepared in California (and Arizona) and transmitted from there to the District of Columbia. Defendants claim that both they and the government will be forced to rely primarily on California witnesses to establish the truth (or falsity) of the allegedly false statements made in hearings at the IRS, Superior Court, and this Court, as well as the materiality of those statements. Alleged acts of violence and other conduct which drew the tax exemption into question occurred in California. The original IRS audit occurred in California and the original decision denying tax exemption was made there. They further claim that the principal witnesses (particularly character witnesses and those who dealt with IRS) and quantities of documentary evidence are in California. Five of the seven lawyers so far appearing for defendants practice in California. Defendants point to the logistical problems and expense which would be involved for defendants and their California counsel if they were required to establish themselves in Washington for a protracted trial, as well as the expense and difficulty involved if they attempted to commute to their homes and offices in California during the trial.

In opposing these motions, the government emphasizes that the conspiracy count and the particularized counts all essentially charge acts committed in the District of Columbia: obstruction of justice in this Court, false statements and representations at conferences at the IRS national headquarters here in Washington, D.C., and perjury in the Superior Court of the District of Columbia. In the government’s view

[T]he principal matter at issue here is not the existence of a tax evasion scheme arranged and perpetrated primarily in California. Rather, ... the key issue is whether the defendants should be held criminally response for participating in this “gross fraud ... of the most grave and serious proportions” on both federal and local courts of the District of Columbia.

Government’s Memorandum in Opposition to Defendants’ Motion to Transfer Action to the Eastern District of California, Fresno Division (“Government’s Opposition”) at 6 (filed October 25, 1985).

In further answer to defendants’ reliance on § 3237(b), the government argues that transfer under § 3237 in cases involving tax evasion (26 U.S.C. § 7201), false declarations (26 U.S.C. § 7206(1)), aiding and abetting false returns (26 U.S.C. § 7206(2)), and document destruction (26 U.S.C. § 7206(5)) is only authorized when venue for a prosecution of an offense described in one of those sections is based “solely on a mailing to the Internal Revenue Service.” The government notes that the “mailing requirement” is not satisfied here.

As to transfer under section 3237(b) on the theory that the offenses charged are also “described” in 26 U.S.C. § 7203, the government concedes that under § 3237(b) no requirement that venue be based solely on mailing limits transfer of § 7203 prosecutions. The government argues, however, that, under the terms of § 3237(b), § 7201 or 7206 cases in which venue is based solely on mailing may be transferred “whether or not the offense is also described in another provision of law.” The government notes that this broadening clause does not modify § 3237(b)’s reference to § 7203 cases.

The government further argues that section 7203 covers only failure to file a return or supply information required by law, whereas the federal tax counts in this case involve misrepresentations to the IRS. In support of its contention that only failure to file cases brought under § 7203 are transferable under § 3237(b), the government argues that the 3237(b) transfer option was created to address a narrow problem. The government points to the Senate Report on the legislation:

For purposes of determining where a prosecution [for willful failure to file a tax return] is to occur, present case law holds that the venue is to be in the judicial district in which the return was required to be filed.
... [T]o be sure that the taxpayer has the right to be tried in the district in which he resides, the bill amends present law to provide that he may elect to remove his trial to the judicial district of his residence.

S.Rep. 1625, 89th Cong., 2d Sess, reprinted in [1966] U.S.Code Cong. & Ad.News at 3680-81.

Addressing defendants’ claim based on Fed.R.Crim.P. 21(b), the government concedes that “[a] motion under Rule 21(b) is addressed to the sound discretion of the Court.” Government’s Opposition at 15. See Jones v. Gasch, 404 F.2d 1231, 1242 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed. 286 (1968). The government cites a district court’s statement in a nontax case that:

To warrant a transfer from the district where the indictment was properly returned it should appear that a trial would be so unduly burdensome that fairness requires the transfer to another district of proper venue where a trial would be less burdensome____

United States v. Baltimore & Ohio RR, 538 F.Supp. 200, 205 (D.D.C.1982) (quoting United States v. United States Steel Corp., 233 F.Supp. 154, 157 (S.D.N.Y.1964) ). The government points out that the government attorneys and Federal Bureau of Investigation agents who investigated the perjury and related charges and who reside in the District of Columbia would be inconvenienced by a transfer to California, and this Court’s authority to transfer the case to the Eastern District of California does not include authority to designate the Fresno Division of that district for the trial. Most important, the government emphasizes:

Because of the nature of the defendant’s alleged conduct, this is a case that is so closely linked to the judicial processes in this district that it should be tried here absent a compelling showing of overriding factors____ It falls properly within the substantial interest of this Court and the public of the District of Columbia to maintain jurisdiction in a case of this type. This is particularly true in view of the fact that the majority of the counts in the indictment charge perjury under the D.C.Code in the Superior Court of the District of Columbia in Bernstein, a dispute over a sale of District of Columbia real estate.

Government’s Opposition at 19-20. According to the government:

This is not a case where the defendants are being forced to trial away from their homes because some technical act or legal requirement of the tax code has created venue in this district. Rather, it was in this district that the defendants committed perjury, obstructpon] of justice and attempted to perpetrate their fraud on the courts.

Id. at 20-21.

In addition, the government strongly disputes defendants’ contentions that many documents and witnesses-necessary for the trial are in California. The government also downplays the impact of the trial on defendants’ businesses and the relative expense of trial in California vis-a-vis the District of Columbia. According to the government, this Court’s docket is in better condition to absorb this trial than is that of the District Court for the Eastern District of California. Finally, the government points to the reputation of defendants in California for violence and obstruction of justice, and the risk that a trial there could be complicated by the apprehension of jurors and witnesses about the consequences to them of crossing Synanon. According to the government:

[T]he real objective of the defendants’ motion to transfer this case to Fresno is to be tried in a community where Synanon’s reputation for violence against and harassment of its enemies is pervasive, and where ... this reputation, along with the proximity to the Synanon facility, will affect witnesses called to testify and could render jurors chosen to try the case susceptible to intimidation.

Id. at 28-29. They continue:

In view of the intentional creation of this reputation for violence against and harassment of Synanon’s enemies in the very district to which the defendants seek to transfer this case, transfer is not in the interest of justice. Some of the defendants and the organization which they direct are directly responsible for the creation of this reputation for violence. The defendants should not be permitted to capitalize on it by obtaining a transfer to the very location where the Synanon’s armed presence and its reputation for violence is strongest.

Id. at 33-34.

II.

Analysis of the issues posed by the defendants’ motion is best conducted by considering the proposed transfer of the federal counts before considering the disposition of counts alleging violation of the D.C. Code. In turn, discussion of the federal counts conveniently subdivides best into attention to the defendants’ reliance on § 3237(b) before addressing the transferability of the federal counts on authority of Rule 21(b).

The procedure for administrative determination of the tax status of an organization claiming tax exemption and judicial review of that determination is germane to resolution of the pending motion to transfer. The determination to exempt an organization from tax pursuant to § 501(c)(3) or a determination to revoke an outstanding exemption is initially the responsibility of the Director of IRS of the district where the organization files its return. This determination by the Director is reviewable through the IRS hierarchies: the IRS regional office (with geographical jurisdiction roughly parallel to that of a U.S. judicial circuit), and ultimately in the national office in Washington, D.C.

At one time there was no straightforward procedure whereby an organization claiming exemption could obtain judicial review of an administrative decision by IRS to deny or revoke an exemption. To obtain judicial review an organization had to pay the tax which would be due if it were not tax exempt and then sue in a United States District Court (or the then Court of Claims) for a refund. The suit for refund could be brought in the District Court where the organization was domiciled or where it filed tax returns and Claims Court Commissioners took evidence and heard argument on circuit.

In 1976, Congress provided a declaratory judgment remedy to organizations claiming to be erroneously denied tax exemption, 26 U.S.C. § 7428. Under § 7428 it was no longer necessary to pay the tax and sue for refund. The prescribed procedure was to exhaust the administrative process and then sue in the Tax Court of the United States, the Claims Court, or the United States District Court for the District of Columbia. Each of these courts has its office for the filing of pleadings in the District of Columbia. Thus, the only recourse available to any organization disputing denial of its tax exemption (other than paying a tax and suing for its refund) was to exhaust its administrative remedy through the IRS national office, and if unsuccessful to obtain judicial review by filing suit in Washington, D.C. The Tax Court and the Claims Court “ride circuit” so that hearings on a taxpayer’s suit to redress exemption rulings in those courts could be held near the taypayer’s residence. But plenary review by a federal district court under 7428 is exclusively in the District of Columbia.

A.

The government has the better of the argument with respect to automatic transfer pursuant to 18 U.S.C. § 3237(b). Defendants correctly state that, it is not necessary to find that to be transferable the count must charge an enumerated offense or one effected by a mailing. Under the terms of § 3237(b), transfer is authorized for an offense “described” in § 7203 just as transfer is authorized for offenses “described” in §§ 7201 and 7206(1), (2) and (5). Moreover, Congress was prompted to provide defendants with the option of transfer of certain tax prosecutions to the district where they resided when the alleged offense was committed. The reasons which inspired Congress to provide that option in cases (under §§ 7201, 7206) where venue is based solely on mailing pertain as well to this case, in which the alleged crimes were committed in Washington, D.C., far away from plaintiffs’ homes because the law required their organization to apply here for administrative and judicial relief with regard to a tax issue. Defendants also seem to be correct in their contention that section 7203 is not limited to failure to file tax returns. See United States v. Stavros, 597 F.2d 108, 112 (7th Cir.1979).

Despite these persuasive arguments for transfer, defendants’ motion must fail—to the extent that it is based on § 3237(b) and the inclusion in the indictment of offenses chargeable under § 7203. Although defendants correctly cite the provision of section 7203 which makes it a crime for a person required to supply information to the IRS to fail to do so, a § 7203 prosecution on this theory requires proof that the supply of information was required by law or regulation. Defendants have not thus far demonstrated that any law or regulation affirmatively required the supply of the information. They argue instead that if the supply of information was not required by law or regulation, the alleged misrepresentation about destruction of the information is neither material nor actionable. The materiality of the alleged misstatements, however, is not yet at issue. Defendants’ failure thus far to establish that retention of the disputed documents was required by the Internal Revenue Code or by regulation precludes transfer pursuant to § 3237(b) insofar as it pertains to crimes described in section 7203.

B.

Rule 21(b) is another matter. The language of Rule 21(b) vests considerable discretion in the trial court to determine when a criminal case, or a count in such a case, should be transferred “for the convenience of the parties and witnesses, and in the interests of justice.” This Court has “liberally construed [Rule 21(b) ] so as to minimize inconvenience to a defendant.” United States v. Amador Casanas, 233 F.Supp. 1001, 1003 (D.D.C.1964). The Supreme Court, speaking through Justice Clark, a former Attorney General, has sketched the factors germane to a transfer decision under Rule 21(b) in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964); factors include: location of defendants, location of possible witnesses, location of events likely to be in issue, location of documents and records likely to be involved, disruption of defendant’s business, expense to the parties, location of counsel, relative accessibility of the place of trial, docket condition of each district and other special elements. See also United States v. Amador Casanas, supra, 233 F.Supp. at 1003.

In this case, consideration of the Platt factors establish that, on balance, the convenience of the parties, if not the witnesses, and the interests of justice require transfer to the Eastern District of California. That conclusion is even more compelling in light of the special element that these federal counts grow out of a federal tax case in California—which tax case ultimately came to the federal district court in the District of Columbia only because Congress designated the District of Columbia as the exclusive forum for actions in federal district court under 26 U.S.C. § 7428.

C.

The so-called Platt factors may be considered individually, although judgment ultimately rests upon an overview.

1. Parties and Lawyers.

The issue here involves at least two factors which distinguishes this ease from the usual one-on-one prosecution:

First, this criminal prosecution grows out of a federal income tax enforcement proceeding in California about the tax status of an organization there. Consequently, the decision as to transfer is informed, if not controlled, by Congress’ stated preference that tax prosecutions “should be brought as close to the defendant’s residence as possible in order to avoid hardship to him, his attorneys and witnesses.” S.Rep. 1625, U.S.Code Cong. & Admin. News 1966, 3681, supra.

Second, this will be a protracted trial. The trial does not require the presence of any principal or corporate representatives of the government. However, nine defendants must be in court all day, every day, 3000 miles from their homes, families, businesses and offices. Defendants’ initial motion to transfer reported that there are eight counsel for the defendants, five from California, one from Arizona, and two from the District of Columbia. See Motion to Transfer Action to the Eastern District of California, Fresno Division (filed October 16, 1985) at 31.

The United States is ubiquitous. The IRS and the Department of Justice are, or should be, “at home,” not only in Washington, D.C., but also in Fresno or any other place in California or elsewhere in which a federal court sits. These eight defendants are only “at home” in California (and the ninth apparently has family there). The government is represented by two attorneys from the Department of Justice whose duty and practice is to try cases in any federal court in the United States. If the trial is in Washington, D.C., six defense lawyers must travel; if it is elsewhere, only two government lawyers must travel. (Defendants suggested at oral argument that District of Columbia local counsel for defense will probably withdraw from the case if it is transferred to California.) In any federal district, the government lawyers have a built-in office, complete with local logistical support from parallel local staffs of the U.S. Attorney, IRS and the FBI. Each of these organizations has established telephone and telecopying access to its national office in Washington, D.C., with back-up and supervisory personnel easily available. The Justice Department is, or should be, staffed, so that if one prosecuting team is away from Washington, supervisors and other lawyers can carry on for them in any other matters for which they are responsible. In contrast, five California lawyers and one Arizona lawyer defending California clients in Washington, D.C., must establish their own local base or move in with local counsel. There is no indication that any of them belongs to a large firm affording a back-up base which could match that available to the government.

2. Witnesses.

The government represents (and has filed an in camera witness list to confirm its representation) that most of its witnesses reside outside the Eastern District of California. Moreover, the government discounts defendants’ need for witnesses within that district, other than character witnesses. In the government’s view the testimony of many witnesses proffered by defendants to testify about the disposition (destruction) of documents there and the nature of Synanon’s activity will be irrelevant.

The government’s showing that many of its witnesses, such as FBI and IRS agents are from Washington, D.C., must, however, be discounted by some of the same considerations which discount the inconvenience which will confront government lawyers required to conduct a protracted trial away from home. The government-employee witnesses, like the government lawyers, have nationwide responsibilities and are equipped to operate away from home with minimal disruption of their official business.

Moreover, the government’s argument as to the irrelevance of the documents destruction in California and the nature of Synanon’s activities must also be discounted. In this motion proceeding, the government has made significant reference to colorful evidence of Synanon’s acts of violence, obstruction of justice and other aberrational behavior. Indeed, the government’s opposition is supported by a 140-page statement of material facts filed in The Synanon Church v. United States, C. A. No. 82-2303 (D.D.C.). That statement chronicles a notorious history of Synanon. The temptation upon the prosecution to bring this colorful evidence before the jury in this case will be very powerful. If the defendants have any rebuttal to this kind of evidence, should it become admissible, they are entitled to be prepared for it. The witnesses who would testify for the defense with respect to such matters appear to be largely from California.

3. Location of Events.

In the context of federal tax enforcement, the focus of this case is in California, where the defendants operated, the IRS audited them, and defendants allegedly obstructed the audit by documents destruction and by misrepresentation. Obviously, critical events occurred at the national office of IRS and in federal court in Washington, D.C. The government correctly emphasizes the affront that this Court suffered from defendants’ misrepresentation to it. Nonetheless, those misrepresentation were about events that occurred in California, presumably material to Synanon's tax exemption. Moreover, defendants correctly emphasize that they became involved in federal court in Washington, D. C., solely because ultimate IRS administrative review and judicial review of that decision are, as a matter of law, only available in Washington, D.C. Therefore, in evaluating the “location of events factor” as informed by the tax enforcement policy articulated by Congress, the tilt is in favor of trial of defendants at the district of their residence where the tax related events occurred, rather than in the District of Columbia, to which defendants repaired only in response to the requirements of the IRS practice and the 1976 provisions for judicial review in this Court.

4. Documents.

The government has apparently already assembled in the District of Columbia the documents which it will require to make its case. The defendants claim to have voluminous documents in California that they will need here, unless the expense deters them from doing so. The government attorneys, reinforced by the FBI and the IRS, would seem to have a relatively more manageable task if they had to move their assembled documents to California than would the defendants if they needed to collect and transport defense documents to the District of Columbia. Normally, the defense of a complex criminal case can only be finally organized after the prosecution has showed its evidence at trial. It would seem to be more difficult for defendants sitting at trial in Washington to search for, assemble, and transport counterdocuments from California to Washington, D.C., than it would be for the government to assemble rebuttal documents in Washington (or California) and produce them in California. Since the defendants’ need for documents is, however, necessarily speculative and susceptible to exaggeration, no great weight is attributable to the documents factor.

5. Disruption of Defendants’ Business Activities.

Defendants cite several 21(b) transfer cases which give considerable weight to prospective disruption of defendants’ businesses by a trial in a distant place. United States v. Gruberg, 493 F.Supp. 234, 242 (S.D.N.Y.1979); United States v. Daewoo Industrial Co., Ltd., 591 F.Supp. 157, 163 (D.Or.1984); United States v. Jessup, 38 F.R.D. 42, 47, 50 (M.D.Tenn.1965); United States v. Olen, 183 F.Supp. 212, 219 (S.D.N.Y.1960); United States v. Aronoff 463 F.Supp. 454, 459 (S.D.N.Y.1978). They also set out in detail, supported by affidavits, the nature of individual defendants’ business responsibilities and the extent to which they and their employer would be disrupted by a protracted trial which pins down key officials in Washington. The government retorts that a protracted trial even in California is necessarily disruptive, and it is further noted that defendants could fly home from Washington for weekends. There remains, however, a margin of time and expense which plainly balances the “convenience-to-defendants’-business factor” in favor of the California forum. See United States v. Olen, supra, 183 F.Supp. at 219 (transfer granted in part because defendants could maintain their accounting practice at night and on weekends).

It might not be unreasonable, in the abstract, to conclude that interruption of Syn-anon’s “business” would actually serve the public interest and therefore be “in the interests of justice.” Defendants have not yet been convicted, however, on the indictment now pending here. If they are a threat to the public peace in California, that threat should be addressed there, and not by a process which removes them 3000 miles from home for judicial review of their organization’s tax status and trial for misconduct in the course of that review.

6. Expenses.

Travel and lodging expenses are an obvious factor to be considered, see United States v. Haley, 504 F.Supp. 1124, 1128-29 (E.D.Pa.1981), albeit not controlling unless unbearable. See United States v. Baltimore & Ohio RR Co., 538 F.Supp. 200, 205 (D.D.C.1982). It is obvious that the government and, for ought that appears, the defendants have ample means to participate in a trial in either Washington or California. The cost of transporting and maintaining witnesses at either place is difficult even to estimate on the basis of the available record. Nonetheless, it is obvious that the nine defendants would incur substantially more cost transporting and maintaining themselves, and six lawyers (plus staff) in Washington for a protracted trial than the government would incur if it had to maintain two lawyers and appropriate FBI and IRS support personnel in California. Defendants also assert that they would incur several hundred dollars in airfare each time one or more of them or their California lawyers traveled home and back during the trial for business or family reasons. It is questionable whether the government would do the same. For what it is worth, the expenses factor seems also to favor transfer.

7. Location of Counsel.

Six defendants are represented by California counsel, several of whom plausibly claim to have a long time attorney-client relationship and therefore to be familiar in some depth with the affairs of Synanon and the facts of this case. Defendants’ two Washington counsel purport to be less familiar. Moreover, if what the government says about Synanon is true, defendants could have difficulty obtaining counsel with the client rapport of their present California lawyers. Obviously the District of Columbia would be a more convenient forum for government counsel who work and live here. Nonetheless, as indicated, the inconvenience to six outweighs the inconvenience of two.

8. Length of Trial and Docket Congestion.

While a congested docket is a factor to be considered, the Speedy Trial Act assumes that either this Court or the Eastern District of California would rearrange its docket to accommodate this significant case, even if other matters were delayed. The statistics proffered by the parties fail to demonstrate that this trial would impose undue strain on either district. Although defendants urge transfer to the Fresno Division of the Eastern District of California, it is beyond the power of this Court to designate the division to which the case will be assigned. Assignment of the case within that district is a matter for decision there.

9. Special Considerations.

There are two other factors unique in this case: The government invokes “the rights of the government as well as the rights of the public to a trial in a venue free from the taint of Synanon’s pervasive reputation for violence against and harassment of those it perceives to be its enemies, including jurors, and where witnesses will be less subject to intimidation.” Government’s Opposition at 28. Defendants contend, of course, that the government’s assertions are unfounded. More important, however, it ill behooves representatives of the United States to concede that it cannot enforce federal law or prosecute flagrant federal crimes in any district in the United States. See, e.g. United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964).

This conclusion is confirmed by the other special consideration: the federal counts here partake of a tax prosecution. The Congress has indicated a strong preference for the trial of such cases at the defendant’s home. Where, as here, nine defendants were actually or constructively in court in Washington in connection with their organization’s tax case solely because the law and IRS practice required them to come here to get relief, it is, under all of the circumstances, “in the interests of justice” to transfer the federal counts to the Eastern District of California.

III.

Having determined to transfer the federal counts to the Eastern District of California, the disposition of counts Eight through Twenty-two remains for consideration. All of these counts charge violation of the D.C. Code in the course of a proceeding in D.C. Superior Court relating to real estate situated in the District of Columbia. Synanon sought and sued in Superior Court to establish special status for its D.C. real estate interest on the theory that Synanon was a nonprofit corporation. Counts Eight through Twenty-two charge perjury and fraud on the Superior Court in the course of this real estate related litigation. In this criminal case the government joined these D.C. counts with the federal counts on the authority of D.C.Code § 11-502(3). That section confers jurisdiction on this Federal District Court over

[a]ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense.

Our Court of Appeals has clarified in discussing joinder of counts under § 11— 502(3) that such joinder is appropriate “only if all the offenses charged were part of ‘the same series of acts or transactions.’ ” United States v. Jackson, 562 F.2d 789, 794 (D.C.Cir.1977). The government here apparently justifies joinder of the D.C. and federal counts principally on the ground that the defendants made the allegedly false statements in the D.C. proceeding in a continuing attempt to deny or cover up the same alleged acts of violence and documents destruction that defendants allegedly sought to deny or cover up in the IRS administrative proceedings and in the later civil proceedings in this Court. These arguments give color to defendants’ contentions that the federal counts and the District of Columbia counts have a common origin—Synanon’s alleged efforts in California to conceal evidence which might threaten its non-profit, tax-exempt status and the tax controversy which arose in California. Moreover, in any event, proof (or disproof) of the falsity and the materiality of the statements should rely upon witnesses and documents the same or similar as would be relied upon with respect to the federal counts. Indeed, the federal court decision in The Synanon Church v. United States, supra, was based in substantial part upon the collateral estoppel effect that the federal court gave to the Superior Court decision. Accordingly, most of the arguments favoring transfer of the federal counts similarly favor transfer of the D.C. counts.

If the federal counts alone were transferred, recent decisions of our Court of Appeals indicate that the D.C. counts should be dismissed by this Court, leaving the government as one option to refile the D.C. counts in Superior Court. The Court of Appeals has stated that:

the federal court must dismiss a criminal prosecution when federal charges have faded from the case prior to trial, leaving only District of Columbia offenses for adjudication, unless the court determines, in its discretion, that retention of the case is warranted by remaining matters of legitimate federal concern.

United States v. Kember, 685 F.2d 451, 454 (D.C.Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982) (footnote omitted). Here, absent the federal counts, no tangible federal interest would remain to justify this Court’s retention of the local counts. A principal reason advanced by the government for trying the D.C. counts in this district are that the alleged perjuries were affronts to the D.C. Superior Court, and should be vindicated in this district. Principles governing division of responsibility between the D.C. Superior Court and this federal court argue that, even if vindication of a court’s prestige is a legitimate federal concern, the D.C. Superior Court is the preferred forum for the vindication of its prestige. For “Congress has determined that D.C. offenses should generally be tried in the D.C. Courts.” Jackson, supra, 562 F.2d at 797.

There is also another option. The parties appear to agree that the Eastern District of California should not lack jurisdiction to try the D.C. counts together with the federal counts. See Defendant’s Supplemental Memorandum at 4-8; Government’s Response to Defendants’ Memorandum in Support of Motion to Transfer (filed November 22, 1985) at l. There is no reason why the federal court in the Eastern District of California cannot vindicate the prestige of other courts quite adequately, and perhaps, more even-handedly than the court that was affronted.

Cases cited by the parties support defendants’ claim (in which the government apparently accedes) that the federal district court in the Eastern District of California may entertain the D.C.’ counts. See United States v. Ford, 627 F.2d 807 (7th Cir.), cert. denied, 449 U.S. 923, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980) (sustaining the jurisdiction of a federal court in Indiana to impose sentence, after a Fed.R.Crim.P. 20 transfer, upon a defendant who pleaded guilty to three D.C.Code counts of arson); United States v. Perez, 488 F.2d 1057 (4th Cir. 1974) (sustaining the jurisdiction of the federal court in the Eastern District of Virginia to convict defendant on a charge of assault upon a D.C. correctional officer in violation of the D.C.Code). These courts persuasively reasoned, based upon an examination of the legislative history, that D.C.Code § 11-502(3) was intended to address the narrow problem of the division of labor between the local courts and federal court in the District of Columbia. See Ford, supra, 627 F.2d at 811-12; Perez, supra, 488 F.2d at 1057-58. Consequently, that provision has no effect upon the federal district courts in other jurisdictions, which are empowered under 18 U.S.C. § 3231 to try “all offenses against the laws of the United States.” See Perez, supra, 488 F.2d at 1059; see also United States v. Kember, 648 F.2d 1354, 1358 n. 3 (D.C.Cir.1980). “Section 3231 was not expressly repealed by the Court Reorganization Act [footnote omitted], and we do not think that the Act had that implied effect.” Perez, supra, 488 F.2d at 1059.

More important, there is an obvious judicial economy to be achieved by transferring the D.C. counts, together with the federal counts, to the Eastern District of California (rather than severing the counts and dismissing them). In light of the foregoing, the Rule 21(b) balancing of interests and convenience to the parties compels the conclusion that transfer of the D.C. counts—like the federal counts—is in the interest of justice. Accordingly, the accompanying order will transfer the D.C. Code counts, together with the federal counts, to the United States District Court for the Eastern District of California.

      . The indictment was filed on October 1, 1985. On October 16, 1985, defendants moved to transfer the case to the United States District Court for the Eastern District of California, Fresno Division. On November 13, 1985, the Court heard extensive oral arguments from counsel on the motion to transfer. Other than the pleadings and arguments, there has been no activity or discovery in the matter.

      . Eight of the nine defendants have joined in the motion; the ninth, Dan C. Garrett, does not oppose the motion.

      . Defendants cite United States v. Kimble, 186 F.Supp. 616, 618 (S.D.N.Y.1960), and United States v. Youse, 387 F.Supp. 132 (E.D.Wis.1975).

      . Section 3237(b) provides in pertinent part: [W]here venue for prosecution of an offense described in section 7201 or 7206(1), (2), or (5) ... (whether or not the offense is also described in another provision of law) is based solely on a mailing to the Internal Revenue Service, and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion ... elect to be tried in the district in which he was .residing at the time the alleged offense was committed____
      Defendants initially appeared to claim that certain of the counts were chargeable under § 7201 or § 7206, thus providing alternative grounds for mandatory § 3237(b) transfer. See Memorandum of Points and Authorities in Support of Motion to Transfer to the Eastern District of California, Fresno Division (“Defendants' Memorandum”) at 9 (filed October 16, 1985). Defendants have now apparently abandoned this claim. See Reply Memorandum at 6-7.

      . The government also quotes from another nontax case that:
      [OJnly rarely and for good cause should a prosecution be withdrawn by a judicial act from the court in which it is brought ____ This is especially true where, as in this case, government counsel has carried it before the Grand Jury. Accordingly, to warrant a transfer the defendant must demonstrate and the Court must be satisfied that the prosecution in the district where the indictment was properly returned will result in a substantial balance of inconvenience to himself.

        United States v. Jones, 43 F.R.D. 511, 514 (D.D.C. 1967).

      . 26 U.S.C. § 7428 provides in pertinent part that:
      In a case of actual controversy involving ... a determination by the Secretary ... with respect to the initial qualification or continuing qualification of an organization as an organization described in section 501(c)(3) which is exempt from tax under section 501(a) ... upon the filing of an appropriate pleading, the United States Tax Court, the United States Claims Court, or the district court of the United States for the District of Columbia may make a declaration with respect to such initial qualification or continuing qualification____

      . The government does not dispute that courts have found § 3237(b) transfer appropriate where offenses chargeable under §§ 7201 or 7206(1), (2), or (5) provided the gravamen of the indictment. See Government’s Opposition at 10-12.

      . Such failure at this stage obviously does not prejudice the government’s possible efforts at trial to establish such a duty. Because it is determined that transfer is appropriate under Fed.R.Crim.P. 21(b), see infra at 11(B), it is not necessary to rest the transfer on § 3237(b) and § 7203. The fact, however, that later in these proceedings the government may well make such proof—thus rendering counts then "chargeable” under § 7203 and subject to mandatory § 3237(b) transfer at defendants’ election—would support a decision to transfer the entire case to the Eastern District of California before there has been any substantial activity in the case.

        . Eight of the nine defendants reside in California, and one, Sybil Schiff, resides in Florida. Ms. Schiff has joined in the motion to transfer to California.

      . Nor should the government’s concern about witness intimidation be countenanced, particularly as it may be intended to justify a trial in Washington instead of California. The United States and the Court must assume that its FBI and IRS agents can be protected anywhere in the United States. Nor does the government’s concern about possible intimidation of jurors justify a 3,000 mile change of venue.

      . The Statement of Material Facts asserts with considerable supporting detail that:
      Synanon III, which commenced in 1974, involved the transformation of Synanon into a corporate conglomerate in business to make huge profits for the personal enrichment of Dederich, his family and other members of the Synanon elite. Synanon was also to become a militaristic cult dedicated to violence. It declared “Holy War” on the "ungodly,” and threatened, harassed and beat perceived "enemies." Synanon recognized that it was no longer a charitable organization, so it started to call itself a religion in the hope of preserving its tax exempt status.

        The Synanon Church v. United States, supra. Defendants’ Statement of Material Facts Filed in Accordance wtih Local Rule 1—9(h) at 2.

      . By contrast, no government principal, other than lawyers, would be confined to the courtroom. Moreover, the government’s tax apparatus is "in business” nationwide.

      . The Declaration of Independence complained about the British Government "[f]or transporting us beyond the Seas to be tried for pretended offenses." Documents Illustrative of the Formation of the Union, 69th Cong., 1st Sess. at 22, 24, House Dock. 398 (1927).

      . Defendants have filed statements waiving their rights to a speedy trial under 18 U.S.C. § 3161(a) and (c)(1).

      . The government expressed its concern that the arguments in favor of the exercise of jurisdiction by the Eastern District of California over the D.C. counts might not ultimately prevail. It goes without saying that the transfer of the entire case herein effected is without prejudice to the government’s right to refile the D.C. counts in the Superior Court in the District of Columbia and then dismiss them in the transferred proceedings in California.