G & G Fremont, LLC v. City of Las Vegas

• Decision Date: 10 August 2016
• Docket Number: Case No. 2:14-CV-1006 JCM (PAL)
• Citation: 202 F.Supp.3d 1175
• Parties: G & G FREMONT, LLC, a Nevada limited Liability company; Crazy Ely Western Village, LLC, a Nevada limited liability company, Plaintiff(s), v. CITY OF LAS VEGAS, Defendant(s).
• Court: U.S. District Court — District of Nevada

202 F.Supp.3d 1175

G & G FREMONT, LLC, a Nevada limited Liability company; Crazy Ely Western Village, LLC, a Nevada limited liability company, Plaintiff(s),

v.CITY OF LAS VEGAS, Defendant(s).

Case No. 2:14-CV-1006 JCM (PAL)

United States District Court, D. Nevada.

Signed August 10, 2016

Jeffrey F. Barr, Ashcraft & Barr | LLP, Las Vegas, NV, for Plaintiff(s).

Philip R. Byrnes, Jeffry Dorocak, City Attorney's Office, Las Vegas, NV, for Defendant(s).

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE

Presently before the court is defendant City of Las Vegas's (the "City" or the "defendant") motion for summary judgment. (ECF No. 44). Plaintiffs G&G Fremont, LLC's and Crazy Ely Western Village, LLC's (collectively, as the "property owners" or the "plaintiffs") filed a response (ECF No. 48), and the City filed a reply (ECF No. 50).

Also before the court is the property owners' motion for partial summary judgment. (ECF No. 45). The City filed a response (ECF No. 49), and the property owners' filed a reply (ECF No. 51).

I. Background

The present case involves the regulation of package liquor sales by the City along the Fremont Street Experience ("FSE"). (ECF No. 44 at 2). The property owners own shops that sell packaged liquor on the FSE. (ECF No. 45 at 3). At the Las Vegas Planning Commission's July 9, 2013 meeting, members of the public and a representative of the Las Vegas Metropolitan Police Department ("LVMPD") opposed the applications of four new package liquor stores and voiced their concerns about issues caused by these stores. (Id. at 3). The accounts from the individuals present described various issues with the package sales, including: (1) how the package stores routinely oversold alcoholic beverages to visibly intoxicated patrons; and (2) the availability of high-alcohol drinks in large quantities. (ECF No. 44 at 3). The planning commission also heard accounts of the effect of package liquor on underage drinking and crime. (Id. at 4–5). Furthermore, a retired LVMPD sergeant spoke about his experiences with crowd issues and underage drinking involving package liquors. (Id. at 5). Finally, the City received petitions opposing the applications for new package liquor purveyors with over 1,000 signatures. (ECF No. 45 at 7).

As a result of this meeting and further discussion, the City ultimately adopted Bill No. 2013-15 as Ordinance No. 6287 and imposed a 180-day moratorium on new land use entitlements and business licenses for package liquor on FSE. (Id. at 6). Subsequently, in May 2014, the City passed Ordinance No. 6320. (ECF No. 45 at 2). The ordinance, enacted as LVMC 6.50.475, applied only to souvenir stores along the FSE selling packaged liquor. (ECF No. 45 at 3). These new restrictions prohibited the sale of "single serving products containing alcohol for immediate consumption," such as Jell-O shots or candy; any malt or beer beverage greater than thirty-two liquid ounces in size or an alcohol content greater than eleven percent alcohol by volume. The ordinance further prohibited the sale of alcohol (except beer or wine) in containers less than three hundred seventy-five milliliters. § 6.50.475(A), (C)–(E).

LVMC 6.50.475 also contained several advertising restrictions. (ECF No. 44 at 21). The ordinance required that the stores limit their alcohol advertising to only ten percent of their store windows, and it prohibited stores from posting alcohol price advertisements visible to individuals standing outside of the establishment. § 6.50.475(F)–(H). The ordinance also required that the stores post signs informing customers that it is prohibited to open or consume alcohol purchased at the store on the pedestrian mall. § 6.50.475(I).

The property owners filed the instant complaint on June 20, 2014, alleging thirteen claims for relief. (ECF No. 1 at 26). On October 7, 2015, the city council repealed former LVMC 6.50.475(F)–(H). (ECF No. 44 at 21). Defendant now moves for summary judgment and plaintiffs move for partial summary judgment. The court will address each in turn.

II. Legal Standard

The Federal Rules of Civil Procedure allow summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett , 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed. , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, to be entitled to a denial of summary judgment, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Id.

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir.2000) (citations omitted).

By contrast, when the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party's case; or (2) by demonstrating that the non-moving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. , 477 U.S. at 323–24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the non-moving party's evidence. See Adickes v. S.H. Kress & Co. , 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 631 (9th Cir.1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List , 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex , 477 U.S. at 324, 106 S.Ct. 2548.

At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505.

III. Discussion

A. Substantive Due Process

The Fifth and Fourteenth Amendments provide that a person may not be deprived of life, liberty, or property without due process of law. These guarantees, however, "apply only when a constitutionally protected liberty interest or property interest is at stake." Tellis v. Godinez , 5 F.3d 1314, 1316 (9th Cir.1993), cert. denied , 513 U.S. 945, 115 S.Ct. 354, 130 L.Ed.2d 309 (1994). Demonstrating the existence of a constitutionally protected liberty or property interest is a threshold requirement to a substantive or procedural due process claim. See Bd. of Regents v. Roth , 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ; Wedges/Ledges of California, Inc. v. City of Phoenix , 24 F.3d 56, 62 (9th Cir.1994).

The property owners argue that they have a property interest in their package liquor licenses that entitle them to protection under the Fifth and Fourteenth Amendments. In support, plaintiffs inappropriately cite to In re Petite Auberge Vill., Inc. , 650 F.2d 192 (9th Cir.1981), which held that a liquor license is a state-created property right in the context of a bankruptcy proceeding.

The Nevada Supreme Court has held that "due process presumes a protectable property or liberty interest. This court and the majority of others have held that a liquor licensee has no such interest."

Ko chendorfer v. Bd. of Cnty. Comm'rs , 93 Nev. 419, 566 P.2d 1131, 1134 (1977). "There is no inherent right in a citizen to sell intoxicants ...." Gragson v. Toco , 90 Nev. 131, 520 P.2d 616, 617 (1974).

Because the property owners do not have a constitutionally protected property interest in their liquor license, much less any cognizable interest in the extent to which such a license is regulated, the court finds that the property owners' Fifth and Fourteenth Amendment rights have not been violated. The property owners have not demonstrated a viable, constitutionally protected property interest for which they may assert a substantive due process claim. Accordingly, the court will grant the City's motion for summary judgment with respect to the property owners' substantive due...