B & B Coastal Enterprises, Inc. v. Demers, No. CIV. 03-05-P-C.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Writing for the Court: Gene Carter
• Citation: 276 F.Supp.2d 155
• Docket Number: No. CIV. 03-05-P-C.
• Decision Date: 25 July 2003
• Parties: B & B COASTAL ENTERPRISES, INC., Plaintiff v. Paul A. DEMERS, Kelly Wentworth, Wayne Berry, Thomas Wellman, Jack Libby, Daniel Boothby, and Town of Kennebunk, Maine, Defendants

Page 155

276 F.Supp.2d 155 B & B COASTAL ENTERPRISES, INC., Plaintiff
v.
Paul A. DEMERS, Kelly Wentworth, Wayne Berry, Thomas Wellman, Jack Libby, Daniel Boothby, and Town of Kennebunk, Maine, Defendants No. CIV. 03-05-P-C. United States District Court, D. Maine. July 25, 2003.

Page 156

COPYRIGHT MATERIAL OMITTED

Page 157

Robert E. Mittel, Mittel, Asen, Hunter & Cary LLC, Portland, ME, Ronald R. Coles, Coles Law Office, Kennebunk, Maya Alexandria, Wilmer, Cutler, & Pickering, Roger W. Yoerges, Wilmer, Cutler, & Pickering, Washington, DC, for B & B Coastal Enterprises Inc, Plaintiff.

Mark V. Franco, Thompson & Bowie, Portland, ME, for Paul A. Demers, Kelly Wentworth, Wayne Berry, Thomas Wellman, Jack Libby, Daniel Boothby, Kennebunk, Town of, Defendants.

ORDER ON PLAINTIFF'S SECOND MOTION FOR PRELIMINARY INJUNCTION

GENE CARTER, Senior District Judge.

Now before the Court is Plaintiff B & B Coastal Enterprises, Inc.'s Second Motion for Preliminary Injunction with Incorporated Memorandum of Law ("Second Motion for Prelim. Inj.") (Docket Item No. 26). Plaintiff requests a preliminary injunction enjoining Defendants Town of Kennebunk and its agents from enforcing the Town's allegedly unconstitutional sign ordinance. Defendants object. See Objection to Plaintiff's Second Motion for a Preliminary Injunction with Incorporated Memorandum of Law ("Objection") (Docket Item No. 41). After careful review of the record before the Court, including the evidence established at an evidentiary hearing on July 18, 2003, the Court will deny Plaintiff's Second Motion for a Preliminary Injunction.

I. FACTS

On July 25, 2002, Paul Demers, the Code Enforcement Officer for the Town of

Page 158

Kennebunk and one of the named Defendants in this action, conducted a sign inspection on the premises of Bartley's Dockside Restaurant, owned by Plaintiff B & B Coastal Enterprises, Inc. ("B & B Coastal").¹ See Second Motion for Prelim. Inj. at 5. According to the testimony presented at the evidentiary hearing before the Court, Mr. Demers had begun receiving complaints as early as the spring or summer of 2000 about the number of signs Bartley's Dockside Restaurant displayed on its premises. Specifically, he received such complaints from the owner of a neighboring business, John Kingston, who owned a restaurant called the Clam Shack. Mr. Kingston felt that he himself was complying with the sign ordinance, and he wondered why Bartley's Dockside Restaurant continued to hang signs in excess of that allowed by the ordinance. Mr. Kingston complained again in June of 2001, and the Town of Kennebunk still did nothing. Finally, in the spring or summer of 2002, Mr. Kingston went above Mr. Demers and voiced his concerns with the Town Manager and the Town Clerk of Kennebunk, asserting that he wanted the Town to "lay down the law" as far as the sign ordinance was concerned. It was then that the Town directed Mr. Demers to do an inspection of the premises of Bartley's Dockside Restaurant, which Mr. Demers did, along with an inspection of other businesses in the area.²

Upon inspecting the premises of Bartley's Dockside, Mr. Demers informed Brian Bartley, the owner of Bartley's Dockside Restaurant and President of B & B Coastal, that his business was in violation of the sign ordinance. Exactly what was said by Mr. Demers to inform Mr. Bartley of the violation is a matter of significant dispute. Plaintiff alleges that Mr. Demers immediately focused on the outdoor umbrellas on the tables which bore the trademark "Hebrew National," pronouncing them "personally offensive" to him, stating that they "have to go," and adding, "Why can't you serve the same food as other restaurants?" Second Motion for Prelim. Inj. at 5; Declaration of Brian Bartley in Support of Plaintiff's Second Motion for Prelim. Inj. (Docket Item No. 27) ¶ 18. Plaintiff claims that Mr. Demers expressed concern only over the twelve umbrellas in front of the restaurant, all which, according to him, bore the "Hebrew National" logo. Plaintiff claims that when he asked Mr. Demers about the umbrellas on the other tables in the side/rear outdoor eating area, which bore the "Budweiser" trademarks,

Page 159

Mr. Demers stated that those umbrellas were "fine." Id. at 5-6.

In contrast, Defendant Demers contends that during his visit to Bartley's Dockside Restaurant on July 25, 2002, he spoke to Mr. Bartley about the sandwich boards, umbrellas, altered signs, and various other signs that were in violation of the ordinance. See Affidavit of Paul Demers (Docket Item No. 35) ¶ 12. At that time, Mr. Demers informed Mr. Bartley that his business was in violation of the sign ordinance, and advised him that he could retain the two existing signs on the face of the building if he applied for and received a permit. See id. Defendants deny that Mr. Demers ever described the "Hebrew National" umbrellas as being "personally offensive." Objection at 4; see also Demers Aff. ¶ 21. Defendants maintain that Mr. Demers did not single out the "Hebrew National" umbrellas in any way, because there were also "Poland Spring Water," "Red Hook," and "Shipyard Ale" umbrellas on site, all of which constituted advertisement signs under the ordinance. Objection at 4.³ At the evidentiary hearing, Defendant Demers specifically stated that the twelve umbrellas in front of Bartley's Dockside Restaurant were not all "Hebrew National" umbrellas. At that hearing, Defendants submitted photographs with date stamps indicating they were taken on July 25, 2002. The photographs show that the umbrellas in front of Bartley's Dockside Restaurant included umbrellas bearing "Shipyard Ale" and "Poland Spring" logos. See Defendant's Exhibit 12. Defendants assert that Mr. Demers informed Mr. Bartley that his umbrellas were considered advertisement signs as defined by the ordinance and that, if he wanted to keep them, they would have to be modified so that they would no longer be considered by the ordinance to be advertisement signs. Id.

The following day, July 26, 2002, Mr. Demers delivered a Notice of Violation/Order for Corrective Action to Mr. Bartley at Bartley's Dockside Restaurant, advising him that his business was in violation of Article 4, Section 1 of the Zoning Ordinance and ordering that the banners and non-permitted signs be removed that day. Second Motion for Prelim. Inj. at 6.⁴ Plaintiff did not take corrective action that same day, but by August 19, 2002, had used spray paint to blot out the "Hebrew National" trademarks on the umbrellas. Id. at 6; Objection at 5.⁵ However, according to Defendants, despite the removal of the "Hebrew National" trademarks, Plaintiff

Page 160

continued to violate Section 7 of the Zoning Ordinance with an excessive number of non-permitted signs. Objection at 5.

On September 16, 2002, the Town Attorney filed an 80K Citation and Complaint with the York County District Court citing Plaintiff's failure to comply with the Town of Kennebunk sign ordinance by displaying signs without the required permits and exceeding the number of signs permitted on the site. See Second Motion for Prelim. Inj. at 6-7; see also Exhibit 5 to Bartley Declaration. On October 17, 2002, Mr. Demers advised the Town Manager of the 80K action and recommended that Plaintiff's liquor license application be withheld until the sign ordinance violations had been corrected. See Demers Affidavit ¶ 26. However, the 80K Complaint has been stayed pending the outcome of this suit, see Bartley Declaration ¶ 46. Nevertheless, Defendant maintains that Plaintiff remains in non-compliance with the Town's sign ordinance by continuing to display six more signs than are permitted under the ordinance,⁶ a violation Defendant asserts is "separate and distinct from the display of any umbrellas with advertising logos." Demers Affidavit ¶ 28.

On January 15, 2003, Plaintiff brought its first Complaint (Docket Item No. 1) and Motion for Preliminary Injunction (Docket Item No. 2) in this Court, claiming it faced irreparable injury if it did not obtain its liquor license or could not use its outdoor umbrellas. Shortly thereafter, the Town renewed Plaintiff's liquor license once Plaintiff had paid $25 each for the two signs attached to the exterior of its building and obtained a permit. See id. ¶¶ 54-56; see also Order on Plaintiff's Motion for Preliminary Injunction ("Order") (Docket Item No. 15) at 4. Noting that Plaintiff had in fact obtained its liquor license at the time of the Court's Order and that Plaintiff did not intend to put its umbrellas out until May of 2003, this Court denied Plaintiff's first Motion for Preliminary Injunction, finding no irreparable injury. See Order at 6-7. Plaintiff has now obtained new counsel and filed a Verified Amended Complaint (Docket Item No. 32) and a Second Motion for Preliminary Injunction, contending that the Town of Kennebunk sign ordinance is facially unconstitutional in a number of ways, and that Defendants have selectively enforced the ordinance against Plaintiff only. Plaintiff maintains that it will be irreparably injured by the continued enforcement of the ordinance and, therefore, asks this Court to enjoin enforcement of the ordinance pending the outcome of this case.

The Town of Kennebunk Zoning Ordinance, which became effective on February 13, 1989, governs the use of signs and asserts that its purpose is "to permit such signs that will not, by their size, location, construction, or manner of display, endanger the safety of individuals, confuse, mislead or obstruct the vision necessary for traffic safety, or otherwise endanger the public health, safety and welfare." See Ordinance, Art. 10, § 7(a), attached as Exhibit 1 to Bartley Declaration (Docket Item No. 27). The ordinance defines a sign as "[a]ny object, device, display or structure, or part thereof which is used to advertise, identify, display, direct or attract attention to an object, person, institution, organization business, product,...