BC Tavern of Kenosha, Inc. v. City of Kenosha, Case No. 11-C-959

Decision Date14 February 2013
Docket NumberCase No. 11-C-959
PartiesBC TAVERN OF KENOSHA, INC., doing business as The Library Bar, Plaintiff, v. CITY OF KENOSHA, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin
DECISION AND ORDER ON THE PARTIES' MOTIONS
FOR SUMMARY JUDGMENT
I. FACTS AND PROCEDURAL HISTORY

The Library Bar is the most-recent name of the bar that BC Tavern of Kenosha, Inc. operates at 4626 Sheridan Road in Kenosha, Wisconsin. (Docket Nos. 19, ¶¶6-7; 31, ¶¶8-9.) It is licensed by the City of Kenosha to sell alcohol by the drink, and prior to the city not renewing its license in 2010, it held a cabaret license authorizing the bar to host live entertainment, usually bands. (Docket No. 19, ¶¶6, 8-11.) Without a cabaret license, a business holding a liquor license may not host live music performances, advertise or feature dancing, or offer other live entertainment such as "the performance of any act, play or stunt, amateur talent contest, or disc jockey show." (Docket No. 21-4 at 14.) The cabaret license ordinance states in relevant part:

In determining whether a Cabaret License should be granted, the Common Council shall consider the following factors, giving to each whatever weight is appropriate in the particular factual circumstances:
1. Whether the proposed license will have a substantial negative impact upon the surrounding properties or the neighborhood within 5,280 feet of the licensedpremises, in terms of increasing noise, as defined in Chapter 23 of the Code of General Ordinances, and/or traffic congestion.
2. The availability and type of parking on or off the proposed licensed premises.
3. The existing or planned character of the neighborhood.
4. Applicant's compliance and past performance with any/all licensing laws.

(Docket Nos. 21-4 at 14; 21-5 at 14.)

The city's 2010 review of the bar's application for renewal of its cabaret license involved multiple rounds of proceedings before the Common Council and the Council's Licensing & Permit Committee, eventually culminating in the Committee recommending that the Council grant the renewal and the Council, after a hearing, voting to deny the license for the stated reason that the license would be incompatible with the surrounding neighborhood. (Docket No. 31, ¶¶15-22.) The Library Bar challenged this decision and the city's cabaret licensing ordinance in Wisconsin Circuit Court. On August 2, 2011 the Circuit Court concluded that the ordinance was unconstitutional because it lacked a time limit for the resolution of an application. (Docket Nos. 31, ¶¶31-35; see also 21-2; 21-3.) Kenosha promptly amended its ordinance to incorporate a 28-day time limit but otherwise the ordinance remained the same. (Docket No. 31, ¶¶ 29-30; see also Docket No. 21-5 at 14-15.) The plaintiff filed the present action shortly thereafter. In this action under 42 U.S.C. § 1983, the plaintiff contends that both the old and new ordinances are unconstitutional under the First and Fourteenth Amendments and seeks damages along with injunctive and declaratory relief. (Docket No. 1.) During the pendency of this action, the plaintiff applied for and received on July 16, 2012 a cabaret license from the City of Kenosha. (Docket No. 31, ¶¶36-37.)

On November 21, 2012, the Library Bar moved for partial summary judgment, (Docket No. 17), and on December 21, 2012, Kenosha did likewise, (Docket No. 22). The pleadings on these cross-motions are closed and both are ready for resolution. All parties previously consented to the full jurisdiction of a magistrate judge. (Docket Nos. 3, 8.)

II. STANDING AND MOOTNESS

Kenosha argues that because The Library Bar now has a cabaret license, it lacks standing to pursue a facial challenge to the ordinance. (Docket No. 23 at 9-11.) Moreover, it argues that any claim related to the prior ordinance was mooted by the subsequent amendment. (Docket No. 23 at 11-12.) The court concludes that the plaintiff has standing to pursue its challenge to the existing ordinance and not all of its claims related to the prior ordinance have been mooted by its amendment.

Under Article III of the Constitution, a federal court may hear a case only if there exists an actual case or controversy. DH2, Inc. v. United States SEC, 422 F.3d 591, 596 (7th Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). One aspect of the constitutional case or controversy requirement is standing whereby the party seeking to invoke federal jurisdiction must satisfy three elements: "injury in fact, a causal connection between the injury and the defendant's conduct, and likely redressability through a favorable decision." Disability Rights Wis., Inc. v. Walworth County Bd. of Supervisors, 522 F.3d 796, 800 (7th Cir. 2008) (quoting Winkler v. Gates, 481 F.3d 977, 979 (7th Cir. 2007)).

An injury in fact may be prospective and need not be substantial. Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918, 926 (7th Cir. 2008). "[A]n identifiable trifle will suffice." Id. (quoting Lafleur v. Whitman, 300 F.3d 256, 270 (2d Cir. 2002)). Moreover, a litigant need not "await the consummation of threatened injury" before obtaining relief; the threat of an injury may satisfy Article III's standing requirement. Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). "Injury need not be certain." Brandt v. Village of Winnetka, 612 F.3d 647, 649 (7th Cir. 2010). There is always the possibility that the plaintiff will alter its intended plans or the defendant will change the ordinance, but these potentialities do not mean that there is not a live case or controversy. Id. Thus, the Court of Appeals for the Seventh Circuit held, for example,there existed a sufficient injury in fact for a litigant to challenge the construction of a power plant notwithstanding the fact that the power plant would not begin to possibly affect the plaintiff's air quality for at least ten years given that was how long it would take to construct the power plant. Sierra Club, 546 F.3d at 926.

With respect to the prior ordinance, the plaintiff has adequately alleged that it was injured by the absence of a time limit for review of an application in that the plaintiff may be able to demonstrate that it suffered damages as a result not being able to challenge the defendant's actions sooner in circuit court. This injury was traceable to the defendant's lack of a time limit within the ordinance and is redressable through a favorable decision in this court. Accordingly, the plaintiff has standing to challenge the prior ordinance.

As for the current ordinance, the plaintiff contends, in part, that as a current license holder who must annually reapply, it has been forced to self-censor its expressive activities to stay away from expressive activities that might offend the Council, which in response would use the alleged amorphous criteria in the ordinance, including "[t]he existing or planned character of the neighborhood," to refuse to renew its license. Thus, it contends that the licensing scheme is unconstitutional and seeks declaratory judgment to that effect along with injunctive relief barring its enforcement.

Based upon the foregoing, the court concludes that the plaintiff has adequately demonstrated an injury in fact, a causal connection to the challenged ordinance, and the availability of redress through a favorable judgment in this court. Accordingly, the court concludes that the plaintiff has standing to challenge both the prior and current ordinances.

Mootness is the second aspect of Article III's case or controversy requirement. Worldwide St. Preachers' Fellowship v. Peterson, 388 F.3d 555, 558 (7th Cir. 2004); Tobin for Governor v. Ill. Bd. of Elections, 268 F.3d 517, 528 (7th Cir. 2001) (citing Bd. of Ed. of Downers Grove Grade Sch.Dist. No. 58 v. Steven L., 89 F.3d 464, 467 (7th Cir. 1996)). If a case no longer presents a live case or controversy, the court lacks jurisdiction to resolve the matter. Peterson, 388 F.3d at 558.

Any claim for prospective equitable relief under the prior ordinance as a result of the absence of a time limit is plainly moot in light of the fact that the ordinance has been amended. See Zessar v. Keith, 536 F.3d 788, 793 (7th Cir. 2008). However, the plaintiff also seeks damages resulting from the lack of a time limit under the prior ordinance. This claim for damages resulting from the time that the Plaintiff's application was under review has not been mooted by the subsequent amendment of the ordinance. The question of whether or not the plaintiff will be able to prove that it suffered any damages is not before this court at this time. With respect to the plaintiff's claim that both the prior and current ordinances are unconstitutional due to an alleged absence of restraints upon the discretion of the decision-maker, the fact that the plaintiff has been granted a license does not moot this facial challenge.

III. SUMMARY JUDGMENT STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A material fact is one that might affect the outcome of the case, and a nonmoving party's dispute is "genuine" only if a reasonable finder of fact could find in the nonmoving party's favor at trial. Anderson, 477 U.S. at 248-49. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant's favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The court may not weigh the evidence or make credibility determinations. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT