Bibbins v. City of New Orleans

• Citation: 848 So.2d 686
• Decision Date: 21 May 2003
• Docket Number: No. 2002-CA-1510.,2002-CA-1510.
• Court: Court of Appeal of Louisiana (US)
• Parties: Karen M. BIBBINS, d/b/a Xscape II v. The CITY OF NEW ORLEANS and the New Orleans Alcoholic Beverage Control Board.

848 So.2d 686

Karen M. BIBBINS, d/b/a Xscape II v. The CITY OF NEW ORLEANS and the New Orleans Alcoholic Beverage Control Board.

No. 2002-CA-1510.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 2003.

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Robert G. Harvey, Sr., Maria Del Carmen Calvo, Harvey Jacobson & Glago, New Orleans, LA, for Plaintiff/Appellant.

Robin M. Shulman, Assistant City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).

WILLIAM H. BYRNES, III, Chief Judge.

Karen M. Bibbens d/b/a Xscape II (collectively "Club Xscape") appeals the trial court's judgment that affirmed the Alcoholic Beverage Control ("ABC") Board's decision that revoked the club's alcoholic beverage license. We reverse.

Procedural History

On June 27, 2001, the City of New Orleans ("City") filed a petition with the ABC Board to suspend or revoke the Club Xscape's permit to sell alcohol. The club is located at 810 North Claiborne Avenue in New Orleans. The City claimed that the Club Xscape violated City Code Section 10-157(5), Section 10-157(19) and Section 10-157(22), i.e., operating the establishment in a manner that permitted disturbance of the peace and/or created or maintained a public nuisance.

After a hearing on February 19, 2002, the ABC Board unanimously voted to revoke the Club Xscape's alcoholic beverage license. Around February 28, 2002, Club Xscape filed a petition for review in Orleans Civil District Court. On March 4, 2002, Club Xscape obtained a temporary restraining order staying the ABC Board's decision, which was vacated as premature on March 4, 2002. On March 8, 2002, the district court again granted Club Xscape's temporary restraining order and took the matter under advisement. On March 20, 2002, the district court affirmed the decision of the ABC Board. Club Xscape's appeal followed.

On appeal, Club Xscape contends that the trial court erred in: (1) failing to sustain the club's exceptions of vagueness and no cause of action; (2) failing to find that the facts were admitted because the City did not respond to the club's request for admissions; (3) failing to find a violation of the club's constitutional right to due process and a fair hearing; (4) failing to exclude hearsay testimony; and (5) finding sufficient evidence.

Exceptions of Vagueness and No Cause of Action

Club Xscape initially argues that the trial court erred in failing to sustain the club's exceptions of vagueness and no cause of action.

In deciding whether to sustain an exception of no cause of action, the court accepts the facts alleged in the plaintiffs' petition without reference to any extraneous supporting or controverting evidence and determines whether the law affords any relief to the plaintiff if those facts are proved at trial. Robinson v. North American Royalties, Inc., 470 So.2d 112 (La. 1985); Haspel v. Davis Milling & Planting Co., Ltd. v. Board of Levee Com'rs of Orleans Levee Dist., 98-1664 (La.App. 4 Cir. 3/31/99), 732 So.2d 113, writ denied 99-1248 (La.6/18/99), 745 So.2d 29. For purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Livaccari v. Alden Engineering, Inc., 2000-0856 (La.App. 1 Cir. 12/1/00), 808 So.2d 383; Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048, p. 1 (La.3/21/94); 634 So.2d 341, 342-343. A peremptory exception of no cause of action presents a question of law, and thus appellate review is de novo. Jones v. Tezeno, 99-1693 (La. App. 3 Cir. 3/1/00), 758 So.2d 896; Wirthman-Tag Const. Co., L.L. C. v. Hotard, 2000-2298 (La.App. 4 Cir. 12/19/01), 804 So.2d 856. The burden of proof is on the exceptor. Haspel & Davis Mill. & Planting Co. Ltd. v. Board of Levee Com'rs of Orleans Levee Dist., 95-0233 (La.App. 4 Cir. 9/4/96), 680 So.2d 159, writ denied 96-2430 (La.12/6/96), 684 So.2d 932.

In the present case, Club Xscape maintains that the City's petition failed to comply with the requirements of Section 93(A) of the Alcoholic Beverage Control Act (La. R.S. 26:1 et seq.), which provides that the petition shall set forth the facts and circumstances of the violation. Xscape also asserts that the petition does not comply with Rule 1(c) of the Rules of Procedure of the ABC Board because the City's petition is required to contain the factual basis for the alleged violations.

The City asserts that Paragraph VI of its petition provided sufficient facts and circumstances underlying the petition, including the names and address of all the victims and perpetrators, and a narrative detailing each of the events in the attached police reports.

In the present case, Paragraph III, IV, and VI of the petition state:

III.

That the Permittee named herein did commit, or through his agents and/or employees, did allow and/or permit and/or aid in the commission of certain acts on the licensed premises, which acts are in violation of laws of the State of Louisiana and City of New Orleans, all as set forth more fully below.

IV.

That the permittee, lessee, employee, and/or owner of the premises 810 N. Claiborne Ave., New Orleans, Louisiana 70116 at the alcoholic beverage outlet (hereinafter ABO) known as XSCAPE II, located at 810 N. Claiborne Ave., New Orleans, Louisiana, 70116 did violate the following on or about 2/10/01 and 5/13/01 and at that time:

a) New Orleans City Code Section 10-157(5): Relative to permitting any disturbance of the peace;

b) New Orleans City Code Section 10-157(19): Relative to the existence of a public nuisance.

c) New Orleans City Code Section 10-157(22): Relative to maintaining or creating a nuisance. d) Since the violations of local, state, and/or federal regulations are statutes relating to ABO'S as may be discovered prior to and proven at the hearing this month.

* * *

VI.

The factual basis for the alleged violation(s) are as stated, but not necessarily limited to, the facts as related in the attached police report(s), or summons(es) or other documents of the city, state, or federal government, or their respective agencies, said documents being marked as Exhibit A en globo, attached hereto, and made a part of this petition as if copied in extenso within:

1) Police report # B-15587-01, dated 2/10/01;

2) Police report # E-22498-01, dated 5/13/01;

3) Supplemental Police Report # E-224980-01, dated 5/24/01; and

4) Such other reports of activity at or about this ABO location which may be discovered and produced at the hearing.

Paragraph VI infers that the City is not limited to the facts related in the three specific police reports. Paragraph VI also included that: "The factual basis for the alleged violation(s) are as stated, but not necessarily limited to, the facts as related in the attached police report(s), or summons(es) or other documents of the city, state, or federal government, or their respective agencies [emphasis added]." The paragraph added to the list of itemized police reports: "[s]uch other reports of activity at or about this ABO location which may be discovered and produced at the hearing [emphasis added]." However, these catchall phrases are inadequate to show with specificity any additional claims, and they cannot be considered.

In the present case, additional documents of other incidents not attached to the petition should not be reviewed. Only the attached police reports in reference to the incidents of February 10, 2001 and May 13, 2001 are considered. A review of the petition to determine if the City stated a cause of action is limited to allegations concerning those two dates.

The Club Xscape questions that a cause of action exists based on whether the City's petition stated adequate facts that support a legal conclusion for which the club can be found to have permitted a disturbance of the peace and/or created or maintained a public nuisance.

The trial court may not assume any facts not in the plaintiff's original or amended petitions in determining whether to grant an exception of no cause of action. Simmons v. Templeton, 97-2349, 98-0043 (La.App. 4 Cir. 11/10/99), 723 So.2d 1009, writs denied 98-3050, 3060 (La.2/5/99), 738 So.2d 4, 5. It is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions. Kahn v. Jones, 95-259, p. 7 (La.App. 3 Cir. 11/2/95), 664 So.2d 700, 704; Butler v. Reeder, 93-764, p. 2 (La.App. 5 Cir. 3/16/94), 635 So.2d 1206, 1207.

In Williams v. Galliano, 97-1972 (La.11/14/97), 703 So.2d 1283, a refuse collector was killed when he was struck by another vehicle while making delivery at a landfill. The deceased's estate brought an action against the operator of the landfill, and in an amended petition, the estate added a claim against the State Department of Environmental Quality ("DEQ"). The DEQ filed peremptory exceptions of prescription and no cause of action. Among other things, the First Circuit found that the allegations were factually sufficient to state a claim against the DEQ, and that the DEQ has a statutory duty to monitor solid waste landfills for compliance with rules and regulations, breach of which may serve as basis for finding of liability. The Louisiana Supreme Court reversed the First Circuit's finding that the petition stated a cause action against the DEQ and that the State owed a duty to the third party who was injured in that case. The Supreme Court held:

. . . Even assuming that the State, through the Department of Environmental Quality, has some duty to monitor landfills for compliance with permit regulations, that duty does not extend to third parties (especially where the third party's injury is unrelated to the regulation of environmental conditions). See Berry v. State, DHHR, 93-2748 (La.5/23/94), 637 So.2d 412....