Brookpark Entertainment, Inc. v. Brown
| Decision Date | 06 November 1990 |
| Docket Number | No. C2-90-793.,C2-90-793. |
| Citation | 750 F. Supp. 856 |
| Parties | BROOKPARK ENTERTAINMENT, INC., dba Crazy Horse Saloon, Plaintiff, v. Sherrod BROWN, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Thomas Peter Michael, Columbus, Ohio, for plaintiff.
Catherine Mary Cola and Chester Tynaes Lyman, Jr., Ohio Atty. General's Office, Columbus, for defendants.
This matter is before the Court pursuant to the motion of Plaintiff Brookpark Entertainment, Inc. ("Brookpark") for temporary and preliminary injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. Brookpark asks for a restraining order enjoining Defendant Secretary of State Sherrod Brown ("Brown"), Ohio Department of Liquor Control Director John Hall ("Hall"), Cuyahoga County Board of Elections Member Robert Hughes ("Hughes"), Cuyahoga County Board of Elections Member John M. Coyne ("Coyne"), Cuyahoga County Board of Elections Member Thaddeus J. Jackson ("Jackson"), Cuyahoga County Board of Elections Member Roger M. Synenberg ("Synenberg"), and Cleveland City Councilman Dale Miller ("Miller"), their agents, servants, employees, attorneys and all other persons in active concert and participation with them from performing their respective duties with regard to the November 6th, 1990, election on the question of whether the sale of spirituous liquor, mixed beverages, wine and beer by Brookpark in Precinct W of Ward 20 in the City of Cleveland should continue. Each individual is sued in his/her official capacity and as an individual.
In response to the motion, the Court held a hearing on October 25, 1990, wherein the parties were given the opportunity to place their respective positions and arguments on the record. Furthermore, at the hearing the Court Ordered that the defendants had until October 31, 1990, to submit memoranda in opposition. A memorandum in opposition was filed by Defendant Dale Miller; Defendants Sherrod Brown and John Hall filed a brief in opposition coupled with a motion for dismissal; and Defendants Robert Hughes, John M. Coyne, Thaddeus J. Jackson, Roger M. Synenberg, and the Cuyahoga County Board of Elections filed a Brief in Opposition to the Motion for Temporary Restraining Order/Application for Preliminary Injunction.1
Specifically, Brookpark seeks a temporary restraining order to prevent the following:
Additionally, Brookpark wishes to enjoin Defendant Hall, the Director of the Ohio Department of Liquor Control, from cancelling and picking up the permit holder's permit as is required by Ohio Revised Code § 4301.362, if a majority of the electors of the precinct vote "no" on the question presented at the election.
The facts in the instant matter are essentially not in contention. Brookpark owns and operates a nightclub called the Crazy Horse Saloon at 16600 Brookpark Road in Cleveland, Ohio. The establishment sells alcohol pursuant to a series of class D permits issued to it by the Ohio Department of Liquor Control.2 On October 1, 1989, Brookpark was cited by the Department of Liquor Control for selling beer upon the permit premises while the permit was under suspension, in violation of Ohio Rev.Code §§ 4301.28 and 4301.58(B).
On October 24, 1989, The Ohio Liquor Control Commission found Brookpark in violation of Ohio Rev.Code § 4301.28 for the sale of alcoholic beverages at the permit premises during the effective period stated in an order of suspension. The Commission ordered that no penalty be imposed.
Pursuant to Ohio Rev.Code § 4301.32.1, if a permit holder has been found by the Liquor Control Commission to have violated any provision of Chapter 4301 or 4303, as Brookpark had, the electors of an election precinct may exercise the privilege of local option3 over the sale of alcohol by the holder of a class C or D permit. However, before the issue can even be placed on the ballot, and thus voted upon, it is incumbent upon a petitioner to circulate a petition. The petition must be signed by the electors of the precinct equal in number to thirty-five per cent of the total number of votes cast in the precinct for the office of governor at the preceding general election. Ohio Rev.Code Ann. § 4301.33.1 (Anderson 1989). Councilman Miller and an individual not named in the case, Joyce Harris, circulated at least six (6) petitions among the electors of Cleveland's Ward 20, Precinct W. On August 23, 1990, once the requisite number of signatures were obtained, the petitions were filed with the Cuyahoga County Board of Elections.
The Ohio Revised Code provides that a petition filed with the Board of Elections shall be open to public inspection. Ohio Rev.Code Ann. § 4301.33.1 (Anderson 1989). The Code further provides that any elector who is eligible to vote on the question set forth on the ballot may file a timely protest against the local option petition. Upon the filing of the protest, the election officials with whom the petition was filed must promptly set a time and place for hearing the protest. At the set hearing, the election officials hear the protest and subsequently determine the validity of the petition. Id. The plaintiffs represented to the Court that counsel personally inspected the petition, compared those signatures found on the petition to those signatures contained on voter registration cards, and concluded that pursuant to the relevant code sections, as they currently exist, the petition was in fact valid. Therefore, the plaintiff did not exercise its right to protest the petition.
Due to the accepted validity of the petition and the relevant Ohio law, the November 6, 1990 election ballot for Ward 20, Precinct W of the City of Cleveland will contain the following issue:
Shall the sale of spirituous liquor, mixed beverages, wine and beer by Brookpark Entertainment, Inc., dba Crazy Horse Saloon at 16600 Brookpark Rd., Cleveland, Ohio 44135 be permitted in this precinct?
Barring an injunction, after the election, the Cuyahoga County Board of Elections will count the ballots and certify that either a majority voted "YES" to the issue, or voted "NO" to the issue. Regardless of how the majority of electors vote on the issue the results are to be certified by the Board of Elections. If in the event a majority vote "NO", the Ohio Department of Liquor Control will be notified of said result, and the Department will cancel and pick up Brookpark's liquor permits. Brookpark will receive no compensation for the loss of said permits, and the permits cannot be transferred for use in another precinct.4 It is the cancellation of the liquor permits that have prompted plaintiff to request the issuance of a temporary restraining order. The Court will now turn its attention to the standard to be applied.
The standard of review for the issuance of a temporary restraining order, and ultimately a preliminary injunction, has regularly been asserted by the United States Court of Appeals for this circuit as follows:
... whether the plaintiffs have shown a strong likelihood of success on the merits; whether the plaintiffs have shown irreparable injury: whether the issuance of a preliminary injunction would cause substantial harm to others; and where the public interest lies.
Adams v. Federal Express Corp., 547 F.2d 319, 323 (6th Cir.1976), citing North Avondale Neighborhood Ass'n v. Cincinnati Metro. Hous. Auth., 464 F.2d 486 (6th Cir. 1972). Accord, Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977); USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982); Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 564-65 (6th Cir.1982); and White Consol. Indus., Inc. v. Whirlpool Corp., 612 F.Supp. 1009 (E.D.Ohio 1985).
Before this Court is prepared to apply the above-referenced standard of review, it must first be satisfied that the case has proper jurisdiction before this Court. Federal Courts have jurisdiction to hear "federal questions" or "diversity of citizenship" cases. As the plaintiff properly noted, Federal Courts have the jurisdiction and are not in contravention with the 11th Amendment to award prospective relief against officials of the state and its agencies, enjoining them from violating federal rights and ordering them to conform their future conduct to the requirements of federal law. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062 (6th Cir.1984); Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir.1989). However, this case needs a federal question before jurisdiction is properly before this Court. It is to this issue of jurisdiction that the Court will first turn its attention.
The plaintiff attempts to invoke federal question jurisdiction by alleging that the cancellation of the permits currently held by Brookpark would be in violation of Article I, § 10 of the United States Constitution as a Bill of Attainder, a violation of the plaintiff's Fourteenth Amendment Equal Protection Clause rights, a violation of the plaintiff's Fourteenth Amendment Procedural Due Process rights, and a violation of Article II §§ 1 and 28 of the Constitution of Ohio. However, these alleged constitutional violations occur only if the permits are actually revoked. This Court is of the opinion that the clear and unambiguous interpretation of the relevant Ohio Revised Code sections in application to the...
To continue reading
Request your trial
-
Brookpark Entertainment, Inc. v. Taft
...court sua sponte dismissed the entire cause of action for lack of federal subject matter jurisdiction. Brookpark Entertainment, Inc. v. Brown, 750 F.Supp. 856 (S.D.Ohio 1990). 1 The court noted that section 4301.321 requires any "particular premises" election to be held within one year of t......