Carlson v. City of Duluth

• Decision Date: 18 July 2013
• Docket Number: Civil No. 13–1831 (MJD/LIB).
• Citation: 958 F.Supp.2d 1040
• Parties: James Robert CARLSON, Plaintiff, v. CITY OF DULUTH, a Minnesota municipal corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

958 F.Supp.2d 1040

James Robert CARLSON, Plaintiff,

v.CITY OF DULUTH, a Minnesota municipal corporation, Defendant.

Civil No. 13–1831 (MJD/LIB).

United States District Court,

D. Minnesota.

July 18, 2013.

Randall D.B. Tigue, Randall Tigue Law Office, P.A., and David J. Malban, Malban Law Office, for Plaintiff.

M. Allison Lutterman, Deputy City Attorney and Nathan N. LaCoursiere, Assistant City Attorney, for Defendant.

MEMORANDUM OPINION AND ORDER

MICHAEL J. DAVIS, Chief Judge.

The above-entitled matter comes before the Court on Plaintiff's objections to the Report and Recommendation of Magistrate Judge Leo I. Brisbois dated July 15, 2013. Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b).

I. Summary of Decision

The City of Duluth recently enacted an ordinance that requires any person who engages in the business of operating a synthetic drug establishment, to first obtain a license for such establishment. Plaintiff claims that this ordinance is unconstitutional because by applying for such a license, the applicant would be admitting to violations of federal criminal law. As applied to Plaintiff in particular, Plaintiff alleges that compliance with the ordinance would require him to admit to committing a violation of the federal statutes for which he now stands indicted.

Before the Court is Plaintiff's motion for an order enjoining enforcement the ordinance.However, to be entitled to such relief, Plaintiff must establish a likelihood of success on the merits of his claims and irreparable harm.

On the present record, the only claim that is ripe for adjudication is Plaintiff's facial challenge to the ordinance—that the mere act of applying for a license under the ordinance is self-incriminating. Plaintiff has failed to demonstrate a likelihood of success on the merits of this claim, because Plaintiff failed to demonstrate that under any and all circumstances, applying for a license under the ordinance would violate federal laws. Plaintiff has also failed to show irreparable harm if the injunction is not issued, as he would still be able to operate his business and would, at most, be subject to a civil fine if he was found to have violated the ordinance. Plaintiff's motion to enjoin enforcement of the ordinance will therefore be denied.

II. Background

Plaintiff is the president and sole shareholder of L.P.O.E., Inc., which operates a retail store known as “Last Place on Earth” (hereinafter referred to as “LPOE”). (Complaint ¶ 2.) LPOE is located at 120 E. Superior Street in Duluth, Minnesota. ( Id.) LPOE sells a wide variety of merchandise, including tobacco products, T-shirts, novelties and adult DVD's. ( Id. ¶ 5.) LPOE also sells a variety of incense products. ( Id. ¶ 6.)

Plaintiff has been indicted, and charged in a Superseding Indictment with distribution of misbranded drugs, distribution and possession of a controlled substance, and distribution of controlled substance analogues. ( Id. ¶¶ 7–9.) Plaintiff asserts that counts 1–17 of the Superseding Indictment allege, inter alia, that certain of the incense products sold at LPOE are, in fact, misbranded synthetic drugs, and that counts 21–29 charge Plaintiff with the actual sale of a controlled substance analogue. ( Id. ¶¶ 8 and 9.)

On or about June 11, 2013, the City of Duluth (“City”) enacted Ordinance No. 10231, which requires any person, who engages in the business of operating a synthetic drug establishment, to first obtain a license for such establishment. Sec. 5–45. The ordinance defines “synthetic drug establishment” as any business establishment where any person engages in the sale of synthetic drugs. Sec. 5–44(b).

It is Plaintiff's position that the definition of synthetic drug in the ordinance is “almost a complete copy of the definition of ‘controlled substance analogue’ ” set forth in 21 U.S.C. § 802(32). ( Id. ¶ 17.) Plaintiff alleges that failure to comply with this ordinance would subject him to a fine pursuant to Sections 1–7 and 31–8 of the Duluth City Code. ( Id. ¶ 20.) The ordinance took effect on July 11, 2013.

In his Complaint, Plaintiff alleges that Ordinance No. 10231 is facially unconstitutional and unconstitutional as applied in that it compels Plaintiff to commit an act of self-incrimination in order to obtain a license, in that by applying for a license, Plaintiff would have to admit to committing a violation of the very federal statutes for which he now stands indicted, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. ( Id. ¶ 22.)

Plaintiff filed a motion for a preliminary injunction and temporary restraining order, to restrain enforcement of Ordinance No. 10231. The motion was thereafter referred to Magistrate Judge Leo Brisbois.

III. Standard

To obtain preliminary injunctive relief, Plaintiff must show a likelihood of irreparable harm in the absence of the injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The Court also considers the balance between such harm and the injury that granting the injunction will inflict on other parties, Plaintiff's likelihood of success on the merits, and the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc).

Because Plaintiff seeks to enjoin “government action based on presumptively reasoned democratic processes,” Plaintiff must make a threshold showing that he is “likely to prevail on the merits.” Planned Parenthood v. Rounds, 530 F.3d 724, 732–733 (8th Cir.2008) (en banc).

IV. MeritsA. Report and Recommendation

Magistrate Judge Brisbois has recommended to this Court that Plaintiff's motion for preliminary injunctive relief be denied. In making this recommendation, Magistrate Judge Brisbois first determined that Plaintiff had standing to raise a constitutional challenge to Ordinance No. 10231. Magistrate Judge Brisbois further determined that Plaintiff's claim that Ordinance No. 10231, as applied to Plaintiff, violates his rights under the Fifth and Fourteenth Amendments, was not yet ripe for adjudication, and clarified that the motion for preliminary injunctive relief was based solely on his claim that Ordinance No. 10231 was unconstitutional on its face. No objections have been filed challenging the Magistrate Judge's determination as to standing and ripeness. Accordingly, the Court will adopt those findings.

As to the merits of Plaintiff's motion, Magistrate Judge Brisbois determined that Ordinance No. 10231, on its face, did not compel a person applying for a license thereunder to incriminate himself in violation of the Fifth Amendment. Magistrate Judge Brisbois further held that Plaintiff had failed to demonstrate that he would suffer irreparable injury if the requested injunctive relief were not granted. Plaintiff has objected only to the Magistrate Judge's determination that the ordinance is not facially unconstitutional and that Plaintiff will not suffer irreparable injury.

B. Likelihood of Success on the Merits

The Fifth Amendment provides that “No person ... shall be compelled in any Criminal Case to be a witness against himself.” The right against self-incrimination “must be accorded liberal construction in favor of the right it was intended to secure.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Id. It is for the court to determine whether the privilege applies, and in making this determination, the court must consider the circumstances particular to the case and to the facts actually in evidence. Id.

Plaintiff asserts that Ordinance No.10231, on its face, violates the Fifth Amendment protection against self-incrimination, as the mere act of submitting an application stating that one intends to sell synthetic drugs is self-incriminatory.

To challenge an ordinance on its face, the plaintiff must show “that no set of circumstances exists under which [the ordinance] would be valid...” or “that the statute lacks any ‘plainly legitimate sweep.’ ” Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678, 685 (8th Cir.2012) (citations omitted). “ ‘Facial challenges are disfavored’ because they “often rest on speculation ... [and] raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’ ” ” Id. (quoting Wash. State Grange v. Wash. State Rep. Party et al., 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)).

Plaintiff's facial challenge is based on three arguments. First, he argues that the third definition of “synthetic drug” incorporates two-thirds of what is necessary to convict him under the controlled substances analogue statute. He next asserts that the act of applying for a license under Ordinance No. 10231 is self-incriminatory because it would necessarily remove him from one of the exemptions contained in the controlled substances analogue statute. Finally, he argues that the act of applying for a license would be a link in the chain of evidence necessary to convict Plaintiff under the misbranding counts of the indictment to which he is now charged, and is thus self-incriminatory.

Because the motion for preliminary injunctive relief is based solely on a facial challenge to Ordinance No. 10231, the Court need not address Plaintiff's third argument—that the act of applying for a license would be a link in the chain of evidence necessary to convict Plaintiff under the misbranding counts of the indictment to which he is now charged—as this argument goes to his claim that the ordinance “as applied” violates his constitutional rights. As discussed previously, the parties agree the “as-applied” claim is not yet ripe for...