Deborah Westwood v. City of Hermiston

• Decision Date: 15 April 2011
• Docket Number: No. 09–CV–478–BR.,09–CV–478–BR.
• Citation: 787 F.Supp.2d 1174
• Court: U.S. District Court — District of Oregon
• Parties: Deborah WESTWOOD; Mitchell Myers; and Petal Pushers & More, LLC, an Oregon limited liability company, doing business as Nookie's Bistro & Spirits, Plaintiffs,v.CITY OF HERMISTON, Daniel Coloumbe, and Chris Washburn, Defendants.

787 F.Supp.2d 1174

Deborah WESTWOOD; Mitchell Myers; and Petal Pushers & More, LLC, an Oregon limited liability company, doing business as Nookie's Bistro & Spirits, Plaintiffs,
v.
CITY OF HERMISTON, Daniel Coloumbe, and Chris Washburn, Defendants.

No. 09–CV–478–BR.

United States District Court, D. Oregon.

April 15, 2011.

[787 F.Supp.2d 1180]

Judy Danelle Snyder, Portland, OR, W. Eugene Hallman, Brian C. Dretke, Hallman & Dretke, Justin J. Burns, Pendleton, OR, for Plaintiffs.Steven A. Kraemer, Kari A. Furnanz, Leslie Anne Edenhofer, Hoffman Hart & Wagner, LLP, Portland, OR, for Defendants City of Hermiston and Daniel Coulombe.OPINION AND ORDER BROWN, District Judge.

This matter comes before the Court on Defendants' Motion (# 92) for Summary Judgment.

For the reasons that follow, the Court GRANTS Defendants' Motion.

FACTUAL BACKGROUND

The following facts are undisputed unless otherwise noted.

Plaintiff Petal Pushers & More, LLC (PP & M) is an Oregon limited liability company whose sole shareholders are Plaintiffs Deborah Westwood and Mitchell Myers.

In 2000 PP & M opened an establishment in Hermiston, Oregon, selling flowers, coffee, and sandwiches. On November 26, 2004, PP & M applied to the Oregon Liquor Control Commission (OLCC) for a liquor license under the trade name Nookie's Bistro & Spirits. At some point after that, PP & M's establishment changed locations in Hermiston, opened up as a full-service restaurant, and changed the name of the establishment to Nookie's Bistro & Spirits. In September 2006 a bar was added to Nookie's.

Although Westwood is the manager of Nookie's, she did not have any experience managing a bar. When the bar first opened at Nookie's, Westwood would call the Hermiston Police Department (HPD) “anytime that anything happened, even little things” because she believed that was what she was supposed to do. After Westwood gained more experience, she no longer called HPD for every problem.

[787 F.Supp.2d 1181]

On January 9, 2007, HPD Sergeant Timothy Beinert presented HPD Officer Scott Clark with annual goals and objectives for 2007 as part of Officer Clark's annual review. One of the goals set for Officer Clark was to identify a Problem Oriented Policing Project (POP) and to submit the POP to his supervisor by July 27, 2007. Officer Clark testifies in his Declaration that the purpose of the POP program “is to identify high police load areas and chronic crime locations, and assist in reducing crime in that area. We view the program as a tool to assist businesses in reducing police activity at the location, rather than as a punishment mechanism.” Decl. of Scott Clark at ¶ 5. Officer Clark testified he selected Nookie's for his POP because he “recalled responding to a number of calls at that location” and he “reviewed police records indicating that Nookie's had received a high number of calls” between September 2006 and January 2007. Clark Decl. at ¶ 6.

On April 9, 2007, Westwood sent a handwritten note to the City Commissioner and the HPD requesting “permission and necessary permits” to hold an outdoor event at Nookie's. Decl. of Chief of Police Daniel Coulombe,¹ Ex. C. Westwood was instructed to submit the appropriate OLCC form.

On April 13, 2007, Westwood submitted an Application for Temporary Use of Annual License for a “Hodrod/Harley Show” that would include a beer garden, outside barbeque, and a “tent for alcohol” on May 26, 2007. Coulombe Decl., Ex. D. As part of the OLCC process, HPD was notified of Westwood's Temporary–Use Application and asked to make a recommendation.

Chief Coulombe testified in his Declaration that on receipt of Westwood's Temporary–Use Application, he “recalled that Nookie's had been the subject of multiple police calls over the last few months.” Coulombe Decl. at ¶ 11. Chief Coulombe performed a search of all police activity that had occurred at Nookie's and found several incidents within “a relatively short period of time” consistent with Chief Coulombe's recollection. Coulombe Decl. at ¶ 11. On April 17, 2007, based on the level of police activity at Nookie's that preceded the Temporary–Use Application, Chief Coulombe recommended the OLCC deny Westwood's Temporary–Use Application and forwarded his recommendation to the OLCC together with 92 HPD Computer Aided Dispatch (CAD) reports reflecting police activity at Nookie's between April 1, 2006, through April 1, 2007.

On April 17, 2007, Chief Coulombe also sent a letter to Westwood in which he informed her that HPD recommended the OLCC deny the Temporary–Use Application because Nookie's had “been the source of an increased call load for the City of Hermiston Police Department.” Coulombe Decl., Ex. E at 1. Specifically, Chief Coulombe noted in the 12 months prior to Westwood's Temporary–Use Application, HPD's calls to Nookie's included:

• 22 Fights and disturbances in parking lot,

• 3 medical emergencies; one seizure, one female bloody nose and unconscious, one 50 year old female passed out

• 2 criminal assaults

• 1 disorderly conduct arrest (parking lot), 1 disorderly conduct arrest in the bar

[787 F.Supp.2d 1182]

• 1 Possession of Marijuana (parking lot)

• 1 Possession of Methamphetamine (parking lot)

• 1 person thrown out, refusing to leave

• 3 Criminal mischief to vehicle, 1 criminal mischief to building

• 1 stolen vehicle report

• 1 theft of cell phone report

• 1 person arrested on 2 warrant [ sic ] out of Salem after male contacted for urinating in public (lot)

• Three under 21 year old females allowed in bar by security guard, who removed them when contacted by police

• Numerous additional calls when contact was not made or the issue left prior to our arrival. These include urinating in public, required directed patrols, pedestrian issues.

Coulombe Decl., Ex. E at 1. Chief Coulombe also advised Westwood that he had spoken to Jim Marquart of the OLCC on April 10, 2007, and requested a meeting with him and Nookie's management “to create a plan for the reduction of this increased activity.” Id. Although the OLCC denied the Temporary–Use Application, Nookie's did not appeal the denial. Ultimately Nookie's held the event without serving alcohol outside.

Despite the fact that Chief Coulombe recommended the denial of Westwood's April 13, 2007, Application, the record reflects he recommended granting several other event applications submitted by Westwood for Nookie's and has never recommended denial of any other event application submitted to the OLCC by Nookie's.

On April 18, 2007, Chief Coulombe sent an email to HPD officers noting “Mitchell Myers, owner of Nookies Bistro has made a request that Officers not use the parking lot to enforce from, or to park in while writing police reports. He expressed concern that it hurts his business.” Decl. of Leslie Edenhofer, Ex. P.

On April 24, 2007, Justin Burns, Plaintiffs' counsel, sent a letter to the Hermiston City Council in which he advised that Myers disputed the basis for the denial of the Temporary–Use Application, contended “certain personal allegations” made by Chief Coulombe were “false and defamatory,” and gave notice (pursuant to Oregon's Tort Claims Act, Oregon Revised Statute § 30.275) that Myers intended “to assert a claim for damages against the City of Hermiston arising out of the conduct described above.” Decl. of Kari Furnanz, Ex. L at 1–2.

At some point Nookie's used Blue Mountain Security to provide security at the bar. Although Westwood testified at her deposition that she “got rid of” Blue Mountain Security in April 2007, Larry Weaver, the owner of Blue Mountain Security, sent a “follow-up letter” to Westwood on April 24, 2007, to advise her of “the reasons [he had] for pulling [his] guards from working at Nookie's.” Coulombe Decl., Ex. F at 1. Weaver copied the HPD and the OLCC on the letter. Weaver advised Westwood in the letter that

having you hire untrained, and uncertified bouncers to work with Blue Mountain Security guards creates a severe liability for us (legally, ethically, and for the safety of my guards). We informed you of the statutes that were being violated when this takes place, and told you that our guards would not work when non-certified guards were working.

Furthermore, we had asked for more vigilance to take place for your support when the time comes to cut someone off from drinking. I stand behind my guards on the issue of “86ing” customers of the bar. They are trained to deal

[787 F.Supp.2d 1183]

with problems, but it is a lesson in futility to be forced to let the same trouble-makers through the doors every week just because they are your friends. It seemed ridiculous to have to intervene to keep one of your cooks from continuing to beat his wife (or girlfriend, no one is really sure which person it was) in your parking lot after having way too much to drink in your bar, just for you to continue his employment without any sort of reprimand. The only response you had for me is that Nookie's is your bar and you are going to run it the way you want to run to [ sic ].

It is for these reasons and several others that I realize that I must terminate this business relationship as of Sunday, April 22, 2007. Enclosed are your last three invoices that remain unpaid.

Coulombe Decl., Ex. F at 1–2.

On June 7, 2007, Sergeant Beinert sent a letter to Stan Fetterhof of the OLCC in which he advised Fetterhof that Deanne Jensen, an employee of Nookie's, had been arrested in the prior six months for Driving Under the Influence of Intoxicants and Possession of Methamphetamine while coming from or going to work at Nookie's. Decl. of Brian C. Dretke, Ex. O. Sergeant Beinert advised Fetterhof that the HPD had already forwarded the police reports to the Umatilla District Attorney's Office and was sending the reports to Fetterhof “for informational purposes only.” Dretke Decl., Ex. O.

On June 29, 2007, the OLCC implemented a Control Plan for Nookie's that required Nookie's to comply with the following:

The licensee or a manager will be...