Deja Vu Of Nashville v. Metropolitan Government

• Decision Date: 04 February 2019
• Docket Number: NO. 3:18-cv-00511,3:18-cv-00511
• Parties: DEJA VU OF NASHVILLE, INC., et al., Plaintiffs, v. METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

360 F.Supp.3d 714

DEJA VU OF NASHVILLE, INC., et al., Plaintiffs,

v.METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, et al., Defendants.

NO. 3:18-cv-00511

United States District Court, M.D. Tennessee, Nashville Division.

Filed February 4, 2019

Bob Lynch, Jr., Nashville, TN, Matthew J. Hoffer, Shafer & Associates, P.C., Lansing, MI, for Plaintiffs.

J. Brooks Fox, Metropolitan Legal Department, James A. Crumlin, Jr., Bone, McAllester & Norton, PLLC, Daniel A. Horwitz, Law Office of Daniel A. Horwitz, Nashville, TN, for Defendants.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court are Linda Schipani's Motion to Dismiss (Doc. No. 17) and Motion to Strike (Doc. No. 36), in addition to Metropolitan Government of Nashville and Davidson County ("Metro") and Freddie O'Connell's (collectively "Defendants") combined Motion to Dismiss (Doc. No. 25).¹ Deja Vu of Nashville ("Deja Vu") and The Parking Guys ("TPG") (collectively "Plaintiffs") have filed responses to the instant motions (Doc. Nos. 26, 28, 39), to which Defendants have replied (Doc. Nos. 27, 32). For the following reasons, Defendants' and Schipani's Motions to Dismiss (Doc. Nos. 17, 25) will be granted and Schipani's Motion to Strike (Doc. No. 36) will be denied as moot.

I. Factual Background

Deja Vu is a Nashville business engaged "in the presentation of female performance dance entertainment to the consenting adult public." (Doc. No. 1 at 2.) In early 2016, Deja Vu sold its original location at 1214 Demonbreun Street, Nashville, Tennessee to third-party developers and began relocation efforts. (Id. at 5-6.) In the summer of 2016, Deja Vu entered into a purchase agreement for a location at 1418 Church Street, Nashville, Tennessee, which was zoned for "adult use." (Id. at 6.) After Deja Vu purchased the property, Metro Council Members Freddie O'Connell and Bob Mendes introduced Ordinance No. BL2016-350 (the "Ordinance"), which sought to eliminate "adult entertainment" as a permissible land use for the zone where Deja Vu sought to operate its new establishment. (See Doc. No. 1-6.) O'Connell hoped that the Ordinance would trigger a larger conversation about adult entertainment in Nashville and would refocus these adult entertainment businesses away from downtown Nashville. (Doc. No. 1-7.) Ultimately, in October 2016, O'Connell publicly withdrew the Ordinance, and, in May 2017, Metro's Sexually Oriented Business License Board approved a license for the operation of Deja Vu's new club at 1418 Church Street. (Id. at 7.)

In June 2017, a local newspaper, The Tennessean, published an article entitled "New Deja Vu strip club on Church Street quickly draws complaints." (Doc. No. 1-10.) In the article, Lee Molette, a local developer who supported the Ordinance, commented that Deja Vu patrons were using drugs, dropping liquor bottles and other litter, and parking illegally on his and other nearby properties. (Id. at 1-2.) In the same article, O'Connell also stated that he had seen video footage of a drug deal conducted near Deja Vu's new establishment. (Id. at 2.) Mike Durham, general manager and vice president of Deja Vu, disputed the allegations. (Id. ) Finally, a spokesperson from Nashville Metro Police Department stated that additional patrols would be added to respond to the complaints. (Id. )

In conjunction with operating their new location, Deja Vu entered a written agreement with TPG to provide valet services for the club. (Doc. No. 1 at 8.) Deja Vu chose TPG in part because it was an established valet service business with no history of sanctions from the Metro Traffic and Parking Commission (the "Commission"). (Id. ) Deja Vu alleges that a properly run valet service contributes to the orderly flow of traffic and is necessary to attract high-end patrons. (Id. ) Accordingly, in May 2017, TPG filed its initial application to Metro's Public Works Department for permission to operate a valet service on 15th Avenue North to service Deja Vu. (Id. at 8-9.) Metro Public Works denied TPG's request, stating that parking was not allowed on Church Street or 14th Avenue. (Doc. No. 1-11.) Plaintiffs allege that a representative from Metro Public Works also orally informed them of the decision, and, when Plaintiffs asked for a reason supporting the decision, none was provided. (Doc. No. 1 at 9.)

On June 8, 2017, TPG timely appealed the Commission's valet application denial. (Id. ) Metro Public Works then decided to hold a hearing on TPG's appeal. (Id. ) Plaintiffs allege that, prior to and at the meeting, Schipani, who owns a building across from Deja Vu's new club, and Molette engaged in a plan to disseminate false information to obtain the permanent denial of TPG's valet application. (Id. ) On June 9, 2017, Schipani sent an email to Diane Marshall, an employee of Metro Public Works, with Molette as a copied recipient, attaching a letter and stating "[a]nything that you can do to support the denial of this valet parking permit will be appreciated." (Doc. No. 1-14 at 1.) The attached letter was on behalf of the Midtown Church Street Business & Residential Association and was addressed to Diane Marshall and Chip Knauf, a representative for the Commission. (Id. at 2.) The letter stated that, since Deja Vu opened and TPG operated its valet service (without a permit), its members had witnessed near miss accidents and traffic congestion, which necessitated a permanent denial of TPG's pending valet application. (Id. ) Additionally, the letter stated that member businesses had been blocked out of their gated parking areas due to TPG's valet service and employees were having difficult maneuvering the street. (Id. at 3.) Plaintiffs allege that these statements were knowingly false when made and were communicated to obtain permanent denial of TPG's pending valet permit. (Doc. No. 1 at 10.)

On June 14, 2017, TPG began applying for, and receiving, a series of "Lane Closure Permits" for the operation of a valet service on 15th Street North while their valet permit appeal was pending. (Id. ) On July 7, 2017, Schipani emailed Marshall and Molette a series of photographs, allegedly showing "consistent problems with valet parking on both sides of the street which impedes the flow of traffic, blocking private parking and presenting safety issues for drivers plus pedestrians." (Doc. No. 1-16 at 2.) Schipani, on behalf of the Midtown Church Street Business and Residential Association, "fervently ask[ed] [Marshall] to deny [TPG's] application." (Id. ) TPG's valet application appeal was then placed on the Commission's agenda for its July 10, 2017 meeting. (Doc. No. 1 at 11.)

At the Commission's July 10 meeting, Molette first testified against TPG's valet permit appeal, stating that: (1) the street was too narrow for TPG's valet service; (2) TPG's current operation of the valet service was causing congestion; (3) TPG's current operation of the valet service was causing traffic to back up on 15th Street to Church Street; (4) the congestion caused by TPG's valet service was consistent day-to-day; and (5) a pedestrian was struck by a vehicle due to TPG's valet service. (Id. at 12.) Schipani also testified against TPG's valet appeal, noting that: (1) TPG was parking vehicles on her property; (2) TPG was causing traffic "up and down" the street; and (3) TPG was "constantly" parking in a manner that impeded vehicular ingress and egress to her business's parking lot. (Id. at 12.) Diane Marshall testified that TPG's requested valet permit met the technical requirements of the Metro Code, explaining that a "No Parking to Corner" sign could be properly moved from 90 feet to 30 feet from the corner, thereby opening 60 feet for three 20-foot valet lanes and allowing TPG to legally operate the valet service for Deja Vu. (Id. at 13.) Finally, Chip Knauf, Traffic Engineer for Metro Public Works, reiterated that the requested valet permit met the technical code requirements for approval. (Id. ) The Commission subsequently deferred the matter to their next meeting to gather additional evidence, including alleged video evidence showing the traffic congestion related to TPG's ongoing valet operation. (Id. )

Following the Commission's July 10, 2017 hearing, Metro retained Collier Engineering Company, Inc. ("Collier") to perform a study of TPG's ongoing valet operation and its effects on traffic. (Id. ) Ultimately, Collier's report concluded that, during Deja Vu's busiest period (Friday night/Saturday morning) five vehicles experienced delay due to congestion at the valet stand. (Id. at 15.) On August 11, 2017, Schipani again emailed Knauf, Molette, and O'Connell, reiterating her position that TPG's valet appeal should be denied and stating that: (1) the neighborhood surrounding TPG's valet operation continued to witness public safety hazards attributable to TPG's valet service; (2) TPG's valet operation was associated with two pedestrians hit by cars in the past two months; and (3) the corner of Church Street and 15th Street was "gridlocked’ most nights. (Id. at 16.) On August 14, 2017, O'Connell emailed Knauf requesting that TPG's valet appeal be denied and noting that:

Area property owners have demonstrated ... an extraordinary amount of inappropriate vehicular activity at the intersection in question ... and I believe a valet here would present unfortunate public safety concerns, traffic and parking issues that could affect performance of emergency vehicles, and general negative traffic and parking issues for area users of the public right of way.

(Doc. No. 1-22. at 1.) Plaintiffs allege that O'Connell's email to Knauf was intended to be conveyed to the Commission and to influence the Commission to deny TPG's requested valet permit, and O'Connell "issued the email with the intent to use the color of his office as a Metro Council Member to influence the Commission to deny the appeal." (Doc. No. 1 at 17.)

On August 14, 2017, the Commission again took up TPG's appeal...