Ellinos, Inc. v. Austintown Tp.

• Citation: 203 F.Supp.2d 875
• Decision Date: 28 February 2002
• Docket Number: No. 4:01CV00562.,No. 4:00CV01207.,4:00CV01207.,4:01CV00562.
• Parties: ELLINOS, INC., dba Club Babylon, Plaintiff, v. AUSTINTOWN TOWNSHIP, Defendant. Leber, Inc., dba Rebel Lounge, Plaintiff, v. Austintown Township, Defendant.
• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

203 F.Supp.2d 875

ELLINOS, INC., dba Club Babylon, Plaintiff, v. AUSTINTOWN TOWNSHIP, Defendant.

Leber, Inc., dba Rebel Lounge, Plaintiff, v. Austintown Township, Defendant.

No. 4:00CV01207.

No. 4:01CV00562.

United States District Court, N.D. Ohio, Eastern Division.

February 28, 2002.

Neal G. Atway, Atway, Cochran & Rafidi, Youngstown, OH, Luke Charles Lirot, Tampa, FL, for plaintiff.

Abraham Cantor, Concord, OH, W. Scott Fowler, Comstock, Springer & Wilson, Youngstown, OH, for defendant.

MEMORANDUM, OPINION AND ORDER

LIMBERT, United States Magistrate Judge.

Defendant Austintown Township (Defendant) filed a motion for summary judgment requesting the Court to declare the Austintown Township Zoning Ordinance (Zoning Ordinance) constitutional both facially and as applied to adult uses, including the sexually oriented businesses operated by Plaintiff Ellinos, Inc. and Plaintiff Leber, Inc. (Plaintiffs).¹ See ECF Dkt. # 38.² Plaintiffs filed their own summary judgment motion which urges the Court to grant summary judgment in their favor and find that Defendant's Zoning Ordinance violates the U.S. Constitution facially and as applied to adult uses. See ECF Dkt. # 42.

Because the Court finds that Defendant's Zoning Ordinance violates the First Amendment's proscription against governmental restrictions on speech as it applies to the States through the doctrine of incorporation in the Fourteenth Amendment to the U.S. Constitution, the Court hereby GRANTS Plaintiffs' motion for summary judgment and DENIES Defendant's motion for summary judgment. See ECF Dkt. # 42, 38, respectively.³

I. JURISDICTION

"The Constitution allows federal courts only a limited and special jurisdiction, and powers not given to the federal courts by Congress are reserved to the primary repositories of American judicial power: state courts." Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1252 (6th Cir.1996). Article III of the U.S. Constitution sets forth the judicial power of the United States to hear cases, including "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." U.S. Const. Art. III § 2, cl. 1 (referred to as federal question jurisdiction). Congress chose to statutorily codify the federal question edict in almost precisely the same form as provided for in the Constitution. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") Thus, federal courts have the power to hear federal question cases to the fullest extent provided for by the Constitution. See id.

The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Toledo Fair Housing Center v. Farmers Ins. Group of Companies, 61 F.Supp.2d 681, 682 (N.D.Ohio 1999). A plaintiff invokes federal question jurisdiction by presenting a pertinent Federal issue on the face of the complaint. See Blair v. Source One Mortg. Services Corp., 925 F.Supp. 617, 620 (D.Minn.1996).

Plaintiffs in the now consolidated case sub judice have clearly presented federal issues on the face of their respective complaints. See ECF Dkt. # 1 (Case No. 4:00CV01207 and Case No. 4:01CV00562). Pursuant to 28 U.S.C. § 2201, Plaintiffs have prayed for the Court to declare the Defendant's Zoning Ordinance violative of, inter alia, the First, Fourth, and Fifth Amendments as applied to the states through the Fourteenth Amendment of the U.S. Constitution, both facially and as applied to sexually oriented businesses. See id. Based upon the presentation of fundamental federal claims in both of the Plaintiff's complaints, the Court finds that Plaintiffs have properly invoked the jurisdiction of this Court.

II. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Ellinos, Inc. operates a sexually oriented business called "Club Babylon" in Austintown Township, Mahoning County, Ohio; this establishment opened its doors on October 14, 1998. See ECF Dkt. # 1 at ¶ 7, 11. Similarly, Plaintiff Leber, Inc. operates a sexually oriented business called the "Rebel Lounge" in Austintown Township, Mahoning County, Ohio; this establishment originally opened in the early to mid 1980's. See ECF Dkt. # 1 at ¶ 7, 11 (Case No. 4:01CV00562). Defendant Austintown Township is a political subdivision in Mahoning County, Ohio. See ECF Dkt. # 1 at ¶ 8.

On March 24, 2000 the Defendant's Zoning Inspector issued a notice of violation of Defendant's Zoning Ordinance to Plaintiff Ellinos, Inc. for allegedly operating an adult cabaret without having secured a conditional use permit. See ECF Dkt. # 1 at ¶ 28. In response on May 11, 2000 Plaintiff Ellinos, Inc. filed a complaint which launched a constitutional challenge to Defendant's Zoning Ordinance. See ECF Dkt. # 1.⁴ Early the following year, on January 12, 2001 Defendant's Zoning Inspector issued a similar notice of violation of Defendant's Zoning Ordinance to Plaintiff Leber, Inc for allegedly operating an adult cabaret without having secured a conditional use permit. See ECF Dkt. # 1 at ¶ 28 (Case No. 4:01CV00562). In response, on March 8, 2001, Plaintiff Leber, Inc. filed a comparable complaint which challenged Defendant's Zoning Ordinance. See id.⁵

Plaintiffs' complaints seek a declaration that Defendant's zoning regulations are unconstitutional, both facially and as applied to adult uses, in particular sexually oriented businesses. See ECF Dkt. # 1 at ¶ 1 (Case No. 4:00CV01207 and Case No. 4:01CV00562). Plaintiffs also seek injunctive relief enjoining Defendant from enforcing its Zoning Ordinance against their sexually oriented businesses. See id. at ¶ 6.

Plaintiffs claim that Defendant's zoning regulations violate the First, Fourth, and Fifth Amendments as applied to the states through the Fourteenth Amendment by imposing conditional use requirements on sexually oriented businesses. See ECF Dkt. # 1 at ¶ 1, 4, 5 (Case No. 4:00CV01207 and Case No. 4:01CV00562). More specifically, Plaintiffs aver that Defendant's Zoning Ordinance violates the First Amendment by acting as a prior restraint since it allows for unbridled administrative action. See id.⁶ On May 3, 2001, in response to Defendant's motion to consolidate, the Court consolidated Plaintiffs' constitutional challenges and ordered that all documents be filed under Case No. 4:00CV1207. See ECF Dkt. # 22, 23.

On January 31, 2002 Defendant filed a motion for summary judgment requesting that the Court declare Defendant's Zoning Ordinance constitutional facially and as applied to sexually oriented businesses, including the establishments operated by Plaintiffs. See ECF Dkt. # 38 at 10. On February 1, 2002 Plaintiff Ellinos, Inc. countered and filed its own summary judgment motion, along with an affidavit attested to by Nicholas Ellinos; Plaintiff Leber, Inc. joined this motion in its entirety. See ECF Dkt. # 42 at 10. Plaintiffs urge the Court to grant summary judgment in their favor and find that Defendant's Zoning Ordinance violates the First Amendment facially and as applied to sexually oriented businesses. See ECF Dkt. # 42.

Defendant filed an opposition brief to Plaintiffs' motion for summary judgment and also moved to strike the affidavit of Nicholas Ellinos. See ECF Dkt. # 46. Plaintiffs filed separate opposition briefs to Defendant's combined motion for summary judgment and motion to strike. See ECF Dkt. # 50, 51.

III. STANDARD OF REVIEW

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the Court. See Allen v. Wood, 970 F.Supp. 824, 828 (E.D.Wash.1997). Similarly, the function of summary judgment is to dispose of cases without trial when one party is unable to demonstrate the existence of a factual dispute which, if present, would require resolution by a jury or other trier of fact. See Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir.1982). Summary judgment is particularly appropriate in a case challenging the facial constitutionality of a statute. See Tee & Bee, Inc. v. City of West Allis, 936 F.Supp. 1479, 1484 (E.D.Wis.1996)(citing Felix v. Young, 536 F.2d 1126, 1130, n. 7 (6th Cir.1976)).

Rule 56(c) of the Federal Rules of Civil Procedure governs summary judgment motions and provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

FED. R. CIV. P. 56(C). Under Rule 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. See Allen, 970 F.Supp. at 828(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and must identify the portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)(quoting FED. R. Civ. P. 56(c)). This initial burden can be discharged by the moving party by showing that the nonmoving party has failed to establish an essential element of the nonmoving party's case for which he or she bears the ultimate burden of proof at trial. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Morales v. American Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir.1995). The evidence submitted must be viewed in a light most favorable to the nonmoving party...