Epileptic Foundation v. City and County of Maui

• Decision Date: 09 October 2003
• Docket Number: No. CIV. 02-00343 ACK/KS.,CIV. 02-00343 ACK/KS.
• Citation: Epileptic Foundation v. City and County of Maui, 300 F.Supp.2d 1003 (D. Haw. 2003)
• Parties: THE EPILEPTIC FOUNDATION, et. al., Plaintiffs, v. CITY AND COUNTY OF MAUI, et. al., Defendants.
• Court: U.S. District Court — District of Hawaii

300 F.Supp.2d 1003

THE EPILEPTIC FOUNDATION, et. al., Plaintiffs, v.CITY AND COUNTY OF MAUI, et. al., Defendants.

No. CIV. 02-00343 ACK/KS.

United States District Court, D. Hawai'i.

October 9, 2003.

As Amended February 25, 2004.

COPYRIGHT MATERIAL OMITTED

Andre S. Wooten, Honolulu, for Epileptic Foundation.

Judith M.E. Williams, Dept. of the Prosecuting Atty., County of Maui, Wailuku, HI, James Takayesu, Dept. of the Corp. Counsel, County of Maui, Wailuku, HI, for John Buck, Roxanne Teshima, Glen Correa.

Brian T. Moto, Moana Monique Lutey Ramaya, Victoria J. Takayesu Hamilton, Department of the Corporation Counsel, County of Maui, Wailuku, HI, for Maui, City & County of, Department of Parks and Public Recreation.

Moana Monique Lutey Ramaya, Victoria J. Takayesu Hamilton, Department of the Corporation Counsel, County of Maui, Wailuku, HI, for Floyd Miyazono.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND REINSTATING IN PART PLAINTIFFS' CLAIMS UNDER CHAPTER 489

KAY, District Judge.

This matter comes before the Court on Defendants City and County of Maui, Department of Parks and Public Recreation("Maui County" or "Parks and Recreation"), and John Buck's (collectively "Defendants")Motion for Summary Judgment, filed September 12, 2003.¹Plaintiffs the Epileptic Foundation of Maui ("EFM"), Glen Mabsenn,²Joe Collins and Ozella Scott(collectively "Plaintiffs") filed their Memorandum in Opposition on September 25, 2003("Memo. in Opp.").³Defendants replied on October 3, 2003.⁴The Court heard argument on October 7, 2003.For the following reasons, the Court GRANTS in part and DENIES in part summary judgment in favor of Defendants and REINSTATES in part Plaintiffs' claims under chapter 489.

BACKGROUND

I.Factual History

The Court has twice discussed the facts of this case at length.SeeEpileptic Found. of Maui v. City & County of Maui,Civ. No. 02-00343(D. Haw. filed August 8, 2003)[August Order];Epileptic Found. of Maui v. City & County of Maui,Civ. No. 02-00343(D. Haw. filed March 11, 2003)[March Order].⁵The dangers of redundancy notwithstanding, Defendants' Motion demands a third detailed recounting — set in the light most favorable to Plaintiffs — to determine what, if any, genuine issues of material fact remain.⁶

EFM, a nonprofit corporation, hosts an annual "Epilepsy Awareness Event" at Kalama Park in Kihei, Maui, to raise funds for the organization.Kalama Park is a public park maintained by Parks and Recreation.EFM has successfully held its event at Kalama Park for the past five years.(Defendants' Ex. "M,"at 71:15-19).

The 2002 Epilepsy Awareness Event was scheduled for the eleventh of May.There is some dispute as to whether that date was obtained by blind lottery or assigned by Maui County at EFM's request.Defendants assert that EFM "did not participate in a lottery to obtain the May 11, 2002 date."(Affidavit of John L. Buck, III ("Buck Aff.")¶ 3, attached as Defendants' Ex. "T"); see alsoDefendants' Ex. "B";Maui County Code§ 10-1-12(d).Plaintiffs maintain the EFM "won the date of May 11, 2002, for a fund-raising event through fair competition in the Maui County lottery for Kalama Park use dates."(Declaration of Glen Mabsenn ("Mabsenn Decl.")¶ 1).⁷However the date was obtained, the parties agree that sometime in early 2002, EFM received an application (number 1479) for a permit to use Kalama Park on May 11, 2002.⁸(BuckAff. ¶ 4); (MabsennDecl. ¶ 4).

By letter addressed to Scott and dated February 11, 2002, Buck confirmed that Parks and Recreation had reserved Kalama Park on May 11, 2002, for the Epilepsy Awareness Event.(Defendants' Ex. "B").The letter further informed EFM that in order to receive final approval for the event, Parks and Recreation needed certain supporting documentation by March 15, 2002.⁹A second letter to Scott of even date informed EFM that "[c]rafters will not be allowed at your event."¹⁰(Defendants' Ex. "C").This restriction may conflict with a statement Buck made to Mabsenn sometime in February authorizing "vendors," provided that EFM "was in charge of all of the items being sold[ ] and ... getting more than 51% of the money from items sold ...."¹¹(MabsennDecl. ¶ 18).

Mabsenn returned the application, which listed "fund-raising" as the purpose for the event, and the release, acknowledgment and indemnification form on March 13, 2002.¹²(Defendants' Ex. "D").Mabsenn also tendered checks made out to Parks and Recreation for the rental fee and the cleaning deposit.(Plaintiffs'Exs. 4, 5).Parks and Recreation deposited the checks and issued a receipt dated March 20, 2002.(Plaintiffs'Ex. 3).Neither Floyd Miyazono, then the Director of Parks and Recreation, nor Buck, then the District Supervisor, signed the application.¹³

On March 25, 2002, Buck, by letter to Mabsenn, advised EFM as to the status of its application.¹⁴According to the letter, several necessary documents remained outstanding, including the event layout, a Hawaii Department of Heath Food Permit for each food vendor and a detailed cleanup plan.SeeDefendants' Ex. "F."Mabsenn responded by providing additional, although incomplete, information.¹⁵(Defendants' Ex. "G").The record does not contain a reply from Buck.

Sometime thereafter, Mabsenn sent Buck an undated facsimile, which provided in relevant part:

Here is the list per our conversation[:]

1.Silent Auction of Robert Lyn Nelson Paintings

2.Quilts (bed spreads) that are donated for fund-raising.

3.Rave Jewelry donated to EFM.

4.Will notify[,] for your approval, if any other items are donated for fund-raising.

Please understand that this is not a Craft's [sic] fair, but a fund-raiser ....

(Defendants' Ex. "H").There is no evidence regarding the nature of the conversation referenced in the facsimile or Buck's reply, if any, to the same.But the facsimile appears to indicate that EFM proposed to include only the above-designated craft vendors at the May 11, 2002 event, and that the event would not otherwise be a craft fair.

Nothing further transpired until Buck notified EFM on May 7, 2002, that the original permit had been "misfiled."¹⁶(MabsennDecl. ¶ 19); (BuckAff. ¶¶ 8-9).Faced with the prospect of losing their right to use Kalama Park on May 11, 2002, Plaintiffs submitted a second application(number 1609).The application was dated May 7, 2002, and signed by Mabsenn.(Defendants' Ex. "I").The application requested the use of Kalama Park and Pavilion on May 11, 2003, for an "epileptic awareness" event.¹⁷Id.Buck and Miyazono signed the application on May 9, 2002.

The next day, EFM (per Mabsenn) agreed to a "Special Condition," which recited that "the permit issued for the use of Kalama Park on May 11, 2002, does not and shall not include an activity deemed to be a `Gift and craft fair.'"(Defendants' Ex. "J").Mabsenn claims that he signed this document "under duress."(MabsennDecl. ¶ 22).

The event, without craft vendors, was held on May 11, 2002.¹⁸EFM officers and members arrived that morning to find Kalama Park "filthy" and in disarray.(MabsennDecl. ¶¶ 26-31).EFM also discovered that the Kalama Park Pavilion had been rented to another group, thereby preventing EFM from making full use of the park.¹⁹Id.¶ 33.

When asked about the condition of the park, Buck replied, "You niggers are dirty anyhow.Clean the park yourself."²⁰(CollinsDecl. I ¶ 18); (MabsennDecl. ¶ 27); (Defendants' Ex. "P," at 98:8-13).EFM members, with the assistance of two Maui Police Department officers assigned as security for the event, cleaned Kalama Park.(MabsennDecl. ¶¶ 45, 47).Parks and Recreation offered the nominal and belated assistance of a single employee later that afternoon.Id.¶ 48.

Plaintiffs surmise that the exclusion of craft vendors caused EFM to lose over $75,000 in donations.²¹Id.¶ 40.This in turn reduced or completely eliminated several educational programs, including EFM's annual "First Aid to Epilepsy and Seizure Control" class for the Maui County Fire Department and its biannual presentation to new Maui County Police Department recruits.Id.¶¶ 41-44.

According to Plaintiffs, other groups received more favorable treatment.The evidence offered in support of that claim is neither well organized nor entirely consistent.Cobbled together as best can be done, however, it appears that at least two organizations held craft fairs at Kalama Park in 2001.SeePlaintiffs'Exs. 9, 11.In addition, there is some evidence that "Children Helping Children" and the "Whale Foundation"(alternatively referred to as the "Pacific Whale Foundation") held craft fairs at the park in 2003.(MabsennDecl. ¶¶ 34, 36, 38).Finally, the Wailea Canoe Club held a three-day event called "Kihei Sea Fest," which included a craft fair, in July 2003.²²Id.¶ 35;(Plaintiffs'Ex. 8).Plaintiffs maintain that the foregoing groups were allowed to hold gift and craft fairs while EFM was denied that privilege because several of EFM's officers and directors are of African-American ancestry.

II.Procedural History

The August Order granted in part and denied in part Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint and allowed Plaintiffs' ten days to file a Third Amended Complaint in a manner consistent with the Order.²³Id. at 89.Plaintiffs did not amend their Complaint, and Defendants answered on August 21, 2003.²⁴Defendants filed their Motion for Summary Judgment on September 12, 2003.The issues have been fully briefed and counsel were heard at argument on October 7, 2003.

STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses.SeeCelotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).Summary judgment is therefore appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no...