J & B Ent. v. City Of Jackson

• Citation: 720 F.Supp.2d 757
• Decision Date: 31 March 2010
• Docket Number: Civil Action No. 3:06-cv-144WS.
• Court: U.S. District Court — Southern District of Mississippi
• Parties: J & B ENTERTAINMENT, d/b/a Babe's Show Club, Plaintiff v. CITY OF JACKSON, MISSISSIPPI; Mayor Frank Melton, in both his Official and Individual Capacities; Sgt. William Gladney, in both his Official and Individual Capacities; Detective Samuel Gardner, in both his Official and Individual Capacities; and Jackson Police Officers, John Does One Through Ten, in both their Official and Individual Capacities, Defendants.

720 F.Supp.2d 757

J & B ENTERTAINMENT, d/b/a Babe's Show Club, Plaintiff

v.CITY OF JACKSON, MISSISSIPPI; Mayor Frank Melton, in both his Official and Individual Capacities; Sgt. William Gladney, in both his Official and Individual Capacities; Detective Samuel Gardner, in both his Official and Individual Capacities; and Jackson Police Officers, John Does One Through Ten, in both their Official and Individual Capacities, Defendants.

Civil Action No. 3:06-cv-144WS.

United States District Court, S.D. Mississippi,Jackson Division.

March 31, 2010.

COPYRIGHT MATERIAL OMITTED.

Christopher N. Ganner, Chris N.K. Ganner, Attorney, Jackson, MS, Luke Charles Lirot, Law Offices of Luke Lirot, PA, Clearwater, FL, for Plaintiff.

Pieter Teeuwissen, Pieter Teeuwissen, PLLC, Anthony R. Simon, Anthony R. Simon, PLLC, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

HENRY T. WINGATE, Chief Judge.

Before the court is the presentation of the plaintiff J & B Entertainment, d/b/a Babe's Show Club (hereinafter the plaintiff or “Babe's”) for damages against the City of Jackson, Mississippi, resulting from the conduct of former Mayor Frank Melton, Sgt. William Gladney and Detective Samuel Gardner which led to the improper closure of Babe's for a period of twenty-four days. Babe's request is for lost profits and consequential damages. Previously, on April 7, 2006, Babe's persuaded this court that defendants' closure of the establishment on March 11, 2006, supposedly under the auspices of Art. VII, Licensing and Regulation of Sexually Oriented Businesses, ¹ Ord. No. 2000-26(25), codified in Jackson, Mississippi, Code §§ 30-251 to 373, violated Babe's procedural and substantive due process rights guaranteed by the Constitution of the United States. Finding that the law and facts supported Babe's claims, this court declared the defendants' closure of the establishment improper, allowed Babe's immediately to reopen for business, directed Babes to submit a proper six-page application for a sexually-oriented business license by April 14, 2006, and permitted the case to proceed on the merits of the constitutional claims. The defendants, the City of Jackson, Mississippi, Mayor Frank Melton, Sgt. William Gladney, Detective Samuel Gardner, and the Jackson Police Officers John Does One Through Ten, did not pursue an appeal of this court's grant of the plaintiff's request for injunctive relief. Now, the defendants concede the matter of liability to the plaintiff.

On March 24 and 25, 2009, this court conducted a bench trial solely on the issue of damages allegedly suffered by Babe's as a result of the defendants having closed the establishment for twenty-four (24) days, and for consequential damages allegedly suffered for the four month period following the reopening of Babe's. The parties presented widely divergent methods regarding the reasonable calculation of damages, the plaintiff claiming the amount $126,705.31 for the twenty-four days Babe's was closed, plus the cost of reestablishing the business over the following four month period after Babes' reopened. The defendants, following a completely different methodology, submitted that the amount of damages should not exceed $8,586.10.

FACTUAL BACKGROUND

This court, after conducting a hearing on the merits of granting injunctive relief, entered an opinion fully setting forth the facts leading to the closing of Babe's by the City of Jackson, and its failure to follow the terms of its Ordinance, a failure which led to the initiation of this lawsuit under Title 42 U.S.C. § 1983 ² . In summary, this court found that the plaintiff operated as Babe's Show Club, presenting First Amendment protected performances by exotic dancers described as sexually-oriented. These performances were directed at adult entertainment. This court also found that Babe's was established in Jackson, Mississippi, based on significant investment. Babe's obtained all the building, site plan, and certificates of occupancy required by law. In 2003, Babe's applied for and obtained the necessary license for a general operating business privilege, and the license for the operation of a sexually-oriented business. The parties agree that Babe's obtained the necessary licenses for operation of a sexually-oriented business in March of 2003, and that this license expired in March of 2004. Thereafter, according to the witnesses for Babe's, obtaining a permanent license for a sexually-oriented business became more difficult. Instead of issuing the ordinary sexually-oriented business licenses for one year, the City of Jackson began to issue Babe's temporary licenses.

Bo Powell, the General Manager of Babe's, testified that he became concerned about the new policy of issuing temporary licenses and personally attempted to renew Babe's license for the sexually-oriented business on January 13, 2005. Powell stated that he completed an application and was informed by a City of Jackson employee that the “Temporary License” he was issued would allow Babe's to continue its business operations until a permanent license was issued. Thereafter, Powell says that he repeatedly contacted the License and Permit Unit to inquire about the permanent license, and was always told that the January 13, 2005, temporary license would suffice until the permanent license was issued.

In October of 2005, Bo Powell says he directed Richard Merritt, a Manager at Babe's, to go to the License and Permit Unit for the City of Jackson on the sixth floor of the Standard Life Building. Merritt stated that he was directed by a police officer on duty there to proceed to the Sign and Permit Office located on President Street in Jackson. Merritt said he paid the clerk on duty at the Sign and Permit Office $200.00 and came back to Babe's with the January 13, 2005, application stamped “Paid October 28, 2005.” Powell and Merritt said they believed that the Babe's “Temporary License” had been reissued in accordance with what appeared to be the current custom and practice. Powell noted that he did not feel assured by the way the purported reissuance was handled. His doubts were answered on January 29, 2006.

On that date former Mayor Frank Melton and several Jackson Police Department Officers entered Babe's and informed Richard Merritt that the establishment would be closed by the City of Jackson as early as Friday, February 3, 2006, because it was operating without a valid license. On March 10, 2006, City of Jackson police officers delivered a letter to Babe's from Detective Samuel Gardner, Inspector, License and Permit Unit, City of Jackson, stating that:

[y]our business does not have valid Sexually Oriented Business License. According to our records you applied for renewal of your business license on January 13, 2005, but no record of a license being issued. However, there is no record of an application or license issued for 2006.

On March 11, 2006, says plaintiff, after opening Babe's for business as usual, City of Jackson police officers appeared and closed the business indefinitely. The manager, Richard Merritt said that, when he protested the closing, he was arrested by Sgt. William Gladney. Merritt says that he remained in police custody until 2:00 A.M. the following morning.

So, on March 13, 2006, the plaintiff filed this lawsuit claiming several violations of its constitutional rights as the result of being closed without proper justification. The plaintiff asked for injunctive relief, damages, attorney fees. On March 27, 2006, this court conducted an evidentiary hearing on plaintiff's motion for injunctive relief and heard from various witnesses. The witnesses for Babe's complained of the haphazard, and frustrating way in which licenses for sexually-oriented businesses had been handled by the City of Jackson. Bo Powell stated that he seldom got a straight answer on any question from any City of Jackson representative, and that he felt each employee he contacted was simply trying to “pass the buck” when dealing with adult entertainment issues. Both Powell and Richard Merritt told of their unsuccessful efforts to obtain a proper license for the operation of a sexually oriented business and the sudden closing of Babe's without notice or any opportunity to be heard on the matter.

This court found that the City of Jackson had failed to satisfy procedural safeguards by the manner in which it administered the licensing provisions of its Ordinance. The City's bureaucratic delay, due to either bad faith or simple negligence, persuaded the court to conclude that the City of Jackson had failed to comply with the provisions of its own Ordinance and, by failing to follow its own established procedure, the City had denied the plaintiff its procedural due process rights.

The City of Jackson ultimately agreed with the court's determination that a constitutional violation had occurred and no appeal of the court's decision was pursued. On the matter of damages, however, the parties have taken divergent paths and this court now must determine whether a proper measure of relief can be ascertained from the evidence presented. This court is allowed wide discretion in setting a damage award. Wheat v. United States, 860 F.2d 1256, 1259 (5th Cir.1988).

THE MATTER OF DAMAGES IN CIVIL RIGHTS CASES

The instant case arises under Title 42 U.S.C. § 1983. Section 1983 provides redress for those who have been injured or deprived of their rights under color of state law (See footnote 2). Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir.1994) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). The required proofs of “deprivation” and “under color of state law” have been made in the instant case. The matter of causation regarding damages is no longer in question as the defendants have conceded the issue of liability. ³ Thus, the efforts of this court now must be focused on determining the measure of damages.

In the case of ...