Miller v. City of East Mountain

• Decision Date: 14 October 2011
• Docket Number: CIVIL ACTION NO. 6:10CV21
• Parties: ROBERT KEITH MILLER v. CITY OF EAST MOUNTAIN, TEXAS, et al.
• Court: U.S. District Court — Eastern District of Texas

ROBERT KEITH MILLER

v.CITY OF EAST MOUNTAIN, TEXAS, et al.

CIVIL ACTION NO. 6:10CV21

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

Dated: October 14, 2011

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Keith Miller filed the above-styled lawsuit on November 6, 2009. The matter was referred to the undersigned for all pretrial matters in accordance with 28 U.S.C. § 636. The parties have filed competing motions for summary judgment. On June 10, 2011, Defendants filed their Motion for Summary Judgment (document #72). Plaintiff filed a Motion for Partial Summary Judgment (document #74) on June 17, 2011. For the reasons assigned below, the Court finds that Defendants' Motion for Summary Judgment should be granted and Plaintiff's Motion for Partial Summary Judgment should be denied.

Background

Plaintiff owns a ranch, referred to as the Sacred Spur Ranch, located in East Mountain, Upshur County, Texas. The City of East Mountain is a small municipality with approximately 700 residents, located in a rural area. Initially, Plaintiff purchased a five-acre tract in 1998 or 1999. In 2000, or 2001, Plaintiff purchased two adjoining tracts of land, bringing his total property to more than thirteen acres. Plaintiff moved a mobile home to the property and resides there. Plaintiffdismantled and moved a 3,500 to 4,000 square foot feed store building from Gladewater to the property. Plaintiff used it as a western museum called the Green Frog Dance Hall. He also constructed a rodeo arena, known as the Buzzard Breath Arena. Beginning in 2002, Plaintiff started hosting live music concerts and barrel races on the property. An original rodeo barn from the Gladewater Rodeo was acquired and moved to the property. The next addition was a restaurant known as the Cowhide Café. The original restaurant had a capacity of 20 to 25 patrons, but it was expanded to hold 65 to 85 patrons. Barrel races were conducted from 2002 to 2006. Finally, Plaintiff renovated a horse barn on the property in 2005 and converted it into a 5700 square foot dance call known as Tivio's Ballroom. Tivio's Ballroom was used for events such as wedding parties, Christmas parties and live music. Plaintiff contends that he spent in excess of $250,000 on construction, maintenance, expansion and rehabilitation of the property.

During these early years of the operation of Plaintiff's business, Plaintiff filed two voluntary consumer debt bankruptcy petitions under Chapter 13 of the Bankruptcy Code; first on December 30, 2003, and then on October 12, 2005. Both petitions were dismissed for failure to make payments to the Trustee in accordance with the confirmed Chapter 13 Plan.¹

On December 8, 2006, one of Plaintiff's neighbors, Jesse Loffer, spoke at the City Council meeting and complained about the live music noise coming from the Sacred Spur Ranch on Friday and Saturday nights. At the February 12, 2007 City Council meeting, Plaintiff addressed the council, explained his business and expressed his desire to avoid being disruptive to his neighbors. He stated that he was opposed to the adoption of a noise ordinance. Loffer also addressed the City Council,complained about the noise coming from Plaintiff's property and stated his support for a noise ordinance. During this same time period, Loffer contacted the police department on multiple occasions to complain about the noise coming from Plaintiff's property. Jason Redding was the police chief at that time. In response to Loffer's complaints, Redding went out to Plaintiff's property and asked Plaintiff to turn down the music. According to Plaintiff, the complaints escalated at the end of 2006 and into 2007.

The noise ordinance issue was again discussed at the next City Council meeting conducted on March 12, 2007. Loffer and another neighbor, Bret Freeman, complained about the music coming from the Sacred Spur ranch on the weekends. After discussing the proposed ordinance and its fines, the City Council adopted a revised noise ordinance. A previous noise ordinance addressing sound amplification systems in vehicles² was revised to include the following language:

II. Additional Prohibited Noises

(a) It is unlawful to make, continue, or cause to be made or continued any loud or raucous noise which:

(1) Is offensive to persons in the vicinity thereof;

(2) Substantially impairs the peaceable enjoyment of public or private property; or

(3) Causes material distress, discomfort, or injury to persons of ordinary sensibilities in the area.

(b) The following acts, among others, are loud and raucous noises, and are unlawful:

(1) The playing of any radio, stereo, phonograph, musical instrument, orsimilar device in such manner or with such volume so as to offend persons in the vicinity;

(2) The discharge into open air of the exhaust of any steam or internal combustion engine, whether moveable or stationary, except through a muffler or other device which will effectively prevent the emission of offensive noises therefrom;

(3) The erection, excavation, demolition, alteration or repair of any building or structure in or adjacent to a residential area or hotel between the hours of 9:00 p.m. and 8:00 a.m. on weekdays and between 10:00 p.m. and 8:00 a.m. on weekends after receiving a complaint and warning to stop the noisy activity, except in situations involving the interests of public safety, official government business, or the protection of the subject property.

(4) The creation of any noise in a public place adjacent to a church, school, cemetery, court of law, or other public building which, by its nature, is reasonably calculated to disrupt, interfere with, or disturb the proceedings conducted therein;

(5) The outdoor use of a drum, musical instrument, mechanical loud speaker, or other sound amplification for the purpose of attracting attention by the creation of noise to any performance, show, sales event, or display of merchandise so as to attract customers to any place of business;

(6) The outdoor use of a mechanical loudspeaker, calliope, mechanically operated piano, organ, musical instrument or other sound amplification or broadcasting equipment, whether stationary or mobile, emitting sound capable of being heard so as to offend persons in the vicinity;

(7) The demolition, repair, or alteration of a motor vehicle or part thereof in connection with which there is produced any noise which is offensive to inhabitants in the vicinity or which substantially impairs the use of enjoyment of adjacent property.

(8) The use or operation of any device that is equipped on any motor vehicle, designed to aid in the braking, decompression, or deceleration which results in the excessive, loud, unusual or explosive noise from such vehicle.

(c) Exceptions. This section shall not apply to:

(1) An official of federal, state, or local government or to members of the United States armed forces engaged in the performance of official duties; or

(2) Persons engaged in the present performance or rendition of emergency services;

(3) Special events conducted with a special event permit authorized by the city;

(4) Public parades duly permitted;

(5) The use of outdoor sound amplification for outdoor public speeches, ceremonies, political assemblages or paging purposes conducted at a fixed location at least 50 feet from a residential district and the sound was not audible beyond the property line of the premises on which it was located;

(6) The use of sound amplification, intercom, or paging devices within the interior of a church, school, auditorium, convention center, government building or similar public meeting place.

Sanctions

(a) Any person, firm, corporation, or agent who shall violate, or cause to be violated, any provision of this section shall be cited and may avoid further prosecution by paying the sum of $200.00 dollars as a civil penalty, including court costs, within ten calendar days after the issuance of the citation at the City of East Mountain business offices.

At subsequent City Council meetings on May 14, 2007 and June 11, 2007, the scope of special permits was discussed. At the June 11, 2007 meeting, the City Council voted to limit special permits to two special permits per year and to have special permits expire at 1:00 a.m.³

After the noise ordinance was amended to include outdoor music, the City of East Mountainpolice department continued to receive phone calls complaining about noise coming from the Sacred Spur Ranch. Most of the complaints were resolved by asking Plaintiff to turn down the music. Only two citations were issued to Plaintiff for violating the noise ordinance. The first citation was issued on May 9, 2008 and Plaintiff was found guilty following a trial in Municipal Court. The second citation was issued on December 5, 2008, and Plaintiff pleaded no contest.

The only specific police officer Plaintiff complains about is Jeff Pearson. Jeff Pearson took over as the police chief after Jason Redding resigned. Plaintiff alleges that Chief Pearson harassed him by coming into the restaurant to inspect the liquor, by checking the license plates of his patrons and by interrupting a wedding reception in December of 2007. Plaintiff alleges that Chief Pearson acted at the instruction of the mayor, Ronnie Hill. Plaintiff further alleges that his revenues decreased substantially beginning in 2007 because of Defendants' actions.

On February 18, 2009, Plaintiff filed a voluntary Chapter 11 small business debtor bankruptcy petition. Confirmation was not achieved by the confirmation deadline and the case was dismissed on January 20, 2010. Plaintiff then filed this lawsuit on January 29, 2010, seeking relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges that his constitutional rights have been violated by the selective enforcement and enactment of the noise ordinance, resulting in the deprivation of his property rights without due process of law. Further, Plaintiff alleges that his business has been singled out for criminal prosecution...