NORBY v. CITY of TOMBSTONE
| Decision Date | 01 April 2011 |
| Docket Number | No. CIV 07-232-TUC-CKJ,CIV 07-232-TUC-CKJ |
| Parties | PAIGE A. NORBY, dba TUCSON RANGE RIDERS, et al., Plaintiffs, v. CITY OF TOMBSTONE, et al.,Defendants. |
| Court | U.S. District Court — District of Arizona |
OPINION TEXT STARTS HERE
Pending before the Court are Defendants' Motion for Summary Judgment (Docs. 190, 196, 228) and Plaintiffs' Objection and Motion to Strike and Motion to Reconsider Sur-Reply (Docs. 252 and 253). The parties presented oral argument to the Court on March 18, 2011. Additionally, Plaintiffs' Second Joint Objection to Defendants' Amended Summary Response and Motion to Strike and Motion to Reconsider Sur-Reply is pending before the Court (Doc. 258).
An action has been filed by David Weik ("Weik") and Paige Norby Weik ("Weik") (collectively, "Plaintiffs") against Defendants City of Tombstone, Marshall Merlin Jay Smith ("Smith"), Councilwoman Stacey Korbeck-Reeder ("Korbeck-Reeder") and Stephen Schmidt ("Schmidt").1
Plaintiffs operated Tombstone Rangeworks General Store and Tombstone Range Riders, a trail riding business, at 116 S. Fourth Street in Tombstone, Arizona. Weik initially obtained a business permit for the store on May 27, 2005. The store operated until August of 2006.
On December 6, 2005, Weik expressed his desire to the Tombstone City Council ("City Council") to conduct horse trail rides within the City of Tombstone and suggested staging them on Allen Street. On December 7, 2005, Weik submitted three animal use permit applications for four horses each to conduct a trail riding business within the town limits.
On December 20, 2005, during the next City Council meeting, some people present expressed safety concerns over allowing single horse trail rides on downtown Allen Street.2At that meeting, the City Council members discussed with Weik other concerns including sanitation issues, insurance, damage to roads, staging location, and other organizations using Allen Street. Two members of the City Council voted to approve the permit applications and two members voted against approval.
On January 5, 2006, the City Council again addressed the issue. Defendants assert this is because Plaintiffs requested a 60 day conditional permit. Plaintiffs assert that the 60-day permit was proposed by the City Council. The City Council voted to approve a permit for nine horses, with a staging location of 116 S. 4th Street.3 This conditional permit waslater extended. The expiration date of the permit was January 27, 2007. Norby's name was added to the permit on July 28, 2006.
Defendants assert Plaintiffs knew the City had not permitted them to stage on Allen Street when the permit was issued.4 During argument, Weik acknowledged that Plaintiffs knew they were not permitted to stage on Allen Street.
Weik requested a safer staging location from the City Council.5 At the February 14, 2006, meeting the request died for lack of motion.
Plaintiffs requested permission from Mayor Andree DeJournett ("DeJournett") to place a covered wagon in front of the store at 116 S. Fourth Street in Tombstone, Arizona - in front of the gas meter and above the ground gas line; DeJournett granted the request. Weik went before the City Council on January 17, 2006, and was told to move the wagon because its placement had not been approved by the City Council.6
Defendants assert that, due to safety issues regarding traffic and the gas line, Plaintiffs began staging across the street in a parking lot area. Defendants also assert that Plaintiffs had not received permission from the parking lot owner to do this; the owners of the parking lot told Plaintiffs to move the horses. Plaintiffs assert that they staged some rides from a vacant lot near the store. Plaintiffs also staged some rides from the corral.
On September 19, 2006, Weik asked the City Council if he could stage his horses on Allen Street. Safety issues regarding traffic and a gas meter were discussed. The CityCouncil denied the request.
Defendants assert that Smith discussed the proposed staging area with business owners on Allen Street. The business owners objected to the proposed staging area. Smith recommended against the proposed staging in a confidential memorandum to the City Council. Smith subsequently attempted to speak with Weik about another possible staging area; Weik refused to talk with Smith.
The renewal of Tombstone Range Rider's Animal Use Permit was placed on the agenda for the December 12, 2006, City Council meeting. The renewal died for lack of a motion. DSOF, Ex. 10.
City Clerk George Burns sent a letter to Weik on December 18, 2007, informing Weik that additional information regarding permits needed to be provided by January 5, 2007. Weik provided some of the requested information on January 8, 2007.
On January 9, 2007, Weik went before the City Council regarding the permit renewal. Weik claimed that the staging area was up in the air, but that he was just seeking renewal of the permit at that time; Weik did not inform the City Council that he was willing to stage from his corral area. The minutes indicate that the City Council and Weik discussed zoning issues and Weik's complaints regarding the safety of staging areas. Weik informed the City Council that he would obtain insurance only if his permit was renewed. The City Council requested Weik return when he had a complete package and had a place to stage the horses. The minutes from that Council meeting state:
City Attorney Mr. Bays advised the City Council:
[I]n essence because we are still in the discussion phase, the City is only being asked to approve a permit for being able to ride the horses within the city limits. If the entity is violating a zoning ordinance then there are other avenues that we can get that enforced. It is not something we have to necessarily decide tonight on whether or not we are going to approve or disapprove the permit that he is requesting. Furthermore, in order to disapprove the permit that is already in use right now, I realize that it is only a one (1) year permit, but the City is going to have to have a good faith basis for disapproving a business permit that they previously have already approved. The good faith basis could be the health, safety and welfare of the citizens of Tombstone or tourist, but not necessarily because he is violating a zoning ordinance that can be enforced through some other action.
DSOF, Ex. 11, p. 5. No member of the City Council moved to approve the Animal UsePermit renewal for Tombstone Range Riders for the operation of trail rides and the request died for lack of a motion.
Defendants assert that the City Attorney has indicated that additional information (including home addresses, proof of insurance, staging area, names and information regarding wranglers, Weik's driver's license number, and $100 deposit per animal) was not provided to the City Council. DSOF, Ex. 27. However, the minutes of the January 9, 2007, City Council meeting indicate that City Clerk George Burns stated that "Mr. Weik has provided the information that we requested such as driver's license, certifications, the owners of the businesses, and will provide a copy of the certificate of insurance upon approval because it is not refundable." DSOF, Ex. 11, p. 2. Defendants point out that Weik never had a valid driver's license during this time although it is a requirement of the permit.
Weik did not return to the City Council with a proposed staging area and did not address questions from the City Attorney regarding the permit application.
Plaintiffs' insurance expired on January 20, 2007. Pursuant to the City Code, the permit was immediately deemed cancelled when the insurance expired.
Plaintiffs asserts that the City of Tombstone never sent Plaintiffs a Letter of Denial.7
The trail ride business was dissolved on January 24, 2007. No citation for any violation of safety or city codes was ever issued to Weik, Norby, the Tombstone Range Rider business, or the Tombstone Range Rider wranglers.
Defendants assert that, on May 16, 2006, Harvey Kitchel ("Kitchel") contacted theMarshal's office and Smith began conducting a fraud investigation regarding Weik.8Although Plaintiffs point out that Smith, during his deposition, did not provide a date when Kitchel contacted him, Smith's incident report indicates that Kitchel contacted Smith on May 16, 2006. See DSOF, Ex. 20.
Defendants assert that Mike Fike ("Fike"), one of Plaintiffs' customers, stated that Weik had threatened him on May 19, 2006. Plaintiffs point out that, in the letter Fike sent to the Tombstone Chamber of Commerce, Fike did not state that Weik threatened him.
Smith investigated the incident. At one point, Smith contacted Weik at the Tombstone Range Works and General Store. According to Smith's incident report, Weik permitted Smith to review the rental agreement between Tucson Range Riders and Fike. Plaintiffs assert that Smith told Weik he was going to take the Fike liability waivers and see about getting Plaintiffs' permit pulled. Defendants assert that, when Smith told Weik that it would be in everyone's best interest for Weik to return Fike's rental fee, Weik stated that he would talk with his attorney first and left the store. Smith took possession of the waivers; Defendants assert this was done without objection from Norby.
Smith's incident report indicates that Weik returned shortly and indicated that his attorney agreed that it would probably be best to refund the money. See DSOF, Ex. 20. Plaintiffs assert the attorney returned with Weik and the attorney spoke with Smith. Plaintiffs assert Weik discovered that Smith had taken the waivers without authorization. Weik's attorney arranged for the return of the waivers from Smith. PSSOF, Ex. 76, p. 238. During his deposition, Smith stated that he took the waivers without asking permission.PSSOF, Ex. 76, p. 236-37.
Smith...
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