Perkins v. City of St. Paul, CIV. 97-1425 DSD/JMM.
| Citation | 982 F.Supp. 652 |
| Decision Date | 05 November 1997 |
| Docket Number | No. CIV. 97-1425 DSD/JMM.,CIV. 97-1425 DSD/JMM. |
| Parties | Gregg PERKINS, d/b/a St. Paul Firearms Co., a Minnesota Corporation and Individually, Plaintiff, v. CITY OF ST. PAUL, a Municipal Corporation; St. Paul Department of Licensing, Inspections and Environmental Protection; and Robert Kessler, Robert Megard, Mike Harris, Dan Bostrom, and Jerry Blakey, individuals, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Joseph A. Rymanowski, Jr., Rymanowski Law Office, St. Paul, MN, for plaintiff.
Matthew J. Pfohl, St. Paul City Attorney, St. Paul, MN, for defendants.
This matter is before the court on plaintiff's motion for preliminary injunction. Based on a review of the file, record and proceedings herein, the court denies plaintiff's motion.
Plaintiff Gregg Perkins is a resident of St. Paul and is the owner and operator of the St. Paul Firearms Company, a Minnesota corporation doing business at 634 Snelling Avenue in St. Paul. Defendant City of St. Paul (hereafter "City") is a municipal corporation. Defendant Department of Licensing, Inspections and Environmental Protection is a subdivision of the City of St. Paul, and acts as the licensing and inspection branch of the City. Defendants Roberta Megard, Jerry Blakey, Dan Bostrom, and Mike Harris are members of the St. Paul City Council. Defendant Robert Kessler is Director of the aforementioned Department of Licensing, Inspections and Environmental Protection.
In 1956, the City enacted an ordinance requiring operators of retail firearms businesses located within the City to be licensed by the City. The State of Minnesota subsequently enacted Minn.Stat. § 471.633, which preempted local regulation of retail gun sales. In May 1993, however, Minn.Stat. § 471.635 became effective, which permitted municipalities to regulate the location of gun shops via local zoning ordinances, and thus created an exception to state preemption of local regulation of gun shops. On June 28, 1993, the City of St. Paul placed a moratorium on the issuance of all retail gun shop licenses while considering whether to amend its zoning code. This moratorium was replaced on March 15, 1995 with a permanent zoning ordinance prohibiting gun shops within 1,000 feet of certain protected uses. It is within this context of statutory change that this controversy arose.
In February 1993, plaintiff, doing business as the St. Paul Firearms Company, prepared to open as a firearms dealer at the aforementioned location. Plaintiff obtained a federal firearms dealer's license and submitted an application for a Class III St. Paul license to sell firearms. This application was recommended for approval by the Office of License, Inspection and Environmental Protection, but in July 1993, an administrative law judge recommended against plaintiff receiving such a license. Despite the moratorium on the issuance of retail gun shop licenses, in October of that year the St. Paul City Council granted such license to plaintiff.
In December 1993, plaintiff and the City were sued by a group calling themselves the Hamline-Midway Stability Coalition (hereafter "Coalition"), which claimed that plaintiff's license was issued in violation of the City's gun shop license moratorium. Ramsey County District Court Judge James Clark found that the City of St. Paul could not override its moratorium, issued summary judgment for the Coalition, and held plaintiff's licensure unlawful. The City therefore revoked plaintiff's license.2
Plaintiff appealed Judge Clark's decision, but while the matter was pending before the Minnesota Court of Appeals the license expired on October 14, 1994. In April 1995, the Minnesota Court of Appeals overruled Judge Clark's summary judgment order, finding that the state district court lacked jurisdiction to revoke plaintiff's license. When plaintiff sought a new license in April 1995, the City treated his application as a renewal rather than as a new application and issued another license without holding a public hearing on the matter. In October 1995, the Coalition again sued the plaintiff and City, arguing that the license was a new license, not a renewal, and the City had therefore violated rules requiring public hearings whenever any action is taken on a Class III license. In addition, the coalition contended that the license was issued in violation of the City's recently enacted zoning ordinance prohibiting gun shops near protected areas.
In April 1996, the Minnesota Court of Appeals held that plaintiff's application should not have been treated as a renewal and had been improperly issued in violation of the newly-enacted zoning ordinance. In overruling the decision of the St. Paul City Council to grant plaintiff a license, the court ordered that a public hearing be held on any further license applications.
Plaintiff filed his third application for the required license on May 2, 1996. An administrative law judge recommended approval of the application. The City Council, however, denied the license application, and on April 7, 1997, plaintiff received notice of this decision and was ordered to cease and desist the sale of firearms and ammunition.
Plaintiff thereafter filed this action on June 16, 1997, seeking declaratory relief that, among other things, the City's licensing statute is unenforceable against him pursuant to Minn.Stat. § 471.633, and alleging violations of his: (1) substantive and procedural due process rights; (2) equal protection rights; and (3) right to free speech. On September 18, 1997, he moved for the preliminary injunction that is the subject of this proceeding. Plaintiff asks this court to restrain defendants from enforcing the April 7, 1997, cease and desist order, "thereby maintaining the status quo in existence prior to that Order" and allowing him to continue selling firearms until the merits of the case can be decided.
The court considers four factors in determining whether to grant a plaintiff's motion for preliminary injunction:
1. Is there a substantial threat that the movant will suffer irreparable harm if relief is not granted 2. Does the irreparable harm to movant outweigh any potential harm that granting a preliminary injunction may cause the non-moving parties;
3. Is there a substantial probability that the movant will prevail on the merits; and
4. The public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). The court balances the four factors to determine whether a preliminary injunction is warranted. Id. at 113; West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir.1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). The plaintiff bears the burden of proof concerning the four factors. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987).
Plaintiff must first establish that irreparable harm will result without injunctive relief and that such harm will not be compensable by money damages. Possible or speculative harm is not enough. The absence of such a showing alone is sufficient to deny a preliminary injunction. Gelco, 811 F.2d at 420; Roberts v. Van Buren Public Schools, 731 F.2d 523, 526 (8th Cir.1984).
Plaintiff proffers many reasons why he and his business will suffer irreparable harm if the court does not grant a preliminary injunction. He contends that (1) because the City is ordering him to close he will lose the business income and profits derived from the sale of weapons; (2) the only place he can sell firearms is at 634 Snelling Avenue and the City is therefore denying him the use and enjoyment of his federal firearms license; (3) he will be left with inventory he cannot sell; and (4) he cannot sustain this suit without his business, as he has no other source of income. See Mem. in Supp. of Pl.'s Mot. for Prelim. Inj. (Docket No. 9) at 9-10. None of these reasons, however, is convincing.
Plaintiff's first argument is that because the City is ordering him to close he will lose the business income and profits he would have derived and could continue to derive from the sale of firearms. This argument belies the fact that plaintiff does not currently have a license to sell firearms. While lost profits may be a basis for finding irreparable harm if difficult to estimate, here the court need not address this argument because plaintiff's business is not "up and running"; instead, plaintiff is waiting for a license to enable him to commence business. Without a license, plaintiff cannot claim lost profits. Even if the court were to consider the lost profits argument, plaintiff has failed to show how money damages awarded after a trial would be inadequate to compensate him for any losses. In this case, such money damages are not too speculative where plaintiff's past records can be analyzed in making an accurate estimate.
While plaintiff cites Illinois Sporting Goods Ass'n v. County of Cook, 845 F.Supp. 582 (N.D.Ill.1994) for the proposition that injunctive relief is appropriate in this case, the court finds that case inapposite. In that case, the businesses involved were already licensed and operating when the motion for injunctive relief was sought. Here, however, as already discussed, plaintiff does not have a valid license, so it cannot be said that there is an imminent risk of loss of customers or goodwill.
Similarly, none of the three remaining arguments of the plaintiff are sufficient to show irreparable harm. As plaintiff's counsel admitted at oral argument, a federal firearms license can be used at a number of locations if certain procedural steps are taken. Even if such license was valid at only one location, the court has serious doubts about whether the inability to use a federal firearms license while awaiting a resolution on the merits constitutes irreparable harm. As for plaintiff's argument that he has unsold inventory, the court...
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