Ppc Enterprises, Inc. v. Texas City, Tex., Civ.A. G-99-368.

• Decision Date: 01 December 1999
• Docket Number: No. Civ.A. G-99-368.,Civ.A. G-99-368.
• Citation: 76 F.Supp.2d 750
• Parties: PPC ENTERPRISES, INC., Johnnie Pate, Johnny Johnson, Michael Zellner, Thomas Rice, Nicholas Martins, Sue Smith, and Dan Baldwin, Plaintiffs, v. TEXAS CITY, TEXAS and League City, Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

76 F.Supp.2d 750

PPC ENTERPRISES, INC., Johnnie Pate, Johnny Johnson, Michael Zellner, Thomas Rice, Nicholas Martins, Sue Smith, and Dan Baldwin, Plaintiffs, v. TEXAS CITY, TEXAS and League City, Texas, Defendants.

No. Civ.A. G-99-368.

United States District Court, S.D. Texas, Galveston Division.

December 1, 1999.

COPYRIGHT MATERIAL OMITTED

Lauren Margaret Serper, Attorney at Law, Houston, TX, for PPC Enterprises, Incorporated, Johnnie Rate, Johnny Johnson, Michael Zellner, Thomas Rice, Nicholas Martins, Sue Smith, Dan Baldwin, plaintiffs.

John Edward Eckel, Mills Shirley et al., Galveston, TX, Carla Jean Cotropia, Mills Shirley et al, Houston, TX, for Texas City, Texas, defendant.

William R. Pilat, Davis and Shank, Houston, TX, for League City, Texas, defendant.

ORDER GRANTING DEFENDANT LEAGUE CITY'S MOTION FOR SUMMARY JUDGMENT

KENT, District Judge.

Plaintiffs bring this action against Defendants Texas City, Texas ("Texas City") and League City, Texas ("League City") alleging violations of due process and equal protection under the Fourteenth Amendment of the United States Constitution. Plaintiffs also have introduced a pendent state claim regarding the enforceability of League City's Ordinance No. 99-26. Now before the Court is Defendant League City's Motion for Summary Judgment, filed October 28, 1999. For the reasons stated below, the Motion for Summary Judgment is GRANTED.

I. FACTUAL SUMMARY

Plaintiffs either participate in the distribution and sale of fireworks, or they own land that is leased to merchants that operate roadside fireworks stands. In November 1998, the City Council of Texas City adopted an ordinance banning the possession of fireworks within 5000 feet of city limits. On April 27, 1999, the City Council of League City passed similar legislation, labeled Ordinance No. 99-26, which prohibited the manufacture, sale, possession, or use of fireworks "within the area immediately adjacent and contiguous to the city limits extending ... five thousand feet (5000)." Def.'s Memo.Supp.Summ.J.Ex. A at 4. This regulation characterizes the presence of fireworks in such areas as "a common and public nuisance." Id. League City approved Ordinance No. 99-26 pursuant to its home-rule charter that allows the city to exercise all powers that have been or may later be granted to municipalities by the Constitution or the laws of the State of Texas. In this case, Texas law provides that "[t]he governing body of the municipality may ... prohibit or otherwise regulate the use of fireworks and firearms." TEX.LOC. GOV'T CODE ANN. § 342.003(a)(8) (Vernon Supp.1999). Additionally, League City's authority to enforce Ordinance No. 99-26 outside its territorial jurisdiction derives from another Texas statute that enables a home-rule municipality to "define and prohibit any nuisance within the limits of the municipality and within 5,000 feet outside the limits." Id. § 217.042(a). Moreover, Texas law acknowledges that such "municipalit[ies] may enforce all ordinances necessary to prevent and summarily abate and remove a nuisance." Id. § 217.042(b).

After passing its ban on fireworks, League City entered into an interlocal cooperation agreement with Texas City on July 27, 1999, through which Texas City agreed to allow League City to enforce Ordinance No. 99-26 in those portions of Texas City's extra-territorial jurisdiction ("ETJ") that are also located within 5000 feet of League City's city limits. Both the interlocal cooperation agreement and Ordinance No. 99-26 form the basis for Plaintiffs' suit.

Arguing that Ordinance No. 99-26 violates the Due Process and Equal Protection Clauses of the United States Constitution, and that it is impermissibly vague, Plaintiffs filed suit on June 22, 1999 asking this Court to declare both city's ordinances unconstitutional and to grant an injunction to prevent their enforcement.¹ Additionally, during the scheduling conference that took place on November 3, 1999, the Court allowed Plaintiffs to pursue claims based on the Ordinance's alleged noncompliance with Texas state law via summary judgment briefing, without having to amend the original complaint. With this permission, Defendant League City filed a counterclaim for Declaratory Judgment on October 28, 1999 requesting the Court to rule that League City may enforce Ordinance No. 99-26 against Plaintiffs within the ETJ of Texas City, to the extent that the enforcement area falls within 5000 feet of the municipal boundaries of League City.

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are "genuine" only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Dixon v. State Farm Fire & Cas. Co., 799 F.Supp. 691, 693 (S.D.Tex.1992) (noting that summary judgment is inappropriate if the evidence could lead to different factual findings and conclusions). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Procedurally, the party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553; see also FED. R.CIV.P. 56(c). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Wise v. E.I. DuPont de Nemours & Co., 58 F.3d 193, 195 (5th Cir.1995). The Court must accept the evidence of the nonmoving party and draw all justifiable inferences in favor of that party. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56. However, to meet its burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts," but instead, must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87, 106 S.Ct. at 1355-56 (quoting FED.R.CIV.P. 56(e)).

B. Does the Ordinance Violate the Due Process Clause of the Fourteenth Amendment?

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. A violation of substantive due process occurs when the government deprives someone of liberty or property, or when the government works a deprivation of a constitutionally protected interest. Therefore, to state a claim for a violation of substantive due process, Plaintiffs must first prove the deprivation of a constitutionally protected life, liberty, or property interest, and then identify an official action that caused the constitutional deprivation. See Johnson v. Houston Indep. Sch. Dist., 930 F.Supp. 276, 285 (S.D.Tex.1996) (citing Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir.1995)). If Plaintiffs successfully identify a property interest that has been deprived due to an ordinance enacted under the auspices of a municipality's police power, Plaintiffs then carry the burden of proving the ordinance's invalidity. See Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S.Ct. 962, 967, 3 L.Ed.2d 1003 (1959) (holding that an exercise by the state of its police power is presumed to be valid when it is challenged under the Due Process Clause of the Fourteenth Amendment); Price v. City of Junction, 711 F.2d 582, 588 (5th Cir.1983) (finding that under Texas law, a party attacking an ordinance enacted pursuant to a municipality's police powers has the "`extraordinary burden'" to show that "`no conclusive or even controversial or issuable fact or condition existed'" that would authorize passage of the ordinance (quoting City of Brookside Village v. Comeau, 633 S.W.2d 790, 792-93 (Tex.1982))); National Foundation v. City of Fort Worth, 415 F.2d 41, 47 (5th Cir. 1969) (noting that a municipal ordinance challenged as unconstitutionally arbitrary and discriminatory is to be examined "in light of the presumption of validity and reasonableness accorded a municipal ordinance"). To accomplish this, Plaintiffs must negate every conceivable argument that might support the basis for the ordinance, thus demonstrating that the regulation is not rationally related to a legitimate government interest. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130 (1962) (noting that in order for a municipality to exercise police power it must appear that the interests of the public require such interference and that the means used are reasonably necessary for the accomplishment of its purpose without being unduly oppressive upon individuals).

Plaintiffs have failed to allege the deprivation of a constitutionally protected property interest that is not rationally related...