R.S.S.W., Inc. v. City of Keego Harbor
| Decision Date | 28 June 1999 |
| Docket Number | Civil Action No. 98-40377. |
| Citation | 56 F.Supp.2d 798 |
| Parties | R.S.S.W., INC., d/b/a Goose Island Brewery, and Richard Skinner, Plaintiffs, v. CITY OF KEEGO HARBOR, Michael Steklac, Jack Beach, Ralph Behler, Robert Burns, Arthur Nance, and David Hofmann, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
On October 1, 1998, plaintiffs R.S.S.W., Inc., d/b/a Goose Island Brewery and Richard Skinner filed a motion for reconsideration of the Honorable Horace W. Gilmore's September 16, 1998 memorandum opinion and order granting in part and denying in part defendants' motion to dismiss. See R.S.S.W., Inc. v. City of Keego Harbor, 18 F.Supp.2d 738 (E.D.Mich.1998) (Gilmore, J.). On October 6, 1998, plaintiffs filed a corrected motion for reconsideration. The above-captioned case was reassigned to this Court on November 2, 1998. Pursuant to an order issued April 9, 1999, defendants filed a response to plaintiffs' corrected motion for reconsideration on April 19, 1999. On the same date, plaintiffs submitted a supplemental brief regarding the issue of legislative immunity in support of their motion for reconsideration. The supplemental brief is accompanied by Exhibits A through O.
For the reasons set forth below, the Court will deny plaintiffs' corrected motion for reconsideration of Judge Gilmore's September 16, 1998 memorandum opinion and order granting in part and denying in part defendants' motion to dismiss.
Pursuant to Local Rule 7.1(g)(3) (E.D.Mich. Sept. 8, 1998), the Court will not grant a motion for reconsideration unless "[t]he movant ... not only demonstrate[s] a palpable defect by which the court and the parties have been misled but also show[s] that correcting the defect will result in a different disposition of the case." Id. A motion for reconsideration which merely presents "the same issues ruled upon by the court, either expressly or by reasonable implication," shall be denied. Id.
The following recitation of facts is taken from Judge Gilmore's memorandum opinion and order entered September 16, 1998. See R.S.S.W., 18 F.Supp.2d at 741-43.
Plaintiff R.S.S.W., Inc. owns a "brew-pub" known as "Goose Island," located in Keego Harbor, Michigan. When Goose Island opened for business in 1995, it acquired a Class "C" liquor license from the predecessor establishment. It then applied for and was granted its own licenses. On October 30, 1995, the establishment was granted the following licenses: (i) a class "C" liquor license; (ii) a Sunday sales permit; (iii) an "official" (food) permit; (iv) a dance permit; and (v) an "SDM" license. Approximately seventeen months later, on March 25, 1997, Goose Island was also granted its "brewpub" license. Under state law, all such licenses must be renewed each year as of May 1st. Goose Island's licenses have been renewed each year since 1995 and are currently in full force and effect.
Since its opening, Goose Island has served food and alcohol until 2:00 a.m. Plaintiffs, however, allege that defendants, in an effort to promote Keego Harbor as a family-oriented summer recreational destination, have impermissibly pressured Goose Island to set a closing time of 11:00 p.m. According to plaintiffs, defendants have no authority to require an earlier closing time, and have instead allegedly set out on an unlawful campaign of harassment intended to force Goose Island into submission.
Plaintiffs further allege that the purported campaign of harassment was comprised of four components: (1) "inordinate police scrutiny," allegedly resulting in diminution of business from $91,000 in January 1997 to $31,000 in January 1998; (2) enactment of a city liquor license ordinance listing the criteria upon which the City will recommend non-renewal or revocation of a liquor license to the Michigan Liquor Control Commission (MLCC); (3) abuse of the City zoning authority; and (4) lodging an unjustified complaint with the MLCC regarding a customer incident.
Goose Island closed its doors to business on February 7, 1998, after the original complaint in the instant case was filed on February 4, 1998. Plaintiffs have since placed Goose Island up for sale, claiming that this was necessitated by poor business performance due to defendants' campaign of harassment. Plaintiffs report that they have received no offers to purchase the brewpub and that they "plan to re-open [the brew-pub] on the notion that the pressure has now relented."
Plaintiffs make three principal objections to Judge Gilmore's September 16, 1998 memorandum opinion and order. First, plaintiffs argue that the court erred in dismissing individual defendants Behler, Burns, Nance, and Hofmann from the case on the basis of absolute legislative immunity. Second, plaintiffs maintain that the court erred in dismissing plaintiffs' First Amendment claim as to the sign ordinance. Third, and finally, plaintiffs contend that the court erred in dismissing plaintiffs' Fourteenth Amendment equal protection claim and in finding that plaintiffs lacked jus tertii standing to bring this claim on behalf of plaintiffs' customers and employees.1 Each of these three objections will be addressed hereinbelow seriatim.
In the prior memorandum opinion and order, the court held that certain individual defendants — Behler, Burns, Nance, and Hofmann — were protected under the doctrine of absolute legislative immunity. See R.S.S.W., 18 F.Supp.2d at 748-49. These defendants are members of defendant Keego Harbor's city council. In reaching the conclusion that these defendants are entitled to legislative immunity, the court reasoned as follows:
each City Council Member is alleged only to have participated in the passage of various ordinances. No allegations are made as to the conduct of any single member. Clearly, the acts Plaintiffs complain of are ultimately legislative acts and each City Council Member is entitled to legislative immunity. Plaintiffs cannot avoid this result by raising vague allegations that those legislative acts were a mere "formalization" of non-legislative back-room discussions. Such claims, unaccompanied by specific allegations regarding any one person, have been flatly rejected by the Sixth Circuit.
Id. at 749 (citing Veney v. Hogan, 70 F.3d 917, 922 (6th Cir.1995)). By contrast, the court held that individual defendants Steklac and Beach, unlike the city council members, were not entitled to immunity. With respect to these defendants, the court found that plaintiffs had alleged specific facts, which, if true, would constitute "violations of the clearly established right to pursue one's chosen occupation." Id. at 750.
Plaintiffs maintain that they are now able to show that council members committed acts outside their legislative duties resulting in the imposition of "unconstitutional conditions," and, therefore, these defendants should not be entitled to legislative immunity. Plaintiffs first point to a special city council meeting held April 30, 1997 and attended by defendants Behler, Burns, Nance, and Hofmann. Also in attendance were defendant City Manager Michael Steklac, City Attorney Thomas Ryan, and Gino Santiia, a planning commission member. Plaintiffs argue that "they used the influence of their official positions on matters which would properly be before the Planning Commission and the Zoning Board of Appeals acting in concert to impose an unconstitutional condition on the operation of Plaintiff's business." Plaintiffs' Corrected Motion for Reconsideration, p. 2.
In response, defendants argue that plaintiffs' reliance on the April 30, 1997 special city council meeting does not establish that council members did anything outside of their legislative capacity. This Court agrees. As the minutes to the special meeting demonstrate, the council members debated the propriety of approving the Goose Island site plan which "would constitute an expansion of a nonconforming use" of the property in question.2 See Minutes, p. 3, attached as Exh. 1 to Plaintiff's Motion for Reconsideration. The Court finds that at the special meeting council members were engaged in the proper legislative activity of considering potential problems in their community which might have had an impact upon community welfare. As such, these defendants remain protected by absolute legislative immunity.
Plaintiffs next argue that defendant Hofmann "personally appeared in his individual capacity before the Planning Commission on March 6, 1997, April 14, 1997, and May 1, 1997, specifically advocating against Plaintiff in conformity with the agreed upon plan to harass the business and impose unconstitutional conditions." See Plaintiffs' Corrected Motion for Reconsideration, pp. 2-3.3 Responding to plaintiffs' allegations regarding defendant Hofmann's attendance at the planning commission meetings, defendants argue that plaintiffs have failed to show that such appearances defeat the application of legislative immunity in the case at bar. Defendants further argue that a local legislative official does not give up his rights as a citizen upon taking public office and that an official does not lose the benefit of legislative immunity merely because...
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R.S.W.W., Inc. v. City of Keego Harbor
...violates the First Amendment. R.S.S.W., Inc. v. City of Keego Harbor, 18 F.Supp.2d 738, 744 (E.D.Mich.1998), recon. denied, 56 F.Supp.2d 798 (E.D.Mich.1999)3. On the Defendants' Motion to Dismiss the Complaint, the district court dismissed the challenge to the Sign Ordinance. The district c......
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York v. Town of Limington, Maine, Civil No. 03-99-P-H (D. Me. 1/22/2004)
...harmed to warrant litigation. An insufficient showing is made to justify jus tertii standing. See, e.g., R.S.S.W., Inc. v. City of Keego Harbor, 56 F. Supp.2d 798, 806 (E.D. Mich. 1999) (for purposes of jus tertii analysis, "[c]ourts have required either that the allegedly injured third-par......