Recreational Developments of Phoenix v. Phoenix

• Decision Date: 29 August 2002
• Docket Number: No. CIV.99-0018-PHX-ROS.,CIV.99-0018-PHX-ROS.
• Citation: 220 F.Supp.2d 1054
• Parties: RECREATIONAL DEVELOPMENTS OF PHOENIX, INC., et al., Plaintiffs, v. CITY OF PHOENIX, Defendant.
• Court: U.S. District Court — District of Arizona

220 F.Supp.2d 1054

RECREATIONAL DEVELOPMENTS OF PHOENIX, INC., et al., Plaintiffs, v. CITY OF PHOENIX, Defendant.

No. CIV.99-0018-PHX-ROS.

United States District Court, D. Arizona.

August 29, 2002.

Christopher Reed Kaup, Tiffany & Bosco PA, Nicholas Simon Hentoff, Hentoff Law Office, Richard L. Brooks, Richard L. Brooks PC, Phoenix, AZ, for plaintiffs.

John Van Brunschot, Mesa, AZ, pro se.

Ruth Van Brunschot, Mesa, AZ, pro se.

James Harden Hays, City of Phoenix Prosecutor's Office, Phoenix, AZ, for defendant.

ORDER

SILVER, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. # 126) filed August 21, 2001. On March 13, 2002, Plaintiffs filed a Response (Doc. # 144), and Defendant filed a Reply (Doc. # 153) on March 20, 2002. Also pending are Defendant's Motion to Strike and Objection to Plaintiffs' Statement of Facts (Doc. # 148) filed March 20, 2002; and Defendant's Motion to Submit Supplemental Affidavit (Doc. # 149) filed March 20, 2002.¹ Plaintiffs filed a Response (Doc. # 154) to Defendant's Motion to Strike on April 8, 2002, and Defendant filed a Reply (Doc. # 156) on April 18, 2002.²

Background

On January 6, 1999, Plaintiffs³ applied for a temporary restraining order and preliminary injunction to prevent an ordinance passed by the Phoenix City Council from taking effect. Section 23-54 of the Phoenix City Code ("Ordinance") was enacted on December 9, 1998 and provides that "[t]he operation of a business for purposes of providing the opportunity to engage in, or the opportunity to view, live sex acts is declared to be a disorderly house and a public nuisance per se which should be prohibited." Phoenix, AZ, Code § 23-54 (1998). The Court denied Plaintiffs' application for a temporary restraining order on January 7, 1999 and set a hearing to address Plaintiffs' request for a preliminary injunction and Defendants' Motion to Dismiss filed January 7, 1999. On August 23, 1999, the Court denied Plaintiffs' request for a preliminary injunction and granted in part Defendant's Motion to Dismiss. See Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072 (1999). Of Plaintiffs' original ten causes of action,⁴ four claims remain: (1) violation of Plaintiffs' freedom of expression under the First Amendment; (2) violation of Plaintiffs' freedom of expressive association under the First Amendment; (3) violation of Plaintiff's right to privacy under the Fourteenth Amendment; and (4) violation of Plaintiffs' Fifth Amendment right against a regulatory taking without just compensation.

Discussion

I. Motion to Strike

Defendant asks the Court to strike the following: (1) the affidavits of Milo J. Fencl (Ex. 13), Frank Magarelli (Ex. 14), and Billie Markus (Ex. 15); (2) an article that appeared in the New Times (Ex. A); (3) the expert reports of Dr. Norman A. Scherzer and Terry Gould; and (4) approximately seventy of Plaintiffs' eighty-four statements of fact.

A. Affidavits

In support of their Response to Defendant's Motion for Summary Judgment, Plaintiffs have submitted the affidavits of the owners of Club Chameleon (Fencl), Encounters (Magarelli), and Guys and Dolls (Markus). Defendant contends, first, that the affidavits were not timely disclosed and should be stricken. In addition, Defendant objects substantively to most of the averments in the virtually identical affidavits. According to Defendant, the challenged averments lack foundation, are vague, and/or constitute inadmissible hearsay. For their part, Plaintiffs contend that the affidavits are based on the owners' personal knowledge and first-hand observations as club owners.

Rule 56 of the Federal Rules of Civil Procedure sets forth the criteria for affidavits submitted to support or oppose a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Fed.R.Civ.P. 56(e). Under some circumstances, the personal knowledge and competency requirements may be inferred from the affidavit itself. See Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir.1990) (finding individuals' personal knowledge and competence to testify to circumstances of negotiations could be reasonably inferred from their positions and participation in the negotiations).

Contrary to Plaintiffs' contention, the circumstances here do not warrant the inference that the club owners possess the personal knowledge to testify to all of the statements in their affidavits. For example, the owners aver that:

the majority of members who engage in sexual activity at the Club take the time to know and question each other regarding STDs [sexually transmitted diseases] and safer sex practices. Because the majority of Club members are partners in long-term committed relationships, they are concerned about the health of each other and do not engage in reckless sexual behavior[.]

(Fencl. Aff. ¶ 4; Magarelli Aff. ¶ 4; Markus Aff. ¶ 3). Apart from their status as club owners, the affiants provide no factual basis for their specific assertions about individual members' "concerns" and scrupulous avoidance of reckless sexual behavior. Indeed, according to Plaintiffs' expert, Club Chameleon has 27,000 members, Encounters has 9,000, and Guys and Dolls has 7,000. (Gould Report at 12-13). Under these circumstances, the affiants have not provided a sufficient basis for the inference that they have personal knowledge of the practices and concerns of thousands of individual club members.⁵ Accordingly, the Court will strike paragraphs 4, 7 (second sentence), 10, 15 (second half), and 16, for which the affiants have not satisfied the personal knowledge requirement.⁶ In the Markus Affidavit, paragraphs 11 and 14 are also stricken because they are, by the affiant's own account, not based on her personal knowledge. (See ¶¶ 11, 14 (prefacing averments with "It is my understanding that . . .")).

B. New Times Article

Plaintiffs have submitted an article that appeared in the New Times ("Article") in support of their contention that Defendant lacks a legitimate justification for enacting the Ordinance. According to Plaintiffs, "[t]he fact that Defendant's real goals in passing and enforcing [the Ordinance] is [sic] not to stop the spread of STDs is made manifest by their total failure to proceed against similar establishments catering to the homosexual community which pose a far greater public health concern." (Pls.' Resp. to Def.'s Mot. Summ. J. at 24). The Article purports to compare a gay men's club, where the author observed high-risk sex, to Plaintiffs' clubs, where the author observed "far more people . . . talking and dancing than having sex," few of whom were having sex in public, and those who were "arrived and left together." (Pls.' SOF ¶¶ 62, 63). The Article also includes statements allegedly made to the author by James Hays, attorney for Defendant. These "admissions," according to Plaintiffs, show that "Defendant's purported goal in passing [the Ordinance] is not only conjectural, but also is a pretextual ad hoc justification." (Pls.' Resp. to Def.'s Mot. Strike at 12).

Defendant contends that the Article should be stricken because it lacks relevance and foundation and because it includes inadmissible hearsay.⁷ According to Defendant, "[t]he ability of [P]laintiffs to identify other businesses that might also be creating a public health risk, such as gay bath houses, does not advance their argument." (Def.'s Reply to Pls.' Resp. to Mot. Summ. J. at 13). "The City is not required to proceed against all potential criminal defendants pursuant to a timetable that pleases [P]laintiffs." (Id.). With respect to Mr. Hays's remarks, Defendant argues that they "can only be admissions if [P]laintiffs can prove that the statements meet the requirement of the rule, which they have not done." (Def.'s Reply to Pls.' Resp. to Def.'s Mot. Strike at 9).

"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. With respect to party admissions, such statements are not hearsay and may be admissible against the party making the statements. See Fed.R.Evid. 801(d)(2) (establishing that statements offered against a party made in either individual or authorized representative capacity are not hearsay); see also Gilbrook v. City of Westminster, 177 F.3d 839, 859 (9th Cir.1999) (affirming admissibility of admission by party opponent to show retaliatory motive).

Plaintiffs have not established that the Article is relevant to any fact of consequence at issue in this case. Although Plaintiffs contend that the Article demonstrates that the STD justification for the Ordinance is a pretext, nothing in the Article tends to support their position. First, as Defendant notes, it is not required to proceed against all offending businesses at once. See Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ("[R]eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind."). Thus, whether other high-risk sexually-oriented businesses have been targeted for enforcement sheds no light on Defendant's justification for targeting the public health threat that Plaintiffs' businesses allegedly represent.

In addition, the remarks attributed to Mr. Hays in the Article do not tend to show that the STD justification is a pretext. According to the Article (and the author's affidavit), Mr. Hays acknowledged the existence of the gay men's clubs; noted that the City had not received the type of specific complaints that generally trigger enforcement; and observed that enforcement against gay-oriented clubs is complicated...