Rk Ventures, Inc. v. City of Seattle, 99-35128.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFisher
Citation307 F.3d 1045
PartiesRK VENTURES, INC., dba Celebrity Italian Kitchen dba The Mezzanine; Keith Olson; Ronald Santi, individually and as officers, directors and shareholders, Plaintiffs-Appellants, v. CITY OF SEATTLE; Mark Sidran; Joe Parks, Sgt.; Christine Robbin, Officer, (nee Batdorf); Tina Bueche, Defendants-Appellees.
Docket NumberNo. 99-35128.,99-35128.
Decision Date07 October 2002
307 F.3d 1045
RK VENTURES, INC., dba Celebrity Italian Kitchen dba The Mezzanine; Keith Olson; Ronald Santi, individually and as officers, directors and shareholders, Plaintiffs-Appellants,
CITY OF SEATTLE; Mark Sidran; Joe Parks, Sgt.; Christine Robbin, Officer, (nee Batdorf); Tina Bueche, Defendants-Appellees.
No. 99-35128.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 8, 2000.
Withdrawn November 16, 2001.
Resubmitted June 17, 2002.
Filed October 7, 2002.

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Bradley H. Bagshaw, Helsell Fetterman LLP, Seattle, Washington and David R. Osgood, Seattle, WA, for plaintiffs-appellants.

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Robert L. Christie, Johnson Martens Christie Andrews & Skinner, P.S., Seattle, WA, for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief Judge, Presiding. D.C. No. CV-97-01795-R.

Before: B. FLETCHER and FISHER, Circuit Judges, and SCHWARZER, District Judge.*

FISHER, Circuit Judge.

Appellants are the owners of a former Seattle nightclub known at one time as the Celebrity. Beginning in about 1990, appellants allege, the City of Seattle ("the City") pursued a campaign designed to stop downtown Seattle nightclubs from playing rap and hip-hop music because the music attracted African Americans and crime to the area. They allege that the City's efforts, while ostensibly directed at crime control, in fact were racially motivated, in violation of the equal protection rights of appellants and their former patrons. They further allege the City's efforts violated their First Amendment rights by impermissibly discriminating against a particular musical viewpoint. At the center of their claims stands a public nuisance abatement ordinance enacted by the City in 1992. Appellants contend that the City enforced the ordinance against them because of their choice of music and the race of their clientele, in violation of the Equal Protection Clause and First Amendment, eventually forcing appellants to sell the club at a "fire sale" price. They also contend that the ordinance is unconstitutionally vague and overly broad, in violation of the Due Process Clause of the Fourteenth Amendment. Appellants have brought federal law claims under 42 U.S.C. §§ 1983, 1985 and 1986 and have asserted a variety of state law claims.

The district court granted summary judgment against appellants as to their federal law claims and declined to exercise jurisdiction over their state law claims. The court concluded that only one allegedly discriminatory act occurred within the three-year statute of limitations period and determined that this single act could not, as a matter of law, constitute a constitutional violation. We disagree. We hold that the district court correctly ruled that acts falling outside of the limitations period are time barred. In light of National Railroad Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), we reject appellants' attempts to render older conduct on the part of the City actionable under the continuing violations doctrine. We hold that appellants have alleged one discrete act occurring within the limitations period — the decision by the City to withdraw its offer to settle its abatement action against appellants. In determining whether the City's conduct falling within the limitations period raised a triable issue, the district court erred in analyzing such conduct without considering any of the background evidence in the record. The court should have considered the City's time-barred acts against appellants, as well as the City's similar acts against other clubs, as evidence that the conduct falling within the limitations period had an unconstitutional purpose. Because appellants have created a genuine issue of material fact as to whether the City discriminated on account of viewpoint or race, we reverse. We hold, however, that appellants do not have standing to assert claims on behalf of their former patrons or to obtain declaratory relief and

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that appellants' claims under § 1986 are time barred. Finally, we remand the question of appellants' standing under § 1985 for factual development.


Ronald Santi and Keith Olson are the owners of RK Ventures, Inc., through which they owned the Celebrity Italian Kitchen ("the Celebrity"), a restaurant and nightclub that operated in downtown Seattle's Pioneer Square area from 1985 to 1994. On certain nights of the week, the Celebrity featured rap and hip-hop music, which attracted a predominantly African-American audience.2

I. Pre-Limitations Period Events

In September 1992, the City enacted a public nuisance abatement ordinance ("the Ordinance") ostensibly aimed at addressing "the pervasive problems of increased violence, noise, public drunkenness, drug-trafficking and other illegal activity." The Ordinance allows the City to institute abatement proceedings against property owners and businesses that it determines constitute a public nuisance. It also establishes a voluntary procedure through which a business may cooperate with the Seattle Police Department to rectify any nuisance problems the business causes. In addition, should the City decide the problems remain uncorrected, the Ordinance provides that the City may commence a formal abatement action, which includes a hearing before an independent examiner, whose decision is appealable to the superior court.

Appellants allege that a set of handwritten notes taken by Seattle City Councilwoman Margaret Pageler contemporaneous with the Ordinance's enactment explain the City's purpose in passing the Ordinance. In addressing the "after-hours problems" at clubs, Pageler wrote, "You can control the kind of people that come in — By music you play" and "By people you let in." She wrote, "Hip-hop nights attract a boom-box crowd," and "Club patrons are not residents of the area." "Black gangs hanging out are the problem," she noted. She also identified "Pinpoint abatement" as a solution to the problems and noted that the "After hours club issue is a small part of the problem of safety in neighborhood." Appellants also point to the statements of Seattle's then-city attorney, Mark Sidran, who told a local newspaper:

There is a relationship between a [music] format that draws young African-American males and gunfire and violence on the streets. This music format in late-night, after-hours clubs is associated with criminal acts inside and outside the club. There are other clubs that have this music format where they've had this problem — violence, shootings, disorderly behavior. The bottom line is, race is not a refuge for criminal behavior. We have not said "change the music format." But we have pointed out the obvious problems

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with it.... The fact is the clientele that these clubs draw engage in this type of behavior. They either have to control their clientele or change it.

Appellants contend the enactment of the Ordinance and its subsequent enforcement against them were part of a City campaign waged against clubs playing rap music and attracting young African-American males to downtown Seattle that started as early as 1990. In January 1990, an internal Seattle Police Department memorandum identified problems of "increased assaults, gang activity, and narcotics activity" located in the parking lot kitty-corner to the Hollywood Underground nightclub. Because the nightclub was open late "and has a Rap music format on weekends, it has become the nightclub of choice for gang members and rowdy youths." The memorandum identified several "non-traditional" and "traditional" "solutions" to the problems, including voluntary early closure, voluntary change in the music format to "draw[ ] a more varied crowd," working with the Liquor Board to suspend late night dance and music licenses, increasing the presence of the police and, if "the owner proves to be less than helpful, the Liquor Board and the Fire and Health Departments will be utilized" to pursue a code violations strategy. Another "nontraditional" method identified by the police was to "[c]oordinate and organize community group input about the situation to the outside agencies, i.e., Liquor Control Board, City Department of Licensing and Consumer Affairs."

After the Hollywood Underground closed, an establishment named Jersey's All-American Sports Bar began playing rap music on weekend nights. In early 1992, two Seattle police officers approached the owner of the club and told him that his business would be closed through drug abatement, eviction, revocation of its liquor license or revocation of its health permit if he did not change his clientele, stating that his African-American patrons belonged in the Tacoma or Seattle Central District, but not in downtown Seattle. The City convinced the Liquor Control Board to alter the All-American's license, forcing the club to change its music format.

In mid-1992, the City turned its attention on the Belltown club, which had begun using a "Rhythm and Blues" music format on weekend nights. "The Belltown problem[then] apparently moved down to Celebritys [sic] on Sunday nights." The Celebrity had begun using a rap music format on Sunday nights. Citing "a dramatic negative impact on neighboring community and police resources" and hundreds of 911 calls involving the club, the City in April 1993 moved to have the club's liquor license revoked. The City also made frequent fire inspections of the club, videotaped the club, provided off-duty police officers to other clubs but denied such assistance to Celebrity, made undercover drug buys at the club and performed criminal background checks on the club's owners.

The City also targeted another establishment, Pier 70, that was "trying to attract the [Sunday night] customers from...

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