T Backs Club, Inc. v. Seaton
| Decision Date | 05 January 2000 |
| Docket Number | No. Civ.A. 99-D-1140-S.,Civ.A. 99-D-1140-S. |
| Citation | 84 F.Supp.2d 1317 |
| Parties | T BACKS CLUB, INC., et al., Plaintiffs, v. Jimmy SEATON, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
J. David Robinson, Daleville, AL, for plaintiff.
Henry B. Steagall, III, Ozark, AL, for defendant.
DE MENT, District Judge.
Before the court is Plaintiffs' Motion To Reconsider Denial Of Preliminary Injunction ("Mot.") and Plaintiffs' Memorandum Brief In Support Of Motion To Reconsider Denial Of Preliminary Injunction ("Pl.s' Br."), both filed November 5, 1999. On November 17, 1999, Defendants filed a Brief In Opposition To Plaintiffs' Motion To Reconsider ("Def.s' Br."). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiffs' Motion is due to be denied.
The court properly exercises subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331 because this is a civil action arising under the Constitution of the United States. Additionally, the court has original subject matter jurisdiction over this matter, pursuant to 28 U.S.C. § 1343(a)(3) because this is an action to redress the alleged deprivation of federal constitutional rights under color of state statute and city ordinance. The Parties do not contest personal jurisdiction or venue.
A district court may grant injunctive relief if the movant shows the following: (1) a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs the threatened harm the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998) (citing All Care Nursing Serv., Inc. v. Bethesda Memorial Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.1989). "In this Circuit, `[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion' as to the [aforementioned] four requisites." McDonald's Corp., 147 F.3d at 1306 (citations omitted); see also Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.1994) () (quoting Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir.1992)). "The grant or denial of a preliminary injunction is a decision within the sound discretion of the district court." Sierra Club v. Georgia Power Co., 180 F.3d 1309, 1310 (11th Cir.1999) (citing United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983).
The Parties have stipulated to the following facts:1
1. Plaintiff T-Backs ("T-Backs") is a nightclub/lounge with a Daleville restaurant license and a retail liquor license issued by the State of Alabama. T-Backs is located within the municipal limits of the City of Daleville and is an Alabama corporation which is operated by Plaintiff Paul B. Connolly ("Connolly").
2. Since June 16, 1996, T-Backs operated as a nightclub/lounge that offered erotic dancers wearing G-strings and breast coverings, but without topless or nude dancing, under Daleville business license No. 19990366 which was issued November 2, 1998. The address of the stated business is 794 Highway 84 East, Post Office Box 597, Daleville, Alabama.
3. On June 18, 1999, Connolly, on behalf of T-Backs erected a common wall to divide the nightclub/lounge into two sections. Both sections have separate addresses, and entrances. Connolly continued the operation of T-Backs with the sale of food and alcohol, but named the new section "Fantasies" and discontinued the sale of alcohol therein. Connolly then obtained a separate address (through E911 director Major Goodway) for Fantasies and applied to the City of Daleville for a separate business license.
4. On June 18, 1999, Connolly approached the Administrative Clerk for the City of Daleville and advised her that he was opening a new business named "Fantasies," wherein he would not serve alcohol, but would serve prepackaged food. Connolly signed an application for T-Backs Club, Inc., D.B.A. Fantasies. Based on this discussion, the City issued a restaurant license to Connolly for Fantasies under separate Business License No. 19990561 ("Fantasies' license") on June 21, 1999.
5. Daleville's ordinance requires that a restaurant license application be accompanied by a health permit. At the time of the application for the Fantasies business license, no health department permit was presented to the Administrative Clerk because it was believed by the parties that no permit was necessary because the sale of food was strictly limited to "pre-packaged food." The Administrative Clerk was not informed that topless or nude dancing would take place in Fantasies.
6. After the issuance of the Fantasies business license, topless and totally nude female dancing began being performed. Alcohol continued to be served at T-Backs, but no alcohol was served in Fantasies. Nonalcoholic drinks were mixed, blended and dispensed in Fantasies along with ice, which was scooped from an ice chest.
7. T-Backs customers are allowed to consume alcohol and customarily enter Fantasies through a door in the common wall. Once inside Fantasies, the customer is allowed to view topless and nude dancing for an entry fee. For an additional fee, a customer can enter a small alcove room where a "private dance" can be had by a totally nude dancer.
8. Although Fantasies has a separate outside entrance, an exterior sign on the door states that customers should "enter through T-Backs." Fantasies has lighted neon beer signs on the window.
9. Connolly pays 3% gross receipts tax to the State Department of Revenue, which is then paid to the City of Daleville. Connolly is responsible for reporting his true and accurate gross receipts to the State Department of Revenue each month. His report is made for the T-Backs Corporation which also includes the revenues of Fantasies. For the month of July 1999, Connolly reported $3,363 as gross receipts for T-Backs and Fantasies combined. Connolly acknowledges in his affidavit filed with this court that he actually brought in $4,035 from door revenues from 807 customers just on Fantasies alone in the month of July, 1999.
10. On August 10, 1999, after conducting an investigation of Fantasies, the City of Daleville police obtained warrants and arrested Connolly for violating § 13A-12-200.11 of the Alabama Code, which prohibits totally nude dancing. Also, three dancers at Fantasies were arrested on criminal charges for public lewdness, in violation of Alabama Code § 13A-12-130. Plaintiffs filed a Motion to Stay Prosecution of Connolly in the Dale County District Court. The case was transferred to the Circuit Court of Dale County and Judge P.B. McLauchlin issued the Stay.
11. On September 30, 1999, the Daleville City Council, at a special meeting, issued a notice of proposed revocation of the Fantasies Business License No. 19990561. Connolly's attorney accepted service of the written notice at the Council meeting.
12. On October 14, 1999, a public due process hearing was held before the Daleville City Council with Connolly and his attorney present who cross examined the witnesses, introduced a document and presented arguments to the Council. Connolly did not testify or call any witnesses.
At the hearing, the following witnesses testified in favor of revocation:
A. Administrative Clerk who issued the business license to Fantasies: She testified that Connolly had requested a "coffee shop" license and represented that he would serve "pre-packaged food." Connolly did not present a health department permit and did not reveal that topless or nude dancing would be conducted at Fantasies. The Administrative Clerk further testified that Connolly had stated that he did not need a restaurant license because he would only dispense prepackaged food, but a restaurant license was the only thing available for a coffee shop.
B. Inspector for the Department of Health: He testified that he had inspected Connolly's building, but had not been made aware that T-Backs considered Fantasies as a separate business. He testified that any business that dispenses, mixes, or blends drinks, or dispenses ice with a scoop, must have a health permit. Therefore, Fantasies should have had a "limited restaurant" health permit. Consequently, the operation of Fantasies without such a permit violated State law. He also testified that Fantasies does not have a double sink, appropriate floors and walls, and other requirements, and could not be approved for a health permit at that time. He also stated that he had seen the signs for Fantasies inside T-Backs, but did not realize Connolly operated two businesses from that structure. He stated that he customarily allows businesses to continue to operate for a short period of time until they comply.
C. Police investigator: He testified about the layout of the building, the nude dancing and intimate physical contact between the dancers and customers. He witnessed a totally nude dancer on stage place her legs over the shoulders of a customer and then thrust her crotch closely up to the face of the customer.
D. Police Chief: He testified that the common wall is just a sham to get around Daleville's ordinance prohibiting alcohol and nude dancing in the same place. He testified that no prepackaged food was found on the Fantasies premises upon several inspections by City and State investigators and police. He identified photos of the signs on the door and windows of Fantasies. Next, he testified about customers who were provided alcohol and then would merely step through the...
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Atm Exp., Inc. v. City of Montgomery, Alabama
...suffered `an invasion of a legally protected interest ... concrete and particularized.' " (Doc. # 27, pp. 4-5, quoting T Backs Club, Inc., 84 F.Supp.2d at 1325 n. 2). The court The City's first argument can be interpreted to mean, generally, either that a person may not challenge the legali......