Venetian Casino Resort v. Local Joint Exec. Bd.

• Decision Date: 27 April 1999
• Docket Number: No. CV-S-99-00276-PMPRJJ.,CV-S-99-00276-PMPRJJ.
• Citation: 45 F.Supp.2d 1027
• Parties: VENETIAN CASINO RESORT, L.L.C., a Delaware limited liability company, Plaintiff, v. LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; Culinary Workers Union, Local No. 226, an unincorporated association; Bartenders Union, Local No. 165, an unincorporated association; Clark County, a political subdivision of the State of Nevada; Stewart Bell, in his capacity as District Attorney of Clark County, Nevada; and the Las Vegas Metropolitan Police Department, Defendants.
• Court: U.S. District Court — District of Nevada

45 F.Supp.2d 1027

VENETIAN CASINO RESORT, L.L.C., a Delaware limited liability company, Plaintiff, v. LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; Culinary Workers Union, Local No. 226, an unincorporated association; Bartenders Union, Local No. 165, an unincorporated association; Clark County, a political subdivision of the State of Nevada; Stewart Bell, in his capacity as District Attorney of Clark County, Nevada; and the Las Vegas Metropolitan Police Department, Defendants.

No. CV-S-99-00276-PMPRJJ.

United States District Court, D. Nevada.

April 27, 1999.

COPYRIGHT MATERIAL OMITTED

William T. Coleman, Jr., Walter Dellinger, Gordon Krischer, Crystal Nix, O'Melveny & Myers LLP, Washington, DC, Samuel S. Lionel, Rodney M. Jean, Paul E. Larsen, Lionel Sawyer & Collins, Las Vegas, NV, for Venetian Casino Resort, L.L.C.

Richard G. McCracken, Michael T. Anderson, McCracken, Stemerman, Bowen & Holsberry, Las Vegas, NV, for Local Joint Exec. Bd., Culinary Union and Bartenders' Union.

Stewart Bell, District Attorney, Mitchell M. Cohen, Dep. DA, Las Vegas, NV, for Clark County, Bell and LVMPD.

ORDER

PRO, District Judge.

This case calls upon the Court to consider whether a pedestrian walkway, located on private property parallel and adjacent to the Las Vegas Strip and connected at both ends to public sidewalks, is a public forum for First Amendment purposes.

The Venetian Casino Resort ("Venetian") is a large hotel and casino currently under construction at the southeast corner of Las Vegas Boulevard and Sands Avenue. A temporary pedestrian walkway that is soon to become a permanent sidewalk runs along the frontage of the Venetian property bordering the Las Vegas Strip. This walkway is the only thoroughfare for pedestrians walking on the east side of the Strip and connects to public sidewalks at the north and south ends of the Venetian property. On March 1, 1999, Defendants Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local No. 226, and Bartenders Union, Local No. 165 (collectively "Unions") staged a demonstration rally including picketing on the temporary pedestrian walkway to protest the Venetian's employment practices. Although the Venetian requested that the Las Vegas Metropolitan Police Department arrest the protestors for trespassing on private property, the Clark County District Attorney advised the Las Vegas Metropolitan Police Department ("LVMPD") not to do so under the sensible theory that because the pedestrian walkway looked and functioned like a public sidewalk, those peacefully protesting had a cognizable First Amendment defense to any charge of trespass.

The current dispute concerns whether the Unions, or others, have a right to exercise their First Amendment rights to free expression, subject to reasonable and content neutral time, place and manner restrictions, on the Venetian's pedestrian walkway to the same extent they could do so on a public sidewalk.

Presently before the Court is Plaintiff Venetian Casino Resort's Motion for Temporary Restraining Order and Preliminary Injunction (# 9) filed on April 2, 1999. Defendants Clark County, District Attorney Stewart L. Bell, and Las Vegas Metropolitan Police Department (collectively "County") filed a Response (# 23) on April 12, 1999. The Defendant Unions filed an Opposition (# 27) on April 12, 1999. On April 19, 1999, the Venetian filed a Reply (# 36). The Court held a hearing on the Venetian's Motion for Temporary Restraining Order and Preliminary Injunction on April 21, 1999.

I. Factual Background

The Venetian is located at the former site of the Sands Casino. As part of a plan to demolish the Sands and build the Venetian, the owners of the Sands entered into a pre-development agreement with Clark County on February 18, 1997 ("1997 Agreement"). (Sands Resort Hotel & Casino Agreement, attached as Ex. 1 to Pl.'s Mot. T.R.O./Prelim. Inj.) Part of the 1997 Agreement related to the construction of various improvements including improvements along the Venetian's frontages on Las Vegas Boulevard South, commonly referred to as the "Las Vegas Strip," and any improvements recommended by a traffic impact study. (1997 Agreement, supra, at ¶ 1.2(i).) The 1997 Agreement also contains the following provision where the developer agrees to turn over proposed public property rights:

"DEVELOPER agrees to convey all proposed public property rights owned by the DEVELOPER to the COUNTY or the State of Nevada Department of Transportation, at no cost or expense, free and clear of all liens, covenants, restrictions and encumbrances, as required for construction, maintenance or use of the IMPROVEMENTS.... Any conveyance of land by the DEVELOPER to the COUNTY or the State of Nevada, for public use of sidewalks, walkways or other forms of pedestrian passage through the DEVELOPMENT, will be for facilitating the perpetual flow of pedestrian traffic ... without restrictions."

(1997 Agreement, supra, at ¶ 2.2.)

The County approved the 1997 Agreement following a hearing that included the participation of the Unions. During the hearing, several County Commissioners expressed concern that the public might not have free speech rights on the sidewalk in front of the Venetian. (Transcript of The Board of County Commissioners' Meeting, attached as Ex. 1 to Unions' Opp'n, at pp. 37-39 [hereinafter Hearing].) This concern apparently stemmed from a previous experience when the police arrested Union members for protesting on a private sidewalk next to the MGM Grand Hotel. (Hearing, supra, at 42-43.) The response these concerns received at the hearing is not clear. Early in the Hearing, Mark Figgens, a Deputy District Attorney, told the Commissioners that the 1997 Agreement specified that the sidewalks were for public purposes and preserved full rights for the public. (Hearing, supra, at 5-6.) Later in the hearing, Figgens' response to the free speech issue is less clear. Figgens advised that a transfer of property would have to be in conformance with the law and that he could not be sure how a court would interpret the language of the 1997 Agreement. (Hearing, supra, at p. 38.)

Following the acceptance of the Agreement, Venetian completed the required traffic impact study. (1997 Agreement at ¶ 2.3(a).) The study concluded that traffic would best be accommodated by widening Las Vegas Boulevard and adding another northbound lane. The solution, however, would use up the government's existing right-of-way, leaving no public sidewalk.

Since the public land at issue belonged to the State of Nevada, rather than the County, the Venetian negotiated with the State of Nevada Department of Transportation ("NDOT") to come up with a solution to the problem. The Venetian claims that the County represented that the County would accept whatever agreement was reached, but the Unions claim there is no support for this proposition.¹ Regardless, the negotiations culminated in a January 8, 1999 Agreement between the Venetian and the NDOT ("1999 Agreement"). (Agreement, attached as Ex. 2 to Pl.'s Mot. T.R.O./Prelim. Inj.) In the 1999 Agreement, the Venetian promised to construct a private sidewalk in front of its property for pedestrian access. The 1999 Agreement stated that the Venetian retained "full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment[s] to the United States Constitution." (1999 Agreement, supra, at Mutual Agreements ¶ 6.) The 1999 Agreement also asserted that the NDOT was not taking any state action as to the new sidewalk.

In February 1999, the Venetian demolished the public sidewalk and set up a temporary pedestrian walkway. Later that month, the Unions applied to the County for a permit to hold a demonstration in front of the Venetian pursuant to Nev.Rev.Stat. § 16.06 (1991).² On February 26, 1999, the County gave the Unions a permit to hold a rally and to engage in picketing on the sidewalk in front of the Venetian.

When the Venetian learned that the Unions planned a rally, it hired a surveyor to mark its property lines and it erected signs stating that the pedestrian walkway was private property. The Unions' rally took place on March 1, 1999, from 4:30 p.m. until 6:30 p.m., and was attended by approximately 1,300 members. During the rally, the Venetian issued warnings that the demonstrators were on private property. The Union members did not leave the property, and the LVMPD, after consulting with the District Attorney, declined to make arrests or issue citations for trespassing.

After the rally, the Unions indicated that they planned to hold another and larger demonstration following the Venetian's opening. The County also indicated that it would issue another permit to the Unions upon its request. The Venetian filed this action three days after the March 1 Unions' rally alleging that the County Defendants have taken Venetian's property without due process to create a public forum, and seeking a declaratory judgment under 28 U.S.C. § 2201 that the Defendant's actions constitute an impermissible deprivation of private property rights without due process and that the privately owned and maintained pedestrian walkway is not a public forum for First Amendment activity.

By its Motion for Temporary Retraining Order and Preliminary Injunction (# 9), Venetian seeks two forms of preliminary injunctive relief. First, it seeks to enjoin Defendants Clark County and LVMPD from "awarding permits or from otherwise authorizing or allowing any persons or organizations to conduct expressive activities on Venetian's private property or to interfere with Venetian's property rights." Second, Venetian seeks to enjoin Clark County and LVMPD from "refusing to recognize, protect or enforce Venetian's property rights based on the erroneous belief that Venetian may not lawfully exclude disruptive, expressive activity or any other unauthorized activity from its private property including its walkway."

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