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K & J Enterprises, LLC v. City of Oxford

United States District Court, N.D. Mississippi, Oxford Division

October 11, 2018

K & J ENTERPRISES, LLC PLAINTIFF
v.
THE CITY OF OXFORD, MISSISSIPPI DEFENDANT

          MEMORANDUM OPINION

         On October 9, 2010, this Court heard testimony and argument on a motion for preliminary injunction [Diet. 5] filed by Plaintiff K & J Enterprises. K & J sought to enjoin the enforcement of the ordinance passed by the City of Oxford requiring bars and restaurants within Oxford to implement certain security measures. At the conclusion of the hearing, the Court found that K & J had not established the necessary elements to secure a preliminary injunction because they had not shown a substantial likelihood of success on the merits. The Court ordered the motion be denied. [Diet. 20] The Court now explains in further detail the basis for that ruling, Background

         1. History

         Known to the local Oxonians and others simply as "the Square", the area surrounding the Lafayette County Courthouse is home to numerous businesses including law offices, banks, retailers, restaurants, and bars. On evenings and weekends, those bars and restaurants become a popular destination for the University Mississippi student body and anyone else who wishes to enjoy the City's nightlife.

         Because of the Square's popularity, the City must devote significant resources to ensuring the safety of the public on evenings and weekends. This is especially true on eventful weekends in Oxford, such as football games, when thousands of people-many of whom are consuming alcohol-can he present on the Square, most of them concentrated in the four-block area that features most of the Square's bars.

         The City has sought a way to reduce the number of violent incidents, accidents, and disorderly conduct that occurs at night on the Square. To that end, in October of 2017, Oxford Chief of Police Joey East presented a safety assessment to the Oxford Board of Aldermen that identified several areas of concern involving the Square's nightlife. These included the size of the crowd in public at the time the bars closed, excessive and underage drinking, and pedestrian safety. See OPD Safety Assessment [13-1] and October 3, 2017 Minutes [13-2].

         In May of 2018, the Board was presented with a first draft of what eventually became Ordnance 2018-17. The proposed ordinance created a "Downtown District" in Oxford consisting of an area west of the Lafayette County Courthouse that featured most of the bars on the Square. In this district, bars and restaurants would be required to, among other things, maintain security guards, implement video surveillance, use electronic means to prevent underage drinking, maintain lines forming outside the business, and apply for event permits with the City on certain occasions. See May 15, 2018 Minutes, at 7 [6-1].

         On September 4, 2018, the Board met again to consider a revised version of the ordinance. See September 4, 2018 Minutes [6-3] at 4.[1] The revised version contained two noticeable differences. First, it did away with the security guard and event permit requirements. Second, it would apply not just to businesses in the Downtown District, but to any business in Oxford that was required to have a permit allowing it to sell alcohol for on-premise consumption. At the meeting the City approved the ordinance. Id., The ordinance was to go into effect for cities in the "Downtown District" on October 5, 2018, 30 days later. Id., The ordinance would go into effect for the other business in Oxford with on-premise retailer permits on January 1, 2019. According to the minutes, the Board proposed the later effective date for business outside the Downtown District because they had shorter notice that they would be covered by the ordinance.

         On September 14, K & J, which owns and operates the Library Sports Bar located on the Square, filed a notice of appeal challenging the ordinance in the Circuit Court of Lafayette County. The notice of appeal asserted that numerous provisions of the ordinance were preempted by state law, that the City's decision to pass the ordinance was arbitrary and capricious and its findings were not supported by evidence, that the ordinance deprives K & J of procedural and substantive due process, and that the ordinance violated the United States Constitution.

         On September 25, the City removed to this Court premising removal on federal question subject matter jurisdiction. K & J then filed the present motion seeking a preliminary injunction.[2]

         2. Provisions

         The ordinance as adopted applies "all businesses in the City which are required by local or State law to obtain an on-premise permit for the sale, distribution and consumption of alcoholic beverages and/or beer and light wine." ordinance 2018-17 at 1 [13-4]. The ordinance contains the following requirements that Plaintiffs object to:

First, the ordinance requires that covered businesses maintain security cameras that monitor a variety of locations, including all entry/exit doors and common areas. Id. § 14-100.5. The ordinance provides that Chief of Police may enter the premises and inspect the cameras and a minimal amount of video footage as necessary to ensure the cameras are in working order. Id. § 14-100.5.b.

         Second, the ordinance requires the businesses store the video footage for at least 7 days. The ordinance provides that other than the minimum amount of footage required to be presented during inspections to determine the cameras are working, businesses shall not be required to provide the footage to law enforcement absent a lawful order for such production. Id., § 14-100.5.g Third, the ordinance requires that businesses use "Electronic Age Verification Devices" to verify patrons' ages when accessing age restricted areas of the business and when purchasing alcoholic beverages. Id., § 14-100.6.

         Fourth, the ordinance requires that where patrons are awaiting to enter the business, the business must maintain a line, the location of which must be approved by the Chief of Police. Id. § 14.-100.4 Fifth, the ordinance requires that covered businesses maintain a photo ID and contact information for each employee. Id. § 14-101.[3]

         The ordinance makes it a misdemeanor to violate any provision, imposing a fine from $250 to $1, 000 and/or a jail sentence of up to six months. Id. § 14-104.

         Jurisdiction

         An initial question is whether this Court has subject matter jurisdiction, "The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987), The City of Oxford listed, as a basis for their removal, federal question jurisdiction under 28 U.S.C. § 1331. Presumably this was because K & J alleged in its notice of appeal, that the ordinance violated its substantive and procedural due process rights and that it violated the United States Constitution.

         It is clear that if K & J contends that the ordinance violates the United States Constitution, then federal question jurisdiction exists. See City of Chicago v. lnt'l Coll of Surgeons, 522 U.S. 156, 159, 118 S.Ct. 523, 527, 139 L.Ed.2d 525 (1997) (holding that actions that contains both federal constitutional and state administrative challenges to municipal decisions may be removed to federal district court).

         Even though this was not a traditional "complaint" its reference to the United States Constitution is sufficient to invoke federal question jurisdiction. In Freeman v. Burlington Broadcasters, Inc., a local zoning board issued a radio tower permit to a radio station that had already obtained an FCC license. Freeman v. Burlington Broadcasters, Inc.,204 F.3d 311, 315 (2d Cir. 2000). Homeowners complained that the tower interfered with numerous other radio devices and as a result, the zoning board issued a citation to the radio station. Id. However, the zoning board determined that its authority to enforce the ...


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