United States District Court, N.D. Mississippi, Oxford Division
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
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.
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.
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
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].
September 4, 2018, the Board met again to consider a revised
version of the ordinance. See September 4, 2018
Minutes [6-3] at 4. 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.
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.
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
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.
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.
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. §
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.
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
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
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