Opinion
CASE NO.1:13-CV-1646
12-21-2015
JULIUS MOSLEY and MOSLEY MOTEL OF CLEVELAND, INC. Plaintiffs, v. CITY OF WICKLIFFE, OHIO, Defendant.
OPINION & ORDER
[Resolving Doc. No. 12] :
Judge Wells presided over this case until October 2015. On her retirement, this Court took the case under General Order 2015-12. See non-document docket entry dated October 6, 2015.
Plaintiffs Julius Mosley and Mosley Motel of Cleveland sue Defendant City of Wickliffe, Ohio ("Wickliffe") for violating Plaintiffs' Constitutional rights. Plaintiffs say Wickliffe violated Plaintiffs' rights by passing Wickliffe City Ordinance 2009-49, which regulated nightclubs operating in the city of Wickliffe.
Doc. 1.
Id.
Plaintiffs are also involved in a substantially similar case pending in this Court, Miller et al. v. City of Wickliffe, Ohio ("Miller"). Five of the claims overlap: claims under § 1983 (Counts 1, 6), a claim for injunctive relief from application of 2009-49 (Count 2), a claim under 42 U.S.C. § 2000a (Count 5), and a claim under 28 U.S.C. §§ 1981, 1982 (Count 7).
See 1:12-cv-01248 (N.D. Ohio). This case is distinguished by its four additional plaintiffs besides Mosley and the Mosley Motel.
However, unlike in Miller, Plaintiffs here also allege per se and as applied violations of the takings clause (Counts 3, 4).
Defendant moves for summary judgment. Defendant moves as to both the claims that are at issue in Miller and the unique takings clause claims. On the first set of claims, Defendant raises substantially the same arguments they did in their Miller briefing. On the takings clause claims, Defendant argues that the claims are not ripe for review by a federal court because Plaintiffs have not exhausted state compensation procedures.
Doc. 12.
Compare id. with Miller, Doc. 35.
Plaintiffs did file an opposition brief. Doc. 1 4. However, Plaintiffs' opposition brief is, by all appearances, mis-filed in this case. It relates exclusively to Wickliffe Ordinance 521.10, which is not at issue in this litigation. Ordinance 521.10 is not even mentioned in the complaint. Defendant points this out in its reply brief. Doc. 1 5. Nevertheless, Plaintiffs have not re-filed a substantive opposition.
On December 11, 2015, the Court ordered supplemental briefing on the issue of Article III Standing.
Non-document entry dated December 11, 2015. Similar briefing was ordered in the Miller litigation. See Miller, non-document entry dated November 2, 2015. The parties submitted the briefing. Doc. 16; Doc. 17.
For the following reasons, the Court GRANTS Defendant's motion for summary judgment as to the taking clause claims, and DENIES as moot Defendant's motion as to the other constitutional violations. The Court DISMISSES the remaining claims for lack of standing.
I. Background
Property at 28500 Euclid Avenue, Wickliffe, Ohio
Plaintiff Mosley Motel of Cleveland is an Ohio corporation with its primary place of business at 28500 Euclid Avenue, Wickliffe, Ohio. Plaintiff Julius Mosley is the owner of the Mosley Motel.
Doc. 1 at ¶ 1.
Id. at ¶ 2.
Plaintiffs purchased the property at 28500 Euclid Avenue for $2 million in 2007. Plaintiffs also allege that they paid a $400,000 tax bill and spent $600,000 in renovations and repairs.
Id. at ¶ 20.
Id. at ¶¶ 22-23.
Dan Miller, plaintiff in the Miller suit, entered into a lease with the Mosley Motel in May 2009. Plaintiffs allege that they only entered into the lease on the understanding that the location did not have zoning restrictions that would limit Miller's ability to open his nightclub, Suede Lounge.
Id. at ¶ 40.
Id.
As described and discussed at length in the summary judgment opinion this Court filed in the Miller litigation, Miller applied for a liquor license from the Ohio Department of Commerce, Liquor Control Division ("the Liquor Control Division"). However, several local religious organizations objected to Miller's application. By letter dated October 30, 2009, the Liquor Control Division denied Miller's liquor license application. The rejection letter notified Plaintiff Miller of his right to appeal the rejection to the Ohio Liquor Control Commission. Miller did not appeal the Liquor Control Division's permit denial.
Miller, Doc. 44.
Doc. 1 at ¶¶ 44-45.
Id. at ¶ 56.
Id. at ¶ 74. The Division's grounds for rejection were: 1) Plaintiff Milller's business would "substantially and adversely affect or interfere with the normal, orderly conduct of the affairs of [the organizations]"; 2) given the location of Miller's business, "substantial interference with public decency, sobriety, peace, or good order would result from the issuance of the permit"; and 3) "[the Liquor Control] Division also denies and rejects the new application as authorized or required by law." Doc. 12-1 at 1-2 (citing R.C. §4301.10(A)(2); R.C. §4303.292(B)(1); O.A.C. §4301:1-1-12(B)).
Id. at 2.
On September 10, 2009, Miller applied for a temporary occupancy permit for 28500 Euclid Avenue in Wickliffe, Ohio. By letter dated September 17, 2009, Wickliffe rejected the application because the building did not have enough paved parking spaces to satisfy zoning requirements.
Doc. 1 at ¶ 59.
Id. at ¶ 65.
On September 28, 2009, Wickliffe's City Council convened and passed Ordinance 2009-49. That ordinance generally requires a permit to operate a "nightclub" in Wickliffe. Ordinance 2009-49 also prevents a nightclub from opening within 500 feet of several types of organizations, including schools, churches, and other nightclubs.
Id. at ¶ 66.
The challenged portions of 2009-49 read:
747.02 DEFINITIONS
(a) 'Nightclub' means a place operated for a profit, which is open to the public and provides the opportunity to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages, all of which are provided for a consideration that may be included in a cover charge or included in the price of the food or beverage.
. . .
747.03 NIGHTCLUB PERMIT REQUIRED
It is unlawful for any person to own, lease, operate, manage, or maintain a nightclub in the City without first obtaining a nightclub permit from the City as set forth in this chapter.
. . .
747.09 ACTION ON APPLICATION
. . .
(b) This application [for a nightclub permit] will be denied if:
. . .
(11) The location of the nightclub is within five hundred feet from the boundaries of a parcel of real estate having situated on it a school, church, library, public park, tavern, bar, adult cabaret, or another nightclub;
. . .
747.99 PENALTY
(a) Whoever [operates] a nightclub without first having obtained a permit from the City is guilty of a misdemeanor of the first degree.
As of September 28, 2009, Miller did not have a liquor license or occupancy permit for 28500 Euclid Avenue. He also did not apply for a permit to operate a nightclub under 2009-49.
Due to the failure to issue a liquor permit, the commencement date of the lease between Plaintiffs and Miller did not activate. Plaintiffs allege that they have attempted to mitigate damages caused by the inability to open Suede Nightclub. Plaintiffs sought out third parties who were interested in buying out Miller's lease. Plaintiffs allege that these deals were not completed because of the on-going dispute over zoning. Plaintiffs also tried to sell the property. Plaintiffs allege that "Mr. Miller was informed by a prominent real estate broker that due to the multiple legal issues with the City of Wickliffe, the buyer would not list the property for sale." Plaintiffs further allege that they have received offers of up to $1.75 million, but that these were inadequate, especially in light of the paid tax bill and renovations. In their supplemental briefing on standing, Plaintiffs now state that they have sold the property for $675,000.
Id. at ¶ 75.
Id. at ¶¶ 78-81.
Id. at ¶ 82.
Id. at ¶¶ 92-9.
Doc. 16 at 5.
Miller case
Plaintiffs filed this seven-count lawsuit in July 2013. In May 2012, Plaintiffs along with Miller, Suede Nights LLC, and two others, filed a near-identical lawsuit. Plaintiffs were ordered to show cause why this case was distinct from the earlier-filed Miller litigation. Plaintiffs admit the overlap as to Counts 1, 2, 5, 6, 7. Plaintiffs continued that "where the case at bar differs is . . . Counts 3 and 4 of the complaint. These facts and causes of action are all related to and grounded in the takings clause of the U.S. Constitution." The presiding judge at that time consolidated these cases on September 13, 2013. Plaintiffs Mosely and Mosley Motel later moved to sever the actions in August 2014.
Miller, Doc. 1.
Compare id. at ¶¶ 27-88 with Miller, Doc. 24 at ¶¶ 12-72. Compare Doc. 1, at ¶¶ 95-109, 138-163 (Counts I, II, V-VII) with Doc. 24 at ¶¶ 73-113 (Counts I-V).
Doc. 6.
Doc 7 at 2.
Id.
See Miller, Doc. 26; non-document entry dated September 13, 2013.
Miller, Doc. 29. Plaintiffs were motivated to sever the cases by a lawsuit they filed in 2014 against the City of Wickliffe and the Wickliffe Mayor. See Mosley v .City of Wickliffe, 14-cv-934 (N.D. Ohio).
At this time the instant case the Miller litigation are not consolidated. However, five of the seven counts in this case are identical to those in the Miller litigation, and based upon the same factual predicate.
II. Legal Standard
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" The moving party must first demonstrate that there is an absence of a genuine dispute as to a material fact entitling it to judgment. Once the moving party has done so, the non-moving party must set forth specific facts in the record—not its allegations or denials in pleadings—showing a triable issue. The existence of some doubt as to the material facts is insufficient to defeat a motion for summary judgment. But the Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.
Killion v . KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
See Celotex Corp . v. Catrett, 477 U.S. 317, 323 (1986).
See Matsushita Elec . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Id. at 586.
Killion , 761 F.3d at 580 (internal citation omitted).
To litigate a claim in federal court, a plaintiff must meet Article III standing. A plaintiff must demonstrate that he has suffered an injury in fact which is concrete and particularized; there must be a causal connection between the injury and the conduct complained of; and it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision.
Lujan v . Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
III. Discussion
Standing
As in the Miller litigation, Plaintiffs' claims as to constitutional violations caused by Ordinance 2009-49 are dismissed for lack of standing.
Plaintiff Mosley Motel of Cleveland is the landlord for Miller and the other third-parties to this lawsuit who wished to open a nightclub on the premises. As discussed in the Miller opinion, these parties do not have a sufficiently concrete or particularized injury to meet Article III's standing requirements. Plaintiff Mosley Motel of Cleveland, as the mere landlord, is one step further removed and a fortiori cannot demonstrate constitutional standing based on the same set of facts.
Miller, Doc. 44.
Plaintiff Julius Mosley maintains that he has suffered a unique injury in his role as a shareholder to the Mosley Motel. This argument also fails. Plaintiffs rely on a single case, in which a district court found standing for the shareholder of an adult entertainment business. In that case, the business was actually denied the ability to operate because of a local ordinance. Mosley, by contrast, is a shareholder in an entity that is the landlord to a second entity that has not yet even applied for the permit to operate. This is not grounds for standing.
The Court sets aside Plaintiffs' arguments that standing is based on the violations of Ordinance 521.10, which, again, is not at issue in this litigation.
Doc. 16 at 9-10 (citing Christy v . Servitto, 699 F. Supp. 618 (E.D. Mich. 1988)).
The Court DISMISSES Counts 1, 2, 5, 6 and 7 of the complaint for lack of standing.
Takings Clause
Plaintiffs do have standing to pursue their takings claims. They properly allege an injury: the decreased value of their property. This injury persists regardless of whether or not they ever applied for a permit under 2009-49. Plaintiffs can show causation: they have persuasively alleged that it is the Defendant's actions that caused the decrease in value. And the injury could be redressed through further action by Defendant. Plaintiffs have standing to pursue Counts 3 and 4. Nevertheless, the Court GRANTS Defendant's motion for summary judgment as to these claims, because they are not yet ripe for review.
A takings claim is not ripe for review unless a property owner is denied just compensation.
Williamson Cnty . Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985).
Ohio law provides that a government actor seeking to take property is under a duty to bring an appropriation proceeding. If a landowner feels his property is being subjected to a takings without proper proceedings, he must bring a mandamus action to seek compensation. "Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged."
State ex rel . Duncan v. Middlefield, 898 N.E.2d 952, 956 (Ohio 2008).
The Sixth Circuit has held that Ohio's writ of mandamus procedure is the proper mechanism for pursing just compensation in the case of a regulatory taking. Thus, an Ohio takings claim is not ripe until a property owner has been denied just compensation after pursing the mandamus action.
Coles v . Granville, 448 F.3d 853, 862 (6th Cir. 2006) (citing Silver v . Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031 (6th Cir. 1992)). --------
Plaintiffs do not allege that they pursued a state mandamus action to seek just compensation for the alleged regulatory taking of the property. As a result, their takings claims are not yet ripe.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART Defendant's motion for summary judgment, DENIES IN PART Defendant's motion as moot, and DISMISSES Counts 1, 2, 5, 6 and 7 counts of Plaintiffs' first amended complaint for lack of standing.
IT IS SO ORDERED. Dated: December 21, 2015
s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Doc. 1-4 at 1-4.