Opinion
Civil Action No. 01-997, Section "N"
November 20, 2001
ORDER AND REASONS
Before the Court is the Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and alternative Motion for Summary Judgment. For the following reasons, Defendant's Motion is GRANTED. IT IS FURTHER ORDERED that the parties motions in limine and motions to strike are dismissed as moot.
BACKGROUND
Parkview Tavern (Parkview) is a nightclub located in the Parkview Plaza Shopping Mall. The mall is on Highway 22 in Mandeville, Louisiana in an area which is zoned commercial. In addition to being a bar, Parkview also provides live music for its patrons. Parkview has been in existence at it present location since 1994. The previous lessee operated a bar known as Shooter's Lounge. Shooter's Lounge also played live music until neighbors at the Parkview Apartments began complaining of the noise. Shooter's Lounge initially lowered the base of the music to appease the neighbors but eventually discontinued live music at the bar. On April 23, 1999, Parkview entered into its current lease with Parkview Plaza, Inc. The lease provides in part that "music played within the premises shall be done in a manner that no music or base can be heard outside of the premises." However, Parkview's landlord has not enforced the provision of the lease and has made no complaints.
Defendant's Motion, p. 12.
Plaintiff's Reply, p. 4.
Residents of the Beau Chene subdivision recently began lodging complaints against Parkview for excessive noise. As a result, several citations were issued for violations of the General Nuisance Ordinance, the Sound Control Ordinance, the Alcohol Beverage Ordinance, and the Alcohol Beverage Statute. Over an eight month period, twelve citations were issued including one which resulted in the arrest of the owner/manager of Parkview.
Id. at 16.
On April 9, 2001, a meeting was held between Parkview, concerned neighbors, two assistant District Attorneys, Councilman Henry Billot, and members of the Sheriff's Department. Parkview agreed to install sound walls and other additions to minimize the noise. At this meeting, Parkview alleges that the defendant, Donald Sharp, threatened and intimidated Parkview's owners and operators. Following the meeting, the neighbors continued to make complaints, and on April 29, 2001, the manager of Parkview, Scott Lober, was arrested for "Prohibited Acts of an Alcohol Outlet (loud music)". On May 8, 2001 a Consent Restraining Order was agreed to by which the defendant, Rodney Strain, in his official capacity as Sheriff of St. Tammany Parish, agreed not to make arrests based on the Sound Control Ordinance or the Alcohol Beverage Ordinance. The Sheriff's Office was not, however, restrained from issuing citations and summons. At a conference with this Court on May 25, 2001, the Restraining Order was extended until September 27, 2001, the date of the consolidated trial for a preliminary and permanent injunction. The Consent Restraining Order was again extended until November 26, 2001.
Id. at 3.
First Amended Complaint, p. 5.
Subsequently, Parkview filed a First and Second Amended Complaint challenging the constitutionality of the Nuisance Ordinance in addition to the Sound Control Ordinance and the Alcohol Beverage Ordinance. Parkview also added Donald Sharp in both his official and individual capacity, Henry Billot in his individual capacity, and challenged the state alcohol beverage control statutes. Parkview added challenges to these statutes after the Assistant District Attorney amended the Misdemeanor Bills of Information to allege infractions of these statutes. Parkview asserts that the statutes violate the First and Fourteenth Amendments.
STANDARD OF REVIEW 1. Motion to Dismiss
The standard of review for motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) is the same as the standard for reviewing dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). The moving party bears the burden of showing that "plaintiff can prove no set of facts consistent with the allegations in the complaint which would entitle it to relief." Baton Rouge Bldg. Constr. Trades Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986). The reviewing court "must accept all well-pleaded factual allegations in the light most favorable to the non-moving party."American Waste Pollution Control Co. v. Browning Ferris Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Conclusory allegations or legal conclusions however will not suffice to defeat a motion to dismiss. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). A court's ultimate conclusion that a case should be dismissed may rest "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3)the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. U.S., 74 F.3d 657, 659 (5th Cir. 1996) (citations omitted).
2. Motion for Summary Judgment
Rule 56(C) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The mover must inform the court of the basis for its motion and set forth those portions of the record which it believes demonstrate that there is no genuine issue of material fact.Stults v. Conoco, 76 F.3d 651, 656 (5th Cir. 1996), citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-3 (5th Cir. 1992), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has carried its burden, the opponent must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue of material fact. Id.
LAW AND ANALYSIS 1. Jurisdictional issues a. Standing
When considering a Rule 12(b)(1) motion to dismiss with a motion for summary judgment in the alternative, the Court must determine if subject matter jurisdiction is present before considering the substantive arguments of the summary judgment motion. See Cupit v. United States, 964 F. Supp. 1104 (W.D.La1997).
The defendants assert that Parkview lacks standing to sue on two grounds. First, defendants argue that Parkview has no standing because it has no legal right to play music that can be heard outside of its premises pursuant to its lease agreement. Defendants maintain that because Parkview signed a lease agreement which clearly states that Parkview is to play music "in a manner that no music or base can be heard outside of [the] premises," they cannot maintain this action. The defendants claim that Parkview cannot assert that they have a constitutional right to play amplified music because it is not within a zone of interest protected by the statutes or constitutional provisions at issue. The defendants base this assertion on their opinion that Parkview has waived any right it has to play amplified music by signing the lease agreement. Parkview's landlord is not, however, a party to this suit. The defendants cannot seek to enforce a lease to which they are not a party.
Defendant's Motion, Exhibit 2.
Second, the defendants assert that Parkview lacks standing to sue since it has not suffered an injury in fact as it is attempting to assert the legal rights of the defendants in the criminal proceedings. A corporation has standing to sue on its own behalf if it meets the standing test for individuals. See ACORN v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). To satisfy Article III's standing requirements, a corporation must show: (1) he or she has suffered an "injury in fact" — an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. at 2136; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) ( citing Lujan). In addition to the constitutional elements, the court is to consider three "prudential concerns": (1) whether the plaintiffs' complaint falls within the zone of interest protected by the statute or constitutional provision at issue; (2) whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches; and (3) whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of another. Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992). These "prudential concerns" clearly will overlap with the constitutional elements in a wide variety of cases. Parkview has demonstrated to the Court that it has indeed suffered an injury in fact. While Parkview itself has not been prosecuted nor threatened with prosecution, its owners and managers have. It is clear that the target of the citations and arrests is Parkview and not the individuals who have been cited. In a ten month period, Parkview has received at least thirteen citations. The defendants have kept police vehicles parked outside of the premises causing patronage to decline and resulting in financial losses to Parkview. Parkview also alleges that it has expended in excess of $40,000 in defending the state criminal prosecutions and civil suit.
Defendant's Motion, p. 17.
Plaintiff's Opposition at 9.
Id. at 8.
b. Younger Abstention
Both parties agree that the Supreme Court decision of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), applies. The defendants argue that Younger requires the Court to abstain while Parkview submits that the Court need not abstain because this case falls within one of Younger's exceptions. Younger requires federal courts to abstain from exercising jurisdiction where it would interfere with ongoing state judicial proceedings. Id. at 44-45. As an initial matter, the Court finds that Younger governs this action even though Parkview has not been charged with violating any laws. Under Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), Younger controls because Parkview has a "substantial stake" in the state court proceedings as its interests are intertwined with those of its employees being prosecuted in state court. Id. at 348.Despite the power of the Younger rule, the Supreme Court has made exceptions to the abstention doctrine. A plaintiff may overcome abstention "in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown. . . ." Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 87, citing Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed.2d 701 (1971) (citations omitted). The question before this Court is whether the defendants' actions constituted bad faith or harassment such that Younger does not require abstention. Based on the evidence, the Court finds that the defendants' actions were not in bad faith or harassing.
Parkview submits that Younger does not require abstention because the defendants actions constituted bad faith or harassment. Parkview argues that the defendants have continuously cited Parkview while knowing that the statutes are unconstitutional. Parkview also argues that the prosecutions were in bad faith because the defendants cited Parkview's employees with no hope of obtaining convictions. The Court finds this argument unpersuasive. While the St. Tammany Parish Council may be formulating new ordinances, the ordinances currently in effect have not been found to be unconstitutional.
Plaintiff's Opposition at 12.
Parkview relies on the Fifth Circuit decision of Nobby Lobby in support of its position that the defendants' actions are in bad faith and harassing. In Nobby Lobby, the Fifth Circuit found the state to be in bad faith based on the multiplicity of the seizures and the fact that the state had knowledge that the seizures were potentially unconstitutional.Nobby Lobby is distinguishable from the present case. There, the state had knowledge that their actions were unconstitutional because the criminal statute violated had previously been challenged in court. Section 16.01 of the Texas Penal Code had been interpreted and given a narrow construction by the Fifth Circuit in Universal Amusement Co. v. Vance, 559 F.2d 1286 (5th Cir. 1977). After the Fifth Circuit's pronouncement in Universal, Texas courts upheld convictions only under the narrow circumstances for which the statute was designed. In Nobby Lobby, the state officials obtained warrants to search and seize allegedly obscene videotape, as well as the projector and computer equipment used to show it. Employees of adult bookstores were prosecuted under § 16.01 for the unlawful use of a criminal instrument. In holding that the prosecutions were in bad faith, the Court noted that Texas case law was well settled that the state "must prove that the instrument was specially designed, made or adapted, primarily, if not solely, to commit a crime."Id. at 90. In Nobby Lobby, the officials seized video equipment which was clearly not designed to commit a crime. The state officials seized items under the ambit of a statutory violation which they had knowledge, based on Texas case law, was not within the scope of the criminal statute. It was this conduct which made the state in bad faith. St. Tammany officials are not in bad faith for enforcing laws which have not been found unconstitutional.
Parkview also maintains that the multiplicity of the citations demonstrates that the defendants are merely trying to harass Parkview. InNobby Lobby, the Court considered the multiplicity of the seizures in determining whether the prosecutions were conducted in bad faith. Of significant importance to the Fifth Circuit in making that determination was the fact that all of the seizures, arrests and prosecutions were made after the Court's decision in Universal. Nobby Lobby, 970 F.2d at 88. While there have been several citations issued against Parkview's employees, Parkview does not argue that the statutes and ordinances with which the defendants are charging Parkview's employees have been previously restricted or found unconstitutional. It is not bad faith or harassment to enforce a legally sufficient statute or ordinance. Nor has Parkview demonstrated to this Court that the laws are being enforced only against them and not against other similar establishments. The citations issued and arrests made were the result of complaints made by nearby residents. If state officials determine that a state or local law is being violated as a result of those complaints, the fact that several citations have been issued does not necessitate a finding that the citations were issued in bad faith.
Parkview additionally argues that the Nuisance and Sound Control Ordinances are unconstitutional. While this Court is aware of two recent decisions striking down statutes as unconstitutional which prohibit sound in excess of specified decibel levels, those cases did not involve the ordinances at issue here. See Lionhart v. Foster, 100 F. Supp.2d 383 (E.D.La. 1999); Ardoin v. Tangipahoa Parish Council, Civil Action No. 01-1838 (E.D.La. October 29, 2001). If Parkview suggests that the defendants had knowledge that their actions were unconstitutional based on these cases, the Court is not persuaded. The record in this case with respect to the loudness of certain decibel readings makes clear that there is uncertainty regarding what constitutes tolerable decibel levels. The defendant's expert, Michael Seidemann, suggests in his report that an increase of 3 decibel readings doubles the energy designated by the measurement. What this suggests to the Court is that as the decibel level increases, the sound grows significantly louder. The Court takes notice of Parkview's argument that Mr. Seidemaun's testimony in this case differs from that which he gave and which was relied on by the district courts in Lionhart and Ardoin. In both cases, the district court found statutes setting decibel levels at 55 and 40 and 60 respectively to be overbroad and unconstitutional. This was based in large part on the expert testimony of Mr. Seidemann that a decibel reading of 55 would include sounds within the normal range of human conversation. This conflicting testimony on comparative sounds is not dispositive of Parkview's position that the defendants were in bad faith for prosecuting Parkview's employees under the local nuisance ordinance.
In Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), the Supreme Court denied an injunction after finding that the record did not establish the necessary bad faith and harassment needed to overcome abstention. The district court in Cameron found "there was no harassment, intimidation, or oppression of the complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities." Id. at 619. While the Court is fully aware of the constitutional right to play amplified music, the defendants cannot be found to be in bad faith for issuing citations and making arrests for violating laws which have yet to be held unconstitutional. Parkview's employees have challenged the constitutionality of the statutes which they are charged with violating in state court. There is no indication that the state court cannot adequately resolve the constitutionality of state and local ordinances.
See Ward v. Rock Against Racism, 491 U.S. 781. 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Saia v. People of New York, 334 U.S. 558, 68 S.Ct 1148, 92 L.Ed 1574 (1948).
The abstention doctrine of Younger is based on considerations of equity, comity and federalism. Younger, 401 U.S. at 4345. The principles of comity reflect the reluctance of federal courts to interfere with state criminal prosecutions. In considering whether to apply the Younger doctrine, federal courts "must strike a balance between the interests of the state and national governments." DeSpain v. Johnston, 731 F.2d 1171, 1176 (5th Cir. 1984). A federal courts' decision to abstain "depends on the nature of the state court proceeding, the timing of the request for federal relief, and the availability of a forum to protect federal rights." Id.
Based on an application of these factors, the Court finds that Younger requires the Court to abstain. In Hicks, the Supreme Court held that "where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in the federal court, the principles of Younger v. Harris should apply in full force." Hicks, 422 U.S. at 345. Suit was filed in this Court on April 13, 2001. By this time several citations had been issued to employees of Parkview for violating the St. Tammany nuisance laws. On April 29, 2001, the manager of Parkview was arrested for the crime of "Prohibited Acts of an Alcohol Outlet." While Parkview filed a motion for a temporary restraining order with this Court on May 24, 2001, the Court, in a conference with the parties on May 25, 2001, voiced its jurisdictional concerns and requested that the parties brief the issue. The temporary restraining order was denied as moot because the parties entered into a consent restraining order on May 30, 2001. The Court finds that the state criminal proceedings, though instituted after the federal complaint was filed, were instituted before any proceedings of substance were instituted in federal court.
The Court must also examine whether there is an available forum in which Parkview can protect its federal rights. Intervention is appropriate only if a party has no opportunity to present his federal claim in a state proceeding. DeSpain, 731 F.2d at 1171. Parkview asks this Court to declare unconstitutional state and local ordinances which it asserts violate its First and Fourteenth Amendment rights. The criminal defendants have filed a Motion to Quash these same statutes on constitutional grounds in the state court proceedings. The federal claims raised by Parkview in this Court are being raised in the state proceeding. For this Court not to abstain "would disrupt suits brought by the state and would reflect negatively on the ability of the state courts." Id. 1178.
Defendant's Motion at 26; Exhibit 11.
Accordingly, IT IS ORDERED that the defendant's Motion for Summary Judgment is GRANTED in that this Court must abstain under Younger and its progeny.