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Deja Vu Tacoma Inc. v. City of Lakewood

United States District Court, W.D. Washington, Tacoma

November 6, 2019

DEJA VU TACOMA, INC., Plaintiff,
v.
CITY OF LAKEWOOD, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Déjà Vu Tacoma, Inc.'s (“Plaintiff”) motion for temporary restraining order. Dkt. 7. The Court has considered the pleadings filed in support of and in opposition to the motion, and the remainder of the file and hereby denies the motion for the reasons stated herein.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On September 18, 2019, Defendant City of Lakewood (“City”) sent Plaintiff a notice that its business license was revoked based on violations of the standards of conduct in Lakewood Municipal Code (“LMC”) 5.16.050. Dkt. 7 at 4.[1] The eight-page notice stated that the City had determined the business constituted a public nuisance. Dkt. 15-1 at 6-20. The notice listed multiple violations of LMC 5.16.050 and attached incident reports from police investigations. Id. at 10. The notice also listed criminal charges for drug possession, sales, and/or prostitution filed against thirty of Plaintiff's employees for conduct at Plaintiff's business between August 2018 and April 2019. Id. at 14-16.

         On September 19, 2019, Plaintiff appealed to the Hearing Examiner. Dkt. 7-1 at 36-39. Plaintiff asserted that the revocation “provisions of LMC Chapter 5.02 and 5.16 violate Article I, Section 5 of the Washington Constitution because they fail to mandate a stay pending judicial review.” Id. at 37 (citing JJR, Inc. v. Seattle, 126 Wn.2d 1 (1995)). Plaintiff also asserted that relevant provisions of the LMC violated the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 3 and 5 of the Washington Constitution. Id.

         On September 23, 2019, the City sent Plaintiff's attorney a Notice of Failure to Secure a Business License which informed Plaintiff that after moving to revoke its license, the City found Plaintiff's business license had lapsed in December 2017. Dkt. 15-1 at 2-4. This notice rescinded the revocation order, cancelled Plaintiff's pending appeal, and informed Plaintiff it would have to apply for a new license which would likely be denied based on the nuisance activity in the previous notice. Id.

         On September 24, 2019, Plaintiff applied for a new business license. Dkt. 14-1. On September 25, 2019, the City issued Plaintiff a civil infraction warning stating that it is unlawful to operate without a business license, the infraction must be corrected the same day, and failure to correct would result in civil fines of up to $500 per day. Dkt. 13-2. After receiving the waring, Plaintiff closed the business, displacing 75 entertainers and 15 employees. Dkt. 7-1 at 4, ¶ 11.

         On October 8, 2019, Plaintiff filed a complaint against the City in Pierce County Superior Court for the State of Washington. Dkt. 1-2. Plaintiff asserts a claim for violations of the United States Constitution and a claim for violation of the Washington State Constitution. Id.

         On October 14, 2019, the City denied Plaintiff's application for a new business license. Dkt. 14-3 at 3-11.

         On October 15, 2019, the City removed the matter to this Court. Dkt. 1.

         On October 21, 2019, Plaintiff filed the instant emergency motion for a temporary restraining order, Dkt. 7, and appealed the denial of its application for a business license to a Hearing Examiner, Dkt. 7-1 at 70-73. On October 24, 2019, the City responded. Dkt. 12. On October 25, 2019, Plaintiff replied, Dkt. 18, and the Hearing Examiner issued a prehearing order, Dkt. 22-1. The Hearing Examiner set the appeal hearing for December 9, 2019, stated that the City bore the burden of proof by a preponderance of the evidence, and informed the parties that he did not have jurisdiction to consider constitutional challenges to the LMC. Id.

         On October 28, 2019, the Court held a hearing on Plaintiff's motion. At the conclusion of the hearing, the Court issued an order requesting supplemental briefing on certain issues. Dkt. 28. On October 31, 2019, Plaintiff filed a supplemental brief. Dkt. 22. On November 1, 2019, the City filed a supplemental brief. Dkt. 23.

         II. DISCUSSION

         A party requesting preliminary relief “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Plaintiff also cites the “serious questions test” that is a “sliding scale approach under which a preliminary injunction could issue where the likelihood of success is such that ‘serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.'” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing Clea ...


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