United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL AND FACTUAL BACKGROUND
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business license was revoked based on violations of the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. 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
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.
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 This notice rescinded the revocation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.
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.
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.
October 14, 2019, the City denied Plaintiff's application
for a new business license. Dkt. 14-3 at 3-11.
October 15, 2019, the City removed the matter to this Court.
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.
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.
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 ...