PURE PLEASURE MEGACENTER OF LOUISVILLE, LLC; DONALD KLEINHANS; AND INTERLOCK REALTY COMPANY v. LOUISVILLE-JEFFERSON COUNTY METRO GOVERNMENT
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RENDERED: July 28, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001380-MR
PURE PLEASURE MEGACENTER OF
LOUISVILLE, LLC; DONALD KLEINHANS;
AND INTERLOCK REALTY COMPANY
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. McDONALD, JUDGE
ACTION NO. 03-CI-001960
v.
LOUISVILLE-JEFFERSON COUNTY
METRO GOVERNMENT
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Pure Pleasure MegaCenter of Louisville, LLC,
Donald Kleinhans, and Interlock Realty Co. (collectively PPMC)
have appealed an order of the Jefferson Circuit Court entered on
June 2, 2005, which granted the request of Louisville-Jefferson
County Metro Government (Metro) and permanently enjoined PPMC
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
from operating or maintaining any establishment having sexual
material for sale or rent in any zoning district where such
activity is prohibited.
Having concluded that PPMC has
abandoned this appeal, we dismiss.
The facts of the case are not in dispute.2
On March 5,
2003, Metro filed a complaint against PPMC3 alleging (1) that
PPMC operated or permitted to be operated an adult entertainment
establishment, as that term is defined in the JCO, without a
valid adult license, and (2) that PPMC further violated the
zoning regulations of the LDC by being located in a prohibited
enterprise zone.
Based on these two allegations, Metro sought
injunctive relief by filing two separate motions for temporary
injunctions, pursuant to CR4 65.04.
On March 21, 2003, after Metro filed its complaint,
but before the trial court ruled on Metro’s two motions for
2
In its brief, Metro states “[Metro] generally accepts the factual statements
of [PPMC’s] Statement of the Case, but takes issue with the editorializing
and argument included in the Statement.” Otherwise, Metro provided no
counterstatement of the case.
3
Prior to filing the complaint, Metro had issued a notice of zoning violation
against PPMC on February 13, 2003, and had cited PPMC on February 18, 2003,
for violation of Section 111.041 of the Jefferson County Ordinances (JCO).
On March 14, 2003, PPMC filed an appeal before the Metro Board of Zoning
Administration (BOZA). A hearing was held before the BOZA on April 21, 2003,
wherein it was determined that PPMC was located in the EZ-1 zone. The EZ-1
zone allows the same uses as in the C-2 Commercial and the M-3 Industrial
district, with three exceptions, one of those being, adult entertainment
uses. The BOZA observed the site and reviewed the staff report submitted and
denied the appeal. The BOZA stated that the same definitions in the Land
Development Code (LDC) effective on March 1, 2003, were also in effect in the
code at the time of the violation.
4
Kentucky Rules of Civil Procedure.
-2-
injunctive relief, the United States District Court for the
Western District of Kentucky entered an order in another case,
Cam I, Inc. v. Louisville/Jefferson County Metro Government,5
temporarily restraining application, enforcement, and action
under Chapter 111 of the JCO, until further orders of the
district court.
In its Memorandum Opinion entered the same day,
the District Court concluded as follows:
Conclusion
We find there is a substantial
likelihood CAM I will succeed on the merits
of the First Amendment challenge because the
ordinance in question does not ensure that a
licensing decision will be made within a
reasonably brief period of time, and cannot
ensure a prompt judicial decision on review.
The ordinance is a prior restraint on CAM
I’s constitutionally-protected right of
freedom of speech without the safeguards
required by Freedman.6 Therefore, its
enforcement will be enjoined.
Motion having been made and for the
reasons set forth above, the motion of CAM I
for a preliminary injunction and temporary
restraining order will be GRANTED by
separate order.
Metro conceded in its post-hearing brief that the terms of the
District Court order precluded Metro from pursuing its claim
that PPMC was operating without a valid adult entertainment
license as a basis for seeking a temporary injunction.
5
Thus,
Civil Action No. 3:02CV-715-S.
6
Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649
(1965).
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the only issue before the trial court to decide was whether a
temporary injunction should be issued on Metro’s claim that PPMC
was improperly operating in an EZ-1 enterprise zone under the
LDC.
On March 25, 2003, the trial court held a hearing
on Metro’s remaining motion for temporary injunction and denied
Metro’s motion by order entered on May 23, 2003.7
The trial
court stated, in pertinent part, as follows:
[T]he Court must determine if the complaint
presents a serious question as to the
merits. The issue of an adult entertainment
license under JCO Chapter 111 is now moot,
leaving only the issue that [PPMC] is
improperly operating an adult entertainment
establishment in an EZ-1 Enterprise Zone.
[PPMC] has brought up several defenses to
this argument. . . .
7
The trial court’s May 23, 2003, order stated as follows:
Two witnesses testified on behalf of [Metro]. The
first witness was Steve Lutz, a zoning officer. Lutz
testified that adult entertainment uses are not
permissive uses of property located in an EZ-1
Enterprise Zone under the current LDC (effective
March 1, 2003) and under the previous code version.
[Metro’s] Exhibit No. 3 shows that the zoning
classification for 3299 Fern Valley Road as being EZ1 Enterprise Zone. On cross-examination, Lutz
testified that there is no definition in the LDC for
“adult entertainment use.”
The second witness was Charles Weathers, a
[Metro] employee with the Department of Inspections,
Permits and Licenses, ABC Division. Weathers
testified that he visited [PPMC] on February 19,
2003[,] and issued a citation because the business
was operating without an adult entertainment license.
He also took photographs inside the business and of
its outside sign. See [Metro’s] Exhibit Nos. 4, 5,
and 6.
-4-
The actual overall merits of a case
should not be determined on a motion for
temporary injunction pursuant to CR 65.04.
Maupin [v. Stansbury,] 575 S.W.2d [695], 699
[Ky.App. 1978]. The Court need only
determine whether the complaint presents a
serious and substantial question as to the
merits.
Under the circumstances of this case,
while the complaint does raise a valid and
substantial question as to [PPMC] improperly
operating in an EZ-1 Enterprise Zone, [PPMC]
has offered numerous defenses to LDC §
2.6.1(A)(3).
Consequently, the Court finds that
under the standard set forth in Sturgeon
Mining Company8 the motion for a temporary
injunction brought by [Metro] must be denied
at this stage of the case.
The case was then scheduled for a full trial on
the merits, but the case was taken off the trial calendar by
agreed order and was decided by the trial court based on briefs
submitted by the parties, including affidavits, exhibits, and
stipulation of certain facts.
Subsequently, the trial court
entered an order on June 2, 2005, wherein it ruled in favor of
Metro and permanently enjoined the operation of PPMC.
The trial court’s opinion stated the facts of the
case, as stipulated by the parties, as follows:
8
Sturgeon Mining Co. v. Whymore Coal Co., 892 S.W.2d 591, 592 (Ky. 1995)
(setting forth a three-part test for the determination of whether to issue a
temporary injunction).
-5-
FACTS
1.
The Plaintiff, [Metro], is a
consolidated local government established
under the provisions of KRS 67C.101 et seq.
2.
The Defendant[,] [PPMC][,] is a Florida
limited liability company, registered in
Kentucky, and operates a business at 3299
Fern Valley Road in Jefferson County,
Kentucky and has operated the business
continuously at that location since late
January or early February of 2003.
3.
[PPMC] advertises that it is
“Louisville’s #1 Adult Megacenter” with
DVDs, sex toys, magazines and lingerie for
sale and has private video booths with a 60channel video arcade.
4.
The Defendant[,] [Kleinhans][,] is an
officer of [PPMC] and manages the business
located at 3299 Fern Valley Road.
5.
The Defendant[,] [Interlock][,] is a
Kentucky limited liability corporation and
is the owner of the real property located at
3299 Fern Valley Road in Jefferson County,
Kentucky and leases the property to [PPMC].
6.
The property located at 3299 Fern
Valley Road is zoned EZ-1, Enterprise Zone
District, and has been since 1987 and “adult
entertainment uses” are not permitted uses
in the EZ-1 zone and never have been
[emphasis added].
7.
[PPMC] and Interlock were cited by
zoning enforcement officers for violations
of the EZ-1 zone on 13 February 2003[,] for
causing, allowing or permitting the
operation of an “adult entertainment
establishment” in an EZ-1 Zone District on
the property located at 3299 Fern Valley
Road in Jefferson County, Kentucky.
-6-
8.
On 14 March 2003, [PPMC] appealed the
notice of zoning violation to the Metro
Board of Zoning Adjustment (“BOZA”).
9.
On 21 April 2003, [the] BOZA held a
public hearing and after the hearing
rendered its decision to deny the appeal and
uphold the violation.
10. On 21 May 2003, [PPMC] appealed [the]
BOZA’s decision to the Jefferson Circuit
Court. That appeal was dismissed on 21
August 2003.
11. Interlock did not appeal the zoning
violation notice to either [the] BOZA or to
any court with jurisdiction.
[Metro] seeks temporary and permanent
injunctive relief to prevent [PPMC] from
using the property at 3299 Fern Valley Road
in violation of the zoning regulations.
[Metro] alleges that the only issues before
the Court are: (1) whether [PPMC] [is]
operating an adult entertainment use in an
EZ-1 zoning district in violation of the
Zoning Regulations; and (2) whether the
alleged violation entitles [Metro] to a
permanent injunction. [PPMC] asserts that
Section 2.6.1 of the [LDC] is unenforceable
against them [footnote omitted].
OPINION
. . . .
There can be no doubt that [PPMC] is
operating in continuing violation of the
Zoning Regulations. [Metro] asserts that
the continued violation constitutes
irreparable harm warranting a permanent
injunction. [PPMC], on the other hand,
maintains that there is no evidence that its
location causes any harm to the City or its
residents.
-7-
CR 65.01 provides for a permanent
injunction to restrict or direct the doing
of an act. In City of Louisville v. Koenig,
Ky., 162 S.W.2d 19 (1942), the court stated
that there could be no objection to an
injunction forbidding an unauthorized use of
an otherwise conforming property. There,
the property was zoned residential and
Koenig obtained a permit for and built a
garage on the property. However, after
completion of construction, he began to use
the garage for the manufacture of bleach.
[Such] a use was prohibited by the
applicable zoning regulations. That is much
the situation in this case. The property in
question cannot be used for the purposes of
maintaining an adult entertainment activity
or use. It is appropriate to enjoin the
prohibited activity.
Further, in Polk v. Axton, Ky., 208
S.W.2d 497 (1948), the Court held that
citizens are entitled to the benefits which
accrue to them from the observance of the
general zoning regulations by their
neighbors. The Court went on to state that
even though they suffer no specific
pecuniary loss, their special damage is a
sound basis for injunctive relief. [PPMC]
does not have the right to maintain its
activities in violation of valid ordinances.
ORDER
IT IS HEREBY ORDERED that [PPMC] [is]
permanently enjoined from operating or
maintaining any establishment having as one
of its principle uses the sale, rent or
display of pictures, books, periodicals,
magazines, appliances and similar material
which are distinguished or characterized by
their emphasis on depictions of sexual
activities or an establishment with a
substantial segment or section devoted to
the sale, rental or display of such material
in any zoning district where such activity
is prohibited. Sexual activities are
-8-
defined as the depiction of human genitals
in a state of arousal; acts of human
masturbation, sexual intercourse or sodomy;
holding or other erotic touching of human
genitals, pubic region, buttocks or breasts.
This Order is final and appealable and
there is no just cause for delay.
On June 30, 2005, PPMC filed a motion for stay pending appeal,
which does not appear to have been ruled upon.
This appeal
followed.
PPMC’s argument on appeal has three main parts.
First, PPMC argues that the zoning regulations are
unconstitutionally vague and overbroad.
Second, PPMC argues
that even if the zoning regulations are not vague and overbroad,
Metro failed to show that the zoning regulations apply to PPMC.
Finally, PPMC argues that even if the zoning regulations apply
to PPMC, they are “facially unconstitutional” and, thus,
unenforceable.
In support of this argument, PPMC argues that
the zoning regulations lack a substantial governmental purpose
and they fail to comply with KRS 154.45-00 et seq.
On July 10, 2006, this Court denied PPMC’s motion to
dismiss the appeal and ordered that the parties argue the issue
of mootness at oral argument held on July 12, 2006.
PPMC argues
that the issues are moot as PPMC ceased doing business at the
location.
Metro argues that the issues are not moot since PPMC
-9-
is operating the same business under a new name in the same
zone.
To the extent that PPMC’s motion to dismiss is
requesting this Court to determine whether the issues on appeal
have become moot, we decline that invitation.
However, counsel
for PPMC having stated at oral argument that PPMC no longer
wishes to pursue this appeal, we deem this appeal to be
abandoned by PPMC.
Thus, while we have reconsidered PPMC’s
motion to dismiss appeal and GRANT that motion, we do so on the
grounds of abandonment and not mootness.
It is not within the
purview of this Court to make a factual determination as to
whether the old business and new business are totally separate
entities as contended by PPMC or if there is privity among the
entities as argued by Metro.
Metro’s recourse is to seek
enforcement of the injunctive order in the Jefferson Circuit
Court, as upon dismissal of the appeal the judgment becomes
enforceable against PPMC and its privies.9
Therefore, having reconsidered the motion to dismiss
the appeal, the Court ORDERS the motion be, and it is hereby,
GRANTED as the appeal has been abandoned.
ALL CONCUR.
ENTERED: July 28, 2006
_/s/ Rick A. Johnson________
JUDGE, COURT OF APPEALS
9
See State Farm Mutual Automobile Insurance Co. v. Shelton, 368 S.W.2d 734,
737 (Ky. 1963).
-10-
BRIEF FOR APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Paul S. Gold
Frank Mascagni III
Louisville, Kentucky
Winston E. King
Louisville, Kentucky
H. Louis Sirkin
Jennifer M. Kinsley
Cincinnati, Ohio
ORAL ARGUMENT FOR APPELLANTS:
H. Louis Sirkin
Cincinnati, Ohio
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