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Miller v. City of Wickliffe

United States Court of Appeals, Sixth Circuit

March 23, 2017

Dan Miller, Suede Nights, LLC, Joseph Cirino, and Spot 82, LLC (16-3052); Julious Mosley and Mosley Motel of Cleveland, Inc. (16-3053), Plaintiffs-Appellants,
v.
City of Wickliffe, Ohio, Defendant-Appellee.

          Argued: November 29, 2016

         Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:12-cv-01248; 1:13-cv-01646-James S. Gwin, District Judge.

         ARGUED:

          Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES, L.L.P., Wickliffe, Ohio, for Appellants in 16-3052 and 16-3053.

          John D. Latchney, O'TOOLE, MCLAUGHLIN, DOOLEY & PECORA, CO. LPA, Sheffield Village, Ohio, for Appellee.

         ON BRIEF:

          Jay F. Crook, SHRYOCK, CROOK & ASSOCIATES, L.L.P., Wickliffe, Ohio, for Appellants in 16-3052 and 16-3053.

          Nick C. Tomino, O'TOOLE, MCLAUGHLIN, DOOLEY & PECORA, CO. LPA, Sheffield Village, Ohio, for Appellee.

          Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

          OPINION

          JULIA SMITH GIBBONS, Circuit Judge.

         Plaintiffs-appellants Dan Miller, Joseph Cirino, Julious Mosley, and their respective businesses-Suede Nights, Spot 82, and the Mosley Motel-appeal the district court's summary-judgment orders in favor of defendant Wickliffe, Ohio. Appellants allege that the city violated their constitutional rights by passing an ordinance that required a "nightclub" permit for certain establishments. The district court determined that appellants lacked standing and dismissed the case on those grounds but also reached the merits of appellants' claims and held that the Wickliffe's conduct did not offend the Constitution.

         Plaintiffs here lack standing to challenge, as-applied or facially, the nightclub ordinance. Because they cannot demonstrate that Wickliffe had reached a final decision under the ordinance, or that they faced a credible threat of prosecution under it, plaintiffs cannot show a particularized and concrete injury sufficient to confer jurisdiction. Accordingly, we affirm the district court's dismissal of plaintiffs' claims.

         I.

         Julious Mosley owned the Mosley Motel in Wickliffe, Ohio ("Wickliffe" or "City"). In 2009, the motel's lounge area was in need of a tenant. Around this same time, Dan Miller was seeking a new location for his nightclub. Miller's original nightclub was in neighboring Willoughby, Ohio, and, during its brief time there, had drawn the ire of law enforcement due to allegations of illegal activity by some of its patrons.

         Miller found a new home for his nightclub at the Mosley Motel. In May 2009, Miller and Mosley executed a five-year lease for the motel's lounge, located at 28500 Euclid Avenue in Wickliffe. Miller then began the process of acquiring the proper permits to operate his nightclub. Miller claims that the City was initially receptive to his nightclub, but, after informing it of his plan to host a "Hip Hop night, [catering] to African American and minority clientele, " the City allegedly changed its tune. (DE 37-1, Miller Aff., Page ID 251-252.) Miller's application for an occupancy permit was denied until he submitted revised parking plans that conformed to the City's parking-spot-allotment requirements.

         In addition to receiving the proper permits from the City, Miller also needed a liquor license from the State of Ohio. In June 2009, he applied for a D5A-6 liquor permit from the Ohio Division of Liquor Control. The City did not oppose Miller's application, but several Wickliffe religious organizations did. Specifically, Telshe Yeshiva Rabbinical College, All Saints Elementary School, Sacred Heart Chapel, Borromeo Seminary, and the Center for Pastoral Leadership-all of which are located very near or adjacent to the Mosley Motel-asked for a hearing so that they could oppose Miller's application. After hearing from these organizations, the City, while still not formally opposing the liquor permit, passed Resolution 2009-14, which expressed support for the organizations' opposition to Miller's application. The City believed that the sale of alcohol at 28500 Euclid Avenue would be "detrimental to and [would] substantially interfere with the morals, safety and welfare of the residents of Wickliffe" and that the location of the Mosley Motel was so situated that the issuance of a permit would create "substantial interference with the public decency, sobriety, peace, or good order" of the neighborhood. (DE 32-3, Ord. 2009-14, Page ID 195-96.)

         The Ohio Division of Liquor Control conducted a hearing on Miller's application in September 2009. Miller claims that, despite having previously waived any objection to his application, "numerous officials" appeared at the hearing, including "the Mayor, the Chief of Police, and members of the Wickliffe City Counsel [sic]." (DE 37-1, Miller Aff., Page ID 253.) Representatives from the religious organizations were also in attendance. The Liquor Control Division ultimately denied Miller's application, citing the objections of the religious organizations and noting that it agreed that granting the application would offend the peace and good order of the neighborhood and would interfere with the operation of the religious organizations and their schools. Despite having the right to do so, Miller did not appeal this decision nor does he allege that it was reached in error.

         Resolution 2009-14 was not the City's only action that September. It also unanimously passed Ordinance 2009-49 ("Ordinance"), which required "nightclubs" to obtain a permit before operating. Ordinance 2009-49 defined "nightclub" as:

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 ...

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