6420 Roswell Rd., Inc. v. City of Sandy Springs

484 F.Supp.3d 1321

6420 ROSWELL RD., INC. d/b/a Flashers, Plaintiff,

v.CITY OF SANDY SPRINGS, GEORGIA and Douglas A. Brown, in his individual capacity, Defendants.

CIVIL ACTION NO. 1:18-CV-5742-ODE

United States District Court, N.D. Georgia, Atlanta Division.

Signed August 26, 2020

Filed August 27, 2020

Cary Stephen Wiggins, Wiggins Law Group, Atlanta, GA, for Plaintiff.

Dana Kristin Maine, Daniel William Lee, William J. Linkous, III, Freeman Mathis & Gary, LP, Atlanta, GA, for Defendants.

ORDER

ORINDA D. EVANS, UNITED STATES DISTRICT JUDGE

Plaintiff's 42 U.S.C. § 1983 claims and its negligence claim are before the Court on Defendants’ Motion to File Excess Pages [Doc. 30], Defendants’ Motion to Dismiss For Failure to State a Claim [Doc. 31], and Plaintiff's Motion to File Excess Pages [Doc. 35]. For the reasons provided below, the Court GRANTS Defendants’ Motion to File Excess Pages and Plaintiff's Motion to File Excess Pages. The Court also GRANTS Defendants’ Motion to Dismiss, finding that Defendant Brown is entitled to qualified immunity and that Plaintiff's Second Amended Complaint fails to state a claim for which relief can be granted. Because there are no longer federal claims before the Court, the Court does not retain jurisdiction over Plaintiff's state-law negligence claim through supplemental jurisdiction.

I. INTRODUCTION

A. Factual Background

The factual allegations from Plaintiff's Second Amended Complaint For Damages [Doc. 29] are as follows. Plaintiff 6420 Roswell Road, Inc. ("Plaintiff"), operating under the name "Flashers," is an establishment that offered nude dance entertainment at 6420 Roswell Road, Atlanta, Georgia 30339 [Doc. 29 at 2 ¶ 2]. Defendant City of Sandy Springs, Georgia ("Sandy Springs") is a political subdivision of the state of Georgia [Doc. 29 at 2 ¶ 3] and Defendant Douglas A. Brown ("Brown") is a Division Commander of the Fire Marshal's Office for the City of Sandy Springs Fire Department [Doc. 29 at 2 ¶ 4] (collectively, "Defendants"). Keith Sanders ("Sanders")--not named as a party in this lawsuit--is the city's police chief and fire chief [Doc. 25-1 at 9].

Plaintiff opened in 1990 and featured "live-nude, exotic dance performances in the City of Sandy Springs" [Doc. 29 at 4 ¶¶ 10, 13]. On December 1, 2005, Defendant Sandy Springs was incorporated as a municipal corporation and Plaintiff became subject to the city's jurisdiction [Doc. 29 at 5 ¶ 13]. Defendant Sandy Springs allegedly objected to the message communicated by Plaintiff as well as by other gentlemen's clubs and sexually-oriented businesses operating within the city [Doc. 29 at 5 ¶ 14].

Sandy Springs regulates Fire Prevention and Protection under Chapter 22 of its Code of Ordinances [Doc. 29 at 5-6 ¶ 16]. The city has adopted the International Fire Code ("IFC"), "for the purpose of establishing rules and regulations for the alteration and repair of existing buildings and other similar work in the city" [Doc. 29 at 5 ¶ 16]. See also SANDY SPRINGS , GA. , CODE § 22-26 (a) (1) (2008). Under the IFC, fire code officials may order the immediate evacuation of "any occupied building deemed unsafe where such building has hazardous conditions that present imminent danger to building occupants. Persons so notified shall immediately leave the structure or premises and shall not enter or re-enter until authorized to do so by the fire code official" [Doc. 29 at 7-8 ¶ 22]. See also INT'L FIRE CODE § 111.2 (2018). When a fire official deems a premises unsafe, the "owner ... shall abate or cause to be abated or corrected such unsafe condition either by repair, rehabilitation, demolition or other approved corrective action" [Doc. 29 at 8 ¶ 23]. See also INT'L FIRE CODE § 111.4 (2018).

The IFC also establishes a board of appeals "to hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation" of the code [Doc. 29 at 8 ¶ 24]. See also INT'L FIRE CODE § 109.1 (2018) (emphasis omitted). Appeals "shall be based on a claim that the intent of [the IFC] or the rules legally adopted [t]hereunder have been incorrectly interpreted, the provisions of th[e] code do not fully apply, or an equivalent method of protection or safety is proposed." INT'L FIRE CODE § 109.2 (2018). "The board of appeals shall consist of members who are qualified by experience and training to pass on matters pertaining to hazards of fire, explosions, hazardous conditions or fire protections systems, and are not employees of the jurisdiction." INT'L FIRE CODE § 109.3 (2018) (emphasis omitted). Pursuant to the IFC, Defendant Sandy Springs created a board of appeals which--among other functions--"hears appeals from any person aggrieved by an action of the fire chief or any other city official or employee of the city fire department" [Doc. 29 at 8-9 ¶ 25]. See SANDY SPRINGS , GA. , CODE § 22-27 (a). Plaintiff contends that "[u]pon information and belief, the members of [Sandy Springs’] Board of Appeals do not meet the qualifications set out by the IFC" [Doc. 29 at 9 ¶ 27]. Specifically, Plaintiff avers that the board only meets once a month and has no rules guaranteeing appeals will be heard or requiring that a decision be made within any specified period of time [Doc. 29 at 18 ¶ 56].

In the fall of 2016, Sandy Springs allegedly began planning to "raid" all three establishments under its jurisdiction that offered live nude dance entertainment [Doc. 29 at 9 ¶ 29] (quotation marks added). On December 14, 2016, representatives of the Sandy Spring Fire Marshal's Office--along with other city employees--participated in a raid at Plaintiff's establishment without a search warrant [Doc. 29 at 10-11 ¶¶ 31, 34]. At Defendant Brown's direction, fire safety officials looked for "any conceivable violations" of the IFC [Doc. 29 at 10 ¶ 33] (quotation marks added).

On December 19, 2016, five days after the Fire Marshal's Office performed the inspection, Defendant Brown ordered Plaintiff to cease operations and provided Plaintiff with a Field Inspection Report (the "Report") [see Doc. 34-1] detailing alleged IFC violations [Doc. 29 at 11 ¶ 35].¹ In the Report, Defendant Brown identified alleged violations, marking with asterisks those which he believed needed to be corrected immediately [Doc. 29 at 11 ¶ 36]. The items which Defendant Brown marked with asterisks are as follows:

• IFC-1008.1.9.5 Unlatching of doors: Doors with slide bolt style or any other lock other than panic hardware require signage that reads "THIS DOOR TO REMAIN UNLOCKED WHEN BUILDING IS OCCUPIED." Signs must be constructed of a sturdy material and weather resistant [Doc. 31-2 at 3].

• LSC-7.2.1.4.5.1 Door Leaf Operating Force: Rear door from kitchen area too hard to operate [Doc. 31-2 at 3].

• LSC-7.10.1.2.1 Marking of Means of Egress: North exit doors require signage that reads "FIRE EXIT - DO NOT BLOCK." Signs must be constructed of a sturdy material and weather resistant [Doc. 31-2 at 3].

• IFC-605.1 Abatement of Electrical Hazards: Throughout the premises there are numerous violations of NEC standards: excessive use of extension cords being used in lieu of permanent wiring; excessive use of multi-plug strips in lieu of adequate electrical outlets; multiple missing electrical switch plate and outlet covers; lack of GFI receptacles adjacent to water sources; main electrical panel blocked by a ladder and building materials; exterior electrical panel boxes have no covers on them - exposing "live" electrical contacts to human contact (though in a semi-enclosed area); wiring to some light fixtures is not per code; light fixtures with open sockets were not covered and some did not have bulbs in them. There are also multiple locations where water leaks are proximal to electrical hazards increasing the chances of electrical shock [Doc. 31-2 at 4].

• IFC-1030.3 Unobstructed egress: There are multiple locations throughout the premises with damaged flooring material that could cause persons to trip if trying to escape a fire [Doc. 31-2 at 5].

• LSC-10.3.5 Flammable decorations to be removed: There is a Christmas tree in foyer of the main entrance / exit [Doc. 41-2 at 5-6].

The Report then stated that "due to the seriousness of th[e] violations," Plaintiff "is declared unsafe and is ordered to be closed to [sic] business" [Doc. 29 at 11 ¶ 36]. The Report concluded that Plaintiff would be "cleared by the Sandy Springs Fire Marshal's Office to re-open" upon correcting "the noted fire and life safety code violations and a follow-up inspection by local authorities to ensure compliance" [Doc. 29 at 11 ¶ 36].

After receiving the Report, Plaintiff hired an electrician to review and correct the items marked with asterisks [Doc. 29 at 12 ¶ 37]. Defendant Brown returned to Plaintiff's establishment on December 23, 2016 to ensure compliance with the Report's closure order [Doc. 29 at 12 ¶ 38]. After a second inspection, Brown informed Plaintiff that although it had repaired all of the Report's items flagged with an asterisk, the electrician had done the repairs without a permit and thus the closure order would continue indefinitely [Doc. 29 at 12 at ¶¶ 38, 39]. Brown also informed Plaintiff he had discovered new violations, and that he would send Plaintiff a written list of the new violations [Doc. 29 at 12 ¶ 39]. According to Plaintiff, neither defendant produced the complete list of violations as promised by Defendant Brown [Doc. 29 at 13 ¶ 45].

Plaintiff hired a second electrician after Brown's December 23, 2016 inspection who confirmed that all of the repairs made by the first electrician were sufficient and that they did not require a permit [Doc. 29 at 12 ¶ 40]. On December 27, 2016, Plaintiff's electrician² applied for permits for past and future repairs, however Sandy Springs denied the permits without explanation [Doc. 29 at 13 ¶ 43]. Plaintiff sued Sandy Springs and other individuals on December 29, 2016, seeking a temporary restraining order requiring those...