Boldt v. Am. Fork City

ORDER AND MEMORANDUM DECISION

TENA CAMPBELL, U.S. District Court Judge.

In this civil rights case, Plaintiffs Nancy Boldt and Canary Garden, Inc. bring federal and state constitutional claims against Defendants American Fork City, American Fork Police Department, and American Fork police officer Jay Christensen. According to Plaintiffs, Defendants targeted them after Plaintiffs told Officer Christensen they were preparing to provide group counseling services to members of the LGBTQ+ community. They point to Officer Christensen's cease-and-desist order as well as his criminal citation of Ms. Boldt for alleged violation of a municipal ordinance. They also point to the City's prosecution of Ms. Boldt,

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which the City later dropped. These actions, maintain Plaintiffs, violated their First, Fourth, and Fourteenth Amendment rights, as well as their rights under the Utah Constitution.

Defendants have moved to dismiss the entire complaint, contending that even if the court takes Plaintiffs' allegations as true, Plaintiffs have failed to state a claim upon which relief may be granted. For the reasons set forth below, the court grants the motion in part and denies the motion in part.

FACTS^[1]

Plaintiff Canary Garden, Inc. is a non-profit corporation formed to provide grief support to families whose members have died. Canary Garden facilitates peer-to-peer grief support moderated by a group leader who lectures and instructs the support groups. Plaintiff Nancy Boldt is the executive director.

In 2016, Ms. Boldt and Canary Garden established “Joshy's House of Hope” in the city of American Fork, Utah. They leased a house in the city (the Property) in July 2016, where they moved Canary Garden's operations. They installed banners and other signs on the Property announcing they were using the house as a business.

For two years, Plaintiffs operated without incident. But in 2018, Ms. Boldt and Canary Garden experienced problems with American Fork police officer Jay Christensen and City officials. Those interactions resulted in misdemeanor charges against Ms. Boldt (ultimately dismissed) and Canary Garden's loss of its ability to offer grief counseling at the Property without legal repercussions that Plaintiffs say are unjustified.

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Business License Issues

Their troubles began on September 21, 2018, when Officer Christensen spoke to Ms. Boldt's son, Aaron Boldt, who was doing yard work at the Property in preparation for a fundraiser. The American Fork Police Department offices, as well as the City's offices, were located on the same block as the Property. Given that proximity to the Canary Garden business, as well as signs at the Property, Officer Christensen likely understood the general nature of Plaintiffs' activities.

Officer Christensen asked Mr. Boldt about Canary Garden's plans. Mr. Boldt told Officer Christensen about Canary Garden and explained that Canary Garden wanted to add group support and suicide prevention training to members of the LGBTQ+ community.

The next day, both Ms. Boldt and her son were outside the house when Officer Christensen “creeped by the Property” in a police car. He then “sped off” after spotting Ms. Boldt and her son in the yard. (Compl. ¶ 39, ECF No. 2.)

Two days later, Officer Christensen called Ms. Boldt and asked why Canary Garden did not have a business license. Ms. Boldt told him Canary Garden did not need a business license because it was a non-profit organization. One hour later, he called Ms. Boldt back and ordered Canary Garden to cease and desist holding meetings at the house because Canary Garden was operating without a license.

Canary Garden complied with the cease-and-desist order and has not operated at the Property since. As a result, Canary Garden lost valuable corporate partners and has not been able to raise money or provide services to the community. Plaintiffs assert that Officer Christensen placed them under heightened scrutiny and harassed them because Canary Garden was planning to provide additional services to the LGBTQ+ community.

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Criminal Citation of Ms. Boldt

After Canary Garden stopped operating, Officer Christensen showed up at the house of Ms. Boldt's daughter. While the daughter was playing with her children in the yard, Officer Christensen approached them with his hand on his gun and asked where he could find Ms. Boldt. According to Plaintiffs, Officer Christensen already knew how to contact Ms. Boldt and his visit to Ms. Boldt's daughter was really an attempt to intimidate Ms. Boldt and her family.

On October 9, 2018, one day after Officer Christensen spoke to Ms. Boldt's daughter, he met Ms. Boldt in the parking lot next to Joshy's House of Hope and once again raised the issue about operating Canary Garden without a license.

Ms. Boldt explained that everyone with whom she interacted at the City told her Canary Garden could operate without a business license. Officer Christensen ignored Ms. Boldt's explanation and told her she was facing a year in jail for operating a business without a license. Then, despite Canary Garden's compliance with the cease-and-desist order, Officer Christensen cited Ms. Boldt with a Class B misdemeanor. She alleges his conduct “was motivated by and/or condoned by municipal policy or a practice of selective and/or malicious enforcement of the City's municipal ordinances.” (Id. ¶ 85.)

American Fork's Prosecution of Ms. Boldt

Based on Officer Christensen's criminal citation, the City filed a Criminal Information against Ms. Boldt in state court for operating a business without a license, a Class B misdemeanor in violation of American Fork Municipal Code section 5.04.020. That section provides, “It is unlawful for any person to engage in business in the city without first procuring

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the required license therefor.”

Importantly, the Municipal Code contains an exception to that requirement:

No license fee or permit shall be required under the terms of this chapter for the conducting of lectures entertainments, concerts, fairs, exhibitions, bazaars luncheons, dinners or dances which are conducted, given or made by or for governmental entities or tax-exempt charitable organizations wholly for benevolent or charitable purposes. With respect to exemptions from business license requirements claimed hereunder, it shall be the burden of the person or entity claiming the exemption to establish that exemption

American Fork Municipal Code § 5.04.040 (emphasis added). Ms. Boldt asserts here, as she did to the City, that Canary Garden qualifies for the exemption and so does not need a business license to operate.

Given that language, as well as Ms. Boldt's explanations to Officer Christensen and the City's attorneys, Plaintiffs contend that Defendants initiated the criminal proceeding without probable cause for the purpose of harassment, discrimination, and harm to Plaintiffs because they planned to provide services to the LGBTQ+ community.

After a law firm entered an appearance in defense of Ms. Boldt, Plaintiffs say Officer Christensen improperly continued to communicate with Ms. Boldt during the criminal prosecution. Ms. Boldt claims his contact rose to the level of harassment. Her attorneys wrote to the City prosecutor, demanding that “Officer Christensen's threatening behavior … cease immediately, ” and telling the City prosecutor they might have to contact the court to address “attempted tampering with a witness … or for official misconduct.” (Compl. ¶¶ 114-15.)

Two days after that communication, the City prosecutor moved to dismiss the charges on the basis that Ms. Boldt was “no longer operating a business without a license in American Fork City.” (Id. ¶ 116.) The judge dismissed the charges with prejudice.

Post-Prosecution

Five days later, Ms. Boldt's husband spoke to American Fork City's business licensing

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supervisor, explaining that Canary Garden did not need a license because as a charitable organization, it was exempt from the municipal code licensing requirement. The supervisor, after consulting with the City attorney, told Mr. Boldt that Canary Garden did need a business license to operate. The City rejected Plaintiffs' subsequent official request for authorization to resume operations. According to Plaintiffs, the City attorney misquoted and misapplied Municipal Code § 5.04.040.

The City later offered a reason for the denial: building safety. But the City had not issued a notice about safety concerns at the Property or given Plaintiffs the chance to rectify those concerns. Moreover, the purported safety concerns directly contradicted the 2016 findings of the City's Chief Building Inspector and fire marshal, who concluded the Property was safe to use. Plaintiffs contend that the building safety explanation was pretext to cover up the retaliatory motive.

Since Officer Christensen's cease and desist order, Canary Garden has not operated. This, Plaintiffs say, devastated them financially, ^[2] and “wrongfully and unreasonably interfered with Ms. Boldt and/or Canary Garden's possessory interest in and use of Joshy's House of Hope.” (Id. ¶ 135.)

ANALYSIS A. Standard of Review

Federal Rule of Civil Procedure 8 requires that a complaint set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

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Defendants, who contend Plaintiffs have failed to satisfy this...