Kersten v. City of Mandan

389 F.Supp.3d 640

August KERSTEN, Brian Berube, and Lonesome Dove, Inc., Plaintiffs,

v.The CITY OF MANDAN, Defendant.

Case No.: 1:19-cv-085

United States District Court, D. North Dakota.

Signed May 22, 2019

David J. Chapman, D J Chapman Law, P.C., Fargo, ND, Erica Smith, Pro Hac Vice, Institute for Justice, Arlington, VA, for Plaintiffs.

Grant Bakke, Randall J. Bakke, Shawn A. Grinolds, Bradley Neuman Wiederholt, Bakke Grinolds Wiederholt, Bismarck, ND, for Defendant.

ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

Daniel L. Hovland, Chief Judge

Before the Court is the Plaintiffs' ex parte "Motion for Temporary Restraining Order" filed on May 21, 2019. See Doc. No. 8. The Plaintiffs seek a temporary restraining order pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, enjoining the Defendant from enforcing its ordinance regulating murals. For the reasons set forth below, the Court grants the Plaintiffs' motion for a temporary restraining order.

I. BACKGROUND

On May 20, 2019, the Plaintiffs filed a verified complaint against the City of Mandan ("Mandan"), asserting claims under 42 U.S.C. § 1983 and the Civil Rights Act of 1871 for violation of the First and Fourteenth Amendments. See Doc. No. 1. The Plaintiffs' claims arise from the enforcement of Mandan's mural regulations against the Lonesome Dove saloon which added a mural to the outside of its building in 2018 depicting a western landscape and the name "Lonesome Dove." Mandan has informed the Lonesome Dove the mural must be removed or penalties will be imposed. The regulations prohibit murals which are commercial in nature or which are placed on the front of a building. The Plaintiffs request the Court enjoin Mandan from enforcing its mural regulations.

The Plaintiffs' verified complaint alleges the following. Plaintiff Lonesome Dove is a western-themed bar which has existed in Mandan, North Dakota, for the last 28 years. The Lonsome Dove is owned by Plaintiffs August Kersten and Brian Berube. It is located in a quasi-industrial area on Memorial Highway surrounded by car dealerships, farm equipment companies, and a livestock-auction barn. Until recently, the building's only decorations were beer ads, including a painted "Coors Light" logo on its front wall. In the summer of 2018, Kersten wanted to brighten up the building and attract new customers. His employees suggested a mural be painted on the exterior of the building. A Lonesome Dove waitress with artistic talent was hired to do the job. She was paid $2,600 to paint a 208-square foot mural on the front of their building, over the Coors Light logo. The mural shows the sun setting over the mountains, with a ranch and three cowboys scattered across the landscape. Rendered across the top of the mural are the words, "Lonesome Dove."

Shortly after the mural was completed, Kersten and Berube received a "notice of violation" dated October 22, 2018. See Doc. No. 1-2. The notice said that Lonesome Dove was "in violation of the City of Mandan Municipal Ordinances" because it had "an unpermitted mural." The notice further stated that "either the mural can be removed or an application may be submitted for a mural permit .... There is no guarantee that it will be approved." The letter noted that the violation was an infraction that carried a fine of up to $1,000.

Kersten and Berube were unaware they had to secure permission from Mandan before putting up a mural. They had never sought permission for the painted Coors Light logo that had been displayed on Lonesome Dove's wall for a decade without incident.

Mandan ordinance Section 105-1-15 regulates signs. Section 105-1-15(b) defines a "figurative wall mural" as "an illustration, diagram or design, not intended to sell a product or to advertise an establishment, that is used for aesthetic purposes or to enhance architectural features of a building." See Doc No. 1-3, p. 6. Section 105-1-15(j)(9) requires those wishing to display a sign or wall mural secure prior approval from the Mandan Architectural Review Commission ("MARC"). See Doc No. 1-3, p. 11. On August 21, 2018, Mandan adopted seven additional "Building Mural Guidelines" for MARC to administer. See Doc. No. 1-4. Those guidelines prohibit murals that (1) "convey a commercial message," (2) use words that are a "dominant feature of the art," or (3) have "political messages." The guidelines also ban murals "on the front of a building as determined by the property's street address," but may be located on building "sides or alleys."

On October 31, 2018, Lonesome Dove submitted a mural permit application along with the required $50 fee. Over the next five months, three separate hearings were held regarding the mural. On November 13, 2018, MARC considered Lonesome Dove's application and unanimously voted to reject the permit. See Doc. No. 1-8, p. 4. In a letter dated December 3, 2018, Mandan notified the Plaintiffs that the application was denied. See Doc. No. 1-11. The notice also stated that because Lonesome Dove's mural conveyed a commercial message, it was technically not a "mural" under the code, but a "sign." As a result, the second notice of violation stated that "Application permit was for a mural, application needs to be for a sign. Please resubmit sign application." Finally, the notice stated that "if compliance is not made this violation is an Infraction with up to $1,000 fine." Mandan City Code Section 1-9(c)(5) allows fines to accrue daily. See Doc. No. 1-3, p. 4 ("With respect to violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense").

On December 13, 2018, Lonesome Dove submitted a second application to MARC, this time for a sign. MARC considered the sign application on January 8, 2019, and again unanimously rejected it. See Doc. No. 1-7, p. 3. MARC explained Section 105-1-15(z)(4) prohibits signs from being printed directly on the building. In a letter dated January 28, 2019, the City wrote that the sign permit was denied because:

1. Section 105-1-15 (z)(3) No combination of wall signs and supports shall exceed 20 percent of the signable wall surface area up to a maximum of 200 square feet unless other limits are approved by the MARC.

2. Section 105-1-15 (j)(9) No sign or wall mural shall be painted on any building without prior approval from the MARC.

See Doc. No. 1-12.

Lonesome Dove appealed the denial of its sign permit application to the City Board of Commissioners ("Board"). The Board rejected the appeal on March 19, 2019. The Mandan City Police sent the Plaintiffs a Notice of Violation dated April 18, 2019, which informed them the sign was in violation of city code for the following reasons:

1. Section 105-1-15 (j)(9) No sign or wall mural shall be painted on any building without prior approval from the MARC.

2. Section 105-1-15 (z)(4) Signs printed directly on exterior walls or surface of a building shall be prohibited.

See Doc. No. 1-15. The notice gave the Plaintiffs until May 23, 2019, to remove the sign. It further stated that "[f]ailure to comply ... will result in a court appearance where fines and penalties will be assessed by a Municipal Judge."

The Plaintiffs filed this action challenging the constitutionality of Mandan's mural and wall ordinances in federal court on May 20, 2019. See Doc. No. 1. Plaintiffs filed an ex parte motion for a temporary restraining order on May 21, 2019, seeking to enjoin Mandan from requiring them to remove the sign/mural. See Doc. No. 8. Counsel for the Plaintiffs has submitted a letter detailing efforts to notify Mandan of the lawsuit and the motion for a temporary restraining order. See Doc. No. 8-2.

II. STANDARD OF REVIEW

Plaintiffs seeks a temporary restraining order pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, which provides in relevant part as follows:

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b).

The United States Supreme Court has recognized that in some limited situations, a court may properly issue ex parte orders of brief duration and limited scope to preserve the status quo pending a hearing. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) ; Carroll v. Princess Anne, 393 U.S. 175, 180, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). The limited nature of ex parte remedies

reflect[s] the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute. Ex parte temporary restraining orders are no doubt necessary in certain circumstances, cf. Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 180 [89 S.Ct. 347, 21 L.Ed.2d 325] ...(1968), but under federal law they should be restricted to serving their underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.

Granny Goose Foods, 415 U.S. at 438-39, 94 S.Ct. 1113 (emphasis in original).

Rule 65(b) directs the court to look to the specific facts shown by an affidavit to determine whether immediate and irreparable injury, loss, or damage will result to the applicant. In addition, it is well-established the court is required to consider the factors set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) in determining whether a temporary restraining order should be granted. The Dataphase factors include "(1) the threat of...