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G & G Fremont, LLC v. City of Las Vegas

United States District Court, D. Nevada

October 9, 2014

G & G FREMONT, LLC., et al., Plaintiff(s),
v.
CITY OF LAS VEGAS, Defendant(s),

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is a motion for preliminary injunction filed by plaintiffs G&G Fremont, LLC and Crazy Ely Western Village, LLC (collectively "plaintiffs"). (Doc. #10). Defendant City of Las Vegas (hereinafter "defendant") filed a response, (doc. #14), and plaintiffs filed a reply, (doc. #19).

I. Background

Plaintiffs own and operate three souvenir and packaged liquor stores along the Fremont Street Experience in Las Vegas. (Doc. #1). They brought the instant action against the City of Las Vegas, alleging that the city was targeting packaged liquor sellers by enforcing certain ordinances against them.

The city passed ordinance number 6320 as part of a regulatory scheme aimed to reduce problems caused by high alcohol consumption near the Fremont Street Experience. (Doc. #1, 14). The ordinance applies to package liquor sellers adjacent to or on a pedestrian mall. It restricts the sale of single-serving alcoholic products and products of greater than 32 ounces or more than eleven percent alcohol by volume. LVMC 6.50.475. It forbids posting prices visible to individuals outside the establishment, limits advertising to the windows of the establishment, and limits the percentage of window space that may be used for advertising. Id. Finally, the ordinance restricts the percentage of window space that may be used to advertise alcoholic beverages, and requires liquor sellers to post a sign indicating that consumption on the Fremont Street Experience is forbidden. Id.

In their complaint, plaintiffs assert claims for violations of equal protection, procedural due process, substantive due process, and the First Amendment. (Doc. #1). They also claim that the ordinances are unconstitutionally vague, that the regulatory scheme is an unconstitutional bill of attainder, and that the regulations constitute a taking. (Doc. #1). They assert claims for violations of their civil rights under 42 U.S.C. ยง 1983 and claim that the ordinances violate section 1 of the Sherman Antitrust Act. (Doc. #1). Their complaint seeks declaratory relief as well as a preliminary and permanent injunction.

II. Legal Standard

Federal Rule of Civil Procedure 65 provides that the court may issue a preliminary injunction on notice to the adverse party. Fed.R.Civ.P. 65(a)(1). A preliminary injunction seeks to preserve the status quo and prevent irreparable harm from occurring before a judgment is issued. Textile Unlimited Inc. v. BMH & Co., 240 F.3d 781, 786 (9th Cir. 2001).

The Supreme Court has stated that courts must consider the following elements in determining whether to issue a preliminary injunction: (1) likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is not granted; (3) balance of hardships; and (4) advancement of the public interest. Winter v. N.R.D.C., 555 U.S. 7, 20 (2008). The test is conjunctive, meaning the party seeking the injunction must satisfy each element.

Additionally, post- Winter, the Ninth Circuit has maintained its serious question and sliding scale tests. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). "Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Id.

"Serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135.

III. Discussion

In their motion for a preliminary injunction, plaintiffs seek to enjoin enforcement of the city's "package liquor ordinances, " ("the ordinances") which they allege are unconstitutional. (Doc. #10). In particular, plaintiffs argue that the ordinances (1) violate the First Amendment, (2) constitute an unconstitutional bill of attainder, (3) are preempted by the Sherman Antitrust Act, and (4) violate their procedural due process rights. (Doc. #10). Defendant ...


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