United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Motion for Summary Judgment, (ECF No.
28), filed by Defendants Jacqueline R. Holloway
(“Director Holloway”) and Clark County (the
“Defendants”). Plaintiffs AJ Sloan, Inc.
(“AJ Sloan”); LGS3, LLC (“LGS3”);
LGS4, LLC (“LGS4”); and LGS5, LLC
(“LGS5”) (collectively “Plaintiffs”)
filed a Response, (ECF No. 31), and Defendants filed a Reply,
(ECF No. 35). For the reasons discussed below, the Court
GRANTS Defendants' Motion for Summary Judgment.
own gaming and drinking establishments in Clark County,
Nevada, that operate as taverns under “Class A”
gaming licenses. These licenses “permit the operation
of a total of fifteen or fewer slot machines
incidental to the primary business at the
establishment wherein the slot machines are to be
located.” Clark County Code (the “Code”)
§ 8.04.040(b)(3) (emphasis added).
a proliferation of businesses operating under Class A
licenses, the Clark County Board of County Commissioners (the
“Board”) passed an amendment to its tavern laws
(the “2011 Ordinance”) effective April 9, 2011.
(See, e.g., Exs. O, P, Q to Mot. for Summary J.
(“MSJ”), ECF Nos. 28-1, 28-2); (Holloway Dep. at
34, Ex. E to MSJ, ECF No. 28-1). The 2011 Ordinance required
that taverns operating under Class A limited gaming licenses
have a bar and at least eight slot machines
“embedded” in the bar. (Holloway Dep. at 54);
Code § 8.20.020.385 (Apr. 19, 2011). Taverns licensed
“at the same location” prior to December 22,
1990, were exempted from the new requirement. Code §
8.20.020.385 (Apr. 19, 2011).
enforcement staff eventually informed the Board that they
were experiencing difficulties in enforcing certain
provisions of the 2011 Ordinance. (See Ex. X at 29,
ECF No. 28-3). In addition, the Board became concerned that
certain businesses were exploiting a loophole in the 2011
Ordinance to continue to operate as a “slot
parlor” under the guise of tavern. (See Id.
at 34-36). Both concerns related to attempts by some
businesses to comply with the “embedded” slot
machine requirement by moving free standing “slant
top” machines adjacent to a bar. (See, e.g.,
id. at 29). Because of these issues, the Board
decided to again amend the Code. (See Ex. Z at 92,
ECF No. 28-3).
December 3, 2014, the Board passed Ordinance L-256-14 (the
“2014 Ordinance”) by a 6-1 vote. (See
Ex. A to MSJ, ECF No. 28-1). The 2014 Ordinance requires
taverns to maintain bars with a minimum height of forty
inches and to operate a minimum number of slot machines as
“bartop machines.” Code § 8.20.020.385(c)(1).
Code § 8.20.020.385(c)(2). A tavern need not comply with
these provisions if it either operates seven or fewer slot
machines or qualifies as a grandfathered tavern. Code §
8.20.020.385(d)-(e). According to the Code, a
“grandfathered tavern” is:
(i) A tavern licensed for fifteen or fewer slot machines, the
application for which was pending or approved prior to
[December 8, 2006]; or
(ii) Any tavern which, as of December 2, 2014, operated more
than fifty percent of the slot machines on its premises as
bartop machines, regardless of the height of such bartop
machines located in a bar . . . .
Code § 8.20.020.385(a)(i)-(ii).
December 31, 2014, Director Holloway of the Business License
Department sent Plaintiffs a letter that identified exempted
locations. (Ex. 2 to Resp., ECF No. 31-2). The letter
reflected Director Holloway's interpretation that, like
the 2011 Ordinance, exemption under the 2014 Ordinance
depended on the date the tavern location first received a
gaming license. (Id.). Shortly thereafter, Board
members informed Director Holloway that her interpretation
was inconsistent with the language and intent of the 2014
Ordinance. (See Holloway Dep. at 34, 36- 40).
Director Holloway revised her interpretation and concluded
that the application date of “current ownership,
” rather than tavern location, determined grandfathered
status. (Id.). On October 28, 2015, and November 2,
2015, Director Holloway sent two additional letters to
Plaintiffs clarifying her revision and notifying Plaintiffs
that they no longer qualified for grandfathered status under
the corrected interpretation. (Exs. C, D to MSJ, ECF Nos.
than complying with the 2014 Ordinance, Plaintiffs filed the
instant case in state court alleging violations of due
process and seeking declaratory and injunctive relief. (Ex. B
to Pet. for Removal, (“Compl.”), ECF No. 1).
Defendants removed the case to this Court and filed the
instant Motion for Summary Judgment on Plaintiffs'
claims. (See generally MSJ, ECF No. 28).
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.”
C.A.R. Transp. Brokerage Co. v. Darden Rests.,
Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations
omitted). In contrast, when the nonmoving party bears the
burden of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence to
negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See ...