United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion to Dismiss, (ECF No. 14),
filed by Defendant Clark County (the "County").
Plaintiff Nevada Restaurant Services, Inc. ("Plaintiff)
filed a Response, (ECF No. 21), and Defendant filed a Reply,
(ECF No 22). For the following reasons, the Motion to Dismiss
owns gaming and drinking establishments in Clark County,
Nevada, that operate as taverns under "Class A"
gaming licenses. (Compl.¶13, ECF No. 1). 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 a Class A
license, the Clark County Board of County Commissioners (the
"Board") passed an amendment to its tavern laws
(the "2011 Ordinance") effective April 9, 2011.
(Compl. | 15). 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. 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.
some problems with enforcement of the 2011 Ordinance, the
Board amended the Code bypassing Ordinance L-256-14 (the
"2014 Ordinance") on December 3, 2014. (Compl.
¶ 21-27). 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).
Alternatively, a tavern may comply if less than fifty-percent
of its revenue is derived from slot machines. 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).
February 20, 2015, Director Jacqueline Holloway of the
Department of Business License for Clark County
("Director Holloway") sent Plaintiff a letter (the
"February Letter") that identified exempted
locations that were grandfathered taverns under the terms of
the 2014 Ordinance. (Compl. ¶ 33); (see Ex. 3
to Compl. at 2-4, ECF No. 1-4). The February 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.
(See Ex. 3 to Compl. at 2-4, ECF No. 1-4). Plaintiff
complied with retrofitting the taverns that were not
considered grandfathered according to the February Letter.
(Compl. ¶¶ 36-37).
October 28, 2015, Plaintiff received an additional letter
from Director Holloway (the "October Letter")
(collectively the "letters") stating that
"previous notifications concerning the grandfathered
status of [Plaintiff's] taverns . . . must be
revised." (Compl.¶38); (see Ex. 6 to
Compl. at 2, ECF No. 1-7). Director Holloway revised her
interpretation and concluded that the application date of
"current ownership, " rather than tavern location,
determined grandfathered status. (Id.).
than complying with the 2014 Ordinance, Plaintiff filed the
instant case seeking a petition for writ of mandamus and
judicial review, and alleging violations of due process and
§ 1983. (See generally Compl.). Additionally,
Plaintiff alleges that the County has "arbitrarily and
capriciously denied [Plaintiff's] locations the package
liquor licenses it regularly grants other taverns"
pursuant to Code § 8.20.020.250. (Compl. 11:19-23).
Plaintiff alleges this claim under its petition for writ of
mandamus, judicial review, and due process causes of action.
February 10, 2016, Plaintiff filed a Motion for Preliminary
Injunction, (ECF No. 6), which the Court later denied, (ECF
No. 27). The County filed its opposition to Plaintiff's
Motion for Preliminary Injunction and included in its
opposition the instant Motion to Dismiss Plaintiffs claims
related to the 2014 Ordinance. (See generally Mot.
to Dismiss ("MTD"), ECF No. 14).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); BellAtl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. "To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Id. This standard "asks for more than a sheer
possibility that a defendant has acted unlawfully."
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion .... However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss." Hal Roach
Studios, Inc. v. Richard Feiner & Co., 896 F.2d
1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, "documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss" without converting the motion to dismiss into a
motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of "matters of
public record." Mack v. S. Bay BeerDistrib.,798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials ...