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

202 F. Supp. 3d 1175, 2016 WL 4257766, 2016 U.S. Dist. LEXIS 106274
CourtDistrict Court, D. Nevada
DecidedAugust 10, 2016
DocketCase No. 2:14-CV-1006 JCM (PAL)
StatusPublished
Cited by1 cases

This text of 202 F. Supp. 3d 1175 (G & G Fremont, LLC v. City of Las Vegas) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G & G Fremont, LLC v. City of Las Vegas, 202 F. Supp. 3d 1175, 2016 WL 4257766, 2016 U.S. Dist. LEXIS 106274 (D. Nev. 2016).

Opinion

ORDER

James C. Mahan, UNITED STATES DISTRICT JUDGE

Presently before the court is defendant City of Las Vegas’s (the “City” or the “defendant”) motion for summary judgment. (ECF No. 44). Plaintiffs G&G Fremont, LLC’s and Crazy Ely Western Village, LLC’s (collectively, as the “property owners” or the “plaintiffs”) filed a response (ECF No. 48), and the City filed a reply (ECF No. 50).

Also before the court is the property owners’ motion for partial summary judgment. (ECF No. 45). The City filed a response (ECF No. 49), and the property owners’ filed a reply (ECF No. 51).

I. Background

The present case involves the regulation of package liquor sales by the City along the Fremont Street Experience (“FSE”). (ECF No. 44 at 2). The property owners own shops that sell packaged liquor on the FSE. (ECF No. 45 at 3). At the Las Vegas Planning Commission’s July 9, 2013 meeting, members of the public and a representative of the Las Vegas Metropolitan Police Department (“LVMPD”) opposed the applications of four new package liquor stores and voiced their concerns about issues caused by these stores. (Id. at 3). The accounts from the individuals present described various issues with the package sales, including: (1) how the package stores routinely oversold alcoholic beverages to visibly intoxicated patrons; and (2) the availability of high-alcohol drinks in large quantities. (ECF No. 44 at 3). The planning commission also heard accounts of the effect of package liquor on underage [1179]*1179drinking and crime. (Id. at 4-5). Furthermore, a retired LVMPD sergeant spoke about his experiences with crowd issues and underage drinking, involving package liquors. (Id. at 5). Finally, the City received petitions opposing the applications for new package liquor purveyors with over 1,000 signatures. (ECF No. 45 at 7).

As a result of this meeting and further discussion, the City ultimately adopted Bill No. 2013-15 as Ordinance No. 6287 and imposed a 180-day moratorium on new land use entitlements and business licenses for package liquor on FSE. (Id. at 6). Subsequently, in May 2014, the City passed Ordinance No. 6320. (ECF No. 45 at 2). The ordinance, enacted as LVMC 6.50.475, applied only to souvenir stores along the FSE selling packaged liquor. (ECF No. 45 at 3). These new restrictions prohibited the sale of “single serving products containing alcohol for immediate consumption,” such as Jell-0 shots or candy; any malt or beer beverage greater than thirty-two liquid ounces in size or an alcohol content greater than eleven percent alcohol by volume. The ordinance further prohibited the sale of alcohol (except beer or wine) in containers less than three hundred seventy-five milliliters. § 6.50.475(A), (C)-(E).

LVMC 6.50.475 also contained several advertising restrictions. (ECF No. 44 at 21). The ordinance required that the stores limit their alcohol advertising to only ten percent of their store windows, and it prohibited stores from posting alcohol price advertisements visible to individuals standing outside of the establishment. § 6.50.475(F)-(H). The ordinance also required that the stores post signs informing customers that it is prohibited to open or consume alcohol purchased at the store on the pedestrian mall. § 6.50.475(1).

The property owners filed the instant complaint on June 20, 2014, alleging thirteen claims for relief. (ECF No. 1 at 26). On October 7, 2015, the city council repealed former LVMC 6.50.475(F)-(H). (ECF No. 44 at 21). Defendant now moves for summary judgment and plaintiffs move for partial summary judgment. The court will address each in turn.

II. Legal Standard

The Federal Rules of Civil Procedure allow summary judgment 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 a judgment as a matter of law.” Fed. R. Civ. P. 56(a). 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Natl Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). However, to be entitled to a denial of summary judgment, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Id.

In 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 uncontrovert-ed 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).

By contrast, when the non-moving party bears the burden of proving the claim or [1180]*1180defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party’s case; or (2) by demonstrating that the non-moving 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 Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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202 F. Supp. 3d 1175, 2016 WL 4257766, 2016 U.S. Dist. LEXIS 106274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-g-fremont-llc-v-city-of-las-vegas-nvd-2016.