Kelbe Corp. v. Hall

789 F. Supp. 241, 1992 U.S. Dist. LEXIS 5130, 1992 WL 80129
CourtDistrict Court, S.D. Ohio
DecidedApril 13, 1992
DocketNo. C-1-92-270
StatusPublished

This text of 789 F. Supp. 241 (Kelbe Corp. v. Hall) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelbe Corp. v. Hall, 789 F. Supp. 241, 1992 U.S. Dist. LEXIS 5130, 1992 WL 80129 (S.D. Ohio 1992).

Opinion

ORDER GRANTING PRELIMINARY INJUNCTION

CARL B. RUBIN, District Judge.

This matter is before the Court following a hearing on April 4, 1992 on plaintiffs’ Motion for Preliminary Injunction and upon the presentation of arguments by counsel.

The plaintiffs are the owners of bars in the City of Norwood, Ohio who hold Class “D” permits. See Ohio Rev.Code §§ 4303.-13-183. Such permits issued by the State of Ohio allow the holder to sell alcoholic beverages for consumption on the premises. Id. A Class “D” permit further authorizes the holder to sell certain alcoholic beverages for consumption off the premises. Id. The State also issues Class “C” permits which authorize a holder to sell certain alcoholic beverages for off-premises consumption, but which do not permit the sale of alcoholic beverages for consumption on the premises. Ohio Rev.Code §§ 4303.-11 — .121.

Ohio Revised Code §§ 4301.33, 4305.14 and 4301.35 permit electors of a specific precinct to vote on whether permits previously issued by the Department of Liquor Control may be terminated. Such an election was held in Ward 1, Precinct B, Nor-wood, Ohio on May 7, 1991, with the result that the permits of plaintiffs were declared terminated.

In addition to the customary questions presented by any preliminary injunction motion, the following questions have been raised herein:

1. May this court inquire into the validity of the election in question when that issue is currently pending in the state courts of Ohio?

2. Does the Fifth Amendment to the Constitution of the United States bar an election of the sort conducted herein?

3. Does the “Equal Protection Clause” of the Fourteenth Amendment render the election void?

Abstention

The doctrine of abstention is a narrow exception to the duty of a district court to adjudicate a controversy before it. Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Invocation of the doctrine is justified in exceptional circumstances where abstention would clearly serve an important countervailing interest. Id.

A challenge to an election is per se a matter that should be considered by state courts. The state has a paramount interest in insuring that elections held within its boundaries be conducted in accordance [243]*243with the rules promulgated by the state. Litigation concerning the validity of the election procedures in issue has been commenced in the courts of Ohio and that litigation is currently before the Supreme Court of Ohio. This specific issue is one that should be resolved by the state court. Thus, in the absence of a compelling reason to adjudicate the question of the election procedures, this court will refrain from considering the issue.

Preliminary Injunction

In determining whether to grant a preliminary injunction, the court must consider: (1) whether, absent the injunction, the moving party would suffer irreparable injury; (2) whether the moving party has demonstrated a substantial likelihood of success on the merits; (3) whether the injunction would have a harmful effect on third parties; and (4) whether the public interest would be served by the injunction. USACO Coal Company v. Carbomin Energy, Inc., 689 F.2d 94, 98 (6th Cir.1982); Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982).

In order to obtain a preliminary injunction, the harm that would result in the absence of the injunction must be irreparable, not merely substantial. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937 [39 L.Ed.2d 166] (1974). The notion that irreparable injury must include more than a determinable monetary loss is well established. In Sampson, the Supreme Court stated that “[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” 415 U.S. at 90, 94 S.Ct. at 953 (citation omitted).

The general function of a preliminary injunction is to maintain the status quo pending determination of an action on its merits. Blaylock v. Cheker Oil Co., 547 F.2d 962 (6th Cir.1976) (citing Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472 (9th Cir.1969)).

A critical issue underlying any preliminary injunction is that of irreparable injury. The closing of a retail establishment such as a bar practically guarantees that some customers will never return. Neighborhood bars generally do not depend upon transient trade, but upon persons living nearby who consider a specific bar “their” social club. The longer the bar remains closed, the greater the number of customers who will find another establishment to serve them. In addition, plaintiffs have made factual allegations which raise serious questions about whether, as a practical matter, they would be able to operate bars elsewhere in Norwood with the permits they hold and whether they have the financial resources to relocate. Thus, a reasonable probability exists that if a preliminary injunction is not granted, plaintiffs will lose their businesses altogether. This is particularly true in light of the probability that this matter cannot be considered on the merits in less than ninety days. Accordingly, the court finds that plaintiffs face irreparable injury in the absence of a preliminary injunction.

The Court further finds that there is a substantial likelihood of success on the merits. The Fifth Amendment to the United States Constitution provides that [1] “private property” shall not be taken without due process of law; and [2] private property shall not be taken for public use without due compensation. The former provision is implicated in this case. The holder of an Ohio liquor license has a property interest protected under the Due Process Clause. Brookpark Entertainment, Inc. v. Taft, 951 F.2d 710, 716 (6th Cir.1991). The Sixth Circuit in Brookpark held that the arbitrary targeting of a particular licensee for revocation of its license violated the licensee’s due process rights.1 [244]*244In a similar vein, the targeting solely of the holders of Class “D” permits, or of the holders of such permits only in Ward 1, Precinct B, for the prohibition of the sale of alcohol raises serious questions as to whether the licensees’ due process rights have been violated. The Court must conclude in view of the due process concerns implicated by the election and the decision in

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Bluebook (online)
789 F. Supp. 241, 1992 U.S. Dist. LEXIS 5130, 1992 WL 80129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelbe-corp-v-hall-ohsd-1992.