Williams v. Parish of St. Bernard

206 So. 3d 259, 2015 La.App. 1 Cir. 1105, 2016 La. App. LEXIS 2191
CourtLouisiana Court of Appeal
DecidedDecember 2, 2016
DocketNO. 2015-CA-1105
StatusPublished
Cited by6 cases

This text of 206 So. 3d 259 (Williams v. Parish of St. Bernard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Parish of St. Bernard, 206 So. 3d 259, 2015 La.App. 1 Cir. 1105, 2016 La. App. LEXIS 2191 (La. Ct. App. 2016).

Opinions

JUDGE SANDRA CABRINA JENKINS ■

| plaintiff, Vernon Williams d/b/a V.J.’s Hollywood Lounge, appeals the district court’s December 3, 2014 judgment that affirmed the St. Bernard Parish Council’s decision to revoke plaintiffs alcohol permit and the district court’s May 18, 2015 judgment that denied plaintiffs motion for new trial. Finding that the district court erred in affirming the St. Bernard Parish Council’s decision, we reverse and vacate the revocation of plaintiffs alcohol permit. In regard to the additional claims raised by plaintiffs petition and dismissed by the district court’s December 3, 2014 judgment, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff has owned and operated V.J.’s Hollywood Lounge (“V.J.’s”), a bar in St. Bernard Parish (“SBP”), since at least 2005. In March 2005, the SBP Council (“the Council”) suspended plaintiffs alcohol permit for VJ.’s for six months pursuant to SBP Code of Ordinances, Chapter 3, Section 3—26(f) 12(hereinafter cited as “SBP Ordinances, Ch., Sec.”).2 Plaintiff appealed the Council’s decision to the district court and, subsequently, appealed the district court’s judgment affirming the suspension of the permit to this Court. In Williams v. Parish of St. Bernard, 07-1316 (La.App. 4 Cir. 5/28/08), 984 So.2d 937 (“Williams 7”), this Court reversed the suspension of plaintiffs permit upon finding that the Council had violated plaintiffs due process rights by failing to provide sufficient notice [263]*263of the alleged violations of the SBP Ordinances.

Pending the resolution of Williams I, Hurricane Katrina struck and destroyed V.J.’s. Approximately three years later, following this Court’s decision in Williams I, plaintiff began reconstruction of V.J.’s. The Council then issued a cease and desist order for illegal construction and, subsequently, denied zoning approval and alcohol permits on the basis that V.J.’s had lost its legal nonconforming use by failing to resume use within six months of discontinuance. In response, plaintiff Sled a petition for a writ of mandamus in the district court, requesting that the Council be ordered to issue all necessary permits and licenses to plaintiff for the reconstruction of V.J.’s and for resuming operations as a legal nonconforming use. Upon review, the district court upheld the Council’s-decision and dismissed plaintiffs mandamus petition. Plaintiff appealed the district court’s judgment, to this Court. In Williams v. Parish of St Bernard, 10-0397 (La.App. 4 Cir. 10/13/10), 49 So.3d 520 (“Williams IF), this Court found that the district court |aerred in concluding that Mr. Williams lost his nonconforming use status when the discontinuance resulted from Hurricane Katrina. Accordingly, this Court reversed the district court’s judgment dismissing plaintiffs writ of mandamus.

During the pendency of the two previous appeals, V.J.’s remained closed. Following this Court’s decision in Williams II, plaintiff obtained the building permits required to 'complete reconstruction of V.J.’s in accordance with applicable SBP Ordinances. After completing reconstruction in 2011, plaintiff applied for permits to sell alcohol (“alcohol permit”) from the State of Louisiana and SBP and to resume operations of V.J.’s. In April 2011, plaintiff obtained an alcohol permit' from the State, and his application for an alcohol permit from SBP was pending before the Council. At the April 19, 2011 and May 3, 2011 Council meetings, the Council neither considered nor approved plaintiffs application for an alcohol permit. On May 11, 2011, plaintiff filed a petition for a writ of mandamus in the district court, requesting that the Council be ordered to issue him an alcohol permit for VJ.’s. At the next Council meeting, held on June 8, 2011, the Council approved the issuance of the alcohol permit for V.J.’s. Subsequently, plaintiff dismissed his petition for a writ of mandamus and, having obtained all the necessary permits, opened V.J.’s on July 1, 2011.

On September 9, 2011, the Administrator of the Alcohol Beverage and Bingo Department, Mary Chimento, issued a memorandum to the Clerk of the Council stating that she had received a sworn affidavit from Kevin Williams, a resident living across the street from V.J.’s, requesting that the alcohol permit for |4V.J.’s be revoked.3 Ms. Chimento stated that the [264]*264complaints in Mr. Williams’ affidavit established violations of two SBP Ordinances, citing (1) Ch. 3, Sec. 3-27(5): Prohibited acts on premises (relative to disturbance of the peace or obscenity, or any lewd, immoral, or improper entertainment, conduct or practices) and (2) Ch. 20, Sec. 20-136: Parking not to obstruct traffic. Based on the two alleged violations, Ms. Chimento recommended that the Council revoke the alcohol permit for V.J.’s.

- Upon receiving Ms. Chimento’s recommendation of revocation, the Council issued notice to plaintiff of the alleged violations of the SBP Ordinances, Ch. 3, Sec. 3-27(5) and Ch. 20, Sec. 20-136.4 Along with the notice, the Council sent copies of four SBP Sheriffs Department incident reports of complaints received between July 1, 2011 and August 6, 2011, involving improper parking near V.J.’s, loud music, and disturbances outside of V.J.’s. Plaintiff acknowledges receipt of [5the notice of the alleged violations, the incident reports, and a hearing date before the Council.

On September 21, 2011, the Council held a public hearing on the recommendation to revoke the alcohol permit for VJ.’s. The Council heard testimony from Kevin Williams regarding the complaints about V.J.’s described in his affidavit. Kevin Williams also brought a DVD of video footage he allegedly recorded from his house, located across the street from V.J.’s. The DVD was played for the Council while Kevin Williams continued to testify regarding incidents he observed outside of V.J.’s on unspecified dates. Upon learning from Kevin Williams that a copy of the DVD had not been provided to plaintiff prior to the hearing, the Council voted to adjourn and resume the hearing on a later date in order to allow plaintiff and his attorney time to review a copy of the DVD and to allow the Council to issue subpoenas for the SBP Sheriffs deputies who prepared incident reports.

On December 19, 2011,5 the Council resumed the public hearing on the recommendation to revoke the alcohol permit for V.J.’s. The Council heard testimony from plaintiff and two witnesses on his behalf, Rawdon Kendall Rex Lowe and Robert Lofton; Kevin Williams and his mother, Elizabeth Williams;6 and two SBP Sheriffs deputies, Deputy Jeffery Westerfíeld [265]*265and Deputy Jason |fiPreveau testified for SBP. After hearing witness testimony, the Council voted to convene in executive session in order to “consult with our attorney.” Upon returning to open session, the Council Chair, Mr. Auderer, stated he would entertain a motion to either revoke the alcohol permit for V.J.’s or to allow V.J.’s to retain the permit. Mr. Auderer stated that a vote to revoke the alcohol permit would be on the grounds of “health and safety standards relative to parking, disturbing the peace by sound, loitering, lewd, immoral, and improper, and illegal conduct.” A motion was made and seconded to vote on revocation. Prior to taking the vote, Councilmember Wayne Landry offered a substitute motion to vote for suspension rather than revocation of the alcohol permit; the substitute motion failed for lack of a second.

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Cite This Page — Counsel Stack

Bluebook (online)
206 So. 3d 259, 2015 La.App. 1 Cir. 1105, 2016 La. App. LEXIS 2191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-parish-of-st-bernard-lactapp-2016.