Wolfman, Inc. v. City of New Orleans

874 So. 2d 261, 2003 La.App. 4 Cir. 0120, 2004 La. App. LEXIS 1125, 2004 WL 943447
CourtLouisiana Court of Appeal
DecidedApril 21, 2004
DocketNo. 2003-CA-0120
StatusPublished
Cited by2 cases

This text of 874 So. 2d 261 (Wolfman, Inc. v. City of New Orleans) 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
Wolfman, Inc. v. City of New Orleans, 874 So. 2d 261, 2003 La.App. 4 Cir. 0120, 2004 La. App. LEXIS 1125, 2004 WL 943447 (La. Ct. App. 2004).

Opinion

| tMICHAEL E. KIRBY, Judge.

Plaintiff, Wolfman, Inc., appeals the September 30, 2002 trial court judgment in favor of the defendants, City of New Orleans, et al, denying plaintiffs petition for [262]*262a writ of mandamus seeking to compel' the defendants to issue to plaintiff a permit to operate a standard restaurant.

Before summarizing the series of events leading to this appeal, we note that plaintiff and defendants have attached to their briefs items that are not contained in the record, and have referred to those items in their arguments. As a court of record, we must limit our review to that which is in the record before us. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. The record contains no transcripts of the hearings in this matter.

On September 13, 2002, plaintiff filed a petition for a writ of mandamus and for declaratory judgment, naming as defendants the City of New Orleans; the City of New Orleans, Departments of Safety and Permits and Finance; Mr. Paul A. May, in his capacity as Director of the Department of Safety and Permits; Mr. Reginald Zeno, in the capacity as Director of the Department of Finance; and the | ¡.Board of Zoning Adjustments (“BZA”), City Planning Commission, City of New Orleans. In that petition, plaintiff asked that a writ of mandamus issue to the defendants ordering them to either issue licenses and/or permits for plaintiff to open and operate a standard restaurant at 943 Whitney Avenue, and such other municipal locations that plaintiff desires to open and operate similar standard restaurants, or show cause to the contrary on September 19, 2002. This petition also asked that a declaratory judgment issue against the BZA stating that the BZA’s rules prevent it from reconsidering, at a subsequent meeting, its reversal of the decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application.

Plaintiff owns and operates a restaurant called Chicken Box, with several locations throughout the City of New Orleans. Plaintiff sought to establish a Chicken Box outlet in the area zoned as the B-l Neighborhood Business District. On June 14, 2002, plaintiff applied for an occupational license to operate a “standard restaurant” at 943 Whitney Avenue in New Orleans. In support of its application, plaintiffs attorney sent a letter to Mr. Paul May, the Director of the Department of Safety and Permits for the City of New Orleans, and attached documentation to support its request that the proposed Chicken Box restaurant be deemed a “standard restaurant,” rather than a “fast food restaurant.” Shortly thereafter, plaintiffs application was denied. The denial of the application is not in the record. On June 21, 2002, plaintiff appealed the denial of its occupational license application to the BZA.

laBy letter dated September 6, 2002, Mr. May requested that the BZA grant a “rehearing” in this matter in order to afford the BZA an opportunity to hear a complete explanation of the decision of the Department of Safety and Permits. Mr. May further stated that his department’s position was not represented at the BZA’s previous meeting. On August 16, 2002, the BZA, noting the plaintiffs appeal was heard at a public hearing on August 12, 2002, granted plaintiffs appeal and reversed the decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application. In the order granting the appeal, the BZA stated that counsel for plaintiff appeared at the August 12, 2002 public hearing to appeal the decision of the Director of the Department of Safety and Permits that the Chicken Box on 943 Whitney Avenue would not meet the requirements to be categorized as a standard restaurant. On September 13, 2002, the trial court issued a writ of mandamus ordering the defendants to either issue licenses and/or per[263]*263mits for plaintiff to open and operate a standard restaurant at 943 Whitney Avenue, and such other municipal locations that plaintiff desires to open and operate similar standard restaurants, or show cause to the contrary on September 19, 2002.

On September 18, 2002, the defendants filed a peremptory exception of no cause of action, arguing that mandamus is not the appropriate remedy for denial of “the alcoholic beverage permit in question.” The record in this case does not include a request for an alcoholic beverage permit at the restaurant located at 943 Whitney Avenue, and the plaintiff states in its appeal brief that no alcoholic |4beverage permit was ever requested. The defendants also argue in this exception that plaintiff failed to exhaust its administrative remedies before filing a petition for writ of mandamus.

On September 23, 2002, the defendants filed a memorandum in opposition to the writ of mandamus concerning the issue of the applicability of Robert’s Rules of Order. In that memorandum, the defendants argue that under Robert’s Rules of Order, the BZA can reconsider an earlier vote at any time.1

On September 30, 2002, the trial court rendered judgment in favor of the defendants denying plaintiffs petition for writ of mandamus. In reasons for judgment, the trial court noted that this matter came before the court on September 20, 20022 for a hearing on a petition for a writ of mandamus and was subsequently taken under advisement to determine whether the defendants failed to follow proper procedure when the BZA placed this issue on its agenda after having heard and ruled in favor of plaintiff in a previous meeting in the absence of the Director of the Department of Safety and Permits.

The trial court stated that Section 37 of Robert’s Rules of Order states in pertinent part, “a reconsideration can be moved only by one who voted aye if the motion involved was adopted, or no if the motion was lost.” The court noted that plaintiff contends that the making of such a Motion to Reconsider must be made on the same day the vote to be reconsidered was taken. The court stated that those are Uthe general rules regarding reconsideration of an issue, and Robert’s Rules of Order provide that a motion to reconsider a vote in a committee can be made and taken up regardless of the time that has elapsed since the vote was taken.

The trial court found that under Robert’s Rules of Order, the BZA could move to reconsider an issue during the next meeting following the first hearing on that issue. It found the fact that Mr. May made a request to the BZA to reconsider the issue to be inconsequential. The court found that it was appropriate for the BZA itself to move for and grant the reconsideration and subsequently set it for rehearing at a later meeting. The petition for a writ of mandamus was denied as premature because plaintiff had not yet exhausted all of the administrative remedies available, 1.e. because the BZA was set to rehear the matter on October 14, 2002.

Plaintiff appealed the trial court judgment. On appeal, plaintiff argues that the trial court erred in ruling that the BZA is entitled to reconsider its decision in plaintiffs favor at a subsequent meeting even though no motion to reconsider was made until a subsequent meeting.

[264]*264Section II.E.l of the BZA Rules states, “in the absence of any provision in these rules to the contrary, the rules of procedure provide by Robert’s Rules of Order shall prevail.” The BZA Administrative Rules, Policies and Procedures do not include procedural rules for reconsideration; therefore, we must look to Robert’s Rules of Order.

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874 So. 2d 261, 2003 La.App. 4 Cir. 0120, 2004 La. App. LEXIS 1125, 2004 WL 943447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfman-inc-v-city-of-new-orleans-lactapp-2004.