Yur-Mar, LLC v. Jefferson Parish Council

90 So. 3d 1137, 11 La.App. 5 Cir. 669, 2012 WL 833297, 2012 La. App. LEXIS 310
CourtLouisiana Court of Appeal
DecidedMarch 13, 2012
DocketNo. 11-CA-669
StatusPublished
Cited by5 cases

This text of 90 So. 3d 1137 (Yur-Mar, LLC v. Jefferson Parish Council) 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
Yur-Mar, LLC v. Jefferson Parish Council, 90 So. 3d 1137, 11 La.App. 5 Cir. 669, 2012 WL 833297, 2012 La. App. LEXIS 310 (La. Ct. App. 2012).

Opinion

WALTER J. ROTHSCHILD, Judge.

_JjThe Jefferson Parish Council is appealing from the trial court’s ruling granting a preliminary injunction in favor of Yur-Mar, LLC. For the reasons stated herein, the trial court’s judgment as well as the preliminary injunction preventing enforcement of Resolution No. 115740 are hereby vacated.

On December 15, 2010, Yur-Mar, LLC filed the instant Petition for Judicial Review, Temporary Restraining Order and/or for a Preliminary Injunction naming as defendant the Jefferson Parish Council. Plaintiff alleged that it owned a business in Jefferson Parish operating under the name “City Bar” and that it held a permit to sell alcoholic beverages at this location. Plaintiff further alleged that on September 4, 2010, an investigation by state and parish officials resulted in misdemeanor summons for the sale of alcohol to adults under the age of twenty-one years. As set forth by parish ordinance, The Jefferson Parish Alcoholic Beverage Review Committee conducted a hearing on these charges, and recommended a Resolution to the Council that plaintiffs alcohol permit be suspended for a period of two weeks, but that enforcement of the suspension would be suspended as long as the policy of the bar to [1139]*1139only admit patrons over the age of twenty-one remain in effect for one year after the date of the Resolution. At its | <¡meeting on December 8, 2010, the Jefferson Parish Council unanimously adopted Resolution No. 115740, which provided for suspension of plaintiffs 2010 alcohol permit for a period of two weeks beginning ten days from the council’s action.

Yur-Mar then filed this summary proceeding seeking injunctive relief, asserting that the Council’s action was unlawful and in violation of parish ordinances and state statutes. Yur-Mar alleged that it would sustain irreparable harm if the suspension of the permit was not temporarily stayed, and sought a temporary restraining order against the Council preventing it from enforcing Resolution No. 115740. Plaintiff also sought a hearing on a preliminary injunction, and after trial on the merits, a rescission of the Council’s Resolution No. 115740.

On December 16, 2010, the trial court issued a temporary restraining order prohibiting the Jefferson Parish Council from suspending the alcohol beverage sales permit held by Yur-Mar, LLC.1 A hearing on the preliminary injunction was set for December 28, 2010. The Jefferson Parish Council filed a Motion to Dissolve the TRO, which was opposed by Yur-Mar, and this matter was also set for hearing on December 28, 2010. The Jefferson Parish Council also filed an exception of unauthorized use of summary proceeding and an answer to plaintiffs petition. The record does not contain a ruling on the Parish’s dilatory exception.

Hearing on the preliminary injunction was held on December 28, 2010. By judgment rendered the following day, the trial court granted a preliminary injunction in favor of Yur-Mar and against the Jefferson Parish Council, ordering that “the plaintiff shall be allowed to continuing [sic] operating Yur-Mar, LLC, while ensuring that each customer must be 21 years of age to enter.” The trial court also denied the Council’s motion to dissolve the TRO.

|4On January 12, 2011, the Jefferson Parish Council filed this timely devolutive appeal from the judgment on the basis that the district court had no basis for the entry of a preliminary injunction in this case. The Parish Council contends that the adoption of the Resolution imposing the sanction was lawfully executed and that plaintiff failed to prove its entitlement to injunctive relief. We agree.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. H20 Hair, Inc. v. Marquette, 06-930 (La.App. 5 Cir. 5/15/07), 960 So.2d 250, 259, citing Jurisich v. Jenkins, 97-1870 (La.App. 1 Cir. 9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. See also, USI Ins. Services, LLC v. Tappel, 09-149 (La.App. 5 Cir. 11/10/09), 28 So.3d 419, 424, writ denied, 09-2697 (La.2/26/10), 28 So.3d 271. The principal demand is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or tentatively decide merit issues. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 494 (La.1979). Further, the prima facie right to a permanent injunction must be proved before a preliminary injunction may issue. Equitable Pe-[1140]*1140troleum Corp. v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2 Cir.1983). Irreparable injury means the petitioner cannot be adequately compensated in money damages or suffers injuries which cannot be measured by pecuniary standards. Camp, Dresser McKee, Inc. v. Steimle and Associates, Inc., 94-547 (La.App. 5 Cir. 2/15/95), 652 So.2d 44, 47.

[f¡A trial court’s issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion. H20 Hair, Inc. v. Marquette, supra, 960 So.2d at 259.

In its petition seeking injunctive relief, Yur-Mar alleged that the Council erred in suspending its alcohol permit without taking additional evidence or providing notice. Plaintiff alleges that because the council action was in violation of law, the requirement of demonstrating irreparable harm is unnecessary. Plaintiff nevertheless alleges that without injunctive relief, plaintiff will suffer irreparable harm in terms of lost business that will likely result in the complete failure of its enterprise.

To resolve the propriety of the injunction in this case, we must first determine whether the council action was in violation of law as alleged by plaintiff.

Government regulation of the sale of alcoholic beverages is derived from La. R.S. 26:493, which provides as follows:

Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3 of this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.

In the Parish of Jefferson, the regulations governing the business of dealing in alcoholic beverages are contained in the Jefferson Parish Code of Ordinances, | fiPart II, Chapter 4. Article II of that Chapter governs required dealer permits and Section 4-16 provides that those engaged in the business of dealing in alcoholic beverages in the parish shall obtain a permit to conduct the business.

Sec. 4-32 of the Chapter provides in part:

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90 So. 3d 1137, 11 La.App. 5 Cir. 669, 2012 WL 833297, 2012 La. App. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yur-mar-llc-v-jefferson-parish-council-lactapp-2012.