Teens of Tomorrow v. City of Bellevue, Nebraska et al

Filing 80

MEMORANDUM AND ORDER - Plaintiff's motion for temporary restraining order (Filing No. 37 ) is denied. The objections to plaintiff's motion for temporary restraining order (Filing Nos. 61 , 67 , 71 , and 72 ) are sustained. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TEENS OF TOMORROW,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF BELLEVUE, NEBRASKA;
)
CITY OF LINCOLN, NEBRASKA;
)
CITY OF OMAHA, NEBRASKA;
)
CITY OF PAPILLION, NEBRASKA; )
CITY OF LA VISTA, NEBRASKA;
)
CITY OF COLUMBUS, NEBRASKA;
)
CITY OF FREMONT, NEBRASKA;
)
CITY OF RALSTON, NEBRASKA;
)
CITY OF COUNCIL BLUFFS, IOWA; )
and CITY OF CARTER LAKE, IOWA,)
)
Defendants.
)
______________________________)

8:13CV127

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
plaintiff Teens of Tomorrow, Inc. (“TOT”)1 for “a temporary
restraining order and preliminary injunction against the
Defendants” filed pursuant to Federal Rule of Civil Procedure
65(b) (Filing No. 37).

Plaintiff seeks an order “[r]estraining

and enjoining the Defendant cities from serving TOT, its agents
or volunteers, with any citations, cease and desist orders, or
otherwise preventing TOT and its volunteers from legally

1

While the caption of the complaint lists only “TEENS OF
TOMORROW, an Iowa Corporation” as the plaintiff, the signature
block of the complaint reads, “TEENS OF TOMORROW, and QUENTON
PFITZER - Plaintiffs” (Filing No. 1, at 13). At the hearing on
this motion, counsel for TOT represented to the Court that
Quenton Pfitzer is not a plaintiff in this action.

soliciting as a non-profit organization within city limits” (Id.,
at 1-2).
Objections to plaintiff’s motion for temporary
restraining order have been filed by the City of Lincoln (Filing
No. 61); the City of Papillion (Filing No. 67); the City of
Bellevue (Filing No. 71) and by the City of Ralston (Filing No.
72).

Those objections will be sustained.
A hearing was held on May 29, 2013, at which time

evidence was offered by the parties and the Court heard arguments
on the motion (with the exception of the City of Omaha, which did
not attend the hearing).

After consideration of the evidence,

the briefs, and the relevant law, the Court finds that
plaintiff’s motion should be denied.
“[W]hether a preliminary injunction should issue
involves consideration of (1) the threat of irreparable harm to
the movant; (2) the state of the balance between this harm and
the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.”

Dataphase Sys., Inc.

v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981).

“In

balancing the equities no single factor is determinative.”
Dataphase, 640 F.2d at 113.
Plaintiff’s complaint seeks declaratory and injunctive
relief and damages due to alleged violations of the First and

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Fourteenth Amendments to the United States Constitution, as well
as similar clauses of the Nebraska Constitution.

Plaintiff

claims that it is a “duly incorporated non-profit organization
organized under Iowa law, certified by the Nebraska Secretary of
State to do business in the state of Nebraska,” and that it is a
non-profit organization under 26 U.S.C. § 501(c)(3) (Filing No.
1, at ¶¶ 4, 5).

In support of its motion, plaintiff offered a

set of affidavits individualized for each defendant, executed by
Quenton Pfitzer, Executive Director and registered agent for
plaintiff.

In addition, two general affidavits were filed on

behalf of the plaintiff.
1.

Irreparable Harm.

Mr. Pfitzer’s first general

affidavit2 states that plaintiff was organized “to provide teens
with activities in a positive environment in order to dissuade
them from engaging in drugs, gang activities, or other dangerous
behaviors” (Pl. Ex. 2 at ¶ 4).

The affidavit describes the

process by which Mr. Pfitzer provides candy to the teens, who
walk door to door to sell the candy in various neighborhoods.
Mr. Pfitzer claims that despite the fact that all defendant
cities besides Ralston exempt non-profit and charitable

2

At the hearing, defendant cities La Vista and Papillion
objected to certain paragraphs of this affidavit for lack of
foundation and personal knowledge (see Filing No. 67). Because
the Court is denying plaintiff’s motion, the Court will overrule
La Vista’s and Papillion’s objections, without arriving at any
decision on the merits thereto.
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organizations from vending permit requirements, defendants
“claimed that they could only issue these vending permits to
individuals, and they would have required each of my volunteers
to get a permit personally” (Id. at ¶¶ 12, 13).

Mr. Pfitzer

stated that when he “attempted to send volunteers into the
Defendant cities, I was forced to cease and desist soliciting
under threat of arrest, despite Teens of Tomorrow’s status as a
non-profit organization fitting within exemptions laid out in
Defendants’ ordinances,” unlike other organizations like the Girl
Scouts (Id. at ¶¶ 16, 17).

Furthermore, Mr. Pfitzer states that

he has been “cited under multiple city ordinances” and has been
“criminally prosecuted” (Id. at ¶ 18).

Because Mr. Pfitzer does

not distinguish any of the defendant cities in this affidavit,
the Court is not able on this basis to determine which of the
defendant cities, if any, should be subject to an injunction.
Mr. Pfitzer also submitted a set of affidavits
regarding each individual defendant.

As to the City of Bellevue,

Mr. Pfitzer stated that in 2012, “They gave me a permit after
arguing about the fees then the next yr the refused to give me
another permit yet I didn’t get any tickets over that yr” (Pl.
Ex. 10A).3

On a scale of one to ten, Mr. Pfitzer rates “the

amount of trouble this Defendant and its agents has caused me and

3

A portion of each affidavit is hand-written and is quoted
verbatim.
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Teens of Tomorrow” as a “10+++.

They are the reason for the

suit” (Id.).
As to the City of Lincoln, Mr. Pfitzer states that in
2011, “They took a kid arrested him then let him call me to only
find out we are legal and returned him to his Route hours later
and they stop kids now and tell them they have the wrong permit
and need to get the right one,” yet Mr. Pfitzer candidly rates
this amount of trouble as a three on a scale of one to ten. (Pl.
Ex. 10B).
As to the City of Omaha, Mr. Pfitzer states that in
September 2012, “[Unnamed person] Stopped a kid and gave him a
ticket saying he is breaking the law” (Pl. Ex. 10C).

Mr. Pfitzer

states, “Omaha tickets me about every year and right before court
Dismisses them making me leave the neighborhood as people watch
me get my ticket”

(Id.).

“One time in court I defended myself

Judge Lowel (sic) gave me a not guilty plea and told the officer
I was legal after that for months that officer was stopping me
and even ticket one of my kids made us leave the area in front of
a pastor and the kid got convicted of the charges” (Id.).
Pfitzer does not name the nature of the charges.

Mr.

Yet he does

state, “That officer stopped after I made many complaints to
Internal affairs” (Id.).

Although Mr. Pfitzer rates this amount

of trouble as 10++ on a scale of one to ten, when judged by the

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evidence he submitted in support of this motion, the difficulty
appears to be resolved.
As to the City of Ralston, Mr. Pfitzer states that in
2011, “I can’t aford there fee for the size of there city” and
rates this amount of trouble as a seven on a scale of one to ten.
(Pl. Ex. 10D).
As to the City of Papillion, Mr. Pfitzer states that in
2012, “The refuse to give me a permit,” and Mr. Pfitzer rates
this amount of trouble as a 10+ on a scale of one to ten. (Pl.
Ex. 10E).
As to the City of La Vista, Mr. Pfitzer described a
conversation he had in May 2013 with an unnamed person regarding
a permit, stating that he left before filing any permit
application (Pl. Ex. 10F).

Mr. Pfitzer rates this amount of

trouble as a ten on a scale of one to ten.
As to the City of Columbus, Mr. Pfitzer states that in
2011, “police kicked me out told me I needed a permit so I
haven’t been back since and that was yrs ago,” and Mr. Pfitzer
rates this amount of trouble as a ten on a scale of one to ten.
(Pl. Ex. 10G).

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As to the City of Council Bluffs, Iowa,4 Mr. Pfitzer
describes some difficulties he claims he had in May 2013, yet Mr.
Pfitzer rates this amount of trouble as a one on a scale of one
to ten, stating, “all is fixed now” (Pl. Ex. 10H).
As to the City of Carter Lake, Iowa,5 Mr. Pfitzer
states that “police kicked me out saying I needed a permit so I
haven’t been back since and that was yrs ago,” and Mr. Pfitzer
rates this amount of trouble as a ten on a scale of one to ten.
(Pl. Ex. 10).
The Court finds that plaintiff’s evidence presented
against each defendant city, if true, does not establish a
present threat of irreparable harm to the plaintiff by any of the
defendants.
Mr. Pfitzer’s second general affidavit (Plaintiff’s
Exhibit 11) states that he is “serving legal probation for a
matter unrelated to this cause of action” (Pl. Ex. 11, ¶ 1).6
Mr. Pfitzer claims, “[M]y probation officer stated that, if I

4

Both the cities of Council Bluffs, Iowa, and Carter Lake,
Iowa, have filed motions to dismiss, alleging, among other
things, lack of personal jurisdiction. In evaluating plaintiff’s
present motion, the Court does not arrive at any decision
regarding the merits of the Iowa cities’ motions to dismiss.
5

See footnote 4.

6

At the motion hearing, plaintiff objected to defendant
cities La Vista’s and Papillion’s Exhibits 3, 4, and 5, regarding
Mr. Pfitzer’s criminal history, on relevance grounds. Because
plaintiff itself submitted evidence regarding Mr. Pfitzer’s
criminal history, the Court overrules the objections.
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receive one more ticket for soliciting in any of the Defendant
cities, he will consider that a violation of my probation and I
will be subject to more severe punishments” on the advice of
Omaha prosecutor Michael Winchester (Pl. Ex. 11, ¶¶ 10, 4).

The

Court finds that this affidavit, if true, states a real but
limited threat of irreparable harm to plaintiff’s agent, Mr.
Pfitzer.

The threat of irreparable harm to plaintiff as a result

of Mr. Pfitzer’s potential legal troubles is unclear.
2.

Balance of Interests Among the Parties.

The Court

finds that the state of the balance between this limited threat
of irreparable harm to plaintiff’s agent and the injury that
granting the injunction would inflict on defendants’ interests
does not favor either party.
3.

Probability of Success on the Merits.

At this

point in the litigation, the allegations against each defendant
are factually undeveloped such that the Court cannot make any
real estimation as to the success on the merits of plaintiff’s
cause of action.

Thus at this stage, the Court cannot say that

it is probable that plaintiff will succeed, and this factor
favors defendants.
4.

The Public Interest.

In its brief, plaintiff did

not offer any argument in its favor for this factor, other than a
general statement as to the value of free speech and nondiscrimination by cities (Filing No. 38, at 5).
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On the other

hand, the cities of La Vista, Papillion, and Ralston advocated
for the public interest in public safety and the preservation of
public peace (Filing No. 68, at 5; Filing No. 73, at 4).

The

Court finds that this factor does not favor either party.
Because none of the Dataphase factors favors plaintiff, the Court
will deny plaintiff’s motion.

Accordingly,

IT IS ORDERED:
1) Plaintiff’s motion for temporary restraining order
(Filing No. 37) is denied.
2) The objections to plaintiff’s motion for temporary
restraining order (Filing Nos. 61, 67, 71, and 72) are sustained.
DATED this 31st day of May, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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