Mosley et al v. City of Wickliffe

Filing 18

Opinion and Order signed by Judge James S. Gwin on 12/21/15. The Court, for the reasons set forth in this order, grants in part the defendant's motion for summary judgment, denies in part defendant's motion as moot, and dismisses Counts 1, 2, 5, 6, and 7 of the plaintiffs' first amended complaint for lack of standing. (Related Doc. 12 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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JULIUS MOSLEY and MOSLEY
:
MOTEL OF CLEVELAND, INC.
:
:
Plaintiffs,
:
:
v.
:
:
CITY OF WICKLIFFE, OHIO,
:
:
Defendant.
:
:
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CASE NO.1:13-CV-1646

OPINION & ORDER
[Resolving Doc. No. 12]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE1/:
Plaintiffs Julius Mosley and Mosley Motel of Cleveland sue Defendant City of Wickliffe,
Ohio (“Wickliffe”) for violating Plaintiffs’ Constitutional rights.2/ Plaintiffs say Wickliffe violated
Plaintiffs’ rights by passing Wickliffe City Ordinance 2009-49, which regulated nightclubs operating
in the city of Wickliffe.3/
Plaintiffs are also involved in a substantially similar case pending in this Court, Miller et al.
v. City of Wickliffe, Ohio (“Miller”).4/ Five of the claims overlap: claims under § 1983 (Counts 1, 6),
a claim for injunctive relief from application of 2009-49 (Count 2), a claim under 42 U.S.C. § 2000a
(Count 5), and a claim under 28 U.S.C. §§ 1981, 1982 (Count 7).
However, unlike in Miller, Plaintiffs here also allege per se and as applied violations of the
takings clause (Counts 3, 4).

1/

Judge Wells presided over this case until October 2015. On her retirement, this Court took the case under
General Order 2015-12. See non-document docket entry dated October 6, 2015.
2/
Doc. 1.
3/
Id.
4/
See 1:12-cv-01248 (N.D. Ohio). This case is distinguished by its four additional plaintiffs besides Mosley
and the Mosley Motel.

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Case No.1:13-CV-1646
Gwin, J.
Defendant moves for summary judgment.5/ Defendant moves as to both the claims that are
at issue in Miller and the unique takings clause claims. On the first set of claims, Defendant raises
substantially the same arguments they did in their Miller briefing.6/ On the takings clause claims,
Defendant argues that the claims are not ripe for review by a federal court because Plaintiffs have
not exhausted state compensation procedures.7/
On December 11, 2015, the Court ordered supplemental briefing on the issue of Article III
Standing.8/
For the following reasons, the Court GRANTS Defendant’s motion for summary judgment
as to the taking clause claims, and DENIES as moot Defendant’s motion as to the other
constitutional violations. The Court DISMISSES the remaining claims for lack of standing.

I. Background
Property at 28500 Euclid Avenue, Wickliffe, Ohio
Plaintiff Mosley Motel of Cleveland is an Ohio corporation with its primary place of business
at 28500 Euclid Avenue, Wickliffe, Ohio.9/ Plaintiff Julius Mosley is the owner of the Mosley
Motel.10/

5/

Doc. 12.

6/

Compare id. with Miller, Doc. 35.

7/

Plaintiffs did file an opposition brief. Doc. 14. However, Plaintiffs’ opposition brief is, by all appearances,
mis-filed in this case. It relates exclusively to Wickliffe Ordinance 521.10, which is not at issue in this litigation.
Ordinance 521.10 is not even mentioned in the complaint. Defendant points this out in its reply brief. Doc. 15.
Nevertheless, Plaintiffs have not re-filed a substantive opposition.
8/

Non-document entry dated December 11, 2015. Similar briefing was ordered in the Miller litigation. See
Miller, non-document entry dated November 2, 2015. The parties submitted the briefing. Doc. 16; Doc. 17.
9/

Doc. 1 at ¶ 1.

10/

Id. at ¶ 2.

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Case No.1:13-CV-1646
Gwin, J.
Plaintiffs purchased the property at 28500 Euclid Avenue for $2 million in 2007.11/ Plaintiffs
also allege that they paid a $400,000 tax bill and spent $600,000 in renovations and repairs.12/
Dan Miller, plaintiff in the Miller suit, entered into a lease with the Mosley Motel in May
2009.13/ Plaintiffs allege that they only entered into the lease on the understanding that the location
did not have zoning restrictions that would limit Miller’s ability to open his nightclub, Suede
Lounge.14/
As described and discussed at length in the summary judgment opinion this Court filed in
the Miller litigation,15/ Miller applied for a liquor license from the Ohio Department of Commerce,
Liquor Control Division (“the Liquor Control Division”).16/ However, several local religious
organizations objected to Miller’s application.17/ By letter dated October 30, 2009, the Liquor
Control Division denied Miller’s liquor license application.18/ The rejection letter notified Plaintiff
Miller of his right to appeal the rejection to the Ohio Liquor Control Commission.19/ Miller did not
appeal the Liquor Control Division’s permit denial.
On September 10, 2009, Miller applied for a temporary occupancy permit for 28500 Euclid

11/

Id. at ¶ 20.

12/

Id. at ¶¶ 22-23.

13/

Id. at ¶ 40.

14/

Id.

15/

Miller, Doc. 44.

16/

Doc. 1 at ¶¶ 44-45.

17/

Id. at ¶ 56.

18/

Id. at ¶ 74. The Division’s grounds for rejection were: 1) Plaintiff Milller’s business would “substantially
and adversely affect or interfere with the normal, orderly conduct of the affairs of [the organizations]”; 2) given the
location of Miller’s business, “substantial interference with public decency, sobriety, peace, or good order would result
from the issuance of the permit”; and 3) “[the Liquor Control] Division also denies and rejects the new application as
authorized or required by law.” Doc. 12-1 at 1-2 (citing R.C. §4301.10(A)(2); R.C. §4303.292(B)(1); O.A.C.
§4301:1-1-12(B)).
19/

Id. at 2.

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Case No.1:13-CV-1646
Gwin, J.
Avenue in Wickliffe, Ohio.20/ By letter dated September 17, 2009, Wickliffe rejected the application
because the building did not have enough paved parking spaces to satisfy zoning requirements.21/
On September 28, 2009, Wickliffe’s City Council convened and passed Ordinance 200949.22/ That ordinance generally requires a permit to operate a “nightclub” in Wickliffe. Ordinance
2009-49 also prevents a nightclub from opening within 500 feet of several types of organizations,
including schools, churches, and other nightclubs.23/
As of September 28, 2009, Miller did not have a liquor license or occupancy permit for
28500 Euclid Avenue. He also did not apply for a permit to operate a nightclub under 2009-49.
Due to the failure to issue a liquor permit, the commencement date of the lease between

20/

Doc. 1 at ¶ 59.

21/

Id. at ¶ 65.

22/

Id. at ¶ 66.

23/

The challenged portions of 2009-49 read:

747.02 DEFINITIONS
(a) ‘Nightclub’ means a place operated for a profit, which is open to the public and provides the
opportunity to engage in social activities such as dancing; the enjoyment of live or prerecorded music;
the serving of food and beverages, all of which are provided for a consideration that may be included
in a cover charge or included in the price of the food or beverage.
...
747.03 NIGHTCLUB PERMIT REQUIRED
It is unlawful for any person to own, lease, operate, manage, or maintain a nightclub in the City
without first obtaining a nightclub permit from the City as set forth in this chapter.
...
747.09 ACTION ON APPLICATION
...
(b) This application [for a nightclub permit] will be denied if:
...
(11) The location of the nightclub is within five hundred feet from the boundaries of a parcel of real
estate having situated on it a school, church, library, public park, tavern, bar, adult cabaret, or another
nightclub;
...
747.99 PENALTY
(a) Whoever [operates] a nightclub without first having obtained a permit from the City is guilty of
a misdemeanor of the first degree.
Doc. 1-4 at 1–4.

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Case No.1:13-CV-1646
Gwin, J.
Plaintiffs and Miller did not activate.24/ Plaintiffs allege that they have attempted to mitigate
damages caused by the inability to open Suede Nightclub. Plaintiffs sought out third parties who
were interested in buying out Miller’s lease. Plaintiffs allege that these deals were not completed
because of the on-going dispute over zoning.25/ Plaintiffs also tried to sell the property. Plaintiffs
allege that “Mr. Miller was informed by a prominent real estate broker that due to the multiple legal
issues with the City of Wickliffe, the buyer would not list the property for sale.”26/ Plaintiffs further
allege that they have received offers of up to $1.75 million, but that these were inadequate, especially
in light of the paid tax bill and renovations.27/ In their supplemental briefing on standing, Plaintiffs
now state that they have sold the property for $675,000.28/
Miller case
Plaintiffs filed this seven-count lawsuit in July 2013.29/ In May 2012, Plaintiffs along with
Miller, Suede Nights LLC, and two others, filed a near-identical lawsuit.30/ Plaintiffs were ordered
to show cause why this case was distinct from the earlier-filed Miller litigation.31/ Plaintiffs admit
the overlap as to Counts 1, 2, 5, 6, 7.32/ Plaintiffs continued that “where the case at bar differs is
. . . Counts 3 and 4 of the complaint. These facts and causes of action are all related to and grounded

24/

Id. at ¶ 75.

25/

Id. at ¶¶ 78-81.

26/

Id. at ¶ 82.

27/

Id. at ¶¶ 92-9.

28/

Doc. 16 at 5.

29/

Miller, Doc. 1.

30/

Compare id. at ¶¶ 27-88 with Miller, Doc. 24 at ¶¶ 12-72. Compare Doc. 1, at ¶¶ 95-109, 138-163 (Counts
I, II, V-VII) with Doc. 24 at ¶¶ 73-113 (Counts I-V).
31/

Doc. 6.

32/

Doc 7 at 2.

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Case No.1:13-CV-1646
Gwin, J.
in the takings clause of the U.S. Constitution.”33/ The presiding judge at that time consolidated these
cases on September 13, 2013.34/ Plaintiffs Mosely and Mosley Motel later moved to sever the
actions in August 2014.35/
At this time the instant case the Miller litigation are not consolidated. However, five of the
seven counts in this case are identical to those in the Miller litigation, and based upon the same
factual predicate.

II. Legal Standard
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”36/
The moving party must first demonstrate that there is an absence of a genuine dispute as to a material
fact entitling it to judgment.37/ Once the moving party has done so, the non-moving party must set
forth specific facts in the record—not its allegations or denials in pleadings—showing a triable
issue.38/ The existence of some doubt as to the material facts is insufficient to defeat a motion for
summary judgment.39/ But the Court views the facts and all reasonable inferences from those facts
in favor of the non-moving party.40/
To litigate a claim in federal court, a plaintiff must meet Article III standing. A plaintiff must

33/

Id.

34/

See Miller, Doc. 26; non-document entry dated September 13, 2013.

35/

Miller, Doc. 29. Plaintiffs were motivated to sever the cases by a lawsuit they filed in 2014 against the City
of Wickliffe and the Wickliffe Mayor. See Mosley v.City of Wickliffe, 14-cv-934 (N.D. Ohio).
36/

Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).

37/

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

38/

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

39/

Id. at 586.

40/

Killion, 761 F.3d at 580 (internal citation omitted).

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Case No.1:13-CV-1646
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demonstrate that he has suffered an injury in fact which is concrete and particularized; there must
be a causal connection between the injury and the conduct complained of; and it must be likely, as
opposed to merely speculative that the injury will be redressed by a favorable decision.41/

III. Discussion
Standing
As in the Miller litigation, Plaintiffs’ claims as to constitutional violations caused by
Ordinance 2009-49 are dismissed for lack of standing.
Plaintiff Mosley Motel of Cleveland is the landlord for Miller and the other third-parties to
this lawsuit who wished to open a nightclub on the premises. As discussed in the Miller opinion,
these parties do not have a sufficiently concrete or particularized injury to meet Article III’s standing
requirements.42/ Plaintiff Mosley Motel of Cleveland, as the mere landlord, is one step further
removed and a fortiori cannot demonstrate constitutional standing based on the same set of facts.
Plaintiff Julius Mosley maintains that he has suffered a unique injury in his role as a
shareholder to the Mosley Motel.43/ This argument also fails. Plaintiffs rely on a single case, in
which a district court found standing for the shareholder of an adult entertainment business. In that
case, the business was actually denied the ability to operate because of a local ordinance.44/ Mosley,
by contrast, is a shareholder in an entity that is the landlord to a second entity that has not yet even
applied for the permit to operate. This is not grounds for standing.

41/

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

42/

Miller, Doc. 44.

43/

The Court sets aside Plaintiffs’ arguments that standing is based on the violations of Ordinance 521.10, which,
again, is not at issue in this litigation.
44/

Doc. 16 at 9-10 (citing Christy v. Servitto, 699 F. Supp. 618 (E.D. Mich. 1988)).

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Case No.1:13-CV-1646
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The Court DISMISSES Counts 1, 2, 5, 6 and 7 of the complaint for lack of standing.

Takings Clause
Plaintiffs do have standing to pursue their takings claims. They properly allege an injury:
the decreased value of their property. This injury persists regardless of whether or not they ever
applied for a permit under 2009-49. Plaintiffs can show causation: they have persuasively
alleged that it is the Defendant’s actions that caused the decrease in value. And the injury could
be redressed through further action by Defendant. Plaintiffs have standing to pursue Counts 3
and 4. Nevertheless, the Court GRANTS Defendant’s motion for summary judgment as to these
claims, because they are not yet ripe for review.
A takings claim is not ripe for review unless a property owner is denied just
compensation.45/
Ohio law provides that a government actor seeking to take property is under a duty to
bring an appropriation proceeding. If a landowner feels his property is being subjected to a
takings without proper proceedings, he must bring a mandamus action to seek compensation.
“Mandamus is the appropriate action to compel public authorities to institute appropriation
proceedings where an involuntary taking of private property is alleged.”46/
The Sixth Circuit has held that Ohio’s writ of mandamus procedure is the proper
mechanism for pursing just compensation in the case of a regulatory taking.47/ Thus, an Ohio

45/

Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985).

46/

State ex rel. Duncan v. Middlefield, 898 N.E.2d 952, 956 (Ohio 2008).

47/

Coles v. Granville, 448 F.3d 853, 862 (6th Cir. 2006) (citing Silver v. Franklin Twp. Bd. of Zoning Appeals,
966 F.2d 1031 (6th Cir. 1992)).

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Case No.1:13-CV-1646
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takings claim is not ripe until a property owner has been denied just compensation after pursing
the mandamus action.
Plaintiffs do not allege that they pursued a state mandamus action to seek just
compensation for the alleged regulatory taking of the property. As a result, their takings claims
are not yet ripe.

IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART Defendant’s motion for
summary judgment, DENIES IN PART Defendant’s motion as moot, and DISMISSES Counts
1, 2, 5, 6 and 7 counts of Plaintiffs’ first amended complaint for lack of standing.

IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: December 21, 2015

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