Hearing might be required before city can close business under nuisance-abatement law

Earlier this month we linked the story of a Dallas car wash owner whose business was shut down by the city under a nuisance abatement law because it was deemed to attract crime, even though the owner was not alleged to have done anything to further the crime and in fact had called police many times to complain about it.

Last month a Sixth Circuit panel, over a dissent, ruled that the city of Saginaw, Mich. may have violated Rita Johnson’s rights when it shut down her Rita’s Southern Soul Café without first according her a hearing. Johnson had rented out her restaurant one evening to a private party; “For unknown reasons, individuals unaffiliated with her or the party emerged from a vehicle that night and began shooting at the restaurant.” Police surmise that rivalry between gangs might have prompted the attack, but neither perpetrators nor motive were established. The case now goes back for further litigation in which Johnson will be allowed to argue that a hearing before shutting down her café would have been warranted. [Johnson v. Morales via Institute for Justice “Short Circuit”]

One Comment

  • Regarding the Saginaw case:

    “Johnson concedes that the City had a factual basis for suspending her business license— that a violent, gang-related shooting occurred on her restaurant’s premises. And the City’s decision to suspend her license based on that fact cannot be characterized as an instance of “extreme irrationality.” ”

    That’s from Judge Nalbandian’s dissent. Things can only be 180 degrees out from correct. This quote proves otherwise. The issue, judge, is whether one’s license to do business, which, after all, is a property right (you know, something protected by the Fifth Amendment) can be conditioned on the fact of uncontrollable third party criminal acts AND some government official’s decision that this is a nuisance. In other words, the City may have had a reason, but the basis of the decision is so beyond the pale. By that rationale, the City could condemn a private residence on the basis that people broke in and killed a family member.

    What should have happened is that the official who suspended the license should have been charged under 18 USC 242, violation of rights under color of law. And of course, this sort of thing is not an isolated incident. About a decade ago, a Boston city vehicle jumped the curb and slammed into an apartment building. Within a day, code enforcement was out issuing code violations. This is how local governments roll, and it’s high time judges started understanding those basic realities.

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