245 F. Supp.2d 265 (2003) | Cited 0 times | D. Maine | February 24, 2003


Now before the Court is Plaintiff B&B Coastal Enterprises, Inc.'sMotion for Preliminary Injunction (Docket Item No. 2). Plaintiff asks forthis injunction based on its claim that Defendant Town of Kennebunk'ssign ordinance violates Plaintiff's constitutional rights under the Firstand Fourteenth Amendments, and that Plaintiff faces immediate andirreparable harm if Defendants are not enjoined from enforcing thisordinance. Upon careful consideration, the Court finds that Plaintiffdoes not face immediate and irreparable harm in the event thatDefendants' actions are not enjoined and will, therefore, denyPlaintiff's Motion for Preliminary Injunction.


There are many facts in dispute in this case; however, the only factsrelevant to the request currently pending for injunctive relief are asfollows. In late July 2002, Defendant Paul Demers, the Code EnforcementOfficer for the Town of Kennebunk, performed a sign inspection of thepremises of Plaintiff's business, Bartley's Dockside Restaurant("Bartley's"). See Complaint and Demand for Jury Trial (Docket Item No.1) at 1; see also Objection to Plaintiff's Motion for a PreliminaryInjunction ("Def.'s Obj. to Prelim. Inj.") (Docket Item No. 4) at 4.1Bartley's Dockside Restaurant is located in Kennebunk's lower village, anarea where sign usage is governed by Article 10, Section 7(e)(2) of theTown of Kennebunk Zoning Ordinance, which holds that the maximum numberof signs permitted per single use lot is three. See Affidavit of PaulDemers attached to Def's Obj. to Prelim. Inj. ¶ 9. At the time of hisvisit, Mr. Demers spoke with Brian Bartley, the owner of Bartley's.Although the exact words exchanged between Mr. Demers and Mr. Bartley arein dispute, it is not disputed that Mr. Demers informed Mr. Bartley thathis restaurant was in violation of the Town of Kennebunk's sign ordinanceand that corrective action had to be taken. See Demers Aff. ¶ 3; seealso Reply Affidavit of Brian Bartley (Docket Item. No. 9) ¶ 2.

On July 26, 2002, Mr. Demers issued a Notice of Violation/Order forCorrective Action to B&B Coastal Enterprises, Inc.,2 notifyingBartley's that they were inviolation of Article 4, Section 1 of the Townof Kennebunk Zoning Ordinance, and ordering Bartley's to remove bannersand non permitted signs that day. See Exhibit E attached to Def's Obj. toPrelim. Inj. Mr. Demers told Mr. Bartley that he could keep the twoexisting signs on the face of the building that had banners on them if heapplied for and received a permit. See Demers Aff. ¶ 12. Many of theremaining violating "signs" were actually umbrellas with company logosinscribed on them. See id. ¶ 19. Although the parties dispute exactlywhat was said with regard to Bartley's outdoor umbrellas containingcompany logos, the parties agree that Mr. Demers informed Mr. Bartleythat the umbrellas constituted advertising signs and that to comply withthe sign ordinance, Bartley's could not retain that number of umbrellaswith the advertising logos in plain view.3 See id.; Affidavit ofBrian Bartley (Docket Item No. 3) ¶ 4.

In an effort to comply with the sign ordinance, Bartley's proceeded tospray paint over the advertising logos on those umbrellas in view of thestreet. See Demers Aff. ¶ 21; Bartley Aff. ¶ 4. Despite Bartley'sactions with regard to its umbrellas, as of late August, Mr. Demersdetermined that Bartley's Dockside Restaurant continued to violate theordinance with an excessive number of non permitted signs. Id. ¶ 21.Mr. Demers then forwarded the matter to the Kennebunk town attorney toinstitute an enforcement action, id. ¶ 24, and on September 16,2002, the Town of Kennebunk commenced Rule 80K proceedings for violationof the Town of Kennebunk Zoning Ordinance in the Maine District Court.Bartley Reply Aff. ¶ 21. As of the date of this order, no hearing hasbeen scheduled in the 80K proceeding. See Affidavit of Brian Bartley("Third Bartley Aff.") (Docket Item No. 12) ¶ 4.

In addition to the 80K action, on October 17, 2002, Mr. Demers sent amemo to the Kennebunk Town Manager recommending that Bartley's pendingliquor license application be withheld until the restaurant remedied itssign ordinance violations. See Bartley Reply Aff. ¶ 22. Although theTown Selectmen then voted on October 22, 2002, not to renew Bartley'sliquor license, see Bartley Aff. ¶ 5, the State of Maine issued atemporary liquor license to Bartley's, scheduled to expire on February28, 2003. See id. ¶ 7. On January 17, 2003, the Town Clerk sent aletter to Mr. Bartley informing him that on February 11, 2003, the Townof Kennebunk Board of Selectmen would be continuing the public hearingregarding Bartley's liquor license application and that Bartley's wouldbe entitled to its liquor license if it came into compliance with theTown's sign ordinance. See Bartley Reply Aff. ¶ 24. Specifically, theTown Clerk advised Bartley's that to comply with the ordinance, therestaurant must apply to the Code Enforcement Office for a sign permitfor the two signs attached to its building and pay the $25 fee per sign.See id. The letter also stated that if Bartley's kept the signs on itsproperty down to the three allowed by the ordinance, permits would then beissued and it would be entitled to its liquor license. See id.

On February 7, 2003, Plaintiff made the proper applications and paidthe requisite fees for the two sign permits. Bartley Reply Aff. ¶25. On February 11, 2003, the State of Maine Liquor EnforcementBureau issued a renewal of Bartley's liquor license. Third Bartley Aff. ¶2.


In its Motion for Preliminary Injunction, Plaintiff asks this Court tostay the Maine District Court 80K violation proceeding and to restrainDefendants from enforcing Article 4, Section 1 et seq. of the Town ofKennebunk Zoning Ordinance. Motion for Preliminary Injunction at 1. TheTown of Kennebunk has in force a zoning ordinance which, in part, governsthe usage of signs by resident businesses. In pertinent part, the zoningordinance states that "[n]o building, sign, or other structure shall beerected, altered, moved or demolished in the Town without a writtenpermit issued by the Code Enforcement Officer." See Town of KennebunkZoning Ordinance, Article 4, Section 1, Paragraph A, attached as ExhibitA to Def's Obj. to Prelim. Inj. (Docket Item No. 4).

The ordinance defines a sign as "[a]ny object, device, display orstructure, or part thereof which is used to advertise, identify,display, direct or attract attention to an object, person institution,organization, business, product, service, event or location by anymeans, including words, letters, figures, design, symbols, fixtures,colors, illumination or projected images." See Town of Kennebunk ZoningOrdinance Article 10, Section 7(C)(1), attached as Exhibit B to Def'sObj. to Prelim. Inj.

In the First Circuit, there are four well-established criteria that aplaintiff must satisfy in order to obtain a preliminary injunction. TheCourt must find: (1) that plaintiff will suffer irreparable injury if theinjunction is not granted; (2) that such injury outweighs any harm whichgranting injunctive relief would inflict on the defendant; (3) thatplaintiff has exhibited a likelihood of success on the merits; and (4)that the public interest will not be adversely affected by the grantingof the injunction. See Planned Parenthood League of Massachusetts v.Bellotti 641 F.2d 1006, 1009 (1st Cir. 1981); Merrill Lynch v. Bennert,980 F. Supp. 73, 74 (D.Me. 1997).

Regardless of whether Plaintiff can meet any of the other criteria,Bartley's has not shown that it will suffer irreparable injury in thiscase if an injunction is not granted. This Court has never swayed fromits position that

[i]n order to make a suitable showing of irreparable injury, the moving party must establish a colorable threat of immediate injury, see Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir. 1981), and the absence of any adequate remedy at law for such injury. McDonough v. United States Department of Labor, 646 F. Supp. 478, 482 (D.Me. 1986).

Rencor Controls v. Stinson, 230 F. Supp.2d 99, 102 (D.Me. 2002) (citingMerrill Lynch v. Bishop, 839 F. Supp. 68, 70 (D.Me. 1993)). The plaintiffhas the burden of proving that irreparable harm would result from adenial of injunctive relief, see Ross-Simons of Warwick, Inc. v.Baccarat, Inc., 102 F.3d 12, 18 (1st Cir. 1996), and, in this case,Plaintiff has not met its burden at this time.

First, Plaintiff claims that because of the pending 80K proceeding, therestaurant risks losing its liquor license. See Motion for PreliminaryInjunction at 3. This claim of injury bears little discussion. OnFebruary 11, 2003, the State of Maine Liquor Enforcement Bureau issued arenewal of Plaintiff's liquor license, see Third Bartley Aff. ¶ 2,and, therefore, Plaintiff can no longer claim this as an injury. Second,Plaintiff claims that it will be "immediately harmed and threatened" ifit is not permitted to use its outdoor umbrellas on its premises. BartleyAff. ¶ 8; see alsoMotion for Preliminary Injunction at 3. However,Plaintiff does not now have or want umbrellas outside its restaurant anddoes not anticipate wanting to use them until May 2003. Bartley ReplyAff. ¶ 26. "A presently existing, actual threat must be shown,"Mass. Coalition of Citizens with Disabilities, 649 F.2d at 74, and harmthat may be faced several months from now does not qualify as such.Furthermore, because Plaintiff has applied for and paid for permits forthe two permanent signs attached to its building, Bartley Reply Aff.¶ 25, and by Plaintiff's own admission, it does not intend to use theoutdoor umbrellas bearing the logos until May 2003, id. at ¶ 26,there is no outstanding violation of the Town of Kennebunk signordinance. This Court will not prohibit the Town from enforcing itsordinance now, so that Plaintiff can use its umbrellas in May.4Regardless of whether Plaintiff will ultimately succeed in proving theTown of Kennebunk sign ordinance to be unconstitutional, it does not face"a colorable threat of immediate injury" if the Town is not immediatelyenjoined from enforcing this ordinance.


Accordingly, it is hereby ORDERED that Plaintiff's Motion for PreliminaryInjunction be, and it is hereby, DENIED.

1. Defendant actually writes "August 25, 2002," in its memorandum,but, based on its portrayal of the facts in all of its other submissionsto the Court, as well as the facts presented by the Plaintiff, the Courtassumes this date was written in error and that Defendant actually meantto say "July 25, 2002."

2. Bartley's Dockside Restaurant is owned and operated by B&B CoastalEnterprises, Inc. See Complaint at 1.

3. The parties agree that Mr. Demers told Mr. Bartley he could coverup the advertising logos. They also agree that of the advertising logosthat Mr. Demers asked Mr. Bartley to cover up, at least some of themincluded the logo "Hebrew National Franks." See Bartley Reply Aff. ¶2; Demers Aff. ¶ 19; Exhibit D attached to Def's Obj. to Prelim.Inj.

4. Moreover, the Court notes that Plaintiff has now requested, andDefendants do not oppose, a stay of the 80K proceeding in the MaineDistrict Court. See Plaintiff's Letter in Support of Bartley Affidavit(Docket Item No. 13); Affidavit of William Dale (Docket Item No. 24)¶ 6. Therefore, if the Maine District Court grants the stay, whichappears to be likely, Plaintiff's request that this Court enjoin the stateproceeding will be moot as to the pending Motion for PreliminaryInjunction.

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