Midwest Retailers Association, LTD. v. City of Toledo

2009-12-22T23:37:00.001-05:00

our blog has moved to blog.counselor.pro

2009-12-22T23:36:00.001-05:00

our blog has moved to blog.counselor.pro

California Video Camera Law Coming Under Fire.

2009-07-21T09:58:00.002-04:00

In California, some of the municipalities have started enacting video camera laws like the one in Toledo. Here is a story from the San Bernardino Sun. Click Here.

Settlement Reached!

2009-07-17T20:29:00.002-04:00

Article published July 17, 2009
Toledo, retailers herald deal to end licensing

At the press conference on the tentative deal between the city of Toledo and the convenience store owners are, from left, Nabil Shaheen, president of the Midwest Retailers Association, and Toledo City Council President Joe McNamara. Mr. McNamara believes the pact, if approved, will not only improve the climate of the city's neighborhoods, but the businesses themselves. convenience stores
( THE BLADE/JEREMY WADSWORTH )

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By FLORENCE DETHY
BLADE STAFF WRITER
After more than a year of litigation, city officials and area convenience store owners say they have finally found common ground. Standing in front of a Stop-and-Go on Airport Highway, City Council President Joe McNamara announced yesterday a proposed settlement between the city of Toledo and the Midwest Retailers Association, an area business group of which about 375 area convenience stores are members. He said the agreement is good for both Toledo's businesses and its neighborhoods and that it represents an example of government and free enterprise working together for their common interest. The agreement, which Mr. McNamara spearheaded, stipulates that in exchange for repealing the city's licensing ordinance, the retailers association would agree to establish and enforce a high standard of conduct among its member stores. Furthermore, if the ordinance is repealed, the association will forgo any claims against the city for attorney fees or damage awards, a potential savings to the city of $50,000 to $60,000, said Scott Ciolek, the association's attorney. But the crux of the plan is the association's adoption of five ethical business practices, which include a ban on the sale of items commonly used as drug paraphernalia, a commitment to keep stores well-maintained, and a pledge to sell nutritious items such as fruits and vegetables.

"They are setting the example that we need to show across the city, across the country of how convenience stores can be pro neighborhood," Mr. McNamara said.

To improve the stores' relationship with their neighborhoods, the association says members have agreed to attend Block Watch meetings and to meet each quarter with representatives of community development corporation alliances to discuss issues that arise. "There are specific problems in specific neighborhoods and we want to work with the CDC on the trouble spots," said Dan Ridi, the retailers' association vice president. The way he sees it, he said, a few poorly managed stores are tainting the reputation of all the rest. The agreement, which Toledo City Council must approve, also clears the table for the passage of legislation requiring convenience stores be located no closer than 2,000 feet from one another. While city officials and representatives of the retailers association say they favor the measure, they said it has not gone forward because of the licensing suit. Now, with the licensing issue nearing resolution, the spacing requirement is "ready to be passed at any moment," Mr. McNamara said. Still, the proposed pact, while hailed from both sides as a step forward, is short on specifics. It does not lay out how the retailers association will ensure its members' compliance. With no rules or requirements set in stone, city officials said they were banking on the association's members sufficiently peer pressuring one another into taking such action as coordinating a security patrol for the stores - consisting of off-duty and laid-off police officers - and encouraging one another to attend Block Watch meetings. But in the event that the repeal of the licensing ordinance does not achieve its objective, Mr. McNamara said the licensing legislation always could be reintroduced. The initial ordinance, which was approved in December, 2007, would have required store owners to pay a licensing fee of $250 per year, install security cameras, and hand over surveillance footage to the police on demand, a requirement some shop owners called unlawful search and seizure. In June, 2008, a federal judge sided with a group of convenience store owners and granted a motion prohibiting temporary enforcement of the law, which would have applied to stores that sell food and beverages and are smaller than 5,000 square feet. The ordinance was originally put forth as a way to reduce littering, loitering, crime, and underage liquor sales. Mr. McNamara said he plans to introduce the repeal of the ordinance at a July 28 city council meeting and have the issue come to a vote by the meeting Aug. 4. Contact Florence Dethy at:
fdethy@theblade.com
or 419-724-6064.

Convenience Store Lawsuit Settled

2009-07-15T23:49:00.004-04:00

Concilman McNamara has callled for a press conference Tomorrow, July 16, 2009 to explain the details the of proposed settlement. To the City. To view a copy of his press release click here.

Attorney Fees Awarded

2009-01-21T19:37:00.002-05:00

Judge Carr has issued an order awarding attorney fees to Ciolek & Wicklund. Click here to view the order.

Case Not Dismissed.

2008-11-12T10:13:00.004-05:00

Chief Judge James Carr issued an order on the City of Toledo's Motion to Dismiss. Download it here.

City of Toledo asks Judge Carr to Dismiss MWRA Lawsuit

2008-08-28T10:47:00.002-04:00

Thursday August 28, 2008 - The City of Toledo has asked Judge Carr to dismiss the pending lawsuit on the grounds of mootness. The City of Toledo claims that each and every one of the issues raised in the complaint has been eliminated by the Enactment of the Sobczak and Sarantou Amendments to the Ordinance.

To read the City's submission Click Here.

Toledo City Council Repeals Convenience Store Ordinance!

2008-08-13T12:00:00.005-04:00

Late in the August 12, 2008 Toledo City Council meeting the members of City Council voted to repeal the Convenience Store Licensing Ordinance in its entirety. The effort was led by the efforts of Council President Mark Sobczak and Councilman George Sarantou.

Immediately following the repeal of the old ordinance came the institution of the of a new Convenience Store Ordinance. To download the new ordinance Click Here.

The new ordinance addresses a number of the Constitutional Issues raised in the on-going litigation.

Links to Stories
Fox News Coverage
Toledo Blade Coverage
Glass City Jungle

City Council Squabble

2008-08-06T22:49:00.007-04:00

August 5, 2008 Toledo City counsel held a heated debate about the Midwest Retailer Assoc. Joe McNamara stated that Council Pres. Mark Sobzak was engaging in backroom dealings. Council Member McNamara stated that there were a number of "typos" in the ordinance as passed that he would like to revisit.

During the Council Meeting Lindsay Webb introduced the possibility of a full repeal of the ordinance.

Click here to Listen to City Council Talk about Convenience Store Issue
Click here to Listen to Councilman Lindsay Webb offer a solution.

Other Stories - Blade

Restraining Order Extended to August 31, 2008

2008-07-22T15:28:00.005-04:00

Judge James G. Carr issued an order on July 22, 2008 extending the duration of the Temporary Restraining Order to August 31, 2008. This extension was agreed to by both the City of Toledo and the Midwest Retailers Association. View the Order Here.

Another 10 Days...

2008-07-14T15:57:00.003-04:00

The Midwest Retailers Association and the City of Toledo have agreed to another 10 days under the Temporary Restraining Order Issued on July 1, 2008 by Chief Judge James Carr. View Document Here.

Retailers File Amended Complaint

2008-06-26T18:08:00.004-04:00

June 26, 2008.

Scott A. Ciolek of Ciolek & Wicklund has filed an Amended Complaint against the City of Toledo on behalf of the Midwest Retailers Association and 10 individual Plaintiffs. The Amended Complaint alleges additional Constitutional violations including violations of Equal Protection, Due Process, the Dormant Commerce Clause, and the Privileges and Immunities Clause.

Download a copy of the Amended Complaint Here.

June 25, Toledo Blade

2008-06-25T14:39:00.002-04:00

Read Toledo Blade article Judge Delays Law on Licensing Toledo Carry-outs.

June 24, Toledo Blade

2008-06-25T14:36:00.002-04:00

Read Toledo Blade article Judge Grants Temporary Order Halting Toledo’s Convenience Store Licensing Law.

2008-06-23T16:35:00.000-04:00

TOLEDO, Ohio: On Tuesday, June 24th, at 8:30 am, in the United States District Court, the Midwest Retailers Association will present its argument against the City of Toledo at a hearing for injunctive relief in the convenience store ordinance case. This hearing is a critical step forward for the Midwest Retailers Association as small business owners seek to prevent enforcement of the City’s unconstitutional ordinance. Among the issues that will be debated is the constitutionality of the City’s surveillance video requirements.

The Honorable Chief Judge, James G. Carr, will preside over tomorrow’s hearing. Chief Judge Carr is the preeminent jurist in the United States in matters concerning the Fourth Amendment and electronic surveillance issues. Scott A. Ciolek, of Ciolek & Wicklund Law Offices, is the attorney of record for the Midwest Retailers Association.

CIolek & Wicklund File Reply on Motion for Preliminary Injunction

2008-06-16T16:33:00.006-04:00

On Monday, June 16, 2008, Ciolek & Wicklund filed a reply in the case Midwest Retailers Association v. City of Toledo. Download a copy here.

This REPLY reasserts the overall vagueness of the statute and illuminates a number of other issues.

Moreover, Scott Ciolek has requested a hearing in federal court. If Chief Judge Carr grants the request, the hearing will likely be scheduled for Tuesday, June 24 2008 at 8:30am.

Channel 11 WTOL

2008-06-12T10:53:00.002-04:00

Scott Ciolek discusses how this ordinance applies to more businesses than just convenience stores. (watch video).

City of Toledo Answer

2008-06-10T20:49:00.002-04:00

Read the City of Toledo's opposition to the Midwest Retailers Association's motion for preliminary injunction here (.pdf).

Also see the exhibit here (.pdf).

Toledo Free Press

2008-05-30T12:40:00.000-04:00

Read Toledo Free Press article "City, Carryout Owners Dispute Camera Cost."

Toledo Free Press

2008-05-30T12:39:00.001-04:00

Read Toledo Free Press article "MWRA: Ordinance 'Unconstitutional'"

Toledo Free Press

2008-05-30T12:35:00.002-04:00

Read Toledo Free Press article "Convenience Store Ordinance Stopped in Court."

Channel 13 ABC

2008-05-30T12:25:00.002-04:00

Channel 13 ABC reporter Bill Hormann discusses how the city of Toledo is sending uniformed police officers to hand deliver licensing applications to store owners. (watch video).

TRO Motion

2008-05-29T18:19:00.003-04:00

Midwest Retailers Association, LTD. has filed for a temporary restraining order. (read TRO Motion).

Preliminary Injunction Filed

2008-05-15T15:18:00.005-04:00

On 05/15/2008, The Midwest Retailers Association, LTD. filed a motion for a preliminary injunction.

"Unless a preliminary injunction is granted, store owners affected by this ordinance will face irreparable injuries. Specifically, Toledo Municipal Ordinance 797-07 criminalizes the operation of retail food and beverage stores smaller than 5000 square feet without a special license. Attainment of this license is contingent upon a vague, overly burdensome, and unconstitutional application process. Moreover, Toledo Municipal Ordinance 797-07 vests Toledo City officials with nearly limitless discretion to revoke or refuse to renew licenses.

"The threat of irreparable injury to Plaintiff and the store owners it represents is immediate and real. If the City of Toledo begins enforcement of Ordinance 797-07, affected business owners will have to choose between (i) complying with a law that will cause them irreparable injury in the form of lost business and good will, loss of constitutional rights, and the prospect of lawsuits from governmental, quasi-governmental, and private parties, and (ii) violating the law and facing the prospect of lawsuits from governmental and private parties, as well as criminal sanctions including fines, property loss, and incarceration.

(Read the full Motion for Preliminary Injunction with Memorandum In Support).

MWRA Answer

2008-05-13T15:02:00.003-04:00

The City of Toledo answered our complaint. (Read the full answer).

Toledo Blade Article

2008-05-08T16:08:00.000-04:00

The City of Toledo has agreed not to enforce Ordinance No. 797-07 until the end of the month. Read about the delay in The Toledo Blade article.

1370 News Talk WSPD

2008-05-01T14:09:00.004-04:00

On 05/01/2008, Ordinance No. 797-07 went into effect. Scott A. Ciolek appeared on Eye on Toledo to discuss the broad impact of the ordinance.

Listen to the podcast here.

1370 News Talk WSPD

2008-04-14T16:18:00.004-04:00

Tune into 1370 News Talk WSPD tonight at 6 PM EST. Maggie Thurber will discuss the MWRA case and the issue of regulatory takings. Remember, you can listen to 1370 live on-line.

Related:
- Listen to an archived podcast of Maggie Thurber's interview with Rob Ludeman. Here, he discusses the intent of the ordinance. (listen).

MWRA Makes National News

2008-04-14T15:58:00.003-04:00

On April 5th, 2008, the Annenburg Center for Education and Outreach picked up the story on Midwestern Retailers Association, LTD. v. City of Toledo. (link).

News Talk 1370 WSPD

2008-04-04T21:58:00.003-04:00

Scott A. Ciolek appeared on 1370 WSPD today. Listen to the podcast.

1370 WSPD

2008-04-04T13:06:00.000-04:00

Tune into News Talk 1370 WSPD today at 4:30 p.m.

Scott A. Ciolek will be discussing the case with Maggie Thurber (subbing for Brian Wilson).

04/04/08: Press Release

2008-04-04T12:15:00.000-04:00

CITY OF TOLEDO WANTS CONVENIENCE STORE OWNERS TO DO POLICE WORK

On April 2, 2008, Scott A. Ciolek of Ciolek & Wicklund filed a complaint in the United States District Court of Northern Ohio, Western Division, on behalf of Midwestern Retailers Association, LTD. against the City of Toledo. Midwestern Retailers Association, LTD. seeks declaratory and equitable relief, a preliminary and permanent injunction from the City of Toledo, due to their enactment of an ordinance which violates the Fourth, Fifth, Thirteenth and Fourteenth Amendments of the United States Constitution, and Ohio law.

On December 11, 2007, the Toledo City Council passed Ordinance No. 797-07. The effect of this ordinance is that the Toledo City Council has transfered police responsibilities from the government to private businesses. As a result, a business owner will be held accountable for “problems” that are specifically listed in 721.15, such as, drug-dealing, gambling, and prostitution. However, business owners are not granted authority to take action to personally stop any of these activities. Unless the city of Toledo intends to force business owners to take up arms and dispense vigilante justice, then the most responsible action business owners could take to curb illegal activities on their property would be to notify the police of the activity.

Ordinance No. 797-07 has flouted the law in several ways, such as:

First, 721.04(b)(5) states that “an authorized City official” can request the surveillance video and it must be turned over to the official within eight hours. In this regard, the City of Toledo has created an unconstitutional condition by granting licenses to operate a convenience store on condition that licensees surrender their Fourth Amendment right to be free of unreasonable searches and seizures. This provision is reminiscent of a “general warrant,” which is specifically prohibited by the Fourth Amendment.

Second, this ordinance requires licensees to surrender their Due Process rights guaranteed by the Fifth and Fourteenth Amendments. By releasing surveillance tapes to the city without knowing why the tape is being requested, the business owner could be forced into a direct violation of his 5th Amendment right against self-incrimination.

Third, a licensee must accept a significant infringement of their Fifth Amendment right to just compensation for regulatory takings.

Fourth, the ordinance transfers numerous law enforcement responsibilities onto licensees, thus creating a condition of involuntary servitude in violation of the Thirteenth Amendment.

Finally, provisions of the ordinance are vague and fail to give a person of ordinary intelligence fair notice of what conduct is actually forbidden by the ordinance, creating the possibility of arbitrary and erratic enforcement.

These enumerated issues represent only a portion of the actual legal problems present in this case. In conclusion, the enactment of this ordinance is well outside the perimeters of the Constitution and should be abolished.

WTOL 11

2008-04-04T12:02:00.000-04:00

On April 3rd, 2008, Scott A. Ciolek appeared on WTOL 11 - "Toledo Store Owners Protest City Mandates."

Complaint

2008-04-03T19:32:00.001-04:00

Download the complaint filed on April 2, 2008.

Key Points

2008-04-02T16:04:00.000-04:00

Letter from a concerned citizen:

1. Transfer of Police Responsibilities from Government to Private Business

Section 722.11 part 2:

Once a reasonable opportunity to cure the problems has been afforded to the licensee without substantial success, a license should be revoked even though the license holder has taken all reasonable measures to achieve compliance.

“Problems” specifically listed for which the business owner is now held accountable include gambling, prostitution, drug dealing, weapons possession, disorderly conduct, loitering, public nuisance, and obstructing legal process. (721.15)

A business owner doesn’t have the authority to take action to personally stop any of these activities. Unless the city of Toledo intends to force business owners to take up arms and dispense vigilante justice, then the most responsible action business owners could take to curb illegal activities on their property would be to notify the police of the activity. If a business owner has contacted the Toledo P.D. and criminal activity continues on the premises, isn’t that a reflection on the police department? Why are we punishing the business owner because the police are incapable of eliminating crime? Basically, the business owner is being held accountable for the failures of the police department.

Perhaps the section should read:

Once a reasonable opportunity to cure the problems has been afforded to the Toledo Police Department without substantial success, all officers and administrators will be terminated, even though the department has taken all reasonable measures to achieve compliance.

Obviously that would be ridiculous, too, but at least you’d be holding the people who are actually responsible for reducing crime accountable, as opposed to just transferring responsibility to private citizens. If police—who legally carry weapons, arrest and detain citizens, and are authorized to use deadly force,—can’t eliminate crime at these locations, why would anyone think a convenience store owner can do it?

2. 4th Amendment Violation

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This one is so obvious I find it hard to even write anything of interest, but I’ll try.

721.04 (b) 5 states:

Upon the request of an authorized City official, the media form shall be provided to the official no later than eight (8) hours after the request.

Who are "authorized City officials?” What protections are in place to ensure that tapes will not be requested by police for “fishing expeditions.” How will this be different from a “general warrant,” which is specifically prohibited by the 4th Amendment? Is there any form of judicial oversight whatsoever governing these media requests? If not, how is a business owner to know if the request is authorized and legal?

Furthermore, I think an issue needs to be made of the fact that the police are effectively putting these businesses under surveillance. The government would never be allowed to monitor this private property themselves, yet it’s somehow legal for them to make businesses pay for the surveillance systems which the police can then access at any time? The only difference between the city installing the surveillance themselves and this statute is that the businesses are required to pay for and maintain the equipment. That’s actually worse than the government just installing the video surveillance themselves, and clearly no one would argue the constitutionality of such action.

By way of analogy, imagine if the government said that all business owners were required to pay for equipment to tap their own phones, and that any city official would then be allowed to access that data at any time, seemingly without judicial oversight. It’s self evidently ridiculous. So how is this any different or less egregious?

3. 5th Amendment Violation

By releasing surveillance tapes to the city without knowing why the tape is being requested, the business owner could be forced into a direct violation of his 5th Amendment right against self-incrimination. Worse, the business owner is not only being compelled in a criminal case to be a witness against himself, he’s being forced to pay for the equipment which is then violating his constitutional rights.

Additional Points of Interest:

Is there an obligation to report a crime if no one is in danger? I wouldn’t have thought that citizens were compelled to report loitering to the police.
This policy is blatantly discriminatory. Why are only convenience stores being forced under constant de facto government surveillance? What other businesses and organizations are required to place themselves under 24/hour monitoring? Are larger businesses such as Wal-Mart (who could actually afford to meet these obligations) required to surveil themselves? Are all areas of the Police Department on camera 24/hours per day? Police cruisers?
721.15 (3) - “The licensee is directly and vicariously responsible for any violations on the premises, including parking areas, by any employees, independent contractors, other persons hired by the licensee. . . .” Are there any other businesses where the owner is responsible for criminal violations committed by his employees or independent contractors without his/her knowledge? Again, this speaks to the discriminatory nature of the policy. Can you imagine a Wal-Mart being closed down because one of their employees is making calls to his bookie while at work? A McDonalds being closed because one of the tellers is caught skimming from the register?
721.15 (4) - What is the definition of “provide adequate security to prevent criminal activity, loitering, lurking and disorderly conduct on the business premises, including the parking lot?” Again, it just seems like an abdication of responsibility. The police aren’t able to control the crime, so let’s shift the cost and responsibility to the business owners.
Do we need to put a camera in the bathroom in order to allow it to be open it to the public? [721.15 (6)] (I’m sure the answer is no, I just like the point too much to let it go.)
Ultimately, this law will drive out the few remaining businesses that are willing to still serve inner city Toledo. Why would convenience store owners spend the money on a high tech surveillance system and “adequate security” knowing that their business can still be shut down at any time, even if they have done everything in their power to eliminate the criminal element from their property, per 721.22 (2).
There are already laws on the books that could be used to deal with these issues. Why would the city of Toledo feel the need to create this huge bureaucracy as opposed to just enforcing their existing laws? Their motivations must be questioned, given the dramatic and disproportionate economic impact this will have on those least in a position to afford burdensome new regulations.