IN
THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLLE DIVISION
JOHN S. LATOUR PLAINTIFF
VS. CASE NO.: 02-5001
CITY OF FAYETTEVILLE, ARKANSAS;
BRANT WARRICK, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
DEPUTY CITY PROSECUTOR; CLINTON
K. JONES, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS CITY
PROSECUTOR; KIT WILLIAMS,
INDIVIDUALLY AND AS CITY
ATTORNEY; BOB ESTES, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY; AND
MIKE MCKIMMEY, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY
DEFENDANTS
ANSWER OF DEFENDANTS
COME NOW the Defendants, and each of them, and for
their joint Answer to the Amended Complaint of the Plaintiff, John S. La Tour,
they state as follows:
(1)
That they readopt, reallege and reassert all defenses and legal arguments set
forth in their Motion to Dismiss which was previously filed herein.
(2) That the Defendants admit Plaintiff has brought this
suit pursuant to 42 U.S.C. § 1983, alleging that the sign ordinance of the
City of Fayetteville, Arkansas, as applied, is an unconstitutional
content-based regulation of expression and Defendants also admit that
Plaintiff seeks declaratory and injunctive relief. However, Defendants deny
all other material allegations contained and set forth in Paragraph 1 ,of the
Amended Complaint of the Plaintiff. More specifically, the Defendants, and
each of them, deny that the City of Fayetteville sign ordinance is in
any way unconstitutional as applied and that under no circumstances have the
rights of the Plaintiff been violated by the application of the sign ordinance
of the City of Fayetteville. Further, the Defendants' filed a Motion to
Dismiss previously herein and the Court granted said Motion in part on July
18, 2002. On that date, the Court dismissed with prejudice the Plaintiffs
claim for punitive damages. The claim of the Plaintiff for punitive damages is
now barred as against all Defendants in every respect.
(3) Defendants admit the Plaintiff operates an electronic
message sign mounted inside his office window at 2285 West Sixth Street in
Fayetteville, Arkansas but is without sufficient information and knowledge at
the present time to either admit or deny the remaining allegations in
Paragraph 2 of the Amended Complaint of the Plaintiff and therefore denies
said allegations at this time.
(4) Defendants admit that time and temperature signs
function in a manner . substantially similar to that described in Paragraph 3
of the Amended Complaint of the Plaintiff.
(5) Defendants deny that the Plaintiffs electronic sign
functions exactly like time and temperature signs. Defendants further admit that
time and temperature signs display time and temperature and that Plaintiffs
sign displays his political and religious opinions. Defendants further state
that on occasion the Plaintiffs sign displays commercial messages instead of
political or religious opinions.
(6) Defendants admit that on January 3,2001 Judge Rudy
Moore presiding in Fayetteville District Court found the Plaintiff guilty of a
crime and fined him. Defendants further state the fine was $7,500.00 with all
but $1,000.00 suspended. All other allegations in Paragraph 5 are denied.
(7) Defendants admit Plaintiff appealed his conviction to
the Washington I County
Circuit Court and further admit the case was settled prior to a trial in
Washington County
Circuit Court, by Plaintiff pleading guilty to the charge of Violating the
Fayetteville Sign Ordinance and in exchange for the guilty plea, the fine and
court costs previously imposed by Fayetteville District Court were all
suspended on condition the Plaintiff not change the electronic message on his
sign more frequently than every three hours. Defendants deny all other
material allegations contained and set forth in Paragraph 6 of the Amended
Complaint of the Plaintiff.
(8) Defendants deny the allegations in Paragraph 7 of the
Amended .Complaint of the Plaintiff.
(9) Defendants admit this Court has jurisdiction of this
case but not based upon the statutes cited by the Plaintiff in Paragraph 8 of
his-Amended Complaint. Some of the statutes cited in Paragraph 8 by the
Plaintiff do not exist.
(10) Defendants admit venue for this case is proper but not
based upon the statute cited by the Plaintiff in Paragraph 9 of his Amended
Complaint.
(11) Defendants admit Plaintiff is a resident of
Fayetteville, Arkansas and is a practicing Certified Public Accountant.
Defendants admit that Plaintiff is apparently pursuing this action on a pro se
basis. The other allegations and statements in Paragraph 10 of the Amended
Complaint of the Plaintiff do not require a response.
(12) Defendants admit the City of Fayetteville is a
Defendant as are several of the individual Defendants, but only in their
official capacities and not in their individual capacities. Defendants further
state that they previously filed a Motion to Dismiss which was granted as to
Plaintiffs claims against Clinton Jones, Kit Williams and Bob Estes in their
individual capacities and granted as to Plaintiffs claims against Brant
Warrick and Mike McKimmey in both their individual and official
capacities. The aforesaid claims were
dismissed by the Court. All other allegations in Paragraph 11 of the Amended Complaint of the Plaintiff are denied.
(13) The Defendants admit the allegations in Paragraph 12
of the Amended
Complaint of the Plaintiff.
(14) The Defendants deny the allegations in Paragraph 13 of
the Amended
Complaint of the Plaintiff.
(15) The Defendants deny the allegations in Paragraph 14 of
the Amended
Complaint of the Plaintiff.
(16) The Defendants admit the allegations in Paragraph 15
of the Amended
Complaint of the Plaintiff.
(17) Defendants deny the allegations in Paragraph 16 of the
Amended
Complaint of the Plaintiff.
(18) Defendants deny the allegations in Paragraph 17 of the
Amended
Complaint of the Plaintiff.
(19) Defendants state that Paragraph 18 of the Amended
Complaint of the Plaintiff does not require a response.
(20) Defendants deny the allegations in Paragraph 19 of the
Amended Complaint of the Plaintiff. The Separate Defendant, City of
Fayetteville, as well as the individual Defendants, specifically deny that the
Fayetteville Sign Ordinance seeks to regulate speech or to in any way deny the
Plairitiff or any other individual his or her constitutional right to free
speech or to deny the Plaintiff or any other individual his or her right to
Equal Protection under the Fourteenth Amendment to the United States
Constitution.
(21) The Defendants generally and specifically deny
each and every material allegation contained and set forth in Paragraph 20 of
the Amended Complaint of the Plaintiff.
(22) The Defendants state that Paragraph 21 of the Amended
Complaint of the Plaintiff does not require a response.
(23)
Separate Defendants McKimmey and Estes admit they had some conversation with
the Plaintiff regarding his electronic sign but deny all other allegations in
Paragraph 22 of the Amended Complaint of the Plaintiff. Further, Separate
Defendant Estes states that all conversations he had with the Plaintiff were
not in his official capacity as a member of the Fayetteville City Planning
Commission but instead in his capacity as a friend of the Plaintiff. Separate
Defendant McKimmey also states that all of the Plaintiffs claims against him,
in both his individual and official capacities, have been dismissed by the
Court. Separate Defendant Estes states that the claims of the Plaintiff as
against him in his individual capacity have been dismissed by the Court.
(24) Separate Defendant McKimmey denies the allegations in
Paragraph 23 of
the Amended Complaint of the Plaintiff.
(25) Separate Defendant Estes admits that he had several
phone conversations with the Plaintiff on or near January 5,2000 but denies
all other allegations contained and set forth in Paragraph 24 of the Amended
Complaint of the Plaintiff. Further, Separate Defendant Estes states that any
conversations he had with the Plaintiff were in his individual capacity and
not his official capacity as a member of the Fayetteville City Planning
Commission.
(26) Defendants admit that attorney Jim Rose represented
the Plaintiff in Fayetteville Municipal (now District) Court. Separate
Defendant Estes admits attorney Jim
Rose telephoned him but denies all other allegations in Paragraph 25 of the
Amended Complaint of the Plaintiff.
(27) Separate Defendant Estes admits he had a phone
conversation with attorney Jim Rose but denies all other allegations in
Paragraph 26 of the Amended Complaint of the Plaintiff.
(28) The Defendants are without information or knowledge to
either admit or deny the allegations in Paragraph 27 of the Amended Complaint
of the Plaintiff and therefore deny said allegations.
(29) Separate Defendant Estes states that he testified
truthfully and to the best of his ability at the Plaintiffs trial in
Fayetteville Municipal Court. Separate Defendant Estes further states that his
testimony speaks for itself and he denies all other material allegations
contained and set forth in Paragraph 28 of the Amended Complaint of the
Plaintiff.
(30)
Defendants state that the allegations in Paragraph 29 of the Amended Complaint
of the Plaintiff are not conducive to a response but to the extent one is
required, all allegations are denied.
(31) Defendants state that the allegations in Paragraph 30
of the Amended Complaint of the Plaintiff do not require a response and
further that Defendants are without sufficient information or knowledge as to
what Plaintiff mayor may not have done so as to be able to either admit or
deny said allegations. Therefore, all allegations are denied.
(32) Defendants state that the allegations in Paragraph 31
of the Amended Complaint of the Plaintiff are not statements of alleged facts
but instead arguments and personal opinions of the Plaintiff, none of which
require a response by these Defendants. To the extent a response is required, all
allegations in Paragraph 31 of the Amended Complaint of the Plaintiff are
denied.
(33) Defendants state that Paragraph 32 of the Amended
Complaint of the Plaintiff does not state allegations of facts but merely
cites an Arkansas statute which does not require a response by the Defendants.
(34) The Defendants state they are without sufficient
information or knowledge to either admit or deny the allegations in Paragraph
33 of the Amended Complaint of the Plaintiff and therefore deny said
allegations.
(35) Separate Defendant Williams denies the allegations
contained and set forth in Paragraph 34 of the Amended Complaint of the
Plaintiff.
(36) Separate Defendant Williams denies the allegations
contained and set forth in Paragraph 35 of the Amended Complaint of the
Plaintiff.
(37) Separate Defendant Williams states that the content of
Paragraph 36 of the Amended Complaint of the Plaintiff does not constitute
facts or allegations of fact but mere statements of personal opinions and
conjecture and speculation by the Plaintiff, none of which requires a response
by Separate Defendant Williams. To the extent a response is required, all
allegations in Paragraph 36 of the Amended Complaint of the Plaintiff are
denied.
(38) Defendants state that the content of Paragraph 37 of
the Amended Complaint of the Plaintiff does not state alleged facts but merely
states opinions and arguments of the Plaintiff, none of which requires a
response by these Defendants. To the extent a response is required, all
allegations in Paragraph 37 of the Amended Complaint of the Plaintiff are
denied.
(39) Separate Defendants Estes and Williams
emphatically deny all material allegations contained and set forth in
Paragraph 38 of the Amended Complaint of the Plaintiff.
(40) In response to the allegations in the Prayer For
Relief of the Plaintiff, the Defendants generally and specifically deny each
and every material allegation contained and set forth therein. More
specifically, the Defendants deny that Plaintiff is entitled to injunctive
relief of any kind or description against the City of Fayetteville or any of
the individual Defendants herein. The Defendants further deny that the
Plaintiff is entitled to any declaratory relief of any kind or description and
further deny that the City of Fayetteville or any other Defendant herein has
violated any of the constitutional rights afforded to the Plaintiff. Pleading
further, the Defendants specifically state that the Plaintiffs claim for
punitive damages has already been ruled on by this Court and that the
claim of the Plaintiff for punitive damages has been dismissed in its
entirety. Defendants further state that the claim of the Plaintiff for
punitive damages has been eliminated in every respect and is no longer an
issue in this case. Pleading further, Defendants state the Plaintiff is not
entitled to recover costs of any kind or description nor is the Plaintiff
entitled to any other relief of any kind or description.
Pleading affirmatively, the City of Fayetteville states
that it has the right under the law to regulate private property in a
reasonable way in the interest of public health, comfort, convenience and
maintenance of property values. At no time has the City of Fayetteville or any
of the individual Defendants herein attempted to deny the Plaintiff or any
other individual his or her rights to free speech or Equal Protection of the
laws. Defendants further state that the Fayetteville Sign Ordinance is
reasonable and constitutional in every respect and further state that
Plaintiff has been allowed under the ordinance, to state his political and religious
beliefs on his electronic sign and allowed to change the content of his
political and religious messages every three hours. The Defendants state that
whatever regulation has occurred has been reasonable and fair and in no way
has denied the Plaintiff his constitutional rights.
WHEREFORE, PREMISES CONSIDERED, the Defendants, and each of
them, pray that the Amended Complaint of the Plaintiff be dismissed with
prejudice, for their costs herein incurred and for any and all other relief to
which they may be entitled.
CITY OF FAYETTEVILLE, ARKANSAS
BRANT WARRICK
CLINTON K. JONES
KIT WILLIAMS
BOB ESTES
MIKE McKIMMEY
BY: ______________________
WOODY
BASSETT (#77006)
BASSETT LAW FIRM
P. O. Box 3618
Fayetteville, AR 72702
(479) 521-9996
ATTORNEY FOR DEFENDANTS