Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 1 of 7

PARKER DOUGLAS (8924)

Chief Federal Deputy Attorney General
DAVID WOLF (6688)
Assistant Attorney General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CINEMAPUB, L.L.C. d/b/a BREWVIES,

Plaintiff,
SALVADOR D. PETILOS, Director; CADE
MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance,
Licensing Enforcement, Utah Department of
Alcohol Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDAD SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,
Defendants.

DEFENDANTS MEMORANDUM IN
OPPOSITION TO PLAINTIFFS MOTION
FOR TEMPORARY RESTRAINING
ORDER

Case No. 2:16-cv-00318DN

Judge David Nuffer

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 2 of 7

Pursuant to Rules 65 and DUCivR 7-1(b), all named Defendants in this matters caption
submit this Memorandum in Opposition to Plaintiffs (Brewvies) Motion for Temporary
Restraining Order, Doc. #6, filed last evening, April 28, 2016. While Plaintiffs motion also
requested preliminary and permanent injunctive relief, Doc. #6 at 2,1 this filing opposes without
conceding the propriety of the other relief sought in the balance of Plaintiffs motion, and
addresses only Plaintiffs request for a temporary restraining order.
There is no basis to issue the requested TRO. But due to entry, today, of a Stay of
Administrative Action (Stay Order) by the Utah Alcoholic Beverage Control Commission the
threatened administrative action against Brewvies is tolled during the pendency of this federal
action as the parties litigate the Plaintiffs constitutional challenge(s) to Utah Code Section 32B1-504(7)2. Based on that Order, this Court should deny Plaintiffs motion for a temporary
restraining order as there is no irreparable harm at issue for purposes of evaluating the possible
necessity of a temporary restraining order.
Consequently, Defendants request that the Court deny Plaintiffs motion for a temporary
restraining order and set the matter for an evaluation of Plaintiffs motion for preliminary
injunction. Defendants request that they have until Monday, May 9, 2016, to oppose the motion
for preliminary injunction and Defendants will file a response to the Complaint in this matter as
required under the Federal Rules of Civil Procedure on or before May 18, 2016.

DUCir-R 7-1(a)(1) provides that motions and memoranda be filed in a single document. Plaintiffs Motion has
done so, but has set out a Motion as a separate section on page 2 as the motion is numbered electronically by the
Courts CM/ECF docketing program. For the purposes of clarity for all, page numbers used by Defendants are those
numbered at the top of the docketed motion, Doc. #6.
2
See Exh. 1, attached.

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 3 of 7

DISCUSSION
A.

Plaintiffs Cannot Meet Legal the Requirements for a Temporary Restraining Order
Because the Stay Order Precludes Plaintiffs Required Showing of Irreparable
Harm
1.

Standard for a Temporary Restraining Order

A temporary restraining order is a drastic and extraordinary remedy, and courts do not
grant it as a matter of right. Pauls Beauty Coll. v. United States, 885 F.Supp. 1468, 1471 (D.
Kan. 1995); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure 2948, at 12829 & nn. 3, 67 (2d ed.1995). The purpose of a temporary restraining
order is to preserve the status quo and prevent immediate and irreparable harm until the Court
has an opportunity to pass upon the merits of a demand for preliminary injunction. See Flying
Cross Check, L.L.C. v. Central Hockey League, Inc., 153 F.Supp.2d 1253, 1258 (D. Kan. 2001).
Beyond showing that a temporary restraining order will preserve the status quo and
prevent immediate irreparable harm until the Court has an opportunity to rule on a demand for
preliminary injunction, a movant requesting a temporary restraining order must additionally
establish that: (1) they have a substantial likelihood of prevailing on the merits; (2) they will
suffer irreparable injury unless the temporary restraining order issues; (3) the threatened injury
outweighs whatever damage the proposed restraining order may cause defendant; and (4) the
temporary restraining order, if issued, will not be adverse to the public interest. TriState
Generation & Transmission Ass'n., Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th
Cir.1986). Consequently, Plaintiffs are also required to demonstrate that they meet the
traditional factors for a preliminary injunction.
A preliminary injunction is an extraordinary remedy never awarded as of right.

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 4 of 7

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). This extraordinary remedy . . .
may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id. at
22. It is well settled that a preliminary injunction is an extraordinary remedy, and that it
should not be issued unless the movants right to relief is clear and unequivocal. Heideman
v. So. Salt Lake City, 348 F3d 1182, 1188 (10th Cir. 2003) (McConnell, J.) (affirming denial of
motion for preliminary injunction brought by nude dancing artists on First Amendment free
expression challenge to city ordinance requiring g-strings and pasties) (quoting Kikumura v.
Hurley, 242 F.3d 950, 955 (10th Cir. 2001)). Before a court may enter a preliminary
injunction under Federal Rule of Civil Procedure 65, the moving party must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest. Winter, 555 U.S. at 20 (citing cases). Brewvies bears the burden of showing
that each of these four elements weighs clearly and unequivocally in its favor. Heideman v.
South Salt Lake City, 348 F3d at 1188.
The fact of the Stay Order negates Brewvies ability to demonstrate the necessity of a
temporary restraining order to maintain the status quo prior to a preliminary injunction hearing,
and its ability to demonstrate immediate and imminent irreparable harm before such a
preliminary hearing, it has not met its burden justifying this Court granting the drastic relief of a
temporary restraining order on a presumably constitutional statute.3
3

State statutes enjoy the presumption of constitutionality. United States v. Monts, 311
F.3d 993, 996 (10th Cir. 2002); accord City of Herriman v. Bell, 590 F.3d 1176 (10th Cir. 2010);
Heideman, 348 F.3d 1190-91; Hopkins v. Oklahoma Public Employees Retirement System, 150
F.3d 1155, 1160 (10th Cir.1998). In situations such as this, plaintiffs always bear the heavy
burden of rebutting the presumption of constitutionality and courts refrain from second guessing
legislative policy makers in determining whether given provisions are constitutional. Hopkins,
4

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 5 of 7

2.

Brewvies Can Neither Show it will Suffer Irreparable Harm Absent a Temporary
Restraining Order Nor that a Temporary Restraining Order is Necessary to
Maintain the Status Quo Until the Court Can Consider Brewvies Motion for
Preliminary Injunction
For the purposes of reviewing the application of a temporary restraining order here,

Brewvies cannot meet its burden of demonstrating that a temporary is necessary to preserve the
status quo and prevent irreparable harm because the Stay Order has already accomplished this
protection. See Exh. 1. Consequently, this Court should deny Brewvies request for a temporary
restraining order.
As with the other four required elements, Plaintiff bears the burden of showing that
this element weighs clearly and unequivocally in their favor. Heideman, 348 F3d at 1188.
Although federal courts have held that alleged violations of the First Amendment protections
give rise to a presumption of irreparable harm in certain cases, Free Speech Coalition v.
Shurtleff, 2007 WL 922247, *18 (D. Utah 2007) (Kimball, J.) (and cases cited therein); see also
Heideman, 348 F.3d at 1190 (noting presumption when infringement of First Amendment
rights is alleged) that principle is neither universally accepted by courts in the Tenth Circuit, nor

150 F.3d at 1160. One federal court in this circuit recently addressed the presumption of
constitutionality and the consequent role of judicial review:
Constitutionality is a binary determination: either a law is constitutional, or it is
not. This Court will not express a qualitative opinion as to whether a law is
good or bad, wise or unwise, sound policy or a hastily-considered
overreaction. Similarly, this Court will not assess what alternatives the
legislature could have chosen, nor determine whether the enacted laws were the
best alternative. Such decisions belong to the people acting through their
legislature. Put another way, in determining whether a law is constitutional, this
decision does not determine whether either law is good, only whether it is
constitutionally permissible.
Col. Outfitters Assoc. v. Hickenlooper, 24 F.Supp.3d 1050, 1055-56 (D. Colo. 2014), vacated on
other jurisdictional grounds Col. Outfitters Assoc. v. Hickenlooper, --- F.3d ----, 2016 WL
1105363 (10th Cir. Mar. 22, 2016).
5

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 6 of 7

is it applicable here. As one member of this Court has noted in the First Amendment context,
presumptions, are not assumptions. Free Speech Coalition, 2007 WL 922247 at *18. And
no federal court has ever said that irreparable harm should be assumed when such constitutional
allegations are at issue in a motion for preliminary injunction. To do so would render the
irreparable harm prong of the preliminary injunction test meaningless in such cases. Even if
such were found to be the general practice among courts reviewing injunction motions, such a
practice would not accord with the law. Indeed, the Tenth Circuit has stated that the merits of
constitutional claims must be considered by reviewing courts when evaluating whether the
presumption of irreparable harm applies in a given case. See Heideman, 348 F.3d at 1190
(It is necessary, however, to consider the specific character of the First Amendment claim.).
In such cases where the showing is not strong on the merits, the presumption does not apply.
Such a perspective is in accord with the latest Supreme Court jurisprudence on the
subject. In its last major foray into standards of review applicable under Rule 65 motions, the
Supreme Court held that a more lenient irreparable harm standard in cases where a plaintiff has
shown a strong likelihood of prevailing on the merits is inconsistent with [its]
characterization of injunctive relief as an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief. Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (emphasis added). The Tenth Circuit has acknowledged this
principle as well. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013)
(citing Winter).
Under these legal principles, irreparable harm cannot be presumed here, and even if it
were, the Stay Order has negated any such presumption. But the Court should find that the Stay

Case 2:16-cv-00318-DN Document 8 Filed 04/29/16 Page 7 of 7

Order makes Brewvies request for a Temporary Restraining Order unnecessary to maintain the
status quo among the parties until the Court can evaluate the merits of Brewvies motion for
preliminary injunction, and that the Stay Order demonstrates that Brewvies will not suffer
irreparable harm before the Court considers the motion for preliminary injunction.
CONCLUSION
For the foregoing reasons, this Court should DENY the Brewvies request for a
temporary restraining order. Defendants further request that the Court set a reasonable schedule
to consider Brewvies motion for preliminary injunction in a timely fashion and allow
Defendants to have until at least until Monday May 9, 2016 for Defendants to file their brief in
opposition to Brewvies Motion for Preliminary Injunction.

Respectfully submitted April 28, 2016.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Parker Douglas
PARKER DOUGLAS
Utah Federal Solicitor
DAVID WOLF
Assistant Attorney General
Counsel for Defendants

Case 2:16-cv-00318-DN Document 8-1 Filed 04/29/16 Page 1 of 2

Case 2:16-cv-00318-DN Document 8-1 Filed 04/29/16 Page 2 of 2