Wednesday, September 26, 2012
McKinney says Hank’s restaurant’s restraining order is invalid
The city asserts that the court has no jurisdiction to restrict police from enforcing fire and safety codes.
MCKINNEY An ongoing legal battle between Hank's Texas Grill and the city of McKinney picked up steam Monday, but will boil for another week.
Judge Ray Wheless of the 366th District Court pushed back a hearing that could make permanent the restaurant's temporary restraining order against the city, after questioning whether the court can even rule on the case.
After the hearing was postponed twice this month, attorneys for the city and for Hank's finally presented their claims to the judge. Hank's owners want an injunction against the city to end what they say is "continuous harassment" in the forms of unwarranted police presence and baseless code enforcement. The city wants the restaurant shut down for failing to comply with 80 alleged fire and safety violations.
On August 23, Hank's was granted a restraining order that requires McKinney police, fire and code-inspection personnel stay off restaurant property. That order was extended twice in recent weeks as the two parties waited until a non-visiting judge could hear the case.
But the city's attorneys this week preset their former claims with a new one: The court has no jurisdiction to rule in regards to a municipality enforcing its code ordinances. Hank's attorneys said they weren't aware of such a plea to jurisdiction, which intends to defeat a cause of action for lack of subject-matter jurisdiction regardless of whether the asserted claims have merit.
Thus, the city is saying it's entitled to governmental immunity against the restaurant's claims. Mark Goldstrucker, an attorney representing the city, said that Hank's owners must allege the code ordinances, of which they're supposedly violating, are unconstitutional or pose a direct threat to its vested property rights, and that the owners have not done so.
"They're trying to ask the court for relief that the court's not permitted to grant," he said.
But before Wheless addressed the jurisdiction issue, both parties argued their side. Hank's attorneys, speaking next to Hank's owners Ron and David Reynolds, called the code violations "ticky-tack" and told Wheless, "We are not trying to create a little slice of Wild West in the city of McKinney ... we are saying stop harassing us."
Hank's filed a motion for contempt about two weeks ago after McKinney police arrived at the restaurant in spite of the current restraining order, claiming they received a bomb threat out of Denton County. According to Hank's attorneys, police entered the restaurant but didn't act like they were investigating a possible bomb, but instead paced around the restaurant and monitored patrons. They said police would not release the 911 call for the bomb threat, which turned out to be a hoax.
The city's attorneys focused their claims of the alleged code violations, which the city outlined in an August 9 letter to Hanks stating it would seek court relief if the restaurant didn't comply. The violations include hanging flags and beer banners and faded parking lot stripes among others the city contends pose threat of fire dangers and safety issues.
Tension mounted between the parties as they pleaded their case, with Wheless having to ask each side not to interrupt the other. Both sides took shots at each other, with Hank's attorneys calling the McKinney Police Department "incompetent," and Goldstrucker countering that "the harassment is being done by Hank's against the city."
"The implication is, for some reason, (Hank's is) outside the city's law," Goldstrucker told Wheless. "To grant their request would be to leave the status quo in illegal status."
Don Flanary, an attorney representing Hank's, said that the day before the city's initial injunction request, the Reynolds had city employees come see the restaurant's progress in coming into compliance with the alleged violations. Flanary said the visit lasted only about 15 minutes and city employees signed off on just a few changes.
Hank's attorneys seemed to be caught off guard by the city's plea to jurisdiction, prompting them to ask for time to better prepare on the matter before an actual hearing. "We weren't given notice of a jurisdiction hearing ... this is an outcome-determinant hearing," Flanary said.
But until the jurisdiction matter is settled, a hearing on either party's claims is pointless, Wheless said, which is why both must submit a brief outlining why the city is or isn't immune from court action. On Tuesday, October 2, he will rule whether to sustain or overrule the plea to jurisdiction; if sustained, the court will not hear the restaurant's case.
Dozens of witnesses -- police officers, firefighters, and city employees there to testify on the city's behalf -- were sworn in Monday in case the plea is overruled and a hearing is held. The Reynolds say they have "volumes of information" and video, and their own witnesses, to justify their harassment claims if given the opportunity.
Wheless denied the city's request that Hank's be closed until the legal issues are resolved. He ruled that the restraining order continue until next week, but took out the order's provision that prevents police from patrolling the Hank's parking lot. Police and firefighters can come on the premises only if responding to an emergency call.
But such restrictions could be short-lived.
"It's going to be difficult for Hank's to enjoin the city," Wheless told the court. "I think the city has the right to enforce its issues."
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