District court errs in requiring city council to address liquor license

by Melanie Thwing

Malin (City Administrator) and the City of Davenport v. Iowa District Court for Scott County
(Iowa Court of Appeals, February 23, 2011)

In July, 2009 Evernew Concept, L.L.C. applied for a Class C beer permit for its store, “Beer Mart,” to allow the sale of beer and wine on a carry-out only basis. The application was approved by the police and fire departments and the City’s building division.  Under section 17.48.020(B)(b)(3) of Davenport’s municipal code a special use permit from the zoning board of adjustment (ZBA) is required for carry-out liquor sales, except for grocery stores, pharmacies, and restaurants.  At a September 2009 ZBA meeting Mazhar stated that the business would be operated along the same lines as its previous owner, which was not a grocery store.  Evernew was granted a one-year special use permit. Later that month the City Administrator Craig Malin sent a letter to Evernew “administratively rejecting” the application.  He stated that a Class C beer permit was, “not allowed in the North Brady URTE corridor…”

Evernew requested that the liquor license application be placed on the next city council agenda, and when this was not granted Evernew filed a petition in district court for a temporary injunction to prevent the city from refusing to submit the application to the city council, and a writ of certiorari declaring as illegal the actions of the city administrator. The City filed a motion to dismiss the petition claiming that Evernew never submitted a valid application to the city council.  An affidavit was filed with the district court by Evernew that stated that its intentions were to have more than fifty percent of profit come from the sale of food and food products.  The district court granted the temporary injunction, finding Evernew likely to succeed on the merits based on its “uncontroverted affidavit [which] provides evidence to the Court that its intention to operate a grocery store on these premises more likely than not qualifies it for a carryout beer and wine permit under Iowa Code §123.129.” After more procedural wrangling, the case ended up before the Iowa Court of Appeals.

The Court of Appeals concluded that under Iowa Code § 123.32(2) and the Davenport City Code it is the city council, and not the city administrator, with the authority to act on liquor licenses.  Given this the district court was correct in sustaining the writ of certiorari that found the city administrator’s actions illegal.  The Court of Appeals concluded, however, that the district court erred in granting the temporary injunction effectively requiring the city council to hear Evernew’s application.  Temporary injunctions are intended to preserve the status quo, and granting the injunction in this case requires the city council to address an application that may or may not have been filed properly.

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