Case 5:19-cv-11062-JEL-EAS ECF No. 1 filed 04/12/19 PageID.1 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Case No. 19-cv -
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`Hon.
`Magistrate:
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`EXCLUSIVE BRANDS LLC, a
`Michigan Limited Liability Company
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`Plaintiff,
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`v.
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`City of Garden City, a Michigan
`Municipal Corporation,
`Garden City Building Department,
`Dale Dougherty, City Manager of Garden City
`Individually and in his official capacity as representative
`And Employee of Garden City
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`Defendants.
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`_/
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`PLAINTIFF’S COMPLAINT,
`REQUEST FOR INJUNCTIVE OR DECLARATORY RELIEF
`AND JURY DEMAND
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`Plaintiff, EXCLUSIVE BRANDS LLC, A Michigan Limited Liability corporation
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`(“Exclusive”), by and through its attorneys, files its Complaint And Request for Injunctive
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`or Declaratory Relief against Defendants (collectively “Defendants”), and states as follows:
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`Parties
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`1. Plaintiff Exclusive is a Michigan Limited Liability corporation, with its principle place of
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`business is at 38701 Seven Mile Road Suite 160, Livonia, MI 48152.
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`2.
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` Exclusive is and has been licensed under the Michigan Licensed Medical Marihuana
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`Facilities Licensing Act (MMFLA).
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`3. Defendant City of Garden City is a Michigan municipal corporation created and
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`existing by virtue of the laws of the State of Michigan and is empowered to act through
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`its governing body, its officials, employees and official bodies. Garden City’s principal
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`place of business is 6000 Middlebelt Rd, Garden City, MI 48135 and is a government
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`within the meaning of 42 U.S.C. § 2000cc-5(4) (A), and is subject to the jurisdiction of
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`this Court.
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`4. Defendant Garden City Building Department (“Department”) is a body within the City
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`of Garden City. The Department is subject to the jurisdiction of this Court.
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`5. Defendant Dale "Doc" Dougherty (“Dougherty”) is the City Manager of Garden City,
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`Michigan and is subject to the jurisdiction of this Court.
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`Jurisdiction and Venue
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`6. This Court has federal question jurisdiction, pursuant to 28 U.S.C. § 1343 over
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`Plaintiff’s claims regarding the deprivation under color of State law of rights secured
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`by the First and Fourteenth Amendments to the Constitution of the United States and
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`the laws of the United States.
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`7. This Court has supplemental jurisdiction over Plaintiff’s State law claims, pursuant to
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`28 U.S.C. § 1367.
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`8. This Court has personal jurisdiction over Defendants because Defendants reside
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`and conduct business in Wayne County, State of Michigan.
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`9. This Court has jurisdiction over Plaintiff’s Constitutional claims pursuant to 42 U.S.C. §
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`1983.
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`10. Plaintiff’s claims for declaratory relief are sought under 28 U.S.C. § § 2201 and 2202.
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`11. Plaintiff seeks permanent injunctive relief, pursuant to Rule 65 of the Federal Rules
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`of Civil Procedure and 28 U.S.C. § 1343.
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`12. Plaintiff’s claims for attorneys’ fees and costs are predicated upon 42 U.S.C. §§1988
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`and 2000cc- 2(d), which authorize the award of attorneys’ fees and costs to prevailing
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`parties, pursuant to 42 U.S.C. § 1983. Plaintiff’s claims for declaratory and injunctive
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`relief are authorized by 28 U.S.C. § § 2201 and 2202, by Rules 57 and 65 of the Federal
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`Rules of Civil Procedure, and by the general, legal, and equitable powers of this Court.
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`13. Venue is proper under 42 U.S.C. § 1391 as to all Defendants because the proposed
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`site is located within this District, and the acts described herein occurred within this
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`District.
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`Nature of the Action
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`14. This is an action for declaratory and injunctive relief arising under the First and
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`Fourteenth Amendments to the Constitution of the United States, 42 U.S.C. § 1983,
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`and applicable laws of the State of Michigan. Plaintiff seeks costs and attorneys’ fees
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`under 42 U.S.C. § 1988.
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`15. Garden City has not identified any compelling government interest for denying MIA’s
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`application.
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`16. Garden City has failed to enforce its Zoning Ordinance and Master Plan in the
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`least restrictive means possible.
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`Background
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`17. Prior to applying to Garden City, Exclusive had applied to the State of Michigan,
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`Department of Licensing and regulatory Affairs, Medical Marihuana Licensing Board
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`for a prequalification status pursuant to the Medical Marihuana Facilities Licensing Act
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`(MMFLA).
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`18. Exclusive was granted a very coveted prequalification status on May 31, 2018, which
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`is always pending final approval once a municipality grants a license for a particular
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`location, etc.
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`19. On August 13, 2018, Exclusive submitted an application for a special land use permit
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`and site plan related to a medical marihuana facility to the Garden City Building
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`Department (the “Department”). At that time, the Department accepted the application,
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`as well as Exclusive Brands’ application fee of $3,950.00.
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`20. Approximately 10 days later, Exclusive’s primary contact person with Garden City (the
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`“City”), Mr. Sam Qaoud (“Mr. Qaoud”) called the Department to inquire about the status
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`of Exclusive Brands’ special land use permit and site plan application. At that time, Mr.
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`Qaoud was informed that the City Council of Garden City (the “City Council”) had
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`passed a six-month moratorium on accepting medical marihuana facility permit
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`applications on August 6, 2018, and that Exclusive’s application would, therefore, not
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`be accepted. Pursuant to that moratorium, “[m]edical marihuana facility permit
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`applicants impacted by the moratorium may appeal a deferral of their application by
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`submitting a written request for appeal to the Building Department.”
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`21. Mr. Qaoud began discussing the possibility of Exclusive locating a medical marihuana
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`facility in Garden City in May 2018. In that same month, Mr. Qaoud made an offer on a
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`property located at 32595 and 32639 Industrial Road on behalf of Plaintiff (the
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`“Property”), which contain two buildings that Exclusive intends to utilize as medical
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`marihuana facilities. In July 2018, Mr. Qaoud entered into a $1.2 million purchase
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`agreement for the Property, with closing contingent upon Exclusive Brands receiving a
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`medical marihuana facility permit from Garden City. As part of the agreement, Mr.
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`Qaoud made a nonrefundable payment of $25,000 to the seller in order to retain the
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`right to purchase the property until October 29, 2018. Mr. Qaoud had the option to
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`extend this and other dates for various non-refundable fees.
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`22. Since entering into the purchase agreement for the Property, Exclusive has paid
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`approximately $15,000 to engineers, contractors, and other vendors to prepare reviews
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`and other plans in anticipation of making improvements to the Property in order to utilize
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`it for several medical marihuana facilities.
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`23. Since May 2018, Mr. Qaoud has been in frequent contact with Patrick Sloan (“Mr.
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`Sloan”), who was working with the Department, and was identified as the primary point
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`of contact for all questions or discussions related to medical marihuana facilities in
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`Garden City. Mr. Sloan informed and affirmatively represented to Mr. Qaoud that all
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`applications submitted to the City by August 13, 2018 would be accepted and discussed
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`at the September 13, 2018 meeting of the Garden City Planning Commission. See
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`email from Mr. Sloan, attached as Exhibit A.
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`24. Mr. Sloan never mentioned the moratorium to Mr. Qaoud prior to communications
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`subsequent to August 6, 2018. One of the individuals working for Exclusive Brands’
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`engineering firm, Mr. Robert Aaron Wanty, also interacted with Mr. Sloan related to the
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`Property, and was also not apprised of any potential moratorium in Garden City. See
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`affidavit from Robert Aaron Wanty, attached as Exhibit B.
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`25. Exclusive relied upon Mr. Sloan’s guidance in submitting its application on August 13,
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`2018, and, indeed, was not aware that the City Council had passed a moratorium until
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`after it had submitted its application for a special land use permit and site plan. Had Mr.
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`Sloan informed Exclusive Brands that Garden City was contemplating a moratorium
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`and that its application needed to be submitted by August 6, it would have done so.
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`However, Exclusive relied upon guidance and representations from Mr. Sloan and, as
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`a result, has been unfairly prejudiced in having their application deferred.
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`26. Exclusive would be an asset to the Garden City community. The entity and its
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`ownership have already undergone extensive vetting by the Michigan Bureau of
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`Medical Marihuana Regulation and received prequalification approval from the Medical
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`Marihuana Licensing Board on May 31, 2018. See prequalification notification, attached
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`as Exhibit C. Exclusive Brands anticipates receiving full approval to operate a licensed
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`medical marihuana provisioning center and a Class A grower facility from the Michigan
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`Medical Marihuana Licensing Board on September 10, 2018.
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`27. In Garden City, Exclusive Brands intends to operate two Class A grower facilities, a
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`processor facility, and a provisioning center, all of which will cumulatively create
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`approximately 30 jobs in the community.
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`28. In light of the fact that Exclusive Brands has been working closely with Garden City
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`officials, that it has expended substantial time and energy in preparing to apply for a
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`medical marihuana facility permit in the City, that it has already invested a sum of
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`$40,000
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`in
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`the Property, and
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`that
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`it relied upon guidance and affirmative
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`representations from Mr. Sloan in submitting its application on August 13, 2018,
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`principles of fairness dictate that Garden City should exempt Exclusive Brands from the
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`imposition of the moratorium. Moreover, Exclusive wants to begin operating in Garden
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`City, and to work with the City to create a successful business that generates tax
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`revenue and employment for the City and its residents.
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`29. Plaintiff’s application and proposal to the City for their proposed use is compatible with
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`the Master Plan.
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`30. Defendant Sloan has intentionally steered plaintiff away from timely and appropriately
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`filing its application with Garden City for its licenses or permits.
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`31. . The proposed use conforms to the intent and to all regulations and standards of
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`the zoning rules and regulations.
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`32. The City approved one or more ineligible or unqualified applicants for the same permit
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`plaintiff applied for, despite it being unlawful to do so, which gave priority over these
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`applications over plaintiff, especially in light of the moratorium the City had put in place.
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`33. The City, by and through their agent Patrick Sloan, intentionally steered plaintiff away
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`from timely applying for a license.
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`34. The City had “grandfathered” in one or more ineligible or unqualified applicants for the
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`same permit plaintiff applied for, despite it being unlawful to do so, which gave priority
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`over these applications over plaintiff, especially in light of the moratorium the City had
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`put in place.
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`35.
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`The proposed use conforms to the intent and to all regulations and standards
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`of the Zoning Ordinances.
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`36.
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`Defendants were not authorized under to deny Plaintiff’s petition based on the
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`facts and circumstances of this case.
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`37.
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`The actions of Defendants exceeded the their authority and are invalid.
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`Count I
`Violations of 42 U.S.C. §1983
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`38.
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`Plaintiff hereby realleges and incorporates by reference the foregoing
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`paragraphs of this Complaint as if fully set forth herein.
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`39.
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`Defendants have deprived, are aware that they have deprived, and
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`continue to deprive Plaintiff of its right to equal protection of the laws as secured by the
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`Fourteenth Amendment to the United States Constitution by unlawfully discriminating
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`against MIA by denying its petition on the basis of religious status and on the basis of
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`Plaintiff’s exercise of its fundamental rights to freedom of religion, speech and assembly.
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`40.
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`Denial of the petition is unconstitutional in that it imposes a substantial
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`burden on the religious exercise of the Plaintiff. Defendants have not demonstrated
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`that imposition of that burden is in furtherance of a compelling governmental interest and
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`is the least restrictive means of furthering that compelling government interest.
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`41.
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`Plaintiff is entitled to a declaration that denial of the petition as requested
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`are a violation of Plaintiffs’ Fourteenth Amendment right to equal protection of the laws.
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`42.
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`Plaintiff is entitled to issuance of a permanent injunction enjoining
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`Defendants
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`from enforcing any denial upon Plaintiff’s application and requiring
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`Defendants to take whatever actions necessary to approve Plaintiff’s application.
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`43.
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`Defendants’ unlawful actions caused Plaintiff harm and it is entitled to
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`injunctive, declaratory, compensatory and punitive damages, in addition to all such other
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`relief this Court deems just and proper including costs and attorneys’ fees in this action.
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`Wherefore, Plaintiffs request this Honorable court to grant injunctive relief,
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`compensatory and punitive damages against Defendants, costs and attorney fees, plus
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`other equitable relief the court deems just and equitable.
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`Count II Violation of Fifth Amendment to the United States Constitution
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`(Procedural Due Process – 42 U.S.C. §1983)
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`44.
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`Plaintiff hereby realleges and incorporates by reference the foregoing
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`paragraphs of this Complaint as if fully set forth herein.
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`45.
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`Defendants have deprived, are aware that they have deprived, and continue to
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`deprive Plaintiff of its right to a public hearing and an opportunity to provide a meaningful
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`defense and to be heard before the City’s planning commission and other governmental
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`bodies as secured by the Fifth Amendment to the United States Constitution.
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`46.
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`Defendants are not authorized to deny Plaintiff’s petition because Plaintiff
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`meets the standards articulated in the applicable Ordinances.
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`47.
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`Defendants’ denial of plaintiff’s right to a public hearing and an opportunity to
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`provide a meaningful defense and to be heard before the City’s planning Commission,
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`City Council, and other governmental bodies constitutes a deprivation of Plaintiff’s due
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`process rights in violation of the Fifth Amendment to the United States Constitution by
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`unlawfully discriminating against plaintiff in the application of the special use exception on
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`the basis of Plaintiff’s exercise of its fundamental rights to freedom of religion, speech and
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`assembly.
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`48.
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`Plaintiff is entitled to a declaration that denial of the petition as requested and
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`denial of a right to a public hearing are a violation of the Fifth Amendment to the United
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`States Constitution.
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`49.
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`Plaintiff is entitled to issuance of a permanent injunction enjoining Defendants
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`from enforcing any limitation or denial upon Plaintiff’s application and requiring
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`Defendants to take whatever actions necessary to permit Plaintiff to obtain such relief
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`requested in its application.
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`50.
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`Defendants’ unlawful actions caused Plaintiff harm and it is entitled to
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`injunctive, declaratory, compensatory and punitive damages, in addition to all such other
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`relief this Court deems just and proper including costs and attorneys’ fees in this action.
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`Wherefore, Plaintiffs request this Honorable court to grant injunctive relief,
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`compensatory and punitive damages against Defendants, costs and attorney fees, plus
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`other equitable relief the court deems just and equitable.
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`Count III Violation of Fifth Amendment to the United States Constitution
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`(Substantive Due Process – 42 U.S.C. § 1983)
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`51.
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`Plaintiff hereby realleges and incorporates by reference the foregoing
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`paragraphs of this Complaint as if fully set forth herein.
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`52.
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`Plaintiff has a constitutionally protected right to utilize its property free from
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`the irrational, arbitrary, and capricious applications of zoning regulations.
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`53.
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`By applying the zoning regulations to Plaintiff in a discriminatory manner,
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`Defendants have subjected Plaintiff to the irrational, arbitrary, and capricious application
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`of zoning regulations.
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`54.
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`By basing its rezoning denial demonstrably fictitious issues, Defendants
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`have subjected Plaintiff to the irrational, arbitrary, and capricious application of zoning
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`regulations.
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`55.
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`Defendants’ decision to deny Plaintiff’s application for its license or permits
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`has no relation to any legitimate government interest.
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`56.
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`Defendants have deprived, are aware that they have deprived, and continue
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`to deprive Plaintiff of its right to use its property without due process of the law, as secured
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`by 42 U.S.C. §1983, by implementing a land use regulation in a manner that
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`discriminates on the basis of religion.
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`57.
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`Plaintiff is entitled to a declaration that denial of the petition as requested
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`and denial of a right to a public hearing are a violation of the Fifth Amendment to the
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`United States Constitution.
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`58.
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`Plaintiff is entitled to issuance of a permanent injunction enjoining
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`Defendants from enforcing any limitation or denial of Plaintiff’s application, and
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`requiring Defendants to take whatever actions necessary to approve Plaintiff’s
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`application.
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`59.
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`Defendants’ unlawful actions caused Plaintiff harm and it is entitled to
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`injunctive, declaratory, compensatory and punitive damages, in addition to all such other
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`relief this Court deems just and proper including costs and attorneys’ fees in this action.
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`60.
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`The City’s actions deprive Plaintiff of its due process rights secured under
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`the United States Constitution, Amendments V and XIV, and the Michigan Constitution of
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`1963, Art 1, §17.
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`61.
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`The City’s denial of Plaintiff’s petition does not allow a reasonable use of
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`the Property.
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`62.
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`The City’s denial of plaintiff’s petition does not bear a substantial
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`relationship to the health, safety and welfare of the community as a whole.
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`63.
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`The City’s denial of Plaintiff’s petition, as applied to the Property, is
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`unreasonable, arbitrary and capricious.
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`64.
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`65.
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`66.
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`In the absence of equitable relief, Plaintiff will be irreparably harmed.
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`Plaintiff has no adequate remedy at law.
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`While Plaintiff has no adequate remedy at law for future breaches, it has
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`sustained damages resulting from the City’s actionable activity prior to the issuance of
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`injunctive relief. Accordingly, damages should be assessed against the City in connection
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`with the actions it took prior to the issuance of injunctive relief and in connection with
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`future violations of any injunction issued in this matter.
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`WHEREFORE, Cambridge respectfully requests that the Court: (a) declare the
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`denial of Plaintiff’s petition as unconstitutional and void; (b) enjoin the City from enforcing
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`the denial of plaintiff’s petition; and (c) award Plaintiff damages in such amount in excess
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`of $25,000, plus costs, interest and attorney fees so needlessly sustained.
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`67.
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`Count IV State Law Claims
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`Plaintiff hereby realleges and incorporates by reference the foregoing
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`paragraphs of this Complaint as if fully set forth herein.
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`68.
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`Plaintiff is entitled to a declaration that the denial of the plaintiff’s
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`application, and the approval of other unqualified or ineligible applicants are
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`unreasonable and void and bear no substantial relation to the public health, safety, or
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`general welfare.
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`69.
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`Plaintiff is entitled to a declaration that Defendants had no objective factual
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`basis to support the denial of the application; and, as such, Defendants have violated
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`Plaintiff’s due process rights, which are protected by the Michigan Constitution Article I,
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`§ 17.
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`70.
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`Plaintiff is entitled to a declaration that Defendants’ denial of plaintiff’s right
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`to a public hearing before the City’s planning commission or other governmental body
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`constitutes a violation of Plaintiff’s due process rights, which are protected by the Michigan
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`Constitution Article I, § 17.
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`71.
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`Plaintiff is entitled to a declaration that the denials and limitations imposed
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`on plaintiff by the City are in violation of Plaintiff’s right to equal protection under the
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`Michigan Constitution Article I, § 2.
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`72.
`Plaintiff is entitled to a declaration that the denial of the plaintiff’s proposal
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`interfere with and damage Plaintiff’s property rights for public purposes without due
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`process of law, as provided by the Michigan Constitution Article I, § 17.
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`73.
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`Defendants’ unlawful actions caused Plaintiff harm and it is entitled to
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`injunctive, declaratory, compensatory and punitive damages, in addition to all such other
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`relief this Court deems just and proper including costs and attorneys’ fees in this action.
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`Wherefore, Plaintiffs request this Honorable court to grant injunctive relief,
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`compensatory and punitive damages against Defendants, costs and attorney fees, plus
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`other equitable relief the court deems just and equitable.
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`JURY DEMAND
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`Plaintiff demands a jury trial as to all claims so triable.
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`Respectfully submitted,
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`DAVID E. GHANNAM P.C.
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`/s/ DAVID E GHANNAM
`DAVID E GHANNAM (P43407)
`Attorney for Plaintiff
`15900 Michigan Ave, Ste 1
`Dearborn, MI 48126
`313-945-0088
`david@ghannam.us
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