Henry Et Al V Somerton City of Et Al

Case 2:18-cv-03058-DJH Document 1 Filed 09/27/18 Page 1 of 29
1 Alan S. Baskin, #013155

2 David E. Wood #021403
BASKIN RICHARDS PLC
3 2901 North Central Avenue, Suite 1150
4 Phoenix, Arizona 85012
Telephone No. 602-812-7979
5 Facsimile 602-595-7800
E-mail: alan@baskinrichards.com
6
dwood@baskinrichards.com
7
Attorneys for Plaintiffs Stephen Henry and
8 Iglesia Bautista de Somerton
9
10 IN THE UNITED STATES DISTRICT COURT

11 FOR THE DISTRICT OF ARIZONA
12
Stephen Henry, a married man; Iglesia
13 Bautista de Somerton, a non-profit religious Case No.
organization,
14
15 Plaintiffs, COMPLAINT
16 v.
17
The City of Somerton; Salvador Lopez;
18 Hector Tapia; Carmen Juarez; and John and
Jane Does 1-10.
19
20 Defendants.
21 Plaintiffs Stephen Henry (“Henry”) and Iglesia Bautista de Somerton (“Iglesia”) as and
22 for their respective claims against Defendants the City of Somerton (the “City”), Salvador
23 Lopez (“Lopez”), Hector Tapia (“Tapia”), Carmen Juarez (“Juarez”), and John and Jane Does
24 1-10 allege as follows:
25 THE PARTIES
26 1. Plaintiff Stephen Henry is a married individual who has at all material times
27 hereto resided in Yuma County, Arizona. He is a retired law enforcement officer who owns
1
and operates a contractor company, Arizona Blue Line Construction that have licenses with the
2
Arizona Registrar of Contractors.
3
2. Plaintiff Iglesia Bautista de Somerton is a church opened and operated by Mr.
4
Henry. Iglesia, at all material times hereto has been located at 118C West Main Street in the
5
City of Somerton, Yuma County, Arizona. Mr. Henry presides at the church and leads attendees
6
in religious study and worship. Iglesia is a non-profit religious organization duly registered
7
pursuant to 501(c)(3) of the Internal Revenue Code.
8
3. Defendant the City of Somerton is an Arizona municipality, organized according
9
to and operating pursuant to the laws of the State of Arizona. The City is a governmental entity
10
and acted through its agents at all times relevant to the claims herein as a governmental entity.
11
On information and belief, the agents of the City whose actions and omissions, as alleged
2901 North Central Avenue, Suite 1150
12
herein, form the basis for the Plaintiffs’ claims were acting at all material times with the consent
Telephone 602-812-7979
BASKIN RICHARDS PLC
Facsimile 602-595-7800
Phoenix, Arizona 85012
13
and authorization of and according to the training and policies of the City.
14
4. Defendant Salvador Lopez is the City Building Inspector at the City of Somerton
15
Community Development department, and is a resident of the State of Arizona. Mr. Lopez is
16
one of a number of City of Somerton agents, officers, and employees who undertook a
17
campaign to prevent the hosting of religious assemblage at 118C West Main Street. Mr. Lopez
18
is responsible for actions and omissions in Yuma County, State of Arizona out of which the
19
claims in this action arise. On information and belief, Jane Doe Lopez is the spouse of Salvador
20 Lopez and they were married at all times material to the claims in this action. The Plaintiffs
21 reserve the right to substitute the proper name for Jane Doe Lopez when it is discovered in the
22 course of this action. On information and belief, Salvador Lopez was acting for and on behalf
23 of his marital community at all times relevant to the claims herein, and, therefore, the marital
24 community of Salvador Lopez and Jane Doe Lopez is liable for all actions, omissions and
25 damages alleged herein against Salvador Lopez.
26 5. Defendant Hector Tapia is Director of Economic Development for the City of
27 Somerton, and is a resident of the State of Arizona. Mr. Tapia is one of a number of City of
2
1
Somerton agents, officers, and employees who undertook a campaign to prevent the hosting of
2
religious assemblage at 118C West Main Street. Mr. Tapia is responsible for actions and
3
omissions in Yuma County, State of Arizona out of which the claims in this action arise. On
4
information and belief, Jane Doe Tapia is the spouse of Hector Tapia and they were married at
5
all times material to the claims in this action. The Plaintiffs reserve the right to substitute the
6
proper name for Jane Doe Tapia when it is discovered in the course of this action. On
7
information and belief, Hector Tapia was acting for and on behalf of his marital community at
8
all times relevant to the claims herein, and, therefore, the marital community of Hector Tapia
9
and Jane Doe Tapia is liable for all actions, omissions and damages alleged herein against
10
Hector Tapia.
11
6. Defendant Carmen Juarez is the Community Development Director at the City of
12
Somerton, and is a resident of the State of Arizona. Ms. Juarez is one of a number of City of
BASKIN RICHARDS PLC
13
Somerton agents, officers, and employees who undertook a campaign to prevent the hosting of
14
religious assemblage at 118C West Main Street. Ms. Juarez is responsible for actions and
15
omissions in Yuma County, State of Arizona out of which the claims in this action arise. On
16
information and belief, John Doe Juarez is the spouse of Carmen Juarez and they were married
17
at all times material to the claims in this action. The Plaintiffs reserve the right to substitute the
18
proper name for John Doe Juarez when it is discovered in the course of this action. On
19
information and belief, Carmen Juarez was acting for and on behalf of her marital community
20 at all times relevant to the claims herein, and, therefore, the marital community of Carmen
21 Juarez and John Doe Juarez is liable for all actions, omissions and damages alleged herein
22 against Carmen Juarez.
23 7. Defendants John and Jane Does 1-10 are, on information and belief, other City of
24 Somerton employees, officials, representatives or agents not yet known to Plaintiffs who may
25 also have caused or contributed to the harm and damages suffered by Iglesia and Mr. Henry.
26 Plaintiffs reserve the right to substitute such John and Jane Doe names with the proper names
27 of any such persons as they are identified during proceedings in this action.
3
1
JURISDICTION & VENUE
2
8. This Court has jurisdiction over the subject matter of this action pursuant to 28
3
U.S.C. §§ 1331 and 1343 for Plaintiffs’ claims arising under federal law. In addition, this Court
4
has supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
5
9. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because
6
Defendants have sufficient contacts with this District to subject them to personal jurisdiction at
7
the time this action is commenced, the parties all reside within this District, and the acts and
8
omissions giving rise to the causes of action asserted herein occurred in this District.
9
FACTS
10
10. In September 2016, Mr. Henry began looking at the physical space located at
11
118C West Main Street, Somerton, Arizona as the home for Iglesia. Mr. Henry was open about
12
his plans and desire to open and operate a church at the location.
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13
11. Ramon Arias, the building owner, welcomed the church and offered to lease the
14
space to Iglesia.
15
12. In the beginning of October 2016, Mr. Arias met with City personnel including
16
Community Development Director Carmen Juarez and Director of Economic Development
17
Hector Tapia at the City of Somerton building department. Ms. Juarez informed Mr. Arias that
18
they would not allow a church at 118C West Main Street, because it would conflict with a
19
planned and desired future sports bar immediately down the street from 118C West Main Street,
20 as the bar had to comply with a 300-foot distance requirement from any church. Mr. Tapia
21 immediately thereafter informed Mr. Arias that the City would use a conditional use permit
22 process to block the church.
23 13. At the time, the City had enacted a local zoning ordinance requiring any place of
24 religious assembly to obtain from the City a Conditional Use Permit to operate in the Main
25 Street Corridor Zoning District, where the 118C West Main Street building is located. The
26 Conditional Use Permit process authorized city workers to deny the application absent any valid
27 reason and placed the burden on the Planning Commission to make specific findings to approve
4
1
a Conditional Use Permit. The Conditional Use Permit process did not similarly apply to
2
proposed secular uses, such as community recreation centers, social clubs, fraternal
3
organizations, libraries, museums, bars, liquor stores, coffee shops and more, which were
4
permitted by right to operate in the same location where the City reserved the right to deny use
5
of a building for religious assembly regardless of size or scope. A copy of the relevant
6
provisions is attached as Exhibit A.
7
14. Also at the time, the Ninth Circuit Court of Appeals had issued a published
8
decision ruling against the City’s immediate geographic neighbor, the City of Yuma, holding
9
that application of a conditional use permit process applicable to religious assembly or
10
institution on less than equal terms with a non-religious assembly or institution violated the
11
Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Centro Familiar Cristiano
12
Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011). The City could not have had
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better prior notice of the unlawfulness of its ordinance and actions than that published decision.
14
15. During the October 2016 meeting, Ms. Juarez and Mr. Tapia each told Mr. Arias
15
that they would use a City process to block the church in his building. Mr. Tapia offered to
16
find Mr. Arias a different, City-desired tenant for the building, such as a Jimmy John’s
17
restaurant.
18
16. Mr. Arias then told Mr. Henry that he could not rent the building to Iglesia
19
because the City would not allow a church to operate there.
20 17. Mr. Henry later spoke with then Somerton City Manager Bill Lee regarding the
21 City’s opposition to a church being located at 118C West Main St. Mr. Lee said there would
22 be no issue with a church at that location, and he requested an email from the church stating
23 their purpose that would be forwarded to staff for their input.
24 18. On October 7, 2016, Mr. Henry’s son, who also presided at Iglesia, sent that email
25 to Mr. Lee inviting a meeting with City building officials to discuss church operations and any
26 desired “advice, direction, and requirements.” The City never responded. Mr. Henry then
27 signed a three-year lease of 118C West Main St for the intended use as a church.
5
1
19. On October 12, 2016, Mr. Arias submitted a permit application for “commercial
2
electric” to the City of Somerton for an electrical clearance of power to allow Arizona Public
3
Service (“APS”) to connect a meter to the existing meter box at 118C West Main St.
4
20. Upon the preliminary electrical inspection, the City building inspector demanded
5
the installation of a ground wire to the indoor junction box and an addition of an electrical
6
switch to be located near a door to operate the ceiling lights. Upon completion of that work,
7
City of Somerton Building Inspector Salvador Lopez signed an electrical clearance for power.
8
21. On October 27, 2016, APS connected electrical power to 118C West Main St.
9
While Mr. Henry was repairing the existing fluorescent ceiling light fixtures, Mr. Lopez entered
10
the building and confronted him, asserting that Mr. Henry was performing unauthorized repairs
11
without an issued City permit.
12
22. Mr. Henry explained to Mr. Lopez that the City adopted the International
BASKIN RICHARDS PLC
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Building Code (“IBC”), which exempts from permit requirements minor electrical repair work,
14
specifically the “replacement of lamps.”
15
23. Mr. Lopez disagreed and posted a “Stop Work Order” (“SWO”) notice on the
16
church entrance door. Mr. Henry informed Mr. Lopez that he issued the SWO without legal
17
authority, but Mr. Lopez maintained that the repair work required an electrical permit.
18
24. The posted and provided SWO did not contain any information about the alleged
19
violations of city code supporting the issuance, but did pronounce “NO WORK MAY BE
20 PERFORMED AT THIS ADDRESS UNTIL FURTHER NOTICE.” The Notice was typed on
21 red paper and placed on the entrance door for all potential visitors and people passing to see.
22 25. At the time of this interaction, Mr. Lopez had held his job as an inspector for less
23 than six months.
24 26. That same day, Mr. Arias and Mr. Henry spoke to Ms. Juarez regarding the posted
25 SWO. Ms. Juarez expressed full support of Mr. Lopez’s actions and the SWO. Ms. Juarez then
26 demanded from Mr. Henry a Conditional Use Permit to open a church at 118C West Main St.
27 and provided Mr. Henry with a Conditional Use Permit application, which carried a $575.00
6
1
fee demand. Ms. Juarez also said that the city would take a long time processing and potentially
2
issuing a Conditional Use Permit, and that it would take six weeks at a minimum.
3
27. Mr. Arias suggested Ms. Juarez simply issue an electrical permit to Mr. Henry.
4
She refused.
5
28. At the time, the City had a requirement that church and religious uses in the
6
downtown area obtain Conditional Use Permits; though this requirement did not apply to many
7
similar or identical secular uses. The City conferred upon its employees and agents authority
8
to deny without any required basis the issuance of a conditional use permit, thereby denying
9
the use and occupation of downtown buildings by religious congregations.
10
29. On October 28, 2016, Mr. Henry both mailed a certified letter to and emailed the
11
City of Somerton building department and city manager, explaining that his repair work in the
12
building did not require a permit under Section 105.2 of the IBC, which the city had adopted,
BASKIN RICHARDS PLC
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and explaining that he did not plan on completing the Conditional Use Permit application
14
because the City Ordinance conflicted with Arizona and federal laws protecting the free
15
exercise of religion. Mr. Henry included therein notice of his intent to open the church on
16
November 6, 2016.
17
30. On October 30, 2016, Mr. Henry again visited Ms. Juarez and explained that the
18
repair work he was performing at Iglesia’s leased space of assembly was for the purpose of
19
getting the existing lights working so the space could be used for religious services.
20 31. On October 31, 2016, the City of Somerton Building Department sent a letter to
21 Mr. Henry advising him that it was immediately issuing a citation for a building code violation
22 to the building owner, Mr. Arias. The City threatened that Mr. Henry would be in violation of
23 the Somerton Zoning Code if he opened the church without a Conditional Use Permit. The City
24 further threatened:
25 [T]he City Code gives the Building Inspector authority to enter any
26 private property, at any time, when possible code violations are
suspected. The fact that staff is aware of unpermitted work being done
27 at this location, allow us to inspect the property at any given time.
7
1
32. On November 6, 2016, Mr. Henry held church services at Iglesia, which were
2
open to the public. He did the same on the evening of November 9, 2016.
3
33. On November 12, 2016, Mr. Henry received by mail an Arizona Registrar of
4
Contractors’ (“ROC”) Unlicensed Complaint filed by the City alleging Mr. Henry had
5
performed unpermitted work at the church’s assembly space requiring an electrical permit
6
under Mr. Henry’s contractor’s license for his business, Arizona Blue Line Construction.
7
34. Arizona Blue Line Construction had not performed any work at Iglesia, had not
8
ever contracted to perform any such work, and had not received any compensation or offer of
9
money to perform any such work. Rather, Mr. Henry performed repairs personally for Iglesia,
10
free of charge, to open it to the public for worship and study. Mr. Henry informed City officials
11
of this.
12
35. On November 21, 2016, the City sent Mr. Henry a certified letter threatening that
BASKIN RICHARDS PLC
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Iglesia was operating without a Conditional Use Permit and that a citation was being prepared
14
for the violation of a “Somerton Zoning Code.” The letter was signed by Ms. Juarez on behalf
15
of the City.
16
36. On November 29, 2016, Arizona Registrar of Contractors Investigator Steve
17
Lawton conducted an inspection of Iglesia in response to City complaints that Mr. Henry was
18
conducting work without a permit, including a Conditional Use Permit. Mr. Henry asked that
19
Iglesia please be left alone and reiterated to Mr. Lawton the statements by Ms. Juarez and Mr.
20 Tapia that they intended to use the conditional use permit process to prevent the undesired
21 church. Mr. Lawton expressed in response that that was not an issue that he would consider.
22 37. Mr. Lawton recorded his visit and his conversations with both Mr. Henry and Mr.
23 Lopez and Ms. Juarez. Mr. Lawton questioned Ms. Juarez about the local permit requirements.
24 Ms. Juarez reiterated to Mr. Lawton that no electrical permits could be issued unless and until
25 a Conditional Use Permit first issued; that latter requirement existing for “this particular case.”
26 Mr. Lopez was present for that conversation and pressed for action to be taken against Mr.
27 Henry.
8
1
38. On December 14, 2016, in response to the City’s complaint, the Registrar of
2
Contractors issued a directive to Mr. Henry to comply with the City to obtain both an electrical
3
permit and the City’s demanded Conditional Use Permit. The Registrar of Contractors did not
4
address that the City’s requirements were facially invalid acts of religious discrimination
5
underlying the City’s claims of contracting violations for “not complying with the local
6
jurisdiction” or “working without a special use permit.”
7
39. Mr. Henry mailed a response to the Registrar stating his intent not to comply with
8
the Directive, that the City’s demands were motivated by a desire to prevent the operation of
9
his church, and requested a hearing as he did not perform any repair work at the church as a
10
contractor or on behalf of Arizona Blue Line Construction.
11
40. Next, Mr. Henry received a call from the police department informing him that it
12
intended to issue him a criminal citation.
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41. On January 3, 2017, Mr. Henry was cited and released for three class 1
14
misdemeanors, all pertaining to his work in the church building without a permit demanded by
15
the City.
16
42. On January 23, 2017, Mr. Henry was cited and released for one class 1
17
misdemeanor for operating a church without a Conditional Use Permit.
18
43. During this time, Ms. Juarez was communicating with an ROC investigator and
19
the City’s contracted prosecutor about the sought ROC complaint and sought criminal charges
20 for Mr. Henry’s refusal to apply for a Conditional Use Permit. Ms. Juarez asked the prosecutor
21 whether she should bring Mr. Henry’s refusal to capitulate to their demands to the attention of
22 the criminal trial judge for the arraignment.
23 44. The City charged Mr. Henry with four misdemeanor offenses, each carrying a
24 potential penalty of up to six months in jail and a fine of up to $2,500.
25 45. The identified basis for one of the charges was the City’s continued demand that
26 Mr. Henry cease Iglesia activities and instead submit to the Conditional Use Permit process.
27 The other charges related to alleged work performed without required permits in violation of
9
1
the City Code, which by reference, was an adoption of the IBC. By Ms. Juarez’s recorded
2
admission, Mr. Henry could not obtain such permits though without first obtaining the
3
Conditional Use Permit.
4
46. The City prosecutor listed the potential penalties for the latter three misdemeanors
5
as eighteen months in jail and a $13,994 fine.
6
47. The criminal charges against Mr. Henry alleged to issue from violations of the
7
City’s adoption of the IBC in Mr. Henry’s failure to obtain various permits. However, the
8
adopted IBC contains due process protections to targets in the form of an adopted appeal
9
process to an established board that could review challenges to the permit demands.
10
48. On information and belief, the City of Somerton never set up that appeal process
11
or board for City residents to try to utilize to escape that system allowing arbitrary targeting
12
and shut down of undesired religious occupation of city buildings.
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49. On April 21, 2017, through counsel the City again demanded that Mr. Henry and
14
Iglesia submit to the Conditional Use Permit process.
15
50. Mr. Henry then desperately sought the help of elected officials and the
16
Department of Justice to end the City’s demands.
17
51. The Department of Justice intervened and reviewed the City’s ordinance upon
18
which the City supported its actions and ability to prevent Iglesia operations. In response to
19
that intervention, and on information and belief, threat, the City reluctantly dismissed the single
20 criminal charge directly stating its relation to Mr. Henry’s actions without receipt of a
21 Conditional Use Permit.
22 52. At no time did the City inform the criminal court that the demanded permits
23 underlying the other criminal charges would not issue to Mr. Henry unless he first obtained a
24 Conditional Use Permit, the same unlawful requirement basing the dismissed criminal charge
25 and the basis for that dismissal. Instead, the City persisted with that sought prosecution all
26 stemming from City demands aimed at the suppression of Iglesia and Mr. Henry’s religious
27 services.
10
1
53. On August 10, 2017, the Office of the Arizona Attorney General wrote to Ms.
2
Juarez advising that the City’s ordinance was in direct conflict with Arizona’s statutes enacted
3
to protect “Arizona citizens’ right to practice religion without undue government influence.”
4
As the State advised, the City’s ordinance violated the terms mirroring the the Religious Land
5
Use and Institutionalized Persons Act, “RLUIPA”; which again, the City was on notice of for
6
years prior to its actions against Mr. Henry and Iglesia.
7
54. In spite of the guidance from the Ninth Circuit Court of Appeals, the DOJ, the
8
Office of the Attorney General, and Mr. Henry himself, the requirement for maintaining a
9
conditional use permit for churches remained a matter of discussion and debate for the City for
10
the next several months. This was so in spite of the demonstration that the requirement allowed
11
for and was being used for selective enforcement against churches such as Iglesia. Mr. Henry
12
and Iglesia have no notice that the City ever conducted any curative training of City employees,
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officers or agents regarding the First Amendment protections against selective decision-
14
making, RLUIPA, or Arizona’s enacted Article 9 protections for the free exercise of religion,
15
A.R.S. §§ 41-1493 et seq. In fact, subsequent events including the persistence of criminal and
16
administrative actions against Mr. Henry demonstrate that the City did not want to give up that
17
unlawful authority against preventing religious organization and religious use of buildings in
18
the downtown area where the City instead desired secular, profit-based business that served
19
alcohol.
20 55. Even as the amendment process took place in September 2017, Ms. Juarez
21 publicly confirmed a demand that Mr. Henry and Iglesia would still have to submit a parking
22 plan subject to review by the City.
23 56. The City continued to prosecute Mr. Henry for not ceasing Iglesia activities and
24 not applying for the permits that they would never actually issue to him.
25 57. Mr. Henry moved to dismiss the charges for violating his due process rights in
26 posting a Stop Work Order that did not list the bases for the order or how to rectify those bases,
27 and for issuing demands and citations under the International Building Code without creating
11
1
the board of appeals necessary to hear and decide appeals of orders issued by the City under
2
that code.
3
58. The City argued in response that Mr. Henry was provided substitute appeal rights
4
through his meetings with Ms. Juarez. Those substitute appeal rights were the meetings in
5
which Ms. Juarez conditioned all demands on Mr. Henry obtaining a conditional use permit.
6
Upon information and belief, the Defendants did not inform the prosecutor of those latter
7
requirements.
8
59. On November 7, 2017, the criminal court dismissed the remaining criminal
9
charges because the City’s actions and procedures in issuing the SWO provided no notice to
10
Mr. Henry and the City failed to provide its own mandated appeal process, all in violation of
11
Mr. Henry’s due process rights. The criminal court noted as to the deficient notice provided to
12
Mr. Henry that even as of that date, the court did not know what city code provisions Mr. Henry
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allegedly violated that allegedly justified the SWO or even the criminal charges.
14
60. From his first interactions with City officials Mr. Henry advised them that his
15
work to fix existing lights was not only authorized by the IBC, but that it was work that he
16
conducted free of charge and not on behalf of any of his companies. Upon information and
17
belief, the City never had any information to contradict this.
18
61. The City also did not have any standing to lodge a complaint with the Registrar
19
of Contractors against Mr. Henry or his companies under the rules governing proceedings
20 against licensed contractors. Mr. Henry and his attorneys continually pointed that out to the
21 City, which continued to press those administrative charges nonetheless.
22 62. On May 8, 2017, an Administrative Law Judge expressly held that the City, in
23 regard to its complaint with the Registrar of Contractors had no standing to pursue its attack on
24 Mr. Henry, his businesses, and his livelihood:
25 “The City is not a person as defined by ARIZ. REV. STAT. section
26 32-1101(6) and does not otherwise meet the requirements of ARIZ.
REV. STAT. section 32-1154(B). Consequently, it is appropriate to
27 grant Respondent’s Motion to Dismiss.”
12
1
63. Despite the ALJ’s decision, the City demanded to go forward as the complaining
2
party against Mr. Henry and his businesses, none of which had performed as a contractor to fix
3
lights and switches for Iglesia.
4
64. In December 2017, following a trial, the City again was rejected for not having
5
standing to pursue its crusade and further because Mr. Henry had not performed as a contractor
6
such that any complaint could be heard.
7
65. In late January 2018, the City finally removed the Stop Work Order placed on
8
Iglesia’s entrance door. No Defendant ever reimbursed Mr. Henry for the attorneys’ fees that
9
he had to expend defending against their criminal charges to convict him of crimes and their
10
administrative action to challenge his license to continue business as a contractor. Mr. Henry
11
spent more than a year with constant stress and anxiety, and constant interruptions to his life
12
and work all combating and worrying about the Defendants’ attempts to harm him to stop the
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operation of Iglesia.
14
CLAIM 1: VIOLATIONS OF THE RELIGIOUS LAND USE AND
15 INSTITUTIONALIZED PERSONS ACT
16 (All Defendants)
17 66. Plaintiffs incorporate by reference each of the allegations in the preceding

18 paragraphs of this Complaint as though fully set forth herein.
19 67. At all times relevant to this action, the Religious Land Use and Institutionalized
20 Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc, has been in full force and effect and has applied
21 to Defendants’ conduct.
22 68. The City enacted a requirement for and proceeded first through demand for a
23 Conditional Use Permit, then through attacks and sought criminal and administrative penalties,
24 described and incorporated from above, all because Mr. Henry did not submit to a Conditional
25 Use Permit requirement that applied to religious assemblies such as Iglesia, but not other uses.
26 69. The City’s Conditional Use Permit requirement mandated that places of religious
27 worship, such as Iglesia, submit to the City an application and fee for approval through an
13
1
issued Conditional Use Permit to operate in the Main Street district. Identical non-religious
2
uses, however, did not have to submit to that process or receive such special approval to operate
3
in that same area.
4
70. Both the Department of Justice and the Office of the Arizona Attorney General
5
reviewed and notified the City that its enactment violated the RLUIPA.
6
71. Defendants City, Juarez, and Tapia are liable for demanding of Mr. Henry a
7
Conditional Use Permit prior to the holding of religious services at Iglesia that was not required
8
of similar or identical non-religious uses.
9
72. Defendants City, Juarez, and Lopez, are liable for, on information and belief,
10
issuing a stop work order at Iglesia for not obtaining a Conditional Use Permit required in
11
violation of the RLUIPA.
12
73. At Defendant Juarez’s direction, none of the permits that the City demanded of
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Mr. Henry and Iglesia, upon which they predicated for the sought criminal and administrative
14
charges, could ever issue to Mr. Henry or Iglesia without their first submitting to the unlawful
15
Conditional Use Permit process.
16
74. The Conditional Use Permit process was the City’s adopted labyrinth intended to
17
prevent Iglesia from opening and operating, creating a substantial burden for Plaintiffs.
18
75. Thus, each legal violation identified below, along with the factual predicates
19
underlying was, in addition to the differential and discriminatory treatment for religious use of
20 structures in Somerton adopted in the City Code, a continuation of or new violation of the
21 RLUIPA committed by the City and Defendants Juarez and Lopez for which they are
22 additionally liable beyond the demand that Mr. Henry and Iglesia first obtain a Conditional Use
23 Permit.
24 a. Defendants City, Juarez, and Lopez demanded that Mr. Henry and Iglesia
25 obtain additional permits that would not issue unless and until Mr. Henry
26 and Iglesia complied with the Conditional Use Permit process, and are
27 liable therefore;
14
1
b. Defendants City, Juarez, and Lopez demanded that Mr. Henry and Iglesia
2
obtain additional permits that would not issue unless and until Mr. Henry
3
and Iglesia complied with the Conditional Use Permit process without
4
establishing the appeals board that the City adopted as part of its adopted
5
code for Mr. Henry and Iglesia to approach for relief, and are liable
6
therefore;
7
c. Defendants City, Juarez, and Lopez threatened Mr. Henry and Iglesia with
8
alleged authority to enter the church at any time, when they suspected a
9
code violation, which they asserted as ongoing due to the failure to comply
10
with the Conditional Use Permit process, and are liable therefore;
11
d. Defendants City and Juarez sought and obtained criminal charges against
12
Mr. Henry for not submitting to the Conditional Use Permit process to
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13
conduct religious assembly at Iglesia, and for not obtaining additional
14
permits that would not issue unless and until Mr. Henry and Iglesia
15
complied with the conditional use permit process, and are liable therefore;
16
e. Upon information and belief, Defendants City and Juarez sought and
17
obtained criminal charges against Mr. Henry with the purpose to deny
18
Plaintiffs’ the right to conduct religious assembly at Iglesia, a primary
19
purpose other than to bring an offender to justice, and are liable therefore.
20 76. The City’s enactment, and the additional actions outlined above all implemented
21 or imposed the City’s land use regulation in a manner that treated Mr. Henry and Iglesia on less
22 than equal terms with nonreligious assemblies and institutions.
24 or imposed the City’s land use regulation in a manner that discriminated against Iglesia on the
25 basis of religion.
26
27
15
1
78. The City’s enactment, and the additional actions outlined above all implemented
2
or imposed the City’s land use regulation in a manner would unreasonably limit religious
3
assemblies or structures in the District.
4
79. Defendants’ violation of its obligations and the Plaintiffs’ rights under RLUIPA
5
has caused substantial damages, suffering, loss and harm to the Plaintiffs, including without
6
limitation, loss of time and enjoyment of life, the payment of attorneys’ fees and costs devoted
7
to combating discriminatory and unlawful actions and proceedings, loss of income, emotional
8
harm, anxiety, fear, and other serious emotional conditions or symptoms.
9
80. Plaintiffs are therefore entitled to seek and recover all appropriate compensatory
10
damages for the injuries and losses they sustained as a result of Defendants’ discriminatory and
11
oppressive conduct, including for attorneys’ fees expended to defend against Defendants’
12
criminal and administrative actions against Mr. Henry.
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13
81. Pursuant to 42 U.S.C. § 1988(b), Plaintiffs are entitled to recover their full
14
attorneys’ fees and costs in pursuing this action.
15
82. Also, the Defendants’ wrongful conduct was extreme, outrageous, malicious,
16
oppressive, willful, and performed with an evil intent with conscious disregard of the violation
17
of Plaintiffs’ rights, meaning that Plaintiffs are entitled to recover punitive damages from
18
Defendants in an amount sufficient to punish Defendants and to deter similarly situated persons
19
or entities from like future conduct.
20 CLAIM 2: VIOLATIONS OF THE ARIZONA FREE EXERCISE OF RELIGION
21 ACT
(All Defendants)
22
25 84. At all times relevant to this action, the Arizona Free Exercise of Religion Act,
26 A.R.S. § 1493.03(B) has been in full force and effect and has applied to Defendants’ conduct.
27
16
1
85. The City enacted and proceeded first through demand, then through attacks and
2
sought criminal and administrative penalties all because Mr. Henry did not submit to a
3
Conditional Use Permit requirement that applied to religious assemblies such as Iglesia, but not
4
other similar or identical non-religious uses.
5
86. Defendants City, Juarez, and Tapia are liable for demanding of Mr. Henry a
6
Conditional Use Permit prior to the holding of religious services at Iglesia that was not required
7
of similar or identical non-religious uses or assemblies.
8
87. Defendants City, Juarez, and Lopez, are liable for, on information and belief,
9
issuing a stop work order at Iglesia for not obtaining a Conditional Use Permit.
10
88. At Defendant Juarez’s direction, none of the permits that the City demanded of
11
Mr. Henry and Iglesia, upon which they predicated criminal and administrative charges, would
12
ever issue to Mr. Henry or Iglesia without their first submitting to the Conditional Use Permit
BASKIN RICHARDS PLC
13
process.
14
89. The Conditional Use Permit process was the City’s adopted labyrinth intended to
15
prevent Iglesia from opening and operating, creating a substantial burden for Plaintiffs.
16
90. Thus, each legal violation identified below, along with the factual predicates
17
underlying was itself a continuation of or new violation of Arizona’s statute prohibiting
18
religious discrimination through land use regulation committed by the City and Defendants
19
Juarez and Lopez for which they are additionally liable beyond the demand that Mr. Henry and
20 Iglesia first obtain a Conditional Use Permit.
21 a. Defendants City, Juarez, and Lopez demanded that Mr. Henry and Iglesia
23 and Iglesia complied with the Conditional Use Permit process, and are
24 liable therefore;
25 b. Defendants City, Juarez, and Lopez demanded that Mr. Henry and Iglesia
27 and Iglesia complied with the Conditional Use Permit process without
17
1
establishing the appeals board that the City adopted as part of its adopted
2
code for Mr. Henry and Iglesia to approach for relief, and are liable
3
therefore;
4
c. Defendants City, Juarez, and Lopez threatened Mr. Henry and Iglesia with
5
alleged authority to enter the church at any time, when they suspected a
6
code violation, which they asserted as ongoing due to the failure to comply
7
with the Conditional Use Permit process, and are liable therefore;
8
d. Defendants City and Juarez sought and obtained criminal charges against
9
Mr. Henry for not submitting to the Conditional Use Permit process to
10
conduct religious assembly at Iglesia, and for not obtaining additional
11
permits that would not issue unless and until Mr. Henry and Iglesia
12
complied with the conditional use permit process, and are liable therefore;
BASKIN RICHARDS PLC
13
e. Upon information and belief, Defendants City and Juarez sought and
14
obtained criminal charges against Mr. Henry with the purpose to deny
15
Plaintiffs’ the right to conduct religious assembly at Iglesia, a primary
16
purpose other than to bring an offender to justice, and are liable therefore.
17
91. The City’s enactment, and the additional actions outlined above all implemented
18
or imposed the City’s land use regulation in a manner that discriminated against Mr. Henry and
19
Iglesia on the basis of religion.
21 or imposed the City’s land use regulation in a manner that treated Iglesia on less than equal
22 terms with nonreligious institutions.
23 93. Defendants’ violation of its obligations and the Plaintiffs’ rights under the
24 Arizona Free Exercise of Religion Act has caused substantial damages, suffering, loss and harm
25 to the Plaintiffs, including without limitation, loss of time and enjoyment of life, the payment
26 of attorneys’ fees and costs devoted to combating discriminatory and unlawful actions and
27
18
1
proceedings, loss of income, emotional harm, anxiety, fear, and other serious emotional
2
conditions or symptoms.
3
4
5
6
7
95. Pursuant to A.R.S. § 41-1493.01, Plaintiffs are entitled to recover their full
8
attorneys’ fees and costs in pursuing this action.
9
10
oppressive, willful and performed with an evil intent with conscious disregard of the violation
11
12
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13
14
CLAIM 3: VIOLATIONS OF THE FIRST AMENDMENT
15
(All Defendants)
16
97. Plaintiffs incorporate by reference each of the allegations in the preceding
17
paragraphs of this Complaint as though fully set forth herein.
18
98. Defendants admitted from the beginning of their campaign against Plaintiffs their
19
desire to prevent the hosting of religious assemblage at the Main Street building, as it conflicted
20 with their prioritization of a planned nearby sports bar and other forms of secular entertainment.
21 99. To achieve this goal, Defendants took several adverse actions against Plaintiffs
22 by instituting and demanding of Plaintiffs:
23 a. A Conditional Use Permit that selectively applied to religious uses,
24 committed by Defendants City, Juarez, and Tapia for which they are liable;
25 b. A Conditional Use Permit that allowed for selective discrimination and
26 bars to religious uses, committed by Defendants City, Juarez, and Tapia
27 for which they are liable;
19
1
c. Criminal charges for not complying with an unconstitutional permit
2
process, committed by Defendants City and Juarez for which they are
3
liable;
4
d. Criminal charges for not obtaining permits that the City would not issue
5
unless Mr. Henry and Iglesia submitted to the Conditional Use Permit
6
process, committed by Defendants City and Juarez for which they are
7
liable;
8
e. Administrative charges for not obtaining permits that the City would not
9
issue unless Mr. Henry and Iglesia submitted to the Conditional Use
10
Permit process, committed by Defendants City and Juarez for which they
11
are liable;
12
f. Involving the City Police Department and a uniformed officer to issue the
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13
Community Development office’s code violations, committed by
14
Defendants City and Juarez for which they are liable.
15
100. Each demand and action was caused and sought by motivation to prevent
16
religious use of 118C West Main Street.
17
101. These demands, followed by sought criminal and devastating economic
18
sanctions, would chill a person of ordinary firmness from continuing the exercise of their
19
religious rights.
20 102. Defendants’ violation of their obligations and the Plaintiffs’ First Amendment
21 rights has caused substantial damages, suffering, loss and harm to the Plaintiffs, including
22 without limitation, loss of time and enjoyment of life, the payment of attorneys’ fees and costs
23 devoted to combating discriminatory and unlawful actions and proceedings, loss of income,
24 emotional harm, anxiety, fear, and other serious emotional conditions or symptoms.
25 103. Plaintiffs are therefore entitled to seek and recover all appropriate compensatory
26 damages for the injuries and losses they sustained as a result of Defendants’ discriminatory and
27
20
1
2
3
104. Pursuant to 42 U.S.C. § 1988(b), Plaintiffs are entitled to recoup their attorneys’
4
fees and costs in pursuing this action.
5
6
7
8
9
10
CLAIM 4: VIOLATION OF MR. HENRY’S FEDERAL DUE PROCESS RIGHTS
11
(Defendant City of Somerton and Defendant Juarez)
12
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13
14
107. Defendants issued several citations carrying administrative penalties to Plaintiffs
15
without putting in place Defendants’ own adopted procedures for appealing such citations and
16
additionally against their own adopted standards, all of which were instead a dressing for
17
standardless citation issuance by Defendants.
18
108. Defendants issued to Plaintiffs a Stop Work Order that contained no information
19
of the alleged violations of City Code committed by Plaintiffs to enable Plaintiffs to appeal the
20 Stop Work Order and additionally against their own adopted standards, all of which were
21 instead a dressing for standardless citation issuance by Defendants.
22 109. Defendants issued to Plaintiffs a Stop Work Order and citations for failing to
23 obtain permits that the City would not issue unless and until Plaintiffs submitted to the unlawful
24 Conditional Use Permit process. Thus, Defendants issued to Plaintiffs a Stop Work Order and
25 citation for failing to submit to a City requirement that violated the First Amendment, federal
26 and state statutes, and was prohibited.
27
21
1
110. Furthermore, Defendants conditioned the ability to comply with permit demands
2
and cure any issued citations by first capitulating to the discriminatory conditional use permit
3
process employed to prevent undesired religious assemblage.
4
111. By the City’s own adopted policies, due process required creation of board of
5
appeals for any person issued a citation to appeal for review and possibly reversal of the
6
decisions of City personnel by brining to its attention the matter that Mr. Henry had to painfully
7
and expensively bring to the attention of a criminal judge and the Administrative Law Judge
8
hearing the administrative hearing prosecuted by the City.
9
112. In this case, the due process violation by the City as to that non-existent appeal
10
process has already been determined on the merits by the criminal court judge.
11
113. Furthermore, the City issued citations to Plaintiffs for which Plaintiffs could
12
never comply without sacrificing their First Amendment rights.
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13
114. Ms. Juarez openly stated that the issued citations were for permits that would not
14
be issued unless and until Plaintiffs submitted to the Conditional Use Permit process, which
15
Ms. Juarez and the other Defendants intended to use to prevent the operation of Iglesia.
16
115. The administrative charges and criminal charges sought and acted upon by
17
Defendants resulted from and compounded the due process violations and the damages
18
resulting therefrom.
19
116. By the City’s own policies and actions, there was no mechanism for Plaintiffs to
20 challenge the citations issued without basis or authority, and the only ability for Plaintiffs to
21 obtain those permits was through sacrifice of their religious rights and freedoms.
22 117. Defendants’ violation of its obligations and Mr. Henry’s due process rights has
23 caused substantial damages, suffering, loss and harm to the Plaintiffs, including without
24 limitation, loss of time and enjoyment of life, the payment of attorneys’ fees and costs devoted
25 to combating discriminatory and unlawful actions and proceedings, loss of income, emotional
26 harm, anxiety, fear, and other serious emotional conditions or symptoms.
27
22
1
2
3
4
5
6
7
8
9
10
11
12
CLAIM 5: VIOLATION OF MR. HENRY’S STATE DUE PROCESS RIGHTS
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13
14
15
16
122. Defendants issued several citations carrying administrative penalties to Plaintiffs
17
without putting in place Defendants’ own adopted procedures for appealing such citations and
18
additionally against their own adopted standards, all of which were instead a dressing for
19
standard-less citation issuance by Defendants.
20 123. Furthermore, Defendants conditioned the ability to comply with permit demands
21 and cure any issued citations by first capitulating to the discriminatory conditional use permit
22 process employed to prevent undesired religious assemblage in violation of the First
23 Amendment, the RLUIPA, and the Arizona Free Exercise of Religion Act.
24 124. By the City’s own adopted policies, due process required creation of board of
25 appeals for any person issued a citation to appeal for review and possibly reversal.
26 125. In this case, the due process violation by the City as to that non-existent appeal
27 process has already been determined on the merits by the criminal court judge.
23
1
126. Furthermore, the Defendants issued citations to Plaintiffs for which Plaintiffs
2
could never comply without sacrificing their First Amendment rights.
3
127. Defendant Juarez openly stated that the issued citations were for permits that
4
would not be issued unless and until Plaintiffs submitted to the Conditional Use Permit process,
5
which Ms. Juarez and the other Defendants intended to use to prevent the operation of Iglesia.
6
128. The administrative charges and criminal charges sought and acted upon by
7
Defendants compounded the due process violations and the damages resulting therefrom.
8
129. By the City’s own policies and actions, there was no mechanism for Plaintiffs to
9
challenge the citations issued without basis or authority, and the only ability for Plaintiffs to
10
obtain those permits was through sacrifice of their religious rights and freedoms.
11
130. Defendants’ violation of its obligations and Mr. Henry’s due process rights has
12
caused substantial damages, suffering, loss and harm to the Plaintiffs, including without
BASKIN RICHARDS PLC
13
limitation, loss of time and enjoyment of life, the payment of attorneys’ fees and costs devoted
14
to combating discriminatory and unlawful actions and proceedings, loss of income, emotional
15
harm, anxiety, fear, and other serious emotional conditions or symptoms.
16
17
18
oppressive conduct, including for attorneys’ fees expended defending against Defendants’
19
actions.
20 132. The Plaintiffs are entitled to recovery of taxable costs, including per the terms of
21 A.R.S. § 12-341.
22 133. Also, the Defendants’ wrongful conduct was extreme, outrageous, malicious,
23 oppressive, willful, and performed with an evil intent with conscious disregard of the violation
24 of Plaintiffs’ rights, meaning that Plaintiffs are entitled to recover punitive damages from
25 Defendants in an amount sufficient to punish Defendants and to deter similarly situated persons
26 or entities from like future conduct.
27
24
1
CLAIM 6: MALICIOUS PROSECUTION – FEDERAL
2
3
4
5
135. Upon information and belief, Defendants City and Juarez induced the prosecution
6
of Mr. Henry by improperly exerting pressure on the prosecutor, knowingly providing
7
misinformation to her, concealing exculpatory evidence, and engaging in wrongful or bad faith
8
conduct actively instrumental in the causation of legal proceedings.
9
136. Defendants City and Juarez induced the prosecution of Mr. Henry specifically for
10
not capitulating to an unlawful conditional use permit process, which was bad faith conduct
11
actively instrumental in the causation of legal proceedings.
12
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13
of Mr. Henry by omitting from the attention of the prosecutor that electrical permits demanded
14
of Mr. Henry would not issue to Mr. Henry and Iglesia unless and until they capitulated to the
15
unlawful conditional use permit process, which was bad faith conduct actively instrumental in
16
the causation of legal proceedings.
17
138. Defendants’ actions were taken with malice and without probable cause.
18
139. Defendants sought prosecution for the purpose of denying Plaintiffs equal
19
protection and the denial of their First Amendment and due process rights.
20 140. Both the criminal prosecution and administrative penalties were terminated
21 against the City’s efforts, but only after expensive, exhausting and laborious litigation.
22 141. Both actions were motivated by Defendants’ continued insistence that Plaintiffs
23 capitulate to a discriminatory enactment that allowed the City to bar religious uses through the
24 guise of bureaucratic decision-making.
25 142. Thus, the decisions and actions were malicious and/or with a primary purpose
26 other than bringing an alleged offender to justice and instead to prevent the exercise of a First
27 Amendment right.
25
1
143. Moreover, Defendants are liable for all information that they withheld or
2
misrepresented to the prosecutor tasked with making any decision to go forward with the
3
prosecution, such as if any Defendant withheld from the prosecutor the fact that the City and
4
its employees would not issue any permits to Plaintiffs unless Mr. Henry submitted to the
5
Conditional Use Permit process.
6
144. Defendants’ violation of its obligations and the Plaintiffs’ rights has caused
7
substantial damages, suffering, loss and harm to the Plaintiffs, including without limitation, loss
8
of time and enjoyment of life, the payment of attorneys’ fees and costs devoted to combating
9
discriminatory and unlawful actions and proceedings, loss of income, emotional harm, anxiety,
10
fear, and other serious emotional conditions or symptoms.
11
12
BASKIN RICHARDS PLC
13
14
actions.
15
16
17
18
19
20 Defendants in an amount sufficient to punish Defendants and to deter similarly situated persons
21 or entities from like future conduct.
22 CLAIM 7: MALICIOUS PROSECUTION – STATE
23 (Defendant City of Somerton and Defendant Juarez)
26 149. Upon information and belief, Defendants induced the prosecution of Mr. Henry
27 by improperly exerting pressure on the prosecutor, knowingly provided misinformation to her,
26
1
concealed exculpatory evidence, and engaged in wrongful or bad faith conduct actively
2
instrumental in the causation of legal proceedings.
3
150. Defendants City and Juarez induced the prosecution of Mr. Henry specifically for
4
not capitulating to an unlawful conditional use permit process, which was bad faith conduct
5
actively instrumental in the causation of legal proceedings.
6
7
of Mr. Henry by omitting from the attention of the prosecutor that electrical permits demanded
8
of Mr. Henry would not issue to Mr. Henry and Iglesia unless and until they capitulated to the
9
unlawful conditional use permit process, which was bad faith conduct actively instrumental in
10
the causation of legal proceedings.
11
152. Defendants’ actions were taken with malice and without probable cause.
12
153. Both the criminal prosecution and administrative penalties were terminated
BASKIN RICHARDS PLC
13
against the City’s efforts, but only after expensive, exhausting and laborious litigation.
14
154. Both actions were motivated by Defendants’ continued insistence that Plaintiffs
15
capitulate to a discriminatory enactment that allowed the City to bar religious uses through the
16
guise of bureaucratic decision-making.
17
155. Thus, the decisions and actions were malicious and/or with a primary purpose
18
other than bringing an alleged offender to justice, and instead to prevent the exercise of First
19
Amendment rights.
20 156. Moreover, Defendants are liable for all information that they withheld or
21 misrepresented to the prosecutor tasked with making any decision to go forward with the
22 prosecution, such as if, as suspected, any Defendant withheld from the prosecutor the fact that
23 the City and its employees would not issue any permits to Plaintiffs unless Mr. Henry submitted
24 to the Conditional Use Permit process.
25 157. Defendants’ violation of its obligations and the Plaintiffs’ rights has caused
26 substantial damages, suffering, loss and harm to the Plaintiffs, including without limitation, loss
27 of time and enjoyment of life, the payment of attorneys’ fees and costs devoted to combating
27
1
discriminatory and unlawful actions and proceedings, loss of income, emotional harm, anxiety,
2
fear, and other serious emotional conditions or symptoms.
3
4
5
6
actions.
7
159. The Plaintiffs are entitled to recovery of taxable costs, including per the terms of
8
A.R.S. § 12-341.
9
10
11
12
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13
14
PRAYER FOR RELIEF
15
WHEREFORE, Plaintiffs respectfully pray that this Court grant the following relief
16
against the Defendants:
17
A. Awarding Plaintiffs all of their actual, compensatory, incidental, and
18
consequential damages against the Defendants in an amount to be proven at trial;
19
B. Awarding Plaintiffs punitive damages, to the extent allowed by any applicable
20
law, in an amount sufficient to punish the Defendants and to deter similarly
21
situated persons or entities from similar future conduct;
22
C. Awarding Plaintiffs their costs incurred in bringing this action, and their
23
attorney’s fees and litigation expenses to the maximum extent allowed by law;
24
D. Awarding Plaintiffs any and all other relief that this Court finds just, necessary
25
and proper.
26
27
28
1
JURY DEMAND
2
Plaintiffs demand trial by jury for all of the issues a jury properly may decide, and for
3
all of the requested relief that a jury may award.
4
5
RESPECTFULLY SUBMITTED this 27th day of September, 2018.
6
7 BASKIN RICHARDS PLC

8
9 /s/ David E. Wood

Alan S. Baskin
10 David E. Wood
2901 N. Central Avenue, Suite 1150
11
12 Attorneys for Plaintiffs

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Case 2:18-cv-03058-DJH Document 1 Filed 09/27/18 Page 1 of 29

1 Alan S. Baskin, #013155

10 IN THE UNITED STATES DISTRICT COURT

17 66. Plaintiffs incorporate by reference each of the allegations in the preceding

23 83. Plaintiffs incorporate by reference each of the allegations in the preceding

24 paragraphs of this Complaint as though fully set forth herein.

7 BASKIN RICHARDS PLC

9 /s/ David E. Wood

12 Attorneys for Plaintiffs

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