Many boys dream of someday going into business with their fathers, but one father, Dale Bell, made that dream a reality for his son, Spencer. Less than a year later, however, Pinal County bureaucrats worked overtime to turn that father-and-son dream into a nightmare.
In 2005, Dale and Spencer (then a mere 14 years old) opened the San Tan Flat steakhouse as partners, offering customers outstanding food in a casual, Old West atmosphere complete with live country music on evenings and weekends. The business was a terrific success with full tables and customers enjoying the atmosphere both inside and out. It was common for patrons in the warm Arizona night air to two-step their way to the restaurant’s open-air patio in the back as country/western songs drifted them along.
Within months of their successful launch, Dale and Spencer found themselves the target of government officials acting at the behest of “neighbors” who live as far as seven miles away seeking to shut down the establishment. Among the government’s actions: San Tan Flat’s four entrances from the highway that they had purchased were suddenly reduced to one. Signage approved on two lots became restricted to one. The government even sent an agent to inspect the firewood at San Tan Flat to ensure it was suitable for burning. Government agents started showing up three times a night to see if San Tan Flat violated the county’s noise ordinance—an ordinance that was amended after the steakhouse’s opening to make it the most restrictive in Arizona.
But Dale and Spencer’s business measured up to each escalating government inspection. San Tan Flat made do with fewer openings to their parking lot; they still attracted a crowd despite having only one sign; their wood burned clean; and despite the constant presence of enforcement officers, never once has San Tan Flat exceeded the strict sound limits.
In September 2006, the County Board of Supervisors tried an even more desperate measure when it decided that because some of San Tan Flat’s customers had the audacity to dance outdoors to the country music, the restaurant was in fact transformed into a “dance hall,” and under county law, all dance halls had to be fully enclosed. The county tried to turn Dale and Spencer into the dance police, requiring them to stop any who dared to do-si-do outdoors or the business would face fines of up to $5,000 a night—a figure that was later reduced to $700, but could still total more than $200,000 in a single year.
Despite the fact that 99 percent of San Tan Flat’s sales come from food and beverages and that Spencer and his father don’t make a dime off of dancing, under the county’s twisted interpretation of its zoning ordinance, San Tan Flat was no longer a steakhouse; it was a dance hall.
This ridiculous prosecution is not only rightfully making Pinal County officials a national laughingstock, it is trampling Dale and Spencer’s constitutional right to economic liberty—the right to earn an honest living free from unreasonable government interference.
The Institute for Justice will ask the courts to protect Dale’s right to run his business without being turned into the county’s dance police. It is time for Pinal County bureaucrats to face the music as IJ puts their absurd persecution of outdoor dancing on trial.
Father & Son: A Shared American Dream
Restaurateur Dale Bell grew up in the shadow of Mount Rushmore, and has a long and successful history in running restaurants. He first gained experience at age 12 when he worked for his father’s restaurant, the Bell Boy Drive Inn, in 1962. At 28, Dale opened his first steakhouse, Bell Steakhouse, in his hometown of Spearfish, S.D. In 1991, Dale created a second steakhouse, Buffalo Jump Saloon and Steakhouse in nearby Sand Creek, Wyo., renovating the 1880s building and filling it with antique décor and live country music on weekends. Five years later, Dale created the Wyoming Stateline Station along the South Dakota-Wyoming border, a fuel stop and rest area.
In 2002, Dale brought his vision for a new restaurant to Arizona. He and his then-12-year-old son, Spencer, toured Pinal County to find just the right piece of land for a casual dining steakhouse that would resemble an old western mining encampment. With experience opening and running successful restaurants, Dale had a specific vision in mind: the steakhouse would provide high-quality food, an opportunity for the patrons to enjoy their food and drink outside under the stars, and live country music entertainment. The Bells purchased the property for San Tan Flat and began to build their family-owned and operated restaurant that would become Dale’s legacy to Spencer: Spencer would take over the operation of the restaurant once he turned 18. Side by side the father and son team worked in the 100-degree-plus Arizona summer laying nearly every stone in the entire complex and paying attention to every detail of their future enterprise.
Dale and Spencer began meeting with Pinal County officials and nearby residents in 2003. They put together business and site plans, and then navigated the bureaucratic maze of county requirements that all new businesses in the area must endure. To meet the county’s requests and requirements, Dale modified his restaurant’s design, purchased the parcel of land next door for extra parking and altered the paving material, met with hundreds of neighbors to gain support, negotiated—and renegotiated—the number of entrances the property would have off the highway, and met repeatedly with various county officials to fulfill his dream of opening a restaurant in Pinal County.
In the summer of 2005, Dale sold his Wyoming steakhouse in preparation for opening San Tan Flat, which opened November 1, 2005. Consistent with Dale and Spencer’s vision, San Tan Flat has a center courtyard open to the stars and an open patio in the back with benches, museum-quality western artifacts and campfires for customers to enjoy Arizona’s temperate climate, roast marshmallows and, if they like, dance. One side of the restaurant includes a sheltered open-air stage for live music in the evenings and on weekend nights. Enjoying the music, Dale’s customers (especially the children of his patrons) are occasionally inspired to dance.
There is no cover charge for San Tan Flat and 99.7 percent of its revenue comes from food and beverage sales.[c]The remaining .3 percent of revenue is generated by pool tables and arcade games on-site.[/c] It is unquestionably a restaurant, not a bar, nightclub or even, despite Pinal County’s assertions, a dance hall. “Get Out AZ,” Arizona’s premier entertainment and lifestyle guide, agrees, and awarded San Tan Flat the 2006 Eating and Drinking Award for Best Family Restaurant.[c]www.getoutaz.com/story/14 (“The majority of the seating is outside at picnic tables in the dirt—does it get more kid-friendly? Parents can have a beer and burger while watching the little ones run wild among the Old West relics that surround this campground-like restaurant and bar.”)[/c]
Pinal County: Jeopardizing the Bells’ Vision and Legacy
After only months of opening, the Bells began dealing with repeated “visits” from county officials looking for noise code violations. In late spring 2006, Pinal County created and implemented a new law restricting noise levels.[c]Pinal County Excessive Noise Ordinance, Ordinance No. 050306-ENO, § 6.0(A).[/c] Pinal restricted noise to 65 decibels during the day and 60 at night, and the measurements would no longer be taken from the site of where a complaint was issued, which is typical of such ordinances, but now at the site about which the complaint was filed—a much stricter level of review.[c]60 decibels is the equivalent of normal conversation, according to the National Institutes of Health; city traffic noise produces 80 decibels. See “How Loud is Too Loud?,” Reader’s Digest online, (www.rd.com/content/openContent.do?contentId=16095, last updated 8/16/2005 and last visited 3/4/2007).[/c] (The nearest residential neighbor to complain about the restaurant is lives approximately a quarter mile away, and, to help ensure even those distant neighbors were not disturbed, San Tan Flat buffered any noise from its courtyard with three-foot-walls that surround the outdoor area. To ensure there are no problems with this new restriction, Dale and Spencer themselves take decibel readings as many as four times a night when they have live music. Despite the fact that sheriff’s deputies check for noise violations as many as three times a night at San Tan Flat every weekend night, not once has the sound from Dale’s live entertainment violated the ordinance which is one of the strictest in the state.
Forced to deal with the continual harassment from law enforcement officials working under the direction of Pinal County officials who seemed bent on shutting down Dale and Spencer’s restaurant, Dale had to sell his Wyoming Stateline Station in July of 2006 so he could have a nearly full-time presence at San Tan Flat.
The conflict between the Bells and the county peaked on September 20, 2006, when Dale received two citations from the county, one for violating the county’s “dance hall” restriction,[c]Pinal County Zoning Ordinance Article 16, § 1601(b).[/c] and the other for having “inadequate” paved parking. The County held a hearing on January 11 and 16, and County Hearing Officer Justin Corvelo found Dale liable for allowing outdoor dancing, fining the restaurant $5,000 and an additional $5,000 per day—the maximum allowable fine for a business.[c]Pinal County Attorney Seymour Gruber later realized that because the county chose to prosecute Dale individually the county could not issue such a heavy fine. The maximum fine for an individual is $700, and the county accordingly reduced the fines against Dale.[/c] Despite the overwhelming evidence that San Tan Flat is in fact a restaurant, Pinal County Hearing Officer Corvelo found Dale Bell liable for running a “dance hall” outside a completely enclosed structure. Under the county’s standard, the moment any customer dances and Dale does not physically stop them from doing so, his restaurant changes into a dance hall.
Even though Pinal County officials conceded that no one from the county has ever gone to San Tan Flat to take appropriate measurements and determine whether Dale has enough paved parking based on the county’s zoning requirements, Corvelo nonetheless found Dale guilty of that infraction. Dale appealed Corvelo’s ruling to the Pinal County Board of Supervisors, who will hear his appeal on May 2, 2007.
Fed up with the county’s effort to single him out for harassment and no longer willing to tolerate the county’s relentless assault on his constitutional right to earn an honest living, on March 8, 2007, Dale joined with the Institute for Justice Arizona Chapter to take over his case and file an appeal with the County Board of Supervisors. (As Spencer is still a minor, the Institute for Justice represents only Dale in its litigation.)
Dale and Spencer’s battle, however, is not merely a case about a local government run amok. What is happening to the Bells is a dangerous trend jeopardizing the rights and liberties of individuals across the nation. Time and again honest, hard-working citizens are finding their rights curtailed by government officials who do not respect the constitutionally enshrined limits on their power and who use those powers in the most arbitrary way to punish those they oppose.
Such potential abuses of government power were supposed to be avoided by the election of principled public servants who understand the constitutional limits of their own power and the trust afforded them by the public to respect and protect the rights of each individual. If abuses occurred, judges would fulfill their role as a check on the executive and legislative branches of government by dismissing abusive prosecutions. But more and more, petty local government tyrants see a city or a county as their personal fiefdom in which every resident must bow to their most arbitrary and abusive whim. Compounding the problem are judges who either philosophically favor larger government or who for less defensible reasons allow the abuse to continue. As the founding fathers knew all too well, government power only ratchets in one direction: in favor of more government power and against individual liberty. This is not how government is supposed to operate in the United States of America, and it is why the Institute for Justice has made it its mission to block government power wherever it violates such fundamental civil rights as economic liberty, property rights, and free speech.
There is hope, however, that Pinal County’s overstep may have inspired a grassroots rebellion. Not only has the Institute for Justice taken up the Bells’ case, but already two local musicians have penned and performed songs dedicated to the saga of San Tan Flat. Lee Alexander sings “You Can’t Dance Outside” and Nathan Dean & NQH sing “The Saga of San Tan Flat” at the restaurant and earn enthusiastic applause whenever the songs are sung.
The Right to Earn an Honest Living: Legal Claims
Dale’s fight against Pinal County goes to the very core of our cherished constitutional right to earn an honest living free from unreasonable government interference. Dale wants nothing more than the opportunity to run his popular family restaurant without unreasonable intrusion and micro-managing from the county government.
The 14th Amendment to the U.S. Constitution protects individuals like Dale Bell from government bureaucrats singling them out and applying laws against them in a discriminatory and arbitrary way.[c]See Willowbrook v. Olech, 528 U.S. 562, 564 (2000).[/c] No other establishment in the county is facing the kind of vicious and zealous prosecution Dale is for such a nominal act as his customers dancing outdoors.
The 14th Amendment further prevents the government from arbitrarily interfering with citizens’ ability to earn an honest living in their chosen occupation. Under the Due Process and Equal Protection clauses, the government may only restrict Dale’s right to run his business when there is some “rational basis” for that restriction. To demonstrate that rational basis, the government must show a reasonable connection between the restrictions in question and some legitimate public purpose. Forcing Dale to become the dance police and stop his patrons from shuffling across the floor serves no legitimate government purpose. It is only meant as a means to harass him.
Tragically, the demise of economic liberty began almost as soon as it achieved its greatest reach. After the Civil War, emancipated slaves counted economic liberty as among the most crucial of their new civil rights. To protect entrenched white businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens by heavily regulating entry into trades and business. The national government tried to curtail these abuses by enacting the Civil Rights Act of 1866 and the 14th Amendment to the U.S. Constitution, both of which sought to protect the economic liberty of all Americans by forbidding states from abridging the “privileges or immunities” of American citizenship.
But in the 1873 Slaughter-House Cases, a sharply divided U.S. Supreme Court read the Privileges or Immunities Clause out of the U.S. Constitution by a mere 5-4 vote. That decision gave states carte blanche to enact shameful Jim Crow-era laws restricting economic opportunities for black Americans. In addition to oppressing their black citizens, the states also used their now-unchecked regulatory power to protect all sorts of entrenched interests and interfere in otherwise honest enterprise. Essentially, although it is hardly known by the public, the Slaughter-House Cases ushered in our modern Nanny State under which government no longer feels restricted from imposing arbitrary or irrational restriction after restriction on businesses nationwide. How bad has the problem grown? One need look no further than Pinal County’s effort to impose its onerous restrictions on San Tan Flat by declaring it a “dance hall” and then demanding that no patrons be allowed to dance outdoors. This restriction has nothing to do with government’s legitimate function of protecting the public’s health and safety. It is arbitrary. It is abusive. It is irrational.
IJ-AZ Staff Attorney Jennifer Perkins will lead the litigation team, assisted by Tim Keller, executive director of the Arizona Chapter. Perkins previously litigated on behalf of gardeners and landscape workers in Arizona, successfully working to repeal unconstitutional licensing requirements, and is currently challenging New Mexico’s unconstitutional licensing restrictions on behalf of interior designers. Among other cases he has litigated in Arizona, Keller represented Mesa brakeshop owner Randy Bailey in the successful defense of his property rights against the abuse of eminent domain.
The Institute for Justice has scored victories for entrepreneurs across the nation including: Gary Rissmiller v. Arizona Structural Pest Control Commission—in the fall of 2006, IJ-Arizona Chapter challenged the state’s requirement that gardeners and landscape maintenance workers obtain three separate licenses simply to kill weeds with over the counter products. As a result of this litigation, gardeners throughout the state are now free to control weeds using products available to the average consumer. Anderson v. Minnesota Board of Barber and Cosmetology Examiners—Filed in 2005 in the Hennepin County District Court, this case challenged Minnesota’s cosmetology regulations, which required African hairbraiders to enroll in 1,550 hours of government-mandated “training,” none of which included even one hour of instruction in braiding. As a result of IJ’s litigation, hairbraiders in the state may now practice without obtaining a license. Armstrong v. Lunsford—Filed in 2004 in the U.S. District Court for the Southern District of Mississippi, this case challenged Mississippi’s cosmetology regulations, which barred braiders from practicing their craft. Prior to receiving a ruling from the court, Mississippi’s Legislature exempted braiders from the cosmetology licensing requirement in 2005. This result allows IJ’s client to continue to practice without obtaining a license. Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—After being sued by the IJ’s Washington Chapter, Washington state’s Department of Licensing filed an “Interpretative Statement” exempting braiders from the state’s cosmetology licensing requirements. Christian Alf v. Arizona Structural Pest Control Commission—In 2004, based on the Institute for Justice Arizona Chapter’s work in the court of public opinion, the Commission changed its position on requiring teenage entrepreneur Christian Alf to obtain a license for his after-school handyman business helping local residents prevent roof rats. Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme. Craigmiles v. Giles—This IJ suit led a federal court to strike down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the 6th U.S. Circuit Court of Appeals and not appealed. This marked the first federal appeals court victory for economic liberty since the New Deal. Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market. Ricketts v. City of New York—In 1999, IJ helped commuter van operators fight a public bus monopoly that would not allow vans to provide their service in underserved metropolitan neighborhoods in New York City. Cornwell v. California Board of Barbering and Cosmetology—In 1999, IJ defeated California’s arbitrary cosmetology licensing requirement for African braiders. Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ also helped break open government-sanctioned taxicab monopolies in Indianapolis, Cincinnati and Minneapolis. Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders.
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