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CITY OF GOLDEN, LOCAL LICENSING AUTHORITY,

JEFFERSON COUNTY, COLORADO

______________________________________________________________________________

MOTION TO DISMISS

IN RE: Marleez, Inc.


d/b/a The Buffalo Rose
1119 Washington Avenue
Hotel and Restaurant Liquor License 12-68325-0000

The Respondent, Marleez, Inc., owner and operator of the Buffalo Rose (The Rose),
requests this Authority dismiss the above captioned matter, as sanctioning respondent in any way
for the words he spoke to his patrons on August 17, 2010 would violate his right to freedom of
speech under the First Amendment to the U.S. Constitution and Colorado Constitution article II,
section 10. U.S.C.A Const.Amend 1.

FACTUAL BACKGROUND

On August 17, 2010 at approximately 9:30 p.m., the Golden Police were called and
responded to the Rose’s outdoor porch on a noise compliant. The noise complaint was made by
a resident of Gateway Station, a newly developed series of condominiums, and City Council
representative, Karen Oxman. Last Summer, on Tuesday evenings, the Rose was hosting an
“open mic” night on their outdoor porch. Officer Hyde, the first officer responding, reported
that when he arrived to the porch of the Rose, the music did not sound too loud. Officer Hyde
spoke briefly to Murray Martinez, the co-owner of the Rose where Mr. Martinez agreed to shut
down the music by 10:00p.m. as is required by the City. Officer Hyde then left the scene.

Shortly after this initial response, the police were called again. Once again, the complaint
came from a Gateway Condo resident Holly Latour. Ms. Latour reported that when she came
home around 9:30 she heard the music from the Rose. Ms. Latour was closing her sliding porch
door when she heard comments being made from the band that was playing at the Rose. Officers
spoke with several other Gateway Residents that evening and in the weeks following regarding
the exact comments that were heard. Of note, none of the Gateway residents who had their doors
closed, heard any of the comments. All of the witnesses who did hear the comments or some
version of the comments, had their doors open. While none of these witness seem to have heard

 
the words exactly the same, the sum of the comments reported to have been heard by some
Gateway Residents are as follows:

1. “Fuck you condo People”

2. “Condo people can kiss my ass”

3. “We just talked to the man, fuck the man we’re playing all night”

4. “The man is always on my ass”

5. “Fuck the man”

Witnesses present on the porch of the Rose when these comments were made, affirm that Mr.
Martinez made these comments in the course of singing a song with the Band. Some these eye
and ear witnesses affirm that when the comments were made, the crowd clapped and cheered as
many customers at the Rose are also aware of the attacks being made on the Rose by the City
via, the residents of the Gateway Condos. The comments being made by Mr. Martinez, were
clearly not offensive to any of his customers, save one, David Moos who is also a Gateway
Condo Resident and happened to be present from out of town when the comments were made.

By way of some general background, starting in 2003 and more so over the past year, the
Rose has been the primary target of the Golden City Council’s efforts to reduce noise in the
downtown area. Residents of the Gateway Condos are the primary source of virtually all noise
complaints made against the Rose. The recently built Gateway Condos surround the Rose on
two sides. In contrast, the Rose is one of the oldest establishments in Colorado. Worthy of note,
many City Council members are residents of the Gateway Condos and are also witnesses in this
case for the City. In fact, the initial reporting party in this case who made the noise complaint at
9:30 was Karen Oxman, a leader on Golden City Council and resident of Gateway Condos.

In the Spring of 2010, not long before the incident alleged in this case, Karen Oxman was
overheard saying that “we (city council) have cleaned up Woody’s, it is now a more family
oriented business . . . now all we need to do is “clean up the Rose and the Ace”. Since the
development of the Gateway Condos, a noise meter has been installed by the City on the outdoor
porch of the Rose so that the bar staff can manage the noise levels. No other establishment in
town has been strapped with such a device. In the Summer months prior to this incident, Mr.
Martinez learned that the President of City Council directed the Chief of Police to pull over
bikers leaving town for pipe violations if they felt their bikes were too loud. The clientele of the
Rose, since 2003, has contained a large number of motorcycle enthusiast and this clientele
accounted for a large part of the Rose’s business. After this directive by the City to pull bikers
over leaving town, many bikers were stopped and ticketed. After word of the police harassment
of bikers in Golden spread, most of the bikers stopped coming to Golden and the Rose. This loss

 
of business has been devastating to the Rose. When the bikers stopped coming to the Rose, over
$35,000.00 in revenue was lost last Summer based on comparing figures from the Summer of
2009.

Understanding the parties do not wish to litigate or resolve all the issues that have arisen
from the noise campaign waged against the Rose by the City Council and the Golden Police
Department, this background information is important so this tribunal can understand the context
of Mr. Martinez’ statements on August 17, 2010. Everything Mr. Martinez said was in direct
response to what has been perceived by him to be a campaign of harassment against the Rose by
the City and his justifiable impression that residents of the Gateway Condos are the primary
support for that campaign. Therefore, when Mr. Martinez made the comments he made, they
were in direct response to the political energies in Golden and not directed at any specific
individual.

LEGAL ARGUMENT

In order “[t]o establish a First Amendment violation, the respondent must show that (1) he
was engaged in constitutionally protected activity, (2) the government’s actions caused him
injury that would chill a person of ordinary firmness from continuing to engage in that activity,
and (3) the government’s actions were substantially motivated as a response to constitutionally
protected conduct.” Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009).
This case is clearly retaliatory and in violation of the First Amendment to the United States
Constitution. As such, it should be dismissed on the face of the allegations against Respondent.

A. Mr. Martinez was engaging in constitutionally protected activity.

There is no doubt that Mr. Martinez was engaging in constitutionally protected activity
when he made his speech on August 17, 2010. “The constitutional guarantees of freedom of
speech forbid the States to punish the use of words or language not within ‘narrowly limited
classes of speech.’” Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (quoting Chaplinsky v.
N.H., 315 U.S. 568, 571 (1942)). One such limited class of speech is “fighting words,” which
are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a
matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. Cal., 403
U.S. 15, 20 (1971). Language that “stirs people to anger” is protected, so long as it is “not likely
to produce a clear and present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Words lose
their First Amendment protection only when they are used in such a flagrant way as to constitute
“an invitation to exchange fisticuffs.” Texas v. Johnson, 491 U.S. 397, 409 (2003); see also
Cannon v. Denver, 998 F.2d 867, 873 (10th Cir. 1993) (“It is only where the speaker passes the

 
bounds of argument or persuasion and undertakes incitement to riot that the [government] may
intervene.” (internal quotation marks omitted)).

Courts have consistently and repeatedly held that public use of the word “fuck,” is
protected by the First Amendment. See, e.g., Cohen, 403 U.S. at 26 (holding that wearing a
jacket reading, “Fuck the draft” is protected); Hess v. Indiana, 414 U.S. 105, 108-09 (1973)
(holding that saying “we’ll take to the fucking street” is protected); US v. McKinney, 9 F. App’x
887, 889-90 (10th Cir. 2001) (holding that repeatedly telling a police officer to “fuck off” is
protected); Ware v. Denver, 511 P.2d 475, (Colo. 1973) (holding that saying “fuck you” at a
campus meeting is protected); United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001)
(holding that saying “fuck you” or “that’s fucked” to a police officer is protected and that, “the
question is not even a close one”); Fogel v. Collins, 531 F.3d 824, (9th Cir. 2008) (holding that
painting “I am a fucking suicide bomber communist terrorist” on the side of a van is protected,
though officers who arrested defendant were entitled to qualified immunity); Haynes v. San
Francisco, 2010 U.S. Dist. LEXIS 76829, at *18 (N.D. Cal. 2010) (holding that calling a police
officer a “fucking faggot” is protected); Leventhal v. Schaffer, 2010 U.S. Dist LEXIS 94212, at
*35 (N.D. Iowa 2010) (holding that telling a police officer to “go ahead and fucking arrest me” is
protected); Stone v. Camacho, 2006 U.S. Dist. LEXIS 27272, at * (D. N.M. 2006) (Spier v.
Elaesser, 267 F. Supp. 2d 806, (S.D. Ohio 2003) (“The use of the word ‘fuck’ is protected.”);
U.S. v. McDermott, 971 F. Supp. 939, 942 (E.D. Pa. 1997) (holding that saying, “I’m not fucking
going anywhere” to naval officers is protected); State v. Zullinger, 676 A.2d 687, 689 (Pa. 1996)
(holding that wearing a t-shirt reading, “fuck you” is protected); State v. Suiter, 56 P.3d 775, 778
(Ida. 2002) (holding that telling a detective to “fuck off” is protected); Logan City v. Huber, 786
P.2d 1372, 1375 n.9 (Utah Ct. App. 1990) (“Respondent does not seriously contend that Huber’s
use of the word ‘fuckin’ as an adjective or the epithet ‘fuck you’ is unprotected by the first
amendment because obscene. In the context of determining what obscene expression is not
protected by the federal Constitution, the United States Supreme Court has consistently
concluded that this term is not obscene.”); Diehl v. State, 451 A.2d 115, 122 (Md. 1982) (“[T]he
use of the word ‘fuck’ is not punishable in the absence of compelling reasons.”).

Mr. Martinez’s comments and specifically his use of the phrase, “fuck the condo people”
fall far short of the incitement of violence required to classify his language as “fighting words.”
The Tenth Circuit has held that fighting words are “epithets (1) directed at the person of the
hearer, (2) inherently likely to cause a violent reaction, and (3) playing no role in the expression
of ideas.” Cannon v. Denver, 998 F.2d 867, 873 (10th Cir. 1993). First, Mr. Martinez did not
direct his comments toward any particular individual. See, e.g., Hess, 414 U.S. at 107-08
(holding that profane statement did not rise to the level of fighting words where statement “was
not directed personally” at police officer); Cohen, 403 U.S. at 20 (“No individual actually or
likely to be present could reasonably have regarded the words [“fuck the draft” on a jacket] as a
personal insult.”). Second, Mr. Martinez’s statements are not likely to cause a violent reaction

 
in an ordinary person. See McKinney, 9 F. App’x at 889 (“Though tasteless and undoubtedly
offensive to many, [telling an officer to fuck off] would not provoke the average person to
retaliate under the circumstances.”). The only residents who heard the comments were far away
and in their homes and only a shut door away from not hearing the comments at all. Finally, Mr.
Martinez’s comments were an expression of his opinion that the “condo people” along with the
City and the Police were waging a campaign to run off his clientele and shut down his business.
Most importantly, the words he chose to express that opinion, including the profane words are
protected by the First Amendment. See Cohen, 403 U.S. at 26 (“[M]uch linguistic expression
serves a dual communicative function; it conveys not only ideas capable of relatively precise,
detached explication, but otherwise inexpressible emotions as well.”).  

The fact that ONLY Gateway Residents found Mr. Martinez’s choice of words offensive
is of no moment. See Cohen, 410 U.S. at 25 (“Surely the state has no right to cleanse public
debate to the point where it is grammatically palatable to the most squeamish among us.”).
Indeed, “if . . . annoying communications could be proscribed, . . . the protection of the First
Amendment would be a mere shadow.” Bolles v. People, 541 P.2d 80, 81 (Colo. 1975). One of
the complaining residents, David Moos, conceded in his statement that he “did not feel
threatened” by Mr. Martinez’s statements.

Because Mr. Martinez’s statements do not rise to the level of fighting words, they are
protected by the First Amendment. As a result, Mr. Martinez was engaging in constitutionally
protected activity on August 17, 2010. Therefore, this proceeding, based on that constitutionally
protected activity, must be dismissed.

B. The government’s actions would chill a person of ordinary firmness from


continuing to engage in the activity.

In response to the constitutionally protected speech, the City of Golden served


Respondent with an order to show cause regarding revocation or suspension of his liquor license.
This type of government retaliation would cause a person of ordinary firmness to cease engaging
in constitutionally protected speech.

“[T]he power to grant or deny liquor licenses can be abused in violation of the First
Amendment.” Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 788 n.10 (1988). The
threatened revocation of a liquor license does not necessarily result in chilling protected activity
where the license is never actually revoked. See Rocky Mountain Rogues, Inc. v. Town of Alpine,
375 F. App’x 887, 897 (10th Cir. 2010) (finding no chilling of protected activity where the liquor
board’s activities “never resulted in the Bull Moose even temporarily losing its license”). Where
retention of a liquor license is conditioned upon ceasing to engage in constitutionally protected
activity, however, there may be a First Amendment violation even if the license is never actually
revoked. See Reed v. Village of Shorewood, 704 F.2d 943, 950-51 (7th Cir. 1983) (requiring

 
liquor board to provide some justification for ordinance prohibiting bar owners from playing
rock and roll music).

Where the retaliator has significant control over the individual retaliated against,
retaliation will chill a person of ordinary firmness from continuing to engage in protected
activity. See Zarska v. Higgins, 171 F. App’x 255, 259 (10th Cir. 2006) (“Considering the level
of control that prison officials have over inmates’ lives, retaliation is not to be taken lightly.”); cf.
Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (dismissing First Amendment retaliation
claim because defendant had no authority to prevent plaintiff from engaging in protected
activity). A liquor license is essential to a bar owner’s livelihood; revocation of the license in
retaliation for engaging in protected speech would therefore chill a bar owner from continuing to
express his protected viewpoints.

In addition, economic ramifications resulting from retaliation also chill individuals of


ordinary firmness from continuing to engage in protected activity. See Perez v. Ellington, 421
F.3d 1128, 1132 (10th Cir. 2005) (holding that assessment of taxes in retaliation for associating
with individuals adverse to the tax assessor would chill a person of ordinary firmness from such
protected association). Given the absolute loss off all business that would accompany the loss of
a liquor license, a bar owner of ordinary firmness would be chilled from engaging in protected
speech if such speech were to result in revocation of the liquor license.

Given the control over Mr. Martinez’s livelihood granted to the City of Golden through its
administration of liquor licenses, and the severe economic ramifications that would result were
the Respondent lose its liquor license, it is clear that a person of ordinary firmness in his position
would be chilled from engaging in protected speech as a result of the retaliatory revocation of his
liquor license. Bell v. Burson, 402 U.S. 535, 539 (1971) (“Once licenses are issued, . . . their
continued possession may become essential in the pursuit of a livelihood. Suspension of issued
licenses thus involve state action that adjudicates important interests of the licensees. In such
cases the licenses are not to be taken away without procedural due process required by the
Fourteenth Amendment.”). Mr. Lucky’s, Inc. v. Dolan, 591 P.2d 1021, 1022 (Colo. 1979)
(Liquor licenses cannot be revoked without constitutional due process).

C. The City’s actions in pursuing revocation of the Respondent’s liquor license is


substantially motivated as a response to Mr. Martinez’s constitutionally protected
activities.

To establish substantial motivation, a party “must prove that ‘but for’ the retaliatory
motive, the incidents . . . would not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50
(10th Cir. 1990). Due to the difficulty of directly proving the defendant’s state of mind, “a
plaintiff may present circumstantial evidence of a retaliatory intent in order to establish a
retaliation claim.” Collopy v. City of Hobbs, 27 F. App’x 980, 986 (10th Cir. 2001). “[A]

 
chronology of events . . . may be read as providing some support for an inference of retaliation.”
McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979), cited in Smith, 899 F.2d at 949; see also
Johnson v. Arapahoe County Sheriff’s Dept., 2009 U.S. Dist. LEXIS 15933, at * 6 (D. Colo.
2009) (noting that temporal proximity between protected activity and retaliatory action is
evidence of substantial motivation). While temporal proximity is evidence of retaliation, it is
“insufficient, without more, to establish retaliatory motive.” Butler v. City of Prairie Village,
172 F.3d 736, 746 (10th Cir. 1999). An individual can establish substantial motivation by
showing “that Defendants were aware of his protected activity, that his protected activity
complained of Defendants’ actions, and that the [retaliation] was in close temporal proximity to
the protected activity.” Gee v. Pancheo, 2010 U.S. App. LEXIS 21996, at *24-*25 (10th Cir.
2010).

“[A]ny form of official retaliation for exercising one’s freedom of speech, including .
legal harassment, constitutes an infringement of that freedom.” Worrell v. Henry, 219 F.3d
1197, 1212 (10th Cir. 2000). The City of Golden has engaged in a pattern of harassment against
the Buffalo Rose, including ticketing patrons of the bar for allegedly excessive motorcycle noise
and taking action against Mr. Martinez for alleged noise resulting from outdoor concerts held on
the bar’s patio. This continued harassment is evidence of infringement on Mr. Martinez’s First
Amendment rights. See Reed, 704 F.3d at 947 (noting harassment including “arresting
customers and employees on baseless charges, demanding proof of age from customers who
obviously were many years over the legal drinking age, and bringing groundless proceedings to
take away their class A liquor license” in finding potential grounds for a First Amendment
violation). Most recently, the City of Golden was made aware of Mr. Martinez’s protected
activity as a result of neighboring residents’ phone calls to the police complaining about his
language. Mr. Martinez’s comments were inspired by a Golden Police Officer’s visit to the
Buffalo Rose and the other actions taken by the City. Mr. Martinez expressed his displeasure
with the City’s attempts to prevent him from hosting outdoor concerts. The order to show cause
regarding revocation or suspension of the liquor license closely followed Mr. Martinez’s
statements. Clearly, the City’s attempt to revoke the Respondent’s liquor license was
substantially motivated as a response to his engaging in protected speech. See Gee, 2010 U.S.
App. LEXIS 21996 at *24-*25.

WHEREFORE, the Respondent, Marleez, Inc., respectfully requests that this case be
dismissed.

DATED this ___ day of December, 2010.

___________________________________
David R. Jones, # 27352

 
303 16th Street, # 200
Denver, CO 80202

And

David A. Lane, # 16422


Killmer Lane & Newman, LLP
1543 Champa St., Suite 400
Denver, CO 80202
(303) 571-1000

And

Robert J. Bruce, #17742


Lawlis & Bruce, LLC
1875 Lawrence St., Ste. 750
Denver, CO 80202
(303) 573-5498

CERTIFICATE OF SERVICE

I hereby certify that on this ___ day of December, 2010, a true and correct copy of the
foregoing Motion to Dismiss was filed via fax and served via email upon the following:

Mary Lynn Benham


David S. Williamson
Williamson & Hayashi, LLC
1650 38th Street, Suite 103 West
Boulder, CO 80301
mlbenham@WandHlaw.com
dwilliamson@WandHlaw.com

___________________________________

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