United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on Defendants City of Kirksville, Missouri and Brad Selby's Motion to Dismiss Counts II, III, and IV of Plaintiff's Amended Complaint [ECF No. 20].
Plaintiff Amir Hamidi ("Plaintiff") initiated this lawsuit by filing a complaint on September 2, 2014 [ECF No. 1]. On February 27, 2015, Plaintiff filed an Amended Complaint [ECF No. 16]. On March 16, 2015, Defendants City of Kirksville, Missouri ("Defendant Kirksville") and Brad Selby ("Defendant Selby") filed their pending Motion to Dismiss [ECF No. 20] for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6) seeking to dismiss Counts II, III, and IV of Plaintiff's Amended Complaint. For purposes of this Motion to Dismiss, the Court accepts as true the following facts alleged in Plaintiff's Complaint. Great Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010).
Plaintiff, a resident of Kirksville, is an Iranian-American and practicing Muslim of Persian ancestry [ECF No. 16]. Plaintiff owns a used goods resale shop in Kirksville. In 2010, Plaintiff purchased a house and lot, initially renting it but with the plan of eventually converting the house into a retail store and moving his business from its current location. The property would need to be rezoned under Plaintiff's plan.
Defendant Brad Selby is the Planning and Coding Director of Kirksville. According to the Complaint, in 2010, Defendant Selby began accusing Plaintiff of code violations, many of which were not in the Kirksville Municipal Code. Defendant Selby prevented Plaintiff from holding yard sales on his property, even though there was no ordinance or municipal code policy prohibiting such sales. Plaintiff complained to City Manager Marie Macomber about Defendant Selby's actions. A public vote was held via public utility water bills, as to whether or not yard sales should be permitted in Kirksville. The public voted against such a prohibition. Subsequent to the vote, City Manager Macomber advised Plaintiff he could only hold yard sales twice a month on his property.
Sometime in 2011 or 2012, Defendant Selby sent Plaintiff a letter demanding Plaintiff remove snow from his sidewalk or face sanctions. None of Plaintiff's neighbors received similar letters. When Plaintiff confronted Defendant Selby, he admitted he had not inspected Plaintiff's property before sending the letter. During this time period, Defendant Selby forbid Plaintiff's tenants from holding yard sales.
In March 2013, Plaintiff filed an application to rezone his property with Defendant Selby. On March 11, 2013, Plaintiff received a letter from Defendant Selby after Defendant Selby inspected the property and discovered construction materials on Plaintiff's property. The letter requested the "rubbish" on Plaintiff's property be removed or sanctions would be imposed. On April 10, 2013, the Kirksville Planning and Zoning Commission ("Commission") held an official hearing at Kirksville City Hall to decide if they would recommend the rezoning of Plaintiff's property from "residential" to "low density corridor zone" to the City Council. At the hearing, the Commission recognized Plaintiff's property had enough "points" to qualify for a recommendation of rezoning. To qualify for rezoning to a "low density corridor zone, " as Plaintiff requested, a lot needs 250 points. The Commission found Plaintiff's lot had 275 points. The Commission approved a motion to rezone Plaintiff's property subject to the following stipulations: 1) any and all sale materials be kept inside buildings, 2) any sign for the business be attached to the building, 3) entrance and parking meet city requirements, 4) if lighting is used, only low wattage lighting is permitted, and 5) if requested by neighbors, a six-foot privacy fence be built. According to Plaintiff, the Kirksville Municipal Code specifically lists privileges and limitations of low density corridor zone property, as to signage, and the Commission's stipulations are contrary to the Municipal Code requirements. Defendant Selby approached Plaintiff and required him to sign-off on the stipulations or the Commission would not recommend rezoning.
Plaintiff asserts four counts against Defendants. In Count I, Plaintiff asserts Defendants violated 42 U.S.C. § 1983 by depriving Plaintiff of equal protection of the law in violation of the Fourteenth Amendment. In Count II, Plaintiff alleges an unlawful discriminatory practice in a place of public accommodation in violation of Missouri Revised Statute § 213.065 claiming Defendants discriminated against him on the basis of his religion. In Count III, Plaintiff alleges an unlawful discriminatory practice in a place of public accommodation in violation of Missouri Revised Statute § 213.065, claiming Defendants discriminated against him on the basis of his national origin. In Count IV, Plaintiff alleges an unlawful discriminatory practice in violation of Missouri Revised Statute § 213.070, claiming Defendants retaliated against him for filing a charge of discrimination with the Missouri Commission on Human Rights ("MCHR") and Equal Employment Opportunity Commission ("EEOC"), and for refusing to agree to the Commission's stipulations for rezoning Plaintiff's property. Plaintiff requests the Court require Defendants to rezone Plaintiff's property without stipulations not contained in the Kirksville Municipal Code, award Plaintiff compensatory and punitive damages, attorney's fees and costs, and other such relief the Court deems appropriate. Defendants now seek to dismiss Plaintiff's claims on Counts II, III, and IV.
Under FRCP 12(b)(6), a party may move to dismiss a claim for "failure to state a claim upon which relief can be granted." The notice pleading standard of FRCP 8(a)(2) requires a plaintiff to give "a short and plain statement showing that the pleader is entitled to relief." To meet this standard and to survive a FRCP 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). This requirement of facial plausibility means the factual content of the plaintiff's allegations must "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Cole v. Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Courts must assess the plausibility of a given claim with reference to the plaintiff's allegations as a whole, not in terms of the plausibility of each individual allegation. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n.4 (8th Cir. 2010) (internal citation omitted). This inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. The Court must grant all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010).
A. Counts II and III, Missouri Revised Statute § 213.065 
Defendants assert the denial of the full and equal enjoyment of the law does not amount to a denial of a full and equal enjoyment of a place of public accommodation as prohibited by Missouri Revised Statute § 213.065 [ECF No. 21]. Defendants argue Plaintiff does not allege he was discriminated against through denial of a public accommodation beyond the fact the rezoning decision took place in City Hall. According to Defendants, the core of Plaintiff's claims is the denial of the full and equal enjoyment of the benefits of the municipal code which does not rise to a denial of a public accommodation. In response, Plaintiff asserts he has not designated the municipal code as a place of public accommodation but has instead named City Hall. ...