IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE

SHARKY' S INC., d/ b/ a SKYZOO

Petitioner, Docket No.

a 1- c n
vs.

Part
CITY OF CHATTANOOGA

Respondent.

PETITION FOR WRIT OF CERTIORARI, ORDER OF SUPERSEDEAS AND

DECLARATORY JUDGMENT

Comes the Petitioner, Sharky' s, Inc., d/ b/ a SKYZOO, by and through counsel, and files

this PETITION FOR WRIT OF CERTIORARI, ORDER OF SUPERSEDEAS AND

DECLARATORY JUDGMENT, pursuant to T. C. A. § 29- 14- 101 et seq„ and T.C.A. § 27- 8- 101,

et seq., and/ or T. C. A. § 27- 9- 101, et seq., and would state as follows:

1. Petitioner owns and operates a business establishment known as SKYZOO at 5709

Lee Highway, Chattanooga, TN. At all times material hereto, SKYZOO possessed a Special

Exceptions Permit, obtained pursuant to City Code § 38- 527 ( attached hereto as Exhibit A)

allowing it to operate as a " Nightclub" as defined by Chattanooga City Code § 38- 2 ( attached

hereto as Exhibit B). Petitioner also possesses a valid on -premise beer permit issued by the City

of Chattanooga, and a liquor -by -the -drink permit issued by the State of Tennessee for said location.

2. Respondent, City of Chattanooga, mailed a letter dated June 25, 2021( attached

hereto as Exhibit C) to Petitioner advising it that a hearing would be held on July 6, 2021, to

possibly revoke its Special Exceptions Permit. Said letter was received by Petitioner on June 30,

2021.

2021 AUG - 4 P 3: 45
1
 3.
On July 6, 2021, the Chattanooga City Council conducted a hearing and heard the

testimony ofthe Chief of Police for the City of Chattanooga, David Roddy. Chief Roddy testified
about the number and characterization of calls made to the Chattanooga Police Department over

the course of the previous twelve month period. Said calls were allegedly inspired by activity at

SKYZOO. The alleged calls were summarized, however the reports of the individual calls were

not available for review or questioning during the course of the hearing before the Chattanooga

City Council. Petitioner avers that as a matter of fundamental fairness it should be allowed to

review the content of the calls and question the appropriate witness(es) regarding said calls.

4. The uncontroverted evidence at the hearing established that a fatal shooting

occurred on Petitioner' s premises as it was closing down in the early morning hours of May 29,

2021. The shooting occurred in the parking lot and there was no evidence presented at the subject

hearing that Petitioner or its employees caused or contributed to the shooting or could have

prevented the shooting.

5. At the conclusion of the July 6th hearing, the Chattanooga City Council revoked
Petitioner' s Special Exceptions Permit.

6. Petitioner avers that the action of revoking Petitioner' s Special Exceptions Permit

by the Respondent was arbitrary, capricious, unlawful, and without substantial, material, and legal

evidence supporting it. Furthermore, if the Petitioner has violated the Chattanooga City Code, the

punishment of revocation is not in proportion to any alleged offense.

7. Petitioner avers that it has been harassed by the City of Chattanooga and has not

been afforded a fair and impartial hearing. Within two weeks after the aforementioned shooting

the City sent a group of approximately fifteen ( 15) inspectors and administrative personnel to

SKYZOO with the intention to comply with the mayor' s wishes of "shutting the place down by

2
4: 00 p. m. Friday". This was the second time since the Petitioner has been in business that the City

has sent a battery of inspectors to SKYZOO with the intention of closing the business. In addition,

within the previous two years of the subject revocation hearing the Chattanooga Police Department

has come to SKYZOO and ordered them to close for the evening at approximately midnight. Also,

in 2017, Petitioner was cited to and suspended by the Chattanooga Beer Board for allegedly over -

serving patrons. The citations arose from targeting patrons leaving SKYZOO, charging them with

DUI and alleging that they were overserved at SKYZOO. The charges were eventually dismissed

by the City in this court, docket numbers 18- 0011, 18- 0168 and 18- 0212.

8. Petitioner avers that the action of the Respondent revoking the Petitioner' s Special

Exceptions Permit reduces both the hours he is permitted to do business and the number of patrons

permitted on his premises at 5709 Lee Highway, Chattanooga, Tennessee, and will cause Petitioner

irreparable harm.

9. Petitioner avers that it is a small business pursuant to T.C. A. §29- 37- 103, and is

entitled to recover its fees and costs in this matter, including but not limited to its reasonable

attorney fees.

10. This is petitioner' s first application for Writ of Certiorari and Supersedeas in this

matter.

DECLARATORY JUDGMENT ACTION

11. Petitioner incorporates by reference paragraphs one ( 1) through ten ( 10) of this

Petition as if set forth fully verbatim herein.

12. At all times material hereto, Petitioner possessed a Special Exceptions Permit

allowing it to operate as a " Nightclub" pursuant to Chattanooga City Code §§ 38- 185 ( 3) and 38-

527.

3
 13.
Chattanooga City Council is the governmental body vested with the authority to

grant, deny, suspend or revoke Special Exceptions Permits issued pursuant Chattanooga City Code
38- 527.

14. On July 6, 2021, Petitioner' s Special Exception permit was revoked pursuant
Chattanooga City Code § 38- 527 ( 9) ( d).

15. Petitioner avers that Chattanooga City Code § 38- 527( 9) is unconstitutionally

vague and overbroad and its application interferes with and impairs the legal rights and privileges
of Petitioner to operate as a nightclub.

16. The subject ordinance provides unbridled discretion to the authorities' enforcement

of the ordinance, and provides no guidance or adequate standards to guide their decision -making.

17. The subject ordinance does not contain narrow, objective and definite standards,

thereby denying fair notice of the standard of conduct to which permittees are to be held

accountable.

PREMISES CONSIDERED, PETITIONER PRAYS:

1. That pursuant to the provisions of T. C. A. § 27- 8- 101 et seq., and / or T.C. A. §27- 9- 101

et seq., a Writ of Certiorari and Supersedeas issue to bring this matter before this Honorable Court.

2. That this Court stay the action of the Respondent revoking Petitioner' s right to

operate as a nightclub.

3. That the decision of the Respondent be reversed.

4. That Chattanooga City Code § 38- 527 be declared unconstitutional, invalid and

unenforceable in full or in part and enjoin the City of Chattanooga from enforcing said ordinance.

4
 5. That Petitioner be awarded its reasonable attorney fees, expenses, and costs

pursuant to T.C. A. § 29- 37- 103, et seq.

6. That court costs be taxed against the Respondent.

7.
That Petitioner be granted such other general relief to which it is entitled.

Respectfully submitted,

DREADEN & COX

By
ouglas X
j! Cox, BPR#0 609
Attorney for Petitioner
9218 Dayton Pike, Suite 114
Soddy Daisy, TN 37379
Doug@DreadenAndCox.com
423) 634- 8000 - Telephone
423) 266- 5554 —Facsimile

SURETY

I, the undersigned, agree to stand as surety for the cost bond requirement.

Doug11. Cox, BPR12609

9218 Dayton Pike, Sui a 114
Soddy Daisy, TN 37379
423) 634- 8000

5
 IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE

SHARKY' S INC., d/ b/ a SKYZOO

Petitioner, Docket No.

vs.

Part
CITY OF CHATTANOOGA,

Respondent.

AFFIDAVIT

State of Tennessee
County of Hamilton

Leonardo Dacoregio, president of Sharky' s, Inc., makes oath that the statements in the

foregoing Petition for Writ of Certiorari and Supersedeas, are made as of his own knowledge, are
true, and those made on information and belief, he believes to be true.

1 LEONARDO DACOREGI
S
SN1111/
11TH / 4,

ii
Sworn to and bscOedteFgr rne
a :
this 3r ldaya`"
v) •
r iitst, 2 1.
G

k+
QJ OJTZ.

NOTARY PUBLIC, i a •

My Commission Expires: S - I- ab Z.
Sec. 38- 527. Special Exceptions for Late Night Entertainment/ Event Facility and/ or Nightclub
or similar uses. ( See Article II, Section 38- 2 for definitions.)

If a commercial establishment, which may or may not be held out to the public as a Bar or other social
gathering place, with an occupancy capacity of more than one hundred ( 100) people, and which serves alcohol or
allows alcohol on the premises and is operated as a place of entertainment at night for eating, drinking, dancing
and provides live or recorded entertainment and engages in certain activities referenced under the nightclub
definition at Chattanooga City Code 38- 2, such commercial establishment shall require a special permit under
Chattanooga City Code 38- 527 before any certificate of occupancy can be issued by the Building Official and
provided that the following conditions are met:
Application Procedure:

1) The business owner shall apply for a Special Exceptions Permit which shall be issued by the City
Council. The applicant shall apply to the City Council through the Chattanooga -Hamilton County
Regional Planning Agency.
2) The applicant for this permit shall submit a site plan to the Chattanooga -Hamilton County
Regional Planning Agency, which shows the general plan for utilization of any building ( including
the location and size of outside gathering places such as decks, balconies, covered areas and
patios), distances from nearby residential zones, locations of any amplified speakers in the
building, parking plans, and any proposed landscaping or noise reduction efforts which will be
taken to protect nearby properties from excessive noise or traffic concerns due to this use by the
applicant.

3) Additionally, the applicant should provide a copy of its Tennessee Alcoholic Beverage
Commission Liquor by the Drink ( LBD) Application and supporting paperwork. The City Council
may refer any site plan to the Regional Planning Agency and Land Development Office for review
and suggestions on necessary conditions for parking, landscaping, or noise reduction resulting
from the proposed or actual use of the property.
4) The application will be placed on the City Council agenda no less than thirty (30) days from the
initial application for the permit with the Regional Planning Agency.
5) Regional Planning Agency will contact the City Attorney' s Office for the date of the City Council
meeting that the Special Exceptions Permit will be placed on the agenda.
6) The applicant will be given notification sign( s) for placement on the property advertising date and
time of the scheduled public hearing.

7) Regional Planning Agency will send a notice of the public hearing held by the City Council by
regular mail to each property owner( s) within a minimum of two hundred ( 200) foot radius from
the property line of the proposed Late Night Entertainment/ Event Facility and/ or Nightclub or
Similar Uses. Notification letters will be mailed at least seven ( 7) days prior to the public hearing
by the City Council.
General Provisions:

1) Late Night Entertainment/ Event Facilities and/ or Nightclubs are permitted only within the C- 2
Convenience Commercial Zone by Special Exception Permit issued by the City Council.
2) The Special Exception Permit may be revoked by the City Council after notice and hearing as set
forth in subsection ( i).

3) Restaurants, Sports Bars and Bars as defined within Article II, Section 38- 2 are exempt from these
requirements.

Created: 2021- 08- 03 11: 53: 37 ( EST)

Supp. No. 25, uptleRUG —4 PM 3: 45 EXHIBIT

Page 1 of 3
2
s
A
 4)
If a business owner disagrees with the determination of the City Zoning Official that an
establishment meets the definition of a Late Night Entertainment/ Event Facility and/ or Nightclub
rather than a Restaurant, Sports Bar or Bar, upon request by the owner, the decision of the
Zoning Official will be reviewed by the Chattanooga City Council.
a)
A business owner seeking an appeal from the determination by the City Zoning Official shall
submit a letter to the office of the Zoning Official requesting an appeal.
b)
The Zoning Official will contact the City Attorney' s Office for placement of the appeals
request on the next available agenda of the City Council.
5)
Any doorway entrance regularly used for ingress and egress or outdoor place of gathering such as
a deck/ patio of any such use ( if permitted by approval of a Special Exception Permit) shall be
located more than seven hundred fifty (750) feet away from the nearest boundary of any
residential zone when constructed for the business. The seven hundred fifty (750) feet buffer
distance may be decreased in part or entirety and the City Council may impose additional
conditions for the protection of residential properties from excessive noise or other nuisance
issues depending on the proximity and location of water, rail, and road rights -of -way,
topography, adjoining land uses, or other natural or man- made barriers to sound and noise.
6) Outdoor gathering places such as decks, balconies, covered areas and patios shall have no
amplified noise, no entertainment or theatrical lighting, and no outside sale of food or beverages.
7) For the purposes of this section, the R- 4 Special Zone shall be considered a residential zone if
undeveloped or developed residentially; it shall be considered a non- residential zone if
developed with non- residential uses.

8) If a Special Exceptions Permit for a Late Night Entertainment/ Event Facility and/ or Nightclub is
approved:

a) Said permit shall not be transferred to any persons other than the Officers and Owners of
the Corporation as identified in the Liquor by the Drink permit or Beer license application in
place upon initial receipt of the Special Exceptions Permit without approval of the
Chattanooga City Council.

b) The Ordinance granting the approval and any conditions attached to the Special Exceptions
Permit shall be posted in the interior of the business next to the building' s Occupancy
Rating and shall be available for inspection upon request.
c) A Revocation Hearing before City Council may be triggered for any of the factors set forth
in subsection ( 9).

9) A Special Exceptions Permit for a Late Night Entertainment/ Event Facility and/ or Nightclub may
be revoked by the City Council at any time upon notice to the owner and after a public hearing
which establishes violations by a preponderance of evidence before the Chattanooga City Council
and which shall consider the following triggers and factors:
a) Triggers for a Revocation Hearing will occur:

b) At the time of the third suspension of a license by the Beer Board or other state alcohol
licensing board; or
c) Upon recommendation by the City Zoning Official, City Chief Building Official, Chattanooga
Police Department or the Chattanooga Beer Board.

d) The Chattanooga City Council shall consider proof by a preponderance of the evidence of
any of the following factors as a basis for revocation of the Special Exceptions permit:

Created: 2021- 08- 03 11: 53: 37 [ EST]

Supp. No. 25, Update 1)

Page 2 of 3
 i) Number and occurrences of Beer Board or state Alcoholic Beverage
Commission suspensions after granting a Special Exceptions Permit
ii)
Number and occurrences of Police Department calls after granting a Special
Exceptions Permit

iii) Impact of noise and activity on surrounding property owners after notice to
permit holder
iv) Distance of property owners from the business
v)
Changes to site plan by the business or activity occurring at the business since
Special Exceptions Permit approval

vi) Parking problems on nearby properties occurring due to the business use after
notice to permit holder
vii) Any additional ordinance violations related to use of property as provided by
City staff
viii) Revisions or revocation of the State of Tennessee Liquor by the Drink Permit
Ord. No. 12280, § 3, 8- 25- 09; Ord. No. 12468, § 3, 1- 25- 11; Ord. No. 12529, § 3, 7- 19- 11)

Created: 2021- 08- 03 11: 53: 37 [ EST]

Supp. No. 25, Update 1)

Page 3 of 3
ARTICLE II. - DEFINITIONS

Sec. 38- 2. - Definitions; use of words and terms.

For the purpose of this Chapter, words and terms are defined as set forth below.

Words used in the present tense include the future; words in the singular number include the
plural, and words in the plural number include the singular; the word "building" includes the
word " structure;" the word " shall" is mandatory and not directory.

Nightclub: A commercial establishment, which may or may not be held out to the public as a
Bar or social gathering place, with an occupancy capacity of one hundred ( 100) or more people
which serves alcohol or allows alcohol on the premises and which is operated as a place of
entertainment at night for eating, drinking, dancing and provides live or recorded entertainment,
characterized by any or all of the following activities as a principal use:

1) Festival Seating: A form of audience/spectator accommodation for entertainment events in

which limited or not seating, other tan floor or ground surface, is provided for the
audience/ spectators gathered to observe entertainment events, dance, or watch a performance. It
is not the intent of this section to apply the term festival seating to exhibitions, sports events,
conventions, and bona fide political, religious, and educational events.

2) Musical or video or live entertainment -live or recorded ( DJ) that is amplified or very loud.
This category does not include karaoke unless such activity continues after midnight.

3) Dance floor available for use during certain hours.

4) Later operating house — defined as after midnight.

5) Low lighting levels or darkness during any musical, video or live entertainment event. It is not
the intent of this section to apply to movie theaters.

6) Stage/platform for floor shows or other live or recorded performances.

7) Operates with a city or state license to serve alcohol or allows consumption of alcohol on the
premises during musical, video, or live entertainment events between the hours of 11: 00 p.m.
until 3: 00 a.m.

The above factors need not be present during all hours of operations nor include the entirety of
the establishment to result in the necessity for a special permit as required under Chattanooga
City Code 38- 527.

EXHIBIT
p ; 3: 45
2021 AUG - 4
a
 City of.Chattanooga
Office of the City Aliurstey
ally l )l lwtncll Valerie t, MmI. as
Ity Athattry Melimta Fars.
i babble O. arras
Phillip A Noblest
Rebut O. Ftalbhsaaa
potty () My Attorney
Prienh A. Bally

A•l!stut City Alkmaar.

Misty Dann Powell

tx OWNerrOpefitOt of 9ay„ oo
3709 Lot Hisfiway
t.hattanoogn 117421

Re: Siyam

hear Mt. Powell sod the en. ner• and operators of Skyaaa.

Iha tenser constitutes mime that your Special Exceptions Portend Cm Use of a Nightclub haste,' as 5709 Let
N d wr rs snbi a u wit i* nd pt:4ciblc rrvcwation by the Chatty Braga City Coati, it.

The p unary tassel' of this hearing is the mow resent thinning at your Milne lab AtMttiuoally. in the past 2
years. A calls to 9! ! for shims firW hose beer, mate from your promises. Thirty- seven ( 37) calls to 91 I to report
disorders and 23 calls for medical attention have been made from your nightclub in the seine * mse nthe, causing
t:++ kan abool t?sc hcahh and sefuy of the cstablisltmwnt. Finally, residents and cormihrrnts have called
tts::
for the closure of the nightclub as a public ntsiaamcc.

POT CE OF NEARING: THIS CAUSE WILL BE HEARD (* THE thth DAY C* JULY 2021 AT 6
O' CLOCK P.M. AT;

Codicil Assembly Room

009 Lit dssy
' Strom
Chattanooga. TN 37402

Y. at ti.-sa a right as pia: ig it:dirw to the City Council phsysn8 that your nightclub'
heahh red safety and that you arc in cusnplianim with governing law.

IC, aflet hearing., the City Crw. tcit Gods by a prtpon krance of the eviclenixx that you
ycrwr permit, nr that your nigdti16b is it public suiautoe ilia Ihrcai to the public hcah
permit n ill be revoked.

Cm Hy O' Dennd!
100 L 1Ith Steed. Suite 200° unlearnt TN 37402
OFFK ( 423) 6.43-8210 • fAX 4211 643-8255 ' rti
Ass 6(itar opportuei'y Emprtryer

EXHIBIT 1
2521 AUG - 4 Pit 3: 45
iP STE;.