IN THE CHANCERY COURT OF FORREST COUNTY, MISSISSIPPI CITY OF HATTIESBURG, sith, L, PLAINTIFF A MUNICIPAL CORPORAT] VERSUS SEP 13 @osgu. a INO. 23-CV-312-SM TOP SIVE BAR AND GRILLLLCLANCE C. REID DEFENDANT | Chancery Clerk MOTION TO FIND DEFENDANT IN CONTEMPT. COMES NOW the City of Hattiesburg, Mississippi (“the City”), Plait ; and moves the Court to find the Defendant, Top Sive Bar and Grill LLC (“Top Sive”) in contempt of this Court’s Order of July 6, 2023, as amended by Order dated July 12, 2023, and in support thereof would show unto the Court the following facts: L This Court entered an Agreed Order in this cause on July 6, 2023, which Agreed Order was amended by Order of this Court dated July 12, 2023 (collectively “the Order”). The Order ordered and adjudicated certain facts and required the Defendant to take certain actions prior to reopening, and also required that the Defendant operate its business in conformity with the City’s Land Development Code (“the LDC”) and other ordinances and regulations of the City of Hattiesburg. The Defendant has disregarded and failed to abide by the terms of the Order in a number of ways as set forth below, and should, therefore, be held in contempt of this Court and its Order. 2 Under the Order, Top Sive recognized “that the Top Sive property abuts residences,” and it agreed “that no loud music of any type shall be played inside the building or allowed in the parking lot,” and it also agreed to “comply with all ordinances and regulations of the City of Hattiesburg...” Ordinance 2945, adopted by the Hattiesburg City Council on February 6, 2007, Case: 18CH1:23-cv-00312-SM Document #: 11 Filed: 09/13/2023 Page 1 of 46provides that (2) “It shall be unlawful for any person to make continue, or cause to be made or continued any loud, unnecessary, or unusual noise that annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety or others. In determining whether a noise is loud, unnecessary, or unusual, the following factors shall be considered: time of day roximity to residential properties....” Further, Ordinance 2945 (b) provides that “It shall be unlawful for any person to make, assist in making, permit, continue, cause to be made or continued, or permit the continuance of any sound that either exceeds the level which can be heard at a distance greater than 50 feet or otherwise unreasonably disturbs, injures or endangers the comfort, repose health, peace, or safety of others.” On August 25, 2023, at approximately 11:17 p.m., officers with the Hattiesburg Police Department were called by a resident of the neighborhood immediately adjacent to the Top Sive property who stated that “she and her husband were inside her house trying to go to sleep, and they could hear the music coming from [Top Five]....”. [The responding officer] “could hear the music from the street, but {the complaining resident] invited the [responding officer] inside her house to show him how loud it was. [The responding officer] could still hear the music from inside the house. [The complaining resident] stated that she’s been dealing with the noise almost every weekend.” [The responding officer] “relocated to 6104 US Highway 49 (Top Five Bar & Grill) to meet with the owner, later identified as Mattaus Butler. [The responding officer] served Butler a post arrest [citation] for violating the city noise ordinance. Butler signed the post arrest and also advised that he would turn the music down.” The noise ordinance violation is returnable to Hattiesburg Municipal Court on October 10, 2023. A copy of the Post Arrest Release and Complaint and Incident Report are attached as Exhibit “A” and made a part hereof. A copy of the City of Hattiesburg’s Ordinance 2945 is attached hereto as Exhibit “B” and made a part hereof. Case: 18CH1:23-cv-00312-SM Document #:11 Filed: 09/13/2023 Page 2 of 463. The Order adjudicates that Top Sive “is a bar and restaurant as defined in the City’s Land Development Code (“the LDC”), and parking for Top Sive shall be limited as to location and ‘number of parking spaces for a bar and restaurant as set forth in the LDC.” Under Section 12.5.2 of the LDC, “Any application for a permitted use with conditions must comply all applicable standards that apply to similar uses and properties in the zoning district in general in addition to the specific conditions listed for that use. Where conflicts exist, the most stringent regulation shall apply.” What this means is that although Top Sive is described in the Order as a “bar and restaurant, for parking purposes it is to be treated as a bar, and under Section 5.4.15.2 of the LDC, “Off premises parking for bars in B3 is not permitted. In light of these sections of the LDC, parking for Top Sive is limited to its own parking lot.”". Copies of Sections 12.5.2 and 5.4.15.2 of the LDC are attached hereto as Exhibit “C” and made a part hereof. 4. On August 28, 2023, counsel for the City emailed counsel for Top Sive advising him of the aforementioned citation for loud music and also stated: “[T] here is evidence that customers of Top Sive are illegally parking in parking lots belonging to adjacent landowners. As you recall, the Agreed Order provides that ‘Top Sive Bar & Grill LLC, is a bar and restaurant as set forth in [the City’s Land Development Code}, and parking for Top Sive shall be limited as to location and number of parking spaces as set forth in the [Land Development Code]. Under the Land Development Code, off-premises parking for bars in a B-3 zone, which this is, is not permitted... * Even if Top Sive Section 12.5.2 did not exis, and Top Sive were considered a “restaurant,” “Any offsite parking to bbe used shall require the recording of a perpetual easement prior to occupancy in the office of the Chancery Clerk ‘of the appropriate county, the form and substance of which must be approved by the Director [of Ur Development for the City of Hattiesburg.” (Section 7.12,8.4). No perpetual easements for offsite parking for Top Sive has been presented to the Director of Urban Development, and the City Is not aware of any such easements being filed with the Chancery Clerk of Forrest County, Mississippi Case: 18CH1:23-cv-00312-SM Document #:11 Filed: 09/13/2023 Page 3 of 46I would encourage you to immediately discuss the seriousness of this situation with your clients.” A copy of said email is attached hereto as Exhibit “D”. 5. On the evening of Friday, September 1, 2023, at approximately 11:15 p.m., parking at Planet Fitness, located next door to Top Sive, was at 75% capacity, and Planet Fitness was closed at that time, In addition, the parking at CarQuest Auto Parts and Cliff’s Quick Lube, also located adjacent to Top Sive and closed, was at 100% capacity. The parking in the Top Sive parking lot ‘was over capacity, and patrons were beginning to park in the right-of-way of the Highway 49 service road. All persons who parked at these properties proceeded to Top Sive. Hattiesburg Police Department officers began to shut down Top Sive at approximately 12:30 a.m. based on the violation of the Agreed Order, and a large number of Top Sive patrons began walking across Highway 49 to the Dragon House. A photograph of the par ig of vehicles in the CarQuest Auto Parts is attached hereto as Exhibit “ 6. On the following evening, Saturday, September 2, 2023, at approximately 9:15 p.m, parking in the Planet Fitness parking lot was at approximately 25% capacity as well as at Parkway Heights United Methodist Church. Parking was approximately 50% full at Carquest and Top Sive itself. The persons who parked their vehicles at these various locations were all making their way to Top Sive. At approximately midnight on Sunday, September 3, 2023, the Planet Fitness parking lot and the Parkway Heights parking lot had numerous vehicles parked in them, and additional vehicles were parked along both South 25 Avenue and the service road along Highway 49 (26 Avenue). Photographs of the illegal parking are attached as Exhibit “F 7. Case: 18CH1:23-cv-00312-SM Documenf#:11 Filed: 09/13/2023 Page 4 of 46The Order requites that Top Sive security to “monitor the outside parking during at all times of operation after Top Sive opens in the evenings or at 8:00 p.m., whichever is earlier, and immediately following closing to insure that there is no loitering in the outside parking area at any time by any person.” At approximately 12:45 a.m., on September 3, 2023, officers with the Hattiesburg Police Department began dispersing loiterers in the various parking areas with sirens after multiple verbal requests were made by the police officers as well asthe City of Hattiesburg Code Enforcement officer who was present. Photographs of Hattiesburg Police Officers dealing with the loitering and illegal parking are attached as Exhibit “G”. 8. The City Council of Hattiesburg adopted Ordinance No. 3286 on January 29, 2020, which is an ordinance “establishing and regulating mobile food vending unites in Hattiesburg,” and requires that “all mobile food vendors must obtain and maintain a permit” and that the application for a permit “shall be made with [the] Planning Division of the Department of Urban Development.” “The Department of Urban Development shall have complete discretion as to which locations to approve considering the needs of traffic, pedestrians, pul safety, public works, public convenience, the general uses of adjacent private property, and any other factor that is proper and lawful for the City to consider in approving or disapproving such locations.” A copy of Ordinance No. 3286 is attached hereto as Exhibit “H™. Top Sive directed or allowed an unpermitted mobile food vending unit to be set up in its parking lot on September 2, 2023, and September 3, 2023, until it was shut down by officers of the Hattiesburg Police Department and/or Code Enforcement officers of the City of Hattiesburg, Once again, Top Sive failed to abide by the terms of the Order which requires Top Sive to “comply Case: 18CH1:23-cv-00312-SM Documenf#:11 Filed: 09/13/2023 Page 5 of 46with all ordinances of the City of Hattiesburg...” Photographs of the unpermitted mobile food vending unit are attached hereto as Exhibit “I”. 9. On the weekend of September 8-10, security for TopS directed patrons of TopS to park in the parking lot of an adjoining business, CarQuest, as well as the alley behind CarQuest; by 12:30 ‘a.m. on Saturday, September 9. 2023, the CarQuest parking lot was full. By 1:30 am. the parking at Planet Fitness began with seven (7) cars that were either parked or had people loitering and some were walking in the direction of Top Sive (that was the only business open on that road). Parking on the service road (South 26" Avenue) and the right-of-way was beginning to occur partially blocking the southbound lane of traffic on the service road in front of Top Sive. The parking in the Urgent Care parking lot was also nearly at capacity at this time while the business was not open. Photographs of various parking violations and loitering are attached as Exhibit “I”. 10. ‘Top Sive is unable or unwilling to operate as required by this Court’s Order, which includes the obligation of Top Sive to operate as a bar and restaurant as defined by the City’s Land Development Code, and the City of Hattiesburg is having to spend significant resources, particularly with its Police Department and its Code Enforcement Division, to deal with the repeated and clear violations of the Order. i. In its Order, the Court maintained jurisdiction of this matter and expressly stated that it would “conduct a review of compliance” ninety (90) days from the date of the Order, July 6, 2023. Based on its action and inaction since the date of the Order, there is nothing to indicate that it will change its behavior by October 6, 2023, which is ninety (90) days from July 6, 2023. Case: 18CH1:23-cv-00312-SM Documenf#: 11 Filed: 09/13/2023 Page 6 of 46WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays as follows: 1. That the Court would find the Defendant in contempt of its Order of July 6, 2023, and July 12, 2023. 2. ‘That the Court would permanently close Top Sive, of, in the alternative, require the Defendant to close at 1 pam. 3. That if the Court allows Top Sive to remain open or to remain open past 10:00 p.m., before it reopens the Court would require Top to post a bond, acceptable to the Court and the City, in the amount of $10,000.00 to ensure its compliance with the Court's Order, with the bond to be forfeited upon the showing of a failure to abide by the terms of the Court’s Order by this Court. 4. That the Court would award attorney’s fees and costs incurred by the City in prosecuting this Motion to Find Defendant in Contempt. 5. That the Court would grant such other relief, whether general or special, that the Court deems appropriate in this matter. RESPECTFULLY SUBMITTED, CITY OF HATTIESBURG, MISSISSIPPI By: __/s/ Moran M, Pope, III Its Attorney Moran M. Pope, IIf Miss. Bar No. 4441 POPE & POPE, P.A. Post Office Box 17527 Hattiesburg, Missi ippi 39404-7527 (601) 268-9997 randypope@popelaw.com Case: 18CH1:23-cv-00312-SM Document #: 11 Filed: 09/13/2023 Page 7 of 46CERTIFICATE OF SERVIC! I hereby certify that on this day I emailed a copy of the above and foregoing Motion to Hold Defendant in Contempt to Hon. C. J. Lawrence Ill, at his email address of cclawir@gmail.com. I also certify that I mailed, by United States Mail, postage prepaid, a copy of the above and foregoing Motion to Hold Defendant in Contempt to Hon. C. J, Lawrence III, at 606 ¥4 John Street, Hattiesburg, Mississippi 39401. This the /3 day of September, 2023. MorayM. Pope, If Case: 18CH1:23-cv-00312-SM Documen#: 11 Filed: 09/13/2023 Page 8 of 46