City, Starvin Marvin’s seek continuance in noise ordinance suit

David Yates Jan. 19, 2013, 1:20pm

With the case pending in the Texas Supreme Court, two parties battling over a city sound ordinance are requesting a continuance. 

On Dec. 22, 2011, the Ninth Court of Appeals lifted an injunction against the city of Beaumont, effectively reinstating a noise ordinance aimed at silencing live music at Starvin Marvin’s Bar and Grill.

With the case now before the Texas Supreme Court, the parties filed an agreed motion for continuance on Dec. 27.

The appeals stem from an injunction request brought by restaurant owner Marvin Atwood against the city in March 2011.

Court records show that on May 5, 2011, Judge Donald Floyd, 172nd District Court, granted Atwood’s temporary injunction request.

Judge Floyd took his ruling a step further on May 19, 2011, when he denied the city’s plea to the jurisdiction request, prompting the city to file an appeal to the Ninth Court of Appeals of Texas, court records show.

According to the Ninth Court’s memorandum opinion, two of three justices found that Starvin Marvin’s failed to show how enforcement of the ordinance would cause an irreparable injury to a vested property right.

Justice David Gaultney did not agree with his peers, and issued a dissenting opinion that says Judge Floyd found other grounds for the temporary injunction, other than estoppel and the unconstitutionality of the ordinance.

“The trial court found, among other things, a ‘probable, imminent, and irreparable injury’ and the City’s failure to follow zoning law,” wrote Justice Gaultney.

“But whether or not the temporary injunction should have been granted, dismissal of the declaratory judgment action in this appeal is unwarranted. The trial court has jurisdiction to resolve the dispute. I respectfully dissent.”

During an April 2011 injunction hearing, City Attorney Tyrone Cooper had argued that Judge Floyd lacked the jurisdiction to order an injunction, since Atwood was violating the recently amended public nuisance noise ordinance, which, in his opinion, makes the case a criminal matter.

Atwood’s attorney, David Bernsen, contends the amended noise ordinance wrongfully impacted a separate zoning law and violated his client’s constitutional property rights, court papers say.

Jefferson County case No. E189-628

Ninth Court case No. 9-11-00229-CV

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