The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Presently before the Court is Plaintiff's Motion for Temporary Restraining Order ("TRO") through which Plaintiff seeks an order directing Defendant City of Stockton to refrain from enforcing, applying, or otherwise giving any legal effect to Defendant's requirement of a use permit for live entertainment.
By way of the instant action, Plaintiff challenges the Stockton City Council's decision to uphold the denial of his application for a use permit that would have allowed him to provide live musical entertainment at his waterfront restaurant. The Court heard oral argument from the parties on Friday, May 29, 2009, at 2:30 p.m. In open court and on the record, the Court granted Plaintiff's request for injunctive relief and ordered Plaintiff's temporary use permit reinstated until the date of the hearing on Plaintiff's Motion for Preliminary Injunction, June 8, 2009.
Certain prerequisites must be satisfied prior to issuance of a temporary restraining order. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (stating that the purpose of a TRO is "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing [on the preliminary injunction application], and no longer"). In order to warrant issuance of such relief, Plaintiffs must demonstrate either: 1) a combination of probable success on the merits and a likelihood of irreparable injury; or 2) that serious questions are raised and the balance of hardships tips sharply in favor of granting the requested injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839-40 (9th Cir. 2001); Winter v. Natural Resources Defense Council, 129 S.Ct. 365, 375 (2008) (likelihood rather than possibility of success on the merits required for issuance of preliminary injunctive relief). These two alternatives represent two points on a sliding scale, pursuant to which the required degree of irreparable harm increases or decreases in inverse correlation to the probability of success on the merits.
Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998); United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992).
Plaintiff challenges certain provisions of the Stockton Municipal Code as unconstitutional. Specifically at issue are provisions governing the issuance of use permits for entertainment. According to Plaintiff, those ordinances governing the issuance of such permits impose an unconstitutional prior restraint on Plaintiff's chosen form of expression, which consists of live musical entertainment at his restaurant. The United States Supreme Court has made clear that music is expression protected by the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Loss of such protected "...First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
Plaintiff argues, inter alia, that Defendant's Municipal Code is unconstitutional on its face. That code provides, in pertinent part, that prior to the issuance of Use Permits, the following findings shall be made:
The proposed use would maintain or strengthen the integrity and character of the neighborhood and zoning district in which it is to be located;
The establishment, maintenance, or operation of the proposed use at the location proposed and for the time period(s) identified, if applicable, would not endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare ...