An attorney representing a Eureka Springs business owner who was denied a Conditional Use Permit to operate a gun and pawn shop in the city has asked a judge to order the city to issue the permit.
In a motion filed Aug. 16 in Carroll County Circuit Court, Fort Smith attorney W. Whitfield Hyman requests a restraining order commanding the city to issue a CUP for Eureka Springs Gun and Pawn “to operate as a gun and pawn shop, or in the alternative to engage in the business of selling firearms.”
Whitfield filed a complaint in the local circuit court in July on behalf of Eureka Gun and Pawn and its owner, Keeling Grubb.
In that complaint, Whitfield argues that the violated Grubb’s First Amendment right to free speech and interfered with his civil rights when it denied his request for a CUP.
The city council voted 4-2 on June 12 to deny Grubb’s CUP application for the business located in a strip mall at 3022 E. Van Buren. The business is currently operating as a sporting goods store, Grubb told the city council.
Grubb had appealed to the city council after a vote by the Eureka Springs Planning Commission on his application resulted in a 3-3 stalemate.
The council’s June 12 vote followed nearly an hour of public comments regarding Grubb’s application — mostly in opposition to a gun and pawn shop.
Council member Harry Meyer, who voted against Grubb’s application, objected to the fact that a sign in front of the business already says “gun and pawn.”
“I just hate to allow a CUP when somebody has already put the signs up without the permits to do so,” Meyer said. “It’s just an insult.”
In his most recent filing, Whitfield writes that Meyer “gave several fascist, nonsensical, and illegal reasons for his ‘no’ vote, and did not mention a single legal reason for a denial.”
Also voting against Grubb’s application were council members David Avanzino, Melissa Greene and Steve Holifield. Council members Terry McClung and Autumn Slane voted in favor of approving the CUP application.
In his original complaint, Hyman writes that after the council denied the conditional use permit, the city sent a letter to the plaintiffs “threatening revocation of their business license and other penalties, if the Plaintiff did not take down the signs at his business which state ‘Eureka Gun and Pawn.’ ” “The Plaintiff has a freedom of speech right under the Arkansas Constitution to place whatever lawful signage he wants at his property, and to call his business whatever he wants,” Hyman writes.
Opposition to a gun shop from residents and city council members is not a legal basis for denying Grubb’s application, the complaint says.
“The City’s distaste for a certain type of lawful business is not a constitutionally legitimate basis for prohibiting the Plaintiffs from operating their business in Eureka Springs,” Hyman writes.
Grubb has said the business would sell highend, collector- grade firearms.
In the complaint, Hyman writes that: “By illegally denying a Conditional Use Permit, The City has interfered with the Plaintiff’s exercise and enjoyment of at least six (6) rights protected by the Arkansas Civil Rights Act (ACRA).” Hyman’s complaint quotes a section of Arkansas state law that states that a city “shall not enact any ordinance or regulation pertaining to, or regulate in any other manner, the ownership, transfer, transportation, carrying, or possession of firearms, ammunition for firearms, or components of firearms, except as otherwise provided in state or federal law …” In addition to asking the court to direct the city to issue a conditional use permit, the complaint also seeks compensatory and punitive damages, attorney’s fees and costs.
As of Wednesday, Aug. 30, the city had not responded to the complaint.
