An attorney representing Eureka Springs Mayor Butch Berry in a lawsuit filed by a local business owner who was denied a conditional use permit to operate a gun and pawn shop inside the city has asked a judge to postpone a scheduled trial date in February and instead hold a hearing via Zoom on her motion to dismiss the case.
Attorney Sara Monaghan of the Arkansas Municipal League, in a motion filed Friday, Jan. 19, asks Carroll County Circuit Judge Scott Jackson to continue the trial date set for Feb. 16. Monaghan writes that she is scheduled to appear in a federal appeals court in St. Louis on Feb. 15 and also has a family scheduling conflict that week.
Instead of holding a bench trial on Feb. 16, Monaghan asks Jackson to hold a Zoom hearing on her motion to dismiss the lawsuit, which was filed July 11 by attorney Whitfield Hyman of Fort Smith on behalf of Eureka Gun LLC and owner Keeling Grubb.
In his complaint, Hyman argues that the city 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 to operate the gun and pawn shop inside the city limits. 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.
Monaghan filed a motion on Nov. 29 asking Jackson to dismiss the suit.
One day later, Jackson issued an order denying Hyman’s request that the court issue a temporary restraining order and issue a CUP for Grubb to operate the gun and pawn shop. Jackson wrote that Grubb had failed to establish that he would suffer irreparable harm if the restraining order was not issued.
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.
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 high-end, collector-grade firearms.
