Despite being turned down a second time by the Eureka Springs Planning Commission for a Conditional Use Permit to sell guns, Keeling Grubb said his fight to run a legal firearms business in the city is far from over.
On Monday, June 17, Grubb’s attorney, Whitfield Hyman, filed notice that he intends to appeal to the Arkansas Supreme Court regarding a May 16 ruling by Carroll County Circuit Judge Scott Jackson that upheld the planning commission’s first vote to deny the CUP, as well as the Eureka Springs City Council’s rejection of Grubb’s appeal of that vote.
The planning commission’s first vote on Grubb’s CUP request resulted in a 3-3 vote on May 23, 2023 — with four votes needed for approval. The city council then voted 4-2 against Grubb’s appeal on June 12, 2023.
In announcing his ruling at the May 16 hearing, Jackson suggested that Grubb reapply for the needed CUP to sell firearms at his business, Eureka Gun & Pawn, located at 3022 East Van Buren.
Grubb did just that, and at its regular meeting Tuesday, June 11, a short-handed planning commission, with two vacant seats, voted 3-2 in favor of granting the CUP. However, a section of Eureka Springs Municipal Code mandates that four votes are required.
In addition to the legal appeal of Jackson’s ruling, Grubb said Wednesday, June 19, that he also intends to appeal the planning commission’s most recent decision to the city council. While Grubb’s first application for a CUP said he wanted to operate a pawn shop in addition to selling firearms, his most recent request did not include operating a pawn shop.
Whatever path results in Grubb’s CUP request being approved, he said he just wants what he believes is “Constitutionally right.”
“I feel like as soon as we get outside of kangaroo court here we will end up with a license,” Grubb told the Times-Echo on Wednesday, June 19. “I hate that because it could be devastating to the city. We’ve lost a lot of money over the last year, millions of dollars, and the city of Eureka doesn’t have it.” Hyman filed an amended complaint in Carroll County Circuit Court on June 10 regarding the first CUP application, writing that Grubb’s “clearly established civil rights were violated and the City illegally as well as arbitrarily and capriciously violated his rights to operate a gun and pawn shop.”
“… The Court should have viewed the evidence and decided whether or not Keeling Grubb and Eureka Gun and Pawn should have a gun and pawn shop permit,” Whitfield writes in his notice of appeal. “The business met all of the requirements and it is illegal for a city to discriminate against firearms shops, therefore a permit should have been granted.”
In the amended complaint, Hyman argues that “not allowing certain types of businesses in your town, particularly one that is vital to keeping and bearing of arms, violates the Plaintiff’s right to due process under the Arkansas Constitution.”
“Baseless discrimination against arms proliferation and/or pawn shops is not a constitutionally legitimate basis for prohibiting the Plaintiffs from operating their business,” according to the pleading, which also says “the City does not have the authority to generally prohibit types of businesses which is what they have effectively done here …” The revised complaint again references Arkansas code 14-16504 which 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.”
“We figure it’ll take six to nine months to get in front of [the Arkansas Supreme Court],” Grubb said. “The question is, Judge Jackson doesn’t recognize Arkansas’ pre-emptive law … and there’s another one that says that no city, county, or any other entity in the state of Arkansas will impede the transfer of a firearm. [Jackson] is saying the transfer of a firearm doesn’t include a store.
“I don’t know how else you transfer a firearm legally in Arkansas without having a storefront.”
City council members Harry Meyer, David Avanzino, Steve Holifield and Melissa Greene voted against Grubb’s CUP request in June 2023, with Terry McClung and Autumn Slane voting in favor of the request. All but Greene still sit on the city council.
Grubb pointed to testimony from council members at the May 16 hearing as evidence that they discriminated against the selling of firearms.
“Three of the council members that voted against me last time, under oath a month ago, were all asked that if I couldn’t have a gun shop in this plaza, where could I have one,” Grubb said. “And they all answered ‘nowhere in Eureka.’
“[Greene], who is off the council, said she voted the way her constituents wanted her.”
Grubb said he expects a similar vote when the council considers his appeal of the most recent planning commission vote.
“They’re all going to get a chance to be reminded that they took an oath of office to uphold the Constitution,” he said. “None of them are upholding the Constitution. We figure it’s just going to be having to go through the motions with them because unless the three that are still there that voted against us and testified they wouldn’t allow a gun shop anywhere in Eureka Springs — we feel like with them making that statement under oath — they have no business of even voting on this from here on, especially since it’s documented under oath that they are biased against guns.
“Why else would you say that you wouldn’t allow a gun shop anywhere in Eureka Springs?”
What the planning commission and city council should be using when deciding whether his business qualifies for a CUP under city ordinance is the A through T “considerations” under “Action of the Planning Commission on conditional use” as listed in a section of the CUP application, Grubb said.
“The council last time didn’t even listen to us,” he said. “They all told us how bad guns were, except for two of them. They didn’t want to hear anything about steps A through T. And in the court proceedings we’ve had in the past, the city’s attorney through the Municipal League kept bringing up that we never proved our entitlement to have a store in Eureka. We never discussed A through T.”
The A through T considerations were discussed by planning commission members Tom Buford and Ferguson Stewart after the planning commission’s June 11 vote. Buford, Stewart and commission chair Susan Harman voted in favor of the CUP with commissioners Michael Welch and Ann Tandy- Sallee voting against.
Buford said Grubb’s application met the CUP guidelines and read each of the “A through T.” They include things such as whether the new business would increase traffic congestion and create drainage issues and includes the “opinions of adjacent property owners.”
“I’ve been to two trials involving this application and I think we’ve kind of lost track of what we’re doing,” Buford said after the vote. “We talk about second amendment rights, right to bear arms, and the right to sell guns, possess guns, but really years ago the city council of Eureka Springs passed an ordinance that allows guns in an area if it meets CUP requirements.
“… Some people say, ‘why are you voting for guns?’ It’s not really a gun question; it’s the question of whether you know if the application meets city ordinance. … I don’t think anything in there would prohibit us from approving the CUP.”
Grubb said he felt the discussions by Buford and Stewart should have happened before the vote.
“Planning didn’t discuss A through T until after they already voted,” he said. “A through T is, does our business fit? Is the location right? Do we have the right drainage? Are we going to hold up trash service? Are we going to have too much trash service? These are the things that are on their applications as requirements for this.
“At this point, I think it would be fair if the council kicked my application back to the planning commission and they actually asked questions.”
The application’s “Summary of Facts” put together by Kyle Palmer, the city’s director of planning and community development, states that “C2C zoning allows for gun shops with CUP” and that “Proposed use can be in harmony with the character of the C2C zone.”
“Staff recommendation: Approval,” the form reads.
“He did the worksheet beforehand, and our business meets everything that we should have that the city requires to have a [CUP],” Grubb said.
Welch and Tandy-Sallee didn’t comment during the meeting regarding their decision.
The 3-2 vote came after a public comments period where supporters and foes of the CUP voiced their opinions. Five people spoke during the session, four voicing support for Grubb obtaining the CUP. Palmer also read 16 letters submitted regarding the proposal, 10 of which were against gun sales at the business.
Despite having the majority of the planning commission vote in the affirmative, a fourth vote of approval was needed according to a line in municipal code 14.08.080 regarding CUPs, which, in part, states “in no case can approval be reached with less than four (4) affirmative votes.”
“That kind of gets us,” Grubb said. “If we had gotten four of seven votes we would have had 56 percent of the vote. With this vote, we had 60 percent.”
‘IT’S GOING TO BE NATIONWIDE’
Grubb’s ongoing dispute with the city has gained the attention of state and national gunrights groups.
Leah Herron, executive vice president of “Gun Owners of Arkansas” spoke at the recent planning commission meeting, saying it was possible her organization would “stand against Eureka Springs” if Grubb’s CUP was denied.
“We’re here in support of Keeling Grubb and we believe he has a constitutional free market right to have a business of his choice for legal activity in this town,” Herron said at the meeting. “We do not feel that hurt feelings or scared people should have any place in deciding what someone can do with basically a constitutional- protected amendment, the Second Amendment.
“He’s not doing something illegal. He’s not asking to go against anything. Gun Owners of Arkansas has had to stand against Eureka Springs in the past, and we’re prepared to do so again if need be.”
A Facebook post by Gun Owners of Arkansas on Wednesday, June 12, voiced displeasure at the vote by the planning commission and called Eureka Springs a “unique liberal stronghold.”
“GO-AR will be in touch with the City and make them aware of our displeasure with the city denying Mr. Keeling Grubb his right to operate a legal, constitutional protected business and hopefully address this issue, however if they are so entrenched in denying this permit GO-AR is prepared to escalate action on an ongoing basis until this issue is resolved.
“We’ll be happy to bring them the attention they deserve. Don’t tread on us.”
According to another post on the organization’s Facebook page on Thursday, June 13, a letter was written to Berry and members of the city council regarding the planning commission’s vote.
“I am writing to express my deep disappointment, on behalf of Gun Owners of Arkansas, in response to the Planning meeting’s decision to deny a business permit to Mr. Keeling Grubb, a licensed firearms dealer,” wrote Gary Epperson, president of the organization, according to the Facebook post. “It is perplexing that the City of Eureka Springs would restrict a legitimate entrepreneur from operating within the city limits, which will undoubtedly have consequences.
“The fear and misconceptions surrounding firearms, often rooted in ignorance, can be alleviated through education and exposure. It is essential to normalize the responsible ownership and carrying of firearms, as practiced by law-abiding citizens.
“In light of this decision, we intend to organize open carry walks, featuring long guns, strategically scheduled to coincide with Eureka Springs’ busiest periods. These events will recur periodically until the Courts intervene on Mr. Grubb’s behalf or the City of Eureka Springs reconsiders its stance and acknowledges the legitimacy of a firearm store.
“We urge the City Council to take corrective action and override the Planning Commission’s biased decision, allowing us to resume our daily lives without unnecessary drama and controversy.”
The city council’s next meeting is scheduled for Monday, June 24, but Grubb’s planning commission appeal isn’t on the agenda that was released Wednesday, June 19.
“I’ve had several nationwide radio stations that have invited us to come on lately,” Grubb said. “… There’s more press that we’re getting ready to have. It’s going to be nationwide on this.”
