Carroll County Circuit Judge Scott Jackson has declined to issue an injunction and temporary restraining order that would have allowed a gun and pawn shop to operate in the city of Eureka Springs.
In an order filed Thursday, Nov. 30, Jackson denied a motion filed Aug. 16 by attorney Whitfield Hyman of Fort Smith on behalf of Eureka Gun LLC and owner Keeling Grubb. He scheduled a trial date for Grubb’s civil suit against the city and Mayor Butch Berry for 9 a.m. Friday, Feb. 16, at the Carroll County Western District Courthouse in Eureka Springs.
In his motion, Hyman had requested 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.”
Jackson’s order followed a Nov. 14 hearing on Hyman’s motion, which argued that the city of Eureka Springs’ decision not to issue Grubb a Conditional Use Permit to operate the gun and pawn shop in a strip mall at 3022 E. Van Buren was arbitrary and capricious in violation of state law and the city’s own municipal code and also violated the federal and state constitutions.
In his order, Jackson wrote that Grubb “has failed to establish that he will suffer irreparable harm if the court does not grant his request for a temporary restraining order.”
Jackson’s order notes that Grubb is operating a sporting goods store at the location where he had planned to operate the gun and pawn shop, and “is selling guns at a different location outside the city limits.”
Whitfield filed suit in the local circuit court in July. 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 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.
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 said “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 motion seeking a temporary restraining order, 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.
