MWRA requested an injunction. The city responded in opposition to the injunction and now, Scott Ciolek, MWRA's attorney, has filed their reply.
Now, I'm not an attorney so I'm not qualified to judge the merits of the various claims and defenses. However, a small dose of common sense is all that is needed to appreciate the position of the MWRA.
MWRA claims the ordinance is vague. The city says it isn't.
"Because Ordinance 797-07 lacks any discernible standards, a reasonable business owner is left without guidance as to what conduct is required to achieve compliance. Defendant responds that the City, on request by a business owner, will provide “suggestions of what actions to take to comply with the Ordinance.”2 If “appropriate actions” is not vague terminology, Defendant should be able to do better than merely offer “suggestions” as to what conduct may or may not comply with the ordinance. Moreover, the undefined “appropriate actions” requirement sets the stage for arbitrary and erratic enforcement. With no fixed standards in place, the City is free to set a different standard of “appropriate actions” for each store owner."
Furthermore, Ciolek argues, the city readily admits that they sent letters only to certain businesses who are affected by the law, thus demonstrating that the city is engaging in 'selective and arbitrary' enforcement. Seems pretty much like common sense to me...
MWRA, as I've said previously, makes an interesting argument regarding involuntary servitude and the city denies this point. The city says that owners have 'alternatives' if they don't want to follow the ordinance. One 'alternative' is to expand the size of their business to more than 5,000 square feet so the ordinance won't apply to them.
"As an initial matter, it is far from clear how merely expanding the size of a convenience store “alters the nature” of the business. Apparently, an increase in square footage is sufficient to ameliorate the Cityʼs concerns about crime and public safety. But more importantly, it is simply not accurate to say that a convenience store can simply “choose” to expand the size of their business. Many affected businesses do not have available room to expand due to location. Others lack the financial resources required for substantial remodeling. And, at any rate, a business owner cannot expand the size of their business without obtaining applicable permits from the City. In short, Defendant cannot argue that a business owner my freely choose to expand their business when, in fact, such an expansion cannot take place without permission from Defendant.(emphasis added)"
The city gives several examples of undesirable consequences to laws or rules that they present as legal arguments for the constitutionality of this law, including a scholarship recipient not performing their agreed-upon service following graduation or an inmate 'choosing' to stay in jail rather than participating in a work-release program.
"As for defendantʼs other examples, MWRA members have not entered any sort of contract with the City, nor are MWRA members prisoners of the state.
As the Third Circuit observed in Steirer, “the critical factor in every case finding involuntary servitude is that the victim's only choice is between performing the labor on one hand and physical/and or legal sanctions on the other.” 987 F.2d at 999 (3rd. Cir. 1993). This is precisely the choice presented to MWRA members by Ordinance 797-07."
Even this non-lawyer could have told you that.
Then there is the issue of ex post facto laws and their prohibition. The law says that existing business owners must have a criminal background check and they may not be granted a license to operate if they have convictions in their past. The city says they are not penalizing such owners for their previous history - only for their current actions. MWRA responds:
"As Defendant readily concedes, under Ordinance 797-07 “[a] conviction may prevent a person from obtaining a license to operate a convenience store.”8 However, Ordinance 797-07 also permits Defendant to revoke the license of a store owner with a business already in operation, or deny renewal of a license. Under the plain language of Ordinance 797-07, any affected store owner with any type of criminal conviction within five years of the application date may be denied a license to operate. Continuing to operate a convenience store without this license is a criminal offense. This outcome is not, as Defendant claims, based on “a personʼs current actions,” but rather makes a person vulnerable to fines, criminal penalties, and loss of business for no reason other than a past conviction. This is the very essence of an ex post facto law."
Again, not being an attorney, even I understand this point and am simply amazed that either the city didn't see it, or that they are grasping at straws to make arguments in defense of this law.
And these arguments are only about the temporary restraining order. Can you imagine what the actual trial on the merits will be like?