IN THE CHANCERY COURT OF HAMILTON COUNTY, TENNESSEE

SHARKY' S, INC. d/ b/ a SKYZOO,

Petitioner,
DOCKET NO. 21- 0577
vs.

PART 2
CITY OF CHATTANOOGA,

Respondent.

RESPONSE OF CITY OF CHATTANOOGA TO PETITION FOR WRI OF

CERTIORARI, ORDER OF SUPERSEDEAS AND DECLARATORY JUDG N1

Comes the Respondent, City of Chattanooga (" Respondent"), by and through counsel, and

hereby responds to the Petition for Writ of Certiorari, Order of Supersedeas and Declaratory
Judgment (" Petition") filed in this matter by the Petitioner, Sharky' s, Inc. d/ b/ a Skyzoo

Petitioner"), as follows:

FIRST DEFENSE

The Petition fails to-state a claim against the Respondent upon which relief can be granted.
SECOND DEFENSE

For answer to the specific allegations of the Petition, the Respondent states as follows:

1. Respondent admits the allegations in Paragraph 1 of the Petition.

2. Respondent admits sending the letter dated June 25, 2021 which is attached as

Exhibit C to the Petition, but is without sufficient information to admit or deny the date of receipt

by Petitioner.

3.
Respondent admits that the Chattanooga City Council conducted a hearing after

notice to the Petitioner on July 6, 2021 and that Chief Roddy testified at the July 6 hearing

concerning multiple reports and dispatch information which resulted from activinanktitioner' s
This 1 day of P_ , 20
1 ROBIN L. MILLER, CLERK & MASTER
DC& M
By:
place of business. Respondent denies the remaining allegations as to fundamental fairness and the

basis for calling appropriate witnesses as set forth in Paragraph 3.

4. Respondent admits the allegations in Paragraph 4 of the Petition.

5. Respondent admits the allegations in Paragraph 5 of the Petition regarding the

action taken by the City Council at the conclusion of the hearing as authorized under Chattanooga

City Code 38- 567, noting that Mr. Dacoregio testified to the City Council during the hearing that

he was voluntarily giving his special exceptions permit back because he wanted to turn the

nightclub into a sports bar.

6. Respondent denies the allegations in Paragraph 6 of the Petition.

7. Respondent denies the allegations in Paragraph 7 of the Petition.

8. Respondent admits that certain hours of operation of a late night event facility are

not available to restaurants within the C- 2 zone but denies all other allegations in Paragraph 8 of

the Petition.

9. Respondent admits that Petitioner is a small business, but denies that Petitioner is

entitled to any costs and fees based on Tenn. Code Ann. § 29- 37- 103 or otherwise under Tennessee

law.

10. It is admitted that this is Petitioner' s first application for a Writ of Certiorari and

Supersedeas in this matter.

11. The allegations in paragraph 11 do not require a response but to the extent that it

incorporates other allegations set forth in the Petition such allegations are denied based on the

responses to Paragraphs 1 through 10 of the Petition.

12. Respondent admits the allegation of paragraph 12.

13. Respondent admits the allegations of paragraph 13.

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 14. The allegations of paragraph 14 are admitted in part and denied in part based on the

action of Mr. Dacoregio and his testimony to the City Council during the hearing that he was

voluntarily giving his special exceptions permit back because he wanted to turn the nightclub into

a sports bar as set forth in the transcript of this hearing which is filed with the Court pursuant to

Tenn. Code Ann. § 27- 9- 109.

15. Respondent denies the . allegations of paragraph 15. Respondent submits that

Petitioner initially requested and obtained a special exception permit from the City Council to

begin operations under this late night event facility provision and that Petitioner cannot now assert

that his legal rights and privileges have been denied by the City Council after Petitioner submitted

an application to abide by those same rules and procedures in the operation of this business.

16. Respondent denies the allegations of paragraph 16. The provisions set forth in

Chattanooga City Code 38- 527 ( 9) set forth specific criteria before any special exceptions permit

may be revoked which must be established by a preponderance of evidence before the City

Council. Eight specific triggering factors are set forth for consideration by the City Council in any

revocation decision and relied on by the City Council in connection with its decision in this case.

17. Respondent denies the allegations of paragraph 17.

18. With respect to the section of the Petition seeking relief from this Court,

Respondent denies that the Petitioner is entitled to any relief sought.

19. Any other allegations not heretofore admitted or denied in this Response to the

Petition are hereby denied.

THIRD AFFIRMATIVE DEFENSE

Respondent denies that any action taken by the Chattanooga City Council in the revocation

or acceptance of the surrender of Petitioners special exception permit to operate a late night events

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facility under Chattanooga City Code 38- 527 was not any action taken by a local government

against a small business that is subject to the provisions of the " Equal Access to Justice Act of

1984." Respondent would submit that the transcript in this case does not establish that the actions

taken by the City Council were not supported by substantial evidence or were arbitrary and

capricious or were brought in bad faith for the purpose of harassment in light of the incidents of

violence which had occurred on Petitioner' s premises before the July 6, 2021 hearing. Respondent

would submit that to the extent that this litigation was made in bad faith or was frivolous or was

made for the sole basis of harassment, this Court may impose a fine on the Petitioner in connection

with the filing of this action as authorized under Tenn. Code Ann. §29- 37- 106.

PREMISES CONSIDERED, the Respondent, City of Chattanooga, prays that the Court

dismiss this cause with the costs taxed against the Petitioner.

Respectfully submitted,

CITY OF CHATTANOOGA, TENNESSEE

OFFICE OF THE CITY ATTORNEY

By:
EMILY O' DONNELL (BPR No. 27061)
City Attorney
PHILLIP A. NOBLETT (BPR No. 10074)
Deputy City Attorney
100 E. 1 lth Street, Suite 200
Chattanooga, TN 37402
423) 643- 8250 —Telephone
423) 643- 8255 —Facsimile
Attorneysfor Defendant, City of Chattanooga

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 CERTIFICATE OF SERVICE

This is to certify that the undersigned has this day served a true and correct copy of the

foregoing pleading by depositing same in the United States mail, postage prepaid, and addressed to

the following:

Douglas M. Cox, Esq.

9218 Dayton Pike, Suite 114
Soddy Daisy, TN 37379

This Jm day of September, 2021.

1).( P4J
C

EMILY O' D NNELL

Office of the City Attorney

100 E. 1 1th Street, Suite 200
Chattanooga, TN 37402
423) 643- 8250
423) 643- 8255
eaodonnell@chattanooga. gov