Download - Damian Stone v. Denver

8/11/2019 Damian Stone v. Denver

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DISTRICT COURT, CITY AND COUNTY OF DENVERSTATE OF COLORADO

1437 Bannock StreetDenver, CO 80202

COURT USE ONLY

Plaintiff(s): Damian Stone

Defendant(s): City and County of Denver and Lauri

Dannemiller, Executive Director of the

Department of Parks and Recreation

Attorney/Pro Se:

Damian S. Stone, Reg. No. 34587The Law Office of Damian Stone, P.C.3570 E. 12th Avenue, Suite 200Denver, Colorado 80206Telephone: 720-684-4371

Case No.: 2014CV32366

Div./Ctrm: 424

PLAINTIFF DAMIAN STONESSECOND AMENDED PETITION AND COMPLAINT

Plaintiff Damian Stone (Plaintiff), attorney of record, states as follows:

PARTIES JURISDICTION AND VENUE

1. Plaintiff Damian Stone, 3570 E. 12thAvenue, Suite 200, Denver, Colorado 80206,is a resident of Denver County.

2. Defendant City and County of Denver, City and County Building, 1437 Bannock

St., Rm. 350, Denver, CO 80202, operating through the Department of Parks and Recreation(Denver Parks), 201 West Colfax Ave., Dept. 601, Denver, Colorado 80202, is considered aresident of Denver County.

3. Defendant Lauri Dannemiller, Executive Director, Department of Parks andRecreation, is a resident of Denver County.

DATE FILED: July 31, 2014 11:27 PMFILING ID: 1FCDF22F1E513CASE NUMBER: 2014CV32366


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4. The parties reside in Denver. The actions that form the basis of this Complaintwere committed in Denver County. Pursuant to C.R.C.P. 98, venue for an injunction to stayproceeding is proper in the county where the suit is pending. Thus, venue is proper.

5. Plaintiff has submitted a question of law for determination by this Court, whichincludes the interpretation of a statute and the constitutionality of the regulations that Defendantsseek to enforce. Thus, jurisdiction is proper.

6. Also, pursuant to C.R.C.P. 106(a)(4), Plaintiff may seek relief from the districtcourt whereany governmental body or officer or any lower judicial body exercising judicial orquasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is noplain, speedy and adequate remedy otherwise provided by law: Thus, jurisdiction is proper.

7. Plaintiff requests a declaratory judgment and injunctive relief pursuant to 13-

51-101 et. seq., C.R.C.P. 57, and C.R.C.P. 65 and all necessary parties are before the Court.

FACTS

8. Lauri Dannemiller and Denver Parks illegally passed a law and regulations thatmakes it unlawful for families, children, or other individuals to participate in impromptu casualdrop-in sporting activities at Washington Park.

9. For example, on May 24, 2014, Park Ranger Wells stopped a family of four fromplaying a soccer game at Washington Park. The attached photograph shows a mother and fatherplaying soccer at Washington Park with their two young children. (Photograph, Exhibit 1.)

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The next photograph shows Park Ranger Wells shutting down this family gamebecause the family did not have a permit to play a casual family soccer game at WashingtonPark. (Photograph, Exhibit 2.)

11. On the same day, Damian Stone went to Washington Park to engage in casualdrop-in volleyball with friends and new acquaintances. Upon arrival, Mr. Stone and five otherindividuals began to play a game of volleyball.

12. Park Ranger Wells, however, issued a Citation-Notice of Violation againstMr. Stone that asserted a $100.00 fine for doing nothing more than playing a game of volleyballwith friends. (Citation, Ex. 3.)

13. Ms. Dannemiller and Denver Parks claimed to have issued the Citation-Notice ofViolation under Denver Municipal Code 39-4. (Citation, Ex. 3.) In reality, however, Ms.Dannemiller and Denver Parks bowed under the pressure of a small number of influentialresidents living around Washington Park who do not want to share Washington Park with theother Denver residents who pay taxes for the maintenance and upkeep of the Park.


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14. Ms. Dannemiller and Denver Parks then issued a Permitting Rule (PermittingRule). (Permitting Rule, Ex. 4.) Defendants asserted that 39-4 provided them with theauthority to issue citations for the Permitting Rule.

15. Under the Permitting Rule, Ms. Dannemiller and Denver Parks claimed to havethe authority to regulate Team Sports Activity including casual/drop-in sports like familysoccer, volleyball, corn hole, badminton, or any other sporting activity involving more thanthree (3) persons. (Permitting Rule, Ex. 4.)

16. Denver Municipal Code 39-16, however, excludes casual or spontaneous(pick-up) games from the definition of Sports Activities. (Section 39-16, Ex. 5.) Further,Regulations 14.1 of Denver Parks Use Rules also excludes casual or spontaneous (pick-up)games, unscheduled games, unorganized teams, and unorganized groups from the inclusion inthe definition of Team Sport Activity. (Use Regulations 14.1, Ex. 5.)

17. Thus, Ms. Dannemiller and Denver Parks did not have the authority or power toregulate casual or spontaneous (pick-up) games such as family soccer games, drop-involleyball, or other unorganized sports.

18. Instead, pursuant to Denver Municipal Code 2-92 thru 96 (Section 2, Exhibit 7)and 39-2, Ms. Dannemiller and Denver Parks had to go through the notice and public hearingprocedure to amend the definition of Sports Activities and Team Sport Activity to include

casual or spontaneous pick-up games such as a family soccer game, volleyball, or the like.

19. In addition, Lauri Dannemiller and Denver Parks issued a Second PermittingRule. (Second Permitting Rule, Ex. 4.1.) The Second Permitting Rule also seeks to regulatecasual drop-in volleyball even though the language in Denver Municipal Code 39-16 andDenver ParksUse Regulations 14.1 prohibit Denver Parks from having the authority to regulatecasual or spontaneous (pick-up) games or unscheduled games, unorganized teams, andunorganized groups from the inclusion in the definition of Team Sport Activity. (Section 39-16, Ex. 5; Use Regulations 14.1, Ex. 5.) The same arguments applicable to the Permitting Ruleare equally applicable to the Second Permitting Rule.

20. The Second Permitting Rule also again changed and amended the Team SportActivity to again include casual or spontaneous pick-up games such as a family soccer game,volleyball, or the like.

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Finally, the Second Permitting Rule threatens volleyball players with a criminalarrest if they engage in a drop-in volleyball game at a public park. The Second Permitting Rulealso singles out volleyball players and applies disparate and distinct permitting requirements forvolleyball players versus other similarly situated people. (Second Permitting Rule, Ex. 4.1.)

22. Thus, Lauri Dannemiller and Denver Parks are treating a group of people,volleyball players, differently than other similarly situated individuals engaged in similar sports.


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This amounts to an arbitrary and unreasonable action and violates the equal protection and dueprocess clauses of the United State Constitution and the Colorado Constitution.

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The Equal Protection clause seeks to ensure that any classifications the lawmakes are made without respect to person, that like cases are treated alike, that those who

appear similarly situated are not treated differently.

24. Based on this disparate treatment, Lauri Dannemillersand Denver ParksSecondPermitting Rule have also violated the equal protection clause and due process clause. Inaddition, if the Denver Police Department were to arrest someone for a violation of thePermitting Rule, the arrest would be constitutionally infirm.

25. As Ms. Dannemiller and Denver Parks knew that the residents of Denver wouldobject to requiring families and friends to obtain permits to play casual sports at Washington

Park, Ms. Dannemiller and Denver Parks ignored the law and illegally created the PermittingRule.

26. To legally change the Denver Parks Rules and Regulations, Ms. Dannemiller andDenver Parks had to adhere to the rule making and notice requirements. This would haverequired Ms. Dannemiller and Denver Parks to give notice to Denver residents of the proposedregulations. After giving proper notice to the community, Ms. Dannemiller and Denver Parkswould then have to hold a public hearing where Denver residents could express their opinionsregarding the proposed regulations.

27. This process guarantees Mr. Stone and the residents of Denver constitutional dueprocess and their rights to participate in the formulation of the rules and regulations that impactall of our lives.

28. Ms. Dannemiller and Denver Parks, however, knew that the majority of Denverresidents would object to the regulation of family soccer games and other casual sports like drop-in volleyball.

29. Consequently, Ms. Dannemiller and Denver Parks decided to illegally change thedefinition of Team Sport Activitylocated in Denver Municipal Code 39-16 (Exhibit 5) andDenver Parks Use Regulations 14.1 (Exhibit 6) by issuing the Permitting Rule and SecondPermitting Rule that changed the definition to include sporting activities that involved morethan three (3) personsor involve casual, unorganized, drop-in sports like volleyball and similar

sports. (Permitting Rule, Ex. 4.)

30. Even though the Permitting Rules makes a specific reference that Team SportingActivity will have the same meaning as set forth in Section 14.1 (which excludes casual orspontaneous (pick-up) games) (Permitting Rule, Ex. 4), the Permitting Rules expanded thedefinition of Team Sporting Activity to include sporting activities that involved more thanthree (3) personsregardless of whether they are casual or spontaneous pick-up games. Id.


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31. In this case, Defendants issued a citation to Damian Stone for engaging in thehorrible crime of playing a pick-up volleyball game in Washington Park. The citation asserted a$100 fine that is due within (30) days. (Citation, Ex. 3.) In addition, Damian Stone has been

threatened with criminal prosecution if he engages in another drop-in volleyball game inWashington Park. (Second Permitting Rule, Ex. 4.1.)

32. Defendants, however, did not have the authority to regulate unorganized, casual,drop-in volleyball through the Permitting Rule of Second Permitting Rule because Defendantsnever went through the notice and hearing process required for the passage or amendment of therules and regulations.

33. Thus, Ms. Dannemiller and Denver Parks abused their discretion and exceededtheir jurisdiction and there is no plain, speedy and adequate remedy otherwise provided by law.

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Ms. Dannemiller and Denver Parks have also exercised judicial or quasi-judicialfunctions for all times relevant to the complaint.

CAUSES OF ACTION

(Declaratory Judgment)

(Injunctive Relief)

(Determination of a Question of Law)

35. Plaintiff hereby incorporates the above paragraphs by this reference as if eachparagraph was set forth herein in its entirety.

36. The Defendants exceeded their jurisdiction and abused their discretion is enactingthe Permitting Rule and issuing the Citation and issuing the Second Permitting Rule.Defendants actions were arbitrary and capricious, a denial of a statutory right, contrary to aconstitutional rights to due process and equal protection, power, privilege, or immunity, inexcess of statutory jurisdiction, authority, purposes, or limitations, and not in accord with theprocedural limitations contained in the Denver Municipal Code. This amounts to an abuse andclearly unwarranted exercise of discretion.

37. Defendants violated the provisions of the Denver Municipal Code and DenverParks Use Regulation and the equal protection and due process clauses of the U.S. and ColoradoConstitutions.

38. Plaintiffs request a declaratory judgment pursuant to 13-51-101 et. seq. andC.R.C.P. 57 that Lauri Dannemiller and Denver Parks illegally changed the Denver MunicipalCode and Denver Parks Use Regulations without complying with the notice and hearingrequirements contained in the those regulations.

39. Thus, Plaintiff requests a determination that Permitting Rule is unconstitutionaland violates due process and equal protection. In addition, Defendantsactions in issuing the


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Permitting Rule and Second Permitting Rule are beyond Denver Parks statutory jurisdiction andauthority.

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Through the issuance of the Permitting Rule, the Citation, and the SecondPermitting Rule, Lauri Dannemiller and Denver Parks have caused Damian Stone irreparableinjury by barring him from engaging in casual drop-in sporting activities at Washington Park andthreatening him with criminal prosecution if he plays drop-in volleyball in a public park.

41. There is no certain pecuniary standard for the measurement of the damage toMr. Stone. Thus, Mr. Stone will never be adequately compensated for the injuries that he hassustained due to Lauri Dannemillers and Denver Parks illegal actions.

42. The continuing violation of Mr. Stones statutory and constitutional rights amountto irreparable harms, which a monetary award cannot compensate or quantify. Absent the

intervention by the courts, there is no legal remedy that provides speedy, complete, and adequaterelief to Mr. Stone.

43. All necessary parties under C.R.C.P. 57(j) are before the Court.

44. Plaintiff prays for declaratory relief from the Court that states the rights andliabilities of the Parties for the issues outlined in the prior Paragraphs. Plaintiffs seek adeclaration that (1) Lauri Dannemillers and Denver Parksissuance of the Permitting Rule andSecond Permitting Rule were unlawful and beyond the statutory and constitutional authority ofDenver Parks and Lauri Dannemiller; (2) that the unlawful Citation is quashed and invalidated;(3) that Defendants abused their discretion and authority; and (4) Denver Parks is enjoined fromenforcing the Permitting Rule or Second Permitting Rule.

DAMAGES

45. Plaintiff hereby incorporates the above paragraphs by this reference as if eachparagraph was set forth herein in its entirety.

46. Plaintiff has suffered all damages allowable by law.

47. Plaintiff is entitled to attorney fees and costs.


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DATED: July 29, 2014.

Plaintiff

S/ Damian Stone

Damian S. Stone, Reg. No. 345873570 E. 12th Avenue, Suite 200Denver, Colorado 80206Telephone: (720) 684-4371

Attorney for Plaintif f

Filed electronically. See C.R.C.P. 121 1-26. Original in file.