Tubac Chamber of Commerce prevails

©Nogales International

Six Tubac business owners sued the Tubac Chamber of Commerce in February 2007, angry about the possible locations of approximately 15 booths for visiting artists during the five-day Festival of the Arts.

The business owners did not want booths in front of their business and became upset when they saw spray-paint markings the Sunday before the festival started, delineating possible booth locations.

Carol Cullen, executive director of the Tubac Chamber of Commerce, which sponsors the annual Festival of the Arts, said alternate spaces were found and no booths were placed in the disputed spots. Even so, the six unsuccessfully asked for an injunction to stop the festival, and then filed a lawsuit.

Superior Court Presiding Judge James Soto ruled in February 2008 against the plaintiffs and in favor of the chamber. An appeal was filed and on Sept. 19, the Arizona Court of Appeals upheld Soto’s ruling.

Cullen said the lawsuit was filed by Marc Mauseth and Mary Hoffman, husband and wife, whose business is “Come to Tubac;” Gary and Cynthia Rose, husband and wife, “Turquoise Angel Art Gallery;” and Carlton Troy, a single man, and Catherine Troy, a single woman, of “Los Gatos Loco.”

Each year, the chamber applies for a special-event permit from Santa Cruz County so that temporary artists’ booths can be placed in the county right-of-way along the edge of the village streets, Cullen said.

Before the event began on a Thursday, several chamber workers marked locations for booths on the streets. She said they asked owners for their permission to place booths in front of each business. Not everyone gives permission, so they try not to place booths there, even though the property being used is not private, but is county-owned.

In February 2007, Cullen said, “We had just enough space to fulfill the number of booths needed.” However, along one stretch of Plaza Road, the land sloped too much. It was thought that the 15 booths scheduled to go there would have to be placed somewhere else.

She said they marked potential locations on Calle Baca and Otero Road in front of businesses where the owners had denied permission. Those areas were where the six businesses, whose owners filed the lawsuit, are located.

Meanwhile, on Monday, the county’s public works director sent workers to temporarily fill the sloping land on Plaza Road with gravel, so booths could be placed there. The locations on Calle Baca and Otero Road were not used, Cullen said.

The business owners were upset and immediately asked Santa Cruz County Superior Court for an injunction to stop the entire festival, which draws tens of thousands of visitors. The injunction was denied.

Court documents said the six Tubac business owners “believed the chamber had deliberately placed the booth markings to harass them.”

The six owners proceeded with the litigation on their application for a permanent injunction and their claim for intentional interference with “business expectancies.”

They sought compensatory damages for “the time associated with filing the action ?- lost sales/profits due to having to take time away from pre-festival preparations to deal with this lawsuit, the costs of bringing this action, (and) punitive damages in an amount to deter the (Chamber) from similar conduct in the future.”

The Court of Appeals review stated: “The trial court correctly concluded that the owners’ claim fails as a matter of law.” The owners gave no details about how the chamber interfered with their business expectancies. They also failed to show that they had any loss in sales.

Thomas J. Davis of Davis and Eppstein, P.C., of Tucson, represented the chamber. He said, “Records show they (the six business owners) made more money than the year before.” He said he subpoenaed the records for that information.

Court costs will be paid by the plaintiffs. Cullen said that attorney’s costs for the chamber are being covered by the chamber’s insurance company.