Buck Foston's New Brunswick, LLC v. Cahill

BUCK FOSTON's NEW BRUNSWICK, LLC, LAWRENCE D. BLATTERFEIN,and FOSTON'S NEW BRUNSWICK REALTY, LLC, Plaintiffs, v. JAMES M. CAHILL, INDIVIDUALLY and as Mayor of the City of New Brunswick,New Jersey, ROBERT RECINE, Individuallyand as President of the New Brunswick City Council, KEVIN P. EGAN,Individually and as a member of the New Brunswick City Council,and CITY OF NEW BRUNSWICK, New Jersey, Defendants.

Civil Action No. 11-03731(FLW)(TJB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: September 27, 2013

NOT FOR PUBLICATION

OPINION

WOLFSON, United States District Judge:

Before the Court is a Motion for Summary Judgment by Defendants James M. Cahill ("Mayor Cahill"), Robert Recine ("Councilman Recine"), Kevin P. Egan ("Councilman Egan"), and the City of New Brunswick, New Jersey (collectively, "Defendants"), to dismiss the Federal and New Jersey State constitutional claims of Plaintiffs, Buck Foston's New Brunswick LLC ("Buck Foston's LLC"), Lawrence D. Blatterfein, and Foston's New Brunswick Realty LLC ("Foston's Realty") (collectively, "Plaintiffs"). Buck Foston's LLC, a New Jersey limited liability company, was formed by Mr. Blatterfein to own and operate a restaurant and sports bar to be named "Buck Foston's" in the City of New Brunswick. Plaintiffs claim that Defendants'alleged delay in the review and then denial of Buck Foston's LLC's application for a liquor license transfer: (1) were in retaliation for Plaintiffs' exercise of commercial speech protected by the First Amendment in naming their proposed restaurant "Buck Foston's"; (2) deprived Plaintiffs of the equal protection of law under the Fourteenth Amendment by treating the application differently than those of other similarly situated bars/restaurants; and (3) violated the corresponding provisions of the New Jersey State Constitution (Article I, Paragraph 6, and Article I, Paragraph 1, respectively).

Defendants have moved for summary judgment on all of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 56, arguing that (1) Plaintiffs fail to state a cognizable claim for violation of First Amendment rights because they produce no evidence of a causal link between Plaintiffs' protected conduct and the alleged retaliation by Defendants; (2) Plaintiffs fail to state a cognizable claim for violation of equal protection rights because they produce no evidence of similarly situated entities; and (3) the parallel state constitutional claims should be dismissed because Plaintiffs' federal claims are meritless. In addition, Defendants move to dismiss all claims brought by Foston's Realty and Mr. Blatterfein, individually, for lack of standing.

For the reasons that follow, this Court finds that (i) Mr. Blatterfein has standing; (ii) Foston's Realty does not have standing, and thus, it will be dismissed as a plaintiff; (iii) all claims against Defendant Egan are dismissed; (iv) summary judgment is granted in favor of Defendants Cahill, Recine, and City of New Brunswick as to Plaintiffs' federal and state equal protection claims as well as Plaintiffs' federal and state First Amendment retaliation claims arising from the conduct of the New Brunswick Police Department in allegedly delaying the consideration of Plaintiffs' liquor license transfer application; and (v) the Motion for SummaryJudgment by Defendants Cahill, Recine, and City of New Brunswick is denied as to Plaintiffs' First Amendment retaliation claim arising from the denial of Plaintiffs' liquor license transfer application.

I. Factual Background

The following facts are undisputed, unless otherwise noted:

Sometime in the spring of 2009, Mr. Blatterfein identified the site of a former Bennigan's restaurant at the intersection of Routes 1 and 18 in New Brunswick, New Jersey (the "Bennigan's Property") as a potential location for a new restaurant and sports bar to be named "Buck Foston's." [Statement of Material Facts, ¶ 7, hereinafter "Facts"]. In the fall of 2010, at a Rutgers football game, Mr. Blatterfein first discussed the idea of opening a bar/restaurant on the Bennigan's Property with Councilman Recine, the President of the New Brunswick City Council. [Transcript of Recine, T9:6-11, hereinafter "Recine Dep."]. During that conversation, Mr. Blatterfein indicated that as part of the "Buck Foston's" project he desired to change the layout of the Bennigan's Property to include fewer tables so as to accommodate a dance floor. Councilman Recine "expressed his displeasure" with the proposed change to the floor plan and indicated that he was not in favor of the Bennigan's Property being used as a bar. [Transcript of Blatterfein, T44:1-18, hereinafter "Blatterfein Dep."; Facts, ¶ 24].

Moving forward with his development plan, Mr. Blatterfein entered into a contract with JLS Corp, the current owners of the Bennigan's Property, to purchase the site for $1,500,000. [Contract for Sale of Real Estate dated January 31, 2011, hereinafter "Real Estate Contract"]. Prior to the closing of the Real Estate Contract, Mr. Blatterfein and Buck Foston's LLC, jointly,obtained a guaranteed Small Business Administration loan from Provident Bank in the amount of $2,634,800. [Provident Bank Loan Commitment dated January 13, 2011, hereinafter "Loan Commitment"]. The loan was to finance the purchase of the Bennigan's Property, development costs, and the purchase of a liquor license. Most importantly for the present action, the Real Estate Contract with JLS was made contingent upon Plaintiffs obtaining the loan from Provident Bank within 45 days of the execution of the contract. [Real Estate Contract, ¶¶ 5, 6, 22(a)]. The loan from Provident Bank was, in turn, made contingent upon Plaintiffs obtaining a liquor license transfer approved by the City, as explained below. [Loan Commitment, 3; Letter from Schiller & Pittenger, P.C. to Clarkin dated March 29, 2011, at 4].

In order to operate a bar within the City of New Brunswick, Plaintiffs were required to obtain a liquor license. Only a finite number of licenses are authorized, and at the time Mr. Blatterfein was planning the "Buck Foston's" project, all New Brunswick licenses had already been issued to other businesses. For the project to move forward, Mr. Blatterfein had to locate a liquor license owner willing to sell its license, and to file an application with the City to approve the transfer of the license's ownership ("person-to-person transfer") and of the place at which the license could be used ("place-to-place transfer"). Under the City of New Brunswick's form of government, the City Council is responsible for deciding liquor license transfer applications by majority vote. [Recine Dep., T24:8-10]. Mr. Blatterfein located a willing liquor license seller, Sapporo, another New Brunswick area business, and contracted to purchase its license for $160,000, with $16,000 to be paid as a down payment. [Agreement to Sell Alcoholic Beverage License dated January 8, 2011].

On April 5, 2011, Buck Foston's LLC filed an application with the City to transfer ownership of the Sapporo liquor license to Buck Foston's LLC and to transfer the license location to the Bennigan's Property. [Blatterfein Dep., T39:14-16; Clarkin Letter dated April 5, 2011, Re: Plenary Retail Distribution License]. Also during the first week of April, 2011, Mr. Blatterfein's attorney, James Clarkin, discussed the "Buck Foston's" project with Mayor Cahill, the Mayor of New Brunswick. During that conversation, Mayor Cahill expressed his approval of the project from the perspective of "zoning," "landing," and "economic development," because the otherwise vacant Bennigan's lot would be put to productive use. In the same conversation, however, the Mayor "expressed serious dissatisfaction" with the name "Buck Foston's." He indicated that he found the name offensive because of the play on letters. [Transcript of Clarkin, T16:2-8, hereinafter "Clarkin Dep."].

On April 20, 2011, Mr. Blatterfein personally met with Mayor Cahill to discuss the Buck Foston's project, at which time Mayor Cahill again voiced his displeasure, informing Mr. Blatterfein that he "didn't like" the name "Buck Foston's." [Transcript of Cahill, T85:9-14, hereinafter "Cahill Dep."]. The Mayor believed that the name was inappropriate for the venue, indicating that the play on letters was a "cheap stunt." [Cahill Dep., T79:10-16; Blatterfein Dep. T72:6-11, 16-17]. By Mr. Blatterfein's estimation, of the thirty or forty minute long meeting with the Mayor "what seemed like [fifteen] minutes" was devoted to discussion of the Mayor's disapproval of the name "Buck Foston's." [Blatterfein Dep., T72:6-11, 16-17]. Mr. Blatterfein left the meeting believing that Mayor Cahill opposed the project based solely upon its name.

On May 25, 2011, Glenn Patterson, New Brunswick's Director of Planning, Community and Economic Development, prepared a memorandum addressed to Mayor Cahill, identifying"[s]ome issues you should be aware of" concerning Buck Foston's LLC's liquor license transfer application ("the Application"). The Application, as filed on April 5, 2011, requested an increase in approved occupancy for the Bennigan's Property from 185 to 393 persons [May 25, 2011, Bennigan's/Buck Foston Memorandum at 2, hereinafter "May 25 Memorandum"]. This increase required a change of the internal layout of the former Bennigan's building to replace seating areas around tables with open spaces for standing only. [Proposed Renovation to Existing Building by James P. Kissane, Architect]. Patterson indicated that the changed floor plan did not create a violation of zoning standards, and that he had asked Mr. Blatterfein's attorney for an updated floor plan to assess whether there were any other changes that might result in a violation of city ordinances. [May 25 Memorandum]. Two weeks later, Kenneth Krug, the City official responsible for ensuring that liquor license applicants' facilities complied with the New Jersey Uniform Construction Code, reviewed the...