Orgain v. City of Salisbury, Civil No. L-02-2797.

• Citation: 521 F.Supp.2d 465
• Decision Date: 25 June 2007
• Docket Number: Civil No. L-02-2797.
• Parties: Robert and Rebecca ORGAIN, et al. v. CITY OF SALISBURY, et al.
• Court: U.S. District Court — District of Maryland

521 F.Supp.2d 465

Robert and Rebecca ORGAIN, et al. v. CITY OF SALISBURY, et al.

Civil No. L-02-2797.

United States District Court, D. Maryland.

June 25, 2007.

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Carolyn Elefant, Law Offices of Carolyn Elefant, Washington, DC, for Robert and Rebecca Orgain and M31 Andromeda Entertainment, LLC.

Daniel Karp, Victoria M. Shearer, Karpinski Colaresi and Karp PA, Baltimore, MD, William Robinson Hall, Salisbury, MD, for City of Salisbury, Chief of Police Allan J. Webster and Various Other Unidentified Police Officers in their Individual Capacities, Wicomico County, Maryland a Maryland Corporate Body, Board Member Leo McNeil in their Individual Capacities, Board Member W.C. Holloway in their Individual Capacities and Shirley C. Gray Board Member in their Individual Capacities.

MEMORANDUM

BENSON EVERETT LEGG, Chief Judge.

Pending in this civil rights case are the Motions for Summary Judgment filed by Defendants.¹ The parties have fully briefed the issues, and the Court held a three-hour oral argument on December 16, 2006. For the reasons set forth below, the Court will, by separate Order, (i) GRANT Defendants' motions, (ii) ENTER JUDGMENT in their favor, and (iii) DIRECT the Clerk to CLOSE the case.

I. Introduction

In this civil rights suit, the owners of a now defunct nightclub located in Salisbury, Maryland contend that city and county officials drove them out of business. Plaintiffs allege that Defendants subjected the club to heightened police scrutiny and suspended their liquor license because they hosted "hip hop" nights that attracted a largely black clientele. In order to withstand summary judgment, the owners were required to produce evidence from which a fair-minded jury could find that the laws were selectively enforced against them. This they have not done.

II. Background

A. Facts

In March 2000, Plaintiffs Robert and Rebecca Orgain, who are white, borrowed $750,000 to build a nightclub, Andromeda, in Salisbury.² Andromeda was a large club, with 13,000 square feet of floor space and an occupancy limit of 750 persons. According to the club's business model, Andromeda needed to attract 308 persons a night (each spending $20) three nights a week in order to break even. Because the club did not have a restaurant, it relied on liquor sales for most of its revenue.³

The Orgains obtained the necessary permits, including a liquor license, and opened for business on October 25, 2000. The club was located in a section of Salisbury zoned light industrial, and was open at least four nights a week. The club offered both live bands and Disc Jockeys ("DJs"). Each night had a different theme. Initially, Wednesday, which was Ladies Night/ Hip Hop Night, proved to be the most popular and drew a crowd that was predominantly, though not exclusively, black.

Andromeda soon became a trouble spot for the Salisbury Police Department ("SPD," or "the Department"). By August 10, 2001, the police had received fifty-eight Calls for Service ("CFS," or simply "Calls") concerning incidents at or near the club.⁴ Some of the Calls were for petty offenses, such as vandalism. Many of the Calls, however, were more serious and involved assaults, thefts, disorderly conduct, and reports of gunshots.

On August 9, 2001, police took a report concerning a fight and a gunshot in Andromeda's parking lot.⁵ This incident, together with the heavy CFS traffic, prompted Salisbury Police Chief Allan J. Webster to write the Orgains a warning letter. Noting that twenty-six of the Calls were "violence related," Chief Webster threatened that he would "explore violations of the nuisance law" if the Orgains did not maintain better order at the club.

Wicomico County's alcohol-serving establishments are policed by the county's Alcohol Task Force. On November 9, 2001, plain-clothed Task Force members visited Andromeda for a spot check.⁶ Officer Jeff Maslona spotted several underage women dancing on a stage.⁷ When the women spotted Maslona, they ducked out a back door.

The officers eventually located the five women, all aged 20, who admitted that they had used three false New Jersey driver's licenses to enter the club.⁸ When Maslona checked the IDs, he saw that the licenses had expired, were issued to other persons, or were, in his words, "obviously fake." The women agreed to provide breath samples. Their BACs ranged from .04 to .10.⁹

The officers cited the Orgains for five counts of allowing an under-aged person to be on the premises, and five counts of serving alcohol to an under-aged person.¹⁰ The Wicomico County Board of License Commissioners ("the Board"), which oversees the County's alcohol-serving establishments, issued a show cause order that summoned the Orgains to appear for a hearing on the charges.¹¹

The hearing was held on December 13, 2001. As is their custom, all three members of the Board sat as a panel. Officer Maslona testified concerning the spot check, his discovery of the women, and his subsequent investigation.

The five underage women then testified.¹² Three of them stated that an Andromeda doorman had "chuckled" over the amateurish quality of the identifications. One woman stated that she went to Andromeda because she had heard that it was "easy for girls to get into the club even if you are underage." Another woman testified that she had consumed "five to six shots and three or four or maybe five beers" during an hour and a half at the club.

The Orgains, who were represented by counsel, then testified.¹³ Robert Orgain stated that it was the club's policy to deny access to anyone who failed to present a valid identification.¹⁴ He described the club's efforts to enforce that policy.¹⁵ He explained that checking IDs is problematic because of the high quality of the phonies, and that he had already scheduled an additional ID training session for his security staff. Rebecca Orgain testified that the club had recently hired a security chief whose "forte" was uncovering false identifications, but who, unfortunately, was not on duty the night of the incident.

After the evidence had been taken, the Board opened the floor for comment. Chairman McNeil, who is black, acknowledged that detecting fake IDs was often difficult, but that he expected a club's doorman to look at expiration dates. Greg Rickards, the Board's Chief Inspector, stated that in his view it was the doorman's responsibility to check questionable licenses against the published guide to state IDs. At no point in the hearing was hip-hop or the racial composition of Andromeda's clientele mentioned.

The Board adjourned without making a decision. On December 17, 2001, the Board found the Orgains guilty of ten violations of Maryland's liquor laws, fined them $5,000, and suspended their license for five days. Under Maryland law, the Orgains were entitled to appeal the Board's decision to the Circuit Court for Wicomico County.¹⁶ The Orgains noted an appeal, but withdrew it on January 15, 2002. The club served its suspension the week of January 19, 2002, and then reopened for business.

From Andromeda's opening to the January suspension, the club lost money.¹⁷ To rectify the situation and to capitalize on the popularity of Wednesday Ladies Night / Hip Hop Night, the Orgains hired "an experienced African American promoter" and added a second night of hip hop on Saturdays.¹⁸ Saturday Hip Hop nights soon became as, if not more, popular than Wednesdays. Despite the new offering, however, the club was still not attracting enough customers and continued to limp along financially.¹⁹

The disturbances at Andromeda continued. Between August 2001 and January 2002, the club generated an additional twenty-six CFS. Eleven were violence related, including reports of gunfire on January 2nd and January 10th. In response to the January 10th incident, Chief Webster wrote the Orgains a second letter advising that he intended to seek criminal sanctions against the club. He had the letter hand-delivered. Around the same date, Webster informed Salisbury's mayor, Barrie P. Tilghman, of his intent to seek charges against the club for maintaining a public nuisance. Also around the same time, Major Jeffrey Livingston, Salisbury's Assistant Police Chief, forwarded a list of Andromeda's CFS to the State's Attorney for Wicomico County. Criminal charges were never filed against the club or the Orgains, however.

On February 10, 2002, an Andromeda patron was robbed inside the club. On May 12, 2002, a patron was shot as he was leaving the club. On May 17th, in response to the shooting and other CFS, the Board issued the Orgains a second order to show cause why their liquor license should not be suspended or revoked.²⁰ The ()mains received the notice ten days in advance of the hearing. See Md.Code Ann. Art. 2B § 10-403(a) (West 2007).

The day before the hearing, Rebecca Orgain contacted Chairman McNeil and requested a postponement because their attorney would not be available until later in the month. McNeil denied the request. The hearing convened on June 4, 2002. Ms. Orgain renewed her request for a continuance, which McNeil again denied. He assured the Orgains, however, that they would have a full opportunity to present their side of the case. He also stated that the Board had not come "with any preconceived notions, no minds have been made up."²¹

Major Livingston, whom the Board had summoned as a witness, testified first. He stated that he was presenting the "police side of the case," meaning the Department's view that repeated disturbances at the club presented a serious law enforcement problem. He testified that from January 1, 2001 to May 2002, the Department hid received eighty-two CFS for Andromeda "that we felt were of a violent nature or had the potential for some type of violence."²² He explained that he had "extracted" forty-four calls from this category, each of which he summarized for the Board.

Livingston...