S. Allegheny Pittsburgh Rest. Enters., LLC v. City of Pittsburgh

• Decision Date: 17 January 2019
• Docket Number: Civil Action No. 16-1393
• Parties: SOUTH ALLEGHENY PITTSBURGH RESTAURANT ENTERPRISES, LLC, Plaintiff, v. CITY OF PITTSBURGH, CITY OF PITTSBURGH DEPARTMENT OF PERMITS, LICENSES AND INSPECTIONS, MARK MARIANI, and ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

SOUTH ALLEGHENY PITTSBURGH RESTAURANT ENTERPRISES, LLC, Plaintiff, v. CITY OF PITTSBURGH, CITY OF PITTSBURGH DEPARTMENT OFPERMITS, LICENSES AND INSPECTIONS, MARK MARIANI, and ZONING BOARDOF ADJUSTMENT OF THE CITY OF PITTSBURGH, Defendants.

Civil Action No. 16-1393

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

January 17, 2019

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This matter involving Plaintiff South Allegheny Pittsburgh Restaurant Enterprise's, ("Plaintiff"), challenge to a Stop Work Order issued by the City of Pittsburgh resulting in the closure of "Mother Fletcher's Under 21 Party Joint" on the South Side returns to the Court on a motion to dismiss filed by Defendants the City of Pittsburgh, ("City"), City of Pittsburgh Department of Permits, Licenses and Inspections, ("DPLI"), Mark Mariani, ("Mariani'), and the Zoning Board of Adjustment of the City of Pittsburgh, ("Zoning Board"), (collectively, "Defendants"), and Plaintiff's opposition thereto. (Docket Nos. 68-70). The instant Motion has been fully briefed and neither party requested oral argument, making it ripe for disposition. (Id.). After careful consideration of the parties' positions, and for the following reasons, Defendants' motion [68] is granted.

II. BACKGROUND

As the Court writes primarily for the parties and the facts of this matter are set forth in its prior Memorandum Opinion, the Court focuses on those factual allegations relevant to the disposition of the pending motion. (Docket No. 22); South Allegheny Rest. Enterprises, LLC ("SAPRE") v. City of Pittsburgh, 2016 WL 4962926, at *1 (W.D. Pa. Sept. 16, 2016).

Plaintiff leased the former Margaritaville¹ space at 2200 East Carson Street in 2016 and its owner Brandon Firman spent significant funds during the summer months rehabilitating the interior to transform it into Mother Fletcher's. (Docket No. 67 at ¶¶ 12, 17, 46) The prospective business catered to individuals under the age of 21, would not serve alcohol and would have a dance floor where patrons could dance to recorded music. (Id. at ¶¶ 14-16). Plaintiff received various permits and approvals from the DPLI to complete the construction and renovation work. (Id. at ¶¶ 46-54). Plaintiff did not obtain a new certificate of occupancy for the property as to the specific use for the property as Mother Fletcher's. (Id. at ¶ 23). Rather, Plaintiff relied upon the existing certificate of occupancy for the property issued on October 21, 1986 authorizing a "first floor restaurant" under a special exemption granted by the Zoning Board in 1984 authorizing the use of the first floor and basement of the property as a bar and restaurant with a condition of no live entertainment. (Id. at ¶¶ 23-27; Docket Nos. 67-1, Ex. "A"; 67-2, Ex. "B"). Plaintiff maintains that the special exemption "runs with the land" and remains effective. (Docket No. 67 at ¶ 27).

Plaintiff advertised the opening of Mother Fletcher's on social media and the business had its grand opening on Friday, September 3, 2016 at 9:00 p.m. (Docket No. 67 at ¶ 55). Mother Fletcher's had 70 patrons that evening, all of whom were "respectful, peaceful, and not causing any disturbances." (Id. at ¶¶ 56-57). The number of patrons was significantly below the occupancy limit for the property throughout the evening. (Id. at ¶ 68). Plaintiff avers that therewere no incidents of any kind which would have necessitated law enforcement to respond to the property. (Id.).

Plaintiff alleges that Mariani and City of Pittsburgh Bureau of Police Sargent Eric Baker parked across the street from Mother Fletcher's at around 12:15 a.m. on September 4, 2016. (Docket No. 67 at ¶ 58). However, they did not witness any "emergency conditions such as fights, theft, armed robberies, public intoxication, drunk driving, traffic violation or unruly behavior." (Id. at ¶¶ 59, 93). They briefly left their post and drove a few blocks away to the Zone 3 police station near 18^th Street where they met with a larger group of officers. (Id. at ¶ 60). Mariani and Sgt. Baker returned approximately 20 minutes later along with a total of 28 officers and other individuals in four separate vehicles. (Id. at ¶ 63). They were not responding to any specific complaints relating to noise at Mother Fletcher's nor the conduct of its patrons. (Id. at ¶ 62).

Plaintiff contends that Mariani, the police officers and other DPLI officials "stormed" the restaurant at 12:35 a.m. on September 4, 2016 without notice or probable cause and did not provide Plaintiff the opportunity to stop them. (Docket No. 67 at ¶ 63). They further aver that at the time of this entry, all of Mother Fletcher's patrons had left for the evening; hence, they did not witness any unruly behavior and observed a "docile" scene. (Id. at ¶¶ 67, 92). There were also no violations of the fire code, building code or other safety violations at Mother Fletcher's which were observed by Mariani and the officers. (Id. at ¶ 89).

According to Plaintiff, Mariani initially refused Firman's requests for an explanation as to why they had entered the property. (Docket No. 67 at ¶ 69). Mariani later explained that: Mother Fletcher's was not operating as a restaurant; he was shutting down the business; and, Firman could take up his complaints with the City. (Id. at ¶¶ 71-74). Mariani admitted that hedid not know the specific definition of restaurant under the City's zoning code but shut down Mother Fletcher's because it "did not look like an Eat N Park." (Id. at ¶¶ 74-76). Mariani issued a Stop Work/Cease Operations Order to the business and it has remained closed since that time. (Id. at ¶¶ 18-19; 94). Plaintiff maintains that the Stop Work Order was issued in violation of the City's Zoning Code for several reasons: there was no emergency situation justifying the immediate closure of the business; DPLI and the City did not certify to the Zoning Hearing Board that an emergency existed; and, a stay of the enforcement action should have issued which would have permitted Mother Fletcher's to operate while an appeal was pending. (Id. at ¶¶ 127-152).

Plaintiff further alleges that Mother Fletcher's was treated differently than other businesses within the City limits which also operate as restaurants/bars but do not serve food. (Docket No. 67 at ¶¶ 174-180). To this end, Plaintiff points to Howl at the Moon located on 7^th Street, downtown and Jimmy D's located at 1707 East Carson Street. (Id. at ¶¶ 32-43). Plaintiff contends that the City issued certificates of occupancy for these businesses indicating that each were authorized to use the properties as a restaurant but they do not serve food or have a food menu. (Docket Nos. 67-3, Ex. "C"; 67-4, Ex. ("D"). Rather, both Howl at the Moon and Jimmy D's are bars that use advertisements promoting a party atmosphere and the sale of alcohol. Despite such advertisements and the lack of food service, the City has not initiated any enforcement action against Howl at the Moon or Jimmy D's, as it did against Mother Fletcher's. (Docket No. 67 at ¶¶ 32-43).

As the parties are aware, the Court conducted an evidentiary hearing in September of 2016 on Plaintiff's motions for temporary restraining order and preliminary injunction. (Docket Nos. 16; 17). The Court issued a Memorandum Opinion on September 16, 2016 denyingPlaintiff's motions and dismissing its § 1983 procedural and substantive due process claims, without prejudice, because Plaintiff filed this federal lawsuit prior to pursuing necessary proceedings before the Zoning Board. (Docket No. 22).

A few weeks after this Court's ruling, on September 30, 2016, Plaintiff appealed the Stop Work Order to the Zoning Board. (Docket No. 28 at ¶¶ 98-101). Plaintiff claims that there is no mechanism for an appeal to be expedited before the Zoning Board. (Id. at ¶ 100). After a stipulation was reached, Plaintiff filed an Amended Complaint with this Court on November 17, 2016. (Docket Nos. 27; 28). In its Amended Complaint, Plaintiff raised five claims under 42 U.S.C. § 1983, i.e., procedural due process; substantive due process; equal protection; excessive fines clause; and an unreasonable search and seizure claim. (Docket No. 28). Plaintiff specifically challenged the Zoning Board's act of scheduling the hearing on February 2, 2017 as a violation of its procedural due process rights. (Id. at ¶¶ 99-100). Despite this contention, Plaintiff agreed to a stipulation and two extensions of time for Defendants to respond to its Amended Complaint beyond the date of the hearing before the Zoning Board. (Docket Nos. 30-31; 36-39). Defendants adhered to that deadline and moved to dismiss Plaintiff's Amended Complaint on February 17, 2017. (Docket Nos. 42-43). The Court then granted numerous consented-to extensions of time for the parties to brief Defendants' motion. (See Docket Nos. 46; 49; 52). After considering all of the parties' submissions, (see Docket Nos. 47; 50; 53), the Court entered an Order on May 17, 2017 staying this federal case because the zoning dispute had not yet been resolved by the Zoning Board, (Docket No. 54).

The Zoning Board issued a letter to Plaintiff on May 25, 2017 noting that the zoning appeal was "deemed denied" as it had not issued a decision within 45 days and Plaintiff refused a request by the Zoning Board to grant it additional time to complete its decision. (Docket No.55-1). Plaintiff appealed the deemed denial to the Court of Common Pleas but the matter was remanded to the Zoning Board with instructions to prepare findings of fact and conclusions of law supporting its decision. (Docket No. 67 at ¶¶ 116-18). The Zoning Board issued its decision on September 28, 2017, ultimately concluding that "[b]ased on the evidence and testimony presented at the hearing, the Board concludes that [DPLI's] issuance of the Cease Operations Order for the unpermitted use of the Subject Property was appropriate." (Docket No. 56-1 at 8). The Zoning Board continued that "[DPLI]...