S. Allegheny Pittsburgh Rest. Enters., LLC v. City of Pittsburgh, Civil Action No. 16-1393

• Decision Date: 16 September 2016
• 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, AND MARK MARIANI, 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 OF PERMITS, LICENSESAND INSPECTIONS, AND MARK MARIANI, Defendants.

Civil Action No. 16-1393

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

September 16, 2016

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This is a § 1983 action related to the City of Pittsburgh Department of Permits, Licenses and Inspections' ("PLI") issuance of a "Stop Work Order / Cease Operations" notice ("Order") to Plaintiff South Allegheny Pittsburgh Restaurant Enterprises, LLC ("Plaintiff") at its East Carson Street establishment Mother Fletcher's at approximately 12:30 a.m. on September 4, 2016. (Docket No. 1). Mother Fletcher's "Southside Party Joint" was billed by its proprietor as "the biggest and most out-of-control Under-21 party on this side of the United States," but was shut down by PLI at the conclusion of its grand opening because it was not operating as a restaurant as permitted under the City's Zoning Code—offering only a "chip buffet" and "soft drink bar" to its patrons. Presently before the Court is a Motion for Temporary Restraining Order/Preliminary Injunction that is opposed by Defendants, the City of Pittsburgh, (the "City") and PLI.¹ (DocketNos. 2, 3). The Court held a motion hearing on September 12, 2016 and oral argument on September 13, 2016.² (Docket No. 16). The parties then submitted supplemental briefs on September 14, 2016. (Docket Nos. 19, 20). After careful consideration of the parties' arguments and the evidence of record, and for the following reasons, Plaintiff's Motion [2] is denied.

II. FACTUAL BACKGROUND³

At the September 12, 2016 hearing, the Court accepted testimony from: Brandon Firman, President and owner of Plaintiff; Corey Layman, Zoning Administrator, PLI; City of Pittsburgh Councilman Bruce Kraus, Third Council District; City of Pittsburgh Bureau of Police Detective Brian Radocaj; Mark Mariani, Assistant Director of Operations, PLI; and, Maura Kennedy, Director of PLI. (Docket No. 16). The Court found all of the witnesses to be generally credible and truthful throughout their respective testimonies, with the exception that the repeated assertion by Firman and his counsel that Mother Fletcher's was operating as a restaurant was not established as a matter of law under the applicable definition of same under the City's Zoning Code. Numerous exhibits were also introduced into evidence. (See Pl. Exs. 1-4; Def. Exs. B-G, H).

The property in question at 2200 East Carson Street is located in a local neighborhood commercial business district on the City's South Side, on the corner of South 22^nd Street and East Carson Street. (See Def. Ex. B). As the Court commented at the hearing, it is well known that the South Side is a "happening place," with numerous bars and restaurants located along East Carson Street, and attracts large crowds of partiers on weekend evenings/early mornings.Councilman Kraus estimated that the area of East Carson Street stretching from Station Square to the South Side Works has a total occupancy of approximately 20,000 people (all of whom could be alcohol consumers). Detective Radojac confirmed that the South Side crowds are larger on nights when there is a big game in town, such as the Pitt-Penn State game of September 10, 2016. Naturally, disbursement of these establishments at closing time of 2:00 a.m. involves significant City resources including police, emergency medical and firefighters.

Councilman Kraus has fielded numerous complaints from constituents concerning bars and nightclubs operating on the South Side and regarding unruly behavior of individuals partaking in same. He has brought these types of concerns to Layman, a zoning administrator, on many occasions. The typical South Side weekend crowd results in numerous reports of criminal incidents occurring in the area, as was demonstrated through Detective Radocaj's testimony, during which he summarized the dispatch calls that the police department was required to respond to within the past six weeks in a 2-3 block radius around 2200 East Carson Street. Among these reported incidents included a fight, theft, an armed robbery, public intoxications, arrests for driving under the influence, and traffic violations. (See Def. Ex. I). PLI and the Pittsburgh Bureau of Police have engaged in compliance checks of many bars on the South Side. In this regard, Assistant Director Mariani explained that in the recent past, these types of compliance checks were routinely conducted on weekend evenings to ensure compliance with the City's Construction and Zoning Codes.

The property in question at 2200 East Carson Street is owned by the Kahlil family and has been for many years. (Def. Ex. B). The prior occupant of the property, Margaritaville, was deemed a nuisance bar and shut down by the City after a compliance check that was conductedmore than 3 years ago.⁴ Assistant Director Mariani was present on that occasion and explained that more than 50 officers were involved.

The Certificate of Occupancy for the property, issued on October 21, 1986, expressly states that the permitted occupancy of the property includes a "First floor restaurant (see B.A. #425 of 1984)." (Def. Ex. B). The reference to B.A. #425 of 1984 is to a decision by the Zoning Board of Adjustment dated November 21, 1984, wherein the Zoning Board held that the property was granted a special exemption to operate a first floor restaurant and bar with a condition that there be "no live entertainment involved in the business." (Def. Ex. B). Layman provided uncontested testimony that the exception granted in 1984 and limitations therein "run with the land" and remain in effect. He also explained that his review of the zoning file for the property indicates that no other changes to the zoning of the property have occurred since that decision was rendered over 20 years ago. Layman further testified that the lot size of the property was less than 2,400 square feet, making the area of the first floor of the building even less than that figure.

The City's comprehensive Zoning Code regulates the use of property in each designated zoning district. Under the Zoning Code, "[u]se means the purpose for which land or a building is arranged, designed or intended, or for which either land or a building is or may be occupied or maintained." City of Pittsburgh Zoning Code ("Zoning Code") at § 926.242. Further, "[p]rimary [u]se means the principal or predominant use of any lot or parcel." Id. at §926.184. Per Layman, the Zoning Code contains an extensive list of uses. Relevant here, "restaurant" and a few iterations thereof are specifically defined in the Zoning Code, as follows:

Restaurant means an establishment other than "Fast-Food Restaurant" where the principal business is the sale of food in a ready to consume state, where there is no service to a customer in anautomobile, and where the design or principal methods of operation consist of one (1) or more of the following:

1. A sit-down restaurant where customers are normally provided with an individual menu, are generally served food in non-disposable containers by a restaurant employee at the same table or counter at which the food and beverage items are consumed or

2. A cafeteria or cafeteria-type operation where food and beverage generally are served in non-disposable containers and are consumed within the restaurant;

But not including Social Club.

...

Restaurant (Limited) means a Restaurant with a gross floor area of less than 2,400 square feet and that does not have live entertainment or dancing.

...

Restaurant (General) means a Restaurant with a gross floor area of 2,400 square feet or more or one that has live entertainment or dancing.

Zoning Code at § 911.02 "Use Table" (Ord. 23/November 23, 2005). In a local neighborhood commercial district such as the South Side, a use within the definition of "Restaurant (Limited)," is "permitted by right." Id. This means that a business can operate as a restaurant with "a gross floor area of less than 2,400 square feet and that does not have live entertainment or dancing" without first seeking zoning approval from the Zoning Board of Adjustment. Id. However, the Zoning Code provides that a "Restaurant (General)" requires a "special exemption" prior to running a restaurant "with a gross floor area of 2,400 square feet or more or one that has live entertainment or dancing."⁵ Zoning Code at § 911.02. To this end, the Zoning Code states that a "Restaurant (General)" use "shall be allowed in the respective district only if reviewed and approved by the Zoning Board of Adjustment in accordance with the Special Exception review procedures of Sec.922.07." Zoning Code at § 911.01.D. The Zoning Code provides detailed procedures for a property owner or his/her agent to obtain a variance, special exemption, or conditional use for a particular property. See e.g., id. at §§ 922.06, 922.07, 922.09. These provisions all generally require an application to be filed with the Zoning Board of Adjustment, provide an opportunity for a hearing, and set forth procedures whereby a property owner (and others) may appeal an adverse decision. See id. Plaintiff admits that neither Mother Fletcher's nor its operator Firman took any of these actions prior to its grand opening on September 3, 2016.

With that said, Firman did take several significant steps prior to opening Mother Fletcher's. By way of background, Firman is a high school graduate who completed some college courses at CCAC although he did not earn a degree. He has worked as a DJ for other under-21 clubs in the area, including Club Zoo in the Strip District which is owned by his father. He also has an uncle and cousin in the club business.⁶ Firman incorporated his business; he named it South Allegheny Restaurant Enterprises, LLC, although he lives in the east suburbs and attended Fox Chapel High School in the North...