Tower Props. LLC v. Vill. of Highland Falls & Patrick Flynn
| Decision Date | 06 July 2015 |
| Docket Number | 14-cv-04502 (NSR) |
| Parties | TOWER PROPERTIES LLC, d/b/a NICOLES a/k/a NICOLES CATERING HALL, Plaintiff, v. VILLAGE OF HIGHLAND FALLS and PATRICK FLYNN, individually and as Mayor of the Village of Highland Falls, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Tower Properties LLC ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 1982 and 1983 against Defendants Village of Highland Falls (the "Village") and Mayor Patrick Flynn (the "Mayor"), individually and in his official capacity, asserting violations of its First and Fourteenth Amendment rights, as well as its rights to make and enforce contracts, and to purchase, lease, sell, hold and convey real and personal property. Before the Court are Defendants' motions to dismiss the Second Amended Complaint ("SAC") and to disqualify Plaintiff's counsel. For the following reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Defendants' motion to disqualify counsel is DENIED.
The following facts are taken from the SAC unless otherwise noted, and are accepted as true for the purposes of this motion.
Plaintiff, a limited liability company ("LLC") organized under the laws of the State of New York, operated Nicoles catering hall ("Nicoles") located in Highland Falls, New York. At the time Plaintiff filed its SAC, Plaintiff had been operating in Highland Falls for approximately16 months. Prior to Plaintiff operating Nicoles, another unrelated entity operated a catering hall at the same location for more than ten years. Nicoles' clientele and its employees were predominately African-American and other minorities, and most of its events - weddings, birthdays, and other private parties - catered to African-Americans.
Plaintiff alleges that the Village and the Mayor "intentionally embarked on a continuous policy and practice . . . to harass and shut down Nicoles because of the race of those who c[a]me to Nicoles." (SAC ¶ 1.) Plaintiff's specific allegations are set forth in greater detail below. As of December 31, 2014, Nicoles dismissed all of its employees and is no longer doing business. (See January 12, 2015 Letter of Jeff Feigelson, Docket No. 22.)
The SAC contains a number of statements made by the Mayor that purportedly evidence the existence of a continuous policy or practice to discriminate against Nicoles because of the race of its customers. For instance, during a meeting of the Village's board ("Village Board") on March 17, 2014, the Mayor remarked that he was "concerned about the functions that are happening at Nicoles ... they're attracting a large group from Spring Valley and Newburgh." (SAC ¶ 11.) According to Plaintiff, this statement was merely code for "African-Americans," as those communities are largely populated by African-Americans. Further, the Mayor also met with a member of Nicoles' management, at which time he stated that Nicoles was attracting the "wrong crowd" and that he did not want "these types of people infecting Highland Falls." (SAC ¶ 13.) Similarly, Plaintiff alleges that these statements were also code for "African-Americans."
Plaintiff also alleges that Konstantinos Fatsis, the prosecutor for the Village, referred to Nicoles' African-American customers as "hood rats" in a Facebook post, reflecting the racial bias of some of the leaders of the Village. (SAC ¶ 15.)
Chapter 126 of the Village Code requires any person providing live entertainment to obtain a permit (the "Live Entertainment Statute" and "Live Entertainment Permit," respectively). According to Plaintiff, the Village has never issued a violation notice for failure to comply with the statute, despite the fact that many of the bars, restaurants, and catering halls in the Village, including the prior catering hall at Nicoles' location, do not have the required permit. Nevertheless, in early January 2014, rather than notifying Plaintiff of the need for a permit, the Mayor ordered the police to issue a violation notice to Nicoles. At 11:50 p.m. on January 11, 2014, the Village police issued the violation notice to Nicoles without any warning and ordered the catering hall to shut down for the evening. At that time, the penalty for violating the Live Entertainment Statue was a maximum fine of $250 and/or a term of imprisonment not longer than 15 days.
Other establishments in the Village, which Plaintiff terms the "White Establishments," purportedly have live entertainment at their facilities from time to time and cater predominately to a white clientele. At the time Nicoles received its violation notice, Plaintiff contends that none of the White Establishments had the required permit, but nevertheless did not receive a violation notice. Further, the Mayor, who runs a private party company providing deejays for events, has never obtained a permit to provide live entertainment despite performing at four events held in the Village between 2011 and 2014. The Mayor's deejay company has never received a notice for violating the Live Entertainment Statute.
On or about January 13, 2014, Plaintiff filed an application for a permit to provide live entertainment at Nicoles. According to Plaintiff, upon receipt of a permit application, the Village's Chief of Police shall initiate an investigation to determine if "the applicant is a personof good moral character," and if he finds such, shall approve the application. (SAC ¶ 35.) Plaintiff contends that neither the Village nor the Mayor have the power to refuse to issue the permit if the Chief of Police finds the applicant is of good moral character. (SAC ¶ 37.) On or about January 15, 2014, the Chief of Police concluded that Plaintiff was of good moral character and was entitled to receive the permit. Nevertheless, the Mayor requested that the Chief of Police not approve the permit "until I tell you to," (SAC ¶ 41), and Defendants refused to issue the permit until after the Village Board voted on the application during its next meeting, scheduled for January 22, 2014. Plaintiff further alleges that no applicant ever: (1) required a vote of the Village Board to approve its permit; (2) waited more than three days for approval of its permit; and (3) had the Mayor instruct the Chief of Police to delay approval of its permit. Plaintiff finally received its permit on January 24, 2014, following a Village Board vote at the January 22, 2014 meeting. The permit was, however, only valid for a period of six months, despite the Live Entertainment Statute requiring the issuance of a permit valid for one year. Plaintiff alleges that one or more of the White Establishments received permits for one year. As a result of the Mayor's decision to delay granting the permit, Plaintiff was forced to cancel two events planned for the weekend of January 17 and 18, 2014, resulting in lost profits and incurring ill will with its customers.
The Live Entertainment Statute was amended on or about March 17, 2014, increasing the monetary penalty for a violation from $250 to $1,000. Plaintiff alleges that the Mayor's purpose behind proposing the amendment was to put Nicoles out of business. During the Village Board meeting at which the amendment was proposed, the Mayor purportedly stated that he was "concerned about the functions that are happening at Nicoles ... they're attracting a large group from Spring Valley and Newburgh... this is why this [amendment of the Live EntertainmentStatute] has happened." (SAC ¶ 56) (alterations in original). At the same meeting, the Mayor also stated that he hoped to "fine [Nicoles] or put them in jail" if they held events. (SAC ¶ 57.)
The Live Entertainment Statute prohibits the playing of live music after 2 a.m. in the Village. Plaintiff was notified orally and in writing by the Defendants that if Plaintiff played music after 2 a.m., its Live Entertainment Permit would be revoked. Plaintiff alleges that Nicoles is the only establishment against which the curfew is being enforced and that the White Establishments often play music past 2 a.m.
Plaintiff alleges that as a result of instructions from the Mayor, the Village's police department opened a number of baseless investigations into Nicoles. For example, the Mayor filed one or more police reports related to Nicoles for "suspicious activity." (SAC ¶ 68.) When the police investigated, no suspicious activity was found. Plaintiff confronted the Mayor, who initially denied filing a report, but later admitted to doing so. Similarly, the Mayor instructed the police to investigate whether Nicoles was involved in illegal activity related to organized gangs in the surrounding areas. The police investigation found no evidence of illegal activity or any relationship to gangs. Finally, the Mayor conducted his own personal investigation of Nicoles - he was seen peering into Nicoles' windows outside of regular business hours and was known to keep close tabs on the business, including reviewing Nicoles' Facebook page for objectionable material. For instance, the Mayor notified Nicoles of certain purportedly objectionable pictures posted on its Facebook page, which consisted primarily of "young African American men smiling while holding up a champagne bottle or other bottle of liquor . . . ." (SAC ¶ 82.) Prior tothese investigations, Plaintiff asserts that there were never any police complaints or incidents involving Nicoles.
In addition, Plaintiff alleges that the Village police department had an unnecessarily large presence around Nicoles during many of its events. For instance, police cars would park in Nicoles' parking lot for up to an hour with their lights on. During Nicoles' New Year's Eve event, the Mayor purportedly ordered half of the Village's police cars to park outside Nicoles for the entire evening. According to Plaintiff, the...
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