Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC STEIN, Plaintiff v. CITY OF PHILADELPHIA, et al. Defendants.

: : : : : : : : :

Civil Action No. 13-4644

ORDER NOW, this _______ day of ____________, 2013, upon consideration of Defendant City of Philadelphias Motion to Dismiss for Failure to State a Claim and any response thereto, IT IS ORDERED that Defendants Motion is GRANTED. Plaintiffs claims against the City of Philadelphia is dismissed with prejudice.

BY THE COURT:

__________________________ PETRESE B. TUCKER, C.J.

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC STEIN, Plaintiff v. CITY OF PHILADELPHIA, et al. Defendants.

: : : : : : : : :

Civil Action No. 13-4644

DEFENDANT CITY OF PHILADELPHIAS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant City of Philadelphia files this Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6) seeking that it be dismissed from this lawsuit. For the reasons set forth in the attached Memorandum of Law, which Defendant incorporates by reference, Defendant respectfully requests that this Honorable Court enter judgment in its favor and dismiss Plaintiffs claims against it with prejudice.

Respectfully Submitted, Date: September 6, 2013 s/ Christopher H. Rider Christopher H. Rider, Esquire Assistant City Solicitor Pa. Attorney ID No. 307265 City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 (215) 683-5444 christopher.rider@phila.gov

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 3 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC STEIN, Plaintiff v. CITY OF PHILADELPHIA, et al. Defendants.

: : : : : : : : :

Civil Action No. 13-4644

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT CITY OF PHILADELPHIAS MOTION TO DISMISS Defendant City of Philadelphia files this Memorandum of Law in Support of its Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6).

I.

INTRODUCTION AND FACTUAL SUMMARY Plaintiff is a restaurant and bar operating at 624-628 N. Front St., Philadelphia, PA.

Compl. 13. Plaintiff is located in the Northern Liberties section of Philadelphia. Id. Plaintiff obtained a use permit for a restaurant and bar on the first and second floors of the building, and accessory live entertainment with D.J. dancing and stage shows also on the first and second floors. Id. 20; see also Compl., Ex. A. The use permit obtained by Plaintiff requires that Plaintiff comply with all other provisions of the Philadelphia Code and City Ordinances, whether or not such provisions or ordinances are specified in the use permit. Compl., Ex. A. The Philadelphia Code requires that establishments seating in excess of fifty patrons which provide social entertainment (defined as dancing, DJs, live music or other similar activities) at one or more times during the year obtain a special assembly license. Philadelphia Code 9-703(1)-

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 4 of 10

(2); see also Compl., Ex. E. Plaintiff is an establishment which is required to obtain a special assembly license. Compl. 32; Philadelphia Code 9-703. The Philadelphia Code 9-703 specifically requires that the City take into consideration community concerns prior to issuing special assembly licenses. Philadelphia Code 9701(2)(b)(4)(c). Plaintiffs Complaint is replete with allegations that the Northern Liberties Neighborhood Association and the Northern Liberties community as a whole oppose Plaintiff providing social entertainment. See e.g. Compl. 36-40. As a result of this opposition, Plaintiff was denied a special assembly license. Id. 37. Plaintiff now alleges that the City of Philadelphias actions in refusing to issue a special assembly license violated its substantive due process rights,1 protected by the Fourteenth Amendment. Id. 50-64. To state a substantive due process claim, Plaintiff must allege facts showing that (1) the government has deprived the owner of a fundamental interest under the Fourteenth Amendment; and (2) the governments action shocks the conscience. Reno v. Flores, 507 U.S. 292, 301-02 (1993); Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. 251, 258 (3d Cir. 2010); Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 190 (3d Cir. 2009); Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). Plaintiff has failed to allege facts sufficient to establish that the City of Philadelphias actions were sufficient to shock the conscience; therefore, Plaintiffs claim against the City of Philadelphia must be dismissed. Additionally, Plaintiffs tortious interference with business claim, a species of intentional tort, is barred by the Political Subdivision Tort Claims Act. See Panas v. City of Philadelphia, 871 F. Supp. 2d 370, 376 (E.D. Pa. May 14, 2012) (citing DeBellis v. Kulp, 166 F. Supp. 2d 255, 277-78 (E.D. Pa. Sept. 10, 2001))
1

Presumably Plaintiff argues that its substantive due process rights were violated, rather than its procedural due process rights, as Plaintiff received a review of the original license denial by the Board of License and Inspection review, and an opportunity to appeal that review to the Court of Common Pleas. Compl. Ex. E.

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 5 of 10

II.

STANDARD OF REVIEW To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion to dismiss, a court must determine whether the complaint pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are merely consistent with a defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. at 678. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. Further, only a

complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679.

III.

ARGUMENT A. PLAINTIFFS SUBSTANTIVE DUE PROCESS CLAIM FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF HAS FAILED TO ALLEGE THAT THE CITY OF PHILADELPHIA ENGAGED IN CONSCIOUSSHOCKING BEHAVIOR IN DENYING PLAINTIFF A SPECIAL ASSEMBLY LICENSE To state a viable substantive due process claim, Plaintiff must allege facts showing that

(1) the government has deprived the owner of an interest fundamental under the Fourteenth Amendment; and (2) the governments action shocks the conscience. Flores, 507 U.S. at 30102; Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. at 258; Chambers, 587 F.3d at 190; Chainey, 523 F.3d at 219.

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 6 of 10

The use and enjoyment of real property is a fundamental right protected under the Fourteenth Amendment substantive due process clause. See DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995); see also Independent Enterprises, Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1179 n.12 (3d Cir. 1997). For the purposes of this motion only, Defendant City of Philadelphia concedes that the denial of a special assembly license implicates this fundamental right. However, even though Plaintiff has arguably alleged the violation of a right protected by the Fourteenth Amendment substantive due process clause, to prevail on its claim, Plaintiff must also show that the City of Philadelphias denial of a special assembly license in these circumstances shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998); Benn v. Universal Health Sys., 371 F.3d 165, 174 (3d Cir. 2004) (In a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.) Whether government conduct shocks the conscience is a matter of law for the courts to decide. Id. In the context of land-use decisions, governmental conduct can be said to shock the contemporary conscience when it is not rationally related to a legitimate governmental purpose. M&M Stone Co. v. Pennsylvania, 2008 U.S. Dist. LEXIS 76050, at *68-69 (E.D. Pa. Sept. 29, 2008) (citing Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 595 (3d. Cir. 1995). Defendant City of Philadelphias actions here are clearly related to a legitimate governmental purpose balancing community stakeholder interests in the development of that community. Philadelphia Code 9-703 specifically requires that the City take into consideration community

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 7 of 10

concerns prior to issuing special assembly licenses.2 Philadelphia Code 9-701(2)(b)(4)(c). As Plaintiff has pointed out at length in its Complaint, the Northern Liberties Neighborhood Association, and other Northern Liberties community members are vehemently opposed to Plaintiff providing social entertainment. See e.g. Compl. 36-40. Taking into account community interests such as these is an essential function of a democratic government. Moreover, Plaintiff appears to suggest that the Citys denial of a special assembly license after Plaintiff invested extensive amounts of money to remodel Plaintiffs premises contributes to the constitutional arbitrariness of the denial. This suggestion ignores the fact that Plaintiff was on notice from the date its original use permit was granted that it would have to comply with all Philadelphia Code provisions, including the provision requiring a special assembly license. See Compl., Ex. A. That Plaintiff failed to obtain the necessary requirements for a special assembly license after being on notice that it would be required to obtain such a license does not transform that denial from an ordinary democratic result into an arbitrary and capricious constitutional violation. Therefore, because the Citys denial of a special assembly license was made in accordance with the provisions of the statute governing special assembly licenses, the Citys denial of that license cannot be said to be arbitrary in the constitutional sense such that it shocks the contemporary conscience. M&M Stone Co., 2008 U.S. Dist. LEXIS 76050, at *69. Accordingly, Plaintiffs substantive due process claim against the City of Philadelphia must be dismissed.
2

Although Plaintiff states that it has complied with all statutory requirements necessary to obtain annual renewal of a special assembly license, id. 64, this statement is a legal conclusion, and thus this Court is not required to treat it as true for the purposes of this motion. Iqbal, 556 U.S. at 678. It is clearly apparent Plaintiff has not complied with all statutory requirements necessary to obtain a special assembly license, as the community stakeholders and the Philadelphia Police Department are opposed to the granting of such a license. See Philadelphia Code 9701(2)(b)(4)(c).

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 8 of 10

B. PLAINTIFFS TORTIOUS INTERFERENCE WITH BUSINESS CLAIM AGAINST THE CITY OF PHILADELPHIA IS BARRED BY THE POLITICAL SUBDIVISION TORT CLAIMS ACT In addition to constitutional claims, Plaintiff also alleges that the City of Philadelphia is liable for engaging in tortious interference with business. Compl. 232-234. Defendant City of Philadelphia is unaware of any claim for tortious interference with business under Pennsylvania law. Pennsylvania law does, however, support claims for intentional tortious interference with prospective or existing contractual relations. Phillips v. Selig, 959 A.2d 420, 428-29 (Pa. Super. 2008)(citing Restatement (Second) of Torts 766 and 766B). These claims are intentional torts. Id. The tort liability of the City of Philadelphia is governed by the Political Subdivision Tort Claims Act. The Tort Claims Act provides immunity for the City of Philadelphia from intentional torts. Panas v. City of Philadelphia, 871 F. Supp. 2d 370, 376 (E.D. Pa. May 14, 2012) (citing DeBellis v. Kulp, 166 F. Supp. 2d 255, 277-78 (E.D. Pa. Sept. 10, 2001)). Therefore, summary judgment should be granted for the City of Philadelphia as to Plaintiffs tortious interference with business claim.

VI.

CONCLUSION Defendant, City of Philadelphia, respectfully requests that this Honorable Court grant this

Motion and dismiss Plaintiffs claims against it with prejudice.

Respectfully Submitted, Date: September 6, 2013 s/ Christopher H. Rider Christopher H. Rider, Esquire Assistant City Solicitor Pa. Attorney ID No. 307265 City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 9 of 10

(215) 683-5444 christopher.rider@phila.gov

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 10 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC STEIN, Plaintiff v. CITY OF PHILADELPHIA, et al. Defendants.

: : : : : : : : :

Civil Action No. 13-4644

CERTIFICATE OF SERVICE I hereby certify that on the date below, the foregoing Defendants Motion to Dismiss and Memorandum of Law has been filed on ECF and is available for viewing and downloading.

Date: September 6, 2013

s/ Christopher H. Rider Christopher H. Rider, Esquire Assistant City Solicitor Pa. Attorney ID No. 307265 City of Philadelphia Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 (215) 683-5444 christopher.rider@phila.gov