Cutler v. New Haven et al

Filing 71

MEMORANDUM OF DECISION granting 64 Motion for Summary Judgment. Signed by Judge Warren W. Eginton on 5/29/2013. (Ghilardi, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON CUTLER,
Plaintiff,
v.
CITY OF NEW HAVEN and JOHN
DeSTEFANO,
Defendants.

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3:11cv662 (WWE)

MEMORANDUM OF DECISION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
In this action, plaintiff Jason Cutler alleges that defendants City of New Haven
and John DeStefano violated the Equal Protection Clause of the United States
Constitution and 42 U.S.C. § 1983.
Defendants filed a motion for summary judgment. For the following reasons, the
motion for summary judgment will be granted.
BACKGROUND
The parties have filed statements of facts with supporting exhibits along with the
pleadings that reflect the following factual background.
Plaintiff is the owner of two bars –– Center Street Lounge and Club Pulse ––
located in downtown New Haven, Connecticut.
Defendant DeStefano is the Mayor of the City of New Haven.
Plaintiff alleges that defendants have targeted him and his businesses for
disparate treatment and selective enforcement of the laws relating to the operation of
bars in the City of New Haven.
On May 23, 2010, plaintiff drove the wrong day down a one way street. Officer
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T. Robinson of the New Haven Police Department stopped and ticketed plaintiff.
On March 4, 2011, defendant Mayor DeStefano conducted a press conference
at Temple Street Plaza directly in front of the Club Pulse. Plaintiff does not know
whether the Mayor specifically mentioned either of his establishments.
Plaintiff has extra security at Center Street Lounge and Club Pulse on “hip-hop”
evenings out of concern for safety. He admits that it is a “rougher crowd” that requires
more security and that pat-downs for weapons are conducted.
Numerous fights have occurred outside of the Center Street Lounge, and
multiple shootings have occurred outside of plaintiff’s establishments during the last five
years. One person was shot and killed outside of Center Street Lounge.
Plaintiff maintains that defendants have attempted to prevent Club Pulse from
using its patio adjoining the Temple Street Plaza and from advertising in that area.
The previous tenants of the “Pulse Nightclub” site had formal written agreements with
the City of New Haven for patio usage outside of the area in the Temple Park/Plaza.
Plaintiff has no such written agreement with the City of New Haven for access to the
patio area used by the prior tenants.
In 2011, plaintiff hosted an event outside of “Pulse Nightclub” in the Temple
Plaza/Park that featured an activity where several patrons were nude with exposed
genitalia within view of the public walking through the Plaza/Park.
Robert Smuts, defendant’s Chief Administrative Officer, avers that he has held
numerous meetings about other bars in the downtown area regarding public safety
issues and pending liquor permits.
Defendant Mayor DeStefano avers that the City of New Haven has taken
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affirmative action against liquor permit applications of other establishments, including
“Taurus” and “Sci-Fi.”
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the
moving party to demonstrate the absence of any material factual issue genuinely in
dispute. American International Group, Inc. v. London American International Corp.,
664 F. 2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue
exists, the court must resolve all ambiguities and draw all reasonable inferences against
the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Only
when reasonable minds could not differ as to the import of the evidence is summary
judgment proper." Bryant v. Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied, 502
U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. American International Group, Inc., 664 F.2d at 351.
In determining whether a genuine factual issue exists, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Anderson,
477 U.S. at 255.
If a nonmoving party has failed to make a sufficient showing on an essential
element of his case with respect to which he has the burden of proof, then summary
judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party
submits evidence which is "merely colorable," legally sufficient opposition to the motion
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for summary judgment is not met. Anderson, 477 U.S. at 249.
Plaintiff alleges that his equal protection rights under the Fourteenth Amendment
have been violated by selective enforcement of the law and that defendants have
subjected his two business to disparate treatment in comparison to comparators.
Specifically, plaintiff alleges the following conduct in support of his equal protection
claim: His arrest on a reckless driving charge; a press conference by the Mayor
referring to plaintiff’s businesses as “problem bars;” meetings held by City staff to find a
way to deny him liquor permits and to put him out of business; numerous attempts to
prevent Club Pulse from utilizing its patio; defendants’ acts to intercede with the
Connecticut Department of Consumer Protection to attempt to deny plaintiff liquor
permits at his clubs; defendants’ threats to require plaintiff to obtain permits not
required of other comparable establishments. He also asserts that defendant
DeStefano has a personal and business relationship through his personal driver with
the Gotham Citi Café.
To bring a class of one claim, plaintiff must allege that he has been intentionally
treated differently from others similarly situated and that there is no rational basis for
such different treatment. Ruston v. Town Bd. For Town of Skaneateles, 610 F.3d 55,
58 (2d Cir. 2010). Plaintiff must show “an extremely high degree of similarity” between
himself and his comparators. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.
2006). A plaintiff must establish that “(i) no rational person could regard the
circumstances of the plaintiff to differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a legitimate government policy; and (ii)
the similarity in circumstances and difference in treatment are sufficient to exclude the
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possibility that the defendants acted on the basis of a mistake.” Ruston, 610 F.3d at
59.
Comparators
Plaintiff asserts that three nearby downtown bars––Club Van Dome, Toad’s
Place and Empire (formerly Gotham Citi Café)––have been associated with murders or
shootings and yet no effort has been made to take away their liquor license, to generate
adverse publicity against them. However, plaintiff has not shown that these
comparators have an extremely high degree of similarity with plaintiffs’ establishments.
The Court has no information regarding the frequency or type of the violence at these
establishments compared to plaintiff’s establishments.
Further, it is not clear that defendants have not taken any action relative to the
shootings or murders at the comparators other than plaintiff’s self-serving assertion.
Plaintiff admits that defendants have interceded against the liquor permit for Sci-Fi,
another downtown club. Further, plaintiff admits to the occurrences of violence that
could raise concern for public safety.
Plaintiff has also failed to demonstrate that the Gotham Citi Café received
favorable treatment due to Mayor DeStefano’s relationship with his personal driver. In
fact, Mayor DeStefano averred that he does not have a personal driver and that he
does not have a business relationship with the Gotham Citi Café.
Legitimate Conduct
Further, defendants have proffered evidence that they had legitimate, rational
reasons for their conduct rather than an irrational motive in violation of the Fourteenth
Amendment. First, as plaintiff admits, plaintiff received a reckless driving charge
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because he was driving the wrong way down a city street.
Defendants have also demonstrated that they held meetings to discuss problems
with bars in New Haven, including plaintiff’s establishments, for purposes of concern for
public safety. Defendants have shown that plaintiff’s establishments had known
problems with violence, including a murder and various shootings. Accordingly, plaintiff
has not raised an inference that either he or his establishments were treated differently
from similarly situated entities and that there is no rational basis for such treatment.
Summary judgment will be granted for the defendants.
CONCLUSION
For the foregoing reasons, the motion for defendants’ summary judgment [doc.
#64] is GRANTED. The Clerk is instructed to close this case.

_________/s/_________________
Warren W. Eginton
Senior United States District Judge

Dated this _29th__ of May, 2013 at Bridgeport, Connecticut.

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