Frank v. Manchester, City of et al
Filing
27
///ORDER granting 13 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro. (jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael Frank
v.
Case No. 09-cv-389-PB
Opinion No. 2011 DNH 122
City of Manchester, et al.
MEMORANDUM AND ORDER
Michael Frank filed this action against the City of
Manchester and two City officials after he was denied a
peddler’s license.
His principal federal claim is that the
defendants violated his Fourteenth Amendment right to procedural
due process by failing to give him a constitutionally adequate
post-deprivation hearing.
As I explain in greater detail below,
Frank’s claim fails because he does not have a protectable
property interest in a peddler’s license.
I.
A.
BACKGROUND
Requirements for a License Application
This case arises from the defendants’ allegedly unlawful
denial of Frank’s application for a peddler’s license.
New
Hampshire law authorizes cities to adopt ordinances that
establish the terms under which a peddler’s license may be
issued.
N.H. Rev. Stat. Ann. § 31:102-a (2002).
Among other
things, this statute authorizes such ordinances to include such
“other reasonable conditions and terms deemed necessary for
public convenience and safety as the governing board
determines.”
Id.
In following this law, the City of Manchester has passed
ordinances requiring all peddlers to secure a license from the
City prior to operating a business within the City’s limits.
Manchester, N.H. Code of Ordinances ch. 115.40 (2005).
The
ordinance requires that an application for a peddler's license
in Manchester must include “[a] complete certified criminal
record,” and states that the failure to provide all information
required is grounds for denial of the application.
Id.
The
ordinance further provides that a license “shall be denied” if
the applicant has received a “disqualifying criminal conviction
. . . during the five years preceding the application.”1
1
Id.
Disqualifying convictions are “[a]ny felony convictions, any
conviction involving harassment, violence, theft, fraud,
loitering, prowling, or endangering the welfare of a child or
2
“An applicant who is denied a peddler license . . . may file a
written request for a review of the application before the
Committee on Administration” (“Committee”).
Id.
The Committee
“will approve or disapprove the fitness of the applicant for the
license.”
Id.
Finally, the ordinance also requires that
“application for a peddler’s license shall be made to the City
Clerk upon a form to be determined by the City Clerk.”
Id.
The Manchester Business License Application, issued by the
Office of the City Clerk pursuant to the above ordinance,
requires an applicant to obtain approvals from six City
departments before the application may be approved.
Manchester
Business License Application (“Application”), available at
http://www.manchesternh.gov/website/Home/Business.aspx, at 6.
Each such department must affirm that the applicant has met “all
permitting requirements and/or other requirements of th[e]
department.”
Id.
The Business License Application also states
that “[p]ursuant to ch. 110.02(C) of the Code of Ordinances,
departments may place additional restrictions or conditions on
certain activities.”
Id.
This language closely tracks that of
the cited ordinance, which states that, “[a]s a condition of
licensure,” additional conditions may be added to a business’s
3
application whenever they are:
warranted by any circumstances pertaining to a
specific establishment or to prevent any nuisance
related to or caused by the licensed activity. A
nuisance, in addition to its common law meaning, is
anything that endangers life, health or safety, gives
offense to senses, violates common standards of
decency or obstructs reasonable and comfortable use of
any property.
Manchester, N.H. Code of Ordinances ch. 110.02 (1999).
B.
Facts Relating to Frank’s Application
Frank first sought a peddler’s license on May 8, 2009.
His
application seemed doomed from the start, however, because the
certified criminal record he produced with his application
included a disqualifying conviction for simple assault.2 Frank
attempted to address this difficulty on May 21, when he
succeeded in having the assault case dismissed.
City officials,
however, would not accept the court records showing that the
conviction had been dismissed because it remained on his
certified criminal record.
2
Frank was convicted on the assault charge in district court.
He appealed the conviction to Superior Court and, although his
certified criminal record did not show it, the conviction was on
appeal when Frank made his original application. The charge was
dismissed by the prosecutor on May 21, 2009.
4
Frank’s problems were compounded when Gary Simmons, the
assistant police chief and one of the defendants in this case,
learned that Frank had two charges of possession of child
pornography pending against him in Massachusetts.3
Because of
these pending charges, Simmons refused to sign Frank’s
application on behalf of the police department.
Even though Frank was unable to obtain the police
department’s approval, he returned to the City Clerk’s office on
June 5, 2009 and demanded his peddler’s license.
Kevin Kincaid,
the City’s licensing and compliance coordinator, and another
defendant in this case, denied Frank’s application and informed
him that he could challenge the denial by appealing to the
City’s Committee on Administration.
The Committee heard Frank’s appeal and voted to deny Frank
a peddler’s license on July 7, 2009.
3
Frank was originally charged with three counts of possession
of child pornography. He was tried on all three charges shortly
before he made his application. He was acquitted on one of the
charges and a mistrial was declared on the other two. These are
the two charges that were pending against him when his
application was under review. They were ultimately dismissed on
September 24, 2009.
5
II.
STANDARD OF REVIEW
A summary judgment motion should be granted when the record
reveals “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
The evidence submitted in support of the
motion must be considered in the light most favorable to the
nonmoving party, drawing all reasonable inferences in its favor.
See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
The burden then shifts to
the nonmoving party to "produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for it; if that party cannot produce such evidence, the
motion must be granted."
Ayala-Gerena v. Bristol Myers-Squibb
Co., 95 F.3d 86, 94 (1st Cir. 1996).
On cross motions for
summary judgment, the standard of review is applied to each
motion separately.
See Am. Home Assur. Co. v. AGM Marine
Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006).
In reviewing a pro se motion, this Court is obliged to
construe the pleading liberally.
See Ayala Serrano v. Lebron
6
Gonzales, 909 F.2d 8, 15 (1st Cir. 1990).
This review ensures
that pro se pleadings are given fair and meaningful
consideration.
See Eveland v. Dir. of C.I.A., 843 F.2d 46, 49
(1st Cir. 1988).
III.
ANALYSIS
Frank invokes the First, Fourth, Fifth, and Fourteenth
Amendments in support of his complaint but the only possible
federal claim that the facts of this case support is a claim
that the defendants violated his right to procedural due
process.
To establish a procedural due process claim, a plaintiff in
Frank’s position must show that the defendants deprived him of a
protected property interest.
Perez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 30 (1st Cir. 2008).
and defined by state law.
(1979).
Property interests are created
See Leis v. Flynt, 439 U.S. 438, 441
Supreme Court precedent, however, recognizes that more
than a mere expectation of a benefit is required to give rise to
a protected property interest.
U.S. 369, 382 (1987).
Board of Pardons v. Allen, 482
As the court explained in its seminal
decision on the subject: “a person clearly must have more than
7
an abstract need or desire for [the benefit].
than a unilateral expectation of it.
He must, instead, have a
legitimate claim of entitlement to it.”
Roth, 408 U.S. 564, 577 (1972).
He must have more
Board of Regents v.
It thus will be a rare case in
which an application for a license that the government has
discretion to grant or deny will give rise to a property right
protected by the due process clause.
See, e.g. Beitzell v.
Jeffrey, 643 F.2d 870, 874 (1st Cir. 1981); Medina v. Rudman,
545 F.2d 244, 250-51 (1st Cir. 1976).
The First Circuit confronted a case similar to the one that
Frank presents here in Chongris v. Board of Appeals, 811 F.2d 36
(1st Cir. 1987).
In that case, an applicant for a common
victualler’s license sought permission to open a donut shop.
Id. at 43.
The court rejected the claim, finding that where
state law stated that “licensing authorities may grant licenses
to persons to be . . . common victuallers,” the issuance of a
victualler's license was “altogether permissive.”
811 F.2d at 43.
See Chongris,
The statute went on to state that licensing
authorities were not required to grant a license if “in their
opinion, the public good does not require it.”
Id.
Because
this language indicated that town officials had discretion on
8
whether to grant a license, the plaintiffs “possessed no
property interest in the . . . license such as would entitle
them to the prophylaxis of procedural due process or to relief
under 42 U.S.C. § 1983.”
See id. at 44.
The present case is indistinguishable from Chongris.
New
Hampshire law provides that “the governing board of a city, town
or village district may adopt, by ordinance or regulation,
provisions for the licensure and regulation of itinerant
vendors, hawkers, [and] peddlers.”
31:102-a (2002) (emphasis added).
N.H. Rev. Stat. Ann. §
The law allows municipalities
to include “[o]ther reasonable conditions and terms deemed
necessary for public convenience and safety.”
Id.
This
language closely tracks the permissive language that was relied
on in Chongris.
The City of Manchester has in turn required all
peddlers to secure a license from the City, using an application
to the City Clerk’s office, upon a form to be determined by the
City Clerk.
(2005).
Manchester, N.H. Code of Ordinances ch. 115.40
The Business License Application, issued by the City
Clerk pursuant to that ordinance, reiterates the discretion
given to its officials by requiring that all license
applications be “submitted with all applicable department
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signoffs.”
Application at 7.
The six department approvals,
which include the police department, must affirm that the
applicant has met “all permitting requirements and/or other
requirements of th[e] department.”
Id. at 6.4
The license
application also explicitly indicates that “additional
documentation may be required” of an applicant.
Id. at 7.
Additional discretion is granted by Manchester Ordinance
ch. 110.02, which governs business licenses.
The ordinance
states that “[a]s a condition of licensure,” “additional
restrictions or conditions” may be added by City departments
whenever they are “warranted by any circumstances pertaining to
a specific establishment or to prevent . . . anything that
endangers life, health or safety.”
Manchester, N.H. Code of
Ordinances ch. 110.02 (1999).
Frank’s procedural due process claim is based on the
incorrect premise that the only requirement for issuance of a
4
The complete City of Manchester “Business License Application”
was not entered into the record by either party. It is
appropriate, however, to consider such evidence. See Watterson
v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993) (noting that even at
the motion to dismiss stage courts may consider evidence from
outside the record consisting of “documents the authenticity of
which are not disputed by the parties . . . official public
records . . . documents central to plaintiffs' claim; or . . .
documents sufficiently referred to in the complaint”).
10
peddler’s license is that there is no disqualifying conviction
on one’s record at the time of application.
As in Chongris,
however, the relevant state and local laws in Manchester give
broad discretion to municipal officials in denying applications
for licenses.
To suggest, as Frank argues, that the departments
responsible for approvals may create additional requirements for
licensure, yet possess no discretion to act on the basis of
those requirements, is nonsensical.
Therefore, the correct
reading of the City ordinance is that while an applicant with a
disqualifying conviction must be denied a license, town
officials also possess discretion to deny an application based
on a variety of other factors, particularly when a factor could
endanger “life, health or safety.”
Id.
When the City ordinance regarding the issuance of peddler’s
licenses is properly read, it is quite clear that an applicant
for a license has no entitlement to a license.
Accordingly,
Frank cannot maintain a viable due process claim because he
lacks a protected property interest in the license he was
denied.5
5
Frank also asserts various state law claims. I decline to
assert supplemental jurisdiction over those claims and dismiss
them without prejudice.
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IV.
CONCLUSION
Defendants’ motion for summary judgment (Doc. No. 13) is
granted with respect to Frank’s federal claims.
law claims are dismissed without prejudice.
Frank’s state
The clerk shall
enter judgment and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 10, 2011
cc:
Michael Frank, pro se
Robert Meagher, Esq.
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