Posted by: Patricia Salkin | March 5, 2017

Fed. Dist. Court in NY Finds Restricting the Hours of Operation of Restaurant and Bar Did Not Violate Owner’s Constitutional Rights

Plaintiff Obsession Sports Bar & Grill, Inc. alleged that the City of Rochester improperly restricted Obsession’s hours of operation, based upon a provision of the Rochester Municipal Code, Section 120-34(O), that was null and void, because it was “an impermissible exercise of municipal zoning power” as it conflicted with the “New York State Alcoholic Beverages Control Law” (“ABC Law”), which regulated the hours that taverns could operate. Pursuant to the ABC Law, establishments holding liquor licenses were permitted to sell alcohol from 8:00 a.m. until 2:00 a.m. on all days except Sunday, when they can sell alcohol from Noon until 2:00 a.m. The New York State Supreme Court held § 120-34(O) was “an impermissible exercise of municipal zoning power, which could not stand in the face of conflicting and pre-emptive provisions of the ABC Law”, and was affirmed on appeal by the New York State Supreme Court, Appellate Division Fourth Department.

The court first noted that even though the Complaint did not specify whether the claim was for procedural due process or substantive due process, the court interpreted the pleading as asserting a substantive due process claim, since it alleged that Defendant injured Plaintiffs’ property rights to operate their business during all hours allowed by the ABC Law, by means of an “illegal ordinance.” Here, however, it was undisputed that Defendant acted under color of state law when it enacted § 120-34(O) and its predecessor statute, which had the effect of restricting the hours in which Obsession could remain open and sell alcohol.

Even assuming Plaintiff’s had a sufficient constitutionally-protected property interest in their New York State Liquor License to support a substantive due process claim, the court found Plaintiffs failed to show that Defendant lacked the authority under applicable law to enact this zoning provision. Furthermore, Plaintiff did not challenge Defendant’s authority to enact zoning provisions generally, or that any type of “fundamental procedural irregularity” occurred during the process by which Defendant enacted § 120-34(O). Here, Plaintiff argued that the Defendant’s act was “ultra vires,” since Defendant lacked the “power” to make a zoning provision that conflicted with the ABC Law. The court disagreed, finding the argument failed because it confused ultra vires action with actions contrary to governing state statutory provisions. Specifically, Plaintiffs did not produce any evidence that in enacting § 120-34(O), Defendant was motivated by any personal animosity towards Plaintiffs, or that Defendant acted for an improper purpose. As such, the court held Plaintiff’s failed to state a claim.

Obsession Sports Bar & Grill, Inc. v. City of Rochester, 2017 WL 661016 (WDNY 2/17/2017)


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