The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss i. '.
'.. CIVIL ACTION
~OCKEJ: NO. AP-09-1 V
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MOORE, INC.,
Plaintiff
ORDER ON DEFENDANTS'
v. MOTIONS TO DISMISS
CITY OF WESTBROOK, ET AL.,
Defendants
BEFORE THE COURT
Defendants bring two motions before the court pursuant to M.R. Civ. P.
12(b)(6): (1) a Motion to Dismiss all claims against Defendants Rielly, O'Hara,
Aube, and Gattine, and (2) a Motion to Dismiss all of Plaintiff's Civil Rights
Claims.
PROCEDURAL HISTORY
All claims originate from the City of Westbrook's April 6, 2009 and May 4,
2009 denials of Moore Inc.'s (hereinafter Moore) victualers, pool, and pinball!
video machine licenses for "The Skybox" tavern. Following the April 6th denial,
Moore filed a four count Complaint, asserting three claims under 42 U.s.c. §
1983 and a Rule 80B Appeal. Moore also filed a Motion for a Temporary
Restraining Order (TRO) pursuant to M.R. Civ. P. 65. On April21h the court
entered an order by agreement of the parties, that '''The Skybox' may continue to
operate until a license is issued or the motion for TRO is denied, whichever
occurs first." The court remanded the 80B Appeal to the Westbrook Board of
Municipal Officers to allow reconsideration of the April 6 th permit denial. On
May 4, 2009, the Board of Municipal Officers voted 4-4, again denying Moore Inc.
1
the licenses for "The Skybox." On both April 6th and May 4th City Council
members Rielly, O'Hara, Aube, and Gattine voted against granting the licenses.
On May 8,2009, Moore filed its First Amended Complaint, which
consisted of four counts. Three counts were filed under 42 U.s.c. § 19831
alleging: (1) that Westbrook Code Enforcement Officer acted in a manner
seeking to impede, deter, or frustrate Moore's constitutional right to lawfully use
its property, (2) a violation of Moore's procedural and substantive due process
rights due to the bias of four members of the Board of Municipal Officers, and (3)
a challenge to Westbrook Ordinance § 20-9 as unconstitutional on its face and as
applied. Under the fourth count, Moore filed a Rule 80B appeal, alleging that the
May 4 th decision is arbitrary and capricious, legally erroneous, and unsupported
by substantial evidence. Moore again filed a separate Motion for a TRO
pursuant to Rule 65(a).
On June 16 th Defendants filed (1) a Motion to Dismiss all claims against
Defendants Rielly, O'Hara, Aube, and Gattine, and (2) a Motion to Dismiss all of
Moore's Civil Rights Claims. This order addresses Defendants' June 16th Motion.
FACTUAL BACKGROUND
The Plaintiff, Moore, Inc. challenges the City of Westbrook's denial of
licenses needed to operate its bar, "The Skybox," located at 212 Brown Street in
I42 U.S.c. § 1983 provides a civil cause of action for the deprivation of rights. It
provides:
Every person who, under color of [law] subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any such action brought against a
judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable.
2
Moore finally re-opened The Skybox at the end of March 2009. Moore
reapplied for the victualers, pool, and pinball licenses because they were set to
expire on the annual expiration date of April 30th • Moore claims that the city
clerk usually approves license applications for victualers, pool, and pinball
machines, unless a city council member requests that the application go before
the Board of Municipal Officers. City Council President Rielly requested that
Moore's license applications go before the Board.
On April 6th the Board of Municipal Officers met. The City Solicitor was
asked whether the denial of Moore's application to renew its victualers license
would force The Skybox to close under state liquor license rules. The City
Solicitor answered that it would. Later, Municipal Officers Rielly, O'Hara, Aube,
and Gattine all voted to deny Moore's licenses. Again, Rielly, O'Hara, Aube, and
Gattine each stated on the record that they opposed the existence of a bar at 212
Brown Street. Moore claims that the four municipal officers had fixed minds and
were not able to decide the issue in an unbiased manner. The decision to deny
the licenses was based in part on an unsubstantiated telephone complaint to the
police made on April 4th . The phone complaint asserted that two unruly people
in the vicinity of The Skybox were making obscene statements. Additionally, the
Board relied on the 20-year history of problems with the bar, previously held by
the State to be an insufficient reason to deny the liquor license.
Moore asserts that the actions of the municipal officers were intended to
close The Skybox; were calculated to circumvent the State Bureau of Liquor
Enforcement's grant of a liquor license; and aimed to deprive Moore of its right
to operate a bar at 212 Brown Street. Without its victualers license Moore would
have been forced to dose its bar before the next Board hearing, which was
5
scheduled for May 4th . This court entered an order by agreement of the parties to
allow The Skybox to remain open until the court decided Moore's Motion for a
TRO.
At the May 4 th Board hearing, the Board reconsidered Moore's permit
applications. Despite requests for their recusal due to their alleged bias, the
Defendant municipal officers once again voted 4-4 against granting Moore's
licenses. At the May 4 th hearing, testimony was provided by Misty Munster, the
person who had made the April 4th phone complaint to the police. Munster had
also testified against reopening The Skybox at the Zoning Board of Appeals
hearing earlier in the year. Moore's attorney attempted to discredit Munster's
testimony. She admitted that she had only assumed the noise on April 4th was
from patrons leaving The Skybox, and that she did not actually see people leave
from the bar. Her testimony ultimately only showed that she heard loud and
obscene yelling in the vicinity of The Skybox at some time after the bar had
closed. The four Defendant municipal officers found Munster's testimony about
her nuisance complaint credible and the single incident sufficient to deny
Moore's license applications. The Board of Municipal Officers found that the bar
would not meet the requirements of City Ordinance § 20-9(e) or (f), and denied
the licenses on the ground that the bar would adversely affect the peace and
quiet of the neighborhood.
DISCUSSION
I. Standard of Review
A Motion to Dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal
sufficiency of the complaint and, on such a challenge, 'the material allegations of
the complaint must be taken as admitted.'" Shaw v. Southern Aroostook Comm.
6
Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quoting McAfee v. Cole, 637 A.2d 463,465
(Me.1994)). When reviewing a Motion to Dismiss, this Court examines "the
complaint in the light most favorable to the plaintiff to determine whether it sets
forth elements of a cause of action or alleges facts that would entitle the plaintiff
to relief pursuant to some legal theory." Id. A dismissal under M.R. Civ. P.
12(b)(6) will be granted only "when it appears beyond a doubt that the plaintiff is
entitled to no relief under any set of facts that he might prove in support of his
claim." Id. (quoting Hall v. Bd. ofEnvtl. Prot., 498 A.2d 260,266 (Me. 1985)). This
is a question of law. Bean v. Cummings, 2008 ME 18, err 7, 939 A.2d 676, 679.
II. Moore's Constitutional Claims
a. Claims Against Municipal Officers Rielly, O'Hara, Aube, and
Gattine
Moore sued the Defendant municipal officers in their official capacities.
In doing so, Moore seeks declaratory and injunctive relief to prevent the
Defendant municipal officers from making future decisions on Moore's licenses.
Relying on Andrews v. Dep't of Envtl. Prot., a case that deals with qualified
immunity, Moore asserts that absolute immunity only extends to damages, and
does not apply to injunctive relief. 1998 ME 198, 716 A.2d 212. Andrews stands
for the proposition that "state officials sued in their official capacities are
'persons' pursuant to section 1983 only if sued for injunctive relief, not for money
damages." Andrews, at err 11 n. 4, 716 A.2d at 217 n.4. Andrews states that '" a
defense of qualified immunity is totally immaterial' to a claim for injunctive
relief." Id. at errerr 19-20, 716 A.2d at 219. As Andrews explains: "Official capacity
suits ... generally represent only another way of pleading an action against an
entity of which an officer is an agent .... [AJ plaintiff seeking to recover on a:
7
damages judgment in an official capacity suit must look to the government entity
itself." Id.
Despite Moore's contention, injunctive relief based on § 1983 is not
available in this case. As 42 U.s.c. § 1983 states, "injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was
unavailable." 42 U.s.c. § 1983 (2006). In this case, a declaratory decree was not
violated, and declaratory relief was available. The court has yet to rule on
Moore's application for a TRO pursuant to Rule 65(a). Based on the
unambiguous language of § 1983, Moore's Civil Rights Act claim against the
Defendant municipal officers is premature.
In this case neither party disputes that the four Defendant municipal
officers acted in a quasi-judicial capacity when acting on Moore's licenses. As
the Law Court stated in Richards v. Ellis, a case similar to this one, "[M:]embers of
a municipal licensing board are immune from civil liability for quasi-judicial
decisions within the scope of their authority without regard for bad faith, malice,
or other evil motives." 23 A.2d 37,37 (Me. 1967). The Richards court declared
that the absolute immunity of a judge covers members of a licensing board.
Richards, 233 A.2d at 39. "[O]fficials performing judicial functions are afforded
absolute immunity," and "if absolute immunity attaches, it applies however
erroneous the act or injurious its consequences." Marr v. Me. Dep't of Human
Servs., 215 P.supp. 2d. 261, 267 (D. Me. 2002). The claims against the four
Defendant municipal officers are dismissed with respect to the § 1983 claims
because they are entitled to absolute immunity.
8
b. CEO Gouzie
Moore-alleges that when CEO Gouzie denied Moore a certificate of
occupancy Gouzie was "seeking to impede, deter, or frustrate Moore's efforts to
re-open the Skybox." Moore claims that Gouzie's actions were arbitrary and
capricious and were intended to deprive or delay Moore in the use of its
property in violation of the Fifth and Fourteenth Amendments.
The City of Westbrook seeks to dismiss Moore's claim against Gouzie,
alleging that Gouzie is entitled to qualified immunity. Qualified immunity
shields government officials from "lawsuits and liability for their discretionary
actions." Munjoy Sporting & Ath. Club v. Dow, 2000 ME 141, CJ[ 18, 755 A.2d 531,
540. A public official can claim qualified immunity when it can be established
"that given the state of the law a reasonable official would not have understood
that he [was violating the plaintiff's rights.]" Id. Qualified immunity protects
"all but the plainly incompetent or those who knowingly violate the law." Malley
v. Briggs, 475 U.s. 335, 347 (1986).
Moore's Complaint states that Gouzie was "seeking to impede, deter, or
frustrate Moore's efforts to re-open the Skybox." In other words, Moore asserts
that Gouzie was knowingly violating the law through his conduct. At this
juncture, the court cannot determine that Gouzie is entitled to the protections of
qualified immunity. Accordingly, the City of Westbrook's Motion to Dismiss the
claims against Gouzie is denied.
c. Moore's Procedural and Substantive Due Process Rights
Moore claims that the denial of its applications for its licenses violated its
procedural and substantive due process rights, and that the City's actions were
9
arbitrary and capricious. 5 Moore also appears to assert that because it has a
property interest in its liquor license from the state, it has a property interest in
the victualers license as well. 6 Moore claims that Westbrook's municipal officers
aimed to circumvent Moore's right to use its state liquor license by denying
Moore's victualers license.
The City of Westbrook claims that Moore's procedural and substantive
due process claims should fail because Moore does not have a property right in
any of the licenses it seeks. In order to establish a procedural or substantive due
process claim, a party must establish a property interest. Macone v. Town of
Wakefield, 277 F.3d I, 9 (lst Cir. 2002) citing Bd. of Regents of State Colleges v. Roth,
408 U.s. 564, 569-70 (1972). A license by definition is a revocable grant of
permission to commit an otherwise unlawful act. Black's Law Dictionary 428 (3rd
pocket ed. 2006). "Generally, licenses do not create a protected property interest
when broad discretion is vested in a state official or agency to deny or approve
the application. In such cases, an applicant has little more than an abstract or
unilateral expectation in that license./I Munjoy, at err 11, 755 A.2d at 537; See also
Gonzales v. Comm'r, Dep't of Pub. Safety, 665 A.2d 681, 683 (Me. 1995) (" An
applicant for a permit does not have a property interest in that permit if there is
5 In Moore's memo in Opposition to Defendants Motion to Dismiss, Moore focuses
solely on the victualers license, as it is the only license that denied Moore the ability to
function as a bar.
6 The court does not find Moore's bootstrapping claim convincing. A liquor license and
victualers license are independent licenses. A person operating a bar needs to have a
victualers license in order to serve alcohol pursuant to his liquor license. See 30-A
M.R.S. § 3811 (stating: "A person may not be a common innkeeper or tavernkeeper
without a license."); see also 30-A M.R.S. § 3801(4) (defining victualer as "a person who
serves food or drink prepared for consumption on the premises by the public."). Moore's
property interest in its liquor license does not create a property interest in a victualers
license.
10
broad discretion to withhold the benefit. When the provider has broad
discretion, the applicant cannot have a reasonable claim of expectation or
entitlement to the permit.").
The City of Westbrook is given discretion to grant or deny a victualers
license. 30-A M.R.S. §§ 3811 and 3812. For example, section 3812(3)(A)(2) states:
"The board may issues the license under any restrictions and regulations that it
considers necessary." Additionally, Westbrook Code § 20-3(c) also grants the
Board of Municipal Officers discretion, stating "municipal officers, by a majority
vote, may authorize the issues of said license, provided that the applicant and the
proposed licensed premises are found to be qualified for the issuance of the
license under the provisions of this chapter."7 While Moore claims that the town
clerk generally grants victualers licenses as a matter of course, the law clearly
indicates that the board has broad discretion, such that Moore does not have a
property interest in the licenses.
In Chongris v. Bd. of Appeals of the Town of Andover, 811 F.2d 36 (lst Cir.
1987), the First Circuit considered whether a prospective donut shop owner had
a property interest in a victualers license sufficient to challenge the denial of the
license on a constitutional due process claim. The First Circuit concluded that at
best, the shop owners had a "mere unilateral expectation of receiving" a license,
and held that they "possessed no property interest in the conditional common
7 Chapter 20 of the City of Westbrook Code of Ordinances governs a variety of business
licenses. Section 20-9 of the Code sets standards by which Chapter 20's business
licenses may be denied, suspended, or revoked. Specifically the opening paragraph of §
20-9 states: "The municipal officers, or the city clerk, as may be applicable, in addition
to other provisions of this code authorizing such action, may deny, suspend, or revoke a
license upon one or more of the [grounds under § 20-9]."
II
victualler's license such as would entitle them to the prophylaxis of procedural
due process relief under 42 USc. § 1983." Clwngris, 811 F.2d at 44.
The Maine Superior Court also addressed whether a property right exists
in victualers license in City of Old Town v. Dimoulas, 2001 WL 35980916 (Me.
Super. 2001). In Dimoulas, the Dimoulases claimed the city violated their due
process rights by denying their application for a victualers license. [d. The court
held that "the Dimoulases had no 'property interest in a Victualer's License
within the meaning of § 1983' and, therefore, there could have been no violation
of the Dimoulases' civil rights." [d. The court finds Moore's claim similar to the
claims in Chongris and Dimoulas, and concludes that Moore does not have a
property right in the victualers license.
Moore may have expected to receive a victualers license, but Moore only
had an expectancy interest, not a property interest. As a result, Moore's
procedural and substantive due process claims under 42 USc. § 1983 fail.
d. City Ordinance § 20-9
Moore asks the Court to declare Westbrook City Ordinance § 20-9(e)
unconstitutional on its face, and to declare that § 2G-9(e) and (f) are
unconstitutional as applied to Moore's license applications. At the 12(b)(6) stage,
it is premature to address whether § 2G-9(e) and (f) are unconstitutional as
applied. Therefore, the court only addresses whether § 2G-9(e) is
unconstitutional on its face. City Ordinance § 2G-9 states:
The municipal officers ... may deny, suspend, or revoke a license upon
one or more of the following grounds:
(e) The business operations have or will likely be a nuisance to owners
of adjoining property or to the public and has been or will be
detrimental in any way to the health, safety, and general welfare of
the public.
12
Moore contends that § 20-9 does not provide sufficient guidance to applicants
and does not sufficiently limit the discretion of the municipal officers.
A court must assume that an ordinance is constitutional and the burden is
on the party attacking the ordinance to prove the ordinance's infirmity. Gannett
Co. v. State Tax Assessors, 2000 ME 171, <JIlO, 959 A.2d 741, 747. In order to prevail
on a facial challenge to an ordinance, one "must show that, on its face, the
ordinance is arbitrary, capricious, and not rationally related to a legitimate
government interest." York v. Town of Limington, 2003 WL 22290326 at *8 (D. Me.
Oct. 7, 2003). "A municipal ordinance is not unconstitutionally vague where it
contains sufficient guidance to allow for effective judicial review and this
protects the individual from arbitrary municipal action." Nugent v. Town of
Camden, 1998 ME 92, <[11, 710 A.2d, 245, 248. "An ordinance is
unconstitutionally vague only when it sets guidelines which would force persons
of general intelligence to guess at its meaning." Britton v. Town of York, 673 A.2d
1322, 1324 (Me. 1996).
If § 20-9(e) were broken into its component parts, the portion of § 20-9(e)
which permits denial of a license based on whether an activity "will be
detrimental in any way to the health, safety, and general welfare of the public"
could be considered vague because it is similar to the ordinance language the
Law Court found inadequate in Cope v. Town of Brunswick, 464 A.2d 223 (Me.
1983). However, the City of Westbrook claims that when read as a whole § 20
9(e) is constitutional because that portion of the ordinance should be read in
conjunction with the Board's determination that the activity in question creates a
nuisance. The City claims that what constitutes a "nuisance" is commonly
understood and defined. Moore claims that nuisance, a term not defined in the
13
City's ordinances, does not provide sufficient guidance to make 20-9(e)
constitutional on its face, and claims that an undefined nuisance standard only
detracts from the ordinance's certainty. The court disagrees with Moore's
argument.
The nuisance standard is commonly understood and is defined both at
common law and by Maine statute. Black's Law Dictionary defines nuisance as
"a condition, activity, or situation that interferes with the use or enjoyment of
property." Black's Law Dictionary 497 (3rd pocket ed. 2006). Similarly, the Law
Court has adopted the Prosser and Keeton common law definition of nuisance,
as an "interference with the use and enjoyment of land." Town of Stonington v.
Galilean Gospel Temple, 1999 ME 2, err 15, 722 A.2d 1269, 1272-73 citing PROSSER
AND KEETON ON THE LAW OF TORTS § 87 at 615 (5th ed. 1984). By statute a person
may bring a cause of action for damages caused by nuisance when "injured in
[his or her] comfort, property or the enjoyment of his estate." 17 M.R.S. § 2701
(2009). Even though nuisance is not defined in the ordinance, a person does not
need to guess at its meaning. Given that "nuisance" is a commonly understood
standard, the court finds that § 20-9(e) is not unconstitutional on its face. The
City of Westbrook's Motion to Dismiss is granted with respect to the facial
challenge to § 20-9(e).
DECISION
The court grants the City of Westbrook's Motions to Dismiss (1) the claims
against Municipal Officers Rielly, O'Hara, Aube, and Gattine; (2) Moore's
procedural and substantive due process claims pertaining to the victualers
license; and (3) Moore's claim that Westbrook City Ordinance § 20-9(e) is
14
unconstitutional on its face. The court does not grant the City's Motions with
respect to CEO Gouzie, or the "as-applied" challenges to § 20-9.
SCHEDULING ORDER
The Court orders a stay of the independent claims pending the resolution
of the 80B appeal, except that discovery can continue and the parties may file
dispositive motions on the independent claims.
The briefing schedule on the 80B appeal is as follows: The plaintiff's brief
is due 40 days after this order. It is the Plaintiff's responsibility to submit the
record of the proceedings on or before the date that the Plaintiff's brief is filed.
The Defendant's brief is due 30 days after service of the brief by the Plaintiff. The
Plaintiff has 14 days after service of the brief by Defendant to file a reply brief.
The 80B appeal will be in order for oral argument 20 days after the due
date for the reply brief. The clerk will schedule oral argument for the first
appropriate date after the appeal is in order for hearing.
c~ /)
Dated at Portland, Maine this _---=-0 day of _ _"""Ue:........=:...v--.:4!.e.,c=.=:....L.----J, 2009.
~
itObertRCrOWle)T
Justice, Superior Court
15
0_4-_2_2_-_0_9_ __
Date Fi led __ CUMBERLAND Docket No. AP-09-11
County
Action 80B APPEAL
MOORE, INC. CITY OF WESTBROOK
RICHARD GOUZIE
BRENDAN REILLY
JOHN O'HARA
DOROTHY AUBE
DREW GATTINE
Ys.
Plaintiff's Attorney Defendant's Attorney
EDWARD BENJAMIN ESQ.
DAVID A. LOURIE, ESQ. JASON DONOVAN ESQ (all defendants)
189 SPURWINK AVENUE PO BOX 4630
CAPE ELIZABETH, ME 04107-9604 PORTLAND, ME 04101
WILLIfu'1 DALE, ESQ. (DEFS)
PO BOX 4510
PORTLAND, ME 04112
Date of
Entry
2009
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-09-11
~ [ C curl - t2 I
. ~."}I-· / _
MOORE, INC.,
Plaintiff
ORDER ON MOORE, INC.'S
v. 80B APPEAL
CITY OF WESTBROOK, ET AL.,
Defendants
BEFORE THE COURT
On April 6, 2009 and May 4,2009, the Board of Municipal Officers of the
City of Westbrook denied Moore, Inc. ' (hereinafter Moore) the renewal of
Moore's victualers, pool, and pinball! video game licenses for "The Skybox," a
tavern operated by Moore. Moore appeals the denial of the renewal of those
licenses pursuant to Rule 80B of the Maine Rules of Civil Procedure.
Moore claims on appeal: (1) that it was denied its licenses by Municipal
Officers who were biased and had fixed minds; (2) that there was no substantial
evidence supporting the denial of its licenses; and (3) that the use of the
victualer's license to deprive Moore of its rights under the liquor license was
contrary to law. Because the evidence in the record supports a finding of bias,
the court only addresses Moore's first clai m on appeal.
PROCEDURAL HISTORY
The Skybox is located on Brown Street in the City of Westbrook. Some
years before the events giving rise to this appeal, Brown Street was zoned as a
residential neighborhood and The Skybox became a lawful non-conforming use.
The Skybox was previously operated by Ellen and Thomas Dare. The City of
I Allen and Lynn Moore own Moore, Inc.
Westbrook grants licenses and permits through the Board of Municipal Officers,
which consists of the mayor and seven city councilors. At all relevant times, ,
Dorothy Aube, John O'Hara, Andrew Cattine, and Brendan Rielly were members
of the City Council. Rielly was the City Council President. On March 3, 2008,
following noise complaints, the Board of Municipal Officers denied the Dores
renewal of their state liquor license pursuant to City Ordinance § 20-9. 2 The
Dores did not appeal the denial to the State Bureau of Liquor Enforcement
pursuant to 28-A M.R.S. § 653. 3 They stopped operating The Skybox and decided
instead to concentrate on their catering business.
Moore leased the tavern portion of The Skybox from the Dores, and
planned to reopen The Skybox. Moore applied to the City for a State of Maine
liquor license, a victualer's license,~ a pool room license, an amusement permit,
and a pinball / video machine license. On August 4, 2008, the Municipal Officers
considered Moore's applications. The Mayor and six councilors were present at
this meeting. Councilor CaWne was absent. During this meeting Council
2 City Ordinance § 20-9 states:
The municipal officers, or the city clerk, as may be applicable, in addition to other
provisions of this code authorizing such action, may deny, suspend, or revoke a
license upon one or more of the following grounds:
(e) The business operations have or will likely be a nuisance to owners of
adjoining property or to the public and has [sic] been or will be detrimental in
any way to the health, safety, and general welfare of the public.
(t) The licensee or clients have or will substantially and adversely affect the
peace and quiet of the neighborhood in which the licensed premises is located.
J The City of Westbrook has authority to issue liquor licenses pursuant to 28-A M.R.S. §
653. Section 653 allows the board of municipal officers to hold public hearings for the
consideration of liquor license applications, and provides the grounds on which the
municipal officers may deny an application. Article XVIII of the Westbrook Code
provides further guidance on hearings for State Liquor License Applications.
4 The City of Westbrook is granted licensing authority for victualers' licenses pursuant to
30-A M.R.S. § 3812. Article II of the Westbrook City Code governs licenses for Food
Service Establishments.
2
President Rielly moved to amend the liquor license to have last call at the bar be
before 10:00 pm Monday through Saturday, and at 5:00 pm on Sunday. This
motion failed, with one councilor in favor, and five opposed. Then the City
Council members voted to deny the liquor license application and the
amusement permit, with three opposed and three in favor" - Councilors Rielly, 6
Aube, and O'Hara voted to deny the application? The City Council voted four t
hvo to grant Moore's victualer's license, pool room license, and pinball / video
permit - Councilor Rielly voted in favor of Moore and Councilors Aube and
O'Hara voted against Moore.
Moore appealed the denial of the liquor license to the State Bureau of
Liquor Enforcement, which overturned the permit denial holding that past noise
5 A three to three vote was deemed a denial. CR. at 13).
6 As reflected in the record, "Councilor Rielly stated that overall he is pleased with the
[Moores]. Spoke that the bar in this neighborhood is a recipe for trouble. The problem is
alcohol late in the evening." CR. at 7).
7 With respect to the liquor license the Municipal Officers made the following findings:
2. The property has a very long and very troubled history with a bar
improvement and many, many documented breach of peace incidents
zoning violations and history of serving patrons beyond reasonable
tolerance for alcohol all leading directly to major public safety and
nuisance issues in the immediately adjacent residential neighborhood.
3. By an evenly split panel of the Municipal Officers with a vote of3 to 3 the
Municipal Officers are un-persuaded that the current applicants and the
proposed business plan will be able to run the bar without falling victim to
having the same nuisance experiences at this facility as the neighborhood
has experienced in the past. This negative determination was supported by
the comments of the Police Chief.
The Decision by the Municipal Officers is 3-3 so the application is denied.
The reasoning for this decision is there is insufficient evidence to persuade the
majority of the Municipal Officers that the same trouhle that existed at this
property in the past can be avoided. For this next application the testimony of
the Chief of Police only served to reinforce this. The neighhorhood retains
much of the same character as it has over the years which have contributed
directly to its nuisance issues in the past.
(R. at 13).
".J
complaints from the time the bar was under prior management could not be a
basis for denial of the license to new management. s Moore's opening of The
Skybox was delayed by the August 4,2008 denial, by renovations required by the
State,9 and by the Code Enforcement Officer's (CEO) determination that the
erection of the partition wall constituted a "change of use," such that the bar lost
its status as a lawful non-conforming use. This Board of Appeals overturned the
CEO's determination. Moore re-opened The Skybox at the end of March 2009,
but it had to reapply for its victualer's, pool, and pinball licenses because they
expired on April 30,2009. These applications were subject to the City of
Westbrook's new licensing ordinance, which was put into effect after Moore's
August 2008 applications.
Under the new licensing ordinance, the city clerk was delegated authority
to grant license renewals, and license renewal applications would only go on the
Municipal Officers' agenda if one of the Officers specifically requested the
application be scheduled for public hearing. (R. at 21). The renewals of the
Skybox's victualer's, pool, and pinball licenses were put on the public hearing
agenda at the request of Councilor Gattine. 10 (R. at 21). At the time of the April 6,
8 The State Bureau of Liquor Enforcement found that the Municipal Officers denied
Moore's liquor license based on the same evidence upon which the Municipal Officers
denied the license renewal to the Dores when they managed The Skybox. The Bureau
held that because The Skybox had not yet opened its doors for business, "[t]here was no
evidence of repeated incidents of breaches of the peace caused by patrons of The
Skybox." Decision of Dept. of Public Safety Liquor Licensing, December 18,2008.
9 The Bureau of Liquor Enforcement conditioned Moore's liquor license on the erection
of a partition wall between the Dores' catering operation and Moore's operation of The
Skybox.
10 Moore claims that Council President Rielly requested review of the renewal
applications, Compl. at 3, however the record seems to indicate that it was Councilor
Gattine.
4
2009 public hearing The Skybox had only been open for business for about a
week.
April 6, 2009 Hearing
At the April 6, 2009 public hearing, upon consideration of Moore's
applications, and without discussion, a roll call vote was requested by Councilor
O'Hara. The vote was four to four, with Councilors Aube, O'Hara, Cattine, and
Rielly voting against approval of Moore's licenses. (R. at 29). The Westbrook
City Attorney explained that in order to deny the applications to Moore, the
Municipal Officers would need to articulate and adopt reasons for denial. The
Municipal Officers received a report from the Westbrook police that there was
one telephone call on April 4 th about loud people in the vicinity of the Skybox
around 11:00 pm. The police captain stated, "There was [a call] on April 4 th at
2253 hours for loud people outside. When the officer's [sic] responded, the
individuals were gone, so we did not have direct contact with the loud group."
(R. at 30). It was apparent that the Municipal Officers were not certain if the loud
group was connected to The Skybox. ll After hearing the police captain's report,
Councilor Aube stated on the record:
I agree wi th Councilor Foley and that these are good applicants,
however there have been others before. They've done their best to
run a nice establishment, but I think that what Capt. Roth said
brings home the point to me. I live in that neighborhood.
Somebody comes out of the bar, they're loud, yelling walking
down the street, they're gone before Police get there, but I'm still
woken up.... I don't think a bar belongs in this neighborhood. I
know it [sic] been there a long time. I just don't believe it belongs
and that's why I voted the way I did and will continue to do so.
II Mayor Chuluda stated: "I know there was a call out in the street. You can have rowdy
kids up and down Brown Street just coming out of some body's house. I'm not certain
that that's a legitimate reason. If we know that factually these people came out of the
bar, that's another story." (R. at 32).
5
(R. at 30). Later, it was asked whether the denial of Moore's application to renew
its victualer's license would force The Skybox to close under the State liquor
license rules, and the City Attorney answered that it would. After the Municipal
Officers articulated their reasoning, the City Attorney drafted a written decision
that was adopted by the Municipal Officers to support the four to four vote
denying the approval of Moore's licenses. 12 The Municipal Officers adopted the
written decision drafted by the City Attorney. The Municipal Officers who voted
against The Skybox at the April 6th meeting were the same Municipal Officers
that voted against The Skybox at the August 2008 meeting.
On April 22, 2009, Moore filed sui t requesting the court strike the votes of
the Municipal Officers opposed to The Skybox, and seeking a temporary
restraining order from the court because The Skybox would have had to close
after April 30th without its victualer's license. The court entered an order by
agreement of the parties to allow The Skybox to remain open until the court
decided Moore's Motion for a TRO. Additionally, the Board of Municipal
12 Attorney Dale - Thi s would [be] the proposed written decision of the prevai ling 4
dissenters on this decision of the Westbrook Municipal Officers for Skybox Bar & Grill:
Facts:
I. Applications, as above, for renewal licenses for victualers/food service
establishment, pool room and pinball/video uses.
2. This property has a very long, over 20 years, and sordid history for nuisance
conditions of drunken, rowdy behavior in its immediate area fr0111 its patrons.
3. Despite, once again, new ownership, the property has already had another
complaint reported by the Police Department from April 4, 2009, after being
open only one week, of rowdy behavior that has plagued this neighborhood
for years.
Conclusions:
A. Applicant's [sic] have failed to carry their burden of proof that their business
will not be a nuisance to abutting owners and will not be detrimental to the
health, safety and welfare of the public. See Sec. 20-p(e) of the City of
Westbrook Code of Ordinance.
(R. at 35, 43).
6
Officers agreed to reconsider Moore's license renewals at the May 4, 2009
hearing.
May 4,2009 Hearing
At the May 4 th hearing, the Municipal Officers voted to reconsider their
prior decision on the Moore's license applications for the victualer's, pool room
license and pinball and video licenses. Councilor Aube was the only Municipal
Officer opposed to reconsidering Moore's licenses. Allen and Lynn Moore, the
owners of Moore, Inc. were present, as was their attorney. Also present was
Misti Munster, the person who made the April 4th noise complaint to the police.
The police had identified Munster as the caller and she attended the hearing to
testify.
Following the April 6 th hearing, Captain Roth of the Westbrook Police
contacted Munster and summarized her complaint in an email to the Municipal
Officers, which recited:
Initially, she was disturbed by the two groups of 3-5 individuals
who exited the bar and were standing outside the door of the bar
being loud. She described this group as hollering and screaming.
Her residence affords a clear view and she observed this out her
window. This continued for sometime until the groups got into
cars and drove off. One vehicle did not turn their headlights on. A
short while later, another group of men and women were standing
outside the bar yelling profanity. According to the complainant,
one woman yelled "I need a fucking daughter" and was answered
by a male stating "1'11 fuck you and give you a daughter." These
people lingered outside the door to the bar for a while and
eventually left. The second group prompted her to call us.
(R. at 57, 82). Munster's testimony during the May 4th hearing confirmed the
substance of Captain Roth's email. D Munster testified that she heard two
13 Munster stated:
7
separate groups of people one at 12:30 AM and one at 12:45 AM, being very loud
and yelling. (R. at 87). l~ She testified that she did not have her window open
and she could still hear the people. She said she had a direct sight line from her
window to the bar and that her house was approximately 100 feet from the bar.
(R. at 87-88). She stated that she has not made reports of other incidents because
she does not want to be a nuisance to the police. (R. at 87). Munster testified that
the disruptive people on April 4th had come from the bar, or from the vicinity of
the bar. (R. at 88).
Upon examination by Moore's attorney David Lourie, Munster admitted
that she assumed the loud people had come out of The Skybox. (R. at 89).
Attorney Lourie also pointed out that Munster really lives between 350 and 410
feet from the door of The Skybox. (R. at 93). Lynn Moore also submitted a
petition in support of The Skybox and read into the record letters from people
What happened was, I believe it was Saturday April 4, 2009, around 12:30
at night, a large group of people, maybe 4 or 5, had come out of the
establishment very loud and yelling in the street for 5 to 10 minutes, so it
was bothersome to me. I looked out my window. I have a direct line of
sight to the bar. At that point a few people had gotten into their cars and
driven off without their headlights on. At some point they turned them on,
but were already driving before turning them on. That stopped and then 5
or 10 minutes later 3 or 4 more people came out and those people were
yelling even more and were out there quite some time and were saying
terrible things that shouldn't be said at 12:30 at night in a neighborhood,
such as "F ... U ... I want more f..king children and people were offering to
help her have more children by f..king her", and things of that nature. I
found these things they were yelling very disturbing. r didn't have my
windows open, and r could hear these things very clearly.... That was
the first incident that I really noted and then various weekends here and
there have been lots of other noise going on usually around closing time.
At 12:45 or so a group of people come out and start, you know, yelling
again and making lots of noise.
(R. at 87).
14 The call was reported by Westbrook police as being made at 2253 hours, or 10:53 PM.
8
who live next to The Skybox stating that they have never heard anything. (R. at
92).
Attorney Lourie suggested that the four Municipal Officers who
repeatedly voted against The Skybox had fixed minds, and reminded the Board
that they have a legal duty to be impartial and that they must recuse themselves
if they can't be impartial. (R. at 93). Attorney Lourie stated:
We have a rule of law in this state, in this country; we're bound by
the constitution and when you are sitting in a quasi judicial
position, you don't get to decide what is good for the community
when your administering a license, you have to decide if the license
standards are met. All of the license standards here were met.
Each of the four people who voted against it declared on previous
occasions that they would never support a bar opened at this
location. That bespeaks a fixed mind. If you have a fixed mind,
you cannot sit in judgment on a license. This is black Jetter law;
you are required to recuse yourself if you can't be impartial. I'm
not saying you can't have some pre disposition or have some
favoritism, but you can't have a fixed mind. You can't look at other
facts and twist it to prove something. This is a constitutional
requirement of a fair hearing, it's part of our system of government
and the courts are there to enforce it. I hope in the future that those
Councilors who cannot be fair minded in their approach to this,
cannot vote against this bar being there. Where it's a legal non
conforming usc, they have a legal right to be there as much as any
other use in the City. You cannot say it's inappropriate in that
location, that there are bound to be problems in the future from it.
Maybe you're right, but that's not your job. Your job is to write the
ordinance and then administer those ordinanccs.
(R. at 93-94). At least one of the Officers took issue with this statement.
Councilor Aube stated:
I take issuc with what the attorney was saying as far as what we do
up here. My thought when I was funning fOf Council that I was
elected to represent the people in my ward. If it was merely to
interpret law, then that's not why I'm sitting up here. I feel that I'm
doing what people want me to do. If they don't like it, they won't
elect me the next time.
(R. at 97-98). The City Solicitor affirmed the importance of being fair and
open-minded, stating:
9
[F]irst, you absolutely must come to this proceeding, as you do
other license application proceedings that are quasi judicial, with
an open mind. Attorney Lourie made some comments that if some
of you don't think you can participate in this with an open mind,
you should recuse yourself. I agree with him completely. If you do
not think you can consider the facts as applied to this ordinance
standard with an open mind, you ought to recuse yourself and not
vote as it is not fair to the applicants; second, there are occasions
when the Councilors have very broad discretion with regard to
policy matters, such as passing an amendment to an ordinance.
There are times, like it or not, when Maine law and Westbrook law
require you to sit in a quasi judicial capacity and again make fact
findings and apply those to legal approval standards, and this is
one of those cases. This is one of those instances, like it or not, you
are going to have to make factual determinations, and one of them
may be a credibility determination of the one lady who said there
was noise and the applicant who said there may not have been, and
then apply the factual determinations and credibility
determinations to those ordinance standards, particularly the two I
referenced earlier.
Like it our not, this is an instance where you're going to have to be
somewhat like a judge or Zoning Board Member as opposed to
having that broad discretion that you have when making policy
judgments in passing ordinances. Here you have to act in the quasi
judicial fashion and make fact findings. If the applicants have met
the standards, then you should vote yes; if they haven't, then you'd
have to vote no.
(R. at 98). Shortly after the City Solicitor made this statement, the Municipal
Officers voted against granting Moore's license renewals by a vote of four to four
- Councilors Aube, O'Hara, Gattine, and Rielly all voted against granting
renewal. (R. at 101). The four who cast the prevailing negative votes found
Munster's testimony credible, and relying on the April 4 th noise complaint
determined that the proposed facility would be a nuisance to the adjoining
property owners and would substantially and adversely affect the peace and
quiet of the neighborhood. (R. at 112).
DISCUSSION
1. Bias of the Decision Makers
10
Moore claims that the those who voted against Moore's licenses
Councilors Aube, O'Hara, Cattine, and Rielly - had fixed minds and were
biased, such that any of them or all of them should have been disqualified from
voting on Moore's license renewals. Parties to an administrative or government
proceeding are entitled to a fair and unbiased hearing. Gorha71l v. Town of Cape
Elizabeth, 625 A.2d 898, 902 (Me. 1993). Rule 80B addresses appeals of
government action, including allegations of bias by members of municipal
officers in permitting decisions. Adelman v. TOHJ1Z of BaMwin, 2000 ME 91, 1 7,750
A.2d 577, 581. "The issue of bias is properly addressed in the Rule 80B appeal
because 80I3(d) provides a specific mechanism for augmenting the record if
necessary to show bias." Id. Where a party does not file a motion for a trial on
the facts, the court's review is limited to the record. M.R. Civ. P. 80B(f). Moore
did not request a trial on the facts; therefore, the Court examines the record to
determine if bias affected the Municipal Officers' decisions on Moore's
application.
A claim of actual bias must be alleged to have had an actual effect on the
fairness of the governmental proceedings. Baker's Table, Inc. v. City of PortlQlzd,
2000 ME 7, 19, 743 A.2d 237, 241. A vague allegation of bias is insufficient. Id.
"The good faith of a public official is not lightly to be denied. Proof of prejudice
and bias sufficient to overcome the sense of responsibility to office and to
community must be heavy." Chequi1l1z Corp. v. Mullen, 159 Me. 375, 381, 193 A.2d
432, 435 (Me. 1963). A preconceived position on law, policy or legislative facts is
not a ground for disqualification; the issue is whether any Munici pal Officer
prejudged the issues in the case in favor of or against one party. Adelman v. Town
of Bald'lLlin, 1999 Me. Super. LEXIS 328, 4 (Me. Super. Ct., Cum. Cty., Dec. 8, 1999)
11
(Mills, J.) citing New England Tel. {i Tel. Co. v, Public Utilities COI/l71z'n, 448 A.2d
272, 280 (Me. 1982). In federal cases, agency officers have been disqualified from
their adjudicative positions "only after a showing of prejudgment on the specific
facts subsequently presented to the agency." New England Tel. & Tel. Co. v. Public
Utilities Comm 'n, 448 A.2d at 280.
A prejudgment of adjudicative facts can be grounds for disqualification of
a public official. Richard J. Pierce, Jr., Administrative Law Treatise, § 9.8 p. 664
(2002). "[1']0 show disqualifying prejudgment, a claimant must demonstrate that
the mind of the decisionmaker is 'irrevocably closed" on the particular issues
being decided." Stein, Mitchell & Mezines, Administrative Law, § 35.03 pp. 42-43
(2007) "If bias is proven, a judgment arising from the prejudicial proceeding
will be invalidated." Id at § 35.03 p. 33.
Moore argues that the Board impermissibly considered complaints about
the bar when it was under prior management in making its decision. The State
Bureau of Liquor Enforcement overruled the Board's denial of Moore's liquor
license on the grounds that the Municipal Officers impermissibly based their
reasoning on the history of the bar when it was under prior management. 15
During the April 6th and May 4 th hearings, the comments of the dissenting voters
continued to rely on the history of complaints associated with bars at The
Skybox's location. Despite Moore's argument, the Court rules that the Municipal
Officers are allowed to consider the history of complaints at The Skybox's
location. Nothing in the City of Westbrook's license requirements under City
15 It appears the Bureau of Liquor Enforcement interprets the State liquor license
requirements as providing new applicants with a clean slate. The Board did not appeal
the Bureau's determination.
12
Ord. § 20-9 suggests such considerations are precluded. Additionally, it is
unreasonable to expect the Municipal Officers to approach this decision while
totally ignoring the history of the operation of a bar on the premises. It is of
course, relevant to consider the extent to which the business has been or will be
operated in the same way or differently from past operations.
Turning to allegations that individual Municipal Officers were biased, the
operative inquiry is whether a Municipal Officer's preconceptions or
prejudgments evidence that their minds were closed or fixed, such that they
could not fairly evaluate the facts of Moore's application. Based on the evidence
in the record, the court concludes that Councilor Aube was biased against
Moore's applications. Councilor Aube voted against Moore's liquor license in
August 2008, and she voted against granting Moore's victualer's, pool, and
pinball/ video game licenses at both the April 6 th and May 4 th hearings.
Councilor Aube's statements during the April 6th (supra p. 5) and May 4 th (supra
p. 9) hearings evidence her bias against Moore's applications. The court is
especially troubled by Councilor Aube's statements during the May 4th hearing
after Attorney Lourie commented on the duty to be impartial. Supra p. 9. These
statements indicate that Aube prejudged issues of fact before considering
Moore's application and that she ignored her duty as a quasi-judicial
decisionmaker. Even though the City Attorney made an effort to redirect the
Municipal Officers following Aube's statements, Aube did not speak again
durirg this hearing and nothing in the record indicates that Aube retreated from
her hard line position. Because of Councilor Aube's evident bias she should not
have participated in the vote on Moore's applications.
13
The court does not need to examine the potential bias of the other
Municipal Officers or address Moore's other claims to conclude that Moore's
appeal should be granted. The parties disagree about what the appropriate
remedy is when a municipal board's decision is affected by bias. Moore
contends that since the vote denying the license was 4-4, the vote of a biased
Municipal Officer should be disqualified and the Moore's application should be
approved. The Court has not found legal support for t~is remedy. Generally,
when bias taints a proceeding, no judgment based on the proceeding will be
allowed to stand. Stein, Mitchell & Mezines, Admillistrative Law, § 35.03 pp. 33
34. Although the Maine Administrative Procedures Act (APA), 5 M.R.S. §§ 8001
11008, does not speak directly to municipal administrative procedures, the Court
looks to the APA for guidance. Under Maine's APA when a decision is affected
by bias the decision is vacated and remanded. Kroeger v. Dep't of Ellvtl. Prot., 2005
ME 50, en 7, 870 A.2d 566, 569 citing 5 M.R.S. § 11007(4)(C).
DECISION
Therefore, the entry is:
Moore, Inc.'s Appeal is GRANTED. The City of Westbrook's decision is
vacated and remanded for further proceeding consistent with this Order.
Dated at Portland, Maine this ~ J!ZP day of _JIl-",/4!<..--~~_ _--" 2010.
ert E. Crowley
Justice, Superior Court
14
Date Filed _0_4~-_2_2_-_0_9 _ CUMBERLAND Docket No. _ _AP_-_0_9__-_1_1 ------,
----------
County
•
Action 80B APPEAL
MOORE, INC. CITY OF WESTBROOK
RICHARD GOUZIE
BRENDAN REILLY
JOHN O'HARA
DOROTHY AUBE
DREW GATTINE
Ys.
Plaintiff's Attorney Defendant's Attorney
EDWARD BENJAMIN ESQ.
DAVID A. LOURIE, ESQ. JASON DONOVAN ESQ (all defendants)
189 SPURWINK AVENUE PO BOX 4630
CAPE ELIZABETH, ME 04107-9604 PORTLAND, ME 04101
WILLIAM DALE, ESQ. (DEFS)
PO BOX 4510
PORTLAND, ME 04112
Date of
Entry
2009