     16-1078
     New Page at 63 Main, LLC et al. v. Inc. Vill. of Sag Harbor et al.

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
     RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
     ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
     OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of December, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER, JR.,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12
13   NEW PAGE AT 63 MAIN, LLC, 63 MAIN LLC,
14             Plaintiffs-Appellants,
15
16                -v.-                                           16-1078
17
18   INCORPORATED VILLAGE OF SAG HARBOR,
19   BRIAN GILBRIDE, TIMOTHY PLATT,
20            Defendants-Appellees.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANTS:                         Lawrence Ellis Kelly, Bayport, NY.
25
26   FOR APPELLEES:                          Anne C. Leahey, Devitt Spellman
27                                           Barrett, LLP, Smithtown, NY.


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 1
 2        Appeal from a final order of the United States District Court
 3   for the Eastern District of New York (Spatt, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 6   DECREED that the judgment of the district court be AFFIRMED.
 7
 8        New Page at 63 Main LLC and 63 Main LLC appeal from the final
 9   order of the United States District Court for the Eastern
10   District of New York (Spatt, J.) dismissing all of their claims
11   against the Incorporated Village of Sag Harbor (“the Village”),
12   its mayor Brian Gilbride, and inspector Timothy Platt pursuant
13   to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We
14   assume the parties’ familiarity with the underlying facts, the
15   procedural history, and the issues presented for review.

16        This case arises from disputes over the “occupancy load”
17   (apparently, the maximum seating capacity) of a restaurant
18   operated by plaintiffs, and from the defendants’ suspension of
19   a license agreement that permitted the restaurant to use outdoor
20   dining space. Plaintiffs’ action in state court, pursuant to
21   Article 78 of the New York Civil Practice Law and Rules, was
22   dismissed in August 2015. Plaintiffs then brought this action
23   pleading constitutional claims pursuant to 42 U.S.C. § 1983.
24   They contend that defendants’ revocation of plaintiffs’ license
25   for outdoor dining (or actions related thereto) constituted (1)
26   First Amendment retaliation, (2) a bill of attainder in violation
27   of Article I, § 10 of the U.S. Constitution, (3) a Fourteenth
28   Amendment Due Process violation, and (4) a Fourteenth Amendment
29   Equal Protection violation; and, additionally, that (5) Gilbride
30   and Platt entered plaintiffs’ property without consent in
31   violation of the Fourth Amendment.

32        We review de novo the district court’s dismissal of a
33   complaint pursuant to Rule 12(b)(6), accepting all factual
34   allegations in the complaint as true and drawing all reasonable
35   inferences in the plaintiff’s favor. Chambers v. Time Warner,
36   Inc., 282 F.3d 147, 152 (2d Cir. 2002).

37        1. Plaintiffs allege (with scarce details as to time or
38   circumstance) that they engaged in protected speech critical
39   of the Village’s slow processing of building permits and that

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 1   defendants retaliated by revoking their outdoor-dining license,
 2   causing them monetary damages.

 3        In order to state a § 1983 claim for First Amendment
 4   retaliation, a plaintiff must plead facts sufficient to show
 5   that “(1) he has a right protected by the First Amendment; (2)
 6   the defendant’s actions were motivated or substantially caused
 7   by his exercise of that right; and (3) the defendant’s actions
 8   caused him some injury.” Dorsett v. County of Nassau, 732 F.3d
 9   157, 160 (2d Cir. 2013).

10        Setting aside whether plaintiffs have satisfied the first
11   and third requirements of a retaliation claim by sufficiently
12   alleging protected speech and damages, they clearly failed to
13   plead facts to show that defendants’ actions “were motivated
14   or substantially caused” by plaintiffs’ protected speech. The
15   complaint alleges that Platt and Gilbride on separate occasions
16   each made a single negative comment directed toward the
17   plaintiffs, and evidently motivated by plaintiffs’ failure (in
18   Platt and Gilbride’s view) to abide by maximum occupancy limits.
19   Irrespective of the merits of the dispute over occupancy, neither
20   comment, as alleged, pertains to public criticisms (or other
21   protected speech) or implies retaliation for them, nor do
22   plaintiffs plead any other facts to support such an inference.
23   Accordingly, we agree with the district court that the First
24   Amendment retaliation claim must be dismissed.

25        2. Plaintiffs allege that “the Board of Trustees of the
26   [Village] publicly passed a resolution revoking the license
27   agreement between the [Village] and plaintiffs for dining in
28   the front space at” the restaurant. Compl. ¶ 106, J.A. 26. This
29   “resolution” is alleged to be a bill of attainder, prohibited
30   by Article I, Section 10 of the U.S. Constitution.

31        “[T]he Bill of Attainder Clause prohibits any ‘law that
32   legislatively determines guilt and inflicts punishment upon an
33   identifiable individual without provision of the protections
34   of a judicial trial.’” ACORN v. United States, 618 F.3d 125,
35   135-36 (2d Cir. 2010) (quoting Selective Serv. Sys. v. Minn.
36   Pub. Interest Research Grp., 468 U.S. 841, 846-47 (1984)).

37        The allegations in the complaint, accepted as true, do not
38   establish that the “resolution” revoking the outdoor-dining

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 1   “license agreement” constitutes a law or a legislative
 2   determination of anything within the contemplation of Article
 3   I, Section 10. Plaintiffs do not sufficiently plead (or
 4   persuasively argue) that the Village Board of Trustees is a
 5   legislature or that the resolution is more than a decision to
 6   revoke or suspend an agreement by a party to that agreement.
 7   Even if we assume that the Board of Trustees is a legislative
 8   body and that the resolution was a bill within the meaning of
 9   Article I, the revocation of the outdoor-dining license does
10   not “fall[] within the historical meaning of legislative
11   punishment.” ACORN, 618 F.3d at 136. The complaint therefore
12   does not plausibly plead a violation of the Bill of Attainder
13   Clause.

14        3. Plaintiffs appear to allege violations of their
15   substantive due process rights, and they argue on appeal that
16   the district court wrongly dismissed their substantive due
17   process claims. The nature of those alleged violations is
18   unclear. Plaintiffs aver that defendants “are involved in
19   criminal conduct, seizing and destroying relevant and material
20   records while under a mandatory state duty on records creation
21   and retention,” and that the revocation of plaintiffs’
22   outdoor-dining license was “predicated on these illegal and
23   criminal acts.” Appellant Br. 23. But these conclusory
24   assertions are not supported by well-pleaded facts. “[T]he
25   threshold question” in a § 1983 substantive due process claim
26   “is whether the behavior of the governmental officer is so
27   egregious, so outrageous, that it may fairly be said to shock
28   the contemporary conscience.” County of Sacramento v. Lewis,
29   523 U.S. 833, 847 n.8 (1998). The plaintiffs do not plead
30   sufficiently specific facts to establish any conduct approaching
31   that high bar.

32        Nor is it plausibly alleged that defendants violated
33   plaintiffs’ procedural due process rights. In order for a
34   procedural due process claim to survive dismissal under Rule
35   12(b)(6), “a plaintiff must plead facts sufficient to give rise
36   to a claim that he was deprived of his property without
37   constitutionally adequate pre- or post-deprivation process.”
38   Ahlers v. Rabinowitz, 684 F.3d 53, 62 (2d Cir. 2012) (quotation
39   marks omitted). The only “property” deprivation that
40   plaintiffs allege is the license to serve customers on the

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 1   sidewalk in front of their restaurant. But to claim a protected
 2   property interest in that license, plaintiffs must “have a
 3   legitimate claim of entitlement to it”; that is, they “clearly
 4   must have more than an abstract need or desire and more than
 5   a unilateral expectation of it.” Town of Castle Rock v.
 6   Gonzales, 545 U.S. 748, 756 (2005) (quotation marks omitted).

 7        The Code of the Village of Sag Harbor provides for the
 8   issuance of outdoor-dining licenses by the Board of Trustees.
 9   See Village Code § 300-11.17(D)(1). Plaintiffs assert that the
10   Village “does not have unfettered discretion” in the regulation
11   of sidewalk dining. Appellant Br. 24. However, they have
12   identified no specific limitations on its discretion, nor have
13   they presented any persuasive argument that some such limitation
14   was violated. Plaintiffs therefore failed to plausibly allege
15   a legitimate claim of entitlement. Moreover, even if they were
16   entitled to an outdoor-dining license, they initiated an Article
17   78 proceeding challenging the revocation, and they present no
18   persuasive argument that this proceeding was insufficient
19   post-deprivation process to satisfy the Fourteenth Amendment.
20   The procedural due process claim therefore must be dismissed.

21        4. Plaintiffs contend that they were singled out for
22   differential treatment for which there is no rational basis,
23   in violation of the Equal Protection Clause of the Fourteenth
24   Amendment. In order to succeed on that claim, plaintiffs must
25   establish that “(i) no rational person could regard the
26   circumstances of the plaintiff[s] to differ from those of a
27   comparator to a degree that would justify the differential
28   treatment on the basis of a legitimate government policy; and
29   (ii) the similarity in circumstances and difference in treatment
30   are sufficient to exclude the possibility that the defendants
31   acted on the basis of a mistake.” Ruston v. Town Bd. for Town
32   of Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010) (quotation marks
33   omitted).

34        Plaintiffs vaguely refer to other restaurants with outdoor
35   seating, but they identify no comparator with sufficient
36   specificity to meet this high standard. Plaintiffs’ conclusory
37   allegations identify no comparator similarly situated in all
38   material respects; they notably make no allegations about other
39   restaurants exceeding maximum occupancy loads or disputing

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 1   occupancy limits. The equal protection claim was therefore
 2   appropriately dismissed.

 3        5. Plaintiffs allege that Platt and other inspectors “made
 4   [entry] onto the property” of the restaurant without consent,
 5   compl. ¶ 132, J.A. 32, in violation of the Fourth Amendment.
 6   Such entries were allegedly made on multiple, though
 7   unspecified, occasions and were calculated “to intimidate
 8   plaintiffs through unlawful entry and direct threats to the
 9   livelihood of plaintiffs without lawful justification.” Id. ¶
10   133. These spare and conclusory allegations do not specify
11   dates or times or circumstances. Such omissions are especially
12   significant considering that the allegations pertain to
13   inspectors visiting a restaurant: the reasonable expectation
14   of privacy on the premises of a restaurant is diminished relative
15   to, for instance, a private residence, and there is a legitimate
16   public interest in regulatory inspections. Diminished
17   expectations of privacy and the need for inspections do not
18   authorize any entry at any time and under any circumstances;
19   but plaintiffs do not plead facts with sufficient specificity
20   to establish impropriety. We agree with the district court that
21   defendants fail to plausibly allege a Fourth Amendment claim.

22        Accordingly, and finding no merit in appellants’ other
23   arguments, we hereby AFFIRM the final order of the district
24   court.

25                                FOR THE COURT:
26                                CATHERINE O’HAGAN WOLFE, CLERK




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