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Smith v. City of Lebanon

November 12, 2009


The opinion of the court was delivered by: Judge Conner


This civil rights case stems from plaintiff Lori Smith's notion that the Constitution affords her the right "to engage in the business enterprise of [her] choosing" free from government interference and irrespective of the criminal laws. (Doc. 27 at 5.) Specifically, Smith claims that the City of Lebanon violated her First and Fourteenth Amendment rights when officers questioned and arrested patrons of Smith's tavern for, inter alia, public intoxication, urination, vomiting, loitering, and drug activity. In addition, Smith contends that defendants unlawfully interfered with her business in contravention of state law. Presently before the court is a motion for summary judgment on all claims. (See Doc. 17.) For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn1

The question presented by the instant action essentially examines whether the frequent presence of law-abiding police officers in and around a neighborhood drinking establishment may subject municipal actors to constitutional tort liability. Plaintiff Lori Smith ("Smith") is owner and manager of the Liberty Square Café ("LSC"), a tavern located in a high-crime district in the northwest section of the City of Lebanon ("Lebanon").*fn2 (Doc. 19 ¶¶ 1-2; Doc. 24 ¶¶ 1-2.) At all times relevant to this matter, the Lebanon police department has maintained a small substation directly across the street from LSC. (Doc. 19 ¶ 3; Doc. 23 ¶ 3.) Regular staff are not assigned to the substation, but officers may access the building twenty-four hours per day to conduct department business. (See Doc. 18, Ex. B at 14-15.) A designated parking area for police personnel lies adjacent to the substation, but it is not uncommon for police cruisers to park on the street outside the substation, in close proximity to LSC. (See id. at 19-21.) Because of the spatial appropinquity of the tavern to the substation, uniformed officers are often visible from LSC property across the street. (See id.; Doc. 19 ¶ 3; Doc. 24 ¶ 3.) Additionally, defendant officers Lawrence Minnick*fn3 ("Minnick") and David Lear ("Lear") are each assigned a foot patrol covering the immediate area, rendering their neighborhood presence somewhat constant. (See Doc. 19 ¶¶ 33, 46; Doc. 24 ¶¶ 33, 46.)

A. Initial Licensing Difficulties: 2004-2005

On February 24, 2004, Smith received correspondence from the Pennsylvania Liquor Control Board ("PLCB") regarding renewal of LSC's liquor license. (See Doc. 19 ¶ 6; Doc. 24 ¶ 6.) The letter highlighted "allegations of abuse of [LSC's] licensing privilege," including "sales to minors, assaults, fights, disorderly operations and sales to visibly intoxicated pa[tr]ons." (Doc. 18, Ex. D at depo. ex. 1.) PLCB also noted two recent citations issued to the drinkery, one for operating illegal gambling devices and the other for oversale of alcohol for off-premises consumption. (See Doc. 18, Ex. D at depo. exs. 2-3; see also id., Ex. D at 16-19.) Although LSC's license was renewed, PLCB admonished Smith to "take affirmative steps to prevent violations of the Liquor Code and/or employees and patrons from engaging in inappropriate activities in and around your premises." (Doc. 18, Ex. D at depo. ex. 1.)

Following receipt of this letter, Smith met with defendant and Lebanon mayor Robert Anspach ("Anspach"), and chief of Lebanon police William Harvey ("Harvey"). (Doc. 19 ¶ 9; Doc. 24 ¶ 9.) Smith expressed concern regarding the warnings contained in the letter, while Anspach and Harvey indicated that they were theretofore unaware of PLCB's action. (See Doc. 18, Ex. D at 22.) The three also discussed various difficulties posed by LSC's neighborhood clientele and the near-constant presence of loiterers directly outside the bar. (See id. at 22-23.) This meeting marked the first instance in which Smith had spoken with either Anspach or Harvey, (see id. at 15-16), and Anspach testified that he left the encounter "thinking that we were going to... start a new era of cooperation" between the tavern and the city, (Doc. 18, Ex. A at 20).

After the meeting, Smith implemented several changes designed to discourage loitering, drug trafficking, and other criminality in and around the tavern. (Doc. 19 ¶ 11; Doc. 24 ¶ 11.) Specifically, LSC (1) installed additional security cameras, (2) erected a security fence to prevent congregation to the rear of the facility, (3) changed the hours of operation so that the taphouse would close earlier, (4) prohibited customers from receiving incoming phone calls to the house phone, and (5) refused to make change for $20 bills in order to inhibit $10 narcotics transactions. (See Doc. 18, Ex. D at 26-27, 30, 33-34, 41-42.) In spite of these adaptations, neighborhood residents continued to complain of publicly intoxicated customers, public urination, vomiting on the sidewalk, broken bottles, and drug trafficking activity in and around LSC.*fn4 (See Doc. 18, Ex. A at 21-22; id., Ex. B at 13; Doc. 19 ¶¶ 4, 25; Doc. 24 ¶¶ 4, 25.) Furthermore, Smith continued to observe drug transactions inside the tavern itself; Smith concedes, however, that she never contacted the police when she noticed such behavior. (Doc. 18, Ex. D at 11-12.)

In 2005, Anspach commenced campaigning for re-election on an anti-crime platform. (Doc. 19 ¶ 19; Doc. 24 ¶ 19.) One facet of this campaign included a municipal effort to close "nuisance bars"-defined by Anspach as those facilities that engendered excessive complaints regarding noise, public urination and vomiting, loitering after hours, and which required law enforcement assistance on a regular basis. (See Doc. 19 ¶ 20; Doc. 24 ¶ 20.) According to Anspach, LSC fit this definition. (Doc. 18, Ex. A at 9.) He thus requested that PLCB commissioner Tom Goldsmith investigate the tavern to ensure that it was in compliance with state liquor licensing laws.*fn5 (See Doc. 19 ¶ 28; Doc. 24 ¶ 28.) Anspach did not request that LSC's license be revoked or its renewal be denied, and did not follow up with PLCB after his initial request. (See Doc. 19 ¶ 28; Doc. 24 ¶ 28.)

B. License Revocation: Early 2006

In February 2006, Smith received a letter from PLCB questioning whether LSC had abused its licensing privilege. (See Doc. 19 ¶ 12; Doc. 24 ¶ 12.) This correspondence referenced "six (6) incidents of disturbance at or immediately adjacent to your licensed establishment during the time period January 2004 to the present." (Doc. 18, Ex. D at depo. ex. 4.) The incidents were reported to PLCB by the Lebanon police department and included conduct encompassing "disorderly operations, a fight and drug activity at or near the licensed premises." (Id.) Smith was advised that she would be permitted an opportunity to be heard at a future date, and LSC was afforded temporary authority to continue operations in the interim. (Id.)

Smith claims that the presence of police officers in and around LSC increased dramatically after receipt of PLCB's license renewal letter in February 2006. (See Doc. 18, Ex. D at 85.) To bolster this contention, Smith submits a log purporting to chronicle each interaction between LSC employees, patrons, and the Lebanon police in 2006. (See Doc. 24, Ex. 3.) Several of the log entries describe instances in which officers-Minnick and Lear included-entered the tavern to inquire whether those present were in possession of information sought by law enforcement. (See id.) Other log entries document occasions of law enforcement ingression into the men's bathroom to search for narcotics. (See id.) Still others record Smith's observations of police interaction with loiterers and recent bar patrons outside of the tavern. (See id.) Many simply document the presence of officers in and around the substation across the street. (See id.) In total, the log contains forty-three entries describing varying degrees of LSC-police interaction.*fn6

Smith does not contend that any of these interactions was violative of the Fourth Amendment.

In addition, Minnick and Lear offer testimony concerning their dealings with LSC employees and patrons, as well as employees of other Lebanon drinking establishments, in 2006. Both officers testified that they routinely entered local alehouses-LSC included-looking for wanted individuals or those under suspicion of parole violation.*fn7 (See Doc. 19 ¶¶ 36, 38, 53; Doc. 24 ¶¶ 36, 38, 53.) Both also testified that they have never stopped and searched an individual simply because he or she was entering or exiting LSC, and there is no evidence to the contrary. (See Doc. 19 ¶¶ 37, 50; Doc. 24 ¶¶ 37, 50.) There is undisputed evidence, however, of specific police interaction with LSC patrons engaging in criminal behavior. For example, on February 2, 2006, Minnick observed a hand-to-hand drug transaction outside of the tavern, which led him to stop and arrest the participants and recover narcotics. (See Doc. 18, Ex. B at 37-38; Doc. 19 ¶ 52; Doc. 24 ¶ 52.) On a subsequent occasion, Minnick observed a known burglary suspect enter the bar; Minnick followed the suspect ...

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