JOSEPH P. CARNEY VS. MAYOR EDWARD MAHANNEY, JR. (L-0119-16, CAPE MAY COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2541-18T3
JOSEPH P. CARNEY
and CARNEY'S, INC.,
Plaintiffs-Appellants,
v.
MAYOR EDWARD MAHANNEY,
JR., and THE CITY OF CAPE MAY,
Defendants-Respondents.
_______________________________
Submitted March 16, 2020 – Decided July 15, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0119-16.
Jacobs & Barbone, PA, attorneys for appellants (Louis
Michael Barbone, on the brief).
Gemmel Todd & Merenich, PA, attorneys for
respondents (Robert P. Merenich, on the brief).
PER CURIAM
Plaintiffs Joseph P. Carney and his company, Carney's Inc. (Carney's), a
bar in Cape May, appeal from a January 2, 2019 order granting defendants',
Mayor Edward Mahanney, Jr. and the City of Cape May, motion for summary
judgment and dismissing plaintiffs' complaint. The matter arose after a fight
occurred at Carney's that resulted in the bar being shut down prior to its 3:00
a.m. closing time. In their complaint, plaintiffs claimed, among other assertions,
that Mahanney ordered the bar's closing and in doing so violated the New Jersey
Civil Rights Act (NJCRA), N.J.S.A. 10:6-2(c).
In a comprehensive forty-one page written decision, Judge Christopher
Gibson found that Mahanney did not order the closing, but even if he did, the
evidence did not demonstrate a violation of the NJCRA because Mahanney's
conduct was not "'egregious' government action that 'shock[ed] the conscience.'"
On appeal, plaintiffs argue that the parties' dispute over whether Mahanney
ordered Carney's to close for the night was a genuine issue of material fact that
should have prevented summary judgment from being entered as to their NJCRA
claim. We disagree and affirm, substantially for the reasons expressed by Judge
Gibson in his thorough decision.
The facts viewed in a light most favorable to plaintiffs are summarized as
follows. Carney's was operated under a plenary retail license. The assault that
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gave rise to this action between a patron and a bartender occurred on September
14, 2014, and resulted in numerous injuries to the participants, the patron's
arrest, and the discharge of the bartender. After police responded to the scene,
Carney's closed at approximately 2:00 a.m., even though the bar's scheduled
closing time was 3:00 a.m.
According to plaintiffs, prior to the closing, a police sergeant first
approached Carney and told him that "the mayor told [him] to shut [Carney's]
down," then "the mayor . . . came over, [and] told [Carney] to close down
again." In response, Carney told Mahanney he did not "know if [Mahanney]
ha[d] that authority." Mahanney implied that he did and informed him that if he
closed Carney's for the night, he would not call the Alcoholic Beverage
Commission (ABC). According to Carney, he then told Mahanney the
following:
Mr. Mayor, I don't believe that to be true. I believe you
will call the ABC regardless of whether I close down or
not. But as the governing mayor of this town, I'm going
to show you some respect and I'm going to close
Carney's down and stop the music and . . . ask the folks
to leave.
The following Monday, an ABC officer visited Carney's. No action was
taken by the ABC until November 24, 2014, when it suspended plaintiffs' license
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for thirty-six days for the incident. The suspension was not Carney's first, as its
license had been suspended several times for serving under-aged patrons.
Plaintiffs' license was renewed in June 2015 subject to numerous proposed
conditions. The ABC's letter setting forth the conditions also stated that plaintiff
could request a hearing on the imposition of the conditions. Plaintiffs requested
a hearing, which was held before the city council on June 30, 2015. At the
meeting, the members of the council discussed Carney's alleged history of
seventy-eight calls for service during the period from January 1, 2014 to
September 15, 2014. Those calls included: fifteen disorderly incidents, one
noise complaint, seven EMS calls, one drug violation, one theft, two simple
assaults, two aggravated assaults, one sexual assault, one ABC investigation,
and forty-seven general calls. Due to the September 14, 2014 incident, and the
numerous past service calls, especially the sexual assault allegation, the
proposed conditions were implemented despite plaintiffs' objections.
Plaintiffs did not appeal from the special conditions, instead, they filed
their complaint in this action, which they later amended. The first count alleged
that defendants violated the NJCRA by ordering Carney's to shut down early on
September 14, 2014, without due process, and causing injury to plaintiffs'
reputation by publishing at the council meeting that Carney's had seventy-eight
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calls for service to the police. In the second count, they alleged a violation of
the NJCRA for "unequal and/or disparate treatment" of Carney's.
During discovery, Carney, Mahanney, and the police sergeant, who
responded to the September 2014 incident, were deposed about the closing of
Carney's that night. Carney denied that there was an agreement that night
between him and Mahanney about closing Carney's. He stated that he did not
know whether Mahanney had the authority to close Carney's, although he
learned later Mahanney did not, "but, out of respect [for] the law, [he] took him
at his word that he might be . . . a person who could tell [him] to shut down."
Additionally, while describing his conversation with the sergeant at the scene,
Carney stated that the officer
for sure, heard the mayor say, okay, [Carney], I'll tell
you what, if you shut your doors down now, I won't
call the ABC. And I said, well, I'm not sure that I
believe that, but, [sergeant], you heard it. And the
mayor . . . stuck out his hand to shake mine, which I did
out of respect.
Carney also stated that despite the handshake, he believed Mahanney still called
the ABC, but confirmed he did not have proof to support this claim.
During Mahanney's deposition, he confirmed that he had no authority to
shut down any bar as that power was within the jurisdiction of the ABC, which
had a designated officer responsible for enforcement. According to Mahanney,
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the only action he ever took when confronted by a violation was to inform the
city's manager. He also explained that the city council was only involved in
license renewals and transfers.
Addressing the night of the incident, Mahanney indicated that he was on
his way home from a late night at work, when he decided to drive past the bars.
After he saw a brawl taking place outside of Carney's at approximately 1:15 am,
he decided to stop, get out of his car, and see what was happening. Mahanney
was just standing around watching, when the sergeant came over to talk to him.
During their conversation, Mahanney asked whether the officer was going to
close Carney's for the night as the commotion outside of Carney's was "really
tenuous." After checking with another sergeant, the officer informed Mahanney
that the police department lacked that authority.
Mahanney stated that at approximately 1:55 a.m., he had a conversation
with Carney, who informed him that he planned to close for the night around
2:00 a.m. if Mahanney promised not to contact the ABC. Mahanney denied ever
saying that he was going to close Carney's early or that he had the authority to
do so. He also denied calling the ABC or having someone call on his behalf
after the incident. He understood that a police detective contacted the ABC.
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During the responding sergeant's deposition, he stated that he contacted
another officer who informed him that the police did not have the authority to
shut down Carney's on the night of the incident. In relation to Carney's and
Mahanney's conversation that night, he testified that he overheard the two
"c[o]me to an agreement that . . . [Carney] would close [Carney's] a half hour
early," so long as Mahanney agreed not to contact the ABC. He also testified
that Mahanney never ordered Carney's to close early.
On September 28, 2018, defendants filed a notice of motion for summary
judgment. After considering the parties' oral arguments on November 16, 2018,
Judge Gibson later issued the January 2, 2019 order granting summary judgment
as well as his written decision. This appeal followed.
We review a court's grant of summary judgment de novo, applying the
same standard as the trial court, without affording any deference to that court's
legal conclusions. RSI Bank v. Providence Mut. Fire Ins., 234 N.J. 459, 472
(2018). Summary judgment must be granted "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. of Pittsburgh, 224 N.J.
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189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of material fact is 'genuine
only if, considering the burden of persuasion at trial, the evidence submitted by
the parties on the motion, together with all legitimate inferences therefrom
favoring the non-moving party, would require submission of the issue to the trier
of fact.'" Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)); accord R. 4:46-2(c).
On appeal, plaintiffs argue that the determination of the NJCRA claim
depended upon whether Mahanney ordered Carney to close his business, and
therefore, there "was a material and disputed fact" that should not have been
determined on summary judgment. They claim that the government's entry into
Carney's and Mahanney's subsequent order to shut down, deprived Carney of his
"constitutional rights, his statutory privileges and his substantive due process
rights." In the alternative, plaintiffs argue that even if this was not a
constitutional seizure, defendants' acts "deprived [Carney] of a vested 'privilege'
to operate his bar." Relying on Felicioni v. Admin. Office of the Courts, 404
N.J. Super. 382, 392 (App. Div. 2008), abrogated in part by Perez v. Zagami,
LLC, 218 N.J. 202, 209-12 (2014), plaintiffs also assert that there was a
violation of Carney's substantive due process rights. We disagree.
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The New Jersey Constitution, protects "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." N.J. Const. art. I, ¶ 7. Under the NJCRA, a party "may
bring a civil action for damages and for injunctive or other appropriate relief" if
they have
been deprived of any substantive due process or equal
protection rights, privileges or immunities secured by
the Constitution or laws of the United States, or any
substantive rights, privileges or immunities secured by
the Constitution or laws of this State, or whose exercise
or enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by
a person acting under color of law.
[N.J.S.A. 10:6-2(c).]
The NJCRA provides a remedy for the violation of substantive rights , not
the right to procedural due process. Tumpson v. Farina, 218 N.J. 450, 477
(2014). The NJCRA was enacted to provide, "a remedy for the violation of
substantive rights found in our State Constitution and laws." Id. at 474.
"[S]ubstantive due process is reserved for the most egregious governmental
abuses against liberty or property rights, abuses that 'shock the conscience or
otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to
human dignity.'" Felicioni, 404 N.J. Super. at 392 (second, third, and fourth
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alterations in original) (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 143
N.J. 352, 366 (1996)); see also Filgueiras v. Newark Pub. Sch., 426 N.J. Super.
449, 469 (App. Div. 2012).
Unlike the right to own property, the ability to operate a specific business
is "not protected by substantive due process." Wrench Transp. Sys., Inc. v.
Bradley, 340 F. App'x 812, 815 (3d Cir. 2009); 1 State v. Badr, 415 N.J. Super.
455, 470 (App. Div. 2010) (explaining that a business owner's right to "operate
a hookah bar [did] not implicate a fundamental right"). Operating a business
under a liquor license does not alter the protections afforded by the statute. A
"liquor license, although transferable, is . . . a temporary permit or privilege, and
not property." Boss Co. v. Bd. of Comm'rs of Atl. City, 40 N.J. 379, 387 (1963);
see also In re Xanadu Project at the Meadowlands Complex, 415 N.J. Super.
179, 195, 198, 210 (App. Div. 2010) (affirming an ABC director's finding that
a liquor license did "not create a constitutionally protected property right").
Further, the license is not a privilege secured by the Constitution. See Cavallaro
556 Valley St. Corp. v. Div. of Alcoholic Beverage Control, 351 N.J. Super. 33,
40 (App. Div. 2002) (explaining that there were "no constitutional implications
1
We turn to federal law for guidance because the NJCRA is based upon the
federal Civil Rights Act, 42 U.S.C. § 1983. See Tumpson, 218 at 474.
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present" when dealing with "a liquor license [as the ownership of the license] is
a privilege and not a property right").
However, a license is protected by N.J.S.A. 33:1-26. The statute will
protect a license "from any device which would subject it to the control of
persons other than the licensee, be it by pledge, lien, levy, attachment, execution,
seizure for debts or the like." Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J.
349, 362 (2010) (quoting Boss Co., 40 N.J. at 388). While a liquor license is
not property, "it cannot be revoked, suspended or denied renewal without an
adequate opportunity to be heard." Xanadu Project at the Meadowlands
Complex, 415 N.J. Super. at 199. Only the director or another issuing authority
of the ABC has the authority to revoke a license. N.J.S.A. 33:1-31 ("Any
license, whether issued by the director or other issuing authority, may be
suspended or revoked by the director, or the other issuing authority may suspend
or revoke any license issued by it . . . ."). The opportunity to be heard gives rise
to a right to procedural due process that is not protected by the NJCRA. Mattson
v. Aetna Life Ins., 124 F. Supp. 3d 381, 390 (D.N.J. 2015), aff'd, 653 F. App'x
145 (3d Cir. 2016); see also Tumpson, 218 N.J. at 477.
Here, there was no dispute that Mahanney did not have authority to close
Carney's at any time. Further, as correctly found by the motion judge, Carney's
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testimony pertaining to negotiations to close down Carney's early was not
enough to meet the standard for summary judgment. However, whether there
was an agreement between Mahanney and Carney is immaterial because even if
Mahanney ordered plaintiff to close Carney's, there was no substantive due
process right violated. Even if there was, we agree with Judge Gibson that,
under the circumstances of that evening, closing the bar early was not egregious
and did not shock the conscience.
Affirmed.
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