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Devecchis v. Scalora

United States District Court, D. Connecticut

March 31, 2016

TYLER DeVECCHIS et al., Plaintiffs,
v.
SEBASTIAN J. SCALORA et al., Defendants.

RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

VICTOR A. BOLDEN, District Judge.

I. INTRODUCTION

This case concerns events leading to the closing of Tyler DeVecchis's bar, and his filing for bankruptcy protection. DeVecchis, his company, Main Street Productions, LLC, and the bankruptcy trustee, John J. O'Neil, Jr., (collectively, "Plaintiffs") filed this action against the City of Middletown ("Middletown" or the "City"), Sebastian N. Giuliano, Patrick T. McMahon, Gregory B. Sneed, William Warner, and Bruce E. Driska (collectively, the "Middletown Defendants"), as well as Jerry Farrell, Jr. and Sebastian Scalora.[1] All remaining Defendants move for summary judgment as to all counts.

For the reasons stated herein, the Middletown Defendants' motion is GRANTED IN PART AND DENIED IN PART, and Sebastian Scalora's motion is FOUND AS MOOT. The Court concludes that no genuine dispute of material fact exists with respect to Plaintiffs' claims arising under federal law, and declines to exercise supplemental jurisdiction over the remaining state law claims.

II. FACTS[2]

On or about September 6, 2009, Chris Lieder applied to the Middletown Planning and Zoning Commission ("Zoning Commission") for a Special Exception to convert a building on Main Street in Middletown into a bar/restaurant. Middletown Defs.' L.R. 56(a)1 Stmt. (ECF No. 163-2) and Pls.' L.R. 56(a)2 Stmt. (ECF No. 169-2) [hereinafter "Stmts."] ¶ 1. As presented to the Commission, the initial concept for the establishment, then called Bungalow, was an upscale martini bar. Id. ¶ 2. On October 11, 2006, the Zoning Commission granted Lieder's application for a Special Exception to use the building as a nightclub (the "Original Special Exception"). Id. ¶ 3. The Original Special Exception was subject to four conditions, one of which stated that, "[t]he Special Exception form filed on the land records shall reference the business plan and the discussions at the public hearing and require that any change in concept be approved as a new Special Exception by the Planning and Zoning Commission[.]" Id. ¶ 5.

In 2008, DeVecchis became acquainted with Lieder, and they formed a business partnership to operate Bungalow, which later was renamed Public Bar & Grill ("Public"). Id. ¶ 6. On or about June 11, 2007, DeVecchis and Lieder formed Main Street Productions, LLC ("MSP") to operate Public. Id. ¶ 7. DeVecchis and Lieder were members of MSP. Id. ¶ 8. They credited Public's profits and losses to MSP, and paid employees from an account maintained by MSP. Id. ¶ 9.

Before opening Public for business, DeVecchis incurred substantial debt, including approximately $100, 000 from an individual lender, and approximately $350, 000 from banks. Id. ¶ 10. DeVecchis's mother and brother borrowed a portion of the bank funds, and gave those funds to DeVecchis for use in Public's business. Id. ¶ 11.

From July 2008 until July 2009, Lieder liaised with Middletown officials regarding permits, applications, and land use issues. During this time, DeVecchis and Public experienced no trouble with any Middletown official. Id. ¶ 12. On or about July 2, 2008, Lieder received a letter stating that, on June 24, 2008, the Middletown Building Department had inspected Public's premises and determined that it met all requirements of the Connecticut Building Code. Id. ¶ 13.

On or about July 9, 2008, Public opened for business. Id. ¶ 14. DeVecchis's 2009 tax return indicates that MSP posted a loss of $80, 041. Id. ¶ 16. On or about May 2009, the partnership between Lieder and DeVecchis broke down, and DeVecchis engaged an attorney to dissolve the partnership. Id. ¶ 17. On or about June 2009, Lieder released his interest in MSP and Public, leaving DeVecchis the sole member of MSP and sole owner of Public. Id. ¶ 18. At that time, DeVecchis knew that Public owed delinquent taxes from 2008 and 2009. Id. ¶ 19.

On or about October 20, 2009, a building permit application for interior renovations was submitted to the Middletown Building Department. Defs.' Ex. UU; Defs.' Ex. VV ¶ 6-7. It listed "Public" as the applicant, listed Public's address as the applicant's address, and listed "tyles@publicct.com" as the applicant's e-mail address.[3] Id. DeVecchis attests that he did not submit this application. Pls.' Ex. 9 ¶ 9.

On or about November 2009, DeVecchis and an attorney, Sebastian Scalora, decided to construct a lounge on Public's premises (the "Lounge"). See Stmts. ¶ 20.[4] Scalora was responsible for obtaining a building permit to construct the Lounge. Scalora had a previous business relationship with Middletown's then mayor, Sebastian Giuliano ("Mayor Giuliano"). DeVecchis Dep. at 56; Stmts. ¶ 23.

Middletown's Chief Building Official, John C. Parker, Jr., sent DeVecchis a letter, dated November 3, 2009, stating that the building department could not issue the requested permit because municipal real estate taxes were delinquent for the property. Stmts. ¶ 21; Defs.' Ex. L. The letter advised DeVecchis to make arrangements with the tax collector to pay the outstanding taxes so that the building department could be in a position to issue the permit. Defs.' Ex. L. DeVecchis does not remember receiving this letter. Pls.' Ex. 9 ¶ 10.

Parker sent DeVecchis another letter, dated March 3, 2010, informing him that, "as stated in two previous letters dated November 3, 2009 and February 19, 2010, " the building department could not issue the requested permit because Public's delinquent taxes of $7, 392.64 still had not been paid. Defs.' Ex. KK. The letter concluded, "[u]ntil these taxes are paid the renovated portion of the building performed under Permit #4739 can not [ sic ] be occupied. I will post the rooms unsafe to occupy until the matter is resolved." Id.

The Lounge opened for business on November 25, 2009. See Stmts. ¶ 26. On or about December 1, 2009, DeVecchis received a cease and desist order (the "Order") from Middletown's Zoning Enforcement Officer, Bruce Driska, instructing him to cease operation of the Lounge until Zoning Commission approval was obtained. Id. ¶ 27; Defs.' Ex. M. The Order contained the conditions imposed on the Original Special Exception, and noted that it was Driska's understanding that DeVecchis had been advised to submit an application to the Zoning Commission. Defs.' Ex. M. DeVecchis attests that he did not see the Original Special Exception until sometime after he received the Order. Pls.' Ex. 9 ¶¶ 3-5.

Almost immediately after receiving the Order, DeVecchis engaged another attorney, Ralph Wilson. Stmts. ¶ 29. In an e-mail dated December 1, 2009 and addressed to Attorney Wilson, William Warner, the Director of the Middletown Department of Planning, Development, and Conservation, wrote that DeVecchis had applied for a building permit that was never issued because of delinquent taxes, and that all of the construction done on the Lounge was done without a permit. Id. ¶ 30; Defs.' Ex. N.[5]

Shortly after receiving the Order, DeVecchis attended a meeting at Mayor Giuliano's office. DeVecchis, Mayor Giuliano, Attorney Wilson, Sebastian Scalora, William Warner, and Bruce Driska were present. Stmts. ¶ 32. The participants discussed the Order and explored ways to resolve the zoning issue. Id. ¶ 33.[6] DeVecchis attests that Mayor Giuliano yelled at him, and that William Warner stared at Sebastian Scalora "like he was going to kill him from across the table." Pls.' Ex. 2 ¶¶ 7, 10.

On or about December 3, 2009, DeVecchis appealed the Order to the Zoning Board of Appeals. Stmts. ¶ 31. On or about December 9, 2009, Bruce Driska, Liquor Control Special Agent Jennifer Sturgeon ("Special Agent Sturgeon"), and Lieutenant Heather Desmond ("Lieutenant Desmond") of the Middletown Police Department met with DeVecchis regarding an application he submitted for a liquor permit for the Lounge. Id. ¶ 34. By letter dated December 11, 2009, Bruce Driska informed Special Agent Sturgeon that the fire marshal's office had determined that the Lounge presented no imminent peril to life or property, and the City would not seek an injunction, but instead would allow DeVecchis to operate the Lounge while the Order was appealed. Id. ¶ 35.

On or about December 24, 2009, DeVecchis submitted an application to the Zoning Commission for a modification of the original Special Exception that would authorize him to construct and operate the Lounge. Id. ¶ 36. As of December 2009, Public's receipts were down forty percent as compared to Public's first year of operation. Id. ¶ 37.

On or about December 27, 2009, Public hosted several events, including two birthday parties and a disc jockey from a local radio station. Id. ¶ 38.[7] Middletown police officer Frederick Dirga was working a private duty assignment at Public. Id. ¶ 39; Dirga Aff. ¶ 5.[8] Officer Dirga attempted to respond to two fights inside Public, but his response to each was delayed due to the number of people in the bar. Stmts. ¶ 39; Dirga Aff. ¶ 7. The second fight was near the restrooms. Stmts. ¶ 40; Dirga Aff. ¶ 8.[9] Officer Dirga observed bouncers attempting to gain control of the situation. Stmts. ¶ 41; Dirga Aff. ¶ 10. He radioed for back-up. Stmts. ¶ 42; Dirga Aff. ¶ 11. The bouncers removed the agitators through the rear entrance, where police back-up had arrived. Stmts. ¶ 43; Dirga Aff. ¶ 12. DeVecchis was told that the fire marshal was going to be contacted to assess the occupancy level. Stmts. ¶ 45; Dirga Aff. ¶ 16. At that time, DeVecchis told his staff that the bar was closing and asked the bouncers to escort patrons out. Stmts. ¶ 46; Dirga Aff. ¶ 17. The entire Middletown Police Department patrol shift responded to help disperse the crowd. Stmts. ...


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