Frank v . City of Manchester CV-09-389-PB 8/10/11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Frank

v. Case N o . 09-cv-389-PB Opinion N o .

City of Manchester, et a l .

MEMORANDUM AND ORDER

Michael Frank filed this action against the City of

Manchester and two City officials after he was denied a

peddler’s license. His principal federal claim is that the

defendants violated his Fourteenth Amendment right to procedural

due process by failing to give him a constitutionally adequate

post-deprivation hearing. As I explain in greater detail below,

Frank’s claim fails because he does not have a protectable

property interest in a peddler’s license.

I. BACKGROUND

A. Requirements for a License Application

This case arises from the defendants’ allegedly unlawful denial of Frank’s application for a peddler’s license. New

Hampshire law authorizes cities to adopt ordinances that

establish the terms under which a peddler’s license may be

issued.

-a (2002). Among other

things, this statute authorizes such ordinances to include such

“other reasonable conditions and terms deemed necessary for

public convenience and safety as the governing board

determines.”

In following this law, the City of Manchester has passed

ordinances requiring all peddlers to secure a license from the

City prior to operating a business within the City’s limits.

Manchester, N.H. Code of Ordinances ch. 115.40 (2005). The

ordinance requires that an application for a peddler's license

in Manchester must include “[a] complete certified criminal

record,” and states that the failure to provide all information

required is grounds for denial of the application.

The

ordinance further provides that a license “shall be denied” if

the applicant has received a “disqualifying criminal conviction

. . . during the five years preceding the application.”1

1 Disqualifying convictions are “[a]ny felony convictions, any conviction involving harassment, violence, theft, fraud, loitering, prowling, or endangering the welfare of a child or 2 “An applicant who is denied a peddler license . . . may file a

written request for a review of the application before the

Committee on Administration” (“Committee”).

The Committee

“will approve or disapprove the fitness of the applicant for the

license.”

Finally, the ordinance also requires that

“application for a peddler’s license shall be made to the City

Clerk upon a form to be determined by the City Clerk.”

The Manchester Business License Application, issued by the

Office of the City Clerk pursuant to the above ordinance,

requires an applicant to obtain approvals from six City

departments before the application may be approved. Manchester

Business License Application (“Application”), available at

http://www.manchesternh.gov/website/Home/Business.aspx, at 6.

Each such department must affirm that the applicant has met “all

permitting requirements and/or other requirements of th[e]

department.”

The Business License Application also states

that “[p]ursuant to ch. 110.02(C) of the Code of Ordinances,

departments may place additional restrictions or conditions on

certain activities.”

This language closely tracks that of

the cited ordinance, which states that, “[a]s a condition of

licensure,” additional conditions may be added to a business’s

3 application whenever they are:

warranted by any circumstances pertaining to a specific establishment or to prevent any nuisance related to or caused by the licensed activity. A nuisance, in addition to its common law meaning, is anything that endangers life, health or safety, gives offense to senses, violates common standards of decency or obstructs reasonable and comfortable use of any property.

Manchester, N.H. Code of Ordinances ch. 110.02 (1999).

B. Facts Relating to Frank’s Application

Frank first sought a peddler’s license on May 8 , 2009. His

application seemed doomed from the start, however, because the

certified criminal record he produced with his application

included a disqualifying conviction for simple assault.2 Frank

attempted to address this difficulty on May 2 1 , when he

succeeded in having the assault case dismissed. City officials,

however, would not accept the court records showing that the

conviction had been dismissed because it remained on his

certified criminal record.

2 Frank was convicted on the assault charge in district court. He appealed the conviction to Superior Court and, although his certified criminal record did not show i t , the conviction was on appeal when Frank made his original application. The charge was dismissed by the prosecutor on May 2 1 , 2009. 4 Frank’s problems were compounded when Gary Simmons, the

assistant police chief and one of the defendants in this case,

learned that Frank had two charges of possession of child

pornography pending against him in Massachusetts.3 Because of

these pending charges, Simmons refused to sign Frank’s

application on behalf of the police department.

Even though Frank was unable to obtain the police

department’s approval, he returned to the City Clerk’s office on

June 5 , 2009 and demanded his peddler’s license. Kevin Kincaid,

the City’s licensing and compliance coordinator, and another

defendant in this case, denied Frank’s application and informed

him that he could challenge the denial by appealing to the

City’s Committee on Administration.

The Committee heard Frank’s appeal and voted to deny Frank

a peddler’s license on July 7 , 2009.

3 Frank was originally charged with three counts of possession of child pornography. He was tried on all three charges shortly before he made his application. He was acquitted on one of the charges and a mistrial was declared on the other two. These are the two charges that were pending against him when his application was under review. They were ultimately dismissed on September 2 4 , 2009.

5 II. STANDARD OF REVIEW

A summary judgment motion should be granted when the record

reveals “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). The evidence submitted in support of the

motion must be considered in the light most favorable to the

nonmoving party, drawing all reasonable inferences in its favor.

See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to

the nonmoving party to "produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted." Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996). On cross motions for

summary judgment, the standard of review is applied to each

motion separately. See Am. Home Assur. C o . v . AGM Marine

Contractors, Inc.,

1 0 , 812 (1st Cir. 2006).

In reviewing a pro se motion, this Court is obliged to

construe the pleading liberally. See Ayala Serrano v . Lebron

6 Gonzales,

, 15 (1st Cir. 1990). This review ensures

that pro se pleadings are given fair and meaningful

consideration. See Eveland v . Dir. of C.I.A.,

6 , 49

(1st Cir. 1988).

III. ANALYSIS

Frank invokes the First, Fourth, Fifth, and Fourteenth

Amendments in support of his complaint but the only possible

federal claim that the facts of this case support is a claim

that the defendants violated his right to procedural due

process.

To establish a procedural due process claim, a plaintiff in

Frank’s position must show that the defendants deprived him of a

protected property interest. Perez-Acevedo v . Rivero-Cubano,

6 , 30 (1st Cir. 2008). Property interests are created

and defined by state law. See Leis v . Flynt,

3 8 , 441

(1979). Supreme Court precedent, however, recognizes that more

than a mere expectation of a benefit is required to give rise to

a protected property interest. Board of Pardons v . Allen,

(1987). As the court explained in its seminal

decision on the subject: “a person clearly must have more than

7 an abstract need or desire for [the benefit]. He must have more

than a unilateral expectation of i t . He must, instead, have a

legitimate claim of entitlement to it.” Board of Regents v .

Roth,

6 4 , 577 (1972). It thus will be a rare case in

which an application for a license that the government has

discretion to grant or deny will give rise to a property right

protected by the due process clause. See, e.g. Beitzell v .

Jeffrey,

7 0 , 874 (1st Cir. 1981); Medina v . Rudman,

4 4 , 250-51 (1st Cir. 1976).

The First Circuit confronted a case similar to the one that

Frank presents here in Chongris v . Board of Appeals,

(1st Cir. 1987). In that case, an applicant for a common

victualler’s license sought permission to open a donut shop.

at 4 3 . The court rejected the claim, finding that where

state law stated that “licensing authorities may grant licenses

to persons to be . . . common victuallers,” the issuance of a

victualler's license was “altogether permissive.” See Chongris,

3 . The statute went on to state that licensing

authorities were not required to grant a license if “in their

opinion, the public good does not require it.”

Because

this language indicated that town officials had discretion on

8 whether to grant a license, the plaintiffs “possessed no

property interest in the . . . license such as would entitle

them to the prophylaxis of procedural due process or to relief

under

.” See

at 4 4 .

The present case is indistinguishable from Chongris. New

Hampshire law provides that “the governing board of a city, town

or village district may adopt, by ordinance or regulation,

provisions for the licensure and regulation of itinerant

vendors, hawkers, [and] peddlers.”

-a (2002) (emphasis added). The law allows municipalities

to include “[o]ther reasonable conditions and terms deemed

necessary for public convenience and safety.”

This

language closely tracks the permissive language that was relied

on in Chongris. The City of Manchester has in turn required all

peddlers to secure a license from the City, using an application

to the City Clerk’s office, upon a form to be determined by the

City Clerk. Manchester, N.H. Code of Ordinances ch. 115.40

(2005). The Business License Application, issued by the City

Clerk pursuant to that ordinance, reiterates the discretion

given to its officials by requiring that all license

applications be “submitted with all applicable department

9 signoffs.” Application at 7 . The six department approvals,

which include the police department, must affirm that the

applicant has met “all permitting requirements and/or other

requirements of th[e] department.” Id. at 6.4 The license

application also explicitly indicates that “additional

documentation may be required” of an applicant. Id. at 7 .

Additional discretion is granted by Manchester Ordinance

ch. 110.02, which governs business licenses. The ordinance

states that “[a]s a condition of licensure,” “additional

restrictions or conditions” may be added by City departments

whenever they are “warranted by any circumstances pertaining to

a specific establishment or to prevent . . . anything that

endangers life, health or safety.” Manchester, N.H. Code of

Ordinances ch. 110.02 (1999).

Frank’s procedural due process claim is based on the

incorrect premise that the only requirement for issuance of a

4 The complete City of Manchester “Business License Application” was not entered into the record by either party. It is appropriate, however, to consider such evidence. See Watterson v . Page,

, 3-4 (1st Cir. 1993) (noting that even at the motion to dismiss stage courts may consider evidence from outside the record consisting of “documents the authenticity of which are not disputed by the parties . . . official public records . . . documents central to plaintiffs' claim; or . . . documents sufficiently referred to in the complaint”).

10 peddler’s license is that there is no disqualifying conviction

on one’s record at the time of application. As in Chongris,

however, the relevant state and local laws in Manchester give

broad discretion to municipal officials in denying applications

for licenses. To suggest, as Frank argues, that the departments

responsible for approvals may create additional requirements for

licensure, yet possess no discretion to act on the basis of

those requirements, is nonsensical. Therefore, the correct

reading of the City ordinance is that while an applicant with a

disqualifying conviction must be denied a license, town

officials also possess discretion to deny an application based

on a variety of other factors, particularly when a factor could

endanger “life, health or safety.”

When the City ordinance regarding the issuance of peddler’s

licenses is properly read, it is quite clear that an applicant

for a license has no entitlement to a license. Accordingly,

Frank cannot maintain a viable due process claim because he

lacks a protected property interest in the license he was

denied.5

5 Frank also asserts various state law claims. I decline to assert supplemental jurisdiction over those claims and dismiss them without prejudice. 11 IV. CONCLUSION

Defendants’ motion for summary judgment (Doc. N o . 13) is

granted with respect to Frank’s federal claims. Frank’s state

law claims are dismissed without prejudice. The clerk shall

enter judgment and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 1 0 , 2011

cc: Michael Frank, pro se Robert Meagher, Esq.

12