20-3254 Bens BBQ v. Suffolk Cty

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of May, two thousand twenty-one.

PRESENT: Guido Calabresi, Barrington D. Parker, Steven J. Menashi, Circuit Judges. ____________________________________________

Bens BBQ, Inc.,

Plaintiff-Appellant, v. No. 20-3254 County of Suffolk,

Defendant-Appellee. * ____________________________________________

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. For Plaintiff-Appellant: Christopher A. Bianco, Egan & Golden, LLP, Patchogue, New York.

For Defendant-Appellee: Michael J. Petre, Assistant County Attorney, Suffolk County Department of Law, Hauppauge, New York.

Appeal from a judgment of the United States District Court for Eastern

District of New York (Feuerstein, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Bens BBQ, Inc. (“Bens”) appeals from the final judgment

of the district court dismissing its suit against Defendant-Appellee Suffolk County

(the “County”) concluding, inter alia, 1 that the County’s False Alarm Law did not

violate the due process rights of Suffolk County alarm owners, did not effectuate

an unlawful taking under the Fifth Amendment, and did not violate New York

state law. We affirm the judgment of the district court. We assume the parties’

1 Bens voluntarily withdrew its claim under the Eighth Amendment and the associated claim for a declaratory judgment. Bens also does not pursue its claim under

on appeal.

2 familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

I

The Fire Alarm Law imposes fees on alarm owners for alarm triggers that

the Suffolk County Police District (“SCPD”) deems “false alarms,” a category that

includes alarms resulting from “mechanical failure, accidental tripping,

misoperation, malfunction, misuse or neglect of the alarm system, but shall not

include alarms caused by earthquakes, high winds, verifiable utility failures or

external causes beyond the control of the alarm owner or alarms caused by smoke,

fire or carbon monoxide.” Suffolk Cty. Adm. Code § 290-6. Fines for false alarms

range from $100 (for the first false alarm or third false alarm for non-permit

holders and permit holders, respectively) to $500 (for the tenth and subsequent

false alarms).

When there is a false alarm, the SCPD sends a letter to the alarm owner

asking for payment. Alarm owners may appeal the fine through a written appeal

to the SCPD. Bens alleged that the SCPD is the sole arbiter of what constitutes a

“false alarm,” and that there is no hearing or proceeding in which an alarm owner

3 can enter a plea of not guilty, submit testimony or evidence, appear before an

impartial judge, or cross examine witnesses.

Bens received notice from SCPD seeking payment in the amount of $1,410.00

for false alarms occurring on September 11, 2016, September 14, 2016, October 17,

2016, and November 19, 2016. Bens submitted a written appeal and alleges that it

did not receive a response from the SCPD. The County commenced a small claims

action against Bens to collect the fines. The small claims court awarded the County

$1,710.00 because Bens had not paid the fine.

Bens commenced a putative class action on June 18, 2019, against the County

asserting claims pursuant to

and 1985 alleging that the False

Alarm Law authorizes the County to impose fines on alarm owners without giving

them recourse to challenge the County’s determination in violation of the Due

Process Clause of the Fourteenth Amendment, the Eighth Amendment’s

prohibition on excessive fines, the Takings Clause of the Fifth Amendment, and

New York State law. The district court dismissed all but the Eighth Amendment

claim, which Bens subsequently withdrew voluntarily.

Bens timely appealed the district court’s dismissal of its Fourteenth

Amendment, Fifth Amendment, and New York State law claims.

4 II

We “review de novo a dismissal for failure to state a claim, accepting as true

all material factual allegations in the complaint and drawing all reasonable

inferences in plaintiff[‘s] favor.” Johnson v. Priceline.com, Inc.,

(2d

Cir. 2013). “To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a

complaint must allege sufficient facts, taken as true, to state a plausible claim for

relief.”

(citing Bell Atlantic Corp. v. Twombly,

(2007)).

Because there is no dispute that the challenged conduct was “committed by

a person acting under color of state law,” the question on appeal is whether Bens

has adequately alleged a violation of a federal constitutional right. Cornejo v. Bell,

(2d Cir. 2010). We conclude Bens has not.

A

Bens first argues that the False Alarm Law violates its procedural due

process rights under Mathews v. Eldridge,

(1976), because the law fails

to provide alarm owners a pre-deprivation oral hearing. We disagree.

The Due Process Clause of the Fourteenth Amendment provides that “no

State shall … deprive any person of life, liberty, or property, without due process

of law.” U.S. Const, amend. XIV. “[D]ue process is flexible and calls for such

5 procedural protections as the particular situation demands.” Nnebe v. Daus,

(2d Cir. 2011). Mathews sets forth the “test for both when a hearing is

required (i.e., pre- or post-deprivation) and what kind of procedure is due.” Nnebe,

. “The general rule is that a pre-deprivation hearing is required but

the Mathews inquiry provides guidance in determining whether to tolerate an

exception to the rule requiring pre-deprivation notice and hearing.”

(internal

quotation marks and citation omitted). To determine when a pre- or post-

deprivation hearing is required, Mathews requires the balancing of (1) the private

interest, (2) the risk of erroneous deprivation, and (3) the government’s interest.

.

Mathews does not require that the False Alarm Law provide a pre-

deprivation hearing to alarm owners beyond the written appeals process that it

already provides. The first Mathews factor does not weigh in favor of a pre-

deprivation oral hearing because, here, the private interest at stake is limited.

While the $1,410 total fine levied against Bens is not trivial, it is the sum of four

separate fines for four separate false alarm incidents. The fine for each incident

ranges from only $100 to $500 per incident, which is not overly burdensome for a

6 non-residential business owner. Indeed, for permit holders, the first two false

alarms would not even have resulted in fines.

Meanwhile, the County has a strong interest in regulating false alarms,

which Bens does not dispute. False alarms cost law enforcement and other first

responders time and money. Disincentivizing false alarms allows law enforcement

resources to be channeled toward actual emergencies.

Finally, the risk of erroneous deprivation is not so high as to require

additional pre-deprivation procedures. For permit holders, the first two false

alarms would have elicited written warnings which would have provided

sufficient notice of the written appeals process before a single fine was levied. Even

for non-permit holders, for whom the first incident results in a fine, the availability

of a written appeals process mitigates the risk of erroneous deprivation because

the process requires the County to consider an alarm owner’s objections before

collecting the fine.

Bens acknowledges the availability of an Article 78 proceeding in addition

to the False Alarm Law’s written appeal procedure, which would have allowed

Bens to seek a state court’s review of the County’s decision. See N.Y. C.P.L.R. 7801;

7 Krimstock v. Kelly,

(2d Cir. 2002). If Bens believed that the written

appeals process did not provide a sufficient opportunity to submit evidence, Bens

could have brought a special Article 78 proceeding in which it would have had a

hearing and presented evidence.

We need not decide whether the availability

of an Article 78 proceeding, standing alone, would be sufficient to comply with

the Due Process Clause where the amount in controversy is low compared with

the expense and complexity of such a proceeding. See Luedeke v. Village of New Paltz,

(N.D.N.Y. 1999) (concluding that “[t]he mere availability

of [an Article 78 proceeding] does not comport with due process’s guarantee of a

meaningful opportunity to be heard”). In the circumstances of this case, the

written appeal process in addition to the availability of the Article 78 proceeding

reduces the risk of erroneous deprivation such that the Mathews test does not

require additional procedures.

Bens alleges that the SCPD did not respond to his written appeal. 2 Yet Bens

does not argue that the County has a policy of not responding to such appeals.

2 The County claims that it did respond to the appeal. See Appellee’s Br. 4. In resolving the motion to dismiss, however, the district court did not rely on the County’s response. We do not either.

8 Nor, in pressing his facial challenge to the False Alarm Law, does Bens argue that

the County’s actions in his particular case render its conduct unconstitutional as

applied. Accordingly, we do not consider that argument here.

Instead, Bens relies on Krimstock v. Kelly,

(2d Cir. 2002), and

Nelson v. Colorado,

(2017), for the proposition that a written appeal

in lieu of a live hearing is insufficient. That reliance is misplaced. Both Krimstock

and Nelson address post-deprivation procedures. Here, however, the alarm owner

need not pay the fine until the written appeals process is completed. Second, the

Mathews analysis in those cases was different from the one here. See Krimstock,

(noting that the risk of erroneous deprivation was “substantial” and

that post-deprivation proceedings could occur so long after the deprivation that

the erroneous deprivation of the plaintiff’s vehicle could not be recompensed);

Nelson,

(concluding that the private interest and risk of erroneous

deprivation were substantial and that “the State has shown no countervailing

interests in retaining the amounts in question”). Neither deprivation is comparable

to the fines here.

Accordingly, we conclude that the False Alarm Law does not violate the

constitutional right to procedural due process.

9 B

Bens next argues that the false alarm fees constitute a taking under the Fifth

Amendment. The Takings Clause of the Fifth Amendment guarantees that

“private property [shall not] be taken for public use, without just compensation.”

U.S. Const., Amend. V. This protection applies to states through the Fourteenth

Amendment. Weaver v. Brenner,

(2d Cir. 1994).

Bens does not argue that it should be compensated for the fine but rather

that “the false alarm fee scheme has had a negative impact on [alarm owners] and

drastically altered the reasonable investment-backed expectations they had when

purchasing their alarm systems to protect their homes and businesses.” J. App’x

16. The claim, therefore, is that the County has effectuated a regulatory taking by

reducing the value of its alarm system. A regulatory taking occurs when “state

regulation goes too far and in essence effects a taking.” Sherman v. Town of Chester,

(2d Cir. 2014) (internal quotation marks omitted). “Anything less

than a complete elimination of value, or a total loss, is a non-categorical taking,

which is analyzed under the framework created in Penn Central Transportation Co.

v. New York City,

(1978).”

(internal quotation marks omitted).

10 “The Penn Central analysis of a non-categorical taking ‘requires an intensive

ad hoc inquiry into the circumstances of each particular case.’” Id. at 564.

Accordingly, “[w]e weigh three factors to determine whether the interference with

property rises to the level of a taking: (1) the economic impact of the regulation on

the claimant; (2) the extent to which the regulation has interfered with distinct

investment-backed expectations; and (3) the character of the governmental

action.” Id. (internal quotations and citation omitted).

The false alarm fines for non-residential alarm owners range from $100 to

$500 and are not so high as to have a severe economic impact on a business

establishment. The False Alarm Law does not require alarm owners to disable the

alarm or to remove the alarm after a false alarm. Law enforcement does not stop

responding to alarms from a particular establishment if it has responded to a false

alarm at that establishment in the past. The investment-backed expectation—that

the alarm system protects its establishment in the event of an emergency—has not

been frustrated. Because the False Alarm Law aims to preserve law enforcement

resources for true emergencies rather than false alarms, the cost associated with

false alarm fines would be an expected cost of maintaining an alarm system that

11 calls for law enforcement to respond rather than a departure from the expectations

a business would have when investing in such an alarm system.

Finally, Bens argues that the False Alarm Law was enacted only as a means

for generating revenue. While the False Alarm Law does generate revenue, it is

also rationally related to the legitimate purpose of preserving scarce law

enforcement resources. Considering the Penn Central factors, therefore, we

conclude that the False Alarm Law does not effectuate a regulatory taking under

the Fifth and Fourteenth Amendments.

C

Bens finally argues that the district court erred in dismissing its claim under

New York law for “money had and received.” Aaron Ferer & Sons, Ltd. v. Chase

Manhattan Bank, Nat’l Ass’n.,

(2d Cir. 1984). A party asserting a

claim for “money had and received” under New York law must show that “under

principles of equity and good conscience, defendant should not be permitted to

keep the money.”

Bens does not identify a principle of equity that would require the County

to return the fees. To the extent that Bens argues that the false alarm fees do not

bear a relationship to the cost of providing the governmental service, the argument

12 fails. The County’s proffered reason for fining false alarms is rationally related to

discouraging false alarms that waste scarce law enforcement resources.

* * *

We have considered the appellant’s remaining arguments, which we

conclude are without merit. For the foregoing reasons, we AFFIRM the judgment

of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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