NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-1371

SOUTH ALLEGHENY PITTSBURGH RESTAURANT ENTERPRISES, LLC,

Appellant

v.

CITY OF PITTSBURGH; CITY OF PITTSBURGH DEPARTMENT OF PERMITS LICENSES AND INSPECTIONS; MARK MARIANI; ZONING BOARD OF ADUSTMENT OF THE CITY OF PITTSBURGH

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-16-cv-01393) District Judge: Hon. Nora B. Fischer

Argued September 25, 2019

Before: SMITH, Chief Judge, McKEE, AMBRO, Circuit Judges

(Opinion filed: March 27, 2020)

Christopher W. Cahillane Richard B. Tucker (Argued) Tucker Arensberg 1500 One PPG Place Pittsburgh, PA 15222

Counsel for Appellant Matthew S. McHale Associate City Solicitor Yvonne S. Hilton Julie E. Koren (Argued) City of Pittsburgh Department of Law 414 Grant Street 313 City County Building Pittsburgh, PA 15219

Counsel for Appellees

OPINION *

AMBRO, Circuit Judge

South Allegheny Pittsburgh Restaurant Enterprises, LLC (“SAPRE”) brought a

action against the City of Pittsburgh, its Zoning Board of Adjustment, its

Department of Permits, Licenses and Inspections (“DPLI”), and Mark Mariani, one of

DPLI’s employees (collectively, unless the context requires otherwise, the “City”), for

their roles in closing SAPRE’s business just hours after it first opened. We affirm the

District Court’s dismissal of SAPRE’s substantive due process and equal protection

claims, as the City’s actions did not constitute constitutional harms. In contrast, we

vacate and remand the Court’s dismissal of SAPRE’s claim that the City violated its right

to procedural due process when it arbitrarily invoked its emergency powers without

evidence of exigent circumstances, denying SAPRE constitutionally required pre-

deprivation process.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 I. Factual and Procedural History

During the summer of 2016, SAPRE prepared to open Mother Fletcher’s, an

under-21 club with a dance floor and a disk jockey. Mother Fletcher’s did not serve

alcohol or food other than potato chips, pop tarts, pretzels, and a variety of non-alcoholic

beverages. SAPRE inherited the previous property owner’s 1986 Certificate of

Occupancy (“CO”), which classified the premises as a “Restaurant” under the City of

Pittsburgh Zoning Code (the “Zoning Code”). The CO contained a special condition that

allowed the first floor and basement to be operated as a restaurant and bar without live

entertainment. Prior to its official opening, DPLI visited Mother Fletcher’s premises

various times, making recommendations on how to comply with City ordinances and

reviewing architectural renderings for the permit-approval process.

Mother Fletcher’s opened during the evening of September 3, 2016. Flyers

advertised its opening night as “the biggest [u]nder-21 party in the Tri-State area” with

the “craziest crowds in Pittsburgh.” App. 49a, 93a. Based on these advertisements,

Maura Kennedy, the Director of DPLI, told Mark Mariani, her Assistant Director of

Operations, to inspect the premises and close the business if he discovered any dangerous

safety issues.

Just after midnight on September 4—after Mother Fletcher’s opening-night patrons

had left the premises—Mariani stopped to observe the business from across the street,

later testifying that the city police had not received any complaints and the atmosphere

outside was “docile and calm.” App. 96a. Yet, he returned 20 minutes later with

approximately 28 police officers. Without notice, Mariani entered the premises and

3 explained to SAPRE’s owners that he was shutting it down for not operating as a

“Restaurant,” as its CO required. He issued a Stop Work/Cease Operations Order (the

“Cease Order”) closing Mother Fletcher’s immediately. The business never reopened.

The City contends that it issued the Cease Order in accord with Zoning Code

§ 924.05.B. The Code includes two procedures for responding to violations. Under

§ 924.05.A, the Chief of the Bureau of Building Inspection, or the appropriate official,

must give written notice of any violation to the owner if the violation does not involve, as

relevant here, an emergency. The owner has 30 days to correct the noticed violation

before the City undertakes any further enforcement action. Alternatively, if there is an

emergency, § 924.05.B permits the City to use its enforcement powers and remedies

without prior notice.

After the City shut down Mother Fletcher’s, SAPRE filed in federal District Court

a motion for a temporary restraining order and preliminary injunction. The Court found

that SAPRE’s claims were not mature because it had not appealed the Cease Order to the

Zoning Board. It therefore dismissed SAPRE’s request for injunctive relief without

prejudice. See South Allegheny Pittsburgh Rest. Enter., LLC v. City of Pittsburgh et al.,

No. 16-cv-1393,

(W.D. Pa. Sept. 16, 2016).

SAPRE then filed an appeal with the Zoning Board, which scheduled a hearing for

February 2017. City regulations stay enforcement proceedings pending appeal unless the

officer involved certifies that “a stay would cause imminent danger to life or property.”

Zoning Code § 923.02.G. Although no City official filed a certification to override the

4 stay, the City declined to allow Mother Fletcher’s to operate while its appeal was

pending.

After the hearing, the Zoning Board failed to rule within the statutorily allotted 45-

day window. SAPRE rejected the Board’s request for additional time, which resulted in a

deemed denial of the appeal. SAPRE appealed to the Pennsylvania Court of Common

Pleas. Per that Court’s direction, the Board released its findings that the property had not

been used as a “Restaurant,” and thus asserted the Cease Order had been properly issued.

The Court disagreed, determining that the City lacked sufficient evidence of an

emergency and setting aside the Cease Order.

SAPRE followed by filing its Second Amended Complaint with the District Court

in July 2018. It alleged that the City violated its Fourteenth Amendment rights to

procedural due process, substantive due process, and equal protection, hence entitling it

to a remedy under

. 1 The City moved to dismiss the entire complaint

under Federal Rule of Civil Procedure 12(b)(6) for the failure to state a claim on which

relief can be granted, and Mariani moved to dismiss claims against him based on

qualified immunity. The District Court granted both motions with prejudice.

1 SAPRE waived its allegations that the City violated its Fourth and Eighth Amendment rights by violating the expectation of privacy in its property and imposing the excessive fine of closure, as it did not address these claims in its Motion to Oppose the City’s Motion to Dismiss before the District Court or in its appeal to us. 5 II. Jurisdiction and Standard of Review

The District Court had jurisdiction under

and 1343. We have

jurisdiction under

.

We take a fresh look at a District Court’s Rule 12(b)(6) dismissal. Mayer v.

Belichick,

, 229–30 (3d Cir. 2010). To survive a motion to dismiss, the

pleading “must contain sufficient factual allegations so as to state a facially plausible

claim for relief.”

. “We must accept all factual allegations in the complaint as

true, construe the complaint in the light favorable to the plaintiff, and ultimately

determine whether [the] plaintiff may be entitled to relief under any reasonable reading of

the complaint.”

.

III. Discussion

1. SAPRE’s Procedural Due Process Claim

SAPRE claims that the City violated its procedural due process rights when it

failed to provide a pre-deprivation hearing, stay the Cease Order according to the

Zoning Code’s procedures, and provide a “sufficiently prompt” post-deprivation

hearing. Appellant Br. at 28 (quoting Fed. Deposit Ins. Corp. v. Mullen,

(1988)). Procedural due process claims face a two-part gateway inquiry: “(1)

whether the plaintiff has a property interest protected by procedural due process, and

(2) what procedures constitute ‘due process of law.’” Schmidt v. Creedon,

(3d Cir. 2011) (citation and quotation marks omitted).

Here, the District Court found that SAPRE has a protected property interest in its

business, and we agree. “[A] business is an established property right entitled to

6 protection under the Fourteenth Amendment.” College Sav. Bank v. Florida Prepaid

Postsecondary Edu. Expense Bd.,

(3d Cir. 1997).

If a plaintiff has a property interest and we deem it deserves protection, we review

the procedures (that is, the process) constitutionally needed to assure protection and

whether they were provided. Hence, we turn to the process that was due SAPRE. Once

determined, we ask whether it occurred?

a. SAPRE’s Right to a Pre-Deprivation Hearing

“The fundamental requirement of due process is the opportunity to be heard and it

is an opportunity which must be granted at a meaningful time and in a meaningful

manner.” Parratt v. Taylor,

(1981) (collecting Supreme Court cases

illustrating this principle), overruled on other grounds by Daniels v. Williams,

(1986) (internal quotations omitted). The District Court, relying on DeBlasio v.

Zoning Bd. of Adjustment for Twp. Of West Amwell,

(3d Cir. 1995), and

Bello v. Walker,

(3d Cir. 1988), held that the City’s Zoning Code

provided sufficient post-deprivation protection for SAPRE’s interests. But those cases

are distinguishable from SAPRE’s claims here. Unlike the plaintiffs in DeBlasio and

Bello, SAPRE is not challenging the adequacy of the City’s process for granting or

revoking a zoning license, variance, or permit. Instead, it alleges the City impermissibly

invoked its emergency powers to avoid the pre-deprivation hearing mandated by the

City’s procedures before revoking its already given license.

A pre-deprivation hearing is often required when the deprivation is “pursuant to

some established state procedure and ‘process’ could be offered before any actual

7 deprivation took place.” Parratt, 451 U.S. at 537–38 (collecting Supreme Court cases).

Indeed, “absent the necessity of quick action by the State or the impracticality of

providing any predeprivation process, a post-deprivation hearing . . . would be

constitutionally inadequate.” Logan v. Zimmerman Brush Co.,

(1982)

(citation and quotation marks omitted).

Quick action comes into play when there is an emergency. Elsmere Park Club,

L.P. v. Town of Elsmere,

(3d Cir. 2008). Invoking emergency procedures

requires “competent evidence allowing the official[s] to reasonably believe that an

emergency does in fact exist.”

at 418 (citing Catanzaro v. Weiden,

(2d Cir. 1999)). When it does, the failure to provide a pre-deprivation hearing does not

amount to constitutional harm. Id. at 419; see also Hodel v. Virginia Surface Mining and

Reclamation Ass’n,

(1981) (stating that “summary administrative

action may be justified in emergency situations”). SAPRE alleges, and the Pennsylvania

Court of Common Pleas agreed, that the City knew there was no evidence of an

emergency when it invoked the Zoning Code’s emergency provision to shut down

Mother Fletcher’s. We agree. Therefore, the emergency exception to pre-deprivation

process does not apply here.

Nor does the “impracticality” exception to pre-deprivation process apply. Parratt

tells us that a pre-deprivation hearing is not constitutionally required when the

deprivation results from the “random and unauthorized” failure of state agents to follow

established state procedure such that it would be impracticable or impossible for the state

to provide pre-deprivation process. 451 U.S. at 541–43. In Zinermon v. Burch, the

8 Supreme Court provided a template for distinguishing cases where pre-deprivation

process is required from those, such as Parratt, where it is not because the deprivation

was unauthorized.

(1990).

Zinermon claimed that doctors and administrators at a state mental hospital had,

without a hearing, deprived him of his liberty when they confined him under the state’s

voluntary admission procedure, even though they knew or should have known that his

mental illness made him incapable of giving informed consent to his admission.

at

135–36. The Court agreed that pre-deprivation process was not impossible when the

state had an established procedure for involuntary placement that the officials chose not

to invoke.

at 136–37. Thus, the doctors had disregarded their duty to ensure that the

proper procedures were followed. The Court explained, “it would indeed be strange to

allow state officials to escape § 1983 liability for failing to provide constitutionally

required procedural protections by assuming that those procedures would be futile

because the same state officials would find a way to subvert them.” Id. at 137–38.

The upshot is that where (1) the deprivation is predictable, (2) pre-deprivation

process is possible, and (3) the charged state officials had the authority to deprive one of

liberty or property, Parratt does not apply and a pre-deprivation hearing is

constitutionally required. Id at 136–38.

Applying Zinermon’s three-factor test here, it is plausible that the City’s decision

to shutter Mother Fletcher’s was not a random, unauthorized act by City employees.

SAPRE’s deprivation occurred at a predictable point in the government’s process—when

a decision is made whether to invoke the Code’s standard or emergency procedures to

9 address a violation (keeping in mind here there was no confirmed violation, but at most

the suspicion of a possible violation). And to repeat, there was no competent evidence of

exigent circumstances. Thus pre-deprivation process was possible. In this context—the

lack of exigent circumstances, and the Code’s established pre-deprivation procedures for

non-emergency violations—SAPRE meets Zinermon’s first two criteria to establish that

pre-deprivation process was required.

At the motion-to-dismiss stage, it is also plausible that Mariani was authorized by

the Zoning Code to decide whether to invoke emergency procedures. The Code directs

“the Chief of the Bureau of Building Inspection or the appropriate Code Official” to

determine reasonably whether an emergency is underway. Zoning Code § 924.05.B. On

the night the City closed Mother Fletcher’s, the Director of DPLI, Kennedy, instructed

Mariani to inspect the business and to “close [it] if he discovered any dangerous

life/safety issues.” App. 96a. Given her title and the alleged facts, Kennedy may have

been an appropriate “Code Official” with the authority to cause the deprivation, and her

instructions to Mariani may have extended her authority to his action. Hence it is

plausible that the Code delegated to Mariani the power and authority “to effect the very

deprivation complained of here, . . . and also delegated to [him] the concomitant duty to

initiate the procedural safeguards set up by [City] law to guard against unlawful

[deprivations].” Zinermon,

.

Further, the deployment of considerable City resources to shut down Mother

Fletcher’s is evidence of state action beyond a rogue employee’s “unauthorized act.” The

platoon of police at a place with no commotion (in fact, no patrons)—there have been

10 smaller SWAT teams called in to curb violence—implies a coordinated effort to shut

down a business despite the lack of exigent circumstances. In sum, the City “cannot

escape § 1983 liability by characterizing [its employees’] conduct as a ‘random,

unauthorized’ violation of [City] law which [it] was not in a position to predict or avert . .

. .” Id.

Indeed, there is no competent evidence before us to show that Mariani undertook a

random, unauthorized act or reasonably believed that an emergency was underway.

Thus, the constitutionally required process—a pre-deprivation hearing—did not occur.

We accordingly vacate the District Court’s dismissal of SAPRE’s due process claim for

failing to provide pre-deprivation process as required by the Fourteenth Amendment and

remand for further proceedings, including fact-finding regarding whether Mariani and

Kennedy are “appropriate Code Official[s]”.

b. The City’s Violation of Zoning Code Procedures

SAPRE next claims the City’s violations of local laws—particularly its failure to

follow § 932.02.G of the Zoning Code, which would have allowed the club to remain

open during SAPRE’s appeal before the Zoning Board—also violated its due process

rights.

That the City violated the Code when it did not fulfill its obligations under

§ 932.02.G, however, does not prove a constitutional harm. True enough, the City should

follow its law, but “to treat a violation of [the Zoning Code] as a violation of the

Constitution is to make the federal government the enforcer of [local] law.” Archie v.

City of Racine,

(7th Cir. 1988).

11 The District Court found that SAPRE “ha[d] not pled that it availed itself of state

remedies, such as a mandamus action, to enforce its right to a stay under § 923.02.G in

state court.” App. 17a. We agree. Because SAPRE did not pursue all available post-

deprivation remedies and never explained why these remedies were insufficient, we

cannot hold that the available process for addressing SAPRE’s continuing closure was

inadequate. See Revell v. Port Auth. of N.Y. & N.J.,

(3d Cir. 2010).

c. SAPRE’s Right to a “Sufficiently Prompt” Post-Deprivation Hearing

SAPRE also alleges that the Zoning Board violated its right to a “sufficiently

prompt” post-deprivation hearing. Appellant Br. at 28 (quoting Fed. Deposit Ins. Corp.

v. Mallen,

). The Board waited 125 days from when SAPRE filed its

appeal to hold a hearing and did not release its decision for an additional 237 days. As

noted at oral argument before us, this delay caused SAPRE to lose its lease and its

business for good.

Although SAPRE’s post-deprivation process was drawn out and highly frustrating

in light of the Zoning Code’s requirement that decisions be issued within 45 days of a

hearing, the Zoning Board’s delay here was not a Fourteenth Amendment violation. As

the District Court noted, we have held substantially equivalent delays in administrative

proceedings do not violate due process. See Ritter v. Cohen,

(3d Cir.

1986) (holding a 20-month delay did not violate plaintiff’s due process rights); Fanti v.

Weinstock,

(3d Cir. 2015) (holding a delay of over a year did not

violate due process); see also Givens v. U.S. R.R. Ret. Bd.,

, 201 (D.C. Cir.

1983) (holding a 19-month delay did not violate plaintiff’s due process rights).

12 SAPRE’s successful appeal of the Cease Order in the Court of Common Pleas also

demonstrates the adequacy of the City and State’s post-deprivation procedures. The

District Court correctly ruled that SAPRE’s right to a “sufficiently prompt” post-

deprivation hearing was not a constitutional violation.

2. SAPRE’s Substantive Due Process Claim

The District Court correctly dismissed SAPRE’s substantive due process claim.

“Substantive due process protects citizens from arbitrary and irrational acts of

government.” Parkway Garage, Inc. v. City of Philadelphia,

(3d Cir.

1993) (citation omitted), abrogated on other grounds by United Artists v. Twp of

Warrington, Pa.,

(3d Cir. 2003). To prevail “a plaintiff must prove the

particular interest at issue is protected by the substantive due process clause and the

government's deprivation of that protected interest shocks the conscience.” Chainey v.

Street,

(3d Cir. 2008) (internal citation omitted).

Though no doubt SAPRE had a property interest in its business and the use and

enjoyment of its property, what “shocks the conscience” is a high bar and “a matter of

law for the courts to decide.” Benn v. Universal Health System, Inc.,

(3d Cir. 2004) (citing Rochin v. California,

(1952)). The Supreme

Court has described conscious-shocking behavior as “conduct intended to injure in some

way unjustifiable by any government interest,” County of Sacramento v. Lewis,

(1998), and conduct “so ‘brutal’ and ‘offensive’ that it d[oes] not comport with

traditional ideas of fair play and decency.” Breithaupt v. Abram,

(1957).

13 SAPRE contends that the September midnight raid by Mariani and his bevy of

police officers, without “a single [reported] incident of violence, criminality, or ill-

behavior,” demonstrates an improper motive that “shocks the conscience.” SAPRE Br. at

43.

Even viewing all allegations as true and drawing all reasonable inferences in

SAPRE’s favor, its substantive due process claim fails. “[M]erely alleging an improper

motive is insufficient, even where the motive is unrelated to the merits of the underlying

decision.” Chainey,

(citation omitted). Without “allegations of

corruption, self-dealing, bias against an ethnic group, or additional facts that suggested

conscience-shocking behavior,” SAPRE cannot make out a substantive due process

claim. Id.2 We agree with the District Court that SAPRE’s allegations amount to an

error in invoking the Code’s emergency powers and a misallocation of police resources.

Although these errors may establish a procedural due process violation, they do not meet

the higher standard for conscience-shocking behavior.

We thus affirm the District Court’s dismissal of SAPRE’s substantive due process

claim.

2 SAPRE relies heavily on the Middle District of Pennsylvania decision Rittenhouse Entertainment, Inc. v. City of Wilkes-Barre,

(M.D. Pa. 2012). In that case, the night club owner alleged that the police’s repeated harassment of his club was motivated by racial animus towards his patrons. The District Court held that if the allegations of harassment motivated by racial bias were true, they would “shock the conscience.”

. There are no allegations of racial prejudice in this case. Thus Rittenhouse does not make SAPRE’s claim. 14 3. SAPRE’s Equal Protection Claim

The District Court also correctly dismissed SAPRE’s claim that the City’s

decision to close its business while allowing other businesses—that did not serve food

despite their CO classification as a “Restaurant”—to continue to operate violates its

constitutional right to be treated equally. SAPRE is not a member of a protected class; as

such, it brings its claim as a class of one. To prove a successful equal protection claim

brought by a class of one, SAPRE must show that it “has been intentionally treated

differently from others similarly situated and that there is no rational basis for that

difference in treatment.” Village of Willowbrook v. Olech,

(2000).

SAPRE pled that it is similarly situated to two businesses—Howl at the Moon and

Jimmy D’s—because, like Mother Fletcher’s, they are classified as “Restaurants

(general)” under the Zoning Code and do not serve food. Both establishments operate as

bars, serving a clientele over the age of 21, while Mother Fletcher’s caters to underage

clientele and does not serve alcohol. These differences are significant, and thus form a

rational basis for the City to treat Mother Fletcher’s differently.

SAPRE’s unique clientele is particularly significant; we have long recognized

local government’s interest in protecting underage persons from harm. See generally

Free Speech Coalition, Inc v. Att’y Gen.,

(3d Cir. 2012); Miller v. City

of Philadelphia,

(3d Cir. 1999). A dance club for under-21 youth

operating at night presents different safety concerns than a bar serving adults.

In this context, we affirm the District Court’s dismissal of SAPRE’s equal

protection claim.

15 4. Mariani’s Qualified Immunity Defense

Mariani, the only defendant SAPRE sued in an individual capacity, contends that

the claims against him should be dismissed, as he is protected by qualified immunity. It

“attaches when an official’s conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Kisela v. Hughes,

138 Sup. Ct. 1148, 1152 (2018) (citation and quotation marks omitted); Bland v. City of

Newark,

(3d Cir. 2018) (same). We ask “whether the plaintiff

sufficiently alleged the violation of a constitutional right,” and “whether the right was

‘clearly established’ at the time of the official’s conduct.”

(internal citation and

quotation marks omitted).

Because we hold that SAPRE has plausibly alleged a Fourteenth Amendment

procedural due process violation, the first prong is satisfied. But it cannot show that there

is a case that “clearly establishes” that procedural right. While we “do[ ] not require a

case directly on point for a right to be clearly established, existing precedent must have

placed the statutory or constitutional question beyond debate.” White v. Pauly,

(2017) (internal citation and quotation marks omitted). If there is no Supreme

Court case on point, “it may be possible that a ‘robust consensus of cases of persuasive

authority’ in the Court[s] of Appeals could clearly establish a right for purposes of

qualified immunity.” United States v. Baroni,

(3d Cir. 2018) (quoting

L.R. v. School District of Philadelphia,

(3d Cir. 2016) (quotation

marks omitted)).

16 There are only a handful of circuit court cases with facts arguably similar to

SAPRE’s procedural due process claim. See Elsmere,

; Catanzaro,

; Armendariz v. Penman,

(9th Cir. 1996); Harris v. City of Akron,

(6th Cir. 1994). In Armendariz, the Ninth Circuit found that the City of San

Bernardino violated property owners’ procedural due process rights when it closed a

housing complex without pre-deprivation notice even though the City knew that no

exigent circumstances warranted that action. But a single case in another circuit cannot

provide sufficient notice to overcome qualified immunity. In Elsmere, Harris, and

Catanzaro, we and other circuit courts held that the Government had not acted arbitrarily

in evoking its emergency powers, 532 F.3d at 423; 188 F.3d at 62–63; 20 F.3d at 1403–

04. Hence these cases also do not provide officials with sufficient notice that their

conduct violated constitutional rights as necessary to rebut a qualified immunity defense.

Therefore, we affirm the District Court’s grant of qualified immunity and

dismissal of all claims against Mariani.

* * * * *

Procedural due process is not a blank check to be cashed any time a government

official acts outside the law. Here, SAPRE alleges that the City deliberately misapplied

its ordinance and used its emergency procedures to close a business without any evidence

of exigent circumstances.

Without further fact-finding, we cannot determine whether Mother Fletcher’s

closure was ordered by an official with discretion to invoke emergency powers under the

City’s Zoning Code or if Mariani undertook a random, unauthorized act for which only a

17 post-deprivation remedy could be offered. The former would be an arbitrary use of the

City’s police power and a constitutional harm. The latter would not. At this stage of the

litigation, SAPRE has stated a plausible procedural due process claim based on its right

to a pre-deprivation hearing. Thus, we vacate the District Court’s dismissal of that claim

and remand the case for further proceedings. In all other respects, we affirm.

18