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KI YOUNG CHUNG v. DISTRICT OF COLUMBIA

July 8, 1997

KI YOUNG CHUNG, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: KOLLAR-KOTELLY

 In this action, plaintiffs have brought suit against the District of Columbia for alleged violations of the Fifth Amendment to the United States Constitution. Presently pending is defendant's Motion To Dismiss, or in the Alternative, for Summary Judgment; plaintiff's opposition thereto; and defendant's reply. For the reasons set forth below, the Court grants defendant's motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

 I. BACKGROUND

 On June 11, 1993, the District of Columbia published a notice in the D.C. Register, which indicated that the Director of the Department of Public Works intended to take final rulemaking action that would transform this stretch of Tenth Street into a loading zone. See Department of Public Works, Notice of Emergency and Proposed Rulemaking, 40-D.C. Reg. 3775-76 (1993). *fn1" Despite the opportunity to comment, no member of the public--much less one of the plaintiff-vendors--filed written objections to the proposal. See Department of Public Works, Notice of Final Rulemaking, 40 D.C. Reg. 6635 (1993) (noting that "no comments have been received"). On August 4, 1993, having received no opposition to its proposed rule, the Department of Public Works adopted the Tenth Street-Loading Zone amendment. See id. at 6635.

 The adoption of this amendment foreclosed the plaintiffs from using this busy thoroughfare to vend their wares. While the plaintiffs remained free to pursue their livelihood on other Washington streets, the District prohibited plaintiffs from continuing to sell from their traditional location because municipal regulations provide that "no vendor shall vend nor shall there be any vending operation on or within marked loading and entrance zones." D.C. Mun. Regs. tit. 24 § 510.21 (1995). *fn2" According to the plaintiffs, by creating a loading zone in front of the Hard Rock Cafe on Tenth Street, the District has inflicted unusual hardship and irreparable injury by denying them the ability to operate their businesses.

 Plaintiffs brought this action on June 6, 1996 seeking declaratory relief. Predicating their claims on the Fifth Amendment to the United States Constitution, the plaintiffs assert that they have a constitutionally protected property interest in vending at the Tenth Street location, and that the District's adoption of the Tenth Street amendment failed to provide them with notice and an opportunity to be heard consistent with the Due Process Clause.

 DISCUSSION

 II. STANDARD OF REVIEW

 This Court will not grant a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this stage in the litigation, "the complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 199 U.S. App. D.C. 23, 617 F.2d 605, 608 (D.C. Cir. 1979). Accordingly, the Court assumes that all factual allegations forwarded by the complaint are true for purposes of adjudicating a motion to dismiss. See Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985).

 III. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

 A. The District of Columbia's Licensing Regulations Do Not Confer upon Plaintiffs a Legitimate Constitutional Claim of Entitlement To Vend on Tenth Street.

 The right to procedural due process does not exist in a vacuum. Rather, the Constitution endows individuals with protection against only the "deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). *fn3" Thus, to determine whether plaintiffs were unconstitutionally deprived of due process first requires this Court to ...


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