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BEG Investments, LLC v. Alberti

United States District Court, D. Columbia.

March 24, 2015

BEG INVESTMENTS, LLC, Plaintiff,
v.
NICHOLAS ALBERTI, et al., Defendants

For BEG INVESTMENTS, LLC, Plaintiff: Matthew August LeFande, LAW OFFICES OF MATTHEW AUGUST LEFANDE, Arlington, VA.

For NICHOLAS SALVATORE ALBERTI, DONALD CORTES BROOKS, HERMAN ODELL JONES, CARVIN THOMAS NOPHLIN, MIKE SILVERSTEIN, RUTHANNE MILLER, Defendant: Gary Daniel Feldon, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

Page 55

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

I. INTRODUCTION

Plaintiff BEG Investments, LLC, believes that six members of the D.C. Alcohol Beverage Control Board (" the Board" ) acted unlawfully when they conditioned Plaintiff's liquor license on the hiring of a police detail to patrol the area surrounding Plaintiff's establishment. Plaintiff views the Board members' imposition of a police detail requirement as extortion, and claims that the Board members violated the Racketeer Influence and Corrupt Organizations Act (" RICO" ), and the Takings Clause of the Fifth Amendment. On March 31, 2014, this Court dismissed Plaintiff's complaint, explaining that the Board members were entitled to qualified immunity as to Plaintiff's claims under RICO, and that Plaintiff's allegations relating to an obligation to pay money were insufficient to establish a takings claim under the Fifth Amendment. Now before the Court is Plaintiff's motion for reconsideration. Plaintiff contends that this Court's decision was erroneous in two respects: first, it misapplied the qualified immunity doctrine, and second, it ignored controlling Supreme Court authority that supported Plaintiff's takings claim. Upon consideration of Plaintiff's motion and the memoranda in support thereof and opposition thereto, the Court will deny the motion for reconsideration as to both claims.

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II. FACTUAL BACKGROUND

Plaintiff is a company that operated Twelve Restaurant and Lounge in the District of Columbia. Defendants Nicholas Alberti, Donald Brooks, Herman Jones, Calvin Nophlin, Mike Silverstein, and Ruthanne Miller (collectively, " Defendants" ), are members of the Board who issued a series of orders pertaining to Plaintiff's liquor license.[1]

As detailed in this Court's Memorandum Opinion of March 31, 2014,[2] the Board was established by D.C. Code § 25-201, and it is authorized to " issue licenses to persons who meet the requirements" set forth in the Alcoholic Beverage Statute and to impose " certain conditions" on those licenses if the Board " determines that the inclusion of the conditions will be in the best interest of the locality . . . where the licensed establishment is to be located." D.C. Code § 25-104(a), (e). The Board also oversees the Alcoholic Beverage Regulation Administration (" ABRA" ), which provides " professional, technical, and administrative staff assistance to the Board in the performance of its functions." D.C. Code § 25-202.

On June 22, 2011, the Board issued an order on Plaintiff's application for renewal of its liquor license. Compl. ¶ 26, ECF No. 1; Board Order 2011-289.[3] After finding that there had been three assaults and fifteen calls to MPD at the establishment's address, and that MPD had increased patrols in the area due to intoxicated individuals leaving Plaintiff's establishment, the Board granted Plaintiff's application for renewal of its license on the condition that Plaintiff hire a Metropolitan Police Department (" MPD" ) reimbursable detail " whenever the establishment provides any entertainment permitted by the establishment's entertainment endorsement." Compl. ¶ 26; Board Order 2011-289 at 4, 7.[4] A reimbursable detail is comprised of " MPD officers [who] patrol the surrounding area of an establishment for the purpose of maintaining public safety." See D.C. Code § 25-798(a)(3); Emergency Suspension of Liquor Licenses Act of 2005, D.C. Act 16-20.

Upon Plaintiff's motion for reconsideration, the Board modified its June 22 order on August 10, 2011, ordering that Plaintiff hire an MPD reimbursable detail " whenever the establishment provides any DJs or live music as entertainment at the establishment." Compl. ¶ 30; Board Order 2011-368 at 12.[5] Additionally, the modified order required that the MPD detail " be hired for a minimum of four hours and shall end no sooner than one hour after

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closing." Compl. ¶ 30. On July 11, 2012, the Board fined Plaintiff $1500 for failing to hire an MPD reimbursable detail when a DJ performed at Plaintiff's establishment on October 9, 2011. Compl. ¶ 33; Board Order 2012-301 at 22.[6]

Plaintiff initiated this action by filing a six-count complaint against Defendants in their individual capacities on February 11, 2013. Plaintiff claimed that the Board's order requiring Plaintiff to hire an MPD detail at a rate of over $55 per hour -- more than double the basic wage of police officers -- was unlawful and extortionate. As is pertinent here, Plaintiff alleged: (1) racketeering in violation of RICO, 18 U.S.C. § 1962(c); (2) conspiracy to commit racketeering in violation of RICO § 1962(d); and (3) deprivation of property interests pursuant to the Takings Clause of the Fifth ...


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