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A.B.C. HOME FURNISHINGS, INC. v. TOWN OF EAST HAMP

May 23, 1997

A.B.C. HOME FURNISHINGS, INC., d/b/a ABC CARPET & HOME, Plaintiff,
v.
TOWN OF EAST HAMPTON, EAST HAMPTON TOWN BOARD, CATHERINE LESTER, individually and in her official capacities as Town Supervisor, THOMAS KNOBEL, individually and in his capacity Councilperson, PETER HAMMERLE, individually and in his capacity Councilperson, NANCY McCAFFREY, individually and in her capacity as Councilperson, and LEONARD BERNARD, individually and in his capacity as Councilperson, Defendants.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This lawsuit arises from the allegations of the plaintiff, A.B.C. Home Furnishings, Inc., d/b/a AEC Carpet & Home (the "plaintiff" or "ABC") that the defendants, the Town of East Hampton (the "Town"), the East Hampton Town Board (the "Town Board"), the Town Supervisor, Catherine Lester ("Lester"), and the Town Councilpersons, Thomas Knobel ("Knobel"), Peter Hammerle ("Hammerle"), Nancy McCaffrey ("McCaffrey") and Leonard Bernard ("Bernard," collectively the "defendants"), unlawfully revoked a permit necessary to have a sale at a location within the Town of East Hampton, in violation of ABC's constitutional rights. The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended Complaint arguing that the plaintiff has failed to allege a claim upon which relief may be granted.

 I. Background

 The following facts are taken from the Amended Complaint. ABC is a New York corporation, located in Manhattan, that sells home furnishings. Evan Cole ("Cole") is ABC's President. The Town of East Hampton is a municipality located in Suffolk County. The Town's Board is the Town's legislative body. Catherine Lester is the Town Supervisor and Thomas Knobel, Peter Hammerle, Nancy McCaffrey, and Leonard Bernard are Councilpersons who sit on the Town Board. The non-municipal defendants are sued in their individual and official capacities.

 In the spring of 1996, ABC met with representatives of an entity referred to as Podell House, a residential program offering family mediation services and safe temporary shelter for runaway and homeless youths on the East End of Long Island. The purpose of the meeting was to discuss furnishing Podell House with ABC merchandise and a cash gift. Ultimately, it was agreed that Children's House, Inc., Podell House's parent entity would make arrangements for ABC

 
to hold a cocktail party and conduct a three day sale of merchandise at Dune Alpin Field in the Town of East Hampton (the "Event"), and that in exchange ABC would donate a portion of the proceeds of the three day sale to Podell House in an amount guaranteed at $ 20,000. As part of the agreement, ABC would also donate certain furnishings, with a value of $ 5,000 to Podell House.

 Am. Compl. P 16. The arrangements were made with the aid of LBS Productions ("LBS") which is managed by Linda B. Shapiro. With Shapiro's assistance, Councilperson Knobel was contacted and the Event was scheduled for July 12-14, 1996.

 On April 25, 1996, Estelle A. Fox, ABC's Project Director, wrote a letter to Councilperson Knobel reiterating the company's plans to make financial contributions worth a total amount of $ 25,000, and advising that the advertising budget would be "significant." On May 6, 1996, Shapiro sent Knobel a template for advertising purposes. The defendants did not reply to this correspondence. On May 8, 1996, Shapiro completed the application for a Town permit for the Event. The application stated the purpose of the event as follows: "To raise funds for Podell House, Friday p.m. - July 12 - cocktail party sale - Sat. - Sun. sale."

 The Town's printed application form stated:

 
In consideration for the issuance of the permit sought herein, without charge or fee paid to the Town of East Hampton, the applicant hereby consents and agrees that the Supervisor of the Town of East Hampton, upon the report and recommendation of the Chief of Police of the Town and/or the Acting Chief of Police of the Town, without notice or hearing, may revoke such permit granted to this applicant.

 According to the Amended Complaint, the application was then presented to the Town Board. At this time, the defendants were aware that the proposed location for the Event, Dune Alpin Farm, "was located in a residentially zoned part of town." At a Town Board meeting held on May 17, 1996 Councilperson Knobel presented Resolution # 560, which was seconded by Councilperson Bernard, and provides as follows:

 
WHEREAS, an application has been received from Children's House, Inc. to hold a benefit sale at Dune Alpin Farm for the "Podell House", a not for profit home for runaway children, on July 12, 1996 through July 14, 1996; and
 
WHEREAS, the benefit will begin on Friday, July 12th with a cocktail party and an opening sale between the hours of 6:00 p.m. and 10:00 p.m. with the benefit sale to take place also on Saturday, July 13th between the hours of 10:00 a.m. and 8:00 p.m. and ...

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