The opinion of the court was delivered by: Spatt, District J.
MEMORANDUM OF DECISION AND ORDER
Daniel Rathgaber (the "plaintiff") brings this action against the Town of Oyster Bay (the "Town"), and Steven L. Labriola ("Labriola") (collectively the "defendants"), alleging that the Town's licensing provisions for commercial shell-fishing violate the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the United States Constitution. The plaintiff alleges that Town's licensing provisions are unconstitutional both on their face and as applied to him. Presently before the Court are the objections of the parties to a Report and Recommendation of United States Magistrate Judge William D. Wall, issued on December 20, 2006, and the plaintiff's motion, brought by order to show cause, seeking declaratory relief and an order directing the Town to issue a clamming license to him.
A. The Referral of this Matter
On October 6, 2006, the plaintiff commenced this action alleging that the Town of Oyster Bay's denial of a shell-fishing license to him violated the Equal Protection and Due Process clauses of the Constitution. At the time he filed the complaint, the plaintiff also filed an motion, by order to show cause, seeking:
(a) an Order declaring the duration residency requirement of Section 196-8 of the Town of Oyster bay Code Unconstitutional.
(b) an Order directing the Clerk of the Town of Oyster Bay to issue a clamming license to the plaintiff, Daniel Rathgaber.
On October 12, 2006, the Court held a hearing on the plaintiff's order to show cause. At the hearing, it was determined that a factual dispute existed and that an evidentiary hearing was necessary. Thus, the Court referred the matter to Judge Wall to hear and report.
There is some confusion regarding the scope of the referral that needs to be resolved at the outset. At the show-cause hearing, the Court referred the case to Judge Wall for the purpose of determining two questions: (1) was the plaintiff a resident of the Town of Oyster Bay; and (2) was he treated differently than similarly situated individuals.
On October 13, 2006, the Court issued a written Order intending to memorialize the referral of this matter. In that Order, the Court stated that the matter was being referred "for the purpose of resolving all questions of fact and law relating to the plaintiff's request for a preliminary injunction directing the Town to issue a license to him, and to issue a report and recommendation to that effect pursuant to Rule 72(b) of the Federal Rules of Civil Procedure." This is the language the Court typically uses when matters such as this are referred to a Magistrate Judge to hear and report. However, it was a mistake to use this broad language in this case. It was not the intention of the Court to broaden the scope of the referral to Judge Wall. Ultimately, this over-broad language in the referral order was of no serious consequence, because Judge Wall wisely and correctly limited the scope of his Report and Recommendation to findings of fact on two relevant factual issues. First, whether Rathgaber was a resident of the Town of Oyster Bay and second, whether he was treated differently from other similarly situated individuals.
B. The Evidentiary Hearing
On October 26, 2006, Judge Wall held an evidentiary hearing. The plaintiff testified that at the time of the hearing, he lived at 30 Terrace View Road, Farmingdale, New York, which is located in the Town of Oyster Bay. Evidentiary Hearing Transcript ("Tr.") 11. He testified that he first moved to Farmingdale in June, 2005. At that time, he resided at 232 Eastern Parkway, Farmingdale, also in the Town of Oyster Bay, with a man named Richard Schenna. Tr. 12-13. The plaintiff's objective in moving to Farmingdale was to establish residency in the Town of Oyster Bay so that he could obtain a clamming permit. Tr. 13. There is also documentary evidence in the record that the plaintiff was a resident of 232 Eastern Parkway, Farmingdale, on May 15, 2005 (see the Rental Leasing Agreement, Ex. A) and was a resident on or before June 9, 2005 (see the plaintiff's driver's license, Ex. A).
On July 20, 2005, the plaintiff applied for a shell-fishing permit. Tr. 16; Pl's Ex. A. As proof of his residency, the plaintiff submitted a New York State Marine Permit Certificate; a boat registration; his New York State driver's license; a letter from the phone company Verizon acknowledging his service package; and a "rental/lease agreement." All of these items contained the address at 232 Eastern Parkway. Pl's. Ex. A. The plaintiff's application was rejected on the ground that he had not yet lived in the Town of Oyster Bay for a period of one year. Tr. 18.
In March, 2006, the plaintiff moved to 30 Terrace View Road in Farmingdale in the Town of Oyster Bay, where he resided at the time of the hearing. Tr. 18. On June 22, 2006, the plaintiff went to the Town Clerk's Office to apply for a clamming license. Tr. 24. As proof of his residency in the Town of Oyster Bay, the plaintiff submitted his New York State Driver's License; a boat registration; his New York State Marine Permit Certificate; a "Sears" credit card statement; and a "Verizon" telephone bill. At the request of the Town Clerk, the plaintiff also submitted a letter from his landlord, Stephen Loiacono, at the 30 Terrace View Road residence. Pl's. Ex. B; Tr. 24. All of these documents contain the address at 232 Eastern Parkway or 30 Terrace View Road. Pl's Ex. B. The Town did not issue a license to the plaintiff at that time. On subsequent dates, the plaintiff inquired about the status of his license, and was told that it was "under review," but was not given any other information. Tr. 24-25.
On July 13, 2006, the Town sent a letter to the plaintiff, stating that it could not give him a license due to "insufficient evidence" of his residency within the Town of Oyster Bay. Pl's Ex. B. The letter asked the plaintiff to submit further documentary evidence of his residence in the Town, including his State and Federal tax returns, his renter's insurance, and his voter's registration. Tr. 25; Pl's Ex. B. The plaintiff does not possess such documentation. Tr. 25, 33. Thus, no license was issued to the plaintiff. According to the plaintiff, during this time he was not able to get a clamming license in any other town because he lived in the Town of Oyster Bay. Tr. 26. Although he did not receive a permit, no formal denial was ever issued to him. The plaintiff testified that on the same day that he went to the Town Clerk's Office to apply for his shell-fishing license, another clammer, Kenneth Howes, also applied for a license and it was awarded to him "on the spot showing less information than [Rathgaber] did." Tr. 27. In support of his application, Howes submitted his New York State driver's license; his New York State Marine Permit Certificate; "Keyspan" and "LIPA" energy bills; and a letter from the State University of New York at New Paltz. All of these documents reflected Howes' or his parents' home address within the Town of Oyster Bay. Pl's. Ex. C.
Christine Wiss testified on behalf of the defendants. She works in the Town Clerk's Office. Tr. 52. Wiss testified that her responsibilities include the processing of permits. Tr. 53. One hundred and fifteen shell-fishing licenses were issued in 2006. Tr. 57. Wiss' understanding of "residency" is that it is "someone's home," their "domicile." Tr. 57. Wiss testified that three applicants were denied clamming licenses on July 10, 2006, because of concerns regarding their proof of residency. Tr. 60-61. All three of these individuals were sent a letter similar to the one sent to plaintiff on July 13, 2006, asking him for additional proof of his residency through tax returns, renter's insurance, and/or a voter registration card. Tr. 63; Pl's. Ex. E. Wiss testified that there were questions as to the residency of each of these applicants, but she did not specify as to the subject matter of those particular questions. Tr. 61.
In addition to his own testimony and other exhibits, the plaintiff offered in evidence the applications of thirteen persons who were granted a shell-fishing license. Pl's. Ex. D. On cross-examination, Wiss testified that none of those thirteen applicants were sent a letter similar to the one that the plaintiff received on July 13, 2006. Tr. 84. Of these successful applications, several submitted income tax documents. None submitted a renter's insurance policy or a voter registration card. Pl's Ex. D.
Upon questioning by the Court, Wiss testified that the reason why the plaintiff was denied a shell-fishing license had something to do with Rathgaber's association with individuals who previously sued, and are currently suing, the Town of Oyster Bay with regard to its shell-fishing permit requirements. Tr. 69-70.
THE COURT: Why wasn't the proof submitted that I just recited sufficient to establish residency? There were bills -- he doesn't have to stay in the same residence for a year, just as long as he's a town resident for a year, right?
THE COURT: And so assuming both of those residences of
Eastern Parkway and Terrace Avenue are in the Town of Oyster Bay hasn't he submitted sufficient proof to establish his residency in the ...