United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court pursuant to the Motion to
Dismiss filed by Defendants Borough of Belmar, Mayor Matthew
Doherty, Colleen Connolly, Andrew Huisman, Jennifer Nicolay,
Janis Keown-Blackburn, Thomas Brennan, Brian Magovern, Thomas
Palmisano, Thomas Cox, Tina Scott, Ted Bianchi, and Robert
Poff (collectively, “Defendants”). (ECF No. 12).
Defendants are seeking dismissal of Plaintiffs Timothy
Harmon, Matthew Harmon, DCJ Belmar, Inc., Dockside Dining,
LLC, and Two Dawgs's (collectively,
“Plaintiffs”) First Amended Complaint
(“FAC”) (ECF No. 9), wherein Plaintiffs raised
seven claims: (1) violation of due process pursuant to 42
U.S.C. § 1983; (2) violation of equal protection
pursuant to 42 U.S.C. § 1983; (3) violation of the
Racketeer Influence and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1962(c) and (d); (4) violation of New
Jersey RICO; (5) intentional interference with a contractual
relationship; (6) intentional interference with prospective
economic advantage; and (7) intentional infliction of
Timothy and Matthew Harmon (“The Harmons”) own
and operate restaurants and bars in the Borough of Belmar,
New Jersey. The Harmons currently operate the Boathouse Bar
and Grill. (FAC ¶¶ 2-3). In January 2014, the
Borough entered into a Redevelopment Agreement with real
estate developer, Loko, LLC. (Id. at ¶ 10). The
plan included the construction and operation of an outdoor
café and bar, located at the northern boundary of the
Borough, by the Shark River Inlet (“the Loko
property”). (Id. at ¶¶ 10, 13).
Thereafter, Plaintiffs entered into an agreement with Loko to
construct the outdoor café and bar, and to operate the
facility for a three-year period (“Agreement”).
(Id. at ¶ 13). As part of the Agreement,
Plaintiffs were to transfer the alcoholic beverage license
from another restaurant, “507 Main, ” to the Loko
property to operate a facility to be known as
“Salt” (hereinafter, “Salt
Facility”). (Id. at ¶ 15).
of background, Plaintiffs ceased operation of “507
Main” and, on April 24, 2015, applied to the Borough
for the transfer of the alcoholic beverage license at
“507 Main” to the Loko property. (Id. at
¶ 16). During this same period, Loko demolished the
existing structure on its property, in preparation for the
construction of the Salt facility and other improvements.
(Id.). Thereafter, Plaintiffs claim to have
“engaged contractors, expended substantial funds,
obtained construction and other permits from the Borough and
began the process of constructing the Salt facility.”
(Id. at ¶ 17).
to Plaintiffs, over the next year, Defendants conspired in
various manners to interfere with their current operations at
the Boathouse restaurant; their liquor license applications;
and their construction of the Salt facility. The Complaint
alleges that, contrary to the “normal policies and
procedures” of the Belmar Police Department, Defendant
Palmisano assigned Plaintiffs' application to Defendant
Huisman, who did not ordinarily investigate alcoholic
beverage licenses. (Id. at ¶ 19).
April 2015,  Plaintiffs claim, “Defendants
Doherty and Connolly began a concerted effort to prevent the
Plaintiffs from constructing and opening the Salt
facility.” (Id. at ¶ 22). Doherty
allegedly told individuals “that the Plaintiffs
‘would never open a business' in that
location.” (Id.). Defendants Doherty and
Connolly allegedly directed Defendant Bianchi and the
Construction Department to delay issuing permits for
Plaintiffs' construction, despite already having Borough
approval, to which Bianchi complied. (Id. at ¶
23). In another episode, Defendants Doherty and Connolly
allegedly discussed and negotiated with individuals to
develop a different, larger, project on the already approved
Loko property. (Id. at ¶ 24). Specifically,
“Defendant Doherty advised Defendant Magovern and other
members of the Borough Council that this alternative proposal
was ‘better for the Borough' and ‘would be
lost' if the Salt facility were allowed to open.”
(Id.). Doherty also allegedly attempted to coerce
the Loko LLC to terminate its agreement with Plaintiffs and
to agree to a new Redevelopment plan. (Id.).
April 2015 meeting, Doherty also allegedly made the following
statements: (1) “The Borough will approve D'Jais or
Ollie Klein at that location, but not the Harmon
brothers”; (2) “The Harmons' application is
going to get lost at police headquarters and it's going
to take forever to come to the Council”; (3)
“When the Harmons' application comes before the
Council, we will deny the liquor license and force them to go
to the ABC”; and, (4) “We know people there (at
the ABC) and if by chance they approve the transfer, we will
appeal. They will never open.” (Id. at ¶
summer, the Borough, Police Department, and Construction
Department allegedly harassed the Harmon Brothers'
interests. (Id. at ¶ 27). Specifically,
Defendants Connolly and Huisman filed a false CAFRA claim to
the New Jersey Department of Environmental Protection,
“in an effort to stop the project.” (Id.
at ¶ 29). Huisman also allegedly advised members of the
Police Department to harass Plaintiffs and “arbitrarily
denied Plaintiffs' applications for permits for the St.
Patrick's Day Parade.” (Id. at ¶ 30).
The Complaint also claims Huisman told other Borough
officials to be “team players” and to shut down
the Salt project. (Id.). That fall, Huisman appeared
before the Belmar Planning Board, to object to the site plan
for the Salt facility. (Id. at ¶ 31). Despite
no electrical engineering or lighting experience, Huisman
testified that the facility's lighting was inadequate,
which purportedly contradicted a report prepared by the
Board's licensed engineer. (Id.).
Complaint also alleged “Defendants Huisman, Doherty,
Connolly, Nicolay, Keown-Blackburn, Brennan and Magovern
conspired to impose a permit parking zone in the area of the
Boathouse Bar and Grill, the only licensed premises in the
Borough so targeted.” (Id. at ¶ 32).
Defendants Doherty and Connolly also directed a Stop Work
Order on the project, which Defendant Bianchi issued.
(Id. at ¶ 33).
May or early June 2016, over a year after Plaintiffs filed
their application, the Belmar Police Department finally
issued a report to Mayor and Council. (Id. at ¶
36). Despite oral and written requests for a copy of the
investigation report, the Police Department never provided
Plaintiffs with a copy. (Id.).
“person to person and place-to-place” transfer
application was heard on June 8, 2016, before councilmen
Brennan and Magovern, and councilwomen Keown-Blackburn and
Nicolay. (Id. ¶ 37, 41-44). Prior to the
hearing, Defendants Doherty and Connolly allegedly urged
Belmar residents and business owners to appear at the meeting
and oppose Plaintiffs' license transfer. (Id. at
¶ 38). At the hearing, Brennan recused himself from
deliberations, due to a potential conflict of interest, since
his band plays at many local establishments. (Id. at
¶ 42). During the public deliberation, Keown-Blackburn
stated that she did not believe the license transfer was in
the best interests of the Borough and voted against the
transfer. (Id. at ¶ 43); (Claudio Decl., Exh. D
at 2). Similarly, Nicolay expressed concern about the
potential “security, parking, and noise” issues,
and voted against the transfer as well. (Claudio Decl., Exh.
D at 3). Magovern disagreed, noting that the impact of the
transfer would be no different than similar establishments;
he also acknowledged that he knew the Harmons and
“fe[lt] they would do a good job.”
(Id.). Therefore, he voted in support of the
application; however, since there was only one vote in favor
of the application, it did not pass.
Dockside Dining and DCJ Belmar, interests controlled by the
Harmon Brothers, appealed the denial a week later to the
Division of Alcoholic Beverage Control (ABC), within the
Department of Law and Public Safety. (Claudio Decl., Exh.
E.). The Director of ABC referred the matter to the Office of
Administrative Law for a factual hearing and a recommendation
on a cause of action. The ABC application remains pending.
(Claudio Decl., Exh. F.).
Plaintiffs Dockside Dining and the Harmon Brothers filed a
Tort Claim Form against the Borough. (Claudio Decl., Exh. G).
Named defendants included Doherty, Connolly, Huisman, and
Palmisano. (Id.) The claim alleged, “[t]he
Borough and its police department have negligently or
intentionally failed to investigate and otherwise process
Claimants' application for alcoholic beverage license
transfer.” (Id.) The notice form was amended
two more times. The First Amended Tort Claim Form identified
Nicolay, Brennan, Connolly, and Keown-Blackburn as
defendants. (Claudio Decl., Exh. H). In describing the
“wrongful acts” the claim added,
“Maliciously, intentionally or in a grossly negligent
manner denied the ...