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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MITRI S. HABASH, et al. * * * Plaintiffs, * * v. * * CITY OF SALISBURY, MARYLAND, et al. * * Defendants. * ************** MEMORANDUM This is the second of two civil rights cases filed in this Court involving defunct nightclubs once located in Salisbury, Maryland. The Plaintiff in the instant case, Mitri Habash, owned a nightclub named Club Vissage. He currently alleges that Defendants1 purposefully drove his establishment out of business because Club Vissage catered to a black clientele on its hip-hop nights. Following extensive discovery, Defendants moved for summary judgment. After the motion was fully briefed, the Court heard oral argument. For the reasons stated herein, Defendants' motions for summary judgment are GRANTED. As mentioned, the present dispute is the companion to an earlier case filed in this Court. See Orgain v. City of Salisbury, et. al., 521 F. Supp. 2d 465 (D. Md. 2007). In that case, the Court granted the defendants' motion for summary judgment. See id. at 469. The Fourth Circuit Court of Appeals affirmed the decision on appeal. See Orgain v. City of Salisbury, et al., 2008 U.S. App. LEXIS 26495, at *19 (4th Cir. Dec. 29, 2008). Because the earlier case overlaps both

Civil No. L-04-2338

The specific Defendants in this case are: (1) the City of Salisbury, Maryland, (2) Salisbury Chief of Police Allan J. Webster, (3) Salisbury Police Officer Aaron B. Hudson; (4) Wicomico County, Maryland, (5) Wicomico County Board of License Commissioners, (6) Leo McNeil, W.C. Holloway, and Shirley C. Gray, the Chairman and members of the Board of License Commissioners, and (7) Greg Rickards, Chief Inspector for the Board of License Commissioners.

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legally and factually with the instant dispute, an extended discussion of the Orgain case is warranted. The lead plaintiffs in the first case, Robert and Rebecca Orgain, owned a large nightclub named Club Andromeda. The club was open at least four nights a week and, initially, each night had a different theme. Wednesday, which was ladies night/hip-hop night, proved to be the most popular and drew a crowd that was predominantly, though not exclusively, black. Because of this popularity, the Orgains added a second night of hip-hop on Saturdays. Club Andromeda, on hip-hop nights, became a trouble spot for the Salisbury Police Department ("SPD"). The department received dozens of Calls for Service ("CFS"). Some calls were for petty offenses such as vandalism, but many others were for more serious crimes such as assaults, thefts, disorderly conduct, robberies, and shootings. Eventually, after the Orgains proved unsuccessful in reducing the level of violence at Andromeda, the Wicomico County Board of License Commissioners ("County Liquor Board" or "the Board") suspended the Orgains's liquor license for thirty-five days. This suspension tipped the club's already precarious financial balance and the Orgains shuttered Andromeda. Shortly thereafter, they brought a civil rights suit against a number of defendants, including the City of Salisbury, its police chief, Allan J. Webster, and three members of the County Liquor Board. The complaint's core allegation asserted that the defendants purposefully drove the nightclub out of business because hip-hop nights attracted a predominantly black clientele. The complaint's principal legal theory posited that the defendants, by treating Andromeda less favorably than other similarly situated nightclubs on account of the race of the club's clientele, had violated the Orgains's rights under the Equal Protection Clause of the Fourteenth Amendment.

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With respect to the police defendants, the alleged less favorable treatment included threats to prosecute the Orgains for maintaining a public nuisance, failing to offer the Orgains assistance from the department's community affairs section, and imposing an oppressive, heavyhanded police presence at Andromeda on hip-hop nights. With respect to the County Liquor Board defendants, the alleged less favorable treatment included imposing an unreasonably harsh sanction--the thirty-five day suspension--on the Orgains. In a lengthy written opinion, this Court granted summary judgment to the defendants, ruling that the Orgains had failed to "produce evidence from which a fair-minded jury could find that the laws were selectively enforced against them." Orgain, 521 F. Supp. 2d at 469. In a per curiam opinion, the Fourth Circuit Court of Appeals affirmed. See Orgain, 2008 U.S. App. LEXIS 26495 at *19. These two opinions are central to an understanding of the instant case. The Orgain opinions lay out the applicable legal analysis and discuss facts--including facts about Club Vissage--that are pertinent to Habash's claims. As explained by the Fourth Circuit, the Equal Protection Clause prohibits officials from applying facially neutral laws and policies in an intentionally racially discriminatory manner. See Orgain, 2008 U.S. App. LEXIS 26495 at *19. At the summary judgment stage, a plaintiff is required to proffer sufficient evidence from which a reasonable jury could find that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. See Orgain, 521 F. Supp. 2d at 477. In Orgain, the defendants were entitled to summary judgment because the plaintiffs failed to produce evidence from which a fair-minded jury could find either that Andromeda was treated differently from similarly situated clubs or that defendants were motivated by racial animus. Id. at 469.

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Like the Orgains, Habash has failed to produce sufficient evidence from which a set of fair-minded jurors could determine that the laws were selectively enforced against him. The Court will, therefore, in a separate Order (1) GRANT Defendants' motions for summary judgment, (2) ENTER JUDGMENT in their favor, and (3) DIRECT the Clerk to close the case. I. FACTUAL BACKGROUND A. Club Vissage

In September 2000, Habash purchased a Salisbury nightclub formerly known as the Firehouse. After making some minor renovations, Habash re-opened the space under the name Club Vissage. Vissage was open Wednesday through Saturday evenings. In an effort to attract more customers, Habash instituted various "theme nights." These included "college night," "all you can drink night," and "hip-hop night." Hip-hop night proved to be a success and Habash expanded it to include both Friday and Saturday evenings. B. Interactions Between Habash and the Salisbury Police Department

It is undisputed that Vissage, on hip-hop nights, became a trouble spot for the SPD. Although the record is less developed on this point than it was in Orgain, both sides agree that fist fights frequently broke out, necessitating frequent Calls for Service. Distressed by the violence, Habash requested a meeting with Chief Webster to discuss his concern that the police were not responding to Vissage's calls quickly enough. He also wanted Chief Webster's advice regarding ways of reducing violence at the Club. The meeting took place on January 17, 2003. Chief Webster assured Habash that the SPD was doing everything in its power to respond to Vissage's calls as quickly as possible. When the conversation turned to ways to reduce the number of violent incidents, Chief Webster offered several suggestions. He suggested that Habash call 911 at the first sign of trouble. He

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also proposed that Habash tighten Vissage's dress code. Finally, because the violence centered on hip-hop nights, Webster suggested that the Club change its music format to country and western on Fridays and Saturdays. After the meeting, Habash tried tightening the dress code, shutting off the music earlier in the evening, and calling 911 at the first sign of trouble. These measures did not stem the trouble. Vissage's violence-related Calls for Service not only persisted but escalated, with the Club reporting two incidents of shots being fired. On February 21, 2003, Salisbury Police Officer Elmer Davis sent Habash a warning letter. He noted that problems at Vissage were increasing, and he advised Habash that the Department "would meet with . . . [the] State's Attorney regarding any action that could be undertaken." Officer Davis ended the letter with a request for a face-to-face meeting with Habash. At that meeting, Habash asked Davis for his advice on how to address Vissage's problems. Among other ideas, Officer Davis suggested that Habash change the format of hiphop nights. A week later, Habash had a second meeting with Chief Webster. Webster made it clear that he would not tolerate the continued violence at Vissage. During the discussion, he repeated his change of format suggestion. According to Habash, Webster threatened him with a criminal prosecution if he renewed his liquor license. Webster denies making such a threat. At this summary judgment stage, the Court will accept Habash's version as being true. C. Interactions Between Habash and the Wicomico County Board of License Commissioners

As discussed in Orgain, the City of Salisbury is located in Wicomico County, Maryland. Liquor licenses in the County fall within the jurisdiction of the County Liquor Board, which employs its own enforcement personnel. At all pertinent times, the members of the Board 5

included Leo McNeil, W. C. Holloway, and Shirley C. Gray. In March 2002, the Board issued a regulation that, inter alia, prohibited certain drink incentive programs that encourage heavy drinking. The banned programs included "all you can drink" and "beat the clock" specials. The former program is self explanatory. The latter entitles patrons who arrive early to pay less per drink throughout the evening. On deposition, Habash testified that the regulation only affected Andromeda and Vissage because they were the only two clubs offering these specials. The Board's new regulation also required drinks to be sold at market rates, but did not specify a minimum price. Interpreting the regulation, Greg Rickards, Chief Inspector for the County Liquor Board, advised Habash that he was not permitted to sell beer or other alcoholic drinks for less than $1.00. Habash objected on the ground that he could make a profit selling certain cheaper brands of beer for less than $1.00. Habash does not allege that other establishments were permitted to sell drinks for less than $1.00. He contends, however, that Vissage was the only club selling beer at that low price. Habash further contends that in March 2003, Rickards said that the Board would initiate a show cause hearing if Habash sought to renew Vissage's liquor license. A show cause hearing is not a prosecution. Instead, it is an administrative hearing at which the license holder must show cause why his license should be renewed. The Board's briefs do not take a position with respect to this allegation except to state that Rickards did not have the authority to make such a decision. On summary judgment, the Court will assume that Rickards did make the statement, as Habash alleges. During his depositions in Orgain and in the instant case, Habash offered a number of explanations for his decision to surrender his liquor license and close Vissage. He said the Club was losing money due to the violence on its premises; he stated that the frequent fights during

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hip-hop nights had given Vissage a bad reputation, scaring away trade--primarily college students--on other nights; he pointed to the Board's ban on certain drink specials, which made it harder to attract customers; and he acknowledged that efforts to quell the violence had proven unsuccessful, and that he did not want to face possible criminal prosecution. Weighing all of those factors, Habash decided the best course of action was to surrender his liquor license and close Vissage. D. Statements Made by Officer Hudson

In addition to focusing on Defendants' allegedly unconstitutional actions to close Vissage, Habash's complaint also asserts a pendant state law claim for defamation. The claim centers on Habash's relationship with David Nettles, who is a teacher's assistant and football coach at Wicomico High School. Nettles had worked part-time from October 2000 to October 2001 providing security at Vissage. Sometime prior to May 2004, Nettles purchased protein supplements for his team from Habash. In May 2004, Salisbury Police Officer Aaron B. Hudson asked Nettles whether he had heard that Habash had been arrested on drug and gun charges in Delaware. A fellow police officer--Rusty Savage--had informed Hudson that Habash had been arrested on those charges, and Hudson called Nettles in an attempt to determine whether the report was accurate or not. Hudson eventually learned that Habash had been arrested in Delaware, but the arrest was for a gun offense, not a drug offense. Habash alleges that Nettles stopped purchasing protein supplements from him following the inquiry from Officer Hudson. He contends that Hudson's statement was defamatory, and has sued Hudson, the SPD, and the City of Salisbury. E. The Instant Litigation

On July 21, 2004, Habash filed the instant suit. The complaint includes five counts:

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Count 1 (42 U.S.C. 1983): Habash alleges that all of the Defendants violated his equal protection rights by selectively enforcing city and county laws against Club Vissage because of the race of the Club's patrons. Count 2 (42 U.S.C. 1983): Habash alleges that all of the Defendants violated his first amendment right to free speech by threatening adverse action unless he stopped playing hiphop music at Club Vissage. Count 3(42 U.S.C.

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