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Boulevard & Trumbull Towing, Inc. v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

May 28, 2019

Boulevard & Trumbull Towing, Inc., Plaintiff,
v.
City of Detroit, et al., Defendants.

          OPINION & ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox United States District Court Judge

         Plaintiff Boulevard & Trumbull Towing, Inc., (“B&T”) filed this action against Defendants the City of Detroit, the City of Detroit Police Department, and the City of Detroit's Board of Police Commissioners (referred to collectively as “the City”) in Wayne County Circuit Court. Defendants removed the action to federal court. At this juncture, the only remaining claim in this action is that portion of Count III of B&T's Complaint that asserts a substantive due process claim in violation of the United States Constitution. The matter is currently before the Court on the City's Motion for Summary Judgment, filed after the close of discovery in this matter. The parties have briefed the issues and the Court heard oral argument on May 23, 2019. For the reasons set forth below, the Court shall GRANT the motion.

         BACKGROUND

         On July 28, 2017, Plaintiff B&T filed this action against Defendants in Wayne County Circuit Court. Defendants removed the action to federal court based upon federal-question jurisdiction. At this juncture, the only remaining claim in this action is that portion of Count III of B&T's Complaint that asserts a substantive due process claim in violation of the United States Constitution.

         B&T's Substantive Due Process Claim

         B&T is a towing company. (Compl. at ¶ 9). Gasper Fiore is a “well-known business man, ” who was an owner of B&T. (Compl. at ¶ 13).

         B&T alleges that it maintained a business relationship with the City for more than thirty years. B&T was issued a towing permit on June 1, 2016, that by its terms was to expire on May 31, 2021. (Compl. at ¶ 24).

         In 2017, Gasper Fiore was indicted in a criminal case in this Court. (Compl. at ¶ 15). On June 15, 2017, “over two weeks after the reported indictment of Gasper Fiore's, a meeting of the Board was held.” (Compl. at ¶ 26). After a closed session, the Board adopted a resolution suspending B&T's towing permit. (Compl. at ¶ 27). B&T's Complaint further alleges that:

31. The Board resolution and minutes of the June 15, 2017 Board meeting do not state the reasons for the termination, nor indicate under which provision of Detroit Ordinance § 55-15-1 the permit was terminated.
32. No hearing was provided nor offered either prior to the June 15, 2017 Board meeting, or since.
33. To date, [B&T] has not even been provided any written notice that its permit has been terminated, although various reports use the term “suspended.”

(Compl. at ¶¶ 31-33).

         B&T alleges that the City's conduct amounts to a substantive due process violation under the United States Constitution because it “shocks the conscience” or “fails to survive rational-basis review.” (Compl. at ¶ 47). B&T alleges that the City violated its substantive due process rights by: 1) failing to abide by Michigan's Open Meetings Act; 2) failing “to follow the procedures mandated by Detroit Ordinance § 55-15-1(4) and § 55-15-1 et seq.”; 3) terminating/suspending B&T's permit without prior notice or opportunity to be heard; and 4) past “animosity” expressed towards B&T by a prior Board member, before it was granted the permit at issue. (Compl. at ¶ 48 and ¶¶ 17 & 22).

         The Pending Summary Judgment Motion In This Case

         Discovery in this action closed on November 30, 2018. (ECF No. 72). On January 2, 2019, the City filed a Motion for Summary Judgment. The following material facts are relevant to the pending motion.

         B&T is a towing company. (Compl. at ¶ 9). B&T's complaint acknowledges that Gasper Fiore is a “well-known business man, ” in the Detroit area who was an owner of B&T. (Compl. at ¶ 13).

         In 2016, B&T was awarded a permit to tow vehicles for the Detroit Police Department. The permit covered a five-year period, beginning on June 1, 2016, and expiring on May 31, 2021. (Pl.'s & Defs.'s Stmts., ECF Nos. 82-1 & 88, at ¶ 1).

         All applicants for a towing permit with the Detroit Police Department, including B&T, agreed to be bound by the terms and conditions of the towing permit. (Id. at ¶ 2). Those towing rules, which B&T agreed to abide by, state that: “[t]he city may immediately terminate any towing permit with a tow company for fraud or criminal conduct by the tow company or its employees, provided, however, that as soon as practicable, the permit holder shall be afforded an opportunity for a hearing before the Board of Commissioners or the Board's designee following which hearing the Board shall either affirm or rescind the termination.” (Id. at ¶ 3).

         On May 31, 2017, Gasper Fiore was indicted on multiple counts of federal bribery- related charges in the United States District Court for the Eastern District of Michigan. (Id. at ¶ 5; Defs.' Ex P, ECF No. 47 in Criminal No. 16-CR-20732).

         Willie E. Bell is the Chair of the Detroit Board of Police Commissioners (“BOPC”) and has served as a member of the BOPC since 2014. (Bell Affidavit, Defs.' Ex. F). Bell's affidavit states, in pertinent part:

4. In 2016, the BOPC issued a permit to B&T that allowed B&T to tow vehicles for the DPD.
5. The permit issued to B&T was one of a number of permits issued to local towing companies. B&T's permit was, in all relevant respects, identical to the permits issued to other towing companies.
6. Prior to its June 15, 2017 meting, the BOPC learned that Gasper Fiore had been indicted by the United States Department of Justice.
7. At its June 15, 2017 meeting, the BOPC went into a closed session to speak with counsel regarding the ...

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