Judge refuses to revisit case by Phila. club owner challenging license denial

By Jon Campisi | Apr 10, 2014

A federal judge has refused to revisit his prior decision denying relief to a

Philadelphia club owner who sued over the city’s denial of a special assembly license that would have allowed the plaintiff to have a dance floor in his establishment.

In a memorandum opinion filed on April 7, U.S. District Judge John William Ditter, Jr., of the Eastern District of Pennsylvania, denied a motion by Mark Stein seeking relief from Ditter’s Jan. 15 order granting the dismissal of all claims against the City of Philadelphia.

Stein had sought a special assembly license for his Club Aura, a spot in Philadelphia’s trendy Northern Liberties neighborhood, but the application was denied because of complaints by neighbors about the club and due to the objections of civic associations and the local police district, records show.

Stein argued that the complaints were unfounded, but the city’s decision was upheld by the Philadelphia Board of License and Inspection Review after a public hearing.

Stein took his case to federal court, arguing that the city’s actions were “so egregious that one’s conscience would be shocked,” Ditter’s judicial memorandum notes.

The judge, however, ultimately determined that Stein failed to meet any grounds for relief.

This week, Ditter wrote that, “it is clear Stein disagrees with my decision, but that is not sufficient cause to disturb it.

“He cites no mistake, inadvertence, surprise, or excusable neglect to justify vacating the prior decision,” the judge wrote. “There is no allegation of fraud, misrepresentation or misconduct on the part of the City in the filing of the motion to dismiss.

“He cites no change in law or clear error of law or fact in the prior decision,” Ditter continued. “In fact, he offers no discussion of the rule and its applicability to his request.”

Stein had sought relief under Federal Rule of Civil Procedure 60(b), which provides relief from final judgment if mistakes, neglect or newly discovered evidence was involved.

Instead of offering anything new, Ditter wrote, Stein simply rehashed his prior arguments and presented a chart and other exhibits that purport to show he was treated differently from other restaurants in the Northern Liberties area.

The exhibits, however, were not offered in Stein’s response to the city’s motion to dismiss, the judge pointed out.

“If this is supposed to be newly discovered evidence, he doesn’t claim so, nor does it appear that it is,” Ditter wrote. “More importantly, he offers no reason for failing to present these documents in response to the defendants’ motion to dismiss.”

Stein had argued that the city had no proper or legal basis to deny his special assembly license, and that the city zoning board’s decision, and subsequently decision by Philadelphia Common Pleas Court Judge Idee Fox, were based on unfounded allegations and “fabricated concerns” after all the other conditions of licensure were met, Ditter’s ruling states.

The judge, however, wrote that this is not cause to revisit his prior decision on this issue.

“Stein has failed to point to any error of law or fact in my January 15, 2014 opinion, and there is no manifest injustice to be avoided,” Ditter wrote. “I must therefore deny his motion for reconsideration."

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