PHILADELPHIA – The owner and operator of Old City Beer Garden has filed suit against the City of Philadelphia’s Department of Public Health Office of Food Protection and its officials, claiming the organization closed his business without proper justification and violated his procedural due process.
Michael Stosic filed suit in the Philadelphia County Court of Common Pleas on May 13 versus the City of Philadelphia’s Department of Public Health Office of Food Protection, Terrance Carter and Joseph Mellon. All parties are of Philadelphia.
“Mr. Stosic operates Stoish, Inc. under the name of Old City Beer Garden. On May 6, 2021, the Department of Health stood in front of Old City Beer Garden. The Health inspector related to this matter is Mr. Terrance Carter,” the suit states.
“Carter did not issue a report of a violation but instead held a serious of long phone calls and then angrily indicated that, ‘You are going to voluntarily close.’ Stosic indicated that it would an absurd scenario to voluntarily close on a summer weekend in May.”
The complaint explains that a back-and-forth argument ensued between Stosic and Carter – where Stosic indicated he would be willing to close if the City’s Department of Health issued a report indicating relevant violations and finding the beer garden as a danger to public health, and Carter insisted on closure regardless.
Carter returned the next day with a “Closed” placard, the suit states, and indicated he was going to close the beer garden, which Stosic said could not happen unless a pertinent report was issued.
“Carter then stood outside for over two hours constantly talking on the phone. Carter, at no point, inspected the premises and/or found a single violation. Carter just called the police and signed the closure placard based on a violation of Title 6, Chapter 300,” the suit adds.
“Carter, for the first time, indicated a violation without ever walking into the beer garden. Stosic is in the process of getting cameras from 711, CVS and Sto’s. It will show that Carter never walked into the beer garden on May 7, 2021. At some point, Carter, without entering the premises, issued two violations. The violations are baseless.”
The alleged violations pertained to preventing contamination to food on the premises (despite beer only being served in the beer garden, the suit claims) and the temperature of the running water on the premises.
“The Department of Health came out again on May 11th. They inspected Old City Beer Garden and found no violations but refused to let it open based on a premise that the commissary Sto’s did not pass health Code. Exhibit A is the report. It fails to establish a danger to public health,” per the suit.
“Further, a list of Health Reports will show significantly higher violations and the establishment was allowed to stay open. The ability to earn a living is a constitutional right. It is not a privilege. There is nothing more arbitrary than Terrance Carter walking into a place with an intent to keep the place closed.”
Though the City removed the suit to federal court on May 14, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh remanded the case to the Philadelphia County Court of Common Pleas on May 17.
“Plaintiff essentially seeks review of the Health Department’s order, and raises multiple factual issues regarding the inspections that took place. The City of Philadelphia has a scheme in place for appeals of administrative decisions, including an application for an ‘Emergency Hearing Appeal.’ Petitioners can appeal decisions of the relevant Board of the Department of Licenses and Inspections to the Court of Common Pleas, and then to the Commonwealth Court. As plaintiff’s allegations center on issues of state and local regulation and review is available for his claims, abstention is appropriate here,” McHugh said.
“In addition to his factual contentions, plaintiff raises legal arguments about the health inspectors’ general authority and about the meaning of phrases within the Health code. Finally, even though plaintiff cites federal statutes in setting forth his claims, in substantive terms he firmly roots his due process and equal protection claims in the Pennsylvania Constitution. In one instance, plaintiff even notes how the Pennsylvania courts define due process more broadly than federal courts. Accordingly, this case properly filed in state court. The matter is therefore remanded forthwith to the Philadelphia County Court of Common Pleas.”
For counts of declaratory judgment and procedural due process, the plaintiff is seeking general and compensatory damages in excess of the compulsory arbitration limits of $50,000, including all payments and assessments of the storm water management service charge, and all foreseeable and consequential economic damages, a declaration that Taylor’s cease and desist order on the plaintiff’s companies was improper, plus reasonable fees and costs and damages pursuant to 42 U.S.C. Section 1988 and/or other applicable statute.
The plaintiff is representing himself in this matter.
The defendants are represented by Andrew Pomager and Anne B. Taylor of the City of Philadelphia’s Law Department.
Philadelphia County Court of Common Pleas case 210501206
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02202
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com