A New Brunswick, N.J., restaurateur won a $1.535 million jury verdict Wednesday in his suit claiming the city’s mayor wrongfully blocked a liquor license for a planned sports bar because he objected to the name: “Buck Foston’s.”
The federal court jury, after a nine-day trial, found that Mayor James Cahill had used his influence to deny the license because he considered the name vulgar and that the city’s action violated Lawrence Blatterfein’s First Amendment rights.
“Buck Foston’s” is a reference to the rivalry between New York and Boston sports teams. Cahill—New Brunswick’s mayor for 23 years—is admittedly a Red Sox fan.
Cahill denies his affinity with the Boston team had anything to do with the license denial, which was based on concerns that the planned establishment posed a safety hazard due to increased proposed occupancy over the site’s previous occupant and due to traffic issues.
In November 2009, Blatterfein signed a contract to purchase a vacant former Bennigan’s restaurant at the intersection of Routes 1 and 18. In April 2011 he applied to the city for a transfer of a liquor license from another defunct restaurant. The city council by 2-1 voted to deny the transfer on Sept. 7, 2011.
Cahill says the city was concerned that the proposal would change the use of the site “from an eating establishment to a drinking establishment” and that it would almost double the occupancy to 352 from Bennigan’s 185.
What’s more, the only driveway on the restaurant site is accessed from an off-ramp from Route 1 north onto Route 18 north, a mode of access not allowed under current highway code.
The city council felt the intensified use of the location would not promote the public’s safety or welfare. “That was the city’s position, but apparently not the one the jury believed,” Cahill says. “Candidly, I think people have a tough time today believing public officials.”
Blatterfein argued financial damages from the denial. He had lined up $2.6 million in financing, but the project fell through because the loan was contingent on obtaining the liquor license, says his lawyer, Edward Paltzik of the Joshpe Law Group in New York City.
The losses from the failed Buck Foston’s project forced him to sell another New Brunswick bar he had long owned—the Knight Club, a reference to the Rutgers University mascot, the Scarlet Knight—Paltzik adds.
After the verdict, the parties agreed to settle the case for $1.4 million. The city agreed not to appeal the verdict and Blatterfein agreed not to seek legal fees, Paltzik says.
Cahill says the settlement was in the city’s interest because the verdict and plaintiff counsel fees would have approached $2 million.
Although the suit claimed violations of Blatterfein’s constitutional free speech and equal protection rights, Paltzik says he presented the case as an abuse of power by the mayor.
He says he proffered as evidence memos from city and state officials that contradicted the council’s stated reasons for denying the license transfer.
He also introduced a memo to Cahill from Glenn Patterson, the city’s director of economic development, that discussed the proposed establishment’s name. The memo said any restriction on commercial speech “must advance a substantial public interest and must not be more extensive than necessary to advance that interest,” citing U.S. Supreme Court commercial speech cases.
Patterson’s memo also said Buck Foston’s name “probably does not meet the definition” of lewd or obscene advertising on establishments holding a liquor license, which state law prohibits.
Paltzik says the memo confirms that the city was concerned about the name. Blatterfein, to prove his First Amendment claim, did not have to show the Buck Foston’s name was the primary reason for license denial but only that it was “a motivating factor,” Paltzik says.
Besides Cahill and the city, the suit named as a defendant city council president Robert Recine, who voted against the license transfer. All three were represented by Lori Dvorak, head of a New Brunswick firm, who did not return a call. Another council member who voted against the transfer, Kevin Egan, was dismissed as a defendant.
U.S. District Judge Freda Wolfson presided at the trial.
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