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Fruchtman v. Town of Dewey Beach

United States District Court, D. Delaware

July 24, 2014


Page 557

[Copyrighted Material Omitted]

Page 558

Edward C. Gill, Esq., LAW OFFICE OF EDWARD C. GILL, P.A., Georgetown, DE, Attorney for Plaintiff Jason Fruchtman.

Megan T. Mantzavinos, Esq., Emily K. Silverstein, Esq., MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C., Wilmington, DE, Attorneys for Defendants Town of Dewey Beach, William Mears, and Diana Smith.


Page 559

Leonard P. Stark, U.S. District Judge.

Plaintiff Jason Fruchtman filed a complaint on December 16, 2010 against Defendants Town of Dewey Beach (" Dewey Beach" or the " Town" ), William Mears, and Diana Smith. (D.I. 1) Fruchtman seeks damages for violations of his rights under the First, Seventh, and Fourteenth Amendments to the United States Constitution, as well as Article I, Sec. 4 of the Delaware Constitution, all resulting from Defendants' attempts to regulate Plaintiff's placement of street side merchandise displays. Pending before the Court are Plaintiff's motion for summary judgment (D.I. 78) and Defendants' motion for summary judgment (D.I. 81).


Plaintiff owns and operates Jeremiah's, a beach merchandise store that is located in Dewey Beach, Delaware. Dewey Beach is a tourist destination during the summer months. Jeremiah's is located in a three-story, mixed-use building on a corner lot located at the intersection of Dagsworthy Street and the Coastal Highway. The upper stories of the building are residential, while the beach store occupies approximately half of the ground level of the building. Jeremiah's operates from Memorial Day through Labor Day, and during good weather throughout the remainder of the year (in sum, approximately six to seven months of the year).

Plaintiff is the sole owner of Jeremiah's and has been displaying merchandise on the outside of Jeremiah's since 2005 or 2006. This merchandise includes beach chairs, rafts, and float toys which are placed along the sidewalks and also physically attached to the outside of the building on all three stories. Jeremiah's is the only three-story building to display beach merchandise on all stories.

In 2008, an amendment to the Dewey Beach Code (" the Code" ) included regulations which limited the displays of outdoor merchandise such as Plaintiffs'. The Code specifies that displays be no taller than twelve feet, or higher than the first floor of a building, and that the displays should cover no more than 30% of the outside private property as determined by the frontage of the building on the Coastal Highway or 500 square feet, whichever is less. (D.I. 79 at 5; Dewey Beach Code § 185-27.1) Defendants assert that the purpose of the Code is to " promote the health, safety, morals, convenience, order, prosperity, and general welfare" of the inhabitants of Dewey Beach. (D.I. 85 at 2; Dewey Beach Code § 185-3)

According to Defendants, " Jeremiah's has consistently violated the Town of Dewey Beach Zoning Code since 2006 by virtue of its excessive outdoor merchandise displays." (D.I. 85 at 2) Plaintiff has been ticketed on numerous occasions for violations of the Code,[1] and other merchants have been charged with similar violations. ( Id. at 4) Defendants explain that " it was only after continually ignoring verbal warnings that Mr. Mears [a Town official]

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would start issuing citations . . . [and] Plaintiff was cited as often as he was because he continually failed to heed the warnings Mr. Mears gave him." ( Id. ) Plaintiff has not only created aesthetic concerns for the Town, but the " excessive merchandise displays outside Jeremiah's block the sidewalk [and cause pedestrians] to have to walk out into the highway; " " there are also concerns about the merchandise Plaintiff suspends in the air falling down." ( Id. at 3)

Although not entirely clear, it appears that Plaintiff is (or at least was) alleging the following claims: (i) violation of his right to Free Speech under the First Amendment to the United States Constitution and under the Delaware Constitution; (ii) violation of his right to a civil jury trial under the Seventh Amendment to the United States Constitution; [2] (iii) violation of his right to Due Process under the United States and Delaware Constitutions; (iv) breach of contract; [3] (v) violation of the Equal Protection Clause of the United States and Delaware Constitutions; and (vi) violation of the " grandfather clause" he contends is part of the Dewey Beach Code.


" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An assertion that a fact cannot be -- or, alternatively, is -- genuinely disputed must be supported either by citing to " particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials," or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then " come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will " draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

To defeat a motion for summary judgment, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. ...

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