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DeWalt Productions, Inc. v. City of Portland

United States District Court, D. Oregon, Portland Division

August 26, 2019

DEWALT PRODUCTIONS, INC. an Oregon corporation, dba FONTAINE BLEAU, and RODNEY DEWALT, Plaintiffs,




         In this lawsuit, plaintiffs DeWalt Productions, Inc., dba Fontaine Bleau (“DPI”), and Rodney DeWalt (“DeWalt”)(collectively “Plaintiffs”) claim defendants, the City of Portland (the “City), Theresa Marchetti (“Marchetti”), Mark Kruger (“Kruger”), David Jackson (“Jackson”), and Charles Hales (“Hales”)(collectively “City Defendants”), [1] and Steven Marks (“Marks”), discriminated against them based on DeWalt's race, the type of music played at Plaintiffs' nightclub, the Fontaine Bleau (“Fontaine”), and the race of the Fontaine's customers. Currently before the court are summary judgment motions filed by the City Defendants and Marks, and a motion for partial summary judgment filed by Plaintiffs on their due process claims.

         Plaintiffs failed to establish Defendants acted with the intent to discriminate against DPI based on its imputed racial identity as African-American, against DeWalt, as an African-American, or against either of them, based on the type of music played at the Fontaine. Accordingly, the City Defendants' and Marks's motions for summary judgment on Plaintiffs First Claim for Relief for violation of 42 U.S.C. § 1981, Fourth Claim for Relief for Equal Protection, Fifth Claim for Relief for a First Amendment violation based on protected expression, and Ninth Claim for Relief for violation of 42 U.S.C. § 2000d are granted.[2]Because Plaintiffs' sole argument in support of their state law claims is based on evidence of discriminatory intent, the court's finding of lack of discriminatory intent is fatal to Plaintiffs' state law claims; thus, City Defendants' and Marks's motions for summary judgment on Plaintiffs” Tenth Claim for Relief for intentional interference with economic relations and Eleventh Claim for Relief for intentional infliction of emotional distress are also granted. Marks's decision to reinstate DPI's liquor license and issue a second emergency suspension order did not necessarily delay a ruling on the merits of the suspension or harm Plaintiffs in any appreciable manner. Consequently Marks's motion for summary judgment on Plaintiffs' Second and Third Claims for Relief for procedural due process violations is granted, and Plaintiffs' motion for partial summary judgment on these claims is denied.

         Preliminary Procedural Matters

         In their reply brief, the City Defendants object to the deposition and hearing transcripts offered by Plaintiffs without proper authentication, and declarations from witnesses not previously identified. The City Defendants also object to specific statements found in various declarations and references to newspaper articles as inadmissible hearsay.

         Plaintiffs contend the objections should be overruled due to the City Defendants' failure to confer and submit a certification to that effect. Local Rule 56-1(b) expressly provides “[e]videntiary objections in a response or reply memorandum are subject to the certification requirement of LR 7-1(a).” Local Rule 7-1(a) provides, in pertinent part:

(1) . . . the first paragraph of every motion must certify that:
(A) In compliance with this Rule, the parties made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so; or
(B) The opposing party willfully refused to confer.
(2) When conferring about a dispositive motion, the parties must discuss each claim, defense, or issue that is the subject of the proposed motion.
(3) The Court may deny any motion that fails to meet this certification requirement.

         Local Rule 7-1 governs motions and therefore, on its face, is inapplicable to evidentiary objections asserted in a responsive pleading. While Local Rule 56(b) imposes the requirements of Local Rule 7-1 on evidentiary objections asserted in a responsive pleading, it is not entirely unreasonable for an attorney to mistakenly rely on the express language of Local Rule7-1 and omit a certification with regard to objections raised in a responsive pleading, rather than a motion. Because Local Rule 7-1(a)(3) affords the court discretion in addressing a party's failure to meet the certification requirement, the court finds denial of the evidentiary objections on this ground is not appropriate. Moreover, Plaintiffs' response to the evidentiary objections makes clear conferral would have not have resolved the identified disputes.

         The evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. Fed.R.Civ.P. 56(c) (2018). A party filing a motion for summary judgment will generally support that motion with affidavits or declarations. Rule 56 requires that the affidavits or declarations “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). The court must determine what evidence is admissible, relevant, and substantive. Fed.R.Evid. 104 (2018). In ruling on a motion for summary judgment, the court will consider the admissibility of the proffered evidence's contents, not its form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)(“At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its content.”); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)(“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”).

         I. Authentication of Transcripts

         The City Defendants assert excerpts offered by Plaintiffs from the depositions of Robert Cruser (“Cruser”), Mark Friedman (“Friedman”), Paul Van Orden (“Van Orden”), Allison Webster (“Webster”), and Chad Stover (“Stover”), and from the December 4, 2013 emergency suspension hearing held by the Oregon Liquor Control Commission (“OLCC”) before Webster (the “Hearing”), lack the requisite authentication. Plaintiffs argue the objections are improper under Federal Rules of Civil Procedure 56(c)(2), which provides: “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Plaintiffs claim because they can offer the excerpts, or the testimony contained therein, in an admissible form at trial, the City Defendants' objection is without merit.

         The court need not consider Plaintiffs' argument because, with the exception of the Cruser deposition, the deposition excerpts offered by Plaintiffs have been authenticated by either the City Defendants or Marks (collectively “Defendants”). “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a) (2018). A deposition excerpt is ordinarily authenticated “by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted.” Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002). However, “when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity.” Orr, 285 F.3d at 776. The City Defendants offered properly authenticated excerpts from the depositions of Van Orden and Stover, and Marks offered properly authenticated excerpts from the depositions of Friedman and Webster, and the Hearing. The excerpts offered by Plaintiffs are consistent, both in content and appearance, with the properly authenticated excerpts offered by the City Defendants and Marks. Consequently, the court will consider Plaintiffs' deposition and hearing excerpts in this opinion.

         Only Plaintiffs offered excerpts of the Cruser deposition. However, the City Defendants offered the declaration of Cruser. A comparison of the excerpts to the declaration reveals the relevant information in the deposition excerpts is also found in the declaration. Accordingly, the material contained in the Cruser deposition excerpts are properly before the court through the Cruser declaration. The City Defendants' objections to the deposition excerpts offered by Plaintiffs are overruled.

         The excerpts offered by Plaintiffs are not highlighted to identify the portions of the transcripts they deem material and, on numerous occasions, fail to include the questions to which the witness is responding, making the context of the testimony unclear. See United States District Court, Oregon, Local Rule (“LR”) 56-1, “Motion for Summary Judgment” (“(a) Supporting Factual Positions. A party's factual positions must be supported by citations, by page and line as appropriate, to the particular parts of materials in the record.”); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (“Courts have no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)(internal quotation marks omitted). Moreover, the Plaintiffs have failed to offer exhibits about which the witnesses are testifying. To the extent the relevant testimony, and the context in which the testimony was given, is clear from the excerpts offered by Plaintiffs, it has been included in the background summary and considered by the court.

         II. Failure to Disclose Witnesses

         The City Defendants moved to strike the declarations of Bradley Macomber (“Macomber”), Leigh Feldman (“Feldman”), Bendrea Andrews (“Andrews”), and David Harmsen (“Harmsen”), arguing Plaintiffs failed to disclose the identity of these witnesses in their initial disclosures or at any time during discovery. Under Rule 37(c)(1), “[a] party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” This is an “either/or” standard; nondisclosure must be either substantially justified or harmless to avoid being excluded under the rule. Galentine v. Holland America LineWestours, Inc., 333 F.Supp.2d 991, 993 (W.D. Wash. 2004) (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001))(other citation omitted). “The sanction is automatic and mandatory unless the sanctioned party can show that its violation . . . was either justified or harmless.” Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998); see also Yeti by Molly, 259 F.3d at 1107.

         In an order entered July 25, 2018, the court found Plaintiffs failed to disclose these witnesses or to provide substantial justification for such failure, but that any prejudice resulting to the City Defendants could be remedied by permitting them to take the depositions of the unidentified witnesses. (Order dated July 25, 2018, ECF No. 182.) The court allowed Defendants to depose Plaintiffs' unidentified witnesses, and Plaintiffs to depose Gene Balcomb (“Balcomb”), a witness the City Defendants failed to identify, and file supplemental briefs addressing information obtained in the depositions. Defendants deposed Macomber, Feldman, and Harmsen, and filed supplemental briefing incorporating the new information into their summary judgment motions. Consequently, the City Defendants' motion to strike the declarations of these three unidentified witnesses is denied as moot.

         With regard to Andrews, on September 14, 2018, Plaintiffs informed the court and Defendants they were unable to persuade Andrews to cooperate or voluntarily appear for a deposition. (Simon Decl. dated November 20, 2018, ECF No. 186 (“Simon Decl.”), ¶ 7.) On October 5, 2018, the City's process server attempted to serve Andrews with a subpoena for his October 22, 2018 deposition at the address provided by Plaintiff for Andrews's employer, who said Andrews no longer worked at the company. (Simon Decl. ¶¶ 8-10.) Six days later, the City attempted to serve Andrews at an address obtained from social media and was informed by Andrews's spouse he was not normally home before 6:00 p.m. (Simon Decl. ¶ 12.) Andrews contacted the process server later that evening, reportedly acting hostile and demanding specific information about the subpoena. (Simon Decl. ¶ 12.) Over the next eight days, the City made six additional attempts to serve Andrews both before and after 6:00 p.m. (Simon Decl. ¶¶ 14-16.) On October 19, 2018, the City Defendants cancelled the deposition due to their inability to serve Andrews. (Simon Decl. ¶ 17.) Based on the previous finding Plaintiffs failed to disclose Andrews or provide substantial justification for such failure, and the inability of the Defendants to remedy the resulting prejudice by deposing Andrews, the court finds the City Defendants' motion to strike the Andrews declaration is well taken and is granted. Accordingly, the Andrews declaration is stricken and will not be considered by the court in conjunction with the pending motions for summary judgment.

         III. Hearsay Objections

         The City Defendants object to numerous statements in the declarations of Macomber, Feldman, Roger Mitchell (“Mitchell”), and Kenny Scott (“Scott”) as inadmissible hearsay. Plaintiffs assert the statements are not offered for the truth of the matter asserted and, therefore, are not hearsay. Additionally, Plaintiffs contend the statements were made by Defendants' agents or co-conspirators and qualify for an exception to the hearsay rule.

         Hearsay is defined as an out-of-court statement offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801 (2018). Hearsay is admissible only if it qualifies as an exception to the general hearsay rule. The Ninth Circuit has generally applied the limitations found in the hearsay rule, set forth in Rule 802 of the Federal Rules of Evidence, to evidence offered by parties at the summary judgment stage. Orr v. Bank of America, 285 F.3d 764, 778 (9th Cir. 2002); Beyenne v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988). When a statement is hearsay within hearsay, or double hearsay, each statement must qualify under some exemption or exception to the hearsay rule. Fed.R.Evid. 805 (2015); United States v. Arteaga, 117 F.3d 388, 396 n.12 (9th Cir. 1997).

         A statement is not hearsay if it is offered against a party and is “a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” Fed.R.Evid. 801(d)(2)(D). However, this rule requires the proffering party to lay a foundation establishing the existence of an agency relationship and that an otherwise excludable statement relates to a matter within the scope of the agent's employment. Harris v. Itzhaki, 183 F.3d 1043, 1054 (9th Cir. 1999).

         Rule 801(d)(2)(E) of the Federal Rules of Evidence provides in relevant part that a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). The proponent of the statement must demonstrate by a preponderance of the evidence the existence of, and participation in, the conspiracy. United States v. Peralta, 941 F.2d 1003, 1005 (9th Cir.1991) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

         A. Macomber Declaration

         The City Defendants move to strike paragraph 11 of the Macomber declaration, which paragraph provides: “The OLCC, the City of Portland, and the Portland Police were displeased that we played hip-hop music and told us to stop playing hip-hop. The city did not want us attracting ‘urban' kids to downtown.” (Macomber Decl. dated February 28, 2018, ECF No. 157 (“Macomber Decl.”), ¶ 11.) Macomber, a Caucasian, owned a nightclub with three other Caucasians called the Crown Room which was open from 2007 to 2013 in Portland, Oregon (“Portland”). (Macomber Decl. ¶¶ 2, 6; Macomber Dep. dated August 28, 2018, (“Macomber Dep.”)[3] 11:16-12:16.) The Crown Room played hip-hop music on Saturday nights and drew an ethnically diverse crowd on the weekends. (Macomber Dep. 16:17-17:4, 18:11-20.)

         Plaintiffs do not contest the statements found in paragraph 11 are hearsay or argue they qualify for any exception. Consequently, Plaintiffs appear to concede these statements are hearsay and inadmissible. The City Defendants' objection is sustained. The court will not consider paragraph 11 of the Macomber declaration.

         B. Leigh Feldman

         Feldman, a Caucasian, worked as a promoter with a primary focus of hip-hop music in Portland nightclubs from 2006 to 2014. (Feldman Decl. dated February 21, 2018, ECF No. 158 (“Feldman Decl.”), ¶¶ 2, 4.) The City Defendants object to statements in Feldman's declaration attributed to unidentified Portland Police Bureau (“Bureau”) officers.

         Specifically, the City Defendants object to the following statements: (1) “There was one officer in particular who I remember saying blatantly racists things to me, calling African-American patrons animals, using the N word, and calling them stupid. This officer appeared to believe that, because I am white, his racism would not offend me, ” found in paragraph 7; (2) “One of the police officers from the Entertainment Detail, knowing that I was the promoter, approached me during the event and said, ‘Why can't you do more events like this? We like these events[, ]'” when referring to a music format that drew a virtually exclusively white crowd, found in paragraph 8; and (3) “In another instance a police officer and member of the OLCC mentioned that if we stopped playing hip hop our problems would go away. . . . They also mentioned that if we stop serving Hennessey we wouldn't have as many issues, ” found in paragraph 9. (Feldman Decl. ¶¶ 7, 8, 9.) Plaintiffs contend the statements are not offered to prove the truth of the matter asserted. Rather, Plaintiffs offer the statements to establish the discriminatory practices of the City as voiced by the City's agent or co-conspirator.

         To the extent Plaintiffs offer the statements solely to prove they were made to Feldman and establish the effect they had on Feldman, they are not hearsay and are admissible. For example, Plaintiffs may offer the statements in paragraph 7 to prove the officer referred to African-American patrons as “animals” and “stupid, ” and Feldman may testify to his response to such statements. Feldman's declaration, however, does not establish the officer made these statements as an agent of the City. Nothing in the declaration creates an inference that the officer made the statement as one within the scope of his agency, that he was authorized to make such statement as a representative of or on behalf of the City, or that the City ratified or adopted the statement. Furthermore, the officer's identity is unknown, which absence prevents the court from determining whether the proffered statement fits within any of Rule 801(d)(2)'s exceptions. Accordingly, the statements in paragraph 7 of Feldman's declaration cannot be used, and are not admissible, to prove a City policy.

         For the same reasons, the statements in paragraph 8 in which a Bureau officer expresses a preference for a specific type of “event” is not evidence of a City policy. Furthermore, the reference to “we” is vague. The court cannot discern whether the word refers to the Bureau officers then on-duty in that area of Portland, the Bureau's officers generally, or the City itself.

         Finally, the statements in paragraph 9 Feldman attributes to a Bureau officer that if Feldman stopped playing hip-hop music or serving Hennessey his “problems” or “issues” would stop, do not establish a City or OLCC policy to discriminate against African-Americans. Again, Feldman provides no information that satisfies any of Rule 801(d)(2)'s exceptions. Feldman might have believed the statements “inferred” or “implied” the officer did not like clubs catering to African-Americans, but for the same reasons discussed regarding Paragraph 7 and 8, a single unnamed officer's statements do not equate to City or the OLCC policy.

         The City Defendants' objections to the statements found in the Feldman declaration are overruled to the extent the statements are offered only to prove the statements were made and their effect on Feldman, and not to establish the truth of the matter asserted therein. The statements do not establish a City or OLCC policy of discriminating against promoters of hip-hop music that cater to African-Americans and, therefore, are inadmissible for that purpose.

         C. Roger Mitchell

         Mitchell, an African-American, was born in Portland and has lived in Oregon most of his life. (Mitchell Decl. dated February 28, 2018, ECF No. 159 (“Mitchell Decl.”), ¶¶ 2, 3.) He has nearly twenty-five years' experience working in bars and nightclubs in the Portland area, primarily in security, and is familiar with OLCC's rules, regulations, and enforcement strategies. (Mitchell Decl. ¶¶ 5, 6, 9.) DeWalt hired Mitchell to work as a security guard at the Fontaine in February 2013, and eventually promoted Mitchell to head of security for the nightclub. (Mitchell Decl. ¶¶ 11-13.)

         The City Defendants object to Mitchell's statement in paragraph 40 of his declaratioon that “It is well-known in the industry that a business catering to a Black and African-American audience will not survive because the OLCC, Portland Police, and the City of Portland will work together and target that business for heavy-handed enforcement instead of engaging in problem solving with Black and African-American clubs.” (Mitchell Decl. ¶ 40.) In light of Mitchell's involvement in the Portland bar and nightclub industry, and his description of the heavy-handed enforcement he witnessed, it appears this statement is based on Mitchell's personal experience and not on information provided by others. In this context, the statement is not hearsay and is admissible. The City Defendants' hearsay objection is overruled.

         Mitchell describes a conversation between Bureau officers outside the Fontaine in Spring of 2013 during which an Asian officer said “I bet you a cup of coffee there will be a shooting here by July.” (Mitchell Decl. ¶ 43.) Plaintiffs represent they are not offering the statement to prove the truth of the matter asserted therein. The statement is admissible to prove the statement was made and expressed a sentiment of the specific officer, but not to prove a City policy of discrimination, for the same reasons discussed regarding similar statements to which Feldman attested. The City Defendants' hearsay objection is overruled.

         Mitchell represents the City, the OLCC, and Bureau officers told the owners of two nightclubs they should not play hip-hop music if they wanted to stay in business. (Mitchell Decl. ¶¶ 46, 47.) Plaintiffs concede the statement in paragraph 46 is hearsay, because Mitchell merely repeats what the owner told him, but they argue they could properly offer the statement through the owner at trial. However, the owner's statement if one that summarized conversations he had with the City, the OLCC, and Bureau officers, which itself qualifies as a hearsay statement. Again, in the absence of evidence establishing the identity of the individuals making the statement to the owner or the context in which those statements were made, Plaintiffs fail to meet their burden of proving the statement was made by an agent of an opposing party during the existence of the relationship on a matter within the scope of the agent's employment or by a co-conspirator in furtherance of a conspiracy. The statement in paragraph 46 is hearsay and inadmissible.

         In paragraph 47, Plaintiffs claim Mitchell has personal knowledge of the interactions, because Mitchell represents “I know that the City of Portland, the OLCC, and the Portland Police harassed and intimidated the owners and told them to change their venue to something other than hip-hop or they would be shut down.” (Mitchell Decl. ¶ 47.) Mitchell may well have personal knowledge of, and have witnessed, actions which intimidated the owner, but Mitchell's testimony regarding what was said to the owner, even if Mitchell was present, still is hearsay. As with the statement in paragraph 46, Plaintiffs fail to prove the hearsay statement qualifies either as a statement by a party's agent or by a co-conspirator. The City Defendants' hearsay objections to the statement in paragraphs 46 and 47 of the Mitchell declaration are sustained.

         The City Defendants object to Mitchell's statement that during a class on checking patrons' identifications held by the OLCC in the 1990s, “the OLCC instructors said the City of Portland did not want Black people partying across the river downtown.” (Mitchell Decl. ¶ 48.) Plaintiffs claim the statement is admissible because it was made by a co-conspirator in furtherance of the conspiracy, but they provide no evidence of who made the statement or the context in which it was made. Furthermore, approximately 20 years has passed between the statement's utterance and the events at issue, making Plaintiffs have failed to establish with the requisite evidence of the existence of, and participation in, a conspiracy by the unidentified “instructors.” The City Defendants' hearsay objection is sustained.

         Finally, the City Defendants object to Mitchell's statement “I learned later that the police were unable to determine where the shooter came from and did not arrest him for over a year.” (Mitchell Decl. ¶ 68.) Plaintiffs contend the hearsay nature of the statement is contingent on the source of Mitchell's knowledge and that, in any event, the facts contained in the statement are uncontroverted. Plaintiffs are correct the statements may not be hearsay if one of the defendants, or an agent of the City, provided the information to Mitchell. However, Plaintiffs have the burden to lay the foundation showing the existence of an agency relationship and the context in which the information was provided, or that a conspirator made the statement in furtherance of an established conspiracy. Plaintiffs have failed to meet this burden and the statement must be viewed as hearsay.

         Even if the statement were not hearsay, Plaintiffs supply no evidence to establish it as an uncontroverted fact. In addition, the statement is not relevant to the issues raised on summary judgment, because DeWalt conceded that both the shooter and the victim were customers of the Fontaine on the night of the shooting. (DeWalt Dep. dated June, 2017 (“First DeWalt Dep.”), [4] 167:11-13.) The City Defendants' objection to paragraph 68 of the Mitchell declaration is sustained.

         D. Kenny Scott

         Scott also is an African-American man born in Portland and who has lived in Oregon his entire life. (Scott Decl. dated March 2, 2018, ECF No. 162 (“Scott Decl.”), ¶¶ 2, 3.) For the past fifteen years, Scott has worked in nightclubs, bars, and restaurants in various capacities, including music promoter, promotions manager, security manager, and marketing manager. (Scott Decl. ¶ 5.) He has promoted numerous events, such as launch parties, wedding anniversaries, retirement parties, concerts, sporting events, birthday parties, fundraisers, and galas. (Scott Decl. ¶ 6.) Scott has experienced differential treatment by the Bureau, the OLCC, the City, and the Fire Marshall in the form of increased scrutiny when promoting music events featuring hip-hop, or when the crowd is expected to be at least twenty-five percent African-American. (Scott Decl. ¶¶ 7-8.)

         The City Defendants object to paragraph 9 of the Scott declaration as hearsay. In that paragraph, Scott repeats conversations between several bouncers and the City regarding the negative impact of having a “ghetto element” listening to hip-hop music in a Portland club. (Scott Decl. ¶ 9.) Paragraph 9 reads:

For example, a Portland club called Aura agreed to impose extremely strict dress codes at the behest of the City and used those codes to keep black people out of the club so that the ratio of Black and African-American people was only 1 out of 7 patrons. I know this because I know the bouncers who worked at that club and they told me and my business partner that City told them not to have a “ghetto” element at the club. Ghetto element means a high ratio of Black and African-American people. Based on what the bouncers told me from Aura and other clubs that are still able to run a business in Portland, maintaining this ratio of predominantly white clientele is the only way to avoid undue harassment and scrutiny by the Portland Police, OLCC, Fire Marshall and other city entities.

(Scott Decl. ¶ 9.) Plaintiffs concede this paragraph contains hearsay but assert the impression left on Scott - that he must limit having African-Americans at his events - is admissible.

         Scott may testify, based on his own experience, that Defendants did not react to events attracting a predominantly white clientele in the same way they reacted to events attracting a “ghetto element, ”or a high ratio of African-Americans. He may not testify Defendants told other bouncers “not to have a ‘ghetto' element at the club” or “maintaining this ratio of predominantly white clientele is the only way to avoid undue harassment and scrutiny by the Portland Police, OLCC, Fire Marshall and other city entities.” He also may not testify that Aura imposed a strict code to keep out African-Americans at the behest of the City because, again, he has no personal knowledge of that club's policies and the statements otherwise do not meet any of the hearsay exceptions. The City Defendants objections are sustained, in part, and overruled, in part.

         In paragraph 10 of his declaration, Scott states:

“The OLCC called a meeting with the owners of the City Nightclub and told them that on our nights, the Black and African-American hip-hop nights, he could no longer serve Hennessey, Patron, and AMFs nor could he play Mac Dre, E40, or ‘hyphy' music. Hennessey, Patron, and AMFs are traditionally ordered and consumed by Black and African-Americans.. Mac Dre, E40, and ‘hyphy' music is hop-hop music. The owner explained to me and my business partner about these restrictions and that the Portland Police had recommended that the OLCC impose these restrictions.”

(Scott Decl. ¶ 10.) The City Defendants object to these statements as hearsay. Plaintiffs argue testimony the owner met with the City and the OLCC, and subsequently imposed the listed restrictions, is not hearsay and thus admissible.

         First, the statement indicates the owner met with the OLCC, not the City. Second, although Scott does not expressly state the owner imposed the recommended restrictions, only that the owner explained “these restrictions, ” the statement's apparent purpose is to demonstrate that the owner expected Scott to refrain from playing the music types identified by the OLCC. On this point, the testimony is admissible to show the effect of the music restrictions on Scott and only against only the OLCC. The City Defendants' hearsay objections to paragraph 10 are sustained.

         In Paragraph 14, Scott offers statements made by police officers to DeWalt and which DeWalt repeated to Scott. Specifically, Scott testifies: “I asked Mr. DeWalt what they said to him and he told me they had said that ‘you cannot have hip hop events at the Fontaine Bleau, ” and “He told me that he was getting harassed so much that he wanted to try changing his format to something else so the Police would stop harassing him.” (Scott Decl. ¶ 14.) Plaintiffs concede the statements are hearsay but argue they could be admitted at trial as a prior consistent statement if the City impeached DeWalt. The statements are consistent with DeWalt's deposition testimony and are properly before the court through DeWalt; thus, offering the statements through Scott is redundant. At the summary judgment stage, the court must view the evidence in a light most favorable to the non-moving party and deny summary judgment if a genuine issue of material fact exists. Impeachment, and evidence intended to overcome possible impeachment, are not relevant in the summary judgment context. The City Defendants' objections to paragraph 14 are sustained.

         E. Newspaper Articles

         Finally, the City Defendants object as hearsay to Plaintiffs' use of newspaper articles to attack the credibility of Bureau Officer Betsy Hornstein (“Hornstein”) and contradict Marks's testimony as to the number of bars in the City owned by an African-American. (Pls.' Resp. to Defs.' Mots. for Summ. J., ECF No. 153 (“Pls.' Resp.”), at 7 n.2, 65 n.6.) Plaintiffs do not respond to the objection and make no attempt to demonstrate how the newspaper articles might satisfy a hearsay exception, thus impliedly conceding they are inadmissible hearsay. In any event, a cursory review of the articles reveals they contain numerous instances of hearsay and are inadmissible for the purposes offered by Plaintiffs. The City Defendants' objections to the articles are sustained and the information contained therein will not be considered by the court.


         I. The Parties A. Plaintiffs

         DeWalt is an African-American who, at the time he filed this lawsuit, had over thirty years of experience in the entertainment industry, specifically owning and managing restaurants and bars. (DeWalt Decl. dated March 2, 2018, ECF No. 155 (“DeWalt Decl.”), ¶ 2; First DeWalt Dep. 14:10-13, 15:5-8.) DeWalt's venues offered music, primarily “R&B, Blues, Jazz, ” and occasionally hosted comedy shows. (First DeWalt Dep. 15:5-11.) DeWalt preferred to play R&B for an adult crowd in his clubs but occasionally would work with promoters who played more traditional “hip-hop, ” or the rap music enjoyed by a younger crowd. (First DeWalt Dep. 55:24-56:7.) DeWalt defined “hip-hop” as old school rhythm and blues for an adult crowd; he did not use it to refer to the rap music preferred by a younger crowd. (First DeWalt Dep. 54:18-55:23, 282:11-20.)

         DeWalt was the sole owner and officer of DPI. (First DeWalt Dep. 27:2-7.) In January 2013, DPI opened a nightclub in Portland known as the Fontaine. (First DeWalt Dep. 47:7-12.) African-Americans predominantly comprised the Fontaine's customer base, and it “was one of the few remaining nightclub venues where Black and African-American people could feel comfortable and ‘at home' in Portland because they knew they could socialize with other Black and African-American people as they enjoyed Black and African-American culture.” (Mitchell Decl. ¶¶ 17, 18.) Plaintiffs closed the Fontaine in November 2013 when the OLCC suspended the liquor license at the request of the City, based on numerous unfounded citizen complaints, violations, and police reports, and a fatal shooting that occurred just outside the Fontaine.

         B. Defendants

         The City is a municipality of the State of Oregon. Hales was, at all material times, the Mayor of the City. (Hales Dep. dated November 17, 2016 (“Hales Dep.”), [5] 16:18-17:1.) During the relevant period, Kruger was the Captain of the Bureau's Drug and Vice Division. (Kruger Dep. dated February 14, 2017 (“Kruger Dep.”), [6] 13:25-14:9; Kruger Decl. dated January 11, 2018, ECF No. 135 (“Kruger Decl.”), ¶ 1.) The Drug and Vice Division's principal function at that time was investigating mid- to high-level drug trafficking activities, but it also coordinated the liquor license application process for the Bureau. (Kruger Dep. 13:25-14:17.) Marchetti worked in the City's Office of Neighborhood Involvement (the “Office”) and was the City's Liquor License Coordinator in 2013, responsible for coordinating the City's recommendations on liquor license applications and renewals, and communicating with the OLCC. (Marchetti Dep. dated February 13, 2017 (“Marchetti Dep.”), [7] 8:19-22; 10:6-13; Marchetti Decl. dated January 17, 2018, ECF No. 134 (“First Marchetti Decl.”), ¶¶ 1, 2.) Marchetti also administered the City's time, place, and manner ordinance found in Chapter 14B.120 of the Portland City Code and, as the principal member of the Office's Liquor License Team (the “License Team”), was involved with policymaking and community involvement on issues related to alcohol. (Marchetti Dep. 10:6-8, 14-18; Marchetti Decl. ¶¶ 2, 3.) Jackson, then a Bureau officer, was the Liquor License Investigator for the Drug and Vice Division and a member of the License Team during the relevant period. (Jackson Dep. dated February 15, 2017 (“Jackson Dep.”), [8] 10:7-16; Jackson Decl. dated January 11, 2018, ECF No. 128 (“First Jackson Decl.”), Ex. 1.) Marks served as the Executive Director of the OLCC, a position he assumed on October 24, 2013. (Marks Decl. dated January 18, 2018, ECF No. 117 (“Marks Decl.”), ¶ 1.) Marks had no prior relationship with the OLCC. (Marks Decl. ¶ 1.)

         II. The Fontaine

         DeWalt moved to Portland in March 2012 to recover from a heart attack and be closer to family. (DeWalt Decl. ¶ 2; First DeWalt Dep. 14:5-7, 21:14-22:11.) Shortly after moving to the area, DeWalt became aware the City did not have many restaurants or bars catering to African-Americans. (First DeWalt Dep. 22:4-15.) Interested in opening such a venue, DeWalt found a suitable location on the corner of NE Broadway and NE Third just off a major street in a commercial area with only few residential buildings nearby (the “Premises”). (First DeWalt Dep. 24:9-25:7.) DeWalt, as President of DPI, signed a lease for the Premises on April 27, 2012 (the “Lease”). (Merrithew Decl. dated January 19, 2018, ECF No. 137 (“First Merrithew Decl.”), Ex. E at 11.)

         The Lease, which identified the landlord as Oregon Foreclosures, LLC (“Landlord”), provided for an initial five-year term commencing on November 1, 2012, with the option to renew for two additional five-year periods. (First Merrithew Decl. Ex. E at 11.) Rent was due “on or before the first day of each calendar month, ” and DPI would be deemed in default if such rent was not paid within “the ten (10) day grace period allowed by ORS 91.090.” (First Merrithew Decl. Ex. E at 15, 32.) DPI's use of the Premises was limited to “Blues, Jazz, and R&B Martini Bar and related businesses.” (First Merrithew Decl. Ex. E at 12.)

         DeWalt also signed a liquor license application on behalf of DPI in the name of the “Fontaine Bleau” on April 27, 2012. (Jackson Decl. dated April 3, 2018, ECF No. 172 (“Second Jackson Decl.”), Ex. 51.) T the OLCC issued an annual liquor license to DPI for the Fontaine on December 21, 2012 (the “License”). (First Jackson Decl. Ex. 20 at 2.)

         DPI invested more than $400, 000 to build-out the Premises to DeWalt's specifications. (First DeWalt Dep. 25:19-26:9.) This work included installing mechanical, electrical, plumbing, and sprinkler systems, as well as flooring, lighting, and built-in furniture such as the bar, bench seats, and booths. (First DeWalt Dep. 541:7-542:5.)

         The Fontaine was the only entertainment venue in the area and, with the exception of a couple of nearby gas stations and a convenience store, also was the only area business open late at night. (Asheim Decl. dated January 12, 2018, ECF No. 127 (“Asheim Decl.”), ¶ 4.) Similar to DeWalt's previous venues, the Fontaine offered entertainment in the form of music, primarily R&B, blues, and jazz, but also hosted hip-hop music, salsa music, and a comedy club on different nights. (First DeWalt Dep. 64:4-20, 66:17-67:3.) DeWalt considered the Fontaine to be a predominantly black club with the exception of salsa night, when the customers were predominantly Latino, but he did not prevent any race from coming into the Fontaine. (First DeWalt Dep. 68:23-69:2, 69:24-70:13.) At one point, DeWalt promoted entertainment geared toward lesbians in response to what he described as a constant presence from the Bureau. (First DeWalt Dep. 51:19-52:11.) However, this change in format lasted only two or three weeks. (First DeWalt Dep. 52:4-6, 455:21-24.)

         DeWalt used only DPSST [9] certified security guards at the Fontaine, and he verified their certification by checking their identification cards. (First DeWalt Dep. 157:20-25.) He booked security according to the attendance he expected at the Fontaine. (First DeWalt Dep. 158:6-14.) Thus, on nights he expected full capacity, he would have four security guards, stationing two at the door to check identification and wand or pat down the customers for guns, and assign two other to roam the Fontaine's interior. (First DeWalt Dep. 158:15-25.) Mitchell estimated security at the Fontaine ranged from one guard at the door on “mellow” nights, no more than three on an average night, and five for a busy night. (Emergency Suspension Hr'g Tr. dated December 4, 2013 (“Tr.”)[10] 244:2-24.) The Fontaine had a dress code which required customers to be dressed “decently” and prohibited white tee shirts, hats, sagging pants, and track suits (First DeWalt Dep. 426:8-427:7), although security at the front door did not always enforce the dress code. (First DeWalt Dep. 427:8-16.)

         III. City's Interactions and Issues with the Fontaine Prior to October 2013 Meeting

         Almost immediately after its opening, various City enforcement agencies took an interest in the Fontaine. Specifically, the City responded to noise and disturbance complaints related to the Fontaine, expressed concern about too many customers in the Fontaine, and observed, questioned, and arrested gang members frequenting the Fontaine. Plaintiffs allege these actions were based on DeWalt's race, the race of the Fontaine's customers, and the type of music, specifically hip-hop, played at the Fontaine.

         A. Noise Complaints

         Shortly after the Fontaine opened, a neighbor started complaining about the noise.[11] The City documented a complaint made on April 2, 2013:

A new bar/dance club opened about 3 weeks ago called the Fontaine Bleau. Every Thursday, Friday and Saturday, between 10pm until 3am there is extremely loud music of the club, and to make matters worse, the patrons park en mass on 3rd Avenue and stand around their cars before and after entering or leaving the club for up to 30 minutes, blaring and booming the music from their cars and hollering at each other. The noise is most severe between 2-3am, when the bar closes and up to 35 people exit the bar and continue to party on 3rd avenue.

(Van Orden Decl. dated January 10, 2018, ECF No. 129 (“Van Orden Decl.”), Ex. 28.) In a letter dated April 3, 2013, the City informed the Landlord of the noise complaint, delineated the allowable noise levels in decibels for specific time periods, advised the City would be performing a site visit, and listed the possible fines for a violation. (Van Orden Decl. ¶ 7, Ex. 29.) The City also mailed the April 3, 2013 letter to the address of the Fontaine. (Van Orden Decl. Ex. 29.)

         Van Orden, the Noise Control Officer for the Office during the relevant period, met with DeWalt at the Fontaine later that month to discuss the noise complaint, as well as the Fontaine's layout and sound system. (Van Orden Decl. ¶¶ 1, 9.) Van Orden regularly met with new nightclub owners to provide advice on how to address potential noise issues. (Van Orden Decl. ¶ 11.) Van Orden noticed the side door of the Fontaine did not seal well when closed and advised DeWalt sound could escape from the nightclub through that door. (Van Orden Decl. ¶ 9.) The conversation was cordial and Van Orden did not take any enforcement action as a result of the April 2, 2013 complaint. (Van Orden Decl. ¶ 10.)

         DeWalt bought a decibel meter after this meeting and used it regularly, especially when he hosted a large event. (DeWalt Decl. ¶ 3.) According to DeWalt, sound generated by the Fontaine never exceeded the limits allowed by the City. (DeWalt Decl. ¶ 3.)

         Bureau Officer Jimmy Harrison (“Harrison”) responded to a noise complaint about the Fontaine just after 11:00 p.m. on June 1, 2013. (Second Merrithew Decl. dated March 2, 2018, ECF No. 154 (“Second Merrithew Decl.”), Ex. 58.) Harrison, who had communicated with DeWalt about noise issues on previous occasions, walked the area with DeWalt and was unable to hear music coming from the Fontaine. (Second Merrithew Decl. Ex. 58.) Harrison did notice a lot of foot and vehicle traffic associated with the Fontaine, and also observed a large group standing on the sidewalk in front of the nightclub. (Second Merrithew Decl. Ex. 58.) DeWalt informed Harrison he was working with a noise officer on the noise issues, and DeWalt identified a former disgruntled employee named “Tim” as the likely complainant. (Second Merrithew Decl. Ex. 58.) About an hour later, Bureau Officer Quency Ho (“Ho”) arrived at the Fontaine in response to another noise complaint and reported he could “easily hear loud bass music” a block away from the Fontaine. (First Jackson Decl. Ex. 21.) Ho also observed about twenty-five people “hanging out by the front doors to the club being noisy.” (First Jackson Decl. Ex. 21.)

         Hornstein responded to a noise complaint from Lisa Ball (“Ball”), a resident of a building located one-to-two blocks from the Fontaine, about very loud patrons at the Fontaine on August 17, 2013. (Manlove Decl. dated January 19, 2018, ECF No. 126 (“First Manlove Decl.”), Ex. 11A; Hornstein Decl. dated January 12, 2018, ECF No. 130 (“Hornstein Decl.”), ¶ 3, Ex. 31; Second Merrithew Decl. Ex. 53; First DeWalt Dep. 177:17-20.) In her subsequent report, Hornstein noted she could hear extremely loud noise and music coming from the Fontaine, and could feel vibrations from the music in her patrol car a full city block from the nightclub. (Hornstein Decl. Ex. 31.) She observed people in the immediate vicinity playing loud music in their cars and talking extremely loud before they made their way into the Fontaine. (Hornstein Decl. Ex. 31.) She noted: “The loud noise and people coming from Fontaine Bleau is a constant neighborhood problem. Fontaine Bleau affecting the livability for residents due to the noise and is a constant nuisance.” (Hornstein Decl. Ex. 31.) Hornstein forwarded her report to Van Orden. (Hornstein Decl. Ex. 31.)

         DeWalt now thought Ball, to whom he referred as a “villain, ” was the party responsible for the majority of the noise complaints regarding the Fontaine. (First DeWalt Dep. 202:17-203:3.) He estimates she initiated nearly fifty noise complaints and thought she was a “pathological liar” who was working with the police to put the Fontaine out of business. (DeWalt Decl. ¶ 4; First DeWalt Dep. 170:13-24.) DeWalt surmised Ball was “exposing her new found powers that she has with the Portland Police of how she can call the police and the police is going to show up and harass the Fontaine Bleau.” (First DeWalt Dep. 171:10-15.)

         On September 20, 2013, Ball received a letter from DeWalt advising her he planned to file a lawsuit against her for harassment if she did not stop calling the Bureau with “false complaints” about the noise coming from the Fontaine. (First DeWalt Dep. 174:23-175:19; First Manlove Decl. Ex. 11A; Second Merrithew Decl. Ex. 19.) DeWalt informed Ball that several police officers had verified the falsity of her noise complaints and written reports to that effect. (First Manlove Decl. Ex. 11A.) He indicated he would seek damages of over $200, 000, and concluded with: “You have harassed my business from day one and we both know the reasons why. THIS IS YOUR FINAL NOTICE.” (First DeWalt Dep. 175-11-14; First Manlove Decl. Ex. 11A.)

         DeWalt sent the letter to Ball when he decided to return to a “hip-hop format” after his foray as a lesbian night club in late August. (First DeWalt Dep. 176:13-21.) Ball had not complained during this period and DeWalt, concerned the Fontaine's return to hip-hop music would revive Ball's concerns, informed Ball he would not “tolerate” her complaints. (First DeWalt Dep. 176:13-177:1.)

         A neighbor identified only as “anonymous” in the report complained about loud music at the Fontaine on October 6, 2013. (Second Merrithew Decl. Ex. 54.) The report noted the owner of the Fontaine found out about the neighbor's previous complaints and sent her a letter indicating he would sue her, implying the “anonymous” neighbor was Ball. (Second Merrithew Decl. Ex. 54.) The responding officer heard a slight bass and when advised of this, the management at the Fontaine agreed to turn down the volume. (Second Merrithew Decl. Ex. 54.)

         Ball emailed the Office on October 7, 2013, to inform them of the letter she received from DeWalt. (Second Merrithew Decl. Ex. 51.) In the email, Ball described the numerous times she been unable to sleep due to loud, bass music emanating from the Fontaine, which she heard through closed windows. (Second Merrithew Decl. Ex. 51.) Ball reported the Fontaine's customers parked on Third Avenue, blasted their music, and sometimes got into fights that had to be resolved by the Bureau. (Second Merrithew Decl. Ex. 51.) Ball expressed fear, explained she felt threatened and helpless after receiving the letter, and noted the noise seemed to be getting worse. (Second Merrithew Decl. Ex. 51.) Ball also contacted the OLCC to voice her complaints. (Second Merrithew Decl. Ex. 51.)

         The Oregonian reported Kris Bakouros, another individual who lived near the Fontaine (“Bakouros”), repeatedly attempted to contact DeWalt to complain about late-night noise, broken glass, and vomit outside her door. (First DeWalt Dep. 183:10-14.) Bakouros allegedly left messages for DeWalt in the hope of discussing a solution to her concerns, but never received a return call. (First DeWalt Dep. 183:14-18.) When she attempted to meet with DeWalt in person at the Fontaine during business hours, security guards would not let her in. (First DeWalt Dep. 183:17-20.) When questioned about the Oregonian article, DeWalt stated the report was a “blatant lie.” (First DeWalt Dep. 184:9-11.)

         DeWalt claims he walked the neighborhood at least once with police officers, who admitted they did not hear any noise. (First DeWalt Dep. 170:24-171:5.) Additionally, the individual who installed the sound system in the Fontaine and lived at the same location as Ball told DeWalt he never heard the music. (First DeWalt Dep. 178:3-13.) While Van Orden had a portable decibel meter available to him, the City refused DeWalt's request to install a decibel meter at Ball's residence to substantiate or discount her complaints. ((Tr. 63:4-24, DeWalt Decl. ¶ 4.)

         B. Occupancy Issues

         Cruser, a City firefighter who served as the public assembly inspector during the relevant period, met DeWalt for the first time in early 2013 while performing the fire inspection of the Fontaine required to obtain a building permit. (Cruser Decl. dated January 12, 2018, ECF No. 131 (“Cruser Decl.”), ¶¶ 1, 6.) At that time, Cruser advised DeWalt the Fontaine had a maximum capacity of 155. (Cruser Decl. ¶ 6.) DeWalt acknowledged the occupancy limit and admitted it was important have an accurate account of all occupants at any given time. (First DeWalt Dep. 396:10-397:8; 401:13-15.)

         As a part of his duties, Cruser regularly monitored local newspapers and attended police roll calls on the weekends to determine if a promoted event was likely to draw large crowds. (Cruser Decl. ¶ 4.) He warned bars and nightclubs, especially smaller ones, if he learned of an event that likely would exceed a venue's maximum capacity. (Cruser Decl. ¶¶ 4, 5.) He provided this information to DeWalt on occasion, and DeWalt seemed receptive and thankful. (Cruser Decl. ¶ 9.) Cruser also performed impromptu inspections of nightclubs on the weekends. (Cruser Decl. ¶ 4.)

         On October 5, 2013, Cruser dropped-in at the Fontaine to discuss capacity issues with DeWalt and remind him he needed to maintain an accurate count of his patrons at all times. (Cruser Decl. ¶ 11.) Some of DeWalt's employees reported DeWalt had no system in place for tracking the number of customers in the Fontaine at any time. (Cruser Decl. ¶ 13.) Cruser issued a “violation” to the Fontaine for failure to keep a proper door count. (Cruser Decl. ¶ 12; First DeWalt Dep. 470:18-25.) The violation did not assess any fines or place any restrictions on the Fontaine, but merely served to document Cruser's concerns and provide written notice to DeWalt as a warning. (Cruser Decl. ¶ 12, Ex. 32.)

         C. Promoted Events and Gang Affiliations

         Mark Friedman, a Bureau Sergeant, served as Supervisor of the Street Crimes Unit as well as Special Events Coordinator during the relevant period (“Friedman”). (Friedman Decl. dated January 10, 2018, ECF No. 132 (“Friedman Decl.”), ¶¶ 1, 2.) As the Special Events Coordinator, Friedman evaluated events to be held in his jurisdiction, in part by communicating with promoters and hosts, to determine whether extra police support was needed. (Friedman Decl. ¶ 2.) Friedman first contacted DeWalt by phone in April 2013 to discuss a specific promoter's plan to hold events at the Fontaine. (Friedman Decl. ¶ 4.) When DeWalt informed Friedman the Fontaine would not be hosting these events due to lack of ticket sales, Friedman asked DeWalt for a date on which he would be available to meet with City employees. (Friedman Decl. ¶ 4.) DeWalt indicated he would get back to Friedman with possible dates, but never did. (Friedman Decl. ¶ 4, Ex. 38.)

         In the spring and summer of 2013, the Fontaine became known among the Bureau as one of the clubs, along with the Conger Club and Magoo's, that gang members frequented. (Tr. 156:3-19.) Gang members routinely showed up at the Fontaine every few weeks and “it appeared they felt comfortable there and they could get away with whatever they were going to get away with.” (Tr. 156:19-23.) The Bureau was aware gang members were responsible for more attempted murders and violent assaults in Portland than any other group of individuals. (Tr. 157:3-13.) For example, the Bureau's Gang Enforcement Team investigated approximately one-hundred gang-related murder attempts in 2013, 113 in 2012, and at least 103 in 2011. (Tr. 157:14-20.) As a result, the Bureau engaged in extra patrols of the Fontaine and surrounding area because of its concern about violence or reckless behavior at the venue. (Tr. 156:8-13, 157:25-7.)

         On June 23, 2013, Bureau Officer Charles Asheim (“Asheim”), a member of the Bureau's Gang Enforcement Team, became aware of a large party hosted at the Fontaine. (Asheim Decl. ¶ 6.) While driving in the area about 2:00 a.m., Asheim saw an individual he recognized as a gang member, confirmed he had an outstanding warrant, and arrested him. (Asheim Decl. Ex. 16.) During the arrest, the individual pulled out a loaded gun and threw it on the sidewalk, resulting in additional charges related to the possession of the gun. (Asheim Decl. Ex. 16.) The individual explained the party at the Fontaine was a celebration for his birthday. (Asheim Decl. Ex. 16.) Earlier that evening, other Bureau officers patrolling the area around the Fontaine also identified and made contact with other gang associates, and arrested one of them on an outstanding warrant. (Asheim Decl. ¶ 6.)

         While riding in a patrol car near the Fontaine on July 27, 2013, Asheim recognized two individuals he knew to be gang members. (Asheim Decl. Ex. 17.) Asheim knew one of them had been released from prison that month and the other was on parole. (Asheim Decl. Ex. 17.) Asheim stopped the individuals as they entered the Fontaine at about 1:00 a.m. and expressed concern they were violating parole by “going to a bar full of gang members.” (Asheim Decl. Ex. 17.)

         On August 23, 2013, Friedman assisted the Gang Enforcement Team in monitoring an E-40 concert in downtown Portland. (Friedman Decl. ¶ 7.) E-40 was a performer known to attract a “gang affected crowd, ” and known gang members did attend the concert. (Friedman Decl. ¶¶ 7, 8.) At the end of the concert, Bureau officers followed individuals identified as “gang affiliates” to prevent, or provide support in the event of, violence. (Friedman Decl. ¶ 8.) When the individuals ended up in the vicinity of the Fontaine, Friedman approached the front door of the Fontaine, which appeared quiet at the time, and engaged a security guard in conversation. (Friedman Decl. ¶¶ 9, 10.)

         Friedman warned the security guard of the presence of the gang-affiliated individuals and cautioned him to be vigilant in the event they headed toward the Fontaine, the only entertainment venue open in the area at that time. (Friedman Decl. ¶¶ 9, 10.) The security guard thanked Friedman, and confided he and other Fontaine employees were concerned for their safety because of recent incidents and the type of people showing up at the Fontaine. (Friedman Decl. ¶ 11; Friedman Dep. dated March 16, 2017, (“Friedman Dep.”)[12] 18:1-25.)

         Friedman then approached DeWalt to offer him the same information and recommend vigilance. (Friedman Decl. ¶ 12; Friedman Dep. 21:1-15.) DeWalt denies Friedman told him he had just been at the E-40 concert, or of the City's concern based on a prior incident at an E-40 concert, or that gang members appeared to be on their way to the Fontaine after the concert. (First DeWalt Dep. 365:6-23.) DeWalt testified he would have appreciated this information from Friedman, and said Friedman told DeWalt only that “the City was not going to tolerate these types of events, ” which DeWalt interpreted to be an after party for an E-40 concert. (First DeWalt Dep. 239:11-25, 363:15-19, 364:6-13, 365:24-366:2.) DeWalt understood this statement to mean that he had to contact or get approval from the City if he planned to host such an event. (First DeWalt Dep. 363:15-22.) DeWalt said Friedman also mentioned the music being played at the Fontaine, which DeWalt described as a wide genre from Al Green to Tupac to E-40. (First DeWalt Dep. 364:14-365:5.) Friedman denies mentioning the Fontaine's choice of music or telling DeWalt “the City of Portland does not like these types of events you are having, it does not like the type of music being played, and the City will not tolerate it.” (Friedman Decl. ¶¶ 15, 16.)

         Friedman shared the security guard's concerns with DeWalt at this time, which DeWalt appeared to acknowledge. (Friedman Decl. ¶ 12; Friedman Dep. 21:16-22.:4.) DeWalt denies discussing the security guard's concerns with Friedman, or that he knew his staff was concerned for their safety, but admits he knew of the issues at the Fontaine and had been considering an alternative format in the near future, specifically mentioning to Friedman a lesbian bar. (Friedman Decl. ¶ 13; Friedman Dep. 23:1-10; First DeWalt Dep. 239:11-240:9, 366:3-8, 369:3-20.) Friedman remembers DeWalt commenting being too old to be up until 2:30 a.m. and being frustrated with some of the issues he faced. (Friedman Dep. 22:7-16.) DeWalt agreed he was said he was tired, but he meant he was tired with the City's interactions with the Fontaine, the requirement he control his customers when they leave the Fontaine, and the Bureau's constant harassment, not with the late nights or because of his age. (First DeWalt Dep. 369:21-371:20.)

         DeWalt recalled Friedman had ten-to-fifteen people dressed in military gear with him at the time of their conversation. (First DeWalt Dep. 239:22-240:4.) Friedman said there were approximately nine other officers in the general vicinity at that time, and three other officers within a twenty-foot radius of the Fontaine's front, but none standing next to him, and six additional officers parked in the area. (Friedman Decl. ¶ 17.)

         D. Disturbance Complaints

         Bureau Officer David McGuffey (“McGuffey”) responded at about 2:00 a.m. on August 24, 2013, to a report of a large group of people fighting at the Fontaine. (Jackson Decl. Ex. 24.) In his report, McGuffey noted the Fontaine “is a problem address here in the precinct and every Friday night it generates a police call.” (Jackson Decl. Ex. 24.) When he arrived, McGuffey observed about fifty to seventy black males and females yelling at each other while walking to their cars, some of which were parked in the right- of-way on Third Street. (Jackson Decl. Ex. 24.) The crowd was not engaged in fighting and disbursed when McGuffey instructed them to do so. (Jackson Decl. Ex. 24.) DeWalt explained he had just closed the Fontaine, and he described the group as young people just having fun. (First DeWalt Dep. 240:10-23.)

         McGuffey subsequently entered the Fontaine, which was occupied only by employees cleaning up after closing, and was “taken aback at the overwhelming odor of Marijuana.” (Jackson Decl. Ex. 24.) The OLCC contacted DeWalt upon learning of the marijuana odor, and cautioned him to look out for smokers in the future. (First DeWalt Dep. 37:9-38:13.) DeWalt denied the accusation, stating the Fontaine never smelled of marijuana. (First DeWalt Dep. 38:1-19.)

         IV. DeWalt and City Officials Meet to Discuss the Fontaine

         The License Team arranged to meet with DeWalt on October 10, 2013, to discuss the City's concerns about the Fontaine (the “Meeting”). (Van Orden Decl. ¶ 18.) Specifically, the License Team intended to address these issues: 1) noise complaints; 2) the perceived inability to control customers; 3) security guards' concern for their safety; 4) gang affiliations among customers; and 5) capacity. (Oden-Orr Dep. dated July 20, 2017, (“Oden-Orr Dep.”)[13] 20:8-23; First Marchetti Decl. ¶ 5.)

         A. The License Team

         The License Team consists of various representatives from the City, including members of the Office and the Bureau's Drug and Vice Division. (Kruger Dep. 14:22-15:14.) Marchetti, Jackson, Cruser, and Van Orden, as well as other City or Bureau representatives, were members of the License Team in 2013. (First Jackson Decl. ¶ 2.)

         The License Team is responsible for reviewing complaints and issues related to liquor licenses, deciding if an action should be taken, and, if so, the appropriate action. (Kruger Dep. 15:6- 11.) During the relevant period, the License Team met at least monthly to discuss basic livability issues, such as noise, crime, gang activity, and over-service of alcohol. (First Jackson Decl. ¶ 2; First Marchetti Decl. ¶ 3.) When a licensee's activity generated multiple complaints, the License Team arranged a meeting with the licensee to discuss the issues and possible solutions. (First Jackson Decl. ¶ 3; First Marchetti Decl. ¶ 4.) Marchetti viewed these meetings as problem-solving endeavors that provided the licensee with suggestions about best business practices intended to mitigate identified issues. (First Marchetti Decl. ¶ 4.) Marchetti attended hundreds of these meetings between 2008 and 2014. (First Marchetti Decl. ¶ 4.)

         If the License Team determined a sanction should be imposed upon a licensee, it reported the decision and recommended sanction to the Drug and Vice Division in a letter. (Kruger Dep. 15:8-14; Kruger Decl. ¶ 3.) During the relevant period, Bureau Sergeant Kevin Hogan (“Hogan”), reviewed the License Team's sanctions recommendations before forwarding them to Kruger. (Kruger Dep. 18:1-8; Kruger Decl. ¶ 3.) Kruger then considered whether the recommended sanction met the applicable statutory requirements before allowing it to move forward. (Kruger Decl. ¶ 3.) Kruger did not agree with all recommendations and had rejected proposed actions in the past. (Kruger Dep. 20:14-21:1; Kruger Decl. ¶ 3.)

         B. The Meeting

         DeWalt attended the meeting with his attorney, Melvin Oden-Orr (“Oden-Orr”).[14] (Jackson Dep. 31:12-19.) Marchetti, Jackson, Van Orden, and Cruser, among others, attended the meeting on behalf of the City. (First Jackson Decl. Ex. 19; Jackson Dep. 34:8-18.) Cruser specifically requested the opportunity to attend the Meeting, informing Marchetti he had previous dealings DeWalt, whom he described as “defensive.” (Second Merrithew Decl. Ex. 10.) Cruser also stated the Fontaine's primary promoter had a following of Blood gang members, and that DeWalt told him he intended to convert the Fontaine to a lesbian club. (Second Merrithew Decl. Ex. 10.) The meeting was Jackson's first interaction with DeWalt, although he likely gathered and reviewed some police reports relating to the Fontaine prior to the meeting. (Jackson Dep. 31:4-11, 164:5-20; First Jackson Decl. ¶ 4.) In accordance with standard practice, Jackson prepared a police report summarizing the meeting. (Marchetti Dep. 143:10-19.)

         1. Noise Complaints

         The parties generally discussed the numerous noise complaints made by Fontaine's neighbors. (First Marchetti Decl. ¶ 6.) Additionally, Van Orden gave DeWalt a copy of the only noise citation issued against the Fontaine. (Van Orden Decl. ¶ 22.) The noise citation, dated October 9, 2013, assessed a $300 fine based on the information contained in Hornstein's August 17, 2013 report (the “Citation”). (Van Orden Decl. ¶ 15, Ex. 30.) DeWalt was surprised to receive the Citation because he was not aware anyone had performed tests to determine the Fontaine was over the allowable decibel standard. (First DeWalt Dep. 458:1-9.) However, neither DeWalt nor Oden-Orr objected to the Citation or sought to address any concerns about the Citation. (Van Orden Decl. ¶ 22.) DeWalt considered Van Orden's failure to put a decibel meter in Ball's residence or to visit the Fontaine to investigate the complaints evidence Van Orden did not like hip-hop or rap music. (Second DeWalt Dep. 75:4-76:16.)

         The License Team informed DeWalt he was responsible for the behavior and noise level of his customers when they left the Fontaine, and suggested DeWalt use unarmed security guards to monitor customer behavior in the surrounding area after closing. (First Jackson Decl. Ex. 19 at 1; First Marchetti Decl. ¶ 6.) Jackson explained that the definition of “premises, ” or “immediate vicinity, ” included the sidewalks and streets in front of and around a licensed establishment. (First Jackson Decl. ¶ 9.) Marchetti agreed with Jackson's definition, and also was cognizant of a licensee's obligation under Or. Rev. Stat. 471.315 to control noise, disturbances, or unlawful activities related to the sale and service of alcohol within the immediate vicinity of the licensed venue. (First Marchetti Decl. ¶ 6.) DeWalt, on the other hand, considered “premises” to include only the parking lot, the perimeter of the building, and the sidewalk adjacent to the Fontaine. (First DeWalt Dep. 407:19-23; Second DeWalt Dep. 97:17-98:7.)

         DeWalt acknowledged his responsibility for customers while at the Fontaine, but denied any responsibility for the conduct of unintoxicated customers who left the “premises” and engaged in inappropriate or unlawful conduct elsewhere. (First DeWalt Dep. 203:4-18, 407:7-408:5.) DeWalt attributed the noise issues primarily to Ball's complaints, and he declined to send his security members, not all of whom are armed, two blocks away to deal with disorderly individuals, as the License Team suggested. (First DeWalt Dep. 414:24-416:12; Marchetti Dep. 138:18-139:12.) Specifically, he “admitted that some of his clientele could cause problems and he would not expose his security to that type of risk, and he prefers to request ‘extra-patrol' from the Portland Police” to address these issues.[15] (First Jackson Decl. Ex. 19 at 1; First DeWalt Dep. 415:4-24.)

         DeWalt believed Jackson disliked black people based on Jackson's attempt to hold DeWalt accountable for the conduct of Fontaine's customers after they left the nightclub. (First DeWalt Dep. 195:7-196:2; Second DeWalt Dep. 91:14-92:1.) DeWalt assumed but had no evidence that Jackson did not require the owners of white clubs to control their customers after they left a venue. (Second DeWalt Dep. 91:2-17.)

         2. Occupancy Issues

         Cruser raised concerns about the Fontaine's occupancy limit. (First Jackson Decl. ¶ 8; First DeWalt Dep. 417:2-8; Cruser Decl. ¶ 16.) DeWalt contended his occupant load was much higher than 155, but Cruser subsequently confirmed this number with DeWalt's architect and informed DeWalt the number was accurate. (Cruser Decl. ¶¶ 6, 16, 19, Exs. 33, 34; Second Merrithew Decl. Ex. 9, Se.) Cruser provided DeWalt with information and forms needed to request an increase of the occupancy limit but, after talking with his architect, DeWalt decided not to pursue an increase. (First DeWalt Dep. 417:8-15; Cruser Decl. ¶ 16.) DeWalt based this decision on the cost of installing another toilet and his impression the Fontaine would not “be around” much longer. (First DeWalt Dep. 417:16-418:11.)

         3. Promoted Events and Gang Affiliations

         The License Team informed DeWalt the Fontaine had become a “hangout for known gang members and their affiliates, ” and explained several people had been arrested with firearms upon arriving at or leaving the Fontaine. (First Jackson Decl. Ex. 19 at 1; First DeWalt Dep. 437:10-21.) DeWalt explained he used three security guards on busy nights, and that the guards “pat down” and “wand” all customers when entering the Fontaine. (First Jackson Decl. Ex. 19 at 1.)

         The License Team expressed concern about the promoters with whom DeWalt was doing business, specifically Brotha Luv. (First Jackson Decl. ¶ 6; First DeWalt Dep. 465:15-466:12.[16]) Jackson, who knew DeWalt was an experienced bar owner, recommended DeWalt engage in routine due diligence when deciding which promoters he would host in the Fontaine, primarily by checking with other venues and licensees who have hosted, or refused to host, the promoter, in an effort to avoid involvement with promoters who attract gang members or have a track record of violence or other issues at their events. (First Jackson Decl. ¶¶ 6, 7; Jackson Dep. 175:21-176:5, 178:3-179:7.) Jackson regularly provided the same advice to other bar owners. (First Jackson Decl. ¶ 7.) The License Team did not direct DeWalt to not host a specific promoter, however. (Oden-Orr Dep. 39:4-12.)

         DeWalt appreciated the information related to gang issues but was frustrated when the Bureau did not respond to his requests for documentation on, or a list of, gang members and related promoters, or information on how to identify them. (First DeWalt Dep. 463:7-464:22.) The Bureau does not provide the public with lists of, or intelligence on, gang members and did not have a list of problem promoters. (Asheim Dep. dated July 19, 2017, (“Asheim Dep.”)[17] 35:12-36:21; Jackson Dep. 111:24-112:2, 178:3-14.)

         4. Format Change

         According to DeWalt, Marchetti raised the issue of DeWalt's decision to return to its original format after experimenting with alternative formats, such as a lesbian nightclub. (First DeWalt Dep. 430:10-23.) Because of the Fontaine's continuing issues with the City, DeWalt altered the Fontaine's format to cater to lesbians in late August 2013. (First DeWalt Dep. 51:19-52:2.) When the Fontaine failed to make a profit as a lesbian club, DeWalt returned to his original format and clientele after only a few weeks. (First DeWalt Dep. 52:1-6, 248:2-10, 455:21-24.) DeWalt explained he felt the “ladies” he was working with to promote the lesbian events did not have nightclub experience and he did not know how to promote anything other than an African-American club. (First DeWalt Dep. 247:20-248:2, 430:23-431:5.) When Marchetti suggested DeWalt consider changing the music he was playing, DeWalt responded he did not find anything offensive about his music, stating he did not play anything “vulgar and cursing, ” only “good . . . decent music” that would not offend an older crowd. (First DeWalt Dep. 431:6-14.) DeWalt inferred Marchetti's suggestion really referred to hip-hop music or rap, but does not remember her specifically mentioning this type of music. (First DeWalt Dep. 431:15-23.)

         C. Conclusion

         At the end of the Meeting, the License Team cautioned DeWalt that if incidents continued to occur at the Fontaine, a time, place, and manner violation could be issued. (First Jackson Decl. Ex. 19 at 2.) Marchetti acknowledged the incidents at the Fontaine did not rise to a level sufficient to warrant the initiation of the formal time, place, and manner process or issuance of a sanction. (Marchetti Dep. 80:17-81:9.)

         According to DeWalt, Marchetti told him to maintain a list of gang members, ask his customers if they were on parole or probation, require his customers to dress in a certain manner, and play a different type of music. (First DeWalt Dep. 419:22-420:5-23.) During the meeting, someone (DeWalt believes Marchetti) said DeWalt should prevent his customers from standing in front of the Fontaine because they looked “lewd, vulgar, and filthy”, and that he could be charged with loitering if he failed to do so. (First DeWalt Dep. 190:2-22; 420:23-421:1.) Finally, Marchetti or Jackson suggested DeWalt require his security guards to monitor and control noise in a two-block radius, and prevent customers from speaking, laughing or playing loud music when they left the Fontaine. (First DeWalt Dep. 190:18-22, 420:7-11, 421:1-6.) DeWalt acknowledged that Marchetti did not use a racial epithet or slurs when listing these directives. (Second DeWalt Dep. 84:8-20.)

         Marchetti states that during the meeting she did not refer, and did not hear anyone refer, to the Fontaine's hip-hop music or that DeWalt should maintain a list of gang members who patronized the Fontaine, or that DeWalt should ask patrons if they were on parole, or that the Fontaine should ban saggy pants. (First Marchetti Decl. ¶¶ 10, 11.) Rather, Marchetti testified she was unaware of the Fontaine's musical format or primary customer base. (First Marchetti Decl. ¶ 21.) Oden-Orr does not recall any reference to hip-hop music or hear anyone tell DeWalt his customers should not be allowed to stand out in front of the Fontaine because they looked lewd, vulgar, or filthy; he does remember, however, someone suggesting DeWalt impose a dress code prohibiting hats and saggy pants. (Oden-Orr Dep. 46:2-7, 49:4-22, 50:2-20.) Cruser remembers DeWalt stating he felt he was being targeted because of his race. (Cruser Decl. ¶ 18.)

         Jackson thought DeWalt seemed argumentative with the License Team about its concerns and dismissive of its recommendations, particularly with regard to due diligence. (First Jackson Decl. ¶ 10.) Marchetti testified DeWalt made clear he did not feel responsible for noise and livability issues created by the Fontaine, and opined noise control was the City's responsibility. (First Marchetti Decl. ¶ 9.) Marchetti also felt DeWalt's response to the recommendations made at the Meeting suggested he did not intend pursue any of them. (Marchetti 30(b)(6) Dep. dated December 5, 2017 (“Marchetti 30(b)(6) Dep.”), [18]45:22-46:6.) DeWalt did not have any conversations with any City official after the Meeting to discuss what actions he intended to take, or already had put in place, to remedy the License Team's concerns. (Second DeWalt Dep. 51:20-24.)

         V. City's Interactions and Issues with the Fontaine After October 2013 Meeting

         After the Meeting, DeWalt met with staff members to share his impression of the City's expectations for operating the Fontaine. (First DeWalt Dep. 468:5-19.) DeWalt felt the License Team wanted him to prevent his customers from making any noise, even talking, as they left the Fontaine. (First DeWalt Dep. 441:1-19.) DeWalt told Mitchell the City wanted him to patrol a two-block radius, in response to which Mitchell refused, saying he had never had to do that with any other employer. (First DeWalt Dep. 468:19-24.) DeWalt testified that he nonetheless hired an extra security person to stand on the corner and monitor the music, and Mitchell stated he implemented a routine of walking around the block every thirty minutes to check the sound level and make necessary adjustments, such a turning the speakers down or encouraging a driver to move on or turn down his music. (First DeWalt Dep. 468:25-469:5; Mitchell Decl. ¶¶ 35-37.)

         In response to Cruser's concerns, Mitchell purchased two hand-held counters to record the number of people entering and exiting the Fontaine and to ensure they maintained a maximum capacity of 125 to 150, depending on the event. (Mitchell Decl. ¶ 38.) DeWalt and Mitchell also created and enforced a very strict dress code, barring tennis shoes, t-shirts, ball caps, and similar items of attire, as well as imposing a minimum age of twenty-five and increased it to thirty, when necessary. (Tr. 261:24-262:18.) Mitchell thought these restrictions would eliminate the “club killers, ” which he described as wild young folk with something to prove and who were prone to fighting. (Tr. 262:19-263:8.)

         DeWalt was “somewhat” receptive to these changes but did not want to make a lot of changes immediately because of the Fontaine financial struggles (Tr. 263:9-20), but he did take some steps to address the License Team's concerns. He informed his manager they needed to “watch out for each and every promoter.” (First DeWalt Dep. 468:24-25.) He asked the manager of another nightclub how to identify gang members and deal with banned promoters. (First DeWalt Dep. 469:5-12.) And DeWalt “got rid” of Brotha Luv. (First DeWalt Dep. 469:18-21.) DeWalt hand-delivered a letter dated October 11, 2013, to Joseph Blake, whom DeWalt identified as Brotha Luv (“Blake”), advising him the City suggested the Fontaine no longer host his events and should bar him from the Fontaine. (First DeWalt Dep. 211:3-25; Second Merrithew Decl. Ex. 25.) DeWalt explained to Blake the City informed him of Brotha Luv's (i.e., Blake's) gang affiliation and that his events had prompted gang violence, including two murders. (Second Merrithew Decl. Ex. 25.) DeWalt acknowledged such action would be a hardship on Brotha Luv, and stated “my company will also be placed in a hardship position due to the City of Portland and the Portland Police Department heavy handed demands.” (Second Merrithew Decl. Ex. 25.) Despite DeWalt's attempts at remedial actions, however the City's issues with the Fontaine continued.

         A. Excessive Noise

         1. Citizen Complaints

         The night of the Meeting, Ball complained again of loud bass at the Fontaine and stated she was working on the issue with a noise officer. (Second Merrithew Decl. Ex. 55.) The responding officer, who notified DeWalt of the complaint, found the music barely audible from Ball's address. (Second Merrithew Decl. Ex. 55.) On October 18, 2013, Ball again complained about loud bass from the Fontaine and vehicles, reiterating her wish to remain anonymous because of DeWalt's previous contacts with her. (Second Merrithew Decl. Ex. 56.) The responding officer determined the noise originated from a vehicle that had left the location. (Second Merrithew Decl. Ex. 56.)

         On October 31, 2013, a second “anonymous” caller complained about loud noise from the Fontaine, and asked that the responding officer contact her by telephone so she could provide the information to the noise officer with whom she was working. (Second Merrithew Decl. Ex. 57.) The responding officer heard no loud noise, but encouraged the complainant to call back if necessary. (Second Merrithew Decl. Ex. 57.)

         2. Appeal of the Noise Citation

         In a letter dated October 18, 2013, DeWalt appealed the Citation and identified DPI as the responsible party. (Archer Decl. dated January 9, 2018, ECF No. 133, (“Archer Decl.”), Ex. 39.) On October 28, 2013, the Landlord also identified DPI as the responsible party, asserted DPI had standing to contest the Citation, and stated DPI should be given the opportunity to appeal the Citation. (Archer Decl. Ex. 41.) Under City policy, property owners are responsible for their tenants' actions and noise citations therefore are issued to the owner and not the tenant, allowing the City to file a lien against the property if a fine is not paid. (Van Orden Decl. ¶ 17; Archer Decl. ¶ 7.) Consequently, a tenant that wishes to appeal a citation must obtain written authorization from the landlord. (Archer Decl. ¶ 8.)

         Amy Archer, the Operations and Livability Program Manager for the Office responsible for enforcement of the City's noise code (“Archer”), informed both DeWalt and the Landlord of this policy and asked the Landlord to verify DPI's authority to contest the Citation. (Archer Decl. ¶ 2, Ex. 40.) The Landlord refused DeWalt's request, however, explaining it preferred its lawyer to handled the matter. (Second DeWalt Dep. 35:1-12.) The Landlord expressly informed Archer that neither DPI nor DeWalt were its agents or had the authority to represent the Landlord. (Archer Decl. Ex. 41.) On November 5, 2013, Archer sent letters to both DPI[19] and the Landlord explaining that without written authorization only the Landlord could formally appeal the Citation, listing acoustical engineers who could evaluate the noise issues at the Fontaine, and providing recommendations for controlling the noise. (Archer Decl. Exs. 42, 43.)

         In the letter addressed to the Landlord, Archer explained she had given the Citation a courtesy review and found sufficient evidence in the August 17, 2013 report to support the Citation. (Archer Decl. Ex. 43.) Archer allowed the Landlord until November 11, 2013, to appeal the Citation and cautioned that if no appeal was filed and the fine was not paid by November 20, 2013, the $300 fine would double. (Archer Decl. Ex. 43.) The Landlord paid the fine, which it eventually recovered from DeWalt (First DeWalt Dep. 527:23-528:10), and Archer had no further contact with DeWalt. (Archer Decl. ¶ 14.) Archer never had a direct conversation with DeWalt and, until after DeWalt filed this lawsuit, did not know his race, the race of the Fontaine's clientele, or the Fontaine's music format. (Archer Decl. ¶ 3.)

         B. Capacity Issues

         The Bureau continued to receive reports of large crowds at the Fontaine, which prompted Cruser to drive by the Fontaine the evening of October 13, 2013, and park a block away to determine whether a drop-in inspection was warranted. (Cruser Decl. ¶ 22.) The Fontaine did not appear busy and Cruser decided to remain in his car. (Cruser Decl. ¶ 22.) After about ten minutes, DeWalt approached Cruser's car, complained about the warning issued on October 5, 2013, and asserted Cruser and the Bureau were ruining his business. (Cruser Decl. ¶ 23, Ex. 35.) DeWalt said one of his promoters no longer would hold events at the Fontaine because of the strong police and fire presence. (Cruser Decl. Ex. 35.) DeWalt also questioned his obligation to keep an accurate customer count, and Cruser agreed to provide the relevant provisions of the City's fire and building code, which he emailed to DeWalt on October 18, 2013. (Cruser Decl. ¶ 24, Ex. 36.)

         VI. The Annual Scorpio Bash

         A. The Arrangements

         On Tuesday, November 5, 2013, “Willy, ” a promoter with whom DeWalt had previously worked without any problems, contacted DeWalt. (First DeWalt Dep. 149:13-24, 150:6-7.) Willy explained a friend was looking for a place to hold an annual event that Friday, known as the Annual Scorpio Bash, which he described as a formal event for individuals twenty-five years or older (the “Bash”), and asked if the Fontaine would be available. (First DeWalt Dep. 149:3-12; 212:11-20.) New to Portland, DeWalt had no knowledge of the Bash. (First DeWalt Dep. 212:7-10.)

         Willy provided DeWalt with the friend's name (referred to herein as “Max”), and DeWalt asked his manager and Mitchell if they knew of Max and whether he had gang ties or was a trouble maker. (First DeWalt Dep. 150:6-23.) After being assured Max would not create problems, DeWalt contacted Max to arrange a meeting to discuss the details of the Bash. (First DeWalt Dep. 150:22-25.)

         Max explained that the last-minute location search occurred because the original venue's owner cancelled; he was unwilling to host an event that would draw a predominantly black customer base. (First DeWalt Dep. 151:4-10.) DeWalt did not consider it unusual for a promoter to be looking for a venue just three days before an event. (First DeWalt Dep. 151:1-4.) DeWalt, aware of what he considered racial issues in Portland, did not find the last-minute cancellation surprising. (First DeWalt Dep. 151:11-16.)

         The Melody Ballroom originally agreed to host the Bash. (Kaad Decl. dated February 18, 2018, ECF No. 156 (“Kaad Decl.”), ¶ 4.) Kathleen Kaad (“Kadd”), The Melody Ballroom's owner, had researched Max and found nothing that set off “alarm bells;” she considered him to be “legitimate” and contracted to host the Bash, which had been described to her as a “birthday party.” (Kaad Decl. ¶ 4.) During her ownership, The Melody Ballroom hosted primarily private events from music concerts, corporate events, weddings, proms, charity events, and theme parties and “was open to all types of people including Black and African-American events.” (Kaad Decl. ¶ 2.) Just days before the date of the Bash, a Portland Spirit employee who had been present during a recent party Max had promoted and which ended in a shooting, contacted Kaad to recommend she not host the Bash. (Kaad Decl. ¶ 5.) Bureau Officer Jay Gahan (“Gahan”) also contacted someone at the Melody Ballroom to warn of the risk in hosting the Bash. (Gahan 30(b)(6) Dep. dated December 14, 2017, (“Gahan Dep.”)[20] 8:20-9:5.) Kaad's bar manager then obtained additional information and a from a lawyer and his recommendation to not host the Bash, and coupled with the promoter's failure to respond to Kaad's communications or pay the deposit to secure the venue, she cancelled the Bash and left a message on the promoter's voice mail informing him of her decision. (Kaad Decl. ¶ 6.)[21] Concerned that Bash attendees still would arrive at The Melody Ballroom the night of the event, Kaad called the Bureau to advise them of the cancelled event, express her concerns, and request extra patrols near The Melody Ballroom that night. (Kaad Decl. ¶ 6.)

         Max and two other individuals met with DeWalt at the Fontaine on Wednesday, November 6, 2013. (First DeWalt Dep. 150:22-15, 151:14-18.) DeWalt informed Max he would require six security guards to work the Bash, with the cost split between DPI and Max. (First DeWalt Dep. 153:3-11.) DeWalt told Max that the artist[22] scheduled to appear at the Bash must be at the venue by 10:00 p.m., and that Max must cover the cost of the deejay. (First DeWalt Dep. 153:6-12.)

         DeWalt asked Max if he had any gang affiliations or relations. (First DeWalt Dep. 148:10-17.) DeWalt did not know, and Max did not reveal, that Max was appearing on behalf of a promoter known as “Yea Dat Entertainment” (“Yea Dat”). (First DeWalt Dep. 147:14-148:22.) Yea Dat is known as a promoter who could “cause real problems for any club.” (Tr. 261:5-15; Asheim Decl. ¶ 11.) Mitchell had worked events promoted by Yea Dat in the past, one of which ended in an all-out brawl, and did not want to work with him again. (Tr. 260:9-261:1.)

         DeWalt believed Yea Dat purposely sent Max to meet with DeWalt to disguise the true Bash promoter's identity, and he denies knowing of Max's association with “Yea Dat” until after he saw a police report. (First DeWalt Dep. 147:14-148:6, 155:20-24.) Moreover, the security guards did not know of Yea Dat's involvement until it was too late, because none of the advertising or promotional material identified him as the promoter. (Tr. 261:5-12.) Thus, although DeWalt was generally attentive to security issues, he could not inform his security guards that Yea Dea was promoting the Bash. (Tr. 260:23-261:12.)

         The Bureau received an anonymous tip about a party at the Fontaine on Friday evening. (Asheim Dep. 91:9-22; Asheim Decl. ¶ 11.) Additionally, anonymous 911 callers informed the Bureau that a member of the Bloods gang was hosting the Bash and that many gang members would be in attendance. (Tr. 39:12-40:9; 139:10-22.) Some Bureau officers knew the Bash had been moved twice because of concerns about gang violence, and although they speculated that the Fontaine's party could be the Bash, the Bureau initially did not know that to be the case and, consequently, it did not know to warn DeWalt of the risk of hosting the event. (Asheim Decl. ¶ 11; Asheim Dep. 91:18-22; 102:16-103:13; Gahan Dep. 11:16-12:11.) If he had received a tip, Mitchell believes he would have cancelled the Bash after discussing the warning with DeWalt and other security members. (Mitchell Dec. ¶ 64.)

         B. The Event

         Customers began arriving about 8:00 p.m. and paid a $25.00 cover fee at the door. (First DeWalt Dep. 154:6-17.) Six security guards worked the Bash: Mitchell, Joe Thomas (“Thomas”), and “Carlos” hired by DeWalt, and Kenan Powell (“Powell”) and two other guards hired by Yea Dat. (Tr. 278:4-20.) The Fontaine had the largest security presence that night that Mitchell had ever seen at the venue. (Mitchell Decl. ¶ 55.)

         Carlos and Powell initially worked the front door, with Carlos “wanding” for weapons and Powell checking identification. (Tr. 279:2-16.) Additionally, because of DeWalt's concern about exceeding occupancy after Cruser's visits, the front door security guards used two counters, one count customers entering and one to count customers leaving. (Tr. 254:21-255:4, 274:6-14.) Most customers' attire complied with the Fontaine's dress code, though security admitted some customers who wore white tee shirts and hats. (First DeWalt Dep. 212:11-18, 427:15- 22.) A Yea Dat employee collected money, and Mitchell stood at the second door telling customers that they would not be readmitted if they left. (Tr. 279:7-19, 273:23-274:5.) Mitchell assigned Thomas to monitor the side door. (Tr. 274:21-25.)

         When the entertainer did not arrive by 10:00 p.m., DeWalt unsuccessfully attempted to reach by phone Max and the other individuals who had attended the Wednesday meeting. (First DeWalt Dep. 154:4-155:3.) DeWalt told one of his security guards he was concerned Max had “bamboozled” him. (First DeWalt Dep. 154:16-21.) DeWalt never saw the entertainer that evening. (First DeWalt Dep. 155:18-19.)

         Asheim visited the Fontaine about 11:45 p.m. and confirmed with Powell, who had previously assisted the Bureau with issues related to the Fontaine, both Yea Dat as the promoter of the Bash and the presence of many gang members. (Asheim Decl. Ex. 18 at 2; Tr. 139:23-140:3.) Powell explained he was enforcing a strict dress code and age limit, performing pat-downs of entering customers, and going through bags at the front door, but expressed concern that Yea Dat was letting his own people in through a side door without similar security measures. (Asheim Decl. Ex. 18 at 2; Tr. 140:9-20.) Powell stated when he agreed to work security for the Bash he had not been informed the promoter would be Yea Dat, and he had strong concerns gang violence would erupt. (Asheim Decl. Ex. 18 at 2.) Powell asked Asheim to return later in the evening, specifically when the Bash concluded, to help prevent problems in the street. (Tr. 140:3-5.)

         Based on previous experience, Asheim knew Yea Dat's events attracted large group of gang members, and he also knew of the shooting of three gang members at a Yea Dat event on the Portland Spirit three months earlier in August 2013. (Asheim Decl. ¶ 11.) Asheim gave Powell his cell phone number and asked him to call to if any issues arose. (Asheim Decl. Ex. 18 at 2; Tr. 140:5-8.) Asheim notified the night district officer of the Bash, who promised to get the word out, and Asheim asked another officer to check on the Fontaine when he was free. (Asheim Decl. Ex. 18 at 2; Tr. 140:21-141:1.)

         VI. The Shooting

         Just after midnight on November 9, 2013, a customer and suspected gang member, identified as “Quan, ” jumped on the Fontaine stage and started a large fight. (Asheim Decl. Ex. 18 at 3; Tr. 147:3-17.) Mitchell remembers it began when the customer sprayed the crowd with champagne. (Tr. 254:6-13.) The attitude of the customers, numbering about 150, changed, so Mitchell directed that no one else be allowed to enter. (Tr. 254:12-18.) At the time this occurred, the “counters” showed 207 people had entered and 57 had left through the front door. (Tr. 274:15-20.)

         As the fight progressed, people started throwing barstools and bottles. (Asheim Decl. Ex. 18 at 3; Tr. 147:17-20.) When Powell attempted to remove Quan from the stage, about twenty of Quan's fellow “gang members” rushed at Quan and Powell, and they told Powell they would be able to control Quan.[23](Asheim Decl. Ex. 18 at 3; Tr. 147:20-23, 148:7-15.) Yea Dat personnel recommended Powell allow Quan's people to take care of him, and they cautioned that there likely would be a shooting if Powell forced Quan outside. (Asheim Decl. Ex. 18 at 3.) The “gang members, ” which included Durieul Harris (“Harris”), pushed Quan into the bathroom in the back hall. (Asheim Decl. Ex. 18 at 3.) Powell, who waited outside in the hall, could hear fighting in the bathroom, which dissipated but then seemed to reignite. (Asheim Decl. Ex. 18 at 3.)

         DeWalt was aware of the argument in the bathroom, which he thought concerned money. (First DeWalt Dep. 214:23-215:4.) He attempted to separate the antagonists before it got physical, but then another customer threw a beer bottle against the wall. (First DeWalt Dep. 214:19-216:11.) Max, or one of his associates, asked DeWalt to not intercede, explaining he knew the people involved in the altercation and worried what might happen if everyone ended up outside. (First DeWalt Dep. 216:19-271:3.) DeWalt exited the bathroom, asked Mitchell to take care of things, and said it was time to close the Fontaine. (First DeWalt Dep. 216:12-18.) Mitchell saw eight men who appeared to be arguing, and he expressed concern to DeWalt that things were getting really tense and they might not make it through the night. (Tr. 255:25-256:20.)

         Eventually, Harris stumbled out the bathroom door, apparently pushed, into the main part of the Fontaine. (Asheim Decl. Ex. 18 at 4; Tr. 148:23-149:2.) The group in the bathroom forced the individual suspected of punching Harris out of the bathroom, and Powell then pushed him out the Fontaine's side door. (Asheim Decl. Ex. 18 at 3-4; Tr. 149:3-9.) Mitchell told Powell he thought he was going to close the party down, and asked him to call the police to do a walkthrough. (Tr. 257:18-24.)

         The fight reignited on the Fontaine's dance floor at about 12:30 a.m., and Mitchell instructed the DJ to stop playing music, turned on the lights, and began active efforts to end the party and clear the Fontaine. (Asheim Decl. Ex. 18 at 4; Tr. 263:21-264:9; Tr. 152:12-22.) A barstool apparently thrown by Quan hit Mitchell's head. (First DeWalt Dep. 219:12-18, 321:12-14; Tr. 264:18-23.)

         Powell went out the side door and called Asheim to report that a large fight had broken out in the Fontaine and police were needed immediately. (Asheim Decl. Ex. 18 at 2, 4; Tr. 141:11-142:2, 152:22-153:5.) At the same time, the police dispatcher was directing officers to respond to multiple 911 calls reporting a “riot” at the Fontaine. (Tr. 141:23-142:6.) While en route to the Fontaine, Asheim heard officers on the scene report a shooting that injured at least one person (the “Shooting”), a “riot” in the streets, and additional shots fired in the crowd. (Asheim Decl. Ex. 18 at 2-3; Tr. 142:7-23.)

         When Asheim arrived he saw over one hundred people in the street, noticed numerous officers taking cover behind their cars with guns drawn, witnessed people actively fighting in the street, and heard bottles breaking. (Asheim Decl. Ex. 18 at 3, Tr. 142:24-143:4.) Shortly thereafter, Asheim's supervisor called for a “citywide Code 3 cover, ” a call for all available officers to immediately respond to the Fontaine with lights and sirens activated. (Tr. 143:4-8.) In his eight years on the force, Asheim had heard of a “citywide Code 3 cover” only once, during an officer- involved shootout with a suspect. (Tr. 143:9-15.) Asheim described the scene at the Fontaine as “extremely chaotic” and “very unsafe.” (Asheim Decl. Ex. 18 at 3.) Chase Bryson, another responding officer, similarly noted the “scene was very chaotic and there were people running around in the streets yelling.” (Jackson Decl. Ex. 27.)

         Harris, a known gang member, lay motionless within twenty feet of the Fontaine's front door. (Asheim Decl. Ex. 18 at 3; First DeWalt Dep. 228:8-18; Tr. 143:16-23.) Asheim believed Harris had been the intended target because the killing was “very up close and personal, ” and numerous bullet casings lay near the body. (Tr. 145:19-24.) The Bureau believe the shooter to be the person who earlier had punched Harris in the bathroom. (Tr. 183:10-20, 189:17-190:4.)

         Officers carried Harris to the next intersection for medical treatment, but he died at the scene. (Asheim Decl. Ex. 18 at 3.) Asheim overheard Eric Harris and Runisha Harris, Harris's relatives who were both identified as gang members, say “this would start a war, ” “it's fucking on now, ” and “I can't stop it, ” when they learned of Harris's death. (Asheim Decl. Ex. 18 at 3.) Bureau officers found additional bullet casings from two or more guns in various locations in the two-to-three block radius surrounding the Fontaine, as well as loaded handguns in two cars left near the Fontaine. (Asheim Decl. Ex. 18 at 3, Tr. 146:17-25, 184:2-186:7.)

         Shortly after the Shooting, members of the Bureau found DeWalt in his office and asked to see surveillance videos. (First DeWalt Dep. 226:4-8, 227:2-16.) A video from a camera in the hallway outside the bathroom confirmed the individual who punched Harris had been pushed out of the bathroom, and then two security guards - likely Powell and Mitchell - pushed Harris out the side door. (Tr. 154:19-155:1, 182:1-19.) Asheim recognized as gang members seven or eight individuals leaving the bathroom. (Tr. 155:2-6.)

         DeWalt admitted to having a “gap” in security that evening and that customers had entered the Fontaine through the back door. (First DeWalt Dep. 159:18-160:17.) Specifically, he thought Quan and another Yea Dat associate, known as “Baldwin, ” snuck into the Fontaine through the back door. (First DeWalt Dep. 219:15-18.) Mitchell acknowledged Quan, who had previously been banned from the Fontaine and was denied access at the front door that evening, in fact had been present at the Bash, and Mitchell surmised he been let in through a side door. (Tr. 258:24-260:8.) However, Mitchell understood security had identified Quan within ten minutes of his arrival and had escorted him out of the Fontaine. (Tr. 275:5-276:11.) Quan apparently found a way to reenter the Fontaine; many there identified him as the individual who started the fight.

         DeWalt was unhappy that one of his security guards was roaming around and talking with police, and planned to fire him. (First DeWalt Dep. 160:1-7.) He indicated he pulled Mitchell off the front door to discuss the head count and Thomas, whom he had stationed by the bathroom, left that post and went elsewhere. (First DeWalt Dep. 160:1-17.) DeWalt acknowledged both the shooter and the victim were in the Fontaine that evening. (First DeWalt Dep. 167:11-13.) DeWalt believed that after the Shooting, Powell acted as an informant for the Bureau. (Second DeWalt. Dep. 182:22-24.)

         DeWalt did not leave the Fontaine until about 6:00 a.m. the morning of the Shooting. (First DeWalt Dep. 230:24-231:1.) At that point, a Bureau detective investigating the Shooting asked DeWalt for the key to the Fontaine, explaining Bureau officers would be there for some time. (First DeWalt Dep. 233:10-16.) DeWalt was extremely hesitant to give the detective the key out of concern for his property and the detective did not have a search warrant. (First DeWalt Dep. 233:17-21.) Late that afternoon, a Bureau officer called DeWalt to tell him he could pick-up his key, and its location. (First DeWalt Dep. 234:13-21, 506:13-16.) DeWalt picked-up the key, met his manager at the Fontaine, cleaned up the nightclub, and left. (First DeWalt Dep. 506:13-18.)

         DeWalt reports the Bureau damaged the video camera during its investigation. (Second DeWalt Dep. 182:5-12.) Additionally, the two logbooks he used to record every incident and every visit from City employees, as well as his bookings and sales, had gone missing - because, he claims, Bureau members took them during their investigation. (Second DeWalt Dep. 181:13-25, 182:5-12; 213:11-214:6.) Bureau members present in DeWalt's office during the investigation represent they did not take, and not see any other Bureau members take, any financial records or papers. (Balcomb Decl. dated April 4, 2018, ECF No. 170 (“Balcomb Decl.”), ¶ 4; Billard Decl. dated April 3, 2018, ECF No. 171 (“Billard Decl.”), ¶ 9.)

         VIII. The City's Request for Immediate Suspension of the License

         The City had established a process for requesting the immediate suspension of a liquor license from the OLCC in 2010 (the “Process”). (Marchetti 30(b)(6) Dep. 5:14-6:18.) The Process required the City, through the Police Chief or designee, to make a written request within twenty-four hours of an incident involving a licensed location whose activities prompted the request, and to present evidence that: (1) the City has a history of problem-solving efforts with the licensed location that establishes the license holder was generally uncooperative and unwilling to engage in actions likely to remedy the identified problems; (2) the incident prompting the request was related to the previously identified problems and the licensed location; and (3) allowing the license holder to continue to serve alcohol posed an imminent public safety risk. (Marchetti 30(b)(6) Dep. 6:15-8:9, 15:9-17.) Kruger considered past incidents of violence, patrons blocking traffic, disorderly conduct, shootings, reports from security about concerns for safety, arrests of intoxicated patrons, and community complaints about noise as relevant to a determination a request for immediate suspension of the license is warranted. (Kruger Dep. 88:20-89:16.) The City would request an immediate suspension when these three factors existed and the City could timely submit such request. (Marchetti 30(b)(6) Dep. 8:15-9:3, 9:13-18.)

         A. The License Team

         Jackson learned of the Shooting within hours, and was directed to start gathering reports and information with regard to the history of the Fontaine. (First Jackson Decl. ¶¶ 11, 12; Jackson Dep. 45:4-12, 46:4-14, 71:9-72:3.) He also obtained as much information as he could from the officers investigating the Shooting. (Jackson Dep. 55:11-56:2.) Jackson communicated with Marchetti and Friedman regarding the Shooting, the Fontaine's history, and the possibility of requesting an immediate suspension of the License pursuant to the Process. (First Jackson Decl. ¶ 11; Jackson Dep. 49:10-50:17, 51:19-24, 72:3-11; First Marchetti Decl. ¶ 12.) The parties also discussed the likelihood Dewalt planned to reopen the Fontaine that night, which likelihood arose at least in part from information from the Bureau that DeWalt had asked for the Fontaine's keys because he wanted to be open for business that night. (Jackson Dep. 37:24-38:8, 39:11-18; Marchetti Dep. 18:9-19:13.) In fact, the Fontaine had booked a large event for that evening, which it had promoted for at least the previous thirty days. (First DeWalt Dep. 494:25-496:3.)

         Marchetti noted Fontaine security members reported DeWalt had limited their ability to handle customers at the door. (Marchetti Dep. 42:5-16.) The security members were not empowered to queue incoming customers at the door, which prevented them from adequately assessing entering customers for intoxication or suspicious behavior. (Marchetti Dep. 43:17-44:5.) Similarly, at closing time security members were to move customers out to the street and close the door, preventing security members from reminding customers of the residential area and to avoid disturbing sleeping residents. (Marchetti Dep. 44:7-21.) Marchetti shared this information with Stover, Hales's liaison on the License Team. (Marchetti Dep. 28:12-29:8; Hales Perpetuation Dep. dated December 9, 2016 (“Hales Perp. Dep.”), [24] 19:24-20:2.)

         Based on the information obtained by and the resulting recommendation from the License Team for an emergency suspension of the License, Hogan directed Jackson to write a letter on behalf of Kruger addressed to John Eckhart, Enforcement Director of the OLCC during the relevant period (“Eckhart”), requesting the immediate suspension of the License (the “Request”). (Marchetti Dep. 29:12-30:8; Jackson Dep. 43:3-21, 44:18-45:12, 75:12-23.) The suspension of a liquor license in Oregon is governed by Or.

         Rev. Stat. 471.315. In the Request November 9, 2013 request, Jackson relied on and quoted the following provisions of Or. Rev. Stat. 471.315:

         ORS 471.315 ground for cancellation or suspension of license:

(1) The Oregon Liquor Control Commission may cancel or suspend any liquor license issued under the chapter, or impose a civil penalty in lieu of or in addition to suspension as provided by ORS 471.322, if it finds or has ...

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