author: HAIGHT, District Judge:

text:
    UNITED STATES of America, Plaintiff, v. ONE MERCEDES-BENZ 380 SEL VIN. # WDBCA 33A1BB10331, Defendant.
    No. 83 Civ. 643-CSH.
    United States District Court, S.D. New York.
    Sept. 20, 1984.

      Rudolph W. Giuliana, U.S. Atty. for the S.D.N.Y., New York City, for the United States; Richard A. Simpson, Asst. U.S. Atty., New York City, of counsel.
    Hanley, Krisel & Goble, New York City, for claimant William A. Staton; Maryellen Goble, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

The Government brings this forfeiture proceeding against the defendant automobile pursuant to 21 U.S.C. § 881(a)(4). The statute subjects to forfeiture to the United States all “conveyances ... which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment” of those species of property proscribed by federal drug laws.

Following seizure of the vehicle, its registered owner, William Staton, filed a claim and contested forfeiture. The case was tried to the Court. The following constitute my findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.

Findings of Fact

In July, August and September, 1982, Julio Mercado, a special agent of the Drug Enforcement Agency (“DEA”), and other agents were conducting an investigation of one Robert Brown, a suspected dealer in heroin. Mercado and other agents acted in undercover capacities in their dealings with Brown. The agents were posing as sellers of significant quantities of heroin. I need not recount the full details of the investigation, surveillance and negotiations as revealed by the evidence. It is sufficient to say that on September 15, 1982, Brown and his associate, one Bernard Barnett, agreed to meet the undercover agents outside a diner in Manhattan to consummate a purchase of heroin. Brown said he would be driving a black Mercedes. In fact, Brown appeared for the transaction driving such a vehicle. Mercado gave Brown and Barnett bags of non-narcotic white powder, Barnett handed over the agreed amount of cash, and surveillance unit agents arrested Brown and Barnett.

The car which Brown had driven to the meeting was the claimant’s car, and forms the subject matter of this action.

Claimant’s Mercedes was taken by DEA agents to the DEA garage, where it was inventoried. A search of the vehicle revealed a written authorization from its owner, claimant William Staton, to one William Brewington, giving Brewington permission to drive the car. Various documents were also discovered, including an envelope containing a $10 bill and a white powder. The powder was taken to the DEA offices and field tested. It checked out positive for heroin. A subsequent laboratory analysis identified the substance at cocaine. The evidence does not fully explain the discrepancy in test results. In the view I take of the case, I need not resolve it.

At the pertinent times, Staton was and remains a successful executive in the recorded music industry. After four or five years with RCA Records in New York, in July 1981 Staton accepted employment with Electric Records, based in Los Angeles. In January, 1983 Staton left Electric and rejoined RCA, as vice-president of the black music marketing department. He is presently an independent consultant. At the pertinent times, however, he was employed by Electric Records in Los Angeles.

Staton had purchased the Mercedes car at issue in April, 1981. He paid $40,000 for it. When he joined Electric Records several months later, and had to transfer to Los Angeles, Staton concluded that he did not need his car there, because the company furnished him with one. In consequence, Staton made arrangements to leave the Mercedes in New York under the care of William Brewington.

Staton had known Brewington for about four to five years. He considered that he knew Brewington well. Staton, an increasingly successful business man, had extended help to Brewington by giving the latter a variety of odd jobs to do. Brewington was handy at electricity, plumbing and carpentry; and at the pertinent times, Staton was the lessee of a building containing a roller rink on West 155th Street in Manhattan. Staton held an option to purchase the building, and had potential plans for its development; Brewington kept an eye on the place and assisted Staton in dealing with contractors. Brewington had also performed some messenger and delivery services for Staton while Staton was at RCA.

When Staton left for Los Angeles, he left his Mercedes in Brewington’s care. It was kept on the leased premises. Staton executed a letter on RCA stationery, dated June 16, 1981, addressed “To Whom It May Concern” (CX A), which stated: “Willie Brewington is my personal driver and has access to my car 24 hours a day.” The notice went on to describe the car as a black 1981 Mercedes Benz, and gave the serial number, license number, and insurance particulars, together with telephone numbers at which Staton could be reached in case of need.

Staton testified that he was aware Brewington was on parole from a prior criminal conviction. He testified, however, that he did not know what the conviction was for, and did not ask Brewington about it. In point of fact, Brewington had served three years in prison for conviction of conspiracy to traffic in heroin and cocaine.

Staton phrased the notice concerning Brewington as he did because he did not wish Brewington to have any difficulty if he used Staton’s car, which Staton gave him permission to do. In fact, Brewington was not Staton’s “personal driver” in the sense that Staton employed him as a chauffeur. It is more accurate to characterize Brewington as a friend, in whose hands Staton thought he could leave the car safely. There is no question that Staton gave Brewington an unfettered ability to drive the car himself. Staton testified that he did not intend to authorize Brewington to sell the car, or to loan it to others; but he could not recall specifically instructing Brewington not to lend the car to others, and there is no writing in evidence imposing such a limitation.

For his part, Brewington testified that Staton left the car in his care. Brewington said that, according to his understanding, he was permitted to use the car, but he was not supposed to lend it to others, or of course to sell it or give it away. But Brewington, no more than Staton, could not describe in his testimony any direct or specific conversations with Staton prohibiting a loan of the car to others; and Brewington acknowledged on cross-examination that, prior to the incidents in question, he had loaned the car to a number of individuals, including Robert Brown, Brown’s uncle and daughter, and an unnamed friend whose car had broken down.

As the legal discussion infra shows, it is to Staton’s interest in pressing his claim to the car to demonstrate that he placed restrictions upon Brewington in respect of its use. Brewington would, in the circumstances of their relationship, be naturally expected to regard Staton not only as an employer but as a benefactor. Accordingly, Brewington’s testimony that he understood that he was not to loan the car to others may arguably be regarded as an act of loyalty, of doubtful credibility. That inference is strengthened by the frequency with which he concededly loaned the car to other people. I do not believe that Brewington would have deliberately and repeatedly acted contrary to Staton’s directions.

In short, I find from the credible evidence that Staton left the car in Brewing-ton’s care; that, save for the written authorization which insured Brewington against difficulty if he was stopped while driving the car, the arrangement was quite informal; and that Staton neither imposed nor Brewington comprehended restrictions about the possible use of the car by others.

It is also pertinent to note that Staton, Brewington and Brown frequented social clubs on the upper west side of Manhattan where people openly used cocaine. Staton, in his testimony, denied any personal use, and nothing in the evidence suggests otherwise. But he did testify that he had attended clubs, one of them being the “Big Track Club” on West 145th Street, where people could be seen ingesting cocaine, and that Brewington, to Staton’s knowledge, also visited such clubs. Again, there is no evidence that Brewington used drugs himself. Robert Brown, who was brought down on a writ from prison to testify, also testified that he had seen Staton and Brewington at social clubs where cocaine was openly used. Brown was admittedly a user.

Against this background, I come to the events of mid-September, 1982, which culminated in the forfeiture of the car. That forfeiture was the last link in a chain of events which began when Brewington loaned the Mercedes to Robert Brown. Both Brewington and Brown gave evidence on the point. There are some discrepancies. I will consider their testimony in detail. Staton has nothing to add of his own knowledge, because he was in Los Angeles at the time.

Brewington testified that on a Monday, Brown drove a rented car to the roller rink premises on West 155th Street and asked Brewington to lend him the Mercedes. According to Brewington, he was at first reluctant, but Brown talked him into it. Brewington testified that he told Brown to return the car before he, Brewington, went off work that afternoon. Brown left his rented car at the 155th Street building, and its keys in Brewington’s possession. Brown did not return the car on time. Brewington waited for him, left the building at 7:00 p.m. to visit a friend, and returned to the building at 11:00 p.m. The Mercedes had still not been returned. Brewington used Brown’s rented car to go home.

It is common ground that Brown and Barnett were arrested, and the Mercedes seized, on September 15, 1982, which was a Wednesday. I find therefore that Brewington, in describing events that occurred “on a Monday,” was referring to Monday, September 13.

The next morning, Tuesday, September 14, Brewington went to Brown’s residence. Brown was not there. The Mercedes was not there. Brewington visited a number of Brown’s customary haunts, leaving word for him. He could not find Brown during the course of that day, or during the day following.

At about 7:00 p.m. on Wednesday, September 15, Brewington learned from Brown’s girlfriend that Brown had been arrested. Brewington reported to Staton by telephone that night. Staton was not pleased. He instructed Brewington to attempt to regain possession of the car. Those efforts, of course, did not succeed.

Brown testified that he borrowed the Mercedes from Brewington about September 9, having agreed to return it on Monday, September 13. Brown testified that he deliberately kept the car past that deadline. Brown testified that he frequently placed or removed his own possessions from the trunk of the car, and he believes that the small quantity of cocaine found in the trunk during the DEA inventory belonged to him. Brown based that conclusion upon the fact that he was using cocaine at the time, whereas, to his knowledge at least, Brewington and Staton were not using cocaine.

While the testimony of these two witnesses in respect of timing of the loan of the Mercedes is in conflict, I do not regard the discrepancy as particularly significant. According to Brewington, Brown borrowed the car on the morning of September 13 and promised to return it later that day. According to Brown, he borrowed the car on September 9 and promised to return it at the end of the day on September 13. In either event, September 13 was the promised return day, and Brown deliberately ■ kept the car beyond that date, leading to its forfeiture upon the occasion of Brown’s arrest on September 15.

Discussion

The applicable legal principles in forfeiture cases are by now well established. The Government is entitled to initiate a forfeiture proceeding under § 881 if it had “probable cause” to believe that the car was being used in the manner or for a purpose specified by the statute. United States v. One 1975 Lincoln Continental, 72 F.R.D. 535, 540 (S.D.N.Y.1976). Once the Government has established probable cause for seizure of the vehicle, the burden falls upon the claimant to show that the vehicle should be absolved from culpability, or establish that forfeiture is not properly within the forfeiture statute. United States v. One 1976 Lincoln Mark IV, 462 F.Supp. 1383, 1388 (W.D.Pa.1979). The innocence of the vehicle’s owner — that is to say, his or her lack of involvement in the illegal transaction — does not by itself prevent forfeiture. One 1976 Lincoln Mark IV, supra, at 1387; United States v. One 1978 Chrysler LeBaron, 531 F.Supp. 32, 34 (E.D.N.Y.1981). That is because the basic nature of a forfeiture proceeding is in rem, reflecting the legal fiction that the vehicle itself is guilty of facilitating crime. One 1976 Lincoln Mark IV, supra, at 1388.

In the case at bar, undercover DEA agents observed Brown and Barnett drive up in the Mercedes. Agent Mercado entered the Mercedes and received from the targets of the investigation cash to be used in consummating a drug purchase. This clearly establishes probable cause in respect of the use being made of the Mercedes. Claimant does not really contend otherwise.

The case therefore turns upon whether or not claimant has sustained his burden of demonstrating a basis upon which forfeiture should be avoided.

Staton makes two basic arguments. In the first he claims a statutory exception; in the second he asserts a constitutional claim. I discuss these in order.

(a) Statutory Exception

Staton relies upon 21 U.S.C. § 881(a)(4)(B), which provides that:

“no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any State.”

It is the case for claimant that Brown’s possession and use of the Mercedes violated several provisions of the New York State Penal Law, thereby entitling him to the protection of this provision of the forfeiture statute.

Staton’s brief (at 8) prefaces its discussion of the New York statutes with these observations:

“An important factor in determining the legality of Brown’s possession of the Mercedes-Benz is the fact that Brewing-ton lent the car to Brown. Brewington had no authority to make such a ‘loan’ of Staton’s property to Brown and Brown knew that.”

Preliminarily, it is necessary to note that counsel’s assertions are either inadequately supported by the record, or are contrary to the facts as I have found them. Brown did not state categorically that he knew Brewington had no authority to loan the Mercedes to Brown. Brown said only that he assumed Staton did not approve the loan, because Staton was not in town at the time. That is not the same proposition. Nor, apart from Brown’s qualified disclaimer (which I do not credit), is there any basis in the evidence to infer doubt on his part with respect to Brewington’s authority. Brown knew that Staton has left the Mercedes in Brewington’s care for over a year, as of the time of this incident. Furthermore, Brewington acknowledges that he had previously loaned the car to Brown and to members of Brown’s family. I find, contrary to counsel’s assertion, that Brown had no reason to doubt Brewington’s authority to lend him the Mercedes, and that in fact Brown believed Brewington had such authority.

I have also found that, at the time he left his car in Brewington’s care, Staton did not forbid Brewington from making the sort of loan (apparently to a mutual acquaintance) with which we are concerned in this case.

These findings and conclusions impact upon claimant’s appeal to various provisions of the New York State criminal statutes, to which I now turn.

First, Staton contends that Brewington’s loan of the car to Brown constitutes the crime of larceny on Brewington’s part under New York Penal Law §§ 155.-05(1) and 155.05(2). Section 155.05 defines the crime of “larceny,” in pertinent part, as follows:

“1. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. “2. Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed in any of the following ways:
“(a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses; ...”

Staton argues that “Brewington, without the consent of Staton, took Staton’s property and appropriated it to Brown.” Brief at 9. This is said to constitute larceny by misappropriation under § 155.05(1), and larceny by embezzlement under § 155.05(2). The difficulty with the argument is that I have rejected the factual predicate.

Staton offers a somewhat different indictment of Brewington’s behavior when he argues (brief at 10) that “Brewington’s loan of the defendant vehicle to Brown was an unlawful misapplication of property in violation of Penal Law § 165.00(1).” That section provides:

“1. A person is guilty of misapplication of property when, knowingly possessing personal property of another pursuant to an agreement that the same will be returned to the owner at a future time, he loans, leases, pledges, pawns or otherwise encumbers such property without the consent of the owner thereof in such manner as to create a risk that the owner will not be able to recover it or will suffer pecuniary loss.”

Staton argues that Brewington’s “unauthorized loan” of a valuable car to a person of Brown’s doubtful character recklessly created a risk of inability to recover the car or pecuniary loss, thereby giving rise to a criminal violation on Brewington’s part. As stated previously, I do not accept claimant’s contention that the loan was “unauthorized.” I am not certain that such a characterization is essential to the operation of § 165.00(1), although neither counsel or I have found any New York cases construing the statute. I am of the view, however, that the statute contemplates a long-term encumbrance of the property on the part of the person in possession of it, different in character and risk from the short-term loan in which Brewington indulged Brown.

There is an alternative basis for rejecting Staton’s appeal to the statutory exception, insofar as that appeal focuses upon the acts and state of mind of Brewington. Within the context of the acts resulting in forfeiture of the Mercedes, the person in possession of the vehicle, the “user” whose acts subjected the vehicle to forfeiture, was Brown, not Brewington. In consequence, it is the legality of Brown’s possession and use of the vehicle, not that of Brewington, which determines the applicability of the statutory exception. And as Judge McLaughlin said, construing 21 U.S.C. § 881(a)(4)(B) in One 1978 Chrysler LeBaron, supra, at 34:

“For an owner to sustain a defense to a forfeiture action based on unauthorized use of the vehicle, however, he has to establish not only that the user was in possession of the vehicle unlawfully, but in addition, he must show that the user acquired possession of the vehicle by a criminal act. U.S. v. One Ford Truck Serial No. F25HRJ82180, 346 F.Supp. 613 (S.D.Cal.1972). See also United States v. One 1950 Burger Yacht, Florida Registration # FL5163BE, 395 F.Supp. 802 (S.D.Fla.1975).”

Staton argues that these requirements of proof should not be applied to a § 881 forfeiture. He seeks to draw a distinction between forfeitures under 21 U.S.C. § 881 and those under the comparable provisions in 49 U.S.C. § 782, which deal with the forfeiture of carriers transporting contraband articles. The cases cited by Judge McLaughlin in the LeBaron case arose under 49 U.S.C. § 782, which provides in pertinent part:

“... no vessel, vehicle, or aircraft shall be forfeited under the provisions of this chapter by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State.” (emphasis added).

Claimant points out that the italicized phrase in § 782 — “who acquired possession thereof” — does not appear in 21 U.S.C. § 881(a)(4)(B). This is said to make a significant difference in statutory construction, so that the exception in § 881(a)(4)(B) is broader and more readily available to a claimant seeking to avoid forfeiture. I do not agree. I read the effect of these particular provisions of the statutes as precisely the same. In my view, the phrase “who acquired possession thereof” in 49 U.S.C. § 782 does no more than render explicit what is implicit in the statute at bar: namely, that the owner of a conveyance, in order to obtain the benefit of the statutory exception, must prove that the possessor or user of the conveyance at the pertinent times acquired the possession which permitted the use by means of a criminal act. That construction arises from the plain wording of both statutes. The phrase in question is essentially redundant. Its inclusion in one statute, and omission from the other, is of no significance. I am cited to no legislative history suggesting that this particular difference in wording reflects a congressional intention that the innocent owners of vehicles be treated more leniently under 21 U.S.C. § 881 than under the earlier statute. Indeed, the Second Circuit has indicated generally that just the reverse is true. In United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421, 424-25 (2d Cir.1977), Judge Mulligan observed:

“There is therefore reason to give the forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 broader coverage than those of other statutes____”

Judge Mulligan was drawing a distinction between 21 U.S.C. § 881 and 49 U.S.C. § 782, his clear indication being that the former statute should be construed more strictly against the owner of the forfeited property than the latter.

Accordingly I focus upon Brown. The question is whether or not Staton has shown that Brown, as user in possession of the Mercedes at the time of the drug transaction, had acquired that possession by a criminal act.

Because I have found that Brown had no reason to believe Brewington lacked authority to lend the Mercedes to him, Brown’s initial acquisition of possession cannot be characterized as larcenous under any of the New York Penal Law provisions upon which Staton relies. That finding is also fatal to Staton’s reliance upon § 165.-05(1), which defines the misdemeanor of “unauthorized use of a vehicle in the third degree.” A person commits that crime when he uses a vehicle “[kjnowing that he does not have the consent of the owner ...” In the case at bar, that knowledge is lacking because Brewington was clad in apparent authority to lend the car to Brown.

Alternatively, Staton focuses upon the use Brown made of the Mercedes after he acquired possession. Brown is said to have violated § 165.08, which provides:

“A person is guilty of unauthorized use of a vehicle in the first degree when knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle with the intent to use the same in the course of or the commission of a class A, class B, class C or class D felony or in the immediate flight therefrom. A person who engages in any such conduct without the consent of the owner is presumed to know he does not have such consent.”

I accept Staton’s submission that Brown’s use of the Mercedes to facilitate a drug transaction (a felony of sufficient severity to trigger the statute) took place without Staton’s consent. Brown was, therefore, guilty of “unauthorized use” of the vehicle as proscribed in § 165.08. But that is not sufficient to avoid forfeiture under the federal statute. As noted supra, the innocence of the owner does not shield the vehicle from confiscation. See also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974); United States v. One 1974 Cadillac Eldorado Sedan, supra, at 424-25. If I were to construe violation of a state criminal statute such as § 165.08 as falling within the statutory exception to forfeiture provided by 21 U.S.C. § 881(a)(4)(B), I would in effect be abrogating that settled rule of federal law. Precisely because federal law condemns the criminally used vehicle even though its owner was innocent of crime, the statutory exception to forfeiture requires the owner to show that the initial acquisition of possession by the criminal actor must be traced to a criminal act. In consequence, criminal statutes such as § 165.08, which focus solely upon the use made of the property by its temporary possessor, do not satisfy the federal statutory exception. For the same reason, Staton’s reliance upon P.L. § 145.25 is misplaced. That section of the penal law provides that a person is guilty of the misdemeanor of “reckless endangerment of property” “when he recklessly engages in conduct which creates a substantial risk of damage to the property of another person ...”

Finally, Staton focuses upon Brown’s intentional retention of the Mercedes beyond the time that he promised Brewington it would be returned. This is said to violate § 165.05(3), which provides that a person is guilty of a misdemeanor of unauthorized use of a vehicle when:

“Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement.
“For purposes of this section ‘a gross deviation from the agreement’ shall consist of, but not be limited to, circumstances wherein a person who having had custody of a vehicle for a period of fifteen days or less pursuant to a written agreement retains possession of such vehicle for at least seven days beyond the period specified in the agreement and continues such possession for a period of more than two days after service or refusal of attempted service of a notice in person or by certified mail at an address indicated in the agreement stating (i) the date and time at which the vehicle was to have been returned under the agreement; (ii) that the owner does not consent to the continued withholding or retaining of such vehicle and demands its return; and that continued withholding or retaining of the vehicle may constitute a class A misdemeanor punishable by a fine of up to one thousand dollars or by a sentence to a term of imprisonment for a period of up to one year or by both, such fine and imprisonment.”

This statute simply does not apply to the facts of the case at bar. As the Supplementary Practice Commentary makes clear, 39 McKinney’s Consol. Laws of N.Y. (1984 pocket part) at 80, the purpose of this section of the penal law is to punish commercial car renters who keep the car longer than the written agreement provides for. The Commentary recites: “After many years of trying, the car rental industry has succeeded in getting approval of a bill that will subject short-term car renters to criminal liability for failure to return a rental car on time.” The second paragraph of the quoted statute was adopted to give a more specific definition of the term “gross deviation from the agreement,” the first paragraph standing alone being regarded by the industry as too vague to permit effective enforcement. In short, the New York Legislature was addressing an entirely different issue. I decline to hold that this statute may be availed of by Staton to characterize Brown’s acquisition of the Mercedes as criminal within the context of the drug forfeiture statute.

For the foregoing reasons, Staton is not entitled to the statutory exception from forfeiture of his car.

(b) Constitutional Claim

Staton’s constitutional claim, grounded in concepts of due process, arises out of dicta taken from the Supreme Court’s decision in Calero-Toledo v. Pearson Yacht Leasing Co., supra.

It is not surprising that Staton relies on dicta found in Calero-Toledo. The holding of the case could not be worse for him. The facts of the case were that a yacht leasing company leased a pleasure yacht to two Puerto Rican residents. Thereafter Puerto Rican authorities discovered marijuana on board the yacht. They subjected the yacht to forfeiture pursuant to a Puerto Rican statute comparable to the one at bar. The leasing company was neither involved in nor aware of the act of the lessee which resulted in the forfeiture. In these circumstances, the leasing company argued that “the forfeiture statutes unconstitutionally authorized the taking for government use of innocent parties’ property without just compensation.” 416 U.S. at 680, 94 S.Ct. at 2090. The Supreme Court squarely rejected that argument, reversing a three judge panel which had accepted it. Calero-Toledo observed that “a long line of prior decisions of this Court established the principle that statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents,” and held that United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), upon which the court below primarily relied, did not “overrule those prior precedents sub silentio.” Ibid. After reviewing that line of authority, the Court observed: “To the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” Id., 416 U.S. at 687-88, 94 S.Ct. at 2094.

Having said all that, the Court came towards the end of its opinion, id. at 688-90, 94 S.Ct. at 2094-95, to the dicta upon which the present claimant relies. The Court said:

“This is not to say, however, that the ‘broad sweep’ of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.’ Peisch v. Ware, 4 [(8 U.S.)] Cranch 347, 363 [2 L.Ed. 643] (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, id., at 364; Goldsmith-Grant Co. v. United States, 254 U.S. [505] at 512 [41 S.Ct. 189 at 191, 65 L.Ed. 376 (1921) ]; Van Oster v. Kansas, 272 U.S. [465] at 467 [47 S.Ct. 133, at 134, 71 L.Ed. 354 (1926) ]. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U.S. 40, 49 [80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554] (1960).” (footnotes omitted).

However, the Calero-Toledo opinion concludes with this paragraph:

“But in this case appellee voluntarily entrusted the lessees with possession of the yacht, and no allegation has been made or proof offered that the company did all that it reasonably could to avoid having its property put to an unlawful use. Cf. Goldblatt v. Town of Hempstead, 369 U.S. 590, 596 [82 S.Ct. 987, 991, 8 L.Ed.2d 130] (1962). Id. at 690, 94 S.Ct. at 2095.

The Court upheld forfeiture of the yacht.

Calero-Toledo may thus be read for the proposition that a constitutional impediment to forfeiture arises if the property owner is (a) entirely innocent of the underlying crime and (b) did “all that reasonably could be expected to prevent the proscribed use of his property.” The claimant bears the burden on both these issues. In the case at bar, Staton has clearly demonstrated his innocence of the drug transaction of which Brown was involved. But has he satisfied the second prong of the constitutional test? Quite clearly, the innocence of Staton’s authorization to Brewington to drive the car is not sufficient. The yacht leasing company in Calero-Toledo was no less innocent than Staton of the user’s intentions. The second prong clearly calls for some affirmative preventive action. As in all cases where actions are judged by the standard of reasonableness, the particular circumstances must be considered.

I conclude that Staton has not proved that he “did all that [he] reasonably could to avoid having [his] property put to an unlawful use.” Calero-Toledo at 690, 94 S.Ct. at 2095. Surely Staton did not do all that he physically could. Unlike the yacht leasing company in Calero-Toledo, whose business it was to place its vessels in the hands of lessees, Staton did not have to leave his brand new Mercedes (for which he had paid $40,000 several months before) in Brewington’s hands. He could have left the car in a commercial garage and denied its access to anyone. Given the expected duration of Staton’s absence from New York, the car could have been placed in dead storage to minimize the expense. Instead, Staton left the car in Brewington’s care and control, and gave him permission to drive it. Staton knew that Brewington was a parolee, and that he frequented social clubs where the consumption of illegal narcotics was part of the life style. I do not denigrate Brewington’s apparent rehabilitation from his prior narcotics conviction; and I reiterate that there is no evidence that Staton or Brewington were drug users themselves at the pertinent times. In my judgment, however, of these two particular options, garaging the car constituted the one which Staton reasonably should have exercised to avoid possible unlawful use.

Assuming that garaging was not reasonably required, in contrast to a loan of the car to Brewington, at the very least Staton should have exercised maximum efforts to see that no one else drove the car. On this issue his proof is entirely deficient. As noted supra, there is no proof of any occasion upon which Brewington was directly and specifically instructed not to let others use the car. Nor did Staton execute any document to that effect, although it would have been easy to do so. For example, the notice identifying Brewington as an authorized driver of the car could also have stated that no one else had such authority. Brewington’s practice of frequently lending the ear to others is inconsistent with instructions from his employer and benefactor that he not do so. Of course, it is possible that such instructions were given and Brewington chose to disregard them; but given the relationship between the two men, I consider this unlikely, and in any event Staton has the burden of proof on the issue.

Those cases which exempt a vehicle from forfeiture stress the importance of the owner’s explicit prohibitions which were violated at the time of the criminal act. See, e.g., United States v. One 1971 Ford Truck, 346 F.Supp. 613, 620 (C.D.Cal.1972) (owner of vehicle testified “that his explicit instructions to his son were that he should only use the truck for this limited task and that he should return the truck to the father’s residence immediately upon its completion,” coupled with instructions to his son “not to use the truck at any other time or for any other purpose”); United States v. One 1954 “98” Oldsmobile Convertible, 152 F.Supp. 616, 618 (M.D.Pa.1957) (“... there was a lot of uncontradicted testimony to the effect that immediately upon being advised that her son was dealing in narcotics she forbade him using the car, and that this injunction was made on a number of occasions.”). By way of contrast, forfeiture was decreed in United States v. One 1971 Chevrolet Corvette, 393 F.Supp. 344, 348 (E.D.Pa.1975), a post-Calero-Toledo case, in which Judge Luongo applied its requirement of reasonable prevention and wrote:

“Arguing from the dictum in Pearson, claimants contend that Mrs. Fisher was the innocent owner of the vehicle, uninvolved in and unaware of her husband’s criminal activity, and that she had done all that could reasonably be expected to prevent illegal use of her property. Setting aside for the moment the question of title ownership to the vehicle, it is clear that Mrs. Fisher did not take all steps that could reasonably be expected to prevent her husband from using the vehicle for illicit purposes. Her testimony was that she did permit her husband to use the vehicle and that she even gave him a set of keys for his use. In light of the husband’s criminal background, this would have been enough to warrant forfeiture of her vehicle. To that must be added, in this case, the fact that Mrs. Fisher voluntarily titled the vehicle in the names of both as tenants by the entire-ties. With this title ownership, under Pennsylvania law, under which each tenant by the entireties owns the whole, and each has the right to possess, use and enjoy the property so owned, Madden v. Gosztonyi S. & T. Co., supra, 331 Pa. [476] at 482, 200 A. 624 [ (1938) ], it is at least questionable that Mrs. Fisher had the power to restrict her husband’s use of the vehicle.”

The other case upon which Staton relies is United States v. One 1976 Lincoln Mark IV, 462 F.Supp. 1383 (W.D.Pa.1979). The owner of the car loaned it to his brother-in-law. The owner knew that the brother-in-law had been convicted of a securities violation four years earlier and had served time for. the offense. However, the owner testified that he had no knowledge that the brother-in-law was involved with drugs. The car was forfeited when the brother-in-law was arrested in connection with a drug transaction in which the car had been used. Judge Cohill, undertaking to apply the Calero-Toledo standard, concluded that the owner had done all that could reasonably be expected of him to prevent illegal use of his car, although acknowledging “the case before us to be a close one, and that [i]t would be possible to reach an opposite conclusion here, citing reputable authority.” 462 F.Supp. at 1391-92.

I agree with claimant that this case bears an arguable resemblance to the case at bar; but with respect, I regard Judge Cohill’s analysis and decision as outside the mainstream of authority in this area.

Regarding the case at bar in the totality of its circumstances, I conclude that claimant Staton has not sustained his burden of proof on the issue of sufficient action to prevent illegal use of his car.

CONCLUSION

The Clerk of the Court is directed to enter an order forfeiting the vehicle in suit to the United States. In my discretion, I direct that each party bear its own costs.

It is SO ORDERED.

      . I am skeptical of Brown’s testimony on this point because of his natural regret at being the cause of the Mercedes' forfeiture, and an equally natural antipathy to the Government agents who seek by this action to retain it.


source: Caselaw Access Project

author: MISHLER, District Judge.

license: Public Domain

text:
    Allison C. COLLARD and Julia A. Collard, Plaintiffs, v. The INCORPORATED VILLAGE OF FLOWER HILL; the Board of Trustees; William R. Howe, Building Inspector; Herbert Ash, Thomas J. Walsh, Robert S. Caine, Alfred E. Runge, and the Zoning Board of Appeals of the Incorporated Village of Flower Hill; and John M. Farrell, Esq., Village Attorney, Defendants.
    No. CV 82-2143.
    United States District Court, E.D. New York.
    Oct. 30, 1984.

      Collard, Roe & Malcolm, Roslyn, N.Y., for plaintiffs.
    Schiffmacher, Cullen, Farrell & Limmer, Great Neck, N.Y., Suozzi, English & Cianciulli, P.C., Mineóla, N.Y., for defendants.
   Memorandum of Decision and Order

MISHLER, District Judge.

Defendants move to dismiss the complaint pursuant to. Fed.R.Civ.P. 12(b)(1) (lack of jurisdiction over the subject matter) and 12(b)(6) (failure to state a claim upon which relief can be granted).

HISTORY

Plaintiffs are the owners of the fee of real property located at the intersection of Northern Boulevard, Ridge Drive West and Ridge Drive East in the Incorporated Village of Flower Hill. Plaintiffs purchased the property in 1977. It consists of 28,000 square feet on which is erected a two-story office building occupying approximately 2,300 square feet.

Prior to 1966, the then vacant property was zoned Residential B-2 District which limited the use to a single family detached house on a lot having a minimum area of 7,500 square feet. The property consisted of three lots, i.e., lots 9, 12 and 13. In 1966, the Board of Trustees granted the then owners’ application to have lots 9 and 13 rezoned from the use of single family residence to a General Municipal and Public Purposes District which permitted the property to be used as a sanitarium with accessory doctors’ offices. As a condition to granting the application, the owner executed a covenant restricting the use of lots 9 and 13 as provided in the rezoning. The sanitarium was constructed, but the operators found the use of the property as a sanitarium unprofitable. A further application was made in 1976 requesting a rezoning into a Business District. As part of the application, lot 12 was included in the request. The application was granted. As a condition the owner was required to execute a covenant restricting the entire plot, lots 9, 12 and 13, to certain professional type uses, i.e., medicine, dentistry, law, engineering, architecture or accounting, and limiting the number of tenancies. It further required that all alterations and extensions to the existing building be approved by the Board of Trustees. Such a covenant was executed by the owner and recorded in the Office of the Clerk of Nassau County as a restriction on the use of the property running with the land. The covenants re-, cited that the property was “zoned as part of the Business District of the Village in accordance with the provisions of Chapter 86, Section 86-12 of the Code of the Village of Flower Hill.” It limited changes to the existing buildings as follows:

No building or structure situated on the subject premises on the date of the Declaration of Covenants will be altered, extended, rebuilt, renovated or enlarged without the prior consent of the Board of Trustees of the Village.

In December, 1978, plaintiffs petitioned the Board of Trustees for its consent to alter and enlarge the existing building. The application was denied on or about January 12, 1979. Plaintiffs commenced an action in the Nassau County Supreme Court against the Village of Flower Hill in April, 1979.

The complaint claimed that the Board’s action “deprived plaintiffs of an authorized use of the premises” (State Comp.Par. 7) and that the Board’s action was “unconstitutional and confiscatory and violates the Constitution of the State of New York and [the] Constitution of the United States, which in substance forbids actions by Government authorities depriving any person of property without due process of law” (State Comp.Par. 8). The complaint was dismissed by order of the Appellate Division of the Supreme Court for the Second Judicial Department for failure to state a cause of action. Collard v. Incorporated Village of Flower Hill, 75 A.D.2d 631, 427 N.Y.S.2d 301 (1980). The Court of Appeals affirmed, 52 N.Y.2d 594, 439 N.Y.S.2d 326, 421 N.E.2d 818 (1981).

Plaintiffs thereafter submitted a site plan to the Building Inspector of the Village of Flower Hill proposing the erection of a new building to the rear of the existing building on lot 12. The Building Inspector denied the application on the ground that it failed to comply with section 86-12 of the Village Code in the minimum rear yard requirement, pointing out that under section 86-12 of the Code, lot 12 was the' rear yard of the existing building. Plaintiffs subsequently submitted a formal plan for the erection of a second office building on lot 12 on the same location as the proposed addition. They sought a variance from the rear yard requirement and height regulation. The proposed plan for the new office building consisted of five levels, each level having an area of approximately 2,690 square feet — a total of 13,450 square feet. The application was considered by the Nassau County Planning Commission. The Nassau County Planning Commission denied the application. The denial was sustained by the Zoning Board of Appeals of the Village of Blower Hill.

On July 21, 1982, plaintiffs petitioned the Nassau County Supreme Court for a review of the determination by the Zoning Board of Appeals. The petition claimed that “[t]he Board’s denial of the application results in an unlawful confiscation of the Petitioners’ property, since it cannot be used for the construction of a separate commercial building.” (Plaintiffs’ State Petition Par. 41).

On November 9, 1982, the Nassau County Supreme Court upheld the Zoning Board of Appeals’ interpretation of the definition of lot and sustained the prohibition of more than one principal building per lot. Collard v. Runge, No. 14312/82 (N.Y.Sup.Ct. Nassau Co. Nov. 9, 1982) (unpublished decision), aff'd without opinion, 99 A.D.2d 687, 471 N.Y.S.2d 731 (2d Dep’t 1984), appeal denied, 64 N.Y.2d -, — N.Y.S.2d -, 472 N.E.2d 327 (N.Y.Ct.App.1984).

In the meantime, on July 21, 1981, plaintiffs filed a complaint in this court claiming their civil rights were violated by the unconstitutional and confiscatory action by the Board in denying consent to extend the existing building (first claim) and denying a permit for the construction of a second building on lot 12 (second claim). In the first claim, the complaint alleges a conspiracy between the Village of Flower Hill and John M. Farrell, Jr., attorney for the Board and the Village. The second claim alleges a conspiracy among Farrell, William R. Howe (the Building Inspector) and the defendant members of the Zoning Board of Appeals who voted to sustain the determination of the Nassau County Planning Commission. Plaintiffs seek compensatory and punitive damages and a declaration “that the actions of the Board of Appeals ... be [found] arbitrary, capricious and illegal and [to] grant plaintiffs the right to build the proposed building on their property.” (Comp. p. 9). Defendants had moved to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b). All proceedings in this case were stayed pending review of the state court decision on appeal. Collard v. Incorporated Village of Flower Hill, No. 82-2143 (E.D.N.Y. Dec. 10, 1982) (unpublished memorandum of decision and order). The state court order was affirmed by the Appellate Division of the Supreme Court, Second Judicial Department, by summary order, without opinion, entered January 9, 1984. The Court of Appeals denied leave to appeal on June 29, 1984.

This court, having withheld action on the original motion to dismiss, is now called upon to decide that motion. The defendants moved for such consideration. The plaintiffs moved to vacate the stay.

DISCUSSION

Res Judicata/Collateral Estoppel

The Supreme Court in United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984), restated the preclusive effect of a prior adjudication on a subsequent action: “[OJnce a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979).” Quoting from Standefer v. United States, 447 U.S. 10, 24, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980), the Court pointed to the reason for preclusion as follows: “[N]o significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and ... there is no sound reason for burdening the courts with repetitive litigation.” Id. 464 U.S. at -, 104 S.Ct. at 572.

The doctrine of collateral estoppel may be invoked where the issue of law or fact in the subsequent proceeding has been litigated and determined by a valid and final judgment. Wilson v. Steinhoff, 718 F.2d 550, 552 (2d Cir.1983). It is not necessary that the parties be identical in both suits. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (permitting the use of offensive collateral estoppel). Court have construed 28 U.S.C. § 1738 so as to require federal courts to “give preclusive effect to state court judgments whenever the courts of the state from which the judgments emerge would do so.” Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980); Derish v. San Mateo-Burlingame Board of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983).

In Allen v. McCurry, supra, the Supreme Court held that “issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered.” Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 897, 79 L.Ed.2d 56 (1984) (emphasis added). The Allen decision, however, left open the question as to the preclusive effect of a state court judgment concerning a federal issue that a § 1983 plaintiff could have raised but did not actually raise in the earlier state court proceeding. Allen v. McCurry, supra, 449 U.S. at 97 n. 10, 101 S.Ct. at 416 n. 10. In so doing, the Second Circuit decision in Lombard v. Board of Education, 502 F.2d 631 (1974) (rejecting the application of res judicata in a § 1983 action where the federal constitutional claim was not actually litigated in the prior state court proceeding), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975), arguably retained its validity. But see Sachetti v. Blair, 536 F.Supp. 636, 640 (S.D.N.Y.1982) (questioning whether Lombard is still good law after Allen v. McCurry and concluding that “at the very least, one must read the Lombard holding narrowly, and should not expand it beyond its precise facts”). Thus, plaintiffs urge the court to accept the Lombard decision as controlling and argue that the constitutional issues raised in this present federal litigation were never actually litigated in either of the two prior state court proceedings. Defendants argue that Lombard was overruled by Allen v. McCurry, supra.

I reject plaintiffs’ argument that Lombard is still good law and should apply to the case at bar. The recent Supreme Court decision in Migra v. Warren City School District, supra, 465 U.S. at —, 104 S.Ct. at 897, clearly confronted the issue previously left open by Allen v. McCurry. In so doing, the Migra court rejected the Second Circuit’s view espoused in Lombard that § 1983 prevents a state court judgment from having preclusive effect on constitutional issues raised in a subsequent federal proceeding which were not actually — although they could have been — raised in the state court proceeding. Migra v. Warren City School District, supra, at-, 104 S.Ct. at 897-98. I further find, for reasons later discussed, that the issues in both claims were either actually litigated or could have been litigated in the prior state court proceedings and thus, those state court final judgments impose a claim-preclusive effect on the present litigation.

In the first state court action plaintiff argued that the Board’s action in withholding its consent to extend the existing building was arbitrary and capricious. The New York Court of Appeals rejected the claim and held that the Board was not required to state the reasons for the rejection. Collard v. Incorporated Village of Flower Hill, supra, 52 N.Y.2d at 604, 439 N.Y.S.2d at 331, 421 N.E.2d at 823.

In the second action, the state court sustained Village of Flower Hill’s interpretation of the term “lot” in Village Code § 86-1, and found the limitation of one principal building per lot as provided in Village Code § 86-12 reasonable. Collard v. Runge, supra.

The complaint before this court phrases the actions of the Village of Flower Hill in terms of constitutional violations. The first claim alleges that defendants’ denial of plaintiffs’ request for permission to alter and extend the existing building and defendants’ failure to conduct a hearing on the request violated plaintiffs’ right to procedural due process, and violated plaintiffs’ right to substantive due process by “impairing the value of plaintiffs’ commercial property without compensation.” (Comp. Par. 16). The second claim charges a conspiracy (in which Farrell, the Village Attorney, is charged as prime mover) to redefine the definition of § 86-1 of the Village Code (Comp.Par. 23) and to pass amendments to the Code to prevent the construction of a second building on lot 12 (Comp. Par. 25) which resulted in a “taking of Plaintiffs’ property rights without just compensation, [and] the denial to Plaintiffs of due process.” (Comp. Par. 29). Plaintiffs’ complaint further alleges:

That the denial of a variance is not justified in law; that the specious explanation of the Board of Appeals for its denial involved an illegal and unreasonable interpretation of Village Laws, wherein definitions of laws were re-defined so as to deny Plaintiffs their rights to improve their property.

(Comp. Par. 30).

The conclusory allegations of conspiracy do not add substance to the second claim. See Ellentuck v. Klein, 570 F.2d 414, 426 (2d Cir.1978).

Identity of Issues

The application of the doctrine of res judicata or collateral estoppel does not require a showing that the issue in the prior action was framed in the same language or that the same theory of liability was charged as in the subsequent action. The basis of establishing an identity of issues is broader and more practical.

In O’Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981), where a property owner failed to sustain a prior suit for de facto appropriation of his property, he was barred from relitigating that issue where the theory of liability asserted in the second action was trespass. Similarly, a prior state court determination on a quasi contract claim bars relitigation in federal court “as to any cause of action arising from the same operative facts.” RX Data Corp. v. Department of Social Services, 684 F.2d 192, 198 (2d Cir.1982). Thus, since the subsequent claim (unfair competition) could have been presented in the prior action, that claim was barred in federal court. Id.

The court in Derish v. San Mateo-Burlingame Board of Realtors, supra, set forth helpful guidelines in determining the identity of issues. The court stated:

To determine whether the Derishes’ state and federal suits involve the same claim, we are assisted by asking:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arose out of the same transactional nucleus of facts.

Id. at 1349 (quoting Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.1980)).

Since I find an affirmative answer to all four factors suggested in Derish, I conclude that the claims raised herein were either actually litigated or could have been litigated in the prior state court actions. Therefore, the prior state court final judgments preclude relitigation of the issues.

Failure to State a § 1983 Claim

Alternatively, plaintiff has failed to state a § 1983 claim upon which relief can be granted and the claim should therefore be dismissed under Fed.R.Civ.P. 12(b)(6).

The procedural due process claim is frivolous. The New York Court of Appeals in Collard v. Incorporated Village of Flower Hill held that the Board was not required to give reasons for its denial. Collard v. Incorporated Village of Flower Hill, supra, 52 N.Y.2d at 604, 439 N.Y.S.2d at 331, 421 N.E.2d at 823. It follows that a hearing was not required to determine the binding effect of the covenant or the interpretation of the consent clause for extending the existing building. No further discussion is necessary concerning the adequacy of the hearing on the request for permission to build a second principal building on lot 12.

The substantive due process claim is expressed in the “taking without just compensation” allegation. This claim challenges the authority of the Village of Flower Hill in the manner in which it used its police power. Rogin v. Bensalem Township, 616 F.2d 680 (3rd Cir.1980), cert. denied sub nom. Mark Garner Assoc., Inc. v. Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981), reviewed the history of zoning regulations under the police power of the state and the limitation on that power imposed by the Constitution. The Rogin court stated that zoning ordinances “are constitutional if they bear a ‘substantial relationship to the public health, safety morals or general welfare.’ ” Id. at 688 (quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926)). The court reviewed the broad scope of the police power under the general welfare clause and quoted from Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-03, 99 L.Ed. 27 (1954), as follows:

“The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balances as well as carefully patrolled.”

Rogin v. Bensalem Township, supra, at 688.

In further defining the authority of a subdivision of a state to exercise its police power in restricting land use, the Rogin court quoted from Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974), on what governmental purposes included, as follows:

“A quiet place where yards are wide, people are few, and motor vehicles are restricted are legitimate guidelines in a land-use project addressed to familyneeds____ The police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet reclusion and clean air make the area a sanctuary for people.”

Rogin v. Bensalem Township, supra, at 688 (citations omitted) (footnote omitted).

Plaintiffs do not allege that the zoning restrictions destroyed the value of their property. They claim a denial of the “right to use its property reasonably” (Comp.Par. 16(b)) and the impairment of the value of the property (Comp.Par. 16(c)) as a result of defendants’ decision to refuse plaintiffs’ request for “permission to alter and extend the existing building.” (Comp.Par. 16). The constitution does not protect a property owner’s right to make more money than the zoning regulations permit, or a right to a fair market value of property at its highest and best use. See Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (designation of Grand Central Station as a landmark, depriving Penn Central of the use for a high rise office building causing substantial individualized harm is not unconstitutional); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962) (an ordinance banning any excavation below the water table preventing plaintiff from continuing sand and gravel business he operated for 30 years is not unconstitutional).

Recently, the Second Circuit Court of Appeals in Park Avenue Tower Associates v. City of New York, 746 F.2d 135 (1984), in affirming a grant of summary judgment dismissing the complaint, stated that a “legion of cases ... have upheld regulations which merely diminished the value of commercial property.” At 139.

The plaintiffs in the instant case do not complain of an ordinance that reduces the value of their property, but complain that the Village of Flower Hill refuses to grant their request under existing regulations that would have the effect, if granted, of increasing the value of their property. I find, however, regardless of this difference, that plaintiffs’ substantive due process claim is controlled by the foregoing decisions and should be dismissed under Fed.R.Civ.P. 12(b)(6).

Motion to Amend the Complaint

Plaintiffs move for leave to amend the complaint by adding a third claim. The claim alleges “purposeful discrimination” and a violation of plaintiffs’ right to “equal protection of laws.” The claim is based on the same operative facts litigated in the prior state court actions. A new theory based on the same facts does not avoid the preclusive effect of the prior judgments. The motion is denied.

ORDER

The complaint is dismissed. The Clerk is directed to enter judgment in favor of defendants and against the plaintiffs dismissing the complaint.

SO ORDERED.

      . Section 239-m of the New York General Municipal Law requires that where the property affected is within 500 feet of the Village boundary, the application must be reviewed by the Nassau County Planning Commission.

      . Though defendant moved pursuant to Fed.R. Civ.P. 12(b), both sides submitted affidavits and documents in support of their respective positions.

      . Res judicata is sometimes referred to as "claim preclusion and collateral estoppel as "issue preclusion." United States v. Mendoza, supra, 464 U.S. at -, n. 3, 104 S.Ct. at 571 n. 3.

      . Plaintiffs urged the court to imply an agreement that the Village of Flower Hill would not unreasonably withhold its consent.

      . The plaintiff in Rogin made a claim similar to that made by the plaintiffs in the instant action in claiming a conspiracy to discourage the construction of the project made the subject of the litigation.

      . Plaintiffs’ motion to vacate the stay of pre-trial discovery is rendered moot.


author: BUA, District Judge.

text:
    Peter J. VRDOLYAK, Plaintiff, v. CITY OF CHICAGO, an Illinois Municipal Corporation; Harold Washington, Mayor of the City of Chicago; Charles A. Pounian, Commissioner of the Department of Personnel of the City of Chicago; and Harry L. Manley, Acting Commissioner of the Department of Inspectional Services of the City of Chicago, Defendants.
    No. 83 C 7999.
    United States District Court, N.D. Illinois, E.D.
    Nov. 27, 1984.

      William J. Harte, William J. Harte, Ltd., Chicago, 111., for plaintiff.
    Robert Graham, Jenner & Block, Donald Hubert, James D. Montgomery, Acting Corporation Counsel, Chicago, 111., for defendants.
   MEMORANDUM ORDER

BUA, District Judge.

The above-captioned matter came before the Court for trial on the merits of plaintiff Peter J. Vrdolyak’s Verified Complaint for violation of the provisions of this Court’s consent decree entered on May 5, 1972, the terms of which, inter alia, permanently enjoin the City of Chicago and its Mayor from:

conditioning, basing, or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee upon or because of any political reason or factor.

Shakman v. Democratic Organization of Cook County, No. 69 C 2145, reprinted at, 481 F.Supp. 1315, 1356 app. (N.D.Ill.1979) (“1972 Consent Decree”). The Court, having heard testimony on November 14, 1983, June 12, 1984, and June 14, 1984, and having reviewed exhibits and memoranda filed by the parties, does hereby enter the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

A. The Parties

1. Peter J. Vrdolyak (“Vrdolyak”) is a resident, registered voter and taxpayer in Chicago, Illinois. Vrdolyak has been employed by the City of Chicago for over eight years and has served as Assistant Director of Technical Inspections in the Department of Inspectional Services from January 1, 1981, to November 9, 1983. After this Court entered and continued a temporary restraining order and preliminary injunction on November 14, 1983, to enjoin defendants from terminating Vrdolyak, Vrdolyak has remained employed in his job title with the City of Chicago until the present time.

2. Defendant City of Chicago (“the City”) is an Illinois municipal corporation.

3. Defendant Harold Washington (“Washington”) is the Mayor of the City of Chicago.

4. Defendant Charles A. Pounian (“Pounian”) is the Commissioner of the Department of Personnel for the City of Chicago.

5. Defendant Harry L. Manley (“Manley”) is the Acting Commissioner of the Department of Inspectional Services for the City of Chicago.

B. Applicable Provisions of the Shakman Consent Decree

6. On May 5, 1972, a Consent Decree was entered in the case entitled Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D.Ill.1972). Pursuant to Paragraph E(l) of 1972 Consent Decree:

E. Each and all of the defendants and others are permanently enjoined from directly or indirectly in whole or in part:
(1) Conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment with respect to one who is at the time already a government employee upon or because of any political reason or factor.

7. On June 20, 1983, a Consent Decree entitled “Judgment as to the City of Chicago and its Mayor” was entered in Shakman under which there were listed at Schedule G certain positions with the City of Chicago which were to be exempt from the requirements of Paragraph E(l) of the 1972 Consent Decree. Vrdolyak’s position is listed as exempt on Schedule G.

8. Also on June 20, 1983, a Consent Decree entitled, “Order Retaining Jurisdiction as to City Exemptions,” was entered under which this Court retained jurisdiction to allow City employees holding exempt positions under Schedule G to file petitions to contest the scheduling of their positions as exempt:

By this Order, the Court retains jurisdiction to consider petitions requesting for good cause that particular positions listed in Part G should be deleted from the Schedule and to give such other relief as may be appropriate. Such petitions may be filed only by persons currently holding a position on the Exempt List who shall have been discharged or demoted from, or are notified seven days in advance of the city’s intention to discharge or demote them from the jobs.

9. The injunctive provisions of the Shakman Consent Decrees are applicable to and binding upon defendants Washington, Pounian and Manley who, in their respective positions as Mayor, Commissioner of the Department of Personnel and Acting Commissioner of the Department of Inspectional Services of the City of Chicago, hold responsibility for formulating and implementing employment policies and practices for the City of Chicago.

C. Organization of the Department of Inspectional Services

10. The Department of Inspectional Services is charged with administering the Building Code of the City of Chicago. Pri- or to 1980, it was known as the Department of Buildings. The Department is divided into four bureaus; one of these, the Bureau of Technical Inspections, is responsible for administering the Building Code with respect to new construction. The Bureau of Technical Inspections is divided into seven sections corresponding to various construction trades as follows:

(1) Boiler Inspection Section;
(2) Construction Inspection Section;
(3) Electrical Inspection Section;
(4) Elevator Inspection Section;
(5) Iron Inspection Section;
(6) Mechanical Equipment Inspection Section; and
(7) Plumbing Inspection Section.

11. The chain of command relevant to Vrdolyak’s position begins with the Mayor of the City of Chicago. Below the Mayor is the Commissioner of the Department of Inspectional Services, a cabinet level position. Below the Commissioner are two Deputy Commissioners. Also reporting to the Commissioner and subordinate to the Deputy Commissioners is an Assistant Commissioner.

12. Reporting directly to the Deputy Commissioners are the Directors of the four Bureaus. Since January, 1980, James Brick has been employed as director of the Bureau of Technical Inspections. Vrdolyak, as Assistant Director, reports to James Brick. Below Vrdolyak are the chiefs of the seven inspection sections. In addition to the chiefs, there are assistant chiefs and superintendents, depending on the section. Finally, at the end of the chain of command are the field workers of the seven sections who are the inspectors.

13. The duties of the position held by Vrdolyak, Assistant Director of Technical Inspection, include: assisting the Director of the Bureau of Technical Inspections in the coordination of the Bureau's operations and procedures; assisting the Director in formulating and enforcing work quality and performance standards for the seven technical sections; addressing complaints and answering correspondence; assisting the Director in matters regarding Building Code amendments, revisions and deletions; coordinating special inspection programs; assisting the Director by meeting with City attorneys and Bureau personnel regarding Bureau litigation; assuming the duties and responsibilities of the Director in his absence; and, in the Director’s absence and upon his request, meeting with various outside groups as the representative of the Bureau of Technical Inspections. See Plaintiff’s Exhibit 3.

14. In addition, Vrdolyak spends a substantial amount of his time as the head of the Iron Section. Director Brick estimates that Vrdolyak spends 85 to 90 percent of his time on Iron Section work; Vrdolyak estimates the proportion to be about 50 to 60 percent.

D. Plaintiffs Employment History

15. After graduating from high school, Vrdolyak served in the United States Navy and Army Air Force before completing one year of study at DePaul University in a pre-law program. Vrdolyak then spent the next several years in the construction trades as foreman, general foreman, job superintendent and project manager. Vrdolyak’s duties as project manager included overall responsibility for all trades on the job, such as electricians, bricklayers, boilermakers, carpenters, laborers, pipefitters, and ironworkers. Vrdolyak’s duties, as project manager, also included reviewing and inspecting all work in progress to ensure that it conformed to the architect’s plans and specifications and the Building Code of the City of Chicago. During the 1960s, Vrdolyak was employed by the State of Illinois as a construction safety inspector. He left that employment in 1969 and returned to private industry.

16. Vrdolyak applied for employment with the City’s Department of Buildings on May 2, 1975. He was employed by that Department from June 4, 1975 to February 1, 1977, as a Structural Iron Inspector. From February 1, 1977 to January 1, 1980, Vrdolyak was employed by the Department as Assistant Chief Iron Inspector. When the Department of Buildings was reorganized into the Department of Inspectional Services, Vrdolyak became the Supervising Iron Inspector and held that position from January 1, 1980 to January 1, 1981. On January 1, 1981, Vrdolyak was appointed Assistant Director of the Bureau of Technical Inspections in the Department of Inspectional Services at an annual salary of $32,772. On January 1, 1982, his salary was raised to $45,240. On January 1,1983, Mr. Vrdolyak’s salary was raised to $47,-508.

17. Prior to his termination on November 4, 1983, Vrdolyak had not received any complaints regarding the performance of his duties. Neither former Commissioner Duggan, nor Director Brick, had ever received information indicating that Vrdolyak was not performing his responsibilities properly.

E. Events Preceding Plaintiffs Termination

18. Plaintiff Peter J. Vrdolyak is the older brother of Edward R. Vrdolyak, Alderman of the 10th Ward of the City of Chicago. Alderman Vrdolyak has been widely portrayed by the Chicago media as one of the principal political opponents of Mayor Washington. During the Mayoral primary campaign of February, 1983, Peter Vrdolyak visibly and actively supported the candidacy of then Mayor Jane M. Byrne. In addition, Peter Vrdolyak has been politically active in the 10th Ward Regular Democratic Organization.

19. On April 12,1983, defendant Harold Washington was elected Mayor of the City of Chicago.

20. On Friday, August 26, 1983, The Daily Calumet published an article entitled “City Lays Off 2,000 Workers: Vrdolyak’s Brother Peter Heads the List,” written by John Kass and Mark Eissanan. According to the article, a source described as a “[Mayor] Washington spokesman” stated that Vrdolyak had lost his job even though formal notice of termination was not received by Vrdolyak until more than two months later. Brick, Vrdolyak’s immediate supervisor, and then Commissioner Duggan both testified that prior to publication of the article neither had received any request from the Mayor’s office regarding Vrdolyak’s work as Assistant Director nor had they received any information regarding the termination of Vrdolyak.

21. In September, 1983, both Commissioner Duggan and Deputy Commissioner Nick Fera were terminated from their positions in the Department of Inspectional Services by the Washington administration. At that time, defendant Manley became Acting Commissioner of the Department.

22. On September 21, 1983, Vrdolyak was interviewed by Rose Macon, a consultant retained by the Washington administration. At the beginning of the interview Vrdolyak was asked if he was related to 10th Ward Alderman Edward R. Vrdolyak. Vrdolyak confirmed that he is the older brother of the Alderman. Macon admitted that, at the time of the interview, she knew Vrdolyak’s brother was reported to be the Mayor’s principal political opponent.

23. Prior to Vrdolyak’s termination, Acting Commissioner Manley believed that he could terminate Vrdolyak because Vrdolyak held an exempt position. In addition, Assistant Commissioner Browning believed that Vrdolyak could be fired for political reasons since his position is exempt and “belongs to the Mayor.” Transcript at 431.

24. On September 23, 1983, Acting Commissioner Manley issued a memorandum directed to the Department’s Section Chiefs and Program Persons which stated, in part:

It shall be the policy of this administration that ability and demonstrated performance will be the sole basis of retention and promotion.

Defendants’ Exhibit 31.

25. On Friday, November 4, 1983, Vrdolyak received from Manley a letter dated November 2, 1983, notifying Vrdolyak that he was terminated effective November 9, 1983, from his position as Assistant Director of Technical Inspections in the Department of Inspectional Services. The letter gives no reason for the termination. The letter indicates that copies were sent to Charles Hunter and Ira Bach of the May- or’s office; William Ware, the Mayor’s Chief Administrative Assistant; James Montgomery, Corporation Counsel; and Charles Pounian, City Commissioner of Personnel.

26. Vrdolyak was not offered a demotion or lateral transfer or given an opportunity to secure any other type of employment with the City. Acting Commissioner Manley testified that he never considered any of these alternatives to termination.

27. On November 7, 1983, Channel 5 television news reporter Art Noonan reported that Acting Commissioner Manley stated the following in regard to Vrdolyak’s termination:

If, indeed, we are going to provide a better service, I think that that office, that individual, that that position can better be served by someone else that is in concert with what my provisions are, with what my aims and applications are for the Department. It has nothing to do with any political implications, identifications, or anything else.

At trial, Manley did not recall giving the statement but admitted that, “[i]t sounds like my language.” Transcript at 258. Manley testified that Vrdolyak was not terminated for budgetary reasons.

28. A total of ten employees, including Vrdolyak, were terminated by Acting Commissioner Manley on November 2, 1983. The nine other employees terminated were: Herman Moses, Director of Licensing, Registration and Permits; Conrad Nicosia, Data Services Administrator; Kenneth Gula, Construction Inspection Supervisor; Stanley Scherr, Supervisor of Administrative Services; Pascal J. Sabino, District Director; Franklin Truesdale, Construction Inspection Supervisor; Leonard A. Waitehes, Records Administrator; Nick O. Spino, District Director; and Anton Hipsky, Staff Assistant. Five of the employees terminated on November 2, 1983, are currently employed by the City. Sabino, Spino, Waitehes, Truesdale and Gula are presently employed by the Department of Inspectional Services.

29. To the extent that any of the foregoing findings of fact are deemed to be conclusions of law, they are hereby adopted as conclusions of law.

II. CONCLUSIONS OF LAW

Based on the foregoing findings of fact, the Court makes the following conclusions of law:

1. This Court has subject matter jurisdiction over the claims asserted in this action pursuant to 28 U.S.C. § 1331 and the “Order Retaining Jurisdiction as to City Exemptions” entered June 20, 1983, in Shakman v. Democratic Organization of Cook County, No. 69 C 2145 (N.D.Ill.1983).

2. Venue properly lies with this Court pursuant to 28 U.S.C. § 1391.

3. The Court has previously dismissed defendants Harold Washington and Charles Pounian from the case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Transcript of Proceedings at 404.

4. Plaintiff Peter J. Vrdolyak, a City employee and registered voter, has standing to bring this suit under the Shakman Decree. See Petition of Richard L. Voytas, 560 F.Supp. 863, 865 (N.D.I11.1983).

A. The Exempt Issue

5. In determining whether a position is properly listed as exempt under Schedule G of the June 20, 1983 Decree, the Court relies upon the “policymaker exception” to the first amendment’s protection of public employees. See Shakman v. Democratic Organization of Cook County, 722 F.2d 1307 (7th Cir.1983) (Petition of Lindsey). A position is properly listed as exempt if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980).

Positions which may require party affiliation often are positions which authorize, either directly or indirectly, “meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.” Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309 (7th Cir.1983) (Petition of Lindsey). Factors which are relevant to this inquiry include: (1) whether the position involves policymaking and requires confidentiality; (2) whether the responsibilities of the position are broadly defined; (3) whether the subject matter of the duties are highly sensitive; (4) whether the nature of the position requires a close working relationship with policymakers; and (5) whether considerations of personal loyalty are appropriate. See generally Petition of Lindsey, supra, 722 F.2d 1307; Petition of Lindsey, 552 F.Supp. 907 (N.D.Ill.1982).

7. The ultimate purpose of the policymaker exception is “to ensure that the first amendment’s protection not interfere with the workings of democratic governments and the ability of duly elected officials to implement their policies.” Petition of Lindsey, supra, 722 F.2d at 1310. It is important, however, “not to confuse the interest of partisan organizations with governmental interests.” Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976). Only the latter will justify use of the policymaker exception. Id.

8. Applying the above standards in this case, the Court is convinced that Vrdolyak’s position as Assistant Director of Technical Inspections is improperly listed as exempt under Schedule G of the June 20, 1983 Decree. Although Vrdolyak occupies a supervisory position of considerable importance to the City, Vrdolyak’s responsibilities in that position have limited and well defined objectives. Cf. Elrod v. Burns, 427 U.S. 347, 368, 96 S.Ct. 2673, 2687, 49 L.Ed.2d 547 (1976). Defendants have failed to establish that party affiliation is an appropriate requirement for the effective performance of the duties of the Assistant Director of Technical Inspections.

9. Although the job description for the Assistant Director of Technical Inspections, on its face, appears to include broadly defined responsibilities, the testimony at trial reveals that the responsibilities are actually quite narrow in scope. For example, Vrdolyak’s input into legislative changes is limited to assisting the Commissioner in complying with his statutory obligation of recommending necessary changes to the Building Code. All employees of the department share this duty. Furthermore, Vrdolyak has little input in the Department’s fiscal policy with the sole exception of recommending fee schedules. Any fee schedule changes, however, must be approved by the Commissioner and the City Council. Finally, Vrdolyak’s position does not involve highly sensitive subject matter nor does it require political loyalty. Vrdolyak was not made privy to confidential investigations regarding alleged bribery, but rather he was merely under a duty to report any information he obtained to the Commissioner. At that point, the City’s Office of Municipal Investigations would investigate the allegations.

10. In summary, defendants have failed to establish that party affiliation is an appropriate prerequisite for the position of Assistant Director of Technical Inspections. Accordingly, the position of Assistant Director of Technical Inspections in the Department of Inspectional Services is improperly listed as an exempt position on Schedule G of the June 20, 1983 Decree.

B. The Political Firing Issue

11. Plaintiff argues that his termination was politically motivated. Defendants argue that Vrdolyak was fired for cause. Specifically, defendants argue that Vrdolyak was terminated from his position for three reasons: (1) Vrdolyak was not functioning as the Assistant Director, but rather was functioning merely as the Chief of the Iron Section; (2) Vrdolyak lacked the necessary formal qualifications for the position in light of Commissioner Manley’s desire to upgrade the professionalism of the Department; and (3) Commissioner Manley lost confidence in Vrdolyak’s abilities when Vrdolyak failed to produce a report on elevators and hoists which Manley requested.

12. In order for an employee to establish a violation of the 1972 Consent Decree’s bar against political firing, the employee must show by clear and convincing evidence that political considerations were a “substantial” or “motivating factor” behind the termination. See Nekolny v. Painter, 653 F.2d 1164, 1167-68 (7th Cir.1981); McGuire v. City of Chicago, 592 F.Supp. 56, 58 (N.D.Ill.1984). If the employee meets this burden, the burden of proof then shifts to the defendant to prove that the termination would have occurred even without political considerations due to valid, nonpolitical reasons for the firing. Nekolny, supra, 653 F.2d at 1167.

13. In this case, Vrdolyak has established by clear and convincing evidence that political considerations were a motivating factor behind his discharge. Such motivation can be reasonably and properly inferred from the evidence produced at trial and summarized below. See Petitions of Huels and Brennan, No. 69 C 2145, slip op. at 5, (N.D.Ill. Feb. 11, 1981).

14. Defendants were aware of Vrdolyak’s active involvement in the 10th Ward Regular Democratic Organization and his active support for former Mayor Jane M. Byrne. Furthermore, defendants were aware that Vrdolyak is the older brother of Edward R. Vrdolyak, Alderman of the 10th Ward and widely portrayed a principal political opponent of Mayor Washington.

15. On September 21, 1983 (slightly over one month prior to Vrdolyak’s termination), Vrdolyak was interviewed by a consultant employed by the City and asked specifically if he was related to Alderman Edward R. Vrdolyak. At that time, the consultant and defendants believed that Vrdolyak could be fired for political reasons since his position was listed as exempt and “belonged to the Mayor.”

16. On September 23, 1983, Acting Commissioner Manley issued a memorandum which stated, in part:

It shall be the policy of this administration that ability and demonstrated performance will be the sole basis of retention and promotion.

Defendants’ Exhibit 31. (emphasis supplied) Given the fact that defendants have failed to establish that Vrdolyak’s “ability and demonstrated performance” were anything less than “superior,” it can reasonably be inferred that Vrdolyak’s termination was motivated for reasons other than those stated in the September 23 Memorandum,

17. Vrdolyak was not offered a demotion or given an opportunity to secure other employment with the City. The termination letter fails to articulate any reason for Vrdolyak’s termination.

18. The only explanation for Vrdolyak’s termination offered by Acting Commissioner Manley at the time of the termination was that Vrdolyak’s position “can be better served by someone else that is in concert with ... what my aims and applications are for the Department.”

19. Based on the foregoing, the Court is convinced that Vrdolyak has sustained his burden of demonstrating by clear and convincing evidence that his termination was politically motivated.

C. The Termination “For Cause” Issue

20. Since Vrdolyak has sustained his burden of showing his termination was politically motivated, the burden shifts to defendants to prove Vrdolyak would have been terminated for cause even absent the political motivations. Defendants have failed to sustain their burden on this point.

21. Defendants claim that Vrdolyak failed to perform the duties of Assistant Director, but rather performed solely as Chief of the Iron Section. This contention is based primarily upon the testimony of Deputy Commissioner William Browning. Browning, however, admitted that he neither reviewed Vrdolyak’s performance evaluations nor talked with Vrdolyak prior to his termination. Browning testified that he believed Vrdolyak was failing to perform the duties of Assistant Director. Browning based that belief upon the fact that in the Director’s absence, Browning’s written communication to the Director would be answered directly by the section Chiefs and not by Vrdolyak. Browning admitted, however, that he did not actually know whether his correspondence was reviewed and acted upon by Vrdolyak and, consequently, he did not know whether or not Vrdolyak performed his duties as Assistant Director.

22. On the other hand, Vrdolyak testified as to the performance of his duties as Assistant Director. Specifically, Vrdolyak testified that he assisted the Director in the day-to-day performance of his duties, that he met with public groups as the Department’s representative, that he suggested changes to the Building Code, that he undertook special assignments such as the inspection of the Chicago Hyatt House, and that he met with attorneys concerning court cases. Vrdolyak also testified that prior to his termination, whenever he acted in the Director’s absence, all correspondence would be brought to him by the Director’s secretary and that he would review it and direct it to the appropriate section chiefs and consult with them personally regarding any problems that might arise.

23. Former Commissioner Duggan testified that he recommended Vrdolyak for the position of Assistant Director and that he never received any information that Vrdolyak was not performing his job satisfactorily. Director Brick testified that Vrdolyak replaced Brick in Brick’s absence whenever directed to do so and that Vrdolyak performed his duties satisfactorily. Brick also testified that, although he was Vrdolyak’s immediate superior, no one had ever contacted him regarding Vrdolyak’s termination and that he first learned of the termination in the newspaper in early November, 1983. Finally, the fact that Vrdolyak assumed “dual” positions of Assistant Director and Iron Chief does not justify termination for cause.

24. Based on all the foregoing, the Court finds that Vrdolyak did in fact perform his duties as Assistant Director, that he also performed essential and needed services with respect to supervising the Iron Section. Accordingly, termination for cause has not been demonstrated by defendants on the ground that Vrdolyak failed to perform the duties that were assigned.

25. The second justification advanced by defendants in support of their argument that Vrdolyak was terminated for cause is that he was unqualified for the position of Assistant Director in light of Acting Commissioner Manley’s desire to upgrade the professional qualifications of the Department. Specifically, both Manley and Browning testified on behalf of defendants that they desired to replace Vrdolyak with a structural engineer or a person with equivalent qualifications. The record, however, does not support defendants’ argument. First, with one exception, no one employed in the top ranks of the Department has the type of formal qualifications defendants purport to be seeking. The former Commissioner and Deputy Commissioner Nolan have a police background. Both Acting Commissioner Manley and Assistant Commissioner Browning admit they lack formal technical training. Director Brick, like Vrdolyak, has practical experience in construction, but lacks Vrdolyak’s familiarity with large scale projects. Only Deputy Commissioner Kason is an engineer. Second, since Vrdolyak’s termination, defendants have not hired a structural engineer, architect or similarly qualified person.. No such formally trained persons have been added to the Department. Third, although defendants argue that they were concerned with Vrdolyak’s qualifications, both Manley and Browning admit they never examined Vrdolyak’s personnel file, and Browning admits that neither he nor Manley even knew at the time of Vrdolyak’s termination whether or not Vrdolyak was an engineer.

26. There is evidence in the record of Vrdolyak’s extensive practical experience in the construction industry including particularly his experience as a project manager and his prior experience as an inspector. Defendants fail to offer any evidence that formal training is necessary for the position of Assistant Director or that Vrdolyak was hindered in the performance of his duties by the lack of formal training.

27. Based on all the foregoing, the Court specifically finds that defendants have failed to demonstrate that plaintiff was properly terminated for cause on the ground that he lacked sufficient formal qualifications for the job Of Assistant Director of Technical Inspections.

28. The third argument advanced by defendants in support of their contention that Vrdolyak was terminated for cause is .that Vrdolyak disregarded his duties by failing to submit a report allegedly requested by Acting Commissioner Manley. Manley testified that sometime in September or October, 1983, he received a complaint that inspectors from the Iron Section were making selective inspections on hoists for the Olympia Center project. Manley testified that he requested Vrdolyak to prepare and submit a report on the number of elevators serving buildings under construction and the frequency with which they were inspected. Manley further testified that he never received a report from Vrdolyak and that this affected his decision to terminate plaintiff.

29. Vrdolyak, however, testified that Manley never communicated the charge of selective inspections, and that Manley did not request a report regarding hoists. Vrdolyak stated that Manley only asked for a summary of the functions of the Iron Section.

30. On cross-examination, Manley testified that he asked for the report in mid-October, only two weeks before the termination letter dated November 2, 1983; that he did not state a specific date for submission of the report; that he did not state it was an urgent matter; and that he had no subsequent communication of any kind with Vrdolyak about the report.

31. The Court finds it unnecessary to resolve the conflict of testimony regarding the subject matter of the report since, even assuming Manley’s testimony to be accurate, defendants have failed to demonstrate that Vrdolyak was properly terminated for cause on the ground that he failed to submit a report, the urgent or timely need for which was never communicated to him.

32. To the extent that any of the foregoing conclusions of law are deemed to be findings of fact, they are hereby adopted as findings of fact.

III. CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:

1. The position of Assistant Director of Technical Inspections in the Department of Technical Inspections is improperly listed as exempt on Schedule G of this Court’s June 20, 1983 Consent Decree.

2. Plaintiff Peter Vrdolyak has sustained his burden of proving by clear and convincing evidence that political considerations were a motivating factor in his termination.

3. Defendants have failed to establish that Vrdolyak was terminated for cause.

4. Final judgment is hereby entered in favor of plaintiff and against defendants.

5. Plaintiff is entitled to recover against defendants costs and reasonable attorneys’ fees. Plaintiff is hereby directed to file within 14 days of entry of this order his petition for costs and attorneys’ fees.

6. Pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, the Court reserves the right to amend the above findings and conclusions or to make additional findings and conclusions upon motion of either party made no later than ten days from entry of this order.

IT IS SO ORDERED.

      . From January, 1980 to September, 1983, the Commissioner was William Duggan. Since September, 1983, defendant Harry Manley has been Acting Commissioner.

      . The Deputy Commissioners are presently Thaddeus Kason and Samuel Nolan. Before September, 1983, Nick Fera was Deputy Commissioner in Kason’s place.

      . William Browning has been Assistant Commissioner since 1980.

      . Although the Court admitted plaintiff's Exhibit 125 (a newspaper article regarding a proposed layoff of 2,050 City employees in August of 1983) into evidence for the limited purpose of showing the state of mind of the defendants, the Court need not rely upon the article in finding that Vrdolyak's termination was politically motivated.