United States District Court, D. Vermont
DONALD R. ROUTHIER and MICHELLE ROUTHIER, Plaintiffs,
WILLIAM GOGGFNS and MICHAEL WELCH, Defendants.
OPINION AND ORDER ON MOTION TO DISMISS (DOC.
Geoffrey W. Crawford, Judge
Routhier, the owner of a tavern in Barre, Vermont, and
Michelle Routhier, a bartender at the tavern, have sued
William Goggins and Michael Welch, agents of the Vermont
Department of Liquor Control. The Routhiers allege that
Goggins and Welch violated 10their civil rights by conducting
a warrantless administrative search and by seizing a video
recording and video player that were part of the tavern's
security system. Defendants have moved to dismiss the amended
complaint for failure to state a claim. (Doc. 21.) The court
held a hearing on the motion on October 11, 2016.
to the complaint, Donald Routhier owns Jerry's Sports
Tavern in Barre, Vermont, and holds a liquor license issued
by the Department of Liquor Control. (Doc. 19 ¶ 5.) On
March 21, 2016, without any prior notice, Welch entered the
tavern and demanded that Michelle Routhier, who was working,
turn over the "electronically stored video recording of
an incident" that occurred at the tavern on March 11.
(Id. ¶¶ 15-16, 27.) The complaint does not
specify the nature of the "incident." Michelle called
Donald to see how she should respond. (Id. ¶ 16.)
Over the phone, Donald asked Welch for twenty-four hours to
consult with an attorney before responding to the request.
(Id. ¶ 17.) Welch then left the tavern without
the video recording. (Id.)
accompanied by, returned to the tavern later that day, around
3:30 p.m. (Doc. 19 ¶ 19.) Welch and Goggins
"aggressively entered the bar" and again demanded
that Michelle turn over the video recording. (Id.
¶ 20.) They escorted Michelle to the "kitchen
area" of the bar and "demanded that she immediately
surrender the video and video player that was part of the
security system in place." (Id. ¶ 21.)
Michelle asked the men to produce legal authorization for
seizing the recording. (Id. ¶ 22.) They
informed her that they did not need legal authorization
because the Routhiers were licensees of the Department of
Liquor Control. (Id.)
called Donald again and handed the phone to Goggins. (Doc. 19
¶ 23.) Over the phone, Donald again requested
twenty-four hours to "consult with an attorney before
responding to their demand" for the recording.
(Id. ¶ 24.) Goggins told Donald that the agents
had authority to seize the recording now and would not wait
for him to consult an attorney. (Id. ¶ 25.)
"Welch and Goggins then immediately . . . tore the
videotape and video player from the wall, . . . seizing the
same and rendering the entire security system
inoperable." (Id. ¶ 26.) It cost Donald
$400 to buy a new security surveillance system. (Id.
filed their initial complaint on April 15, 2016, three and a
half weeks after the incident. (Doc. 1.) In their amended
complaint, Plaintiffs assert several federal constitutional
claims and related state-law claims. Counts I and II allege
that Defendants violated Donald's Fourth Amendment rights
in searching the tavern's electronic surveillance system
and seizing the video recording and video player without
lawful justification. (Doc. 19 ¶¶ 32-46.) Counts
III and IV allege that Defendants' conduct also violated
Donald's right to "procedural due process" and
his "substantive property rights without due
process." (Id. ¶¶ 47-51.) Count V
alleges that Defendants' conduct violated Donald's
right under the Vermont Constitution to be free from
unreasonable search and seizure and Count VI is a claim for
replevin of the videotape and video player. (Id.
¶¶ 52-62.) Two more counts, both titled "Count
VII, " assert a claim of negligent infliction of
emotional distress on behalf of Michelle and a general claim
of gross negligence on behalf of both Plaintiffs.
(Id. ¶¶ 63-71.) Count VIII is a request
for punitive damages. (Id. ¶¶ 72-73.)
have moved to dismiss the complaint, arguing that most counts
fail to state a claim and that the court lacks jurisdiction
over one of the state-law counts. (Doc. 21.)
evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court accepts all facts as alleged in
the complaint and "draw[s] all reasonable inferences in
the plaintiffs favor. Doe v. Columbia Univ., 831
F.3d 46, 48 (2d Cir. 2016). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Fourth Amendment Claims
most circumstances, the Fourth Amendment requires a state
actor to obtain a warrant based on probable cause before
conducting a search. Kentucky v. King, 563 U.S. 452,
459 (2011). There are exceptions to this rule, including an
exception for administrative searches of the premises of a
closely regulated business. City of Los Angeles v.
Patel, 135 S.Ct. 2443, 2452 (2015). But while
administrative searches maybe conducted without a warrant,
they are not exempt from the Fourth Amendment's
requirement that they be reasonable. New York v.
Burger, 482 U.S. 691, 702 (1987); Bruce v.
Beary, 498 F.3d 1232, 1243 (11th Cir. 2007)
("[Administrative searches are an exception to the
Fourth Amendment's warrant requirement, but they are not
an exception to the Fourth Amendment's requirement for
Burger, the Supreme Court offered three criteria for
determining when a warrantless administrative search is
reasonable. 482 U.S. at 702-03. These criteria are: first,
whether there is a "substantial government interest that
informs the regulatory scheme"; second, whether
warrantless inspections are "necessary to further the
regulatory scheme;" and third, whether the
administrative scheme's "inspection program . . .
provides a constitutionally adequate substitute for a
warrant" by both "advis[ing] the owner of the
commercial premises that the search is being made pursuant to
the law and has a properly defined scope" and
"limit[ing] the discretion of the inspecting
officers." Id. (internal quotation marks,
alterations, and citations omitted); see also Anobile v.
Pelligrino, 303 F.3d 107, 117-18 (2d Cir. 2001). An
administrative search under a scheme that meets these
criteria nonetheless can be unreasonable under the Fourth
Amendment if it exceeds its statutorily authorized scope.
Club Retro, L.L.C v. Hilton, 568 F.3d 181, 201 (5th
Cir. 2009); Bruce, 498 F.3d at 1248; United
States v. Knight, 306 F.3d 534, 536 (8th Cir. 2002).
court agrees with Defendants that the sale of alcohol in
Vermont is a closely regulated industry for which warrantless
administrative searches are permitted. The courts have long
recognized that regulation of the production, distribution,
and sale of alcohol is informed by a substantial government
interest, see Colonnade Catering Corp. v. United
States, 397 U.S. 72 (1970), and Vermont is no exception.
See In re DLC Corp., 167 Vt. 544, 547-48, 712 A.2d
of the sale of alcohol in Vermont is comprehensive. The
liquor control statutes prohibit the importation,
distribution, or sale of alcohol except as authorized, 7
V.S.A. § 61; establish a licensing regime, id.
§§ 221-42; authorize the Liquor Control Board to
enforce the statutes and promulgate regulations, id.
§§ 104, 108; and authorize imposition of a fine or
suspension or revocation of a license if a licensee fails to
abide by applicable laws and regulations, id. §
236. The Liquor Control Board has also issued detailed
"General Regulations" by which licensees must
abide. 14-1 Vt. Code R. § 3. These regulations govern
many aspects of operating a licensed premises. They also
require licensees to allow inspection of their licensed
premises and records at any time. Id. § 3(7).
inspections also may be "necessary to further the
regulatory scheme." Unannounced inspections are
essential to ensuring that regulations prohibiting the sale
of alcohol to minors or those already intoxicated are
strictly enforced. See Crosby v. Paulk, 187 F.3d
1339, 1346-47 (11th Cir. 1999).
regulatory scheme also places licensees on notice that they
are subject to warrantless administrative search and limits
who may conduct the search and what locations and items are
subject to search:
Licensees and licensee employees shall allow at any time, a
member of the Liquor Control Board, the Commissioner, and/or
any of their assistants or Investigators to examine the
licensed premises as well as all records, papers, stock,
merchandise or equipment in reference to the operation of the
license, and shall retain such items for inspection. All
licensees shall keep on their licensed premises for a period
of two years a complete record covering the operation of
their license, including all invoices covering the purchase
of alcoholic beverages and/or tobacco, and all financial
records including but not limited to daily receipts for the
sale of alcohol and/or tobacco. If any licensee has more than
one licensed location, the licensee may keep all records in
one centralized business location in the State of Vermont and
the Department shall be notified in writing, in advance, ...