Sloppy Tuna Bar Goes on Offensive in Court Action

As a clampdown on what Montauk residents have described as out-of-control partying in their hamlet continues this summer, Drew Doscher, an owner of the Sloppy Tuna in Montauk, a focus of numerous complaints, has sued East Hampton Town and Thomas Baker, a town fire marshal, for $2 million in damages.

The suit seeks $1 million from the town and $1 million from Mr. Baker for “intentional government overreaching and misconduct” in 2012, when Mr. Doscher and other partners in the club were cited for exceeding occupancy limits, and the town tried, and failed, to obtain a court order to shut the Sloppy Tuna down.

The lawsuit, filed Aug. 3 on Mr. Doscher’s behalf by Lawrence Kelly, a Bayport attorney who also represents the Memory Motel in Montauk and other East Hampton entities, claims that actions by the town and Mr. Baker violated Mr. Doscher’s Constitutional rights of freedom of association, freedom of speech, and rights to due process and equal protection, and caused economic loss and suffering.

When Mr. Doscher and his partners obtained a building permit for renovations to the club in March 2012, the legal occupancy of the building was set at 263 — itself intentionally lower than what should have been allowed, the lawsuit claims.

Mr. Kelly wrote that when Mr. Baker, in his capacity as fire marshal, later informed Mr. Doscher, who he said spent more than $1 million on the renovations, that the building’s new occupancy maximum was 99 people, it was “an intentional deprivation” of the landowner’s due process and vested property rights.

The higher occupancy limit, set under a previous certificate of occupancy issued in 2006, should have continued, the lawsuit says.

The suit also charges that the town failed to provide feedback to the club owners on their building plans, and that Mr. Baker failed to inform them that the New York State Uniform Building Code held sway over occupancy numbers and allows for an appeals process regarding that figure.

The lawsuit claims that the town, under former Supervisor Bill Wilkinson’s administration, joined forces with the buyer of an oceanfront lot adjacent to the Sloppy Tuna and that the reduced occupancy limit grew from the town’s cooperation with him.

The man “got a discount on a beach property because it was situated next to a nightclub,” Mr. Kelly wrote in the lawsuit, quoting a comment made at a 2012 town board meeting by John Behan of Montauk, a former New York State assemblyman who said that “a neighbor complaining of the operations of a nightclub at the location . . . is like someone moving in next to a ranch and complaining about the smell of horseshit.”

The town, the lawsuit says, “looked to label Drew Doscher as not cooperative, unwilling to comply with their arbitrary and illegal occupancy limits, and otherwise sought to paint Drew Doscher and the Tuna nightclub as a rogue operation illicitly allowing untold numbers of nightclub visitors to operate in a way which bothered the poor unfortunate commercial real estate broker from Manhattan, who, by dint of some magical fairy dust, found himself on an investment property next to a nightclub.”

  The lawsuit takes issue as well with the town’s noise ordinance threshold for acceptable decibel levels and the way that noise levels were measured, noting that ambient noise levels at the club — the sound of the ocean surf, traffic, wind, and people talking — would themselves exceed the threshold, without music playing. With East Hampton Town officials redoubling efforts to ensure that bars, restaurants, and clubs adhere to town codes, the club has received at least nine noise citations this summer.

The town “followed a custom and practice of seeking to make any First Amendment expression, including the playing of music, illegal,” the lawsuit says.

The Sloppy Tuna was shut down for a time on Aug. 4, 2012, according to the lawsuit, when Mr. Baker found it over-occupied, and it was found that the club did not have a town music entertainment permit for live music.

However, the lawsuit says, it had already been established that the music entertainment permit requirement was not applicable to businesses designated as “nightclubs” under the town code, such as the Sloppy Tuna.

Nonetheless, the town sought, and failed, to obtain a temporary restraining order from the State Supreme Court shutting the bar down on that basis, along with the over-occupancy.

That led to a rally of about 80 Sloppy Tuna supporters who ferried to a town board meeting that year en masse, in black Escalades, wearing red T-shirts with the slogan “Tunited We Stand,” to protest. While they accused the town board at the time of targeting the club, Mr. Wilkinson, then town supervisor, announced that he had “sat with [the owners] and said, we will do whatever we can to help you create that place.”

Mr. Doscher acknowledged the meeting, but said at the time that “something changed over the last year” and that he felt there was a “personal vendetta.”

The lawsuit filed this summer alleges that, in the Sloppy Tuna’s case, the original occupancy limit was set using a strict standard to calculate the number of people allowed, while, for other establishments, including Gurney’s Inn and the Ross School, according to the lawsuit, more liberal methods were used.

The lawsuit notes that in 2012 the four individual investors in the business were named in the over-occupancy summons rather than issuing the citation to the limited-liability company that owns the Sloppy Tuna.

That, Mr. Kelly claimed in an email, was “a violation of clearly established law with a malign purpose” — described in the lawsuit as “to misuse perceived government power to raise the prospect of damage to the investor’s other and main sources of income, their work in the financial investment industry. . . .”

Naming Mr. Doscher in the citation, the lawsuit claims, was an attempt to “intimidate, harass, and annoy” him and the other owners who are licensed stockbrokers, which requires them to disclose to federal and state regulators if they are “charged with certain offenses,” according to the lawsuit.

Subsequently, two of the investors, “in fear of their investing industry status in the face of this local government misconduct,” divested themselves of the business, the lawyer wrote.

In a recent email to Supervisor Larry Cantwell, which was provided to the press by its author, Mr. Doscher said that “we have a target on our back.” He has hired former East Hampton Town Police Chief Ed Ecker as a consultant.

“Even after Supervisor Wilkinson attacked me in 2012 and lost, he asked if he could use me as one of the four economic engines of Montauk. . . .” Mr. Doscher wrote. The club was cited in a report that Mr. Wilkinson submitted, without the knowledge or approval of the other members of the town board, to the Army Corps of Engineers to help convince it to build a seawall in downtown Montauk.

Mr. Wilkinson, Mr. Doscher wrote in the email, “was caught . . . hiding in the dunes in 2012 as if he was deriving some sick pleasure,” with “no warrant,” and “just shut down my operations and decided to unilaterally change my occupancy number.”

The club owner said he “turned the other cheek” and provided his financial statistics when asked, for the economic analysis the supervisor had prepared.

In recent years, Mr. Doscher said he has contributed to the community by donating to numerous causes, including helping to pay for the Montauk fireworks and providing landscaping around the public restrooms across from the club. He said he recently raised $14,000 for the Montauk Fire Department, which includes his own $10,000 donation.

“This lawsuit deals with 2012, but it is an important piece of the historical record in East Hampton Town, as it provides some balance to the simple white-hat-black-hat scenarios which have become all too common this summer,” Mr. Kelly wrote in an email this week. “Government can overreach, and the Constitution provides limits beyond which state actors proceed at their own risk.”

In representing the Memory Motel, against which the town has also unsuccessfully sought a court restraining order over an outdoor bar area in its parking lot, Mr. Kelly has raised similar issues, describing a meeting among its owners and town officials in 2010 at which details of the fenced-in outdoor area were agreed upon. The maximum occupancy limit that Mr. Baker issued for the Memory’s outdoor area, according to court documents, and “revenue from the outside bar and area was a substantial factor” considered when Mr. Kelly’s client purchased the property for $1.8 million in 2012.

The Memory Motel operated with the outside portable bar and temporary fence in place in the summers of 2012 and 2013, but last year, with a new administration in place, the town sought an injunction against the bar without success.