919 F.2d 1299 (7th Cir. 1990), 89-3610, Brown v. City of Lake Geneva

Docket Nº:89-3610.
Citation:919 F.2d 1299
Party Name:Christopher Jay BROWN and Ruth Anne Brown, Plaintiffs-Appellants, v. CITY OF LAKE GENEVA and Audrey Milliette, Defendants-Appellees.
Case Date:December 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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919 F.2d 1299 (7th Cir. 1990)

Christopher Jay BROWN and Ruth Anne Brown, Plaintiffs-Appellants,


CITY OF LAKE GENEVA and Audrey Milliette, Defendants-Appellees.

No. 89-3610.

United States Court of Appeals, Seventh Circuit

December 13, 1990

Argued Sept. 14, 1990.

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Robert N. Meyeroff, Milwaukee, Wis., for plaintiffs-appellants.

Charles H. Bohl, Frisch & Dudek, Milwaukee, Wis., for defendants-appellees.

Before CUDAHY, POSNER and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

The State of Wisconsin provides municipalities the opportunity to supplement their allotment of liquor licenses if certain museum-restaurants within their borders apply. Christopher and Ruth Brown applied to the City of Lake Geneva for just such a liquor license. The Browns owned a bed and breakfast in Lake Geneva, replete with a restaurant and sufficient artwork to be called a "living museum" by its owners. Unfortunately, one of their competitors belonged to Lake Geneva's Common Council, the body responsible for the grant or denial of liquor licenses. The council passed an ordinance clarifying and supplementing the statutory requirements for this license, thereby causing the Browns to withdraw their application. They then sued Lake Geneva and the interested council member for constitutional and state law violations. The district court dismissed the complaint and we affirm.


On appeal, we must "accept as true all material allegations in the complaint, and construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Section 125.51(4)(m) of the Wisconsin statutes provides that a municipality may issue "Class B" liquor licenses to restaurants within a museum containing permanent, public exhibition space at least three times the area of the restaurant, so long as the museum building was built before the State of Wisconsin was eight years old. 1 Prior to the Browns, no restaurant had ever applied to Lake Geneva for a license under this statute.

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The Browns own a mansion in Lake Geneva which they have converted to a bed and breakfast inn, complete with a restaurant already possessing a beer and wine license. The building was constructed in 1856, during the first eight years after Wisconsin's admission to statehood in 1848. They have furnished the inn with a generous supply of artwork, both in its guest rooms and hallways; as such, the Browns refer to their inn as a "living museum." The Browns contend, and we must accept as true, that given dictionary definitions of the words in section 125.51(4)(m), their inn would qualify for a liquor license should Lake Geneva choose to issue one. Another Lake Geneva bed and breakfast is owned by Audrey Milliette, incidentally a member of the Lake Geneva Common Council.

In July 1988 the Browns applied for a section 125.51(4)(m) liquor license. After the application won approval from the City Plan Commission, it went before the City Council. While the council withheld action on the license, Milliette, chair of the license and judicial committee, drafted Ordinance 630 "for the orderly and efficient determination of the eligibility of applicants for [section 125.51(4)(m) ] licenses." 2 The ordinance defined the area to be considered restaurant or museum space, and prescribed the hours such museum-restaurants were permitted to keep. 3 Not surprisingly, upon passage of this ordinance, the Browns withdrew their application, conceding that under Ordinance 630's definitions their inn could not qualify for a section 125.51(4)(m) license.

The Browns then filed an action in federal district court under 42 U.S.C. section 1983, claiming that the ordinance violated their constitutional rights to equal protection and due process under the fourteenth amendment. In a pendent claim, they asserted that Ordinance 630 violated Wisconsin law. Defendants filed a motion to dismiss, which was granted.


In order to state a claim under 42 U.S.C. section 1983, plaintiffs must show (1) action taken under color of state law, bringing about (2) a deprivation of a right protected by the Constitution. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). There is no question here that plaintiffs have alleged action taken under color of state law. However, they must further allege deprivation of a constitutional right. The Browns assert that the new legislation

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violated their rights to equal protection and due process.

  1. Equal Protection

    Where neither an invidious classification nor a deprivation of a fundamental interest is alleged, the equal protection clause requires only that the classification bear some rational relationship to legitimate governmental ends. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 3257, 87 L.Ed.2d 313 (1985). Here, plaintiffs cannot allege any of the classifications that traditionally receive some heightened level of scrutiny. Id. at 440-41, 105 S.Ct. at 3254-55 (listing those classifications receiving heightened scrutiny to include race, alienage, national origin, gender and illegitimacy). Nor have the Browns presented an argument as to why this classification should receive closer...

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