Abe's Free Flow, Inc. v. City of Mishawaka, Ind.

• Decision Date: 11 March 1999
• Docket Number: No. 3:97-CV-242 RM.,3:97-CV-242 RM.
• Citation: 55 F.Supp.2d 908
• Parties: ABE'S FREE FLOW, INC., Plaintiff, v. CITY OF MISHAWAKA, INDIANA, Defendant.
• Court: U.S. District Court — Northern District of Indiana

55 F.Supp.2d 908

ABE'S FREE FLOW, INC., Plaintiff, v. CITY OF MISHAWAKA, INDIANA, Defendant.

No. 3:97-CV-242 RM.

United States District Court, N.D. Indiana, South Bend Division.

March 11, 1999.

COPYRIGHT MATERIAL OMITTED

Donald E Wertheimer, South Bend, IN, for plaintiff.

Lynn Elizabeth Arnold, Edward N Kalamaros & Associates, South Bend, IN, John P Gourley, Mishawaka, Peter J Agostino, Hunt Suedhoff Borror and Eilbacher, South Bend, IN, for defendant.

MEMORANDUM & ORDER

MILLER, District Judge.

This cause is before the court on the motion of defendant City of Mishawaka, and the cross-motion of plaintiff Abe's Free Flow, for summary judgment. Abe's alleges that the City discriminated against it and violated antitrust laws by passing an ordinance dealing with the inspection of new sewer lines. The City maintains that no constitutional violations occurred by its enactment of the sewer ordinance and that it is exempt from the antitrust laws.

Facts

The parties have stipulated to the following facts: Before a newly constructed sewer system may be connected to the Mishawaka Utilities public sewer system, a permit is required and approval from the City is necessary. New systems containing 8" or larger sewers also require a video inspection of the system to obtain a permit and approval from the City. Before the City's December 1995 enactment of Sewer Use Ordinance 4077 ("the Ordinance"), property owners who sought to connect new 8" or larger sewers to the Mishawaka Utilities public sewer system could contract with a qualified private contractor to perform a video inspection of the new sewer system. Abe's and other private companies provided video inspection services for new sewer lines. After the Ordinance's enactment, property owners who want to connect newly constructed 8" or larger systems to the Mishawaka Utilities system must obtain a video inspection of the new sewer system from the City or its authorized agent.

Section 1002(C) of the Ordinance, as amended on July 15, 1996, specifically provides:

All newly constructed sanitary sewers 8" or larger shall be video inspected by the City Sewer Maintenance Department or their authorized agent. Fees for video inspection shall be paid to the City Engineering Department at the time of permit application for deposit in the Wastewater Department of Mishawaka Utilities in accordance with the following schedule:

                1,000 Linear Foot Minimum        $550.00
                1,000 Linear Foot & Greater      $0.55 per Lineal Foot
                

Projects or services performed for Governmental units may be exempt from these fees.

Abe's maintains that the Ordinance violates the Fourteenth Amendment's Due Process Clause, because Abe's is denied its liberty interest to pursue a lawful occupation and its freedom to contract, that the Ordinance amounts to a deprivation of equal protection as guaranteed by the Fourteenth Amendment, that the Ordinance violates federal antitrust laws, and that the Ordinance violates certain provisions of the Indiana Constitution and various Indiana statutes. The City seeks summary judgment as to all of Abe's claims. Abe's has filed its own summary judgment motion in response.

Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) "mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which the party will bear the burden of proof at trial." "Where the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... there can be no `genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."

Although the moving party must initially identify the basis for its contention that no genuine issue of material fact exists, the nonmoving party cannot rest on his pleadings, but must produce his own evidence. Rule 56(e) requires that the nonmoving party who bears the burden of proof on an issue allege specific facts showing that there is a genuine issue for trial by his own affidavits or by the depositions, answers to interrogatories, and admissions on file ....

In considering whether there are any genuine issues of material fact we view the record and extract all reasonable inferences from the evidence in the light most favorable to the nonmoving party. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Where a fact is disputed, the nonmoving party must show that the disputed fact is material under the applicable law. The applicable law will dictate which facts are material. Only disputes that could affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.

National Soffit & Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264-265 (7th Cir.1996) (citations omitted).

Occupational Liberty Interest Under the Due Process Clause

Abe's asserts that the Ordinance has deprived it of its recognized constitutional liberty interest to carry on a lawful occupation: providing video inspections of new sewer systems. Abe's claims that because it no longer can contract with sewer construction contractors to provide video inspections for newly constructed sewers in Mishawaka, it has been deprived of much more than a "specific job." Abe's maintains that it has "a legitimate expectation of the liberty to pursue the lawful occupation of performing video sewer inspections in the City of Mishawaka."

The City argues that passage of the Ordinance in question did not violate the Fourteenth Amendment's Due Process Clause. The City cites Wroblewski v. City of Washburn, 965 F.2d 452 (7th Cir.1992), for the proposition that the Fourteenth Amendment secures the right to pursue a calling or occupation, but not the right to a specific job. The City admits that the Ordinance effectively excludes Abe's from a specific job, but maintains that the Ordinance has not excluded Abe's from pursuing its occupation.

The concept of liberty exercised through the Fourteenth Amendment includes the liberty to pursue an occupation or profession. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wroblewski v. City of Washburn, 965 F.2d 452 (7th Cir.1992). While the "concept of liberty in Fourteenth Amendment jurisprudence has long included the liberty to follow a trade, profession, or other calling[, t]his liberty must not be confused with the right to a job." Lawson v. Sheriff of Tippecanoe County, Ind., 725 F.2d 1136, 1138 (7th Cir.1984). "It stretches the concept too far to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains as free as before to seek another." Board of Regents v. Roth, 408 U.S. at 575, 92 S.Ct. 2701. Thus, state action that merely excludes a person from one particular job does not thereby violate the due process clause. Bernard v. United Township High School Dist. Number 30, 5 F.3d 1090, 1092 (7th Cir.1993).

Abe's complaint alleges that it is engaged in the plumbing business, the business of providing video sewer inspection services for sewer construction contractors, and other similar and compatible business activities in Mishawaka and surrounding areas. Abe's does not claim that it can no longer participate in any activities of a plumbing business, nor does it claim that it cannot participate in the business of videotaping sewer lines. Abe's claim specifically relates to videotaping new sewer lines, and that activity is but one job within the occupation of a plumbing business. The Ordinance has not caused a complete deprivation of Abe's occupation.

A different analysis governs a substantive due process claim of deprivation of occupational liberty. "A restriction on a form of liberty not explicitly codified in the Bill of Rights or singled out by the courts for special protection under such rubrics as `right to privacy' and `fundamental rights' violates the due process clause only if utterly unreasonable — that is what `arbitrary' means in this setting." Wroblewski v. Washburn, 965 F.2d at 458 (quoting Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir.1990)) Thus, a law violates the Fourteenth Amendment only if the law's opponent demonstrates that the law is arbitrary and unreasonable and that there is no rational basis for its enactment.

Abe's concedes that "[t]he City has a legitimate purpose in ensuring that newly constructed sewers meet city standards," but contends that the Ordinance "is not rationally related to the City's interest in ensuring that newly constructed sewers meet the standards of the Mishawaka municipal sewer system because private free market providers of video sewer inspections services, including [Abe's], are capable of providing video inspections of new 8" or larger sewer connections to be connected to the Mishawaka municipal sewer system of a quality sufficient to ensure that newly constructed sewers meet the standards of the Mishawaka municipal sewer system." Abe's concludes that the City's actions in passing the Ordinance arbitrarily and capriciously deprived Abe's of its liberty interest.

The City maintains that enactment of the Ordinance was clearly within reason and was not arbitrary. The City claims that it has an interest in the reliability of inspections of new sewer systems because once a system is connected to the Mishawaka Utilities public system, the City is solely responsible for its maintenance. Any defects in...