Asher Investments, Inc. v. Cincinnati

Decision Date01 August 1997
Docket NumberNo. C-960687,C-960687
Citation701 N.E.2d 400,122 Ohio App.3d 126
PartiesASHER INVESTMENTS, INC. et al., Appellants, v. CITY OF CINCINNATI et al., Appellees.
CourtOhio Court of Appeals

Manley, Burke, Lipton & Cook, Timothy M. Burke, W. Kelly Lundrigan and Rhonda S. Frey, Cincinnati, for appellants.

Fay D. Dupuis, City Solicitor, and Mark Yurick, Assistant City Solicitor, Cincinnati, for appellees.

PAINTER, Presiding Judge.

In 1990, Danny Asher, sole owner and president of Asher Investments, Inc., opened "Prime Time," a nightclub in Clifton near the University of Cincinnati. Asher and Asher Investments, Inc. are the plaintiffs-appellants. For convenience, we refer only to Asher throughout this decision. Before opening Prime Time, Asher was an employee at the same facility for approximately twenty years, during which time it was also operated as a nightclub under other names, such as "Reflections," "The Lighthouse," and "Burgundy's." The nightclub's patrons were mostly white before Asher opened Prime Time.

Upon opening Prime Time, Asher changed the atmosphere of the club and the type of music played. Young blacks became the club's predominant customers. On Saturday nights, Prime Time would draw eight hundred to twelve hundred people. Asher asserts that when the club had a predominantly white clientele, it was open more nights per week, drew larger crowds, and had more liquor violations and disturbances, such as fights, which occurred both inside and outside the club. Asher further contends that when the patrons were predominantly white, large crowds would leave the club at closing, but the police were not present to force them from the sidewalk in front of the club.

Asher claims that the defendant-appellee city of Cincinnati has used its police force in a discriminatory and harassing manner, causing Prime Time's patronage to dwindle and eventually forcing Prime Time to close. In support, Asher claims that the police would not come to the club when the clientele was white unless they were called by the club's employees. If the police were summoned, at most only two squad cars would respond. However, after the clientele changed, often thirty police officers were stationed outside the bar. Mounted officers and riot police cordoned off the adjacent streets and "herded" blacks away from the nightclub at closing time.

Additionally, Asher claims that the city attempted to bill him for the expense of the police details stationed outside Prime Time on Saturday nights through the issuance of "Second Response Notices." These notices were apparently issued under Cincinnati Municipal Code ("CMC") 910-11, alleging that Asher had violated CMC 910-7, 910-8, or 910-9, Cincinnati's "loud noise" ordinances. However, because "First Response Notices" were never originally issued, upon Asher's appeal of the notices and the fees assessed, the city hearing officer held the notices invalid.

In 1994, Asher filed a complaint seeking damages and injunctive relief against the city and certain city employees in their official capacities based on the city's failure to renew Prime Time's dance hall license. Asher's claims against John Shirey, City Manager, and Daryl Cammerer, Treasurer, in their official capacities, and Asher's claims against the city will be addressed as one claim, because a suit against a municipality and a suit against a municipal officer acting in his official capacity are the same. Brandon v. Holt (1985), 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878; Monell v. New York City Dept. of Social Serv. (1978), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611. The trial court granted a temporary restraining order to prevent the city from acting against the club until the issue of the dance hall license could be resolved. Asher filed an administrative appeal of the city's denial of the dance hall license; the administrative appeal was consolidated with the civil action.

In 1995, the city filed an action against Asher, alleging that Prime Time was a nuisance because of liquor-control violations. The nuisance action was also consolidated with Asher's original case. The trial court granted a temporary restraining order against Prime Time, allowing Asher to admit only patrons over the age of twenty-one, a policy which Asher had already voluntarily implemented. In Asher's answer to the nuisance charge, he counterclaimed for damages, as well as declaratory and injunctive relief, under Section 1983, Title 42, U.S.Code, based on events that had occurred during the period following the filing of his initial action. Included were claims against Police Captain Phyllis Caskey in her individual capacity, brought under Section 1983, for violations of Asher's rights of due process and equal protection of the laws.

Apparently because of admitted liquor-control violations that occurred inside Prime Time, the parties agreed that Prime Time would cease operation as a "permitted liquor establishment," and that Asher would be granted time to sell the liquor license. The city then dismissed the nuisance claim, and Asher amended his original complaint, incorporating the counterclaims that he raised in his answer to the nuisance charge. The city moved to dismiss the amended complaint. The motion was denied with respect to claims against the city, but granted for the claims against Caskey in her individual capacity. The parties then agreed to terminate the administrative appeal of the city's refusal to renew the dance hall license. Finally, the trial court granted the city's motion for summary judgment on the remaining issues.

Asher brings two assignments of error, claiming that the trial court erred in (1) granting summary judgment in favor of the city where genuine issues of material fact exist for the Section 1983 claim concerning the city's violation of Asher's due process and equal protection rights, and (2) dismissing Asher's identical claims against Captain Caskey on the basis of qualified immunity where evidence supports Asher's contention that she violated clearly established constitutional rights, which a reasonable person would have known.

I. Standing

The trial court granted summary judgment in favor of the city, in part, because it found that Asher, who is white, did not have standing to bring an action under Section 1983. 1 A civil action must be prosecuted by the real party in interest. See State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d 383, 632 N.E.2d 897; Civ.R. 17(A). The doctrine of standing requires that a litigant be in the proper position to assert a claim, and that the party's injury must be within the zone of interests intended to be protected or regulated. Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 522 N.E.2d 464.

The seminal case of Sullivan v. Little Hunting Park, Inc. (1969), 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386, has spawned a line of cases establishing that a nonminority plaintiff has standing under civil rights statutes to remedy his own injuries resulting from the defendant's discrimination against a protected class. 2 A white plaintiff has standing when he is asserting his own right to be free from the effects of racial discrimination. See, e.g., Nesmith v. Alford (C.A.5, 1963), 318 F.2d 110. However, a white plaintiff generally does not have standing solely to vindicate the rights of minorities who have suffered from racial discrimination. Maynard v. San Jose (C.A.9, 1994), 37 F.3d 1396.

While most of these cases dealt with standing under Section 1981, Title 42, U.S.Code, several courts have applied the principles to standing under Section 1983. See Des Vergnes v. Seekonk Water Dist. (C.A.1, 1979), 601 F.2d 9, vacated in part on other grounds (1981), 454 U.S. 807, 102 S.Ct. 81, 70 L.Ed.2d 76; Scott v. Greenville Cty. (C.A.4, 1983), 716 F.2d 1409; Maynard v. San Jose. In Wilson v. N. Little Rock (C.A.8, 1986), 801 F.2d 316, a white plaintiff, who owned a roller-skating rink, was granted standing under Section 1983 to challenge the harassment (a roadblock outside the rink) of black patrons by police, which resulted in a decrease in the plaintiff's business. See, also, Puglisi v. Underhill Park Taxpayer Assn. (S.D.N.Y.1996), 947 F.Supp. 673 (granting standing to white landlord to bring Section 1983 claim for selective enforcement of laws and housing codes based on tenants' race).

In Yesteryears, Inc. v. Waldorf Restaurant, Inc. (D.Md.1989), 730 F.Supp. 1341, the white directors of a corporation owning a nightclub were accorded standing under Section 1983. The directors claimed that the lessor of the club's building and the county liquor board conspired to prevent the club from selling alcoholic beverages. The goal of the conspiracy was to prevent the nightclub from catering to a black clientele; the ultimate result was a loss of profits and the closing of the club.

Following factually similar cases like Yesteryears and Wilson, we conclude that Asher has standing under Section 1983 to redress injuries to his business allegedly caused by police harassment of his black patrons and himself. Asher claims that he suffered personal economic injury as a direct result of racially motivated discriminatory police activity against the patrons of Prime Time. The most appropriate plaintiff is Asher, as patrons of a nightclub do not have as tangible an interest in bringing suit. See Yesteryears, 730 F.Supp. 1341; Wilson v. N. Little Rock, 801 F.2d 316. The commercial operator is the most appropriate party to bring suit for such violations. More important, Asher is to be granted standing to vindicate violations of his own right to be free from discrimination. See Yesteryears, 730 F.Supp. at 1355, citing Scott v. Greenville Cty., 716 F.2d at 1415.

II. The Appropriateness of Summary Judgment
A. The Equal Protection Claim

To establish a claim under Section 1983, two elements are required: (1) the conduct in controversy must be committed by a person...

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