Barnes v. Merritt
| Decision Date | 18 April 1967 |
| Docket Number | No. 23573.,23573. |
| Citation | 376 F.2d 8 |
| Parties | Donald W. BARNES, Appellant, v. B. F. MERRITT, Jr., et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H. T. O'Neal, Jr., Adams, O'Neal, Steele, Thornton & Hemingway, Macon, Ga., for appellant.
Trammell F. Shi, City Atty., Shi & Raley, Macon, Ga., for appellees.
Before GEWIN and AINSWORTH, Circuit Judges, and HUNTER, District Judge.
Donald W. Barnes brought suit in the United States District Court for the Middle District of Georgia under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 for declaratory and injunctive relief alleging that the Mayor of the City of Macon, Georgia, and the members of the City Council had unlawfully deprived plaintiff of due process and equal protection of the laws in violation of the Fourteenth Amendment in denying his application for a retail liquor license. The defendants' motion to dismiss the complaint was sustained by the district court on the ground that the complaint failed to allege any facts showing the denial of any right guaranteed to plaintiff under the Constitution or laws of the United States. Barnes appeals from the order of the court granting defendants' motion to dismiss. We reverse.
The record in this case consists entirely of appellant's complaint, appellees' motion to dismiss, and the district judge's memorandum opinion granting the above motion. The only recital of facts contained in the record is in appellant's complaint and such facts are set out below. Since the appellees have not denied any allegation of the complaint, for the purpose of this appeal they must be taken as true.
Appellant, a resident of Macon, Georgia, filed with the Alcohol Control Committee an application for a retail liquor license in order to operate a retail liquor store at a site owned by appellant on Forsyth Road in the City of Macon approximately 4 miles from the geographic center of the city. The application was properly made in accordance with city ordinances which specify that the applicant furnish the following information:
(a) Type of license desired (whether manufacturer, wholesaler, or retailer)
(b) Name and address of applicant
(c) Length of time a resident of the State, County and City
(d) Age, sex, height, and weight of applicant
(e) Name and address of agent in charge of business
(f) Names and addresses of real owner or owners of place of business and, if different from or additional to the applicant, all information as to such owner or owners as required of applicant
(g) Location of the place of business
The Alcohol Control Committee and the Chief of the Police Department are required by city ordinance to give preliminary approval or disapproval of an application as a condition to action thereon by the Mayor and Council. Consequently, a hearing was conducted in accord with the above ordinance and the Committee and the Chief of Police disapproved of appellant's application for the sole reason that the proposed location of appellant's store lies outside of the geographical area in which the policy of the Committee permits the granting of package store licenses, or as stated in the complaint, "the operation of retail liquor stores."1 Subsequently, appellant's application was brought on for a hearing before the Mayor and Council of the City of Macon and they adopted the rejection of the application by the Committee and the Chief of Police and thereby denied appellant's application for a liquor license.
Appellant then filed a complaint in the district court against the Mayor and the aldermen who compose the City Council of Macon, Georgia, alleging that such parties by rejecting his application for a liquor license had deprived him of his constitutional rights under the Fourteenth Amendment. Appellant alleged that he had complied with all the city ordinances regulating the licensing of retail liquor stores, including the submission of all required information as detailed above. In addition he alleged that "there are no ascertainable standards by which the qualifications and fitness of applicants can be determined, and * * * no geographical standards have been prescribed by the Ordinances of said City." Consequently, appellant contended in his complaint that in view of the lack of standards2 by which applicants for licenses are judged and particularly the lack of a geographical standard, the action of the appellees in denying his application was "arbitrary, capricious, and discriminatory" and that such action deprived appellant of his constitutional right to due process and equal protection of the laws in violation of 42 U.S.C. § 1983. Jurisdiction of the district court was invoked under 28 U.S.C. § 1343(3).3
Appellant sought a declaratory judgment under 28 U.S.C. § 2201 and an injunction restraining appellees from denying licenses when there are no ascertainable standards by which to judge an applicant's qualifications and sought to enjoin appellees from considering his application on any basis other than valid laws and ordinances in effect at the time the application was made. The appellees filed a motion to dismiss on the grounds that: (1) the complaint fails to state a claim upon which relief can be granted, (2) the court lacks jurisdiction and (3) the complaint fails to allege facts showing the denial to appellant of any right guaranteed to him under the Constitution or the laws of the United States.
The district court granted appellees' motion to dismiss the complaint on the third ground specified above. The court interpreted appellant's complaint as not alleging that standards, including geographic standards, by which the Alcohol Control Committee could judge the qualification of applicants were completely non-existent, but instead interpreted the complaint as only alleging that the ordinances of the City of Macon did not contain such standards. Particularly, in view of the fact that the Committee had denied the application on the ground that their policy did not permit liquor stores in appellant's geographic area, the court found that appellant had not alleged that pertinent standards had not been promulgated by policies of the Committee or that he was not cognizant of the policy of the Committee that new licenses would not be granted in certain geographic areas. Viewing appellant's complaint as a mere attack on the lack of standards in the ordinances, and considering the denial of the application by the Committee as a statement that geographic standards were embodied in their policies which are announced in a manner less formal than an ordinance, the court concluded that the complaint did not allege sufficient facts to show that appellant had been denied any constitutional right.4
While we agree with the district court's reading of the Alcohol Control Committee's rejection which concluded that according to the policy of the Committee licenses are not permitted in appellant's geographical area, we view appellant's complaint in a more favorable light. We think, reading the complaint as a whole, that it clearly alleges that standards for deciding the...
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...found civil rights jurisdiction over suits alleging discrimination in the issuance of business licenses. See, e.g., Barnes v. Merritt, 5 Cir., 376 F.2d 8; Glicker v. Michigan Liquor Control Comm'n, 6 Cir., 160 F.2d 96. Similarly, claims involving discrimination in employment, e.g., Birnbaum......
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...605, reh. den., 330 F.2d 55 (5th Cir. 1964) (where plaintiff asserted that a city liquor license was arbitrarily denied); Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967) (plaintiff alleged discriminatory denial of a liquor license); McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964) (plaintiff a......
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Sparkman v. McFarlin
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