Bennett v. City of Slidell, 81-3236

• Decision Date: 07 February 1983
• Docket Number: No. 81-3236,81-3236
• Citation: 697 F.2d 657
• Parties: Henry J. BENNETT, Jr., Plaintiff-Appellee, v. CITY OF SLIDELL, Gerry Hinton, B.E. McDaniel, Nunzio Giordano and Patrick J. Berrigan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 657

697 F.2d 657

Henry J. BENNETT, Jr., Plaintiff-Appellee, v. CITY OF SLIDELL, Gerry Hinton, B.E. McDaniel, Nunzio Giordano and Patrick J. Berrigan, Defendants-Appellants.

No. 81-3236.

United States Court of Appeals Fifth Circuit.

Feb. 7, 1983.

Lawrence D. Wiedemann, Allain F. Hardin, New Orleans, La., for Gerry Hinton, et al.

Lloyd R. Walters, Slidell, La., for City of Slidell.

David W. Oestreicher, II, New Orleans, La., Fernando J. Estopinal, III, Slidell, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Invoking 42 U.S.C. Sec. 1983, Henry J. Bennett, Jr. sought damages from the City of Slidell, its council members, mayor, chief administrative officer, and city attorney, ¹ for delays experienced in securing a liquor license and an occupancy permit for his lounge in Slidell, Louisiana. The jury returned a verdict against the city for $20,000, against city attorney Patrick J. Berrigan for $1,000, and against councilmen Gerry G. Hinton, B.E. McDaniel and Nunzio Giordano for $1,000 each. ² The trial judge denied defendants' motion for judgment n.o.v. or, alternatively, for remittitur or new trial. 518 F.Supp. 59. Concluding that the evidence does not support judgment against the councilmen, we reverse as to them. We affirm the judgment against the City of Slidell and Berrigan.

Facts

From 1972 until May 1975, Bennett operated a lounge in Slidell, Louisiana, known as "Fooser's Den." Thereafter, he leased, with option to buy, the premises at 3745 Pontchartrain Drive, Slidell. Bennett planned to open a lounge to be known as "Club Rustique." During early June 1975, John Coerver, who was the owner of property adjoining 3745 Pontchartrain Drive and Auditor for the City of Slidell, made known to Bennett his intention to oppose the lounge. In doing so, Coerver emphasized his influence in the city and his intent to use that influence.

On June 11, 1975, Bennett applied for a building permit in order that he might begin repairs and renovations of the proposed lounge. This permit was issued shortly thereafter by Bill Dugas, the city building inspector. Typically, once the necessary repairs and additions were made and an application submitted, the occupancy permit would have been routinely issued.

On July 7, 1975, Bennett applied to the city council for a liquor license. The application conformed to law but was not acted on by the council until its meeting on August 12. In the interim, the council received a letter from Coerver objecting to Bennett's application. ³ At the meeting, a question was raised whether the liquor license should be issued before Bennett obtained an occupancy certificate. The question was not resolved. ⁴ A resolution to issue the permit was defeated by the nay votes of Giordano, Hinton and McDaniel.

On August 21, 1975, Coerver again wrote the city council, this time objecting to issuance of an occupancy permit to Bennett. ⁵ Again purporting to write for the adjacent property owners, Coerver stated: "We ... are requesting ... the complete parking area of this establishment be surfaced with a minimum of four inches of concrete or similar all-weather surface as specified in Section 4.1 of the Zoning Ordinance of Slidell, Louisiana." ⁶

On August 22, 1975 Bennett filed suit against the city seeking an order mandating issuance of the liquor license. The council immediately met in special session and determined to defer action on his application pending resolution of the litigation. However, one month later, on September 23, 1975, the council met and issued the liquor license. Bennett's efforts to secure the occupancy permit continued to be unsuccessful.

Bennett testified that Dugas had informed him that oyster shells could be used for the surface of the parking lot. Other business places had shells in their parking areas despite the dictates of Ordinance 795. Bennett put shells on his parking area. Dugas denies telling Bennett that a shell surface would be considered adequate compliance with the ordinance, but conceded that other businesses had shell-surfaced parking lots.

Sometime prior to November 14, 1975, Dugas was ostensibly informed by an assistant that Bennett was using the building at 3745 Ponchartrain Drive despite the fact that no occupancy permit had been issued. Without investigating or otherwise confirming the accuracy of the information, Dugas notified Central Louisiana Electric Company (CLECO), by letter dated November 14, 1975, that Bennett was using the leased premises illegally. Five days later Berrigan, as city attorney, at Dugas' behest, wrote CLECO a letter which purported to give the utility "authority to disconnect electric power at The Club Rustique, 3245 [sic] Ponchartrain Drive, presently occupied by Henry Bennett." In response, CLECO discontinued electrical service.

Bennett ultimately paved the parking lot. In November 1975, two months after the grant of his liquor license, he received the occupancy permit.

On April 1, 1976, Bennett initiated the instant suit under 42 U.S.C. Secs. 1983 and 1985. The city's motion to dismiss for failure to state a claim under Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), was granted. In June 1979, Bennett moved for reinstatement of the city consistent with the intervening teachings of Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Reinstatement was allowed and, ultimately, the jury returned verdicts under Sec. 1983 as noted. Bennett's Sec. 1985 conspiracy claim was rejected.

Limitations

The first issue raised by the city requires scant discussion. The city maintains that the limitation period for Bennett's suit expired between the time of the city's dismissal from the suit and the later reinstatement. ⁷ The city errs in its reasoning.

Aside from the fact that during the course of this litigation--after the trial court ordered the dismissal of the city and before the motion to reinstate was granted--the law regarding the liability of a municipality under Sec. 1983 changed dramatically, with Monell overruling Monroe v. Pape, the city's argument is without merit. Under McDermott v. Crown Zellerbach Corp., 418 F.2d 598 (5th Cir.1969), and Carver v. Liberty Mut. Ins. Co., 277 F.2d 105 (5th Cir.1960), Bennett's suit against Berrigan and the city councilmen individually tolled the running of the statute of limitations against the city, since they were potential obligors bound in solido with the city. In addition, we note no prejudice by the reinstatement in 1979. See Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir.1980). Bennett's claim was presented against the city seasonably.

Liability of Councilmen

The imposition of liability upon the individual councilmen presents an issue of substantial consequence. The three council members were cast in judgment because of their votes to deny Bennett's liquor license until he secured an occupancy permit, and their apparent failure to initiate an inquiry into Dugas' decision to withhold the occupancy permit until the requisites of Ordinance 795, as respects parking surfaces, were complied with. The record contains no credible evidence that the council members voted for any reason other than those patently apparent. ⁸ Further, the record reveals that the individual councilmen did not direct Dugas' day-to-day operation. Rather, the council was in the position to review Dugas' decisions if an appeal was made to it. Bennett never appealed Dugas' rejection nor did he complain to the councilmen about the delay.

A painstaking review of the record discloses insufficient evidence to warrant submission of the question of the liability of the councilmen to the jury. Bennett's evidence falls far short of proving a conspiracy among the councilmen, mayor, city attorney and city building inspector with respect to the liquor license application. And the council never acted with respect to the occupancy permit. Hinton, McDaniel, and Giordano were entitled to judgment dismissing the demands against them as a matter of law. ⁹

Liability of the City

We affirm the judgment against the city because of the evidence that Dugas acted with sufficient authority to qualify as an official within the intendment of Sec. 1983, and that he applied the zoning ordinance in an unconstitutional manner, thus violating Bennett's due process and equal protection rights. See Monell and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).

Dugas admitted that other establishments similar to the "Club Rustique" operated in violation of the parking lot paving requirement, ¹⁰ but denied that Coerver's complaints influenced his decision to give the ordinance strict application in Bennett's case.

Nevertheless the city contends that holding it liable for Dugas' discriminatory enforcement of the zoning ordinance is not permissible under Monell since to do so would visit liability on a respondeat superior theory. We do not agree.

The rule of Monell is clear: "A local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983." 436 U.S. at 694, 98 S.Ct. at 2037. We view this case as fitting within these confines. ¹¹ Dugas held the position of city building inspector. Berrigan was the city attorney. The record demonstrates that Dugas acted with official power in passing on occupancy certificate applications. He had been vested with this authority. The city building inspector's primary responsibility was to make certain that buildings complied with local ordinances; the means of carrying...