Brown v. DeBruhl, Civ. A. No. 78-1946.

• Citation: 468 F. Supp. 513
• Decision Date: 19 January 1979
• Docket Number: Civ. A. No. 78-1946.
• Court: U.S. District Court — District of South Carolina
• Parties: Whatt H. BROWN and Thomas W. Williams, Plaintiffs, v. Hector DeBRUHL, as Sheriff of Kershaw County, S.C., and S. J. Pratt, as Chairman and M. S. Ingram, and C. H. Lowder, as the South Carolina Alcoholic Beverage Control Commission, Defendants.

468 F. Supp. 513

Whatt H. BROWN and Thomas W. Williams, Plaintiffs, v. Hector DeBRUHL, as Sheriff of Kershaw County, S.C., and S. J. Pratt, as Chairman and M. S. Ingram, and C. H. Lowder, as the South Carolina Alcoholic Beverage Control Commission, Defendants.

Civ. A. No. 78-1946.

United States District Court, D. South Carolina, Columbia Division.

January 19, 1979.

Jack McGuinn, and Patrick Treacy, Columbia, S.C., for the plaintiffs.

William R. Byars, Camden, S.C., Daniel R. McLeod, Atty. Gen. for the State of South Carolina, C. Tolbert Goolsby, Jr., Deputy Atty. Gen. for the State of South Carolina, and James M. Holly, Staff Atty. for the State of South Carolina, Columbia, S.C., for Hector DeBruhl, Sheriff of Kershaw County, S.C.

Edwin E. Evans, Asst. Atty. Gen., and Robert D. Cook, Staff Atty. for the State of South Carolina, Columbia, S.C., for S. J. Pratt, M. S. Ingram and C. H. Lowder, as the South Carolina Alcoholic Beverage Control Commission.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HEMPHILL, District Judge.

This Order treats two separate motions for summary judgment filed in this action. On December 29, 1978, defendants Pratt, Ingram and Lowder as Commissioners of the South Carolina Alcoholic Beverage Commission filed a motion for summary judgment.¹ On January 15, 1979, defendant DeBruhl, Sheriff of Kershaw County, moved for summary judgment. Upon consideration of oral arguments heard on January 16, 1978 and written memoranda submitted by counsel, both motions are ripe for decision.

The material facts are not in dispute. Plaintiffs bring this action for money damages pursuant to 42 U.S.C. §§ 1981, 1982 and 1983² alleging a conspiracy among defendants under color of state law to deny plaintiffs a sale and consumption license to sell alcoholic beverages as a nonprofit corporation. In October or November 1973, plaintiffs purchased a business known as the Saddle House Club in Kershaw County, South Carolina. Plaintiffs had a corporation to operate and manage the club to be known as the Mark IV Club. Shortly thereafter, plaintiffs sought a sale and consumption license from the South Carolina Alcoholic Beverage Control Commission that would allow them to serve liquor by the drink seven days a week.³ On December 18, 1973, plaintiff Williams was notified by the Commission that there would be a hearing before the full commission upon plaintiffs' application for a liquor license. The hearing was held on January 2, 1974.

The granting of liquor licenses is a proceeding regulated by state law. The Alcoholic Beverage Control Commission is vested with authority to determine what licenses will be granted. The procedure is well defined in the following statutes:

Section 61-3-110 of the South Carolina Code of Laws (1976) provides:

The Alcoholic Beverage Control Commission may hold and conduct hearings, issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers and other documents for consideration at such hearings or before any officer or agent of the Commission and administer oaths and take testimony thereunder . . .

An adversarial proceeding is assured by § 61-5-60 which mandates that:

Upon the written request of any person who resides in the county where the license is requested to be granted, the Commission shall not issue such license until any interested person has been given an opportunity to be heard.

Further, § 61-5-90 requires that:

Before the Alcoholic Beverage Control Commission shall refuse to grant any license . . . issued under the provisions of this article, at least ten days notice of such proposed or contemplated action by the Commission shall be given to the applicant . . . The notice shall be in writing and shall contain a statement of the grounds or reason of the proposed or contemplated action of the Commission and shall be served upon the applicant . . . in person or by certified mail . . . The Commission shall in such notice appoint a time and place when and at which the applicant . . . shall at such time and place have the right to produce evidence in his behalf and to be represented by counsel.⁴

A written protest dated December 10, 1973, was submitted to the Commission stating that the business was located too close to a church and that there were not enough police officers on duty to police the business properly on Sunday. The written protest was signed by Sheriff DeBruhl and five other persons. Section 61-5-60, Code of Laws of South Carolina (1976), previously alluded to, assures that "any interested person will be given an opportunity to be heard" prior to the issuance of a license.

A hearing was held before the South Carolina Alcoholic Beverage Control Commission on January 2, 1974. Commissioners Pratt, Lowder and Ingram presided. Sheriff DeBruhl was the spokesman for the protestants. Sheriff DeBruhl testified that a church was located a short distance from the business and that he understood that the applicant could operate on Sunday if the license was granted (Tr. p. 2). He stated that the closest person to the business was about 100 to 125 feet away (Tr. p. 4), and that he discouraged two prior owners from applying for the type of license sought by plaintiff (Tr. p. 4). The two applicants are black and the prior operators were white (Tr. p. 6). Sheriff DeBruhl tried to explain the laws to plaintiffs and explain that the type of people hanging around their club could present law enforcement problems (Tr. p. 15). The club was frequented by men who dress as women (Tr. p. 15) and convicted drug pushers (Tr. p. 16).

The liquor license was denied to plaintiffs on January 4, 1974. Plaintiffs filed this action on November 15, 1978.

Plaintiffs submit that Sheriff DeBruhl and the Commission conspired to deny plaintiffs the license solely based upon their race. It is not disputed that the Mark IV Club had a permit to sell beer and wine issued to Thomas Williams on December 11, 1973.

Defendant Commissioners allege that summary judgment is proper in this instance as a matter of law as the acts of the Commission in denying the license are quasi-judicial in nature thereby rendering the Commissioners immune from suit. It appears that Title 61 of the Code of Laws of South Carolina (1976), previously alluded to, provides an adversary context for these hearings. Plaintiffs took advantage of this with plaintiff Williams, aided by this attorney, testifying to obtain the license. Sheriff DeBruhl testified against its issuance. After a hearing where both points of view were represented, the Commission denied plaintiffs their license stating that the location was unsuitable.

Section 61-5-90 South Carolina Code of Laws (1976) provides for judicial review of the Commission's findings. Plaintiff Williams filed a petition seeking appellate review of the Commission's findings, but the appeal was later abandoned.

The court must inquire into the parameters of judicial immunity and ascertain whether it is applicable. It is an absolute defense, and, if applicable, defendants will be entitled to summary judgment. The Supreme Court in Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 20 L.Ed. 646 (1872) held that judicial immunity applied to any action taken by a judge which was judicial in nature and was not performed in clear absence of all jurisdiction. The Court reaffirmed this doctrine in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) holding:

A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. The court made this point clear in Bradley, 13 Wall., at 357, 20 L.Ed. 646, where it stated that "This erroneous manner in which the court's jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever."

The case of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) held that 42 U.S.C. § 1983 was not intended to abrogate the immunity of state judges which existed under the common law and which the court held applicable to federal judges in Bradley v. Fisher, supra. This doctrine also applies to suits under 42 U.S.C. § 1981, Cruz v. Skelton, 502 F.2d 1101 (5th Cir. 1974) and § 1982. Holton v. Bowman, 493 F.2d 1176 (7th Cir. 1974).

The instant action involves the actions of the Commissioners of the South Carolina Alcoholic Beverage Control Commission acting in their official capacity under color of state law. The action of granting or denying a liquor license is one of the powers granted to them under State law.⁵Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). The issue in this case is whether the Commissioners, in making a decision to deny a liquor license, are to be accorded judicial immunity for purposes of an action under 42 U.S.C. §§ 1981, 1982 and 1983. If the Commission is entitled to immunity, then the lawsuit will fail. Pierson v. Ray, supra.

The Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) recently addressed a similar issue and sheds illumination into the morass of the circuits conflicting viewpoints. In Economou, plaintiff brought suit against several federal officials alleging damages for violations of constitutional rights. The District Court held that defendants were entitled to absolute immunity. The Court of Appeals reversed holding that they were only entitled to a qualified immunity. The Supreme Court vacated the Court of Appeals judgment and remanded the case. The court held (1) in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion were entitled only to qualified immunity, subject to those exceptional situations where it is demonstrated that absolute immunity is...