Carolan v. City of Kansas City, Mo., 86-1597

• Decision Date: 06 March 1987
• Docket Number: No. 86-1597,86-1597
• Citation: 813 F.2d 178
• Parties: Jack W. CAROLAN, individually, and Jack W. Carolan and Sandra Kay Carolan and Mathew George Carolan, as Directors and Trustees for Cactus Jacks, Inc., a forfeited Missouri Corporation, Appellants, v. CITY OF KANSAS CITY, MISSOURI, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 178

813 F.2d 178

Jack W. CAROLAN, individually, and Jack W. Carolan and Sandra Kay Carolan and Mathew George Carolan, as Directors and Trustees for Cactus Jacks Inc., a forfeited Missouri Corporation, Appellants, v. CITY OF KANSAS CITY, MISSOURI, Appellee.

No. 86-1597.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 13, 1986.

Decided March 6, 1987.

Donald H. Loudon, Kansas City, Mo., for appellants.

William D. Geary, Kansas City, Mo., for appellee.

Before McMILLIAN, ARNOLD and WOLLMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Jack W. Carolan, individually, and Jack W. Carolan, Sandra Kay Carolan, and Mathew George Carolan, as directors and trustees of Cactus Jacks, Inc., a defunct Missouri corporation appeal from a final judgment entered in the District Court ¹ for the Western District of Missouri granting summary judgment in favor of the City of Kansas City, Missouri (the City), in an action brought pursuant to 42 U.S.C. Sec. 1983. Carolan v. City of Kansas City, No. 84-1801-CV-W-S (W.D.Mo. Mar. 14, 1986). For reversal appellants argue that (1) the City arbitrarily and capriciously refused to renew their temporary occupancy certificate or to treat the expired certificate as in force in accordance with City custom and practice, (2) the post-deprivation hearings provided by the City failed to satisfy procedural due process, and (3) the City discriminated against appellants in handling their application for an amended building permit and a temporary occupancy certificate and in suspending their liquor license. We affirm the judgment of the district court but for reasons other than those cited in the district court memorandum.

Jack W. Carolan is the sole stockholder of Cactus Jacks, Inc., a defunct Missouri corporation. In January 1981, Carolan, having purchased property in the City for the purpose of constructing a restaurant, submitted an application for a building permit, which was issued on May 1, 1981. In the fall of 1981, Carolan began constructing a mezzanine overhanging the kitchen section of the restaurant although a mezzanine had not been included in the plan submitted for the building permit.

Carolan planned to open the restaurant on New Year's Eve 1981, for which an occupancy certificate and a liquor license were required. An occupancy certificate, under the City Building Code, would only be issued if a valid building permit had been secured. Carolan's building permit was not valid because of the mezzanine. City officials met at the restaurant on December 28, 1981, to inspect the building and to consider Carolan's request for an occupancy certificate. Following this inspection the City issued a temporary certificate of occupancy, which expressly prohibited the use of the mezzanine and on its face indicated that the certificate would expire on February 1, 1982. The restaurant subsequently received a liquor license and opened on schedule.

In order to receive a permanent occupancy certificate Carolan, on January 10, 1982, submitted an application for an amended building permit, which included plans for the mezzanine. On February 8, 1982, the City returned the building plans to Carolan and advised him of the deficiencies still existing in the plans. Carolan successfully appealed to the Building Code Board of Appeals concerning one of the conditions listed as a deficiency. In April 1982 he undertook another appeal, but this one was unsuccessful. The board refused to approve the building for fixed seating. Carolan submitted a second amended application for a building permit on July 1, 1982, and submitted additional information on July 21 and July 30, 1982. The amended building permit was finally issued in August 1982.

During the period from February 1, 1982, through August 18, 1982, the restaurant operated without a valid temporary or permanent occupancy certificate. In June 1982 Carolan was charged in municipal court with constructing the mezzanine without a building permit and using the mezzanine without an occupancy certificate. The absence of an occupancy certificate also placed the restaurant's liquor license in jeopardy because a liquor license may remain in force only so long as there is a valid occupancy certificate. On June 23, 1982, the City Supervisor of Liquor and Amusement issued an order to Carolan to appear on June 29, 1982, to show cause why the restaurant's liquor license should not be suspended. Following the hearing on June 29, 1982, the liquor license was suspended for 90 days, beginning July 12, 1982; the suspension would be removed if the occupancy certificate for the premises was issued.

Carolan asserts that from January 1982, when he applied for the amended building permit to August 1982, when the permit was finally issued, he repeatedly contacted City officials, offering to make any improvements to the building or plans required in order to receive the amended building permit. City officials recall no contact with Carolan or his engineer until July 1982. City officials, according to their testimony, conferred frequently with Carolan's engineer after July 1982 to resolve design problems with the mezzanine.

Carolan contends that in the first three months of its operation, from January through March 1982, the restaurant showed a profit of $61,000. Due to the loss of the occupancy certificate the restaurant encountered economic difficulties (loss of lines of credit, trouble with suppliers and employees, loans called in). After the liquor license was suspended in July 1982, the restaurant closed and never reopened. Eventually Carolan transferred the restaurant to another corporation.

In December 1984 a...