Cook v. City of Price, Carbon County, Utah
| Decision Date | 16 December 1977 |
| Docket Number | No. 76-1701,76-1701 |
| Citation | 566 F.2d 699 |
| Parties | Jo Ann COOK, Plaintiff-Appellant, v. CITY OF PRICE, CARBON COUNTY, UTAH, Walter T. Axelgard, Mayor of the City of Price, Harold O. Patterick, Harold Mark Hanson, Toy Atwood, James Lee Jensen, Amel Denison, as Members of the City Council, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donn E. Cassity and Roger T. Sharp, Salt Lake City, Utah (of Romney, Nelson & Cassity, Salt Lake City, Utah), for plaintiff-appellant.
Michael T. McCoy, Salt Lake City, Utah, for defendants-appellees.
Donald B. Holbrook, James S. Lowrie, and Russell H. Lowe, Salt Lake City, Utah (of Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah), for amicus curiae, Utah League of Cities and Towns.
Before HOLLOWAY and DOYLE, Circuit Judges, and ROGERS, District Judge. *
This is an appeal from an order of the United States District Court for the District of Utah granting judgment in favor of appellees and assessing costs against appellant. Appellant Cook filed this civil rights action on August 16, 1974, contesting the allegedly unconstitutional enforcement of a zoning ordinance adopted fifteen years earlier by the City of Price, Utah. The ordinance in question regulates the operation of "home businesses" in residential areas of the city. Appellant alleged the zoning ordinance was selectively and discriminatorily enforced against her. A pendent state claim was included in the complaint; it was not briefed on appeal and will not be treated in this opinion.
Appellant is a resident of the City of Price and a trained beauty operator and cosmetologist. She testified that before purchasing her home, and before opening her salon, she had inquired of the City Clerk as to applicable zoning restrictions, and had been assured that while there were applicable ordinances, these were not enforced. The City Clerk remembered no such preliminary conversations.
Appellant's home is located in an "R-2" zone. Under city zoning regulations the purchase and resale of merchandise not produced in the home is prohibited in such an area, although home "service occupations" are allowed. Appellant began operating a home beauty salon in late 1972. This use is permitted in an "R-2" zone and does not require a city license.
In October of 1973 appellant went to the City Clerk and made application for a business license. She noted on her application she wished to operate a "Beauty salon & gift, clothes, & fashion botique." All words except "fashion botique" were stricken by the City Clerk prior to submission of the application to the City Council. Appellant claimed she was not aware these words were stricken; the City Clerk testified he told plaintiff at the time she submitted the application that she could not sell gifts or clothing in an "R-2" zone, and that the City Council would only allow the incidental sale of items to be used in connection with hair styling.
The license was approved on November 12, 1973, by the City Council upon explanation by the City Clerk that "fashion botique" referred only to the sale of items incidental to hair styling such as beads and barrettes. After the license was approved, appellant began to sell clothing from her home. Her garage had been remodeled, and a large plate glass window made her selection of clothing visible from the street. Directed by the acting Mayor, the Chief of Police informed appellant she was operating in violation of city zoning laws and would have to discontinue her clothing business.
On January 4, 1974, appellant appeared before the City Council and explained her conception of the words "fashion botique." The Council refused her permission to continue her business, and suggested her only recourse would be to petition for a rezoning of her property. This she did to no avail. A letter from the Council dated June 26, 1974, informed appellant that her business license had been revoked, for it had been "intended strictly as an accessory license to be used in conjunction with (your) existing beauty shop." She was given three months to cease operation of her clothing business.
Thereafter plaintiff commenced this action, asserting the Council's action in revoking her license constituted discriminatory enforcement violative of the constitutional guarantee of equal protection of the laws. Trial was had to the court commencing December 15, 1975, and lasting three days. Much of appellant's evidence consisted of testimony concerning other home businesses in the city which were violating the strict letter of the zoning ordinance. At the close of trial, the court requested supplementary memoranda, and on June 3, 1976, entered judgment in favor of appellees.
Appellant at no time denied the validity of the ordinance she violated. Therefore the present situation is not analogous to that in Martin v. King, 417 F.2d 458 (10th Cir. 1961). In that case the appellant had attacked the substantive validity of the ordinance as well as its discriminatory enforcement. We pointed out the illogic of the equal protection claim saying appellant "would contend that he had a right to be protected from the evils which he says do not exist." Id. at 462.
Rather, appellant merely claims discrimination in that the ordinance was not enforced against other known violators. After hearing a great deal of evidence concerning other violations, the trial court found such other infractions to be "minor and innocuous."
For ninety years it has been established that a law fair on its face may be applied so arbitrarily and unfairly as to amount to a violation of constitutional rights. Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 30 L.Ed. 220 (1887). However, when the discrimination is not aimed at a "suspect class," a plaintiff must show intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).
Mere failure to prosecute other offenders is no basis for a finding of denial of equal protection. "(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional...
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