Kennedy v. Hughes

• Decision Date: 07 November 1984
• Docket Number: Civ. A. No. 82-473 MMS.
• Parties: William KENNEDY and Karolyne Kennedy, his wife, Plaintiffs, v. John HUGHES, Mayor of the City of Rehoboth Beach, Delaware; Richard Derrickson, Commissioner of the City of Rehoboth Beach, Delaware; James Phelan, Commissioner of the City of Rehoboth Beach, Delaware; Mary Burt Lankford, Commissioner of the City of Rehoboth Beach, Delaware; Eleanor Lynam, Commissioner of the City of Rehoboth Beach, Delaware, and Samuel Cooper, Commissioner of the City of Rehoboth Beach, Delaware, all individually, personally, and in their official capacity as Mayor and Commissioners of the City of Rehoboth Beach, Delaware, respectively, and The City of Rehoboth Beach, Delaware, a Municipal Corporation of the State of Delaware, and Harry Maichle, Chief of Police of the City of Rehoboth Beach, Delaware (Chief Maichle is joined only for injunctive purposes at this time), Defendants.
• Court: U.S. District Court — District of Delaware

596 F. Supp. 1487

William KENNEDY and Karolyne Kennedy, his wife, Plaintiffs, v. John HUGHES, Mayor of the City of Rehoboth Beach, Delaware; Richard Derrickson, Commissioner of the City of Rehoboth Beach, Delaware; James Phelan, Commissioner of the City of Rehoboth Beach, Delaware; Mary Burt Lankford, Commissioner of the City of Rehoboth Beach, Delaware; Eleanor Lynam, Commissioner of the City of Rehoboth Beach, Delaware, and Samuel Cooper, Commissioner of the City of Rehoboth Beach, Delaware, all individually, personally, and in their official capacity as Mayor and Commissioners of the City of Rehoboth Beach, Delaware, respectively, and The City of Rehoboth Beach, Delaware, a Municipal Corporation of the State of Delaware, and Harry Maichle, Chief of Police of the City of Rehoboth Beach, Delaware (Chief Maichle is joined only for injunctive purposes at this time), Defendants.

Civ. A. No. 82-473 MMS.

United States District Court, D. Delaware.

November 7, 1984.

COPYRIGHT MATERIAL OMITTED

Robert C. Wolhar, Jr., Wolhar & Moore, Georgetown, Del., for plaintiffs.

Carl Schnee, and Sam Glasscock, III, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, District Judge.

Plaintiffs William and Karolyne Kennedy ("the Kennedys") brought this action for damages and injunctive relief under 42 U.S.C. § 1983 against the City of Rehoboth Beach, Delaware, and its Chief of Police, Harry Maichle, in his official capacity. Additional defendants, in their official and individual capacities, are the Mayor, John Hughes, and five City Commissioners. The Kennedys challenge the constitutionality of a city ordinance requiring a physician or osteopath to be present whenever a tattoo is applied in Rehoboth Beach. They also allege that the action of the defendants, in enacting and attempting to enforce this ordinance, caused the Kennedys damages by inhibiting the operation of their tattoo studio. Presently before the Court is the defendants' motion for summary judgment. For the reasons stated below, the motion for summary judgment will be granted.

I. Facts

The relevant facts are either undisputed or, if disputed, are stated as asserted by the plaintiffs, the party opposing the motion. In May, 1982, the Kennedys made inquiries in Rehoboth Beach, Delaware, about opening a tattoo studio. In June, 1982, the Kennedys received a letter from Thomas G. Abbott, the Building and Licensing Inspector, stating that tattoo studios were permitted in Rehoboth Beach if the owners obtained a business license. The Kennedys paid a $250 business license fee and received a license to operate a tattoo studio in Rehoboth Beach until June 30, 1983. Plaintiffs then rented a building in Rehoboth Beach to house their studio, purchased equipment for the premises, and incurred other expenses associated with setting up business.

On June 24, 1982, the Mayor of Rehoboth Beach, defendant John Hughes, visited the Kennedys' tattoo studio and told them that "this kind of a business can't be operated in Rehoboth Beach" because it was inconsistent with "a nice family type town."¹ On July 7, 1982, neighboring property owners wrote to the Rehoboth Beach Board of Commissioners and asked the Board to close the tattoo studio "because it is not in keeping with the quaint, unspoiled character of this lovely resort."² The Board of Commissioners, which included Mayor Hughes and the five defendant Commissioners, then met on July 9, 1982, with the Kennedys present, and passed the ordinance at issue.

The challenged ordinance amended Chapter 6 of the Municipal Code of Rehoboth Beach by adding a new Article 8, titled "Tattoo Establishments."³ Section 6-65 of Article 8 mandates that persons operating tattoo establishments must be authorized to practice medicine or osteopathic medicine in Delaware and must obtain a valid permit from the City to operate a tattoo establishment. This section also provides that all tattooing must be done either by a physician or osteopath or in the presence of a physician or osteopath. Sections 6-74 through 6-78 of the challenged ordinance require the tattoo establishment operator to observe certain health and sanitary requirements that help ensure that the tattooing process itself is sanitary and that persons with communicable diseases, such as hepatitis, will not be tattooed. Section 6-82 enforces Article 8's requirements by providing that any person violating any provision of Article 8 shall be deemed guilty of a misdemeanor and fined between fifty and two hundred dollars.

For the next two or three weeks after this ordinance was passed, the City police, acting on the orders of the Mayor and the Board of Commissioners, began watching the Kennedys' studio for violations of the ordinance. Undercover police officers visited the tattoo studio and threatened to arrest Mrs. Kennedy if they saw her tattooing anyone.⁴ Mayor Hughes announced to the press, as reported in a July 21, 1982, article in the Wilmington Morning News, that the Kennedys' studio was under police surveillance. As a result of the ordinance, the police surveillance, and the Mayor's statements to the press, the Kennedys lost business, although they continued to apply tattoos without a doctor being present, in violation of the ordinance.⁵ The Kennedys, however, were never charged with violating the ordinance.⁶

On July 26, 1982, plaintiffs filed this action under 42 U.S.C. § 1983 to enjoin enforcement of the ordinance and to recover damages resulting from the deprivations of their civil rights.⁷ Plaintiffs alleged in their complaint that the tattooing ordinance violates their rights under the United States Constitution because it constitutes an ex post facto law, bill of attainder, and impairment of the obligation of contracts, in violation of Article I, Sections 9 and 10; a deprivation of liberty and property without due process of law and a denial of the equal protection of the laws, in violation of the fourteenth amendment; and an abridgment of the freedom of speech, in violation of the first amendment. In addition, plaintiffs have alleged that the statements of the Mayor and the police surveillance and harassment deprived them of liberty and property without due process of law.

Upon completion of discovery, defendants filed the instant motion for summary judgment, alleging that defendants are entitled to judgment on two legal grounds: the individual defendants are immune from suit under the doctrine of legislative immunity, and the tattooing ordinance is a constitutional exercise of the City's police power to protect public health. At oral argument, plaintiffs' counsel stated that plaintiffs have abandoned several of their theories and are now only pressing three: that the defendants deprived the plaintiffs of property without due process of law; that the tattooing ordinance violates the fourteenth amendment because it lacks a rational basis; and that the ordinance impaired the obligation of contracts.⁸ The Court finds, for the reasons set forth below, that there is no genuine issue as to any material fact and that defendants are entitled to summary judgment as a matter of law.

II. Monetary Claims Against Individual Defendants In Their Individual Capacities

A. Claims Arising Out of Passage of the Ordinance

The individual defendants argue that the claims against them in their individual capacities should be dismissed from this lawsuit because the doctrine of legislative immunity grants them absolute immunity from suit. Plaintiffs do not contest the basic principle that "members of a municipal council acting in a legislative capacity are absolutely immune from damage suits under section 1983." Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir.1983). See also Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 3513, 82 L.Ed.2d 822 (1984). This doctrine bars plaintiffs' claims against the Mayor and City Commissioners for damages caused by the enactment of the ordinance itself, irrespective of the legislators' motives, because passing an ordinance is legislative activity. See Aitchison, 708 F.2d at 98-99.⁹

B. Claims Arising Out of Enforcement of the Ordinance

The absolute protection afforded by legislative immunity does not apply to acts which are executive or administrative rather than legislative in character. Abraham v. Pekarski, 728 F.2d at 174-75. Plaintiffs have adduced facts showing that the Mayor and Board of Commissioners instructed the Chief of Police to keep the Kennedys' studio under surveillance, and that the Mayor made public statements about the surveillance.¹⁰ These actions are executive or administrative rather than legislative. See Blake v. Town of Delaware City, 441 F.Supp. 1189, 1202 (D.Del.1977); cf. Marrero v. City of Hialeah, 625 F.2d 499, 505-06 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). It follows that plaintiffs' claim that the police activities deprived them of liberty or property without due process of law is not barred by legislative immunity.

The legal basis of plaintiffs' objection to the actions taken to enforce the statute is not clearly stated in their pleadings or briefs. They apparently assert that the decision of the Mayor and Board of Commissioners to put the tattoo studio under police surveillance, coupled with the Mayor's announcement of the surveillance to the press, deprived them of a property right — their right to do business — without due process of law.¹¹

Plaintiffs' claims arising out of the police surveillance must be dismissed because there is nothing constitutionally objectionable about the police surveillance. Given that the ordinance was valid, see infra at 1495-1496, and the plaintiffs were violating it,¹² the actions of the police — watching the studio to detect violations of the ordinance and warning Mrs. Kennedy that she could be arrested if she violated the ordinance — were simply normal police...