Safety v. City of Sandy Springs, No. 19-10121

• Decision Date: 17 July 2020
• Docket Number: No. 19-10121
• Citation: 965 F.3d 1270
• Parties: The GEORGIA ELECTRONIC LIFE SAFETY & SYSTEM ASSOCIATION, INC., Safecom Security Solutions, Inc., A-Com Security Company, LLLP, Plaintiffs - Appellants, v. The CITY OF SANDY SPRINGS, GEORGIA, Russell K. Paul, in his individual capacity, John McDonough, in his individual capacity, John Paulson, in his individual capacity, Chris Burnett, et. al., in his individual capacity, Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

965 F.3d 1270

The GEORGIA ELECTRONIC LIFE SAFETY & SYSTEM ASSOCIATION, INC., Safecom Security Solutions, Inc., A-Com Security Company, LLLP, Plaintiffs - Appellants,

v.The CITY OF SANDY SPRINGS, GEORGIA, Russell K. Paul, in his individual capacity, John McDonough, in his individual capacity, John Paulson, in his individual capacity, Chris Burnett, et. al., in his individual capacity, Defendants - Appellees.

No. 19-10121

United States Court of Appeals, Eleventh Circuit.

July 17, 2020

Russell A. Britt, William Bradley Carver, Sr., Hall Booth Smith, PC, Atlanta, GA, for Plaintiffs - Appellants

Dana Kristin Maine, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants - Appellees

Before ANDERSON and MARCUS, Circuit Judges, and ROTHSTEIN,^* District Judge.

MARCUS, Circuit Judge:

Two alarm companies and a trade association to which they belong challenge a city ordinance and resolution adopted by the city of Sandy Springs, located in Fulton County, Georgia. The ordinance and resolution subject alarm companies to a series of fines when a false alarm is sounded at one of the properties which they service. The Plaintiffs claim that the city of Sandy Springs and its Mayor Russell Paul and City Manager John McDonough denied them the substantive and procedural due process protections found in the United States and Georgia Constitutions. They also forward a claim under Georgia law asserting personal liability against the Mayor, the City Manager, and individual members of the City Council (John Paulson, Chris Burnett, Tibby DeJulio, Andy Bauman, Ken Dishman, and Gabriel Sterling) for enforcing the ordinance. At the heart of their claims is the allegation that the true purpose of the ordinance is simply to generate revenue for the City, and that the ordinance has no reasonable relationship to any legitimate governmental interest.

The district court dismissed the substantive due process claims, finding that the ordinance and resolution were rationally related to a legitimate interest of the City, and it declined to exercise supplemental jurisdiction over the state-law claim. After thorough review and having taken oral argument, we affirm. The ordinance at issue is an economic regulation that does not burden any suspect classification or fundamental right, so rational basis review applies. The ordinance and resolution at issue easily survive rational basis scrutiny. Imposing a fine on the alarm companies is rationally related to the City's strong interests in reducing the number of false alarms that heavily burden its police and fire departments and waste public resources.

The Plaintiffs also attack the ordinance as violating their procedural due process rights, pointing to what they describe as insufficient procedural safeguards in the ordinance's appeal process. However, the Plaintiffs never lost an appeal under the ordinance, because they never attempted one. Nor have they explained how, absent an appeal, they were otherwise harmed by the allegedly deficient procedures in place. Instead, the Plaintiffs presented a factual list of the procedures at issue and summarily described them as flawed. Our case law is clear: there is no cognizable injury for standing purposes when a party fails to attempt an appeal and instead merely points to some procedural elements within a regulation, without alleging how those features injured them or even might potentially cause them some concrete harm. The Plaintiffs lack standing to pursue this claim. The district court properly dismissed it as being nonjusticiable. Accordingly, we affirm the judgment of the district court in all respects.

I.

Plaintiffs Safecom Security Solutions, Inc. and A-Com Security Company, LLLP (two individual alarm companies), together with Georgia Electronic Life Safety & System Association ("GELSSA"), a non-profit trade association that represents alarm companies (together, "Plaintiffs"), bring this appeal. The two alarm companies are members of GELSSA and serve customers across Georgia, including in Sandy Springs (the "City"). Around 80% of the premises in Sandy Springs are protected by alarm systems, with between ten and eleven thousand alarms installed in all. These alarms are installed in a variety of locations across the City, including private residences, apartment buildings, commercial establishments, churches, schools, and government buildings.

When an alarm is triggered at one of these properties, a signal is transmitted to a "communications center" run by the alarm companies (or by a third party with whom they contract). The communications centers resemble 911 dispatch rooms, and they are staffed and monitored twenty-four hours a day, seven days a week. Upon receipt of an alarm signal, an operator will reach out to the property owner in order to verify whether the breach was caused by the owner or an authorized user, or if it was caused by an unauthorized intrusion. Pursuant to O.C.G.A. § 35-1-9,¹ an operator must first call the site or alarm user directly; if no contact can be made, the alarm company must then reach out to a secondary contact number to attempt to verify the alarm. If the owner cannot be reached and the alarm cannot otherwise be verified, the alarm company will then notify the relevant city emergency services agency and request a dispatch to the premises. Alarm companies have no way to tell if an alarm activation was the result of criminal activity or another emergency, or if it resulted instead from user or technical error.

The Plaintiffs estimate that GELSSA members respond to around 775 alarm activations in Sandy Springs each year. Of these, alarm companies verify and disable the alarm in 90% of cases. For the remaining 10%, alarm companies request a dispatch from the appropriate Sandy Springs emergency services department. This case revolves around false alarms, where emergency services are dispatched to a location but no emergency is apparent. The Plaintiffs claim that false alarms are largely attributable to "chronic abusers": 20% of alarm users trigger 80% of the false alarms.

In July 2017, the City of Sandy Springs passed Ordinance No. 2017-07-15 (the "Ordinance") and Resolution No. 2017-07-99 (the "Resolution"). The Ordinance "governs alarm systems intended to summon a public safety department and requires registration, assessment of fees for excessive false alarms, [and] provides procedures for repeat offenders." Ordinance, § 18-34(b). The purpose of the Ordinance "is to encourage alarm owners and alarm companies to properly use and maintain the operational effectiveness of alarm systems in order to improve the reliability of alarm systems and reduce or eliminate false alarms." Id. § 18-34(a).

The Ordinance explains that false alarms burden the City's emergency services and waste resources. Id. In 2016 alone, there were 974 false fire alarms at $650 per dispatch, wasting roughly $657,450. Resolution at 1. There were also 9,292 false police alarm calls that year, costing around 4,424 man-hours and approximately $117,943. Id. In total, false police and fire emergency calls in 2016 cost the City around $775,939. Id. To combat this waste, the Ordinance established an escalating series of fines for successive false alarm calls, which the Resolution set at $25 for the first violation; $250 for violations two and three; and $500 for violations four and beyond. Ordinance, § 18-41(a)(1), (b)(1); Resolution at 1. In addition to a fine, the City's public safety departments will not respond to an activated alarm at a property for one year after its fourth false alarm within a two-year period. Ordinance, § 18-41(c).

False alarm fines under the Ordinance are imposed not on the property owner, but instead on the alarm company responsible for installing and servicing that alarm system. Id. § 18-41(a)(1), (b)(1) (permitting civil penalties for each false alarm to "be assessed against an alarm company"). A false alarm is defined as:

the activation of an alarm system to summon a public safety department that results in: (a) an inspection by a public safety department that indicates no fire, medical emergency, unauthorized entry, robbery, or other such crime was committed, occurred or attempted in or on the premises which would have activated a properly functioning alarm system; or (b) the cancellation of a request to summon a public safety department due to no emergency situation at the alarm site requiring response.

Id. § 18-35. To enforce this provision, Sandy Springs designated a private entity, "Cry Wolf Services," as alarm administrator under the Ordinance. Cry Wolf Services is responsible for implementing, administering, controlling, and reviewing false alarm reduction efforts and has unilateral discretion in determining whether an alarm call qualifies as a false alarm under the Ordinance.

The Ordinance also includes an appeals provision. Under it, an alarm company can appeal a penalty or an enforcement decision "by filing a written notice of appeal with the police chief or the fire chief" within ten days of receiving the fine or enforcement decision. Id. § 18-44(a). The Ordinance requires the police and fire chiefs to "each respectively designate a hearing officer" to "hear appeals related to their agency." Id. The hearing officer's decision can then be appealed directly to the police or fire chief. Id. The Ordinance provides that the decisions of the chiefs and the hearing officers are subject to judicial review "in the nature of writ of certiorari." Id. The Ordinance directs the hearing officer to review enforcement decisions using a preponderance of the evidence standard. Id. § 18-44(b). Failure to win the appeal subjects the appellant to costs. Id. § 18-44(d).

The Plaintiffs raise several claims, alleging violations of the United States and Georgia Constitutions under 42 U.S.C. § 1983. First, they say their substantive due process rights have been violated because the Ordinance is arbitrary and irrational. They also challenge the appeals procedure...