Sanderson v. Village of Greenhills, 82-3707

• Decision Date: 01 February 1984
• Docket Number: No. 82-3707,82-3707
• Citation: 726 F.2d 284
• Parties: Carl SANDERSON, d/b/a Cue Room Family Billiards, Plaintiff-Appellant, v. VILLAGE OF GREENHILLS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 284

726 F.2d 284

Carl SANDERSON, d/b/a Cue Room Family Billiards, Plaintiff-Appellant, v. VILLAGE OF GREENHILLS, et al., Defendants-Appellees.

No. 82-3707.

United States Court of Appeals, Sixth Circuit.

Submitted Oct. 26, 1983.

Decided Feb. 1, 1984.

Joseph G. Carr, Sharon A. Sullivan, Cincinnati, Ohio, for plaintiff-appellant.

Nicholas A. Perrino, Cincinnati, Ohio, for defendants-appellees.

Before JONES and KRUPANSKY, Circuit Judges, and COOK, District Judge. ^*

PER CURIAM.

This is an appeal by Carl Sanderson (Sanderson), d/b/a Cue Room Family Billiards from a decision below which held that Sanderson had not stated a cause of action pursuant to 42 U.S.C. Secs. 1983, 1985 against the Village of Greenhills arising out of the Village's attempt to enforce an amusement device licensing ordinance. The district court further held that, even if Sec. 1983 jurisdiction could be established, the federal court would abstain rather than enjoin state proceedings over the propriety of applying the ordinance to Sanderson's poolroom.

The facts are straightforward and undisputed. Sanderson leased a storefront in Greenhills, Ohio in late July 1982 with the intention of opening a poolroom at that site. Sanderson contacted the Village Administrator (David Moore) to inquire about the necessity of obtaining a license for the pool room under Ordinance 81-19-L which required the licensing of "amusement devices" within the Village. Moore informed the appellant that Ordinance 81-19-L was applicable only to coin operated amusement devices and so would not compel licensing of the planned pool tables. However, one unidentified Council member opined that Sanderson's business would need, but would not receive, "approval" from Council, although it is not clear if it was intended that Council "approval" be construed as obtaining a license under the ordinance.

After three weeks of remodeling, during which time a sign clearly visible from the street announced the nature of the new business, Sanderson opened his establishment at 4:00 p.m. on August 24, 1982. At approximately 7:00 p.m. the police chief, one Albertson, entered the poolroom and ordered it closed as a consequence of being unlicensed. The officer furnished appellant with a copy of the relevant ordinance and an application for a license. However, the officer, acting at the behest of Council, also related that Sanderson would not get a license. Sanderson, who had not previously applied for a license, was given the option of "voluntarily" closing the business and applying for an unobtainable license, or incurring the criminal penalty for violating the ordinance. Sanderson closed the business and thereupon filed the instant suit seeking damages for the purported civil rights violation and to enjoin enforcement of the licensing ordinance.

At the preliminary injunction hearing, the district judge initially determined that Sanderson had not shown a deprivation of any Constitutional right, inasmuch as there is no right, simply because one owns property, to obtain a license for use of that property in a particular way, and there is no federal right to be free from merely erroneous enforcement of local ordinances. The district court also held that, in the event Sanderson could establish a Sec. 1983 action, a federal court should abstain from enjoining the enforcement of the licensing law until Ohio courts passed upon the applicability of the statute to the appellant. The present appeal ensued.

It should be noted that Sanderson has, since the filing of the instant appeal, been acquitted of charges that he violated the ordinance at issue, on the grounds that the ordinance was inapplicable to billiard tables not operated by a coin or token. Consequently, appellant is now operating his business and the issue of injunctive relief appears moot. However, the claim for damages remains at bar.

The district judge, although citing the doctrine of abstention as an alternate foundation for the lower court's holding, relied upon three lines of analysis to collectively establish that Sanderson had no Sec. 1983 or Sec. 1985 cause of action and therefore the court had no jurisdiction: 1) mere ownership of property does not create a right to receive a license for a particular use of that property or to receive procedural due process in the application process; 2) there is no federal right to be free from simply erroneous applications of otherwise valid state laws; 3) there is no proof here that the amusement devices ordinance was inequitably applied on racial or other class-based grounds. Sanderson does not contest the third prong of the court's reasoning concerning Sec. 1985; the remaining two elements of the Sec. 1983 claim will be reviewed seriatim.

The operative section of Ordinance No. 81-19-L is the definitional section wherein the statute purports to require a license for operation of any amusement device that conforms to the following description:

"Amusement device" means any machine, device or instrument including, but not limited to, pinball, pool tables and video games upon the insertion of a coin, token, slug or card, operates or may be operated for use as a game, a contest or test of skill or other amusement of any description. "Amusement device" does not include vending machines.

Ord. 81-19-L, Section I(a), passed March 17, 1981. The Ordinance further provides that the Safety Director may license each such device, upon the payment of a $500.00 annual fee per device, if the applicant is a five-year resident of the county, of good moral character and does not operate the device in an "amusement arcade" (defined as a place of more than 6 devices or where devices are the "primary or principal source of income,") or less than 500 feet from a school or playground, or permit it to be operated by anyone under 18 years of age.

In order to maintain an action under 42 U.S.C. Sec. 1983, a person must show that he has been deprived of a "right[ ], privilege[ ], or immunit[y] secured by the Constitution" by another person...