Bailey v. Lowndes County Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

KEITH BAILEY and SHENIKA )

BAILEY, )

)

Plaintiffs, )

)

v. ) CASE NO. 2:22-CV-578-WKW

) [WO]

LOWNDES COUNTY )

COMMISSION, and JOEY )

BARGANIER, CHARLIE KING, and )

W. DICKSON FARRIOR, )

individually and in their official )

capacities as Commissioners for the )

Lowndes County Commission, )

)

Defendants. )

ORDER

The Lowndes County Commission revoked Plaintiffs Keith Bailey and

Shenika Bailey’s liquor license for their business. Believing that the revocation of

their liquor license violated the United States Constitution and state law, Plaintiffs

sued the Lowndes County Commission and three of its members—in their individual

and official capacities—in the Circuit Court for Lowndes County, Alabama.

Seeking monetary and equitable relief, the two-count Complaint alleged that

Defendants deprived them “of life, liberty, equal protection, [and] due process of

law . . . guaranteed to [them] by the laws and Constitution of the State of Alabama

and the United States.”1 (Doc. # 1-1 at ¶ 3.) Defendants timely and properly

removed this action to the United States District Court for the Middle District of

Alabama under 28 U.S.C. §§ 1331, 1441(a), and 1367.

Before the court are Defendants’ Motion for Partial Dismissal under Federal

Rule of Civil Procedure 12(b)(6) and Brief in Support. (Docs. # 6, 7.) Defendants

move for dismissal of the federal law claims in Count One and for remand of the

state law claims in Count Two to the Circuit Court of Lowndes County.2 (Doc. # 6

at 1.) Plaintiffs did not file a response to the motion within the deadline established

in the General Briefing Order. (Doc. # 10.) Based upon an independent review of

the Complaint’s allegations under the familiar standard governing Rule 12(b)(6)

motions to dismiss, the motion will be granted. See Resnick v. AvMed, Inc., 693

F.3d 1317, 1321–22 (11th Cir. 2012); (see also Doc. # 7 at 4–5 (setting forth the

standard for evaluating a Rule 12(b)(6) motion).)

1 Plaintiffs cannot bring a direct action under the United States Constitution against

Defendants but instead must proceed under 42 U.S.C. § 1983. See Williams v. Bennett, 689 F.2d

1370, 1390 (11th Cir. 1982) (concluding that, where Congress provides an adequate remedial

scheme, such as 42 U.S.C. § 1983, a plaintiff cannot bring a direct action under a constitutional

amendment). It will be presumed that Plaintiffs are bringing their federal constitutional claims

under § 1983, even though the Complaint does not cite § 1983.

2 The Complaint is not a model of clarity. Construed favorably to Plaintiffs, Count One’s

allegations include equal protection and due process claims under the United States Constitution

(as well as under Alabama’s constitution). (Doc. # 1-1 at ¶ 5.) Count Two invokes state law for

judicial review of Defendants’ decision to rescind Plaintiffs’ liquor license. (Doc. # 1-1 at ¶ 6

(citing Ex parte Trussville City Council, 795 So. 2d 725, 727 (Ala. 2001); State Dep’t of Pensions

& Security v. Whitney, 359 So. 2d 810 (Ala. Civ. App 1978))).

Defendants’ arguments for dismissal of the federal law claims are well

grounded. For substantially the same reasons set out in Defendants’ brief, the

motion to dismiss will be granted.

First, the Commission members have legislative immunity in their individual

capacities for their actions in voting to rescind Plaintiffs’ liquor license. See Brown

v. Crawford Cnty., Ga., 960 F.2d 1002, 1012 & n.15 (11th Cir. 1992) (holding that,

by voting for a temporary moratorium on issuing mobile home permits, “the

individual county commissioners were performing a traditional legislative function”

and were entitled to absolute legislative immunity in their individual capacities for

money damages); (see Doc. # 7 at 6.) The individual-capacity claims therefore are

not viable.3

Second, Plaintiffs have not pleaded a procedural due process claim because,

as a matter of law, they do not have a protected property or liberty interest in

maintaining a liquor license. Property interests are created by state law. See

Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379 (11th Cir. 1994)

(“Property interests, of course, are not created by the Constitution. Rather they are

created and their dimensions are defined by existing rules or understandings that

3 Although not argued by Defendants, dismissal of the official-capacity claims is

appropriate because those claims are redundant of the claims against the Lowndes County

Commission. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“Because suits

against a municipal officer sued in his official capacity and direct suits against municipalities are

functionally equivalent, there no longer exists a need to bring official-capacity actions against local

government officials, because local government units can be sued directly 42 U.S.C. § 1983 . . . .”).

stem from an independent source such as state law—rules or understandings that

secure certain benefits and that support claims of entitlement to those benefits.”

(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972))). Under Alabama law,

“[a] license to engage in the sale of intoxicants is merely a privilege with no element

of property right or vested interest of any kind.” Ott v. Everett, 420 So. 2d 258, 261

(Ala. 1982) (citations and internal quotation marks omitted); United States v. Shotts,

145 F.3d 1289, 1295 (11th Cir. 1998) (“[T]he Supreme Court of Alabama has held

that a license to operate a bar or a package store is not property.” (citing Ott, 420 So.

2d at 261, among other Alabama authorities)).

Likewise, an interest in holding a liquor license does not qualify as a liberty

interest. “Like property interests, the Constitution does not create liberty interests,”

and “Alabama state courts are also equally dismissive of claims that liquor licenses

carry liberty interests.” Catanese v. City of Trussville, No. 2:19-CV-01517-CLM,

2021 WL 24624, at *3 (N.D. Ala. Jan. 4, 2021) (citing Ott, 420 So. 2d at 261); see

also Arrington v. Dickerson, 915 F. Supp. 1503, 1509 (M.D. Ala. 1995) (“Because

a license to sell liquor in Alabama is a privilege not a right, Alabama has

extinguished any liberty interest.” (citation omitted)); see generally Ingraham v.

Wright, 430 U.S. 651, 673 (1977) (stating that liberty interests are “those privileges

long recognized at common law as essential to the orderly pursuit of happiness by

free men”). Without a protected property or liberty interest, the procedural due

process claim fails.4

Third, Plaintiffs have not pleaded a plausible equal protection claim. The

“threshold inquiry in an Equal Protection case is whether the plaintiff and the

proposed comparator are similarly situated, since the Equal Protection Clause

4 Three additional points are noteworthy on the federal due process claim. First, the

Complaint indicates that the due process claim is procedural in nature. (Doc. # 1-1 at ¶ 4 (alleging

the denial of notice and an opportunity to be heard).) But even if the Complaint were attempting

to allege a substantive due process claim, that claim would fail because the alleged right in

question—i.e., the alleged right to a liquor license—is not a “fundamental right.” Dacosta v.

Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002) (“Our substantive due process doctrine is

designed to protect those rights that are fundamental—rights that are implicit in the concept of

ordered liberty.” (cleaned up)).

Second, in the paragraph of the Complaint preceding Count One, Plaintiffs state that

Defendants “unlawfully deprived them of a business license” because Plaintiffs’ “business was in

close proximity to the business of Commissioner Bargainer’s brother, Dennis Bargainer.” (Doc.

# 1-1 at ¶ 3.) However, the due process claim (as well as the equal protection claim) in Count One

focus solely on the revocation of the liquor license for Plaintiffs’ establishment and not on the

revocation of their business license. (See Doc. # 1 ¶ 5.) But to the extent that Plaintiffs separately

challenge the revocation of their business license, the Eleventh Circuit has explained that, with

limited exceptions not applicable here, “Alabama recognizes no property interest in any business

license as against the right of the state to revoke it.” United States v. Shotts, 145 F.3d 1289, 1295

& n.9 (11th Cir. 1998). Plaintiffs’ alleged right to a business license cannot sustain their federal

constitutional claims.

Third, it appears that Plaintiffs have multiple avenues available under Alabama law for

judicial review of the Commission’s decision to revoke Plaintiffs’ liquor license. (See Doc. # 7

at 8–9); see, e.g., Phillips v. City of Citronelle, 961 So. 2d 827, 829 (Ala. Civ. App. 2007) (“[T]he

decision of the municipality in denying an application for a liquor license is subject to judicial

review and is reversible if it is shown that the municipality acted arbitrarily in denying the

application for a liquor license.” (citing Black v. Pike Cnty. Comm’n, 375 So. 2d 255, 257 (Ala.

1979)). In fact, Count Two seeks a state law remedy for judicial review of the Commission’s

decision. (Doc. # 1-1 at ¶¶ 1, 6.) Where a state provides an adequate remedy for an allegedly

unconstitutional deprivation, a procedural due process claim “is not cognizable under federal law.”

Foxy Lady, Inc. v. City of Atlanta, Ga., 347 F.3d 1232, 1238 (11th Cir. 2003) (“[T]o the extent that

there is an argument that the City’s current license revocation process amounts to a procedural

deprivation, the State of Georgia provides an adequate means by which to remedy any allegedly

unlawful deprivation, and the [plaintiffs’] procedural due process claim here is not cognizable

under federal law.”).

requires that ‘persons similarly situated . . . be treated alike.’” S&M Brands, Inc. v.

Georgia ex rel. Carr, 925 F.3d 1198, 1203 (11th Cir. 2019) (quoting City of

Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Because Plaintiffs allege a “class

of one” equal protection claim (Doc. # 1-1 at ¶¶ 4–5), they must plead enough facts

to show (1) that Defendants intentionally treated Plaintiffs differently than similarly

situated individuals and (2) that Defendants had no rational basis for treating

Plaintiffs differently. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1202 (11th Cir.

2007) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam)). “To be ‘similarly situated,’ the comparators must be ‘prima facie identical

in all relevant respects.’” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1264 (11th

Cir. 2010) (quoting Griffin Indus., 496 F.3d at 1204).

Plaintiffs’ equal protection claim cannot survive Griffin’s first prong. A class-

of-one claim fails where a plaintiff pleads too little (i.e., “by omitting key factual

details in alleging that [the plaintiff] is ‘similarly situated’ to another”) or where it

pleads “too much” (i.e., by alleging enough facts to reveal that the comparator is not

similarly situated). Griffin Indus., 496 F.3d at 1205 (citations omitted). Plaintiffs’

Complaint suffers from the first problem. There are no non-conclusory allegations

that Plaintiffs were treated differently from a similarly situated individual whose

liquor license was not revoked. Plaintiffs have pleaded no facts that would allow a

comparison of Plaintiffs to other liquor license holders. The Complaint alleges that

nameless “other establishments are allowed to operate and engage in alcoholic

transactions and have been issued liquor license[s] and [are] even operating without

a license within the Town’s jurisdiction,” (Doc. # 1-1 at ¶ 5), and it suggests that a

neighboring but unnamed establishment has a business license (Doc. # 1-1 at ¶ 3).

But that level of generality is not enough for pleading purposes. For example, the

Eleventh Circuit observed the following:

With regard to the “similarly situated” prong, the complaint does not

present a single instance in which a similarly situated developer was

granted a permit; it merely alleges that nameless, faceless “other”

permit applicants were given better treatment. Bare allegations that

“other” applicants, even “all other” applicants, were treated differently

do not state an equal protection claim . . . .

GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1367–68 (11th Cir. 1998),

overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709

(11th Cir. 2010); see also Etherton v. City of Rainsville, 662 F. App’x 656, 662 (11th

Cir. 2016) (“[B]are allegations of unequal enforcement are not enough to state a

‘class of one’ equal protection claim.” (citations omitted)). Based on Plaintiffs’

conclusory assertion of a “similarly situated” comparator (Doc. # 1-1 at ¶ 5), to

sustain Plaintiffs’ equal protection claims, the court would have to make up facts.

Plaintiffs’ assertion is but a threadbare recital of an element of the cause of action,

which cannot state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (“[T]he

tenet that a court must accept a complaint’s allegations as true is inapplicable to

threadbare recitals of a cause of action’s elements, supported by mere conclusory

statements.”).

No federal law claims remain. Exercising its discretion, the court declines to

retain supplemental jurisdiction over the state law claims. See 28 U.S.C.

§ 1367(c)(3). The state law claims will be remanded to the Circuit Court of Lowndes

County, Alabama. See Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1226 (11th

Cir. 2010) (“[F]ederal district courts in removal cases must remand, rather than

dismiss, state claims over which they decline to exercise supplemental jurisdiction

. . . .” (citation omitted)).

Based on the foregoing, it is ORDERED that Defendants’ Motion for Partial

Dismissal (Doc. # 6) is GRANTED and that Plaintiffs’ federal law claims are

DISMISSED.

It is further ORDERED that Plaintiffs’ state law claims are REMANDED to

the Circuit Court for Lowndes County, Alabama.

The Clerk of the Court is DIRECTED to take the necessary steps to effectuate

the remand.

DONE this 14th day of February, 2023.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE