Petition — Fulton v. Hecht

Gnited States

OCTOBER TERM, 1976

no. #671282

GEORGE J. FULTON,

Petitioner,

v8.

DAVID HECHT, et al.,

Respondents. .

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PAUL SIEGEL

PAUL A. LOUIS

1600 Alfred I. duPont Building

Miami, Florida 33131 (374-0544)

Attorneys for Petitioner

EEE SSS

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

ER nm

EET a

QUESTIONS PRESENTED

BEE

STATEMENT

Monopoly

Deprivation 6f Constitutional Right

Regulation...

State Imprimatur by Inaction ____.

REASONS FOR ALLOWANCE OF THE WRIT

CONCLUSION

APPENDIX

II

TABLE OF AUTHORITIES

Case Page

Adikes v. Kress,

I less 10

Burton v. Wilmington Parking Authority,

oS ff ee 10, 11, 16

Evans v. Newton,

a nee Cee ol 10, 14

Fulton v. Hecht,

545 F.2d 540 (5th Cir. 1977) 1

Greco v. Orange Memorial Hospital Corp.,

513 F.2d 873 (5th Cir. 1975) 18

Hollenbaugh v. Carnegie Free Library,

545 F.2d 382 (3d Cir. 1976) ...... 10, 15, 16, 17

Ihrke v. Northern States Power Co.,

459 F.2d 566 (8th Cir. 1972)

vacated as moot, 409 U.S. 815 (1972) ...___ «10,14

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) .. 11, 15,18

James v. Pinniz,

495 F.2d 206, 209 (5th Cir. 1974) 18

Mitchum v. Foster,

407 U.S. 225 (1972) .

17

il

TABLE OF AUTHORITIES (cont.)

Case Page

Monroe v. Pape,

4 EE 18, 19

Moose Lodge v. Irvis,

407 US. 168, 177 (1978) ———______________ 7,11

Mt. Healtly Bd. of Education v. Doyle,

__ U.S. —, 50 L.Ed.2d 471 (1977) —-------- = 5

Perry v. Sindermann,

i & 2 7 5

Slaughter House Cases,

CE yy 18

United States v. Classic,

CR EA 19

United States v. Isaacs,

493 F.2d 1124 (7th Cir. 1973)

cert.den. sub.nom. Kerner v. United States,

417 U.S. 976 (1974) ~~~ 19

Wilson v. Sandstrom,

317 So.2d 732, 741 (Fla.)

cert.den., 423 U.S. 1053 (1975) -.------------- 7,14

IV

TABLE OF AUTHORITIES (cont.)

Page

Constitutions, Statutes, and Rules

U.S. Constitution, 14th Amendment 17

38 USC. §1966(1) EE 2

28 U.S.C. §1332(a) (1) ~~:cecasiia deshiankcaaaale 3

28 U.S.C. §1337 3

28 U.S.C. §1343(3) 3

42 U.S.C. §1983 2, 3, 10, 17, 18, 19

Rule 54(b), Fed.R.Civ.P. 3

Fla.Const. Art. VII §7 5

Fla.Const. Art. X, $7 | gin 5

Fla.Stat. §550.27 8

ee 6

a Administrative Code §7E-2.02(21)(b) &

@) -................--.sessensesesenstsiaiaisiiienaa 9

inthe

Supreme Court

of the

Anited States

OCTOBER TERM, 1976

No.

GEORGE J. FULTON,

Petitioner,

v8.

- DAVID HECHT, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, George J. Fulton prays that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered on

January 17, 1977.'

1The Respondents are the general partners in West Flagler Asso-

ciates, Ltd., a Florida limited partnership. In addition to David Hecht,

are Florence Hecht, Barbara Hecht, Isabel Amdur, and Sidney

Lefcourt and Florence Hecht, Melvin Greenberg, Marshall Feuer and

Samuel Gordon as personal representatives of the estate of Isadore

Hecht.

2

OPINIONS BELOW

The opinion of the District Court is unreported and

is printed in the appendix hereto, infra, App. 9. The opinion

of the Court of Appeals, printed in the appendix hereto,

infra, App. 1, is reported in 545 F.2d 540.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 17, 1977. Rehearing and rehearing en banc

were denied on February 14, 1977, App. 15. The jurisdiction

of this Court is invoked under 28 USC §1254(1).

QUESTIONS PRESENTED

Whether the refusal to renew a longstanding

contract with a greyhound kennel owner by a

race track, whose primary function is to gen-

erate revenue for the state, using a grant of

monopoly power from the state and an exemp-

tion from its criminal statutes, operated under

intense state regulation with the assistance at

all times of full time state employees, consti-

tutes state action, where a state agency refused

to consider the kennel owner’s accusation that

his contract was not renewed in retaliation for

testimony he gave under subpoena before the

agency and that this refusal to renew violated the

agency’s rules.

Is the protection of 42 USC $1983 limited to

blacks in cases in which state action is an issue?

3

STATUTES INVOLVED

The statutory provision involved is Rev.Stat. §1979,

42 USC $1983 (originally section 1 of the Civil Rights

Act of 1871):

§1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be sub-

jected any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and Jaws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for

redress.

STATEMENT

Jurisdiction for Fulton’s initial complaint in the

Southern District of Florida was based on 28 USC

§1332(a) (1) and 28 USC §1343(3). The complaint alleged

diversity of citizenship for an action in tort and jurisdic-

tion under 28 USC §1343(3) for the violation of 42 USC

$1983. Fulton’s second amended complaint added an ac-

tion under the anti-trust laws, with jurisdiction based

upon 28 USC §1337. A non-jury trial was held on the

civil rights count and the District Court found state ac-

tion lacking. Final judgment on this claim was entered

under Federal Rule of Civil Procedure 54(b) and appealed

to the Fifth Circuit. It is that judgment Fulton requests

this Court to review. At other stages in the District Court,

4

Fulton’s tort claim was dismissed for failure to state a

claim and final judgment for defendants was entered

following jury trial on the anti-trust claims. An appeal

from those claims is pending in the Fifth Circuit. The facts

on which the state action allegations were based are essen-

tially uncontradicted, although the parties draw vastly

different conclusions from them.

George Fulton is a breeder of greyhounds who has

raced his dogs in Florida for more than 18 years. Fulton’s

booking contracts for periods of one to three years were

always renewed by Flagler over a fifteen year period. His

was consistently among the top kennels at the track. Re-

spondents are the general partners of West Flagler Asso-

— Ltd., owners and operators of the Flagler Kennel

ub.

Monopoly

Flagler is one of three dog tracks licensed by the state

to operate in Dade County, Florida. Each of the three

tracks has a state granted monopoly over greyhound racing

in Dade County for one-third of every year. There is an

overlap of approximately two weeks each year when more

than one track is running, because of a limitation on the

number of days racing is permitted. The most lucrative

rac.ng season is during the summer.

Deprivation of Constitutional Right

Flagler and Biscayne Kennel Club, another Dade

County dog track, were competing for the summer dates

in the 1972-1973 racing season. Biscayne served a state

issued subpoena on Fulton compelling him to testify at a

5

hearing before the State Board of Business Regulation

which awarded the racing dates. Fulton’s complaint in the

District Court alleged that he was threatened with loss of

his booking contract if he tesified at the hearing. The com-

plaint also alleges that after his testimony Fulton was told

by Flagler’s managing partner, Isadore Hecht, that the

latter was going to terminate Fulton’s booking at Flagler

and he would never again race at a track owned by Hecht.

The complaint further alleged that Flagler’s refusal to re-

new was in retaliation for Fulton’s testimony and to make

an example of Fulton by demonstrating that testimony

considered adverse by Flagler would result in severe

penalties.”

Public Function

Flagler and other pari-mutuel establishments are per-

mitted to exist by the Florida Constitution, Aricle VII, 87,

and Article X, §7.* This system of betting came into exist-

ence in Florida in 1931 during the great depression for the

purpose of increasing state revenue. That continues to the

present day to be the main reason for pari-mutuel wagering

in this state. Under the pari-mutuel wagering system, a

pari-mutuel pool is created from all bets on each race.

Eighty-three percent of the pool is distributed to winning

patrons. The race track’s gross revenue is the 17% of the

2Fulton was not given an opportunity at the state action trial to

rove his allegations concerning the reason for the refusal to renew his

athe The trial court did not consider the reasons Fulton was not

permitted to continue racing relevant. Flagler’s refusal to renew Fulton’s

booking because of exercise of his first amendment rights is actionable

under section 1983 if state action is present. Mt. Healtly Bd. of Educa-

tion v. Doyle, US. , 50 L.Ed.2d 471 (1977); Perry v. Sinder-

mann, 408 U.S. 593 (1972).

3Few so-called “private” businesses are established or authorized

by state constitutions.

pool deducted as “commissions”. The state’s share of every

pari-mutuel pool is 7 of the 17% commissions, or 41% of

the track’s gross revenue.’ Flagler pays all operating ex-

penses from its 10% of the pari-mutuel pool; this includes

2% of every pari-mutuel pool for purses to the winning

greyhounds, The record shows that the state’s share of the

gross revenues is twice the amount of Flagler’s profit from

the operation.

Symbiosis

Ten full time employees are at the track all of the

time it is in operation and the functions they perform are

indispensible to operation of the track. Flagler provides

these state employees furnished offices without charge. The

state has erected road signs on limited access and other

highways to direct the public to Flagler. One of the pur-

poses of heavy state regulation, described infra, is to pro-

mote public confidence in the integrity of greyhound rac-

ing, which enhances both state and track revenue. Based

on the sharing of revenue, the factors just mentioned and

others described herein, Fulton alleged and proved that the

State of Florida is a partner or joint venturer in the opera-

tion of Flagler or, alternatively, that Flagler is a revenue

generating agency of the state operated for it by the Re-

spondents.

The chairman of the Florida Board of Business Regu-

lation testified at the state action trial about public state-

*The state also receives a sales issi i

> als s tax on admission tickets or passes

and collects winning tickets if a patron forgets. The track salen a

subsidy or tax exemption from the state :

every race. Fla. Stat. §550.162. © state for $170 of its revenue from

7

ments he made to the effect that the state and pari-mutuel

tracks were in partnership. The state economist testified

to the very close inter-relationship between the state and

its pari-mutuel permittees. He stated that in Tallahassee,

during legislative sessions, there are numerous references

to the partnership between the state and the pari-mutuel

permittees by legislators, members of the executive branch,

agency staff members, and witnesses before legislative

committees. “It’s a term, the partnership word, has been

used for years and years up here.” The director of the

state’s Division of Pari-mutuel Wagering testified that

there is a mutually beneficial relationship between the

state and the dog track.

Fulton contended below that probably the best illus-

tration of the symbiotic relationship between track and

state is found in the joint effort by Flagler and the State

of Florida in jailing 18 kennel owners who refused to race

at Flagler, at about the time of the trial on the state ac-

tion issue. This incarceration was upheld by the Florida

Supreme Court primarily because of the overwhelming state

interest in protecting receipt of $64,000 per day in revenue

from Flagler’s operation. The Court said that the kennel

owners who refused to race were “biting the hand that

feeds them”’—referring in context to the State of Flor-

ida. Wilson v. Sandstrom, 317 So.2d 732, 741 (Fla.), cert.

den., 423 U.S. 1053 (1975). The opinion amounts to an

adjudication by Florida’s highest court that the state and

Flagler are partners or joint venturers.’

SThat this is an important factor in a state action analysis is estab-

lished, inter alia, by Moose Lodge v. Irvis, 407 U.S. 163, 177 (1972).

8

Regulation

Flagler has both a long term permit and an annual

license from the state. Prior to its issuance, the permit was

ratified at a special election by the voters in Dade County.

Flagler’s general manager described the race track as “the

most regulated business in the world.” All persons con-

nected with Flagler in any fashion are licensed by the state

including those who scrub the floors and clean the toilets.

State statute requires that at least 85% of Flagler’s em-

ployees be residents of the state for two years. Fla.Stat.

$550.27. A state employee at the track investigating any

violation of law or rules has the power to authorize other

persons to search the person, room, or automobile of any

licensee or vendor. Licenses such as Mr. Fulton’s may be

suspended if the licensee defaults in obligations or issues

bad checks. The state judge and two other judges employed

by Flagler are responsible for proper conduct of the race

meet and have general supervision over owners, trainers

and other officials and licensed personnel, State veteri-

narians inspect and test greyhounds. State auditors con-

tinuously audit all of the fiscal activities of the track while

it is in operation, and the state prescribes detailed rules

for all fiscal operations of the track. State inspectors in-

spect the gate count and observe patrons and bettors. They

arrange for police officers to eject undesirable patrons.

State Imprimatur by Inaction

A few days after he was informed by letter that

Flagler was not going to renew his booking, Fulton re

quested a meeting with the chairman of the Board of

Business Regulation, the director of the Division of Pari-

Mutuel Wagering, and Flagler’s managing partner, Isa-

9

dore Hecht. No such meeting took place, and Fulton filed

suit. Fulton requested the Board to direct Flagler to per-

mit him to race and also requested an immediate hearing

to present charges of rule violation by Flagler. Fulton’s

letter contended that Flagler’s failure to renew his con-

tract was a direct result of his testimony before the Board.

A detailed summary of Fulton’s letter was orally given

to the Board at its next meeting and the Board referred

the matter to its staff for review and report at the next

meeting. Other than a brief exchange of correspondence,

neither the Board of Business Regulation nor the state

took any action whatsoever on Fulton’s complaint against

Flagler.

Fulton complained that Flagler had violated the

Board’s so-called “15-day rule”, section 7E-2.02(21) (b)

and (c) of the Rules of the Division of Pari-Mutual

Wagering. This prohibts any permit holder or licensee

from taking any action, including termination of asso-

ciation, without first giving the licensee and the Division

of Pari-Mutuel Wagering a 15-day notice of intent to take

such action. It was admitted that no such notice was given

to the Board of termination of the 15-year relationship

between Fulton and Flagler. The director of the Division

of Pari-Mutuel Wagering testified that refusal to rebook

a kennel owner who raced at a track for 15 years was a

termination of association within the meaning of the 15-

day rule, but he did not believe the rule was violated under

the circumstances of this case. However, neither the Board

of Business Regulation nor any of its officers or employees

ever conducted a hearing on Fulton’s complaint of rule

violation and no order was ever entered on it. That re-

mains the case to this date, some four and one-half years

after Fulton’s complaint was lodged with the Board. The

10

record shows that in an unrelated case, the Division of

Pari-Mutuel Wagering acted within approximately two

weeks on a complaint by a dog track that a number of

kennel owners violated the same rule; a hearing was con-

ducted, findings made, and licenses suspended.

Florida dog track owners can deal arbitrarily and

unfairly with kennel owners because by custom and usage‘

in this state, the kennel owners have no influence with or

remedies available from the Legislature or the Board of

Business Regulation in a dispute with a dog track. The

tracks wield all of the economic and political power.

REASONS FOR ALLOWANCE OF THE WRIT

1. The decision of the Court of Appeals conflicts

with this Court’s decisions in Burton v. Wilmington Park-

mg Authority, 365 U.S. 715 (1961) and Evans v. Newton

382 U.S. 296 (1966). It conflicts with the decisions of the

Kighth Circuit in Jhrke v. Northern States Power Co

459 F.2d 566 (8th Cir. 1972), vacated as moot. 409 U S,

815 (1972), and the Third Cireuit in Hollenbaugh v. Car-

negie Free Library, 545 F.2d 382 (3d Cir. 1976). This

case presents an important question of applicability of

section 1983 to white persons who have been subjected to

state approved discrimination.

2. Burton v. Wilmington Parking Authority, 365

U.S. 714 (1961) is the leading case interpreting the mean-

*Section 1983: “Every person who, under color of

Plegiee A; ~ State... . —— v. Kress, 308 Us 14 (1970)

es its power primari stituti

lation, but “custom or can? die ana peering

11

ing of state action under section 1983, The District Court

and the Court of Appeals in this case so limited its signifi-

cance as to emasculate it in the Fifth Circuit. The trial

court decided that application of Burton is limited to

lessees of public property (App. 11).’ Both the trial and ap-

pellate courts noted an absence in this case of a lease of

public property and a physical relationship between Flag-

ler and the state. Both found the mutual financial benefits

present not sufficient to amount to state action. The con-

clusions are erroneous. It was admitted by Respondents

that Flagler’s permit and license in effect are an exemp-

tion to conduct activities that otherwise would be in viola-

tion of the state’s criminal statutes. This exemption cer-

tainly is as valuable and necessary to Flagler as is a lease

of public property. It is quite analogous.’ There are also

physical relationships between Flagler and the state, in-

cluding the full time state employees who help to operate

the track and the road signs which assist in bringing the

public to Flagler. There is a symbiotic relationship be-

tween Flagler and the state. It is based upon the factors

just enumerated and an even more traditional partner-

ship analysis. The state receives 41% of the track’s reve-

nue. The better business is at Flagler, the more the state

benefits. The state will fight in its courts to keep the track

7Shortly before the state action trial, the court entered an order

finding that Burton’s reliance on the direct financial benefit to the

state is more helpful in determining whether state action exists under

the alleged partnership or joint venture in the case at bar. Moose Lodge

vy. Irvis, 407 U.S. 163 (1972) and Jackson v. Metropolitan Edison Co.,

419 US. 345 (1974) were considered not apposite because not predi-

cated on a symbiotic relationship. This position was reversed in the

opinion finding no state action (App. 9).

'The Eagle Coffee Shop paid $28,700 a year for its lease. Flagler

pays many millions annually to the state for its permit. Flagler’s permit

is probably worth more money than the entire race track.

12

in operation to protect its revenue, even at the expense of

throwing its citizens into jail without jury trial. We have

already pointed out that the state effectively participated

in Flagler’s refusal to renew Fulton’s booking by refusing

to conduct a hearing and enter an order on Fulton’s com-

plaint to the Board that Flagler’s action against him

violated the state’s rules. We juxtapose this Court’s lan-

guage in Burton, (365 U.S. at 725) with what we consider

to be an appropriate description of the instant facts:

[I]n its lease with Eagle

the Authority could have

affirmatively required

Eagle to discharge the re

sponsibilities under the

Fourteenth Amendment im-

posed upon the private en-

terprise as a consequence of

state participation. But no

State may effectively abdi-

cate its responsibilities by

either ignoring them or by

merely failing to discharge

them whatever the motive

may be. It is of no consola-

tion to an individual denied

the equal protection of the

laws that it was in good

faith. Certainly the conclu-

[Under its rules, permit and

license, the Board of Busi-

ness Regulation] could have

affirmatively required

[Flagler] to discharge the

responsibilities under the

Fourteenth Amendment im-

posed upon the private en-

terprise as a consequence of

state participation. But no

State may effectively abdi-

cate its responsibilities by

either ignoring them or by

merely failing to discharge

them whatever the motive

may be. It is of no consola-

tion to an individual denied

the equal protection of the

laws’ that it was in good

*Flagler’s action violated Fulton’s right to freedom of speech and

also deprived him of equal protection of the laws. Fulton was denied

the opportunity to compete for the purses, 2% of every pari-mutuel

pool established by state constitution, statute, regulation, permit and

license, which he depends on for his livelihood.

13

sions drawn in similar cases

by the various Courts of Ap-

peals do not depend upon

such a distinction. By its in-

action, the Authority, and

through it the State, has not

only made itself a party to

the refusal of service, but

has elected to place its

power, property and pres-

tige behind the admitted dis-

crimination. The State has

so far insinuated itself into

a position of interdepend-

ence with Eagle that it must

be recognized as a joint par-

ticipant in the challenged

activity, which: on that ac-

count cannot be considered

to have been so “purely

private” as to fall without

the scope of the Fourteenth

Amendment.

faith. Certainly the conclu-

sions drawn in similar cases

by the various Courts of Ap-

peals do not depend upon

such a distinction. By its in-

action, the [Board], and

through it the State, has not

only made itself a party to

the refusal [to renew], but

has elected to place its

power, [permit] and pres-

tige behind the admitted dis-

crimination. The State has

so far insinuated itself into

a position of interdepend-

ence with [Flagler] that it

must be recognized as a

joint participant in the chal-

lenged activity, which on

that account cannot be con-

sidered to have been so

“purely private” as to fall

without the scope of the

Fourteenth Amendment.

Even the state’s extensive regulation is of mutual benefit

to the state and the track. It benefits the state by assuring

that it receives its proper share of the revenue. It benefits

the track because the extensive state regulation creates an

aura of public confidence in greyhound racing which in-

creases the amount of betting and consequently track and

state revenue.

14

3. The Fifth Circuit opinion conflicts with Evans v.

Newton, 382 U.S. 296 (1966). This Court held that a park

devised by will to the City of Macon to be used only by

whites had to be treated as a public institution subject

to the command of the Fourteenth Amendment, regard-

less of any change in title. This result was reached because

of the predominant public character and purpose of the

park. The opinion recites that golf clubs, social centers,

luncheon clubs and schools are often racially oriented and

private in character. The park was said to be more like a

fire department or a police department that traditionally

serves the community. What is a dog track? Absent the

sharing of revenue and certain other factors, it might very

well be put in the private sector. But considering that the

primary purpose for its existence is to raise revenue for

the state, Flagler in reality serves a public function, using

monopoly power, exemption from the criminal laws and

other state granted assistance and protection. These fac-

tors make it inappropriate to compare the dog track to a

public utility as the Fifth Circuit did. If the 18 recalci-

trant kennel owners in Wilson v. Sandstrom, supra, can-

not properly be analogized to policemen and firemen, how

else is their incarceration to be squared with the Consti-

tution?

4. To our knowledge only one other federal case has

analyzed a revenue sharing scheme remotely similar to

that in this case. In Ihrke v. Northern States Power Co.,

459 F.2d 566 (8th Cir.), vacated as moot, 409 U.S. 815

(1972), the City of St. Paul received 5% of the power

company’s revenue for gas and electricity sold in the city.

The city had the right to approve or even revise the power

company’s regulations relating to its collection procedures,

It gave the power company a monopoly on retail distribu-

15

tion of gas and electricity. Under the circumstances, its

threatened termination of service was found to be under

color of law. The revenue sharing scheme made the city to

some extent a joint venturer with the power company, ac-

cording to the analysis of the case by the Third Circuit in

Jackson v. Metropolitan Edison Co., 483 F.2d 754, 759

(3d Cir. 1973). Ihrke was not directly discussed by this

Court in affirming the Third Circuit, Jackson v. Metro-

politan Edison Co., 419 U.S, 345 (1974). The instant

opinion conflicts with Jhrke. We do not believe this Court’s

opinion in Jackson, supra, deprived Ihrke of its force."°

5. In Hollenbaugh v. Carnegie Free Library, 545

F.2d 382 (3d Cir. 1976), the Court considered a summary

judgment entered on a complaint alleging constitutional

deprivation when library trustees terminated appellants’

employment. The library received approximately 90% of

its financial support from government agencies and 15 of

the 24 trustees were appointed by local governments. The

library was designated by a local school district and city and

as their agent to provide public library service to their

residents and taxpayers, The summary judgment was re-

versed and state action found. The Court focused on the

nexus problem, a key one in the Fulton litigation (545

F.2d at 385) :

Under these circumstances, it is impossible to

distinguish the state’s involvement in the allegedly

discriminatory employment determination from

In Jackson, this Court noted that “it may well be that acts of

heavily regulated utility with at least something of a governmentally

protected monopoly will more readily be found to be ‘state’ acts than

will be the acts of an entity lacking these characteristics.” 419 U.S.

at 350-51. An additional element in /hrke important to its continued

vitality is the sharing of revenue, which was not present in Jackson.

16

the state’s involvement in the general operation

of the library. That the state’s extensive partici-

pation in the comprehensive program may ob-

viate a need to show involvement in the specific

activity challenged is illustrated by Burton,

supra, 365 U.S. at 725, 81 S.Ct. 856, 862, finding

that state action existed despite the lack of state

participation in the formulation of the segrega-

tion policy in issue. In the present case, the

state’s interdependence with the library estab-

lishes it as a “joint participant in the challenged

activity,” ibid., in a “symbiotic relationship” with

the library, Jackson, supra, 419 U.S. at 357, 95

S.Ct. at 457, making it unnecessary to show spe-

cific state participation in the challenged action.

An alleged lack of nexus with the challenged activity was

a strong factor in the decisions of both the Court of Ap-

peals and the District Court; they effectively concluded

that absent a sufficiently close connection between the

state and the challenged action (in this case refusal to

renew Fulton’s booking) there cannot be state action. The

Third Circuit in Hollenbaugh and this Court in Burton

reached a contrary conclusion."

Even if it were assumed arguendo that Burton itself requires that

the state be connected with the challenged action, there is at least as

much nexus here as there was in Burton. There, the Parking Authority

supposedly benefitted by the discriminatory practices of the le

Restaurant because this discrimination was thought necessary for the

financial success of the restaurant. Here, analogously, Fulton’s booking

was not renewed, according to Flagler, because he was a troublemaker

and did not supply enough dogs with particular racing characteristics.

If Flagler’s contention were true, getting rid of Fulton would benefit

the business financially ; se a bad kennel would increase the

pari-mutuel pools and the state would derive a financial benefit. Fulton’s

version is that his booking was not renewed because he permitted him-

self to be injected into a dispute between two dog tracks for the lucra-

17

Among the principal defects in the Court of Appeals

opinion in Fulton are the piecemeal dissection of the in-

dividual factors which form part of a state action analysis

and a failure to put all of the pieces together to permit

examination of the whole. In the vernacular, the Fifth Cir-

cuit saw the trees but not the forest. The Court discussed

monopoly, regulation, symbotic relationship, state impri-

matur by inaction and nexus. It put these factors into such

a large-holed sieve that everything fell out but the connec-

tion between the state and the challenged action. The other

factors taken together are sufficient to demonstrate state

action, A more careful analysis of the totality of circum-

stances is found in the Hollenbaugh opinion. Fulton con-

flicts with Hollenbaugh and the latter is the better reason-

ed opinion.

6. This case presents an important question of fed-

eral law which’ needs to be settled by this Court. The ques-

tion relates to the availability of the remedies provided

by 42 USC §1983 to white persons in cases in which state

action is an issue. The Fifth Circuit Court of Appeals

has become so overburdened by and enmeshed in contro-

versies generated by the effects of the Civil War, it has

lost sight of the language and part of the basic purpose

of section 1983. That act'? was passed to protect rights

guaranteed by the Fourteenth Amendment because state

tive summer racirig dates, which Flagler lost after having them for

several years; this angered Flagler’s boss. Flagler’s position in the date

dispute before the Board of Business Regulation was that it could

develop the greatest amount of revenue for the state if it had these

dates. Fulton contends Flagler got rid of him because Flagler believed

Fulton interfered with a Flagler effort to make more money for the

track — and consequently also for the state.

12Mitchum v. Foster, 407 U.S. 225 (1972) includes an excellent

discussion of the history of the act, and its place in our system of

federalism.

18

laws might not be enforced by reason of prejudice, passion,

neglect, intolerance or otherwise. Monroe v. Pape, 365 U.S.

167 (1961). The protection of this Amendment is not

limited to blacks. Slaughter House Cases, 83 U.S. (16

Wall.) 36. It is not because there were many blacks in the

South that the legislation was necessary, but rather be-

cause these human beings were discriminated against and

the discrimination not remedied by state law and judi-

cial systems. There is a strong inference in the Fifth Cir-

cuit cases that the color of a party’s skin is of extreme im-

portance to the outcome of his section 1983 claim. Greco

v. Orange Memorial Hospital Corp., 513 F.2d 873, 878

n.9, 879 (5th Cir. 1975) ; James v. Pinnix, 495 F.2d 206,

209 (5th Cir. 1974). Sub silento, this was an important

factor in the outcome of the instant case. Fulton is white.

Even though he was discriminated against by the state’s

joint venturer and partner and could not find a remedy

with the responsible state agency, the District Court and

Court of Appeals found him outside the scope of section

1983 protection. This is contrary to the intent and purpose

of the statute.

Fulton belongs to a small group encountering prob-

lems similar in nature to those of blacks in the reconstruc-

tion South. A greyhound kennel owner in a dispute with a

dog track does not receive the ear, much less the assistance

of the responsible state agency. If he does not perform his

agreed task the state and its courts help the dog track to

put him in jail.

Justice Douglas perfectly described this case in his

dissent in Jackson v. Metropolitan Edison Co., 419 U.S.

345, 363-64 (1974) :

19

Section 1983 was designed to give citizens a

federal forum for civil rights complaints where-

ever, by direct or indirect actions, a State, act-

ing in cahoots with a private group or through

neglect or listless oversight allows a private

group to perpetrate an injury. The theory is that

in those cozy situations, local politics and the

pressure of economic overlords on subservient

state agencies make recovery in state courts un-

likely.

There are no more influential citizens in the State of

Florida than the Respondents in this case. The title “eco-

nomic overlords” is suitable. There was no remedy for

Fulton before the Board of Business Regulation of the

State of Florida when he complained that the refusal to

renew his contract violated a regulation of that Board.

There would likely have been no remedy for Fulton in the

courts of the State of Florida. He too would have been

told he had bitten the hand that fed him. The power and

propensity to corrupt of the racing industry is vast. See,

e.g., United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1973),

cert.den.sub.nom. Kerner v. United States, 417 U.S. 976

(1974).

It is important to the future administration of section

1983 for this Court to make clear that the protection of

the statute is available to white citizens who suffer dis-

crimination at the hands of a state or those who take their

power from the state."

13“Misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of

state law, is action taken ‘under color of’ state law.” United States v.

Classic, 313 U.S. 325, 326 (1941); Monroe v. Pape, 365 U.S.167, 184

(1961).

20

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that this Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

PAUL SIEGEL, ESQ.

PAULA. LOUIS, ESQ. |

1600 Alfred I.duPont Building A Pp Pp E N D X

Miami, Florida 33131

(374-0544)

Attorneys for Petitioner

United States Court of Appeals,

Fifth Circuit.

No. 75-4122.

George J. FULTON, Plaintiff-Appellant,

v.

Isadore HECHT et al.,

Defendants-Appellees.

Jan. 17, 1977.

Jay M. Vogelson, Dallas, Tex., Norman A. Sand, Paul

Siegel, Paul A. Louis, Miami, Fla., for plaintiff-appellant.

Herbert L. Nadeau, Miami, Fla., for defendants-

appellees.

Appeal from the United States District Court for the

Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and

TJOFLAT, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This 54(b) certified appeal of dismissal of a 42

U.S.C.A. § 1983 action is brought by George Fulton, a

greyhound breeder and racer, against the partners of West

Flagler Associates, Ltd., owners and operators of Flagler

Kennel Club, alleging that West Flagler refused to renew

his booking contract to race his greyhound dogs at the Ken-

nel Club. The trial court found that the Kennel Club was

App. 2

privately owned and financed and that the State of Flor-

ida’s involvement with the dog racing industry was not

sufficiently connected with West Flagler’s decision to ter-

minate Fulton’s contract so as to make West Flagler’s

conduct attributable to the State for purposes of the Four-

teenth Amendment.

Flagler Kennel Club is a wholly privately owned grey-

hound racing track. It is one of three dog tracks licensed

by the State of Florida to engage in the business of par-

mutuel greyhound racing in Dade County.

George Fulton, a greyhound racer and breeder, was

licensed by the State of Florida to race his dogs. He had

raced greyhounds at Flagler Kennel Club for approxi-

mately fifteen years. His booking contract. with West

Flagler, to race at the Kennel Club, expired on September

4, 1972 and prior to that date, he was advised that -his

contract would not be renewed. On September 1, 1972, he

filed suit against the partners of West Flagler Associates,

Ltd. for failure to renew the contract. He claimed the con-

tract was not renewed in retaliation for testimony he gave

before the Board of Business Regulation, the state agency

that allocates racing dates among the three Dade County

tracks, which was adverse to West Flagler. Fulton asserts

that the act of refusing to renew his contract was done

under color of state law in violation of § 1983 and in de-

privation of his rights under the Fourteenth Amendment.

He claims state action is present in that the State regu-

lates the dog racing industry, a symbiotic relationship

exists between the State and the Kennel Club, the State

has granted a monopoly to the Kennel Club and there is

App. 3

imprimatur by inaction due to the failure of the Board of

Business Regulation to act on his complaint regarding

termination of his contract.

Procedural History

In a series of multi-claim complaints,’ Fulton alleged

West Flagler committed an unnamed tort, violated § 1983,

the Fourteenth Amendment, and the Sherman Anti-Trust

Act in refusing to renew his contract. The trial court dis-

missed the § 1983 action finding insufficient state involve-

ment. The tort claim was likewise dismissed and trial by

jury was subsequently had on the anti-trust claim resulting

in judgment against Fulton.’

Fulton attempts here to appeal the dismissal of the

$ 1983 claim and the tort claim. We accept the § 1983 ap-

peal, finding we have jurisdiction, but we must reject the

appeal of the dismissal of the tort claim. The trial judge

entered a final judgment under F.R.Civ.P. 54(b) on the §

1983 claim. We find no such final judgment on the tort

claim. The tort cla.m is not before the Court since no cer-

tificate was entered under 54(b).’ Having jurisdiction of

the § 1983 appeal, we affirm the trial court’s dismissal.

1The procedural history of this case can only be characterized as a

winding maze of complaints and counts. In addition to the tort claim,

anti-trust and § 1983 claim, Fulton alleged numerous other constitu-

tional and statutory violations. However, as pointed out, infra, only the

§ 1983 claim is before us here.

2Separate appeal on the anti-trust claim is pending in this Court

in case number 76-2391.

3We intimate no decision on whether the tort action is to be made

a part of the pending anti-trust a in case number 76-2391. That

is a decision for the panel that is ing the anti-trust appeal. We are

confident that the panel will, within proper limits, permit use of ap-

propriate portions of this record to avoid or reduce unnecessary costs.

App. 4

State Action

The thrust of Fulton’s § 1983 claim is that West

Flagler’s failure to renew his contract to race his grey-

hounds at the Flagler Kennel Club track was done under

color of state law. He also claims this refusal denied him

equal protection of the laws. The Flagler Kennel Club is

admittedly a private operation. As such, the proof must

show significant state involvement in order to bring an

otherwise private concern within the ambit of the Four-

teenth Amendment. Moose Lodge No. 107 v. Irvis, 1972,

407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627; Greco v.

Orange Memorial Hospital Corp., 5 Cir., 1975, 513 F.2d

873, cert. denied, 1975, 423 U.S. 1000, 96 S.Ct. 438, 46

L.Ed.2d 376. See also Burton v. Wilmington Parking Au-

thority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45;

Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92

L.Ed. 1161. The protective armor of the Fourteenth

Amendment invoked under § 1983 is activated to prevent

deprivation of rights secured by the Constitution and laws

only when state action or action taken under color of state

laws is present.

We are not left to “flounder blindly” in determining

if the state is significantly present on the side of alleged

impermissible deprivation of a secured right. The Supreme

Court has many times explored this area and exhorted

words of wisdom for our guidance. While it would appear

that our task has been simplified, we are reminded that

“the question of whether particular . . . conduct is private,

on the one hand, or . . . ‘state action,’ on the other hand,

frequently admits of no easy answer.” Moose Lodge No.

107 v. Irvis, supra, 407 U.S. at 172, 92 S.Ct. at 1971. See

also Jackson v. Metropolitan Edison Co., 1974, 419 U.S.

EE ee

App. 5

845, 95 S.Ct. 449, 42 L.Ed.2d 477; Burton v. Wilmington

Parking Authority, supra, 365°U.S. at 723, 81 S.Ct. 856,

“Only by sifting facts and weighing circumstances can the

nonobvious involvement of the State in private conduct be

attributed its true significance.” 365 U.S. at 722, 81 S.Ct.

at 860.

The Challenged Activity

The trial court found that ‘he State of Florida was

not sufficiently connected with West Flagler’s refusal to

renew Fulton’s booking contract so as to imbue that act

with the attributes of the State.

Fulton argues that state action or action under color

of state law is present in that the State of Florida regu-

lates the dog racing industry. He claims that the State

and West Flagler are partners, The State issues a permit

and license for the Kennel Club to operate pari-mutuel bet-

ting—Fulton, himself, must be licensed by the State to race

his dogs—state auditors audit the books of the track, the

State receives revenue from the track, state veterinarians

examine the racing dogs, and the State performs other

functions in the industry that could be considered regula-

tion. These factors considered, however, we are not per-

suaded that this regulation places the stamp of state

created holiness on the Kennel Club. In Jackson v. Metro-

politan Edison Co., supra, in speaking of public utility

regulation, the Supreme Court said that “(t]he mere fact

that a business is subject to state regulation does not by it-

self convert its action into that of the State for purposes

of the Fourteenth Amendment.” Id. 419 U.S. at 350, 95

S.Ct. at 453. The Court further said that even extensive or

detailed regulation, by itself, would not be sufficient to

App. 6

tip the scales. The Court, in Jackson, recognized that public

utilities would likely be subject to extensive regulation,

but it refused to acknowledge such regulation as the single

decisive factor for finding the utility to be the state itself*

We think the dog racing industry can be analogized to the

public utility situation. Because of the very nature of the

industry, it must be regulated to protect the public. Even

though the regulation might be extensive, it cannot, in any

realistic sense, make the State a partner in the endeavors

of the Kennel Club.

The “symbiotic relationship” that was characterized in

Burton v. Wilmington Parking Authority, supra, is not

present here. The Kennel Club is not a lessee of public

property. There is no evidence of a physical relationship.

The State is not obligated to maintain and repair the Ken-

nel Club’s premises, There are certain mutual financial

benefits that are derived from the operation of the track.

Fulton strongly urges that the sharing of the revenue indi-

cates a partnership. He asserts that the Florida Supreme

Court case, Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975)

illustrates that partnership and the State’s interest in pro-

tecting its share of the revenue.

In Wilson, the State of Florida intervened in a suit

by West Flagler against boycotting greyhound owners to

force compliance with their contracts to furnish grey-

hounds for track racing. The suit resulted in an injunction

in effect requiring the dog owners to comply with their

contracts to supply the dogs under the pain of contempt for

non-compliance. Fulton’s position is that intervention by

the state to protect its share of the revenue demonstrates

*See also Public Utilities Commission v. Pollak, 1952, 343 U.S.

451, 72 S.Ct. 813, 96 L.Ed. 1068.

App. 7

that there was a partnership. We do not agree. The finan-

cial benefits accruing to the State from the continued oper-

ation of the Kennel Club do not convert private conduct

into state action.

We must likewise reject Fulton’s claim that state ac-

tion is present because, in addition to the regulation, the

Kennel Club is granted a monopoly one-third of the year.

Each of the three dog tracks in Dade County is allotted

specific dates for racing by the Board of Business Regula-

tion. Dates are set to minimize overlap. Therefore, on some

dates, only one dog track would be in operation. Although,

it is possibly more likely that we would find the acts of an

extensive state regulated business—coupled “with at least

something of a governmentally protected monopoly”—‘“‘to

be ‘state’ acts than [would] the acts of an entity lacking

these characteristics”, we cannot let these characteristics

lead us to an erroneous conclusion. Jackson v. Metropoli-

tan Edison Co., supra, 419 U.S. at 351, 95 S.Ct. at 453.

Our inquiry must go a step further and determine if there

is a “sufficiently close [connection] between the State and

the challenged action .. . so that the action of the [business

entity] may be fairly treated as that of the State itself.”

Id. See also Moose Lodge No. 107, supra, 407 U.S. at 176,

92 S.Ct. 1965.

The challenged activity here is the refusal to renew

Fulton’s booking contract to race greyhounds at Flagler

Kennel Club. We fail to find that “necessary” sufficientiy

close connection between this act and the State so as to

treat it as the act of the State. The evidence is that the

State of Florida—except for the requirement that a dog

racer must have a state license to run his dogs—does not

regulate booking contracts between the Kennel Club and

App. 8

the dog owners. In fact, the State has no control over the

contract. Fulton has not shown that the State either di-

rectly or indirectly participated in the decision not to re-

new his contract. See Greco v. Orange Memorial Hospital

Corp., supra. There has been no showing of involvement

by the State of Florida in this challenged activity.

We also agree with the trial court that failure of the

Board of Business Regulation to act on Fulton’s complaint

regarding termination of his contract does not give rise to

state action.

AFFIRMED.

ee eS eS oe

App. 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 72-1407-CIV-JE

GEORGE J. FULTON,

Plaintiff

vs.

ISADORE HECHT, et al.,

Defendants.

ORDER

THIS CAUSE came on for hearing before the Court

on Count II of the second Amended complaint. The issue

whether state action exists under Count I was submitted

by the parties to the Court for determination prior to jury

trial.

Count I alleges a deprivation of plaintiff's civil rights

under 42 U.S.C, Sec. 1983. Plaintiff contends that he was

deprived of his rights of freedom of speech and equal pro-

tection of laws when defendants declined to renew his book-

ing contract to race greyhound dogs at Flagler Kennel

Club. Plaintiff argues that the refusal to renew the con-

tract was in retaliation for testimony, which was adverse

to defendants’ interests, given before the State Board of

Business Regulation. The equal protection claim rests on

plaintiff’s alleged inability to compete on an equal basis

for a racing contract. Because of the ruling in this order

on the threshold state action issue, the Court will not be

App. 10

called upon to decide whether defendants’ refusal to re-

new the contract violated plaintiff’s constitutional rights.

Where the impetus for the challenged conduct is pri-

vate, the state must have “significantly” involved “itself”

with the activity under scrutiny in order for it to fall with-

in the ambit of the fourteenth amendment. Moose Lodge

No. 117 v. Irvis, 407 U.S. 163, 173 (1972). Recently the

Supreme Court in Jackson v. Metropolitan Edison Co., 419

U.S. 345 (1974), instructed that the central inquiry should

focus on whether there is a sufficiently close nexus be-

tween the state and the challenged action of the private

defendant so that the defendant’s conduct may be treated

as that of the state itself. Jackson held that a utility com-

pany’s termination of service to a household did not consti-

tute state action even though the company was engaged in

a business affected with public interest, was subject to ex-

tensive state regulation, and enjoyed a partial monopoly

within its service territory. Notwithstanding Justice Doug-

las’ dissent in Jackson, this Court recognizes a shift,

signaled in both Moose Lodge and Jackson, away from an

examination which aggregates the general relationships

between the state and a private defendant to an examina-

tion which focuses primarily on the state’s relation to the

challenged action.

State action is present in this action, plaintiff urges,

because of state regulation over the dog tracks, because the

tracks receive monopoly status, because the tracks are

exempt from the state’s criminal laws regarding gambling,

and because a mutual benefit exists between the tracks and

the state through the receipt of revenue from a percentage

of the pari-mutuel pools. Plaintiff contends that the result

is a maximization of revenue both for the state and the

App. 11

tracks and this makes the state and the defendants part-

ners in a joint venture for purposes of State action as rec-

ognized in Burton v. Wilmington Park Authority, 365 U.S.

714 (1961).

Although neither Moose Lodge nor Jackson involved

the “symbiotic relationship” which characterized Burton,

the Court in Burton explicity limited its holding to lessees

of public property. 365 U.S. at 726. This narrow interpre-

tation was reiterated in Jackson. 419 U.S, at 358. The

symbiotic relationship in Burton included both a physical

and financial relationship to the extent that the state “had

so far insinuated itself into a position of interdependence

with the restaurant that it was a joint participation in the

enterprise.” 419 U.S. at 357-58.

Contrary to the evidence in Burton, there is no evi-

dence in the present action establishing a physical rela-

tionship between the state and Flagler Kennel Club. The

defendants are not lessees of public property. The Flagler

Kennel Club is privately owned and financed. The state is

not responsible for the daily maintenance, upkeep, or op-

eration of the track, Certain mutual financial benefits,

however, do exist in the present case. Here licenses are

granted by the state to the tracks to allow pari-mutuel

betting which otherwise would be illegal under state law.

The state receives a tax of 7% from the pari-mutuel pool,

a sales tax from admission tickets which amounts to either

15% of admission price per patron or 10 cents per person

whichever is greater, and the unclaimed or uncashed win-

nings from the pari-mutuel pools escheat to the state. The

state does not share in losses should the tracks lose money.

In addition, the evidence is clear and uncontroverted that

App. 12

the state legitimized pari-mutuel betting at the dog tracks

for purposes of creating tourist attractions and to raise

revenue.

In addition, plaintiff contends in the present case that

state regulation over the tracks creates sufficient state ac-

tion. State regulation is present here to the extent that

employees audit the books of the track, state veterinarians

examine all racing dogs, and state supervisors check to

prevent off track betting on the premises. State law re-

quires all employees of the track to be licensed by the state.

Moreover, in those counties where there are more than one

licensed dog track, the state awards racing dates. But

Moose Lodge and Jackson caution that the mere fact that

a business is subject to state regulation, however, exten-

sive and detailed, does not by itself convert the private

conduct into state action 407 U.S. at 176-66; 419 U.S. at

350.

Though mindful of the state regulation and the fi-

nancial benefits which exist between the state and Flagler

Kennel] Club, the Court must primarily consider the nexus

between the state’s involvement with dog tracks and the

track’s decision not to renew plaintiff’s booking contract.

See Greco v. Orange Memorial Hospital Corp., No. 74-

2102 (5th Cir. May 29, 1975). There is no evidence, as

there was in Burton, that benefits occurring to the state

are directly attributable to defendants’ objectionable ac-

tivity (the nonrenewal of the contract). There has been

no showing that the state’s revenues will increase if plain-

tiff is denied a booking contract or decrease if the plain-

tiff receives a renewed contract.

App. 13

Moreover, it has not been established that the state

either directly or indirectly participated in the decision not

to renew plaintiff’s contract. Greco v. Orange Memorial

Hospital Corp., supra at 5770. The state does not exercise

substantial management functions over the track. The

evidence is that the state, through its State Board of Busi-

ness Regulation, does not regulate the booking contracts

between the kennel owners and the dog owners. Further-

more, there is no evidence that the state fostered or en-

couraged the decision not to renew the contract. See 407

U.S. at 177; 419 U.S. at 358.

The Court does not agree with plaintiff’s contention

that the failure by the Board to act on a complaint filed

by plaintiff with regard to the termination of his contract

to race at Flagler constitutes an element of state action.

The state’s inaction' together with the lack of evidence

establishing that the state authorized, participated in, or

approved the decision to terminate does not give rise to

state action in this contest.

The Court concludes, therefore, that the state’s in-

volvement with the dog racing industry is not sufficiently

connected with defendants’ decision to terminate plain-

tiff’s contract so as to make the defendants’ conduct at-

tributable to the state for purposes of the fourteenth

amendment.

'Plaintiff testified before the State Board of Business Regulation

on February 11, 1972. His contract was not renewed on September 5,

1972. A complaint was filed with the Board on September 11, 1972,

regarding the contract termination. No formal action has been taken

on the complaint pending the outcome of this action. Suit was filed in

this Court on September 14, 1972.

App. 14

IT IS ORDERED and ADJUDGED that Count I of

the Second Amended Complaint is hereby dismissed.

DONE and ORDERED at Miami, in the Southern

District of Florida this 2 day of July, 1976,

JOE EATON

UNITED STATES DISTRICT

JUDGE

ec: Herbert L. Nadeau, Esq.

Sinclair, Louis & Siegel

—"

App. 15

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

February 14, 1977

TO ALL COUNSEL OF RECORD

NO. 75-4122—George J. Fulton v. Isadore Hecht, ET AL.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

bane (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for re-

hearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

Susan M. Gravois

Deputy Clerk

/smg

ec: Mr. Jay M. Vogelson

Mr. Paul Siegel

Mr. Herbert L. Nadeau