Posted by: Patricia Salkin | October 27, 2010

11th Circuit Finds No Equal Protection Violation for Differing Occupancy Calculations in Bars

The Plaintiffs operated “Skybar,” which has been subject to private complaints as well as warnings by the City Police for underage drinking, fighting, and patrons consuming alcoholic beverages after 2:00 a.m. In 2007, the Plaintiffs filed suit against the City alleging, among other things, that the City improperly calculated low occupancy numbers pursuant to building safety codes. The Plaintiffs claim that the City’s Deputy Director for Administration and Codes violated their Fourteenth Amendment Equal Protection by improperly calculating occupancy numbers for Skybar in a different manner from other establishments. Specifically, two other establishments within the City had their occupancy numbers calculated using a 5 square-feet-per-person calculation while Skybar’s occupancy was calculated using a 7 square-feet-per-person standard ultimately reducing the potential occupancy. The Defendant Code Director claimed that he did not use the 5 square-feet standard because doing so would have created occupancy that would exceed the capacity of the bar’s exits and fire alarm system.                                             

To prevail on a “class of one” equal protection claim, the Circuit Court ruled, Plaintiffs must show they were intentionally treated differently from others who were “similarly situated” and that there is no rational basis for the difference in treatment. Further, to be “similarly situated,” the comparators must be prima facie identical in all relevant respects ant the government’s challenged decision must be evaluated in light of full variety of factors that an objectively reasonable governmental decision maker would have found relevant in making the challenged decision. The court, in applying these standards, found that the occupancy calculation for Skybar reflected a multi-dimensional decision-making process and the Code Director was required to consider various factors including the square footage, its segments, its emergency exit capacity, its fire and sprinkler systems, and its overall compliance with the codes and regulations. 

The Court found that the Plaintiffs failed to show that the Defendant intentionally and arbitrarily treated the bar differently from other similarly situated entities.  First, the Court noted that other City inspectors made the on-site calculations as to the occupancy limits of the other two bars.  This in itself is enough to negate a class-of-one equal protection claim. Second, the two other bars are not similarly situated considering they have different emergency exits and fire-suppression systems as well as different layouts of their interiors and exteriors. In other words, the court found that the fire-suppression systems and emergency exits constrained Skybar in their occupancy limits while the other two bars had no such constraints. Third, considering the evidence of safety concerns and the capacity of the fire alarm system, the Code Director demonstrated a rational basis for his occupancy calculations. As a result, the court found that the Plaintiffs have not shown an equal protection violation by Defendant. 

Grider v. City of Auburn, Alabama, 2010 WL 3464717 (11th Cir. 9/7/2010) 

The opinion can be accessed at:

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