Posted by: Patricia Salkin | June 22, 2012

Fifth Circuit Court of Appeals Dismisses Equal Protection Claim but Lets Stand Due Process Claim Where Business Permit was Revoked Without Prior Notice

Debra Bowlby was granted permission to operate a “Sno Cone” hut at the corner of a busy intersection which had originally been zoned C-2, for larger businesses. Less than two months later the board again discussed the location of Bowlby’s business, and decided the revoke her permit. Bowlby was not invited to the meeting and was not informed of the board’s decision to review the issue.

Bowlby claimed that her business was taken without just compensation, in violation of the Fifth Amendment Takings Clause; that her business was closed without notice or hearing in violation of the Fourteenth Amendment Due Process Clause; and that her business was closed on a racially discriminatory basis since the City had not shut down any business of a black person due to non-compliance with laws and regulations, in violation of the Fourteenth Amendment Equal Protection Clause.

City of Aberdeen, Mississippi Planning and Zoning Board argues that the due process claim fails since Bowlby has no protected property interest in operating the Sno Cone hut and even if she did, there was no appeal of the Board’s decision, and thus it was not final. In addition, the equal protection claim flows directly from the takings claim, and since the takings claim was unripe, the equal protection claim is barred as well.

The Court of Appeals found that Bowlby did have a property interest in the land since she had been issued a license to operate her business in pursuit of a livelihood, and once issued it cannot be taken away by the State without due process. The district court had previously found that Bowlby’s interest had not yet been destroyed since she had yet to appeal to the Mayor and Board of Alderman. However, the Court of Appeals disagreed with this finding reasoning that a due process injury is complete at the time process is denied, or when wrongful action is taken. Additionally, exhaustion of state remedies is not required before a plaintiff can bring suit for denial of due process. When Bowlby’s business permit was revoked, she suffered a due process injury, not withstanding a final decision from the City. The court reasoned that although she may have regained her permit, the actual taking was “irreversible” and thus requires some kind of hearing.

The court also determined that the case is effectively ripe since further factual development is not necessary to assist the court in determining what process the City should have provided. Furthermore, Bowlby would suffer further hardship if the court was to withhold consideration of her due process claim.

The Court ruled Bowlby’s claim under the Equal Protection Clause insufficient since she provides no evidence that her treatment was the result of intentional discrimination, no facts that the black business owners were similarly situated and no insight as to which black owned businesses she is referring to and what laws or regulations they have violated. Mere “labels and conclusions” are not sufficient to state a plausible claim for relief under the Equal Protection Clause.

Bowlby v City of Aberdeen Planning and Zoning Board, 2012 WL 1662936 (5th Cir. Ct of App. (MS) 5/14/2012).

The opinion can be accessed at:

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