Posted by: Patricia Salkin | August 3, 2015

Ninth Circuit Court of Appeals Dismisses Equal Protection Claim Finding Competing Businesses Were Not Similarly Situated

Plaintiff Andy’s BP, a gas station in San Jose, California, competes for business with a gas station named Moe’s Stop across the street. Plaintiff brought a Section 1983 suit, alleging that the City of San Jose illegally favored Moe’s Stop by issuing citations against Andy’s BP that it did not issue against Moe’s Stop, and by ignoring alleged evidence of Moe’s Stop violating the terms of its conditional use permit. The district court dismissed the complaint with prejudice.

On appeal the United States Court of Appeals, Ninth Circuit, affirmed the holding that the gas station could not argue an equal protection claim based on alleged different treatment that the stations received, because the two stations were not similarly situated. First, the Plaintiff never requested a conditional use permit, so the City could not have enforced conditional use permit requirements differently for Moe’s Stop than it did for Andy’s BP. Second, Plaintiff did not allege that Moe’s Stop violated the same ordinances without receiving citations, and has not claimed that the City subjected Andy’s BP to unequal treatment with respect to citations.

Andy’s BP, Inc. v City of San Jose, 605 Fed Appx 617(9th Cir 2015)

The opinion can be accessed at:

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