[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 25, 2009
No. 08-11557 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-01126-CV-J-32MCR
AVALON CARRIAGE SERVICE, INC.,
Plaintiff-Appellant,
versus
CITY OF ST. AUGUSTINE, FL,
MARK LITZINGER,
WILLIAM HARRISS, et al.,
Defendants-Appellees,
STUART GAMSEY,
GAMSEY CARRIAGE COMPANY, INC.,
GAM SAN ENTERPRISES, INC.,
SPIRIT OF ST. AUGUSTINE, INC.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2009)
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.
PER CURIAM:
This appeal presents the issue whether a local ordinance that regulates the
horse-drawn carriage trade and allows the automatic renewal of unused hack
permits violates the Commerce Clause, U.S. Const., Art. I, § 8, or the Equal
Protection Clause, U.S. Const., Amend. XIV, § 1. Avalon Carriage Service sued
the City of St. Augustine, City Manager William Harriss, City Director of
Financial Services Mark Litzinger, Stuart Gamsey, and Gamsey’s carriage services
and alleged that the ordinances and arbitrary permitting practices of the City
unduly burdened interstate commerce, intentionally discriminated against Avalon,
and violated state and federal antitrust laws. Avalon complained that the
ordinances and practices allowed Gamsey to “hoard” most of the available permits
even though he did not use all of those permits. The district court granted partial
summary judgment against Avalon on the claims under the Commerce Clause and
Equal Protection Clause. After a trial on the antitrust claims, the district court
entered judgment as a matter of law for the defendants. Avalon then appealed the
summary judgment. During the pendency of the appeal, Avalon settled and
dismissed its claims against Gamsey and his businesses.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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We agree with the district court that the claim of Avalon under the
Commerce Clause fails. The ordinances evenhandedly regulate in-state and out-of-
state businesses and serve a legitimate interest of the City, and Avalon has not
identified any arbitrary and capricious permitting rules or practices that unduly
burden interstate commerce. See Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.
Ct. 844, 847 (1970).
We also conclude that the claim of Avalon under the Equal Protection
Clause fails. Avalon has failed to establish that the ordinances or permitting
practices create an intentional and irrational discriminatory classification. See
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1201 (11th Cir. 2007) (citing Vill. of
Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000)). That there were
limited permits, that Gamsey’s permits were renewed in accordance with the
ordinances, and that the City refused to revoke and transfer to Avalon what
Gamsey legally acquired is not evidence of purposeful discrimination. Even if we
were to assume there was discrimination in the decision of the City not to create
additional permits, the City had a rational basis for its decision.
The summary judgment is AFFIRMED.
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