[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12396 October 16, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-03419-CV-CC-1
FOXY LADY, INC.,
d.b.a Foxy Lady,
DARIUS L. MITCHELL, agent
for the alcoholic beverage license
of Foxy Lady, Inc.,
S.G.T., INC.,
d.b.a. Pleasers,
M. PAUL HICKS, JR., agent
for the alcoholic beverage license
of S.G.T., Inc.,
Plaintiffs-Appellees,
versus
CITY OF ATLANTA, GEORGIA,
SHIRLEY FRANKLIN, Mayor,
in her official capacity as Mayor
for the City of Atlanta, Georgia,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 16, 2003)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
After the City of Atlanta (“The City”) ordered the plaintiffs1 (the “Clubs”)
to show cause why their alcoholic beverage licenses should not be revoked for
non-compliance with City of Atlanta ordinances concerning the regulation of nude
dancing, the Clubs filed this 42 U.S.C. § 1983 action seeking, among other relief,
a permanent injunction enjoining the City from proceeding with the revocation
hearings. The Clubs contended that the City ordinances governing the liquor
license revocation process did not provide them with the right to subpoena
witnesses, and therefore the City’s process for revocation of the Clubs’ liquor
licenses violated the Clubs’ procedural due process rights.
The district court agreed with the Clubs, denied the City’s motion for
summary judgment, and certified its order for interlocutory appeal.2 This Court
then granted the City’s application for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). After review, we conclude that the City provides a constitutionally
1
In this case, Darius Mitchell and Paul Hicks own and operate Fox Lady and Pleasures,
respectively. The permits to sell alcohol on the premises are in the names of the two gentleman,
but for the sake of simplicity we refer only to the Clubs throughout the opinion.
2
The City agreed to stay the revocation proceedings pending the outcome of this case.
2
adequate process for the revocation of a liquor license. Thus, we vacate the
district court’s denial of summary judgment to the City.
I. FACTUAL BACKGROUND
The Clubs operate nude-dance facilities which are licensed by the City to
sell alcoholic beverages for consumption on the premises. The City sought to
revoke the Clubs’ liquor licenses alleging their dancers were violating certain
laws.3 For example, under Georgia law, “touching, caressing, or fondling of the
breast, buttocks, anus, or genitals” is prohibited in any premise which is licensed
to sell alcoholic beverages. O.C.G.A. § 3-3-41(a)(2); see also Harris v. Ent. Sys.,
Inc., 259 Ga. 701, 704 (1989) (limiting the scope of the statute under the Georgia
Constitution). Under the City’s ordinances, it is unlawful for “any person to
commit” or “any licensee to knowingly permit or allow” any of the following acts:
“For any person to touch, caress or fondle an entertainer or dancer, except to place
money in garters worn for such purposes” or “[f]or any dancer to, by bending,
stooping and other postural movements, display the interior of the dancer’s anus or
3
The record is somewhat unclear as to whether the City sought to revoke the Clubs’
licenses or was providing notice because it was refusing to renew the Clubs’ liquor licenses. In
this case it does not make any difference because the procedure applied to either process is the
same. For the sake of simplicity and because it appears from the record that the City was
attempting to revoke the Clubs’ liquor licenses, we shall refer to the proceedings as the City’s
attempt to revoke the Clubs’ liquor licenses.
3
vagina.” Code of Ordinances of the City of Atlanta (“C.O.C.A.”) § 10-228(b)(1)
& (b)(3).
In October 2001, the City ordered Pleasures to show cause why its alcoholic
beverage license should not be revoked for two illegal incidents. Specifically, the
City alleged that on September 28, 2000, “8 female dancers were observed using
their hands to fondle their breasts and vagina while dancing nude.” The City also
alleged that on March 12, 2001, 13 dancers were “dancing improperly.” In
November 2001, Foxy Lady received a similar letter to show cause why its
alcoholic beverage license should not be revoked, alleging that on August 1, 2001,
“12 female dancers were observed dancing improperly.”
Although charges were brought against the female dancers for their alleged
conduct, all charges were eventually dismissed without adjudication. The City,
however, proceeded with its attempt to revoke both Clubs’ liquor licenses.
As mentioned above, the Clubs filed this § 1983 action seeking to enjoin the
City from proceeding with the revocation hearings, arguing that the City’s liquor
license revocation process violated procedural due process. The district court
denied the City’s motion for summary judgment, stating that the Clubs “cannot
receive a meaningful hearing under the City of Atlanta’s current license revocation
process without the right to subpoena witnesses.” Because the Clubs did not have
4
an absolute or independent right to subpoena witnesses, the district court
concluded that the City’s process for license revocation violated procedural due
process rights guaranteed under the Fourteenth Amendment. The district court
denied the City’s motion for summary judgment, and this interlocutory appeal
followed.
II. DISCUSSION
A. Liquor License Revocation Process in Georgia
Before discussing the substantive issue in this case, we first outline the
process applied in the City of Atlanta before the City can revoke an
establishment’s liquor license. Pursuant to C.O.C.A. § 10-109(c), the City must
provide “five-day written notice to the licensee, stating the place, date, time and
purpose of such hearing and setting forth the charge upon which the hearing shall
be held.” In this case, Paul Hicks and Pleasures received written notice on
October 29, 2001, of its liquor license revocation hearing on November 20, 2001.
The notice provided more than three weeks notice and in all other ways complied
with § 10-109(c). As for Darius Mitchell and Foxy Lady, the City notified
Mitchell on November 11, 2001, of the liquor license revocation hearing on
5
December 4, 2001. Once again, the City provided more than three weeks notice
and in all other respects complied with § 10-109(c).
Because the Clubs filed this § 1983 action and the City voluntarily agreed to
stay the liquor license revocation proceedings until this case is resolved, the
remainder of the liquor license revocation process was not implemented.
However, pursuant to § 10-109, the License Review Board would normally
“conduct the hearings and report its conclusions and recommendations to the
mayor.” C.O.C.A. § 10-109(d).
At a liquor license revocation hearing, the License Review Board must
afford the Clubs an opportunity to present their evidence, to introduce testimony in
support of their case, and to cross-examine the City’s witnesses (presumably the
under-cover police officers who witnessed the dancers’ alleged acts).4
4
Although § 10-109 provides for a hearing, § 10-109 does not describe the exact contours
of what happens at a hearing before the License Review Board. However, the Georgia Supreme
Court has stated that “local governments are not exempted from the due process requirements of
the Fourteenth Amendment” when “regulat[ing] the sale of alcoholic beverages” and that in
liquor license revocation hearings, “the parties must generally be allowed an opportunity to know
the claims of the opposing party, to present evidence to support their contentions, and to cross-
examine witnesses for the other side.” Grovenstein v. Effingham County, 262 Ga. 45, 48 (1992)
(internal brackets, quotations, and citations omitted). Thus, based on Grovenstein and because
the Clubs do not contend otherwise, we conclude that the Clubs will have an opportunity to
present evidence, introduce testimony, and cross-examine witnesses. Grovenstein, however,
does not addresswhether parties have a right to subpoena witnesses to liquor license revocation
hearings.
6
Furthermore, pursuant to C.O.C.A. § 30-27,5 a party can request that the Mayor or
the Mayor’s designee issue a subpoena to compel a witness to appear before the
License Review Board.
After the hearing, the License Review Board issues a report to the Mayor,
recommending that the Clubs’ liquor license be revoked, suspended, or renewed.
The Mayor, upon a finding of “due cause,” then has the authority to revoke,
suspend, or renew the Clubs’ liquor licenses. See C.O.C.A. § 10-109(b) & (d).
Due cause is defined at length in § 10-109(a). The applicable definitions of “due
cause” in this case are: the “[f]ailure by the licensee to adequately supervise and
monitor the conduct of the employees . . . on the licensed premises” or “[t]he
violation of any other law, ordinance or regulation governing the operation of
5
Specifically, § 30-27(a) states:
Whenever the attendance of any witness may be required before the license
review board to establish any fact in connection with any hearing or any
investigation which may be lawfully conducted by the license review board, the
mayor or the mayor’s designee is authorized to issue a subpoena, directed to the
witness, requiring the witness to personally be and appear at the time and place of
the meeting of the board and to produce at that time and place any documentary
evidence which, in the judgment of the board, may be required. Such witness
shall remain in attendance upon the meeting until excused therefrom. The
subpoena shall bear teste in the name of the city, shall be signed by the mayor or
the mayor's designee and shall be served by any member of the department of
police. Such service shall be had at least 24 hours before the time such witness is
required to attend and to continue the attendance of the witness.
C.O.C.A. § 30-27(a) (emphasis added).
7
establishments licensed to sell alcoholic beverages.” See C.O.C.A. § 10-
109(a)(12) & (14).
B. Right to Subpoena Witnesses
In this case, the district court concluded that the process described above
violated the Clubs’ procedural due process rights because the Clubs did not have
the absolute or independent right to subpoena witnesses before the License
Review Board. On appeal, the City argues that due process does not require an
absolute or independent right to subpoena witnesses at an administrative hearing,
and that the Atlanta City Code provides a reasonable means by which witnesses
may be subpoenaed for the revocation hearing. We agree, and conclude that the
City provides a constitutionally adequate process for the revocation of a liquor
license.
In Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994), this Court
developed a three-prong test for establishing a procedural due process clause
violation under § 1983. First, the Clubs must establish “a deprivation of a
constitutionally-protected liberty or property interest.” Id. The parties do not
dispute that the Clubs have a constitutionally-protected property interest in their
existing respective liquor licenses, and we do not discuss that question.
8
Second, the Clubs must establish “state action.” Cryder, 24 F.3d at 177.
Once again, the parties do not dispute that the City’s attempts to revoke the Clubs’
liquor licenses amount to state action for the purposes of § 1983. See Bell v.
Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589 (1971) (“Once licenses are
issued, as in [this] case, their continued possession may become essential in the
pursuit of a livelihood. Suspension of issued licenses thus involves state action
that adjudicates important interests of the licensees.”).
Third, and finally, the Clubs must establish a “constitutionally inadequate
process.” Cryder, 24 F.3d at 177. The parties dispute whether the Clubs must
have a right to subpoena witnesses to the revocation hearing in order for the City’s
liquor license revocation process to be constitutionally adequate.
In Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S. Ct. 1011, 1021 (1970),
the United States Supreme Court explained that “[t]he opportunity to be heard
must be tailored to the capacities and circumstances of those who are to be heard.”
That is, procedural due process “is not a technical conception with a fixed content
unrelated to time, place, and circumstances.” Mathews v. Eldridge, 424 U.S. 319,
334, 96 S. Ct. 893, 902 (1976) (quotation marks and citation omitted). Rather,
procedural due process “is flexible and calls for such procedural protections as the
particular situation demands.” Id. (quotation marks and citation omitted).
9
Therefore, there is a need to balance the governmental and private interests at
stake. Id. (citations omitted).6
In Travers v. Jones, 323 F.3d 1294 (11th Cir. 2003), petition for cert. filed,
72 USLW 3155, No. 03-321 (Aug. 27, 2003), this Court addressed the right to
subpoena witnesses to an administrative hearing in the context of a firefighter who
had been suspended without pay due to insubordination and conduct unbecoming.
Specifically, firefighter Travers was involved in a verbal exchange with the Chief
Executive Officer of DeKalb County while Travers and others were picketing
outside DeKalb County’s administration building. Travers was suspended for the
incident, and brought suit alleging that he was improperly suspended because he
was engaging in protected speech. Id. at 1295.
The Travers Court recognized that a factual dispute existed between the
parties as to what was said exactly between Travers and the CEO of DeKalb
County. Travers, 323 F.3d at 1296. The issue of fact, however, had been resolved
6
Specifically, the Supreme Court has identified three distinct factors to be considered
when determining what constitutional process is due.
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews, 424 U.S. at 335, 96 S. Ct at 903.
10
during a state administrative hearing in which Travers’s suspension was upheld.
Id. The Travers Court noted that the state administrative findings were binding on
this Court if Travers received a full and fair opportunity to present his case at the
administrative hearing. Id.
On appeal to this Court, Travers argued that he was denied a full and fair
hearing because he was denied the right to compel certain witnesses to testify at
the administrative hearing. Travers, 323 F.3d at 1296-97. Travers admitted,
however, that he failed to comply with the administrative procedures regarding the
means by which a witness could be compelled to testify at the administrative
hearing. Id. at 1297. Consequently, this Court concluded that “[t]he County
afforded Travers the opportunity to a hearing where he could present live
witnesses and cross-examine opposing witnesses. Travers’ inability to do so was a
result of his own tardiness.” Id. In so concluding, this Court went further,
however, and stated that “a party has no right to subpoena witnesses to state
administrative hearings.” Id. (citations omitted). In support its adoption of that
general principle, the Travers Court cited with approval decisions from other
circuits recognizing the ability to subpoena witnesses is not an absolute or
independent right in administrative hearings. Id.; see Amundsen v. Chicago Park
Dist., 218 F.3d 712, 717 (7th Cir. 2000) (“Nonetheless, this court has held that in
11
the administrative hearing context, the ability to subpoena witnesses is not an
absolute right. . . . Indeed, in administrative matters, due process is satisfied when
the party concerned is provided an opportunity to be heard in an orderly
proceeding which is adapted to the nature and circumstances of the dispute.”
(quotation marks and citations omitted)); Calvin v. Chater, 73 F.3d 87, 92-93 (6th
Cir. 1996) (agency may place reasonable limitations on the process for producing
witnesses to testify); DeLong v. Hampton, 422 F.2d 21, 24 (3d Cir. 1970) (“It was
plaintiff’s burden to arrange for the attendance of any witnesses he wished to
testify.”).
We agree that reasonable limitations may be placed on the number and
scope of witnesses that may be compelled to testify at an administrative hearing.
Therefore, we also agree with Travers that no absolute or independent right to
subpoena witnesses exists during administrative proceedings, and now hold
expressly that procedural due process also does not require an absolute or
independent right to subpoena witnesses in administrative hearings.
The City’s ordinance requiring the Clubs to request the Mayor to issue a
subpoena provides an acceptable balance between the need to conduct a fair
hearing and the City’s legitimate desire to place reasonable limitations on the
content and duration of its liquor license revocation hearings. See C.O.C.A. § 30-
12
27; see also Richardson v. Perales, 402 U.S. 389, 406, 91 S. Ct. 1420, 1430 (1971)
(noting that “the sheer magnitude of [the] administrative burden” is “an additional
and pragmatic factor which, although not controlling, deserves mention”
(quotation marks and citations omitted)).
While it is true that there is no guarantee that the Clubs will be able to
convince the Mayor or the Mayor’s designee to subpoena all the witnesses the
Clubs want to call, § 30-27 provides a reasonable framework from which to judge
what witnesses are necessary. Specifically, the witnesses that can “establish any
fact in connection with any hearing or any investigation which may be lawfully
conducted by the license review board” is a reasonable limitation on what
witnesses should be present at the hearing. Furthermore, there is nothing in the
record to suggest that the Mayor or the Mayor’s designee does not follow these
limitations or that different standards are in place for the adult entertainment
industry.
Furthermore, it makes perfect sense for the Mayor’s office to control the
issuance of subpoenas in the license revocation process. For if it were otherwise,
one can easily imagine the process becoming cumbersome and potentially
unmanageable. For example, if the Clubs were to have their own, absolute or
independent subpoena power, they effectively could stop, or at the very least delay
13
significantly, the entire revocation process by issuing subpoenas to potentially
hundreds of individuals. In the hopes of frustrating the City’s efforts, the Clubs
could subpoena witnesses ranging from club regulars to testify that they have
never seen any dancer commit one of the enumerated violations to the dancer’s
parents who may testify that their child is unlikely to do such things.
Finally, it is readily apparent that the Clubs’ claim of a dire need to
subpoena witnesses is exaggerated. At the liquor license revocation hearing, the
Clubs undoubtedly will be able to cross-examine the undercover police officers
who allegedly witnessed the illegal acts. Additionally, the Clubs will be able to
introduce testimony from witnesses with relevant information, such as certain
dancers, who agree to testify voluntarily. Finally, the Clubs may wish to introduce
evidence, to the extent it exists, about how they inform all their dancers of the
rules surrounding nude dancing, that they post the rules in conspicuous places,
and/or how the Clubs discipline those dancers found violating city ordinances.
Such information may be relevant to the decision to revoke or not revoke the
Clubs’ liquor licenses.
C. Effective State Remedy
Alternatively, to the extent that there is an argument that the City’s current
license revocation process amounts to a procedural deprivation, the State of
14
Georgia provides an adequate means by which to remedy any allegedly unlawful
deprivation, and the Clubs’ procedural due process claim here is not cognizable
under federal law. In McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc),
this Court held that even if a procedural deprivation exists during an
administrative hearing, such a claim will not be cognizable under § 1983 if the
state provides a means by which to remedy the alleged deprivation. Id. at 1565
(“Since the Florida courts possess the power to remedy any deficiency in the
process by which McKinney was terminated, McKinney can not claim that he was
deprived of procedural due process.”); see also Hudson v. Palmer, 468 U.S. 517,
533, 104 S. Ct. 3194, 3204 (1984) (“[A]n unauthorized intentional deprivation of
property by a state employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful postdeprivation remedy for the loss is available.”). In Horton v. Board
of County Comm’rs. of Flagler County, 202 F.3d 1297 (11th Cir. 2000), this Court
explained that
The McKinney rule is not micro in its focus, but macro. It does not
look to the actual involvement of state courts or whether they were
asked to provide a remedy in the specific case now before the federal
court. Instead, the McKinney rule looks to the existence of an
opportunity – to whether the state courts, if asked, generally would
provide an adequate remedy for the procedural deprivation the federal
court plaintiff claims to have suffered. If state courts would, then
15
there is no federal procedural due process violation regardless of
whether the plaintiff has taken advantage of the state remedy or
attempted to do so.
Id. at 1300.
The Clubs spend a great deal of time arguing that there is no state remedy
because they are unable to petition the Georgia superior courts for a writ of
certiorari to correct any procedural defects in the Mayor’s decision to revoke the
Clubs’ liquor licenses. We need not address this issue in great detail because the
Georgia Supreme Court recently has noted the filing of petitions for certiorari in
two cases in which a business owner appealed a city’s decision not to renew a
liquor license. See Northwest Social & Civic Club, Inc. v. Franklin, 583 S.E.2d
858 (Ga. 2003); Consolidated Gov’t of Columbus v. Barwick, 274 Ga. 176 (2001);
see also Horton, 202 F.3d at 1300 (“McKinney is based on a recognition that the
process a state provides is not only that employed by the board, agency, or other
governmental entity whose action is in question, but also includes the remedial
process state courts would provide if asked.”). In fact, Northwest Social and Civic
Club dealt with the situation in which the owner of a nightclub which featured
adult entertainment petitioned for writs of mandamus and certiorari against the
City of Atlanta and its mayor after the Mayor denied the operator’s application for
renewal of its liquor license. Northwest Social & Civic Club, 583 S.E.2d at 859.
16
In both Barwick and Northwest Social and Civic Club, the Georgia Supreme
Court addressed whether the plaintiffs who had been denied liquor licenses were
entitled to a direct appeal to the Georgia Supreme Court or a discretionary appeal
after their petitions for certiorari had been denied by the state superior courts.
Barwick, 274 Ga. at 177-79; Northwest Social & Civic Club, 583 S.E.2d at 859.
There is no threshold claim in either Georgia Supreme Court decision that the state
superior courts did not have jurisdiction to consider a petition for certiorari for
review of a city’s liquor license decision. Instead, the Georgia Supreme Court
discussions focused on what type of appeal lies for the state superior court orders.
Thus, implicit in each of these decisions is the assumption that the state superior
courts had jurisdiction to entertain petitions for certiorari from the denials of
liquor license renewal applications. For if the superior courts were without such
jurisdiction, we believe that the Georgia Supreme Court would have addressed the
jurisdictional issue first. See, e.g., Southern Healthcare Sys., Inc. v. Health Care
Capital Consol., Inc., 273 Ga. 834, 835 (2001) (addressing jurisdiction first); see
also Dismer v. Luke, 228 Ga. App. 638, 638 (1997) (“Before addressing the merits
of Dismer’s appeal, we must first determine whether the superior court had
jurisdiction.”).
17
Accordingly, we conclude that sufficient state process exists to correct any
alleged deficiency in the City’s liquor license revocation process afforded under
§ 30-27. Because an adequate post-deprivation process is in place under state law,
no federal procedural due process claim exists.
III. CONCLUSION
For all the above reasons, we vacate the district court’s order denying
summary judgment to the City and remand this case to the district court for
proceedings consistent with this opinion.
VACATED and REMANDED.
18
Foxy Lady, Inc. v. City of Atlanta, Georgia
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-10-16
Citations: 347 F.3d 1232
Copy CitationsCombined Opinion