Delta Cab Association, Inc. v. City of Atlanta, Georgia ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14187
Non-Argument Calendar
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D. C. Docket No. 1:13-cv-02218-TWT
DELTA CAB ASSOCIATION, INC.,
WORKESHET CHERINET WMICHAEL,
Plaintiffs-Appellants,
versus
CITY OF ATLANTA, GEORGIA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 10, 2015)
Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiffs Delta Cab Association, Inc. (“Delta”), and Workeshet Cherinet
Wmichael challenge the constitutionality of the City of Atlanta’s (“Atlanta”)
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taxicab ordinances. Plaintiffs claim that the ordinances violate the Equal
Protection clause and the Due Process clause of the Fourteenth Amendment. The
city ordinances pass constitutional muster and, as applied, do not violate the
Plaintiffs’ rights. Therefore, we affirm the district court’s grant of summary
judgment in favor of Atlanta.
Delta is a corporation owned by taxicab drivers, one of whom is Wmichael.
Atlanta’s Bureau of Taxicabs and Vehicles for Hire regulates taxicabs pursuant to
Atlanta City Ordinance Chapter 162. Atlanta requires that a taxicab company must
have a permit to operate, and to obtain a permit, must own or lease at least 25
taxicabs. Each individual vehicle must also possess a Certificate of Public
Necessity and Convenience (“CPNC”). Atlanta limits the total number of CPNCs
to 1600. Currently, 1555 CPNCs are outstanding and the City possesses 45 more
that it could issue. Delta owns none of the outstanding CPNCs.
The district court concluded that the Plaintiffs failed to show the requisite
property interest to support a procedural due process claim and that Plaintiffs are
treated no differently than other non-CPNC holders. Furthermore, the ordinance
scheme is rationally related to municipal control of the taxicab industry and serves
a legitimate government interest. On appeal, Plaintiffs argue that Atlanta has
systematically failed to enforce the ordinances equally as to both CPNC and non-
CPNC holders. Plaintiffs also argue that two property interests exist in this case:
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(1) their alleged entitlement to the granting of a CPNC; and (2) Plaintiffs’ right to
compete and own their own taxi company in Atlanta. We review these issues of
constitutional law de novo. Maverick Boat Co. v. Am. Marine Holdings, Inc., 418
F.3d 1186, 1191 (11th Cir. 2005).
A viable due process claim requires proof of “(1) deprivation of a
constitutionally protected property interest; (2) governmental action; (3) and
constitutionally inadequate process.” Miccosukee Tribe of Indians of Fla. v.
United States, 716 F.3d 535, 559 (11th Cir. 2013). The Plaintiffs have presented
no case law to support either of their property interest theories and or to
demonstrate the necessary legitimate claim of entitlement. Doe v. Fla. Bar, 630
F.3d 1336, 1342 (11th Cir. 2011). While Doe may be distinguishable in that the
certification at issue is not necessary to practice law in the same way that a CPNC
is necessary to operate a taxicab company, that case does not create any sort of
entitlement to permits that are required to own or operate a business. See Balt. Air
Transp., Inc. v. Jackson, 419 F. App'x 932, 937 (11th Cir. 2011) (“[N]o
constitutional right is implicated by a complaint that asserts a property interest in
maintaining a business or earning a profit.”). Also, as Atlanta argues, Plaintiffs
complain, not about a permit being taken away, but about their inability to acquire
a permit. This fact cuts against entitlement. Because the Plaintiffs fail to
demonstrate a constitutionally protected property interest, their due process
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challenge fails.
The Plaintiffs go to great lengths to argue that because Atlanta does not
strictly enforce the ordinances against existing taxicab companies with operating
permits, the city intentionally treats taxicab drivers differently, thus violating the
Equal Protection clause. This argument fails for at least two reasons. First, the
unequal administration of a local statute by local officers “is not a denial of equal
protection unless there is shown to be present in it an element of intentional or
purposeful discrimination.” E & T Realty v. Strickland, 830 F.2d 1107, 1112-13
(11th Cir. 1987). Plaintiffs have failed to demonstrate such intent or purpose
beyond conclusory allegations of anti-competitive behavior. Second, other circuits
have upheld regulations that create barriers to entry for new taxicab companies.
Kan. City Taxi Cab Drivers v. City of Kansas, 742 F.3d 807 (8th Cir. 2013);
Greater Hous. Small Taxicab Co. v. Houston, Tex., 660 F.3d 235 (5th Cir. 2011).
Although the Plaintiffs seek to distinguish these two cases, the regulations at issue
fundamentally operate in the same manner as Atlanta’s ordinances: the laws limit
the number of taxicab permits – thus creating barriers to entry – in the interest of
customer service.
For the foregoing reasons, 1 the judgment of the district court is
1
Other arguments raised on appeal by Plaintiffs are rejected without need for further
discussion. For example, the parties disagree about the proper interpretation of City Code
Section 162-97(b). Even if Plaintiffs’ interpretation is correct, that would merely be a matter of
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AFFIRMED.
an executive agency’s failure to comply with a local ordinance. Especially in light of the City’s
pattern and practice of following its interpretation, there is no evidence of discriminatory intent.
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