Gibson v. City of Alexander3/17/2000
OCTOBER TERM, 1999-2000
Omer Stevie Gibson, d/b/a/ Yesterday's Billiards Cafe, appeals from a judgment of the Tallapoosa County Circuit Court dismissing his lawsuit against the City of Alexander City (the "City"), its mayor, and its city council. He had sued the mayor and the council members, both personally and in their official capacities. We affirm.
On November 27, 1996, Gibson was issued a retail liquor license by the Alabama Alcoholic Beverage Control Board, for his business, operated under the name Yesterday's Billiards Cafe ("Yesterday's"). He operated that business in Alexander City. This license authorized Gibson to sell and serve alcoholic beverages 24 hours a day, six days a week. Yesterday's, and other local establishments with liquor licenses, were required under the licenses not to sell or serve alcoholic beverages between 2 a.m. on Sunday and 12:01 a.m. on Monday. On February 3, 1997, the City adopted Ordinance No. 097-7. Section 2 of that ordinance provides:
"HOURS OF CONSUMPTION. No person, partnership, or corporation nor any agent or employee thereof, operating a public or private commercial establishment shall permit the consumption of alcoholic beverages on the premises of such establishment between the hours of 12:00 midnight and 7 a.m., provided, however, that nothing in this section shall be construed to permit the sale, distribution, giving away, storage of alcoholic beverages at any time on Sunday, unless otherwise permitted by the laws of the State of Alabama, or the ordinances of the City of Alexander City, Alabama."
Section 5 of the ordinance provides:
"Penalty. Any person or entity which shall be found to have violated any provision of this Ordinance shall be fined five hundred dollars ($500.00) for each offense, a separate offense shall be deemed committed on each day during or on which a violation occurs or continues."
Gibson alleged that, since the City adopted and began enforcing this ordinance, he has not been able to operate his business "as authorized and allowed by the laws of the State of Alabama, including but not limited to the Alcoholic Beverage Licensing Code." Gibson alleged that, because of the enforcement of the ordinance, he lost sales, his profits declined, and he was forced to close his business.
On January 15, 1999, Gibson filed a two-count complaint against the City, its mayor, and its council, and the council members. In Count I, Gibson alleged that Ordinance 097-7 violates state law and that the defendants acted willfully, wantonly, recklessly, and "beyond [their] authority" in adopting and enacting the ordinance. Gibson requested a judgment declaring that Ordinance 097-7 violates state law, and an order temporarily restraining the defendants from enforcing the ordinance. Count II alleged that the defendants, "acting under color of State law," had "willfully, intentionally, purposely, recklessly, illegally, and unconstitutionally adopted and approved" Ordinance 097-7. Therefore, claimed Gibson, the ordinance violated Alabama Constitution of 1901, Art. IV, § 104, which provides:
"The legislature shall pass general laws for the cases enumerated in this section, providing that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in section 106 of this Constitution."
Between February 22 and March 5, 1999, all of the defendants filed motions to dismiss; each of those motions sought a dismissal based on a claim of immunity. The City also moved to dismiss on the ground that a
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