Gibson v. City of Alexander3/17/2000
ity of Mountain Brook, Ala. Cr. App., 386 So. 2d 483, cert. denied, Ala., 386 So. 2d 488 (1980), Atkins v. City of Tarrant City, Ala. Cr. App., 369 So. 2d 322 (1979). See also Atchley v. State, Ala. Cr. App., 393 So. 2d 1034 (1981), Plump v. City of Birmingham, Ala. Cr. App., 385 So. 2d 1349, cert. denied, Ala., 385 So. 2d 1351 (1980).'
"`An ordinance which merely enlarges upon the provision of a statute by requiring more restrictions than the statute requires creates no conflict unless the statute limits the requirement for all cases to its own terms. Plump v. City of Birmingham, supra, Smith v. Town of Notasulga, [257 Ala. 382, 59 So. 2d 674 (1952)], City of Birmingham v. West, 236 Ala. 434, 183 So. 421 (1938).'" 518 So. 2d at 43 (emphasis added).
The challenged ordinance merely enlarges upon the statutory provisions of the Alcoholic Beverage Licensing Code; it is not inconsistent with Alabama statutory law or the Alabama Constitution. What this Court stated in Gadsden Motel Co. v. City of Attalla, 378 So. 2d 705 (Ala. 1979), a case with facts similar to those in the present case, is equally true in this case:
"The ordinance merely limits the sale of alcoholic beverages. And, under the provision of § 11-45-1, Code of Alabama 1975, the City has the authority to regulate the hours of sale of alcoholic beverages as long as the hours of sale are reasonable. ..."
"... Here, there is no conflict and the evidence shows that the hours of sale prescribed by the ordinance are neither unreasonable nor arbitrary." Gadsden Motel , 378 So. 2d at 706 (emphasis added)(footnote omitted).
Immunity of City Officials
"City officials are absolutely immune from suits attacking their legislative judgment. Tutwiler Drug Co. v. City of Birmingham, 418 So. 2d 102 (Ala. 1982). The appropriation of funds by the city council is an exercise of legislative power. Morgan County Commission v. Powell, 292 Ala. 300, 305, 293 So. 2d 830 (1974). City officials acting within the general scope of their authority have a qualified or discretionary immunity and are not subject to tort liability for an administrative act or omission. Taylor v. Shoemaker, 605 So. 2d 828 (Ala. 1992), adopting Restatement (Second) of Torts § 895D (1979). The Restatement provides that `A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if ... he is immune because engaged in the exercise of a discretionary function.' Thus, as a general rule, city officials are immune from suit unless they violate clearly established law. The plaintiffs do not allege any violation of law in this case." Ex parte City of Birmingham, 624 So. 2d 1018, 1021 (Ala. 1993).
Although the plaintiff couched his complaint in terms of wantonness, willfulness, and recklessness, nothing in his complaint alleges conduct that would permit a recovery based on those claims. Neither has Gibson alleged that the mayor and the members of the council committed a tortious act outside the general scope of their authority. Gibson has alleged no facts on which he could recover against the mayor or the members of the city council. Therefore, the trial court properly dismissed them from Gibson's lawsuit. Id. Gibson claims that Ordinance 097-7 is unconstitutional because, he says, it conflicts with, or is inconsistent with, Ala. Code 1975, §§ 28-3A-1 to -26, known as the "Alcoholic Beverage Licensing Code." We have carefully reviewed the Alcoholic Beverage Licensing Code and we do not believe that Ordinance 097-7 in any way conflicts with, or is inconsistent with, the provisions of that statute.
Finally, Gibson notes that the Alcoholic Beve
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