Recent Federal Fifth Circuit Cases of Interest to Cities

Note: Included cases are from October 11, 2022 through November 10, 2022.

Disaster: Golden Glow Tanning Salon, Inc. v. City of Columbus, Mississippi, No. 21-60898, 2022 WL 16754369 (5th Cir. Nov. 8, 2022). On March 14, 2020, the Governor of Mississippi declared a state of emergency related to the COVID-19 pandemic, and one week later, the City of Columbus, Mississippi (“Columbus”) adopted an ordinance which took measures to reduce person-to-person contact to slow the spread of COVID-19. Among other things, Columbus ordered all tanning salons to be closed from March 21 through May 9. The owners of the Golden Glow Tanning Salon (“Tanning Salon”) filed a lawsuit alleging (1) equal protection violations, because the ordinance treated tanning salons differently than churches, big-box retail, and liquor stores, and (2) a federal taking claim. The Tanning Salon argued that Columbus created an arbitrary distinction among local businesses that bore no rational relationship to public health. At trial, the court granted Columbus’s motion for summary judgment, and the Tanning Salon appealed. With regard to the Tanning Salon’s equal protection claim, the appellate court analyzed the differences, similarities, and relative necessity to society among the different types of establishments at issue, as well as the city council’s proffered reason for treating different businesses differently. Because the city’s rationale for creating the distinctions was not arbitrary, the appellate court upheld the trial court’s dismissal of the Tanning Salon’s equal protection claims. With regard to the regulatory taking claim, the court applied the Penn Central balancing test taking into account (1) the impact of the regulation, (2) the interference of the regulation on the Tanning Salon’s reasonable investment-backed expectations, and (3) the character of the government action. Because the city did not authorize physical intrusions on the Tanning Salon’s property nor render the Tanning Salon’s property entirely valueless, the appellate court affirmed the lower court’s order dismissing the taking claim as well.

Disaster: J. P. Bryan, et al., v. County Judge Eleazar R. Cano, No. 22-50035, 2022 WL 16756388 (5th Cir. Nov. 8, 2022). On March 13, 2020, the Governor of Texas issued a state-wide disaster declaration due to the COVID-19 pandemic, and four days later, Judge Cano, the County Judge of Brewster County, Texas, followed suit. On March 20, Judge Cano amended his declaration and ordered all hotels, motels, RV parks, short-term rentals, and campgrounds to vacate all rooms being used by recreational travelers. The owners of the Gage Hotel (“Hotel”) in Marathon, Texas sued the Judge Cano claiming that his disaster orders were violations of the Hotel’s constitutional equal protection and due process guarantees as well as the Hotel’s constitutional right to be free from unreasonable seizure. The trial court granted Judge Cano’s motion for summary judgment, and the Hotel appealed. Because its equal protection claims did not involve fundamental rights or a suspect class, the Judge’s order would be upheld if it were rationally related to a legitimate government purpose—even if the Hotel could prove it was receiving different treatment than other, similarly situated people. The court found that Judge Cano’s regulation of hotel occupancy during a pandemic was neither arbitrary nor irrational, so the appellate court affirmed the trial court’s ruling. To prevail on its due process claim, the Hotel would need to show it was arbitrarily deprived of its liberty interest to operate the hotel at full capacity, which it could not show. Consequently, the court affirmed the lower court’s ruling. The Hotel’s additional fourth and fourteenth amendment claims failed, because they were based on conclusory statements of opinion rather than allegations of fact. Ultimately, the appellate court affirmed the trial court’s ruling dismissing the case.