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Miles v City Council of Augusta, Georgia, 551 F.Supp. 349 (S.D. Ga. 1982).
Carl
M. MILES, et al., Plaintiffs,
v.
CITY
COUNCIL OF AUGUSTA, GEORGIA, et al., Defendants.
Civ.
A. No. CV181-157.
United
States District Court,
S.D.
Georgia,
Augusta
Division.
Nov.
15, 1982.
*350
John H. Ruffin, Jr., Augusta, Ga., for plaintiffs.
Stanley G. Jackson, Augusta, Ga., for defendants.
ORDER
BOWEN, District Judge.
This
case is before the Court on the cross-motions for summary judgment of plaintiffs
Carl and Elaine Miles and defendant City Council of Augusta, Georgia. For the reasons to follow, summary judgment is GRANTED IN
FAVOR OF DEFENDANT AND DENIED AS TO THE PLAINTIFFS.
The plaintiffs' motion will be discussed first.
I
PLAINTIFFS' MOTION
In this
case, the attack upon the power of the City of Augusta to levy an occupation tax
arises under somewhat unusual circumstances.
The pertinent undisputed facts, as gleaned from the record, [Fn1] are as
follows:
Fn1.
In ruling on the motions for summary judgment, the Court has considered only the
evidence in the file. However, it
should be disclosed that I have seen and heard a demonstration of Blackie's
abilities. The point in time of the
Court's view was late summer, 1982, well after the events contended in this
lawsuit. One afternoon when
crossing Greene Street in an automobile, I spotted in the median a man
accompanied by a cat and a woman. The
black cat was draped over his left shoulder.
Knowing the matter to be in litigation, and suspecting that the cat was
Blackie, I thought twice before stopping. Observing,
however, that counsel for neither side was present and that any citizen on the
street could have happened by chance upon this scene, I spoke, and the man with
the cat eagerly responded to my greeting. I
asked him if his cat could talk. He
said he could, and if I would pull over on the side street he would show me.
I did, and he did. The cat
was wearing a collar, two harnesses and a leash.
Held and stroked by the man Blackie said "I love you" and
"I want my Mama." The man
then explained that the cat was the sole source of income for him and his wife
and requested a donation which was provided.
I felt that my dollar was well spent.
The cat was entertaining as was its owner.
Some questions occurred to me about the necessity for the multiple means
of restraint and the way in which the man held the cat's paw when the cat was
asked to talk. However, these are
not matters before the Court and are beyond the purview of a federal judge. I do not know if the man whom I saw with the cat was the
plaintiff Mr. Miles.
This sequence has not been considered as
evidence or as an uncontroverted fact in the case.
It is simply stated for the purpose of a disclosure to the parties of the
chance contact.
A.
The Cat
Carl and Elaine Miles are an unemployed, married
couple who own "Blackie, The Talking Cat."
Trained by Carl Miles, Blackie allegedly is able to speak several words
and phrases of the English language. On
June 22, 1981, plaintiffs were required by defendant to obtain a business
license. From May 15, to June 22,
1981, plaintiffs had accepted contributions from pedestrians in the downtown
Augusta area who wanted to hear the cat speak.
People would stop the plaintiffs who strolled the streets with the cat.
Upon being stopped, plaintiffs would ask for a contribution.
There is, however, evidence of the plaintiffs soliciting an off-duty
policeman for money in exchange for a performance.
Plaintiffs dispute this allegation.
It is undisputed that plaintiffs would ask for, and lived off, the
contributions received for Blackie's orations.
Several complaints were received by the Augusta Police Department
regarding the plaintiffs' solicitations. Plaintiffs
were warned by the police not to solicit unless they first obtained a business
license.
Through their exploit of his talents, Blackie has
provided his owners with at *351 least the minimal necessities of life.
Fn2.
That a talking cat could generate interest and income is not surprising. Man's fascination with the domestic feline is perennial.
People of western cultures usually fall into two categories. Generally, they are ailurophiles or ailurophobes.
Cats are ubiquitous in the literature, lore and fiber of our society and
language. The ruthless Garfield
commands the comic strips, the Cat in the Hat exasperates even Dr. Seuss, and
who hasn't heard of Heathcliff, Felix or Sylvester? Historically, calico cats
have eaten gingham dogs, we are taught that "a cat can look at a king"
and at least one cat has "been to London to see the Queen."
It is often said that imitation is the sincerest
form of flattery. To the animal
world, I am sure that the sincerest form is anthropomorphosis. The ailurophobes contend that anthropomorphosis abounds, and
that it is the work of ailurophiles. The
ailurophiles say that they do not anthropomorphize cats but, rather, that cats
have such human qualities as they may condescend to adopt for their own selfish
purposes. Perhaps such was the case
with Saki's ill-fated Tobermory, the cat who knew too much and told all, who,
when asked if the human language had been difficult to learn, "... looked
squarely at [Miss Resker] for a moment and then fixed his gaze serenely on the
middle distance. It was obvious
that boring questions lay outside his scheme of life."
For hundreds, perhaps thousands of years, people
have carried on conversations with cats. Most
often, these are one-sided and range from cloying, mawkish nonsense to topics of
science and the liberal arts. Apparently Blackie's pride does not prevent him
from making an occasional response to this great gush of human verbiage, much to
the satisfaction and benefit of his "owners."
Apparently, some cats do talk. Others
just grin.
B.
The Ordinance
Under
its charter the City of Augusta is empowered to impose license taxes. Section 139 of the charter states, in pertinent part:
The City Council of Augusta, by ordinance, may require any person, firm or
corporation to pay a license tax upon any occupation, trade or business followed
or carried on within the corporate limits of the City of Augusta . . . .
Pursuant
to this enabling provision, the City Council enacted Ordinance No. 5006, the
1981-1982 business license ordinance. The
ordinance exhaustively lists the trades, businesses and occupations subject to
the ordinance and the amount of tax to be paid.
Although the ordinance does not provide
for the licensing of a talking cat, [Fn3] section 2 of the ordinance does
require any
"Agent or Agency not specifically
mentioned . . ." to pay a $50.00 tax.
Fn3.
It seems doubtful that the city fathers would anticipate the need for a specific
category of this sort.
C.
The Attack
Plaintiffs
attack the ordinance as being unconstitutionally vague and overbroad in
contravention of the Due Process clauses of the fourteenth amendment to the
United States Constitution and of the Georgia Constitution. Ga.Code Ann. s
2-101. [Fn4] They contend they are
not required to obtain a license and that requiring them to do so before they
may solicit on the streets violates their first amendment rights of speech and
association as well as the right to equal protection secured by the fourteenth
amendment.
Prefatory to the analysis of plaintiffs'
vagueness and overbreadth challenges the nature of the ordinance being
challenged and the authority to enact it must be established.
Fn4.
Plaintiffs do not address their state constitutional claims in their summary
judgment motion, but merely state that the federal constitutional arguments
apply to the state claims. Because
of the similarity of the two claims and the legal principles applicable to both,
only the federal claims will be discussed, inasmuch as the result is the same
under the state claim.
The purpose behind the ordinance questioned in this case is to generate
revenue. It is a tax on occupations
and businesses. *352 The
preamble to Ordinance No. 5006 (the ordinance) states, in part, "An
ordinance to fix the annual and specific taxes and licenses of the City of
Augusta on Business Occupations and Professions ...."
Clearly, the ordinance does not have as its sole purpose the regulation
of solicitation per se, as did the ordinances and laws in the cases of, e.g.
Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976);
Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Schneider
v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).
The thrust of the ordinance is directed, not at speech and association,
but at the generation of revenue through the imposition of an occupation tax.
The power of the defendant to levy an occupation
tax is unquestionable. The city
charter authorizes the very ordinance passed by the defendant council.
The taxing power, as embodied in a municipality's charter, is well
recognized as a means for raising revenue.
Pharr Road Investment Co. v. City of Atlanta, 224 Ga. 752, 164 S.E.2d 803
(1968). The taxing power is a power
of the state that is delegated to the municipality it creates. See Hoyt Civic
Club v. City of Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292
(1978). License fees, or occupation
taxes, placed upon trades and occupations are a legitimate method of taxation,
Allied Stores of Ohio v. Bowers, 358 U.S. 522, 526, 79 S.Ct. 437, 440, 3 L.Ed.2d
480 (1959), even though such a tax may render a business unprofitable.
Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 373, 94 S.Ct. 2291, 2294,
41 L.Ed.2d 132 (1974). Moreover, the amount of tax levied against different trades
and businesses need not be uniform or the result of the application of a precise
scientific formula. Lehnhausen v.
Lake Shore Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d
351 (1973). Thus, it is clear the
city council is authorized to require the procurement of business licenses.
The ordinance is not one designed to regulate speech or association, but
merely to raise revenue. The
ordinance does not subject anyone's speech or associational activity to any
penalty unless committed within the context of one's occupation for which a tax
has not been paid. Thus, the
ordinance does not tread upon plaintiffs' fundamental constitutional rights.
Having established the character and scope of the
ordinance, the framework for scrutinizing plaintiffs' vagueness and overbreadth
challenges must next be determined. The
ordinance in question, though merely a tax law, does impose a penalty for
failure to pay. Section 12 of the ordinance provides for a fine or
imprisonment for failure to obtain the required license. Although the ordinance
may be viewed as only civil in nature, because of the authorized penalty it is,
perhaps, more appropriate under the facts of this case to apply the higher
standard of specificity required in the drafting of penal statutes to this
ordinance in determining its constitutionality.
To avoid constitutional vagueness, a statute must provide "an
ascertainable standard of guilt sufficient to enable persons of ordinary
intelligence" to have fair warning of the conduct proscribed by the law.
High Ol'Times, Inc. v. Busbee, 673 F.2d 1225, 1229 (11th Cir.1982).
Exacting attention to detail in drafting is not required. Id. Also, as
pointed out in High Ol'Times, a court may avoid vagueness by means of statutory
interpretation. If a statute can be
read in a constitutional manner, it must be accorded that reading. Id.
Lastly, if the statute does not define its terms, the ordinary and common
meanings are applied, unless there is an established technical meaning, or the
legislative body intended otherwise. Id.
Applying these tenets to the ordinance in question,
unconstitutional vagueness does not appear.
The ordinance requires all persons, firms or corporations engaged in the
enumerated occupations to pay the prescribed tax. Plaintiffs' occupation is not
listed but, according to defendant, falls under the category of "Agent or
Agency not specifically mentioned ...."
Plaintiffs assert they must speculate, at their peril, as to the meaning
of this language. They also contend
the discretionary power of the mayor to require a business license, as
authorized *353 in section 4 of the ordinance, falls within the void for
vagueness doctrine.
At the outset, it is noted an exhaustive list of
businesses, occupations and trades subject to taxation is contained in the
ordinance. Equally important to
note is the practical impossibility of specifying, with particularity, each and
every occupation, trade or business, that would conceivably come within the
ambit of the ordinance. Plaintiffs cannot reasonably argue that before the defendant
can require a business license for a talking cat, it must specifically provide
for such an occupation in its ordinance. The
self-evident thrust of the ordinance is to tax occupations, businesses and
trades that derive income from the practice of that occupation, business and
trade in the marketplace. In other
words, where a person, firm or corporation engages in regular commercial
activity with the public for the purpose of gaining economic benefits or
advantages, that person, firm or corporation is subject to the ordinance.
Given the exhaustive detailing of the wide variety of occupations and
businesses covered, it requires no great leap in logic to hold that a
"catch-all" category is intended for those unique, extraordinary
occupations, such as plaintiffs' talking cat, used to obtain economic benefits.
Plaintiffs' contention that they are not required to obtain a license carries
the implication that they are not engaged in an occupation.
In their brief, plaintiffs cite several definitions of the terms
"occupation" and "business." The general import of these
definitions is that one is engaged in an occupation or business when that work
or activity occupies one's time or attention on a regular basis for profit or
support. See United States v. King,
532 F.2d 505, 510 (5th Cir.1976); Southern
Guaranty Insurance Company v. Duncan, 131 Ga.App. 761, 764, 206 S.E.2d 672
(1974). Inasmuch as the ordinance
does not define "occupation" or "business", the common
definition cited above applies. High Ol'Times, supra.
Plaintiffs' activity, regardless of its peculiarity, falls within this
definition.
Carl Miles, in his deposition of April 23, 1982, stated at pages 35-36
that prior to June 22, 1981, he would ask for a contribution when people asked
to hear his cat talk. From May 15,
1981, to June 22nd, he received enough contributions, usually $.25 or $.50 each,
to pay his weekly rent of $35.00 and purchase other necessities, except for a
two-week period in which he used money from his savings.
Miles Deposition, at p. 38. He
and his wife were otherwise unemployed, with no other income.
Plaintiffs would walk, with the cat, in the vicinity of Broad and Greene
Streets, major avenues of motorized and pedestrian traffic, for several hours a
day. Deposition of Elaine Miles, at
p. 13. Thus, they were regularly
engaged in a pursuit yielding income however small.
The plaintiffs' commercial interest in Blackie is
well established. It is undisputed that before they moved to Augusta and after
the business license was obtained, Carl Miles entered into several agreements
with talent, or booking, agencies in South Carolina, North Carolina and Georgia.
Carl Miles Deposition, at pp. 6-7, 21-23.
Prior to June 22nd, Blackie appeared on television and radio.
For example, in 1980 Blackie appeared on "That's Incredible," a
nationally televised program, for $500.00.
Also, plaintiffs' living expenses have been paid in part by at least one
promotional agency who had contracted with Carl Miles.
Although the activity recounted here occurred either prior to the
plaintiffs' move to Augusta or after June 22nd, it is relevant to show the
interest plaintiffs had in exploiting Blackie on a commercial basis.
This interest coupled with the near daily receipt of contributions
requested by the plaintiffs for performances by the cat brings them well within
the definition of occupation. Furthermore,
the question of obtaining a business license was not new to Carl Miles.
He had on previous occasions, in Charlotte and Columbia, inquired as to
the necessity of a license. Deposition,
at pp. 19-20. He, therefore, viewed
his exploitation of the cat as a business activity for which a license might be
required. The fact that those
cities did not require a license does not alter *354 the nature of his
activity or prevent the City of Augusta from requiring one. Since they did not
hold themselves out as a charity, the plaintiffs cannot persuasively argue that
their activity did not require a license. The
ordinance is not impermissibly vague.
With respect to section 4 of the ordinance which
grants the mayor discretionary power to require a license, it is unnecessary to
address plaintiffs' vagueness attack. Nowhere
in the record does it appear that this section was invoked to require
plaintiffs' licensing. The
licensing requirement came from section 2 of the ordinance.
Even if section 4 were declared void for vagueness, it would not affect
the outcome of this case inasmuch as it was not applied to plaintiffs and its
demise would not affect the validity of section 2.
See Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37
L.Ed.2d 830 (1973).
Plaintiffs next attack the ordinance on the ground
it is overly broad. As stated by the Supreme Court in Broadrick v. Oklahoma,
supra, at 615, 93 S.Ct. at 2917, before a statute is invalid for overbreadth,
"the overbreadth of [the] statute must not only be real, but substantial as
well, judged in relation to the statute's plainly legitimate sweep."
(Brackets added). The
business license ordinance is a legitimate exercise of the city's taxing power,
as delegated by the state. It
covers activities that rightfully fall within the definition of trade, business
and occupation. To prevail,
plaintiffs must show that their conduct is constitutionally protected, i.e.,
exempt from taxation. Plaintiffs
cite no authority that holds commercial solicitation exempt from taxation.
Plaintiffs' conduct is not barred by the ordinance so long as they do not
seek contributions. Once their
activity becomes a commercial venture, it falls within the legitimate sweep of
the ordinance. Also, the criminal
activity is not the plaintiffs' solicitation of money for Blackie's
performances, but doing so without a license.
Plaintiffs cannot contend that the ordinance impermissibly infringes upon
their right to association since this right does not extend to commercial
ventures. Stratton v. Drumm, 445 F.Supp. 1305, 1309 (D.Conn.1978);
Brown v. Haner, 410 F.Supp. 399 (W.D.Va.1976);
See Pollard v. Cockrell, 578 F.2d 1002, 1016 (5th Cir.1978).
Accordingly, the business license ordinance does not suffer from
overbreadth.
II
DEFENDANT'S MOTION
Defendant City Council of Augusta filed its own
motion for summary judgment. Most issues raised in its motion have been sufficiently
covered in the discussion of the plaintiffs' motion.
Repetition will be of little benefit.
One point raised in defendant's motion that needs to be briefly addressed
refers to plaintiffs' claim that their right to equal protection was violated by
the license requirement. The
plaintiffs' contention is without merit, and defendant must prevail.
Plaintiffs fail to show the manner in which they were denied equal
protection. There is no evidence of
purposeful discrimination, if there was any discrimination at all.
Furthermore, the ordinance is not arbitrary and without rational
foundation. The fact that the
ordinance does not specifically mention a "talking cat" but instead
contains a catch-all clause does not, under the circumstances, raise the
requirement of a license to the level of an equal protection violation.
Also, the fact the plaintiffs' tax was a different amount than that
required of other businesses does not constitute a violation. Revenue laws of
states and municipalities do not have to be applied uniformly class to class. Lehnhausen, supra. The
resultant inequality does not render the ordinance unconstitutional in the case
at bar. See Alford v. City of
Lubbock, Texas, 664 F.2d 1263 (5th Cir.1982).
Only if the plaintiffs demonstrate that the ordinance as applied to them
is a form of "hostile and oppressive discrimination" will the
ordinance fall. Lehnhausen, supra,
410 U.S. at 364, 93 S.Ct. at 1006. As
no such showing has been made by the plaintiffs, the ordinance retains its
presumption of validity. Alford,
supra, at 1266.
*355
CONCLUSION
As demonstrated in both motions for summary
judgment, there is no genuine issue of material fact existing in this case.
Consideration was limited, therefore, to entitlement of judgment as a
matter of law. Under the facts and
the applicable law, defendant prevails. The
ordinance challenged by the plaintiffs is constitutionally valid depriving them
of neither due process nor equal protection.
The ordinance is a legitimate, rational means for the generation of
revenue for the benefit of the defendant. It
does not trammel the fundamental rights of the plaintiffs as guaranteed by the
state and federal constitutions.
Accordingly, in consideration of the foregoing
findings and conclusions, plaintiffs' motion for summary judgment is DENIED.
Judgment is, however, granted in favor of
the defendant City Council of Augusta on all issues.
The remaining defendant, M.D. Philpot, was sued
individually and in his capacity as Chief of Police for the City of Augusta.
He, too, should have judgment granted in his favor.
Although he is not a party to the City Council's summary judgment motion,
the claims against Chief Philpot are ripe for decision.
Plaintiffs have not produced any evidence to show that the officers of
the Augusta Police Department did not act properly and within their lawful
authority. Moreover, there has been
no showing that defendant Philpot personally harassed the plaintiffs or directed
such unlawful activity. Finally, in an action brought under 42 U.S.C. s 1983 he
may not be sued under the theory of respondeat superior.
Therefore, consonant with the findings of fact and
conclusions of law recited in this order on motion of the City Council, the
defendant M.D. Philpot is granted judgment in his favor, both individually and
in his official capacity as Chief of Police, on all claims.
The parties shall each bear their own costs.
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