Municipal – Ordinance – Alcohol Sales – Equal Protection

Where the appellants, who own several bars, argue the city’s ordinance restricting alcohol sales for on-site consumption violates their equal protection rights as other commercial establishments such as hotels are not being forced to cease all business operations during the proscribed hours, the trial court properly found no equal protection violation since: (1) the sale of alcohol within hotels or hospitals is only ancillary to their operation as commercial establishments; (2) even if there is evidence in the record of unequal enforcement, any such evidence only rises to the level of “the exercise of some selectivity in enforcement” of the ordinance; and (3) the ordinance is rationally based and reasonably related to furthering a legitimate government purpose.

Affirmed.

Background

On July 18, 2000, the city enacted an ordinance requiring that: “Commercial establishments which allow for the on-premises consumption of beer, ale, porter and/or wine shall be prohibited from operating between the hours 2 a.m. and 6 a.m. on Mondays through Saturdays.” Prior to voting on the ordinance, the city council offered public debate on the issue. After the ordinance was ratified, the appellants, who own several bars, filed a declaratory judgment action challenging the ordinance. The trial court found the ordinance did not violate the appellants’ equal protection rights. This appeal followed.

Discussion

The record clearly indicates the ordinance was passed to alleviate problems caused by intoxicated people in Charleston during the proscribed hours. We find the ordinance is rationally based and reasonably related to furthering a legitimate government purpose. Council, after allowing debate and public input, determined that the operation of bars between 2 a.m. and 6 a.m. had detrimental effects on the quality of life of residents and upon the city in general. Council legitimately sought to address those problems by enacting the ordinance. Based on the undisputed disruptions and other problems residents encountered from patrons of bars between the hours of 2 a.m. and 6 a.m., as well as law enforcement difficulties in controlling the problems through enforcement of existing ordinances, we find that council’s actions were rationally based. Accordingly, we hold, the ordinance is a valid exercise of the city’s police powers and does not affect a fundamental right.

The appellants also contend they have received disparate treatment because other commercial establishments that have on-premises permits, such as hotels and hospitals, are not being forced to cease all business operations during the proscribed hours. We disagree. We hold that it is unreasonable to interpret the ordinance so as to require hotels and hospitals to cease operating entirely during the proscribed hours simply because they happen to allow on-premises consumption of alcohol. The sale of alcohol within hotels or hospitals is only ancillary to their operation as commercial establishments. All the evidence in the record indicates that hotels and hospitals do not serve alcohol during the proscribed hours, that hotels close down the portions of their businesses that do serve alcohol, and that the city is enforcing the ordinance against hotels and hospitals.

Further, even assuming the city is not enforcing the ordinance equally, the fact that there is some unequal treatment does not necessarily rise to the level of a constitutional equal protection violation. In Oyler v. Boles, 368 U.S. 448, 456, (1962), the U.S. Supreme Court held that, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation,” provided the selection is not “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”We hold that even if there is evidence in the record of unequal enforcement, any such evidence only rises to the level of “the exercise of some selectivity in enforcement” of the ordinance. Further, the appellants are not members of a protected class. Accordingly, we hold the trial court correctly found no equal protection violation.

Denene, Inc. v. City of Charleston (Lawyers Weekly No. 010-070-04) (10 pages) (Waller, J.) (SCSC) Appealed from the Charleston County Circuit Court, Young, J.; John F. Martin for appellants; William B. Regan and Francis I. Cantwell for respondent (No. 25829) (May 24, 2004).