Opinion
No. 85-4509, Section "D"(6)
September 3, 1987
OPINION AND ORDER
This matter is before the court for disposition on stipulated facts and evidence. The case arises out of the Defendants' suspension and revocation of Plaintiff's commercial lessor's license.
I.
Plaintiff, Marilyn T, Inc., a Louisiana corporation, was granted a commercial lessor's license (hereinafter "license"), effective September 1, 1985 to August 31, 1986 by the Jefferson Parish Council (hereinafter "Council"). Linda Hug is the sole shareholder and president of Marilyn T, Inc. Pursuant to the license issued by the Council, Plaintiff subleased the premises located at 6011 Jefferson Highway, Metairie, Louisiana, to various organizations for the conduct of bingo games.
On September 20, 1985, Mr. James Martin, an investigator from the Jefferson Parish District Attorney's Office who was on detail to the Council's Office of Budget and Research Analysis, met with Council Chairman, Robert Evans. At this meeting, Martin advised Evans of alleged violations by Plaintiff of parish ordinances and state laws regulating the conduct of bingo games. Evans instructed Martin to prepare a memorandum to Vincent Taravella, Jr., Director of the Council's Office of Budget and Research Analysis, summarizing the allegations against Plaintiff to be presented to the Council at its next meeting on September 25, 1985. Mr. Martin then drafted a memorandum to Vincent Taravella outlining the Plaintiff's alleged violations.
On September 23, 1985, Alan Gandolfi, an attorney with the Office of Research and Budget Analysis, telephoned Edward Treadaway, an employee of Marilyn T, Inc., to inform him that a meeting would be held on September 24th at the Office of Research and Budget Analysis to discuss some allegations regarding Plaintiff's bingo hall. Gandolfi did not tell Treadaway that the meeting was called to discuss suspension of Plaintiff's license. On September 24th Gandolfi phoned Treadaway again to cancel the meeting. Subsequently, Linda Hug called Gandolfi to confirm that the meeting had been canceled. At that time, Gandolfi informed Hug that a resolution would be introduced at the September 25th Council Meeting to immediately suspend Plaintiff's license based on allegations involving illegal payment of workers and receipt of illegal compensation by Plaintiff. Gandolfi also told Hug that the Council would not hold a public hearing on the resolution and that even if she attended the Council Meeting, she may or may not be given an opportunity to address the Council.
plaintiff disputes Gandolfi's version of the phone conversation with Linda Hug. The court finds more reliable Gandolfi's memorandum of his phone conversation with Hug. The memo was drafted sometime shortly after the subject conversation. Hug's stipulated trial testimony, on the other hand, is based on her recollection of the conversation after almost three years.
At the Council Meeting on September 25th, Robert Evans introduced and the Council adopted resolution No. 54690 which immediately suspended plaintiff's license. Plaintiff was afforded no hearing prior to the suspension of its license. plaintiff received a copy of the resolution notifying it that its license had been suspended and that the Council would hold a public hearing on October 23, 1985, to consider the permanent revocation of its license for violation of Jefferson Parish Code of Ordinances § 6-150.
Jefferson parish Code of Ordinances § 6-150 provides:
It shall be unlawful for any commercial lessor or any employee, proprietor or agent of any commercial lessor licensed under this section, or the spouse of any of the above, to accept any form of compensation, either directly or indirectly, derived from the operation of charitable games of chance on the lease premises, except for those items of expense pertaining to rent, cleanup and police protection, as authorized by the Code of Ordinances, and those funds derived from the sale of concessions by the commercial lessor.
Between the suspension hearing on September 25th and the revocation hearing on October 23rd, Martin prepared a report to be presented to the Council. The purpose of the report was to substantiate charges that plaintiff had violated Jefferson Parish Code of Ordinances § 6-150. The report sets out essentially two types of violations.
1. Prior to and after August 7, 1985, Linda Hug and Edward Treadaway illegally received monies derived from the conduct of charitable games of chance, and also paid similar monies to individuals assisting in the conduct of games for various organizations including the Louisiana Chapter of the Arthritis Foundation, Jefferson Youth Exchange, and Armand Hug Memorial Building, Inc.
2. Linda Hug, as president of Marilyn T, Inc., on August 15, 1985, submitted an application for a commercial lessor's license, knowing that she was and had been violating and failing to comply with Jefferson Parish ordinances and state laws regulating charitable games of chance prior to and after the date of the application.
The license issued pursuant to this application is the subject of the instant litigation.
The bulk of the report consists of a witness list including eight individuals. For each witness the report states that the witness was interviewed. Though not reflected in the report, the witnesses were not placed under oath. The report then summarizes each witness' statement. Six of the eight witnesses stated that they were paid by either Eddie Treadaway or Linda Hug to conduct bingo games for several organizations. Two of these witnesses specifically indicated that Linda Hug had received direct compensation from games run by the Louisiana Chapter of the Arthritis Foundation and the Jefferson Youth Exchange.
Martin did not himself conduct the interviews summarized in this report. Rather, he received this information from Wally Rothschild, an Assistant District Attorney involved in an ongoing criminal investigation into bingo operations in Jefferson Parish. Martin requested the information from Rothschild who took steps to assure that the information could be publicly released. Rothschild obtained the information from federal authorities and then released the information to Martin either verbally or in written form. Prior to the revocation hearing, Martin spoke with Evans and told him of the sources of the witness statements. The report was prepared and then circulated to the Council members a few days prior to the revocation hearing.
The revocation hearing was held on October 23, 1985. Linda Hug, president of Marilyn T, Inc., was present at the hearing. Plaintiff's attorney, Mr. James Smith represented Marilyn T, Inc. at the hearing. The hearing consisted almost entirely of the testimony of one witness, James Martin. Under questioning by Council Chairman Evans, Martin outlined the evidence reflected in the report and how this evidence constituted violations of the Jefferson Parish Ordinances regulating bingo operations.
No official transcript of the hearing was made, but Plaintiff secured the presence of a private court reporter at the hearing. This transcript is in evidence. (Exhibit P-7).
Martin explained that Linda Hug was sole shareholder and owner of Marilyn T, Inc., and that Edward Treadaway, her son-in-law, was an employee of Marilyn T, Inc. In addition to her relationship to the Plaintiff corporation, Linda Hug was chairman of and ran bingo games for the Louisiana Chapter of the Arthritis Foundation. Likewise, Edward Treadaway, in addition to his relationship to the Plaintiff corporation, was an officer of Armand Hug Memorial Building Fund, Inc. and ran games for that organization. Both organizations leased space from Marilyn T, Inc. for the conduct of their bingo games. Martin explained that the interviews with several witnesses indicated that both organizations, through Linda Hug and Edward Treadaway, paid individuals to conduct games in violation of parish ordinances and state law. Later in the hearing, Martin explained that he contended that since Hug and Treadaway conducted illegal bingo games for the Louisiana Chapter of the Arthritis Foundation and the Armand Hug Building Fund, Inc., then the rent received by Marilyn T, Inc. for those games was illegal compensation since Marilyn T, Inc. is only authorized to lease space for legal bingo games.
In addition to this theory to substantiate a violation of § 6-150, Martin also pointed out that several witnesses had revealed that Linda Hug had directly received compensation for conducting bingo games. He argued that since Linda Hug was an agent of Marilyn T, Inc. and had received such direct compensation, Marilyn T, Inc. had directly violated § 6-150.
Martin's final theory to substantiate a violation by Marilyn T, Inc., involved Plaintiff's application for the commercial lessor license at issue herein. Martin read into the record the preamble to the application form. This preamble outlines various grounds for suspension or revocation of the license, including misstatement or omission in the application and/or prior violations of parish ordinances regulating bingo operations by the applicant.
In his testimony before the Council, Martin stated that Linda Hug had signed the application form. The copy of this application admitted into evidence, however, does not bear Linda Hug's signature.
Martin then stated that in connection with the application, Linda Hug had submitted a sworn affidavit to the effect that she was familiar with the Jefferson Parish ordinances and state laws governing bingo operations and specifically those provisions dealing with the compensation allowable to a commercial lessor.
Martin apparently reasoned that the application somehow constituted a statement by Linda Hug on behalf of Marilyn T, Inc. that Plaintiff had not previously violated any ordinance by receiving illegal compensation. Since Plaintiff, through Linda Hug, had previously violated § 6-150, the application arguably contained a misstatement of fact. Thus, the license could also be revoked on that ground alone.
Council Chairman, Robert Evans, apparently had the same understanding as reflected by the following question:
[I]n view of not only the payment of — you know, the payment of compensation to those workers, but also in view of the alleged misstatements or false statements, is it your opinion that we have a prima facie case of a violation? (Exhibit P-7 at p. 38).
Mr. Evans subsequently amended the resolution to reflect a violation of Jefferson Parish Code of Ordinances § 6-149.7 which deals with applications for a commercial lessor's license. Plaintiff's counsel objected that Plaintiff had only received notice of a violation of § 6-150 not § 6-149.7.
At this point in the hearing, Plaintiff's counsel was given an opportunity to review the report and ask questions of Mr. Martin. Plaintiff's counsel's questions focused on whether Linda Hug had received the alleged illegal compensation in her capacity as chairman of the organization conducting the game or as an agent acting on behalf of Plaintiff, Marilyn T, Inc. Both Martin and Evans argued that the evidence did not have to show that Linda Hug was acting on behalf of Marilyn T, Inc. at the time she received the compensation, but only that she was an agent of Marilyn T, Inc. and had received that compensation without regard for the capacity in which she was acting. Plaintiff's counsel also complained that the only real evidence presented to the Council were the unsworn witness statements contained in the reports. Evans replied that the Council was not bound by the rules of evidence in criminal cases and that the Council felt justified in relying on the information in the report.
After Plaintiff's counsel concluded his examination of Mr. Martin, he was given an opportunity to put on evidence in favor of plaintiff. Although Linda Hug was present at the hearing, she did not testify on behalf of Marilyn T, Inc. Plaintiff's counsel offered no evidence to rebut the evidence presented to the Council.
Marilyn T, Inc. and Linda Hug were the subject of an ongoing Grand Jury investigation into bingo operations in Jefferson Parish. See footnote 14 infra.
At the conclusion of the hearing, Evans moved to revoke Plaintiff's license for violation of §§ 6-150 and 6-149.7. The court reporter's notes in the unofficial transcript of the hearing reflect that though five of the seven Council members had been present at the beginning of the hearing, only two members, Robert Evans and Bob DeViney, were present for the vote on Evans' resolution. The resolution, however, reflects that five council members voted to adopt the resolution. (Exhibit P-6). The resolution was adopted in the following manner:
MR. EVANS:
Okay. I'm going to move to revoke the commercial lessor permit No. 85-MAR issued to Marilyn T, Inc., dated August 21, 1985, and I don't see the — yes, there's one section in here, 6-150. I want to add the other section 6.
MR. SMITH:
We have not been notified. I mean, we received notice of this hearing pursuant to a violation of 6-150. This is the first notification that we have had.
MR. EVANS:
Right, right. I agree with you. I want the resolution to reflect also 6-149.7, which is the application for the permit.
Seconded by Mr. DeViney.
Is there any discussion or objection?
Okay, so ordered.
MR. SMITH:
Was there a vote?
MR. EVANS:
Yes. We just voted. Swift justice. (Exhibit P-7 at pgs. 54-55)
II.
In its original and amended Complaints, Plaintiff's invoked the jurisdiction of this court pursuant to 28 U.S.C. § 1331 and 1343(a)(3). In its original Complaint, Plaintiff sought damages, attorney's fees, and injunctive relief under 42 U.S.C. § 1983, 1988, and a declaratory judgment under 28 U.S.C. § 2201. Plaintiff's claims in its original Complaint arose out of the suspension of its license by the Council on September 25, 1985. Plaintiff's requests for a Temporary Restraining Order and a Preliminary Injunction were denied by the court on October 2, 1985 and October 15, 1985, respectively.Plaintiff appealed the court's Order denying the Preliminary Injunction to the Fifth Circuit Court of Appeals. While the appeal was pending, the Council held its revocation hearing, and revoked Plaintiff's license on October 23, 1985. The Fifth Circuit Court of Appeals subsequently dismissed the appeal as moot.
Following remand from the Fifth Circuit, Plaintiff amended its Complaint adding James Martin as a Defendant and alleging that the revocation hearing deprived Plaintiff of its substantive and procedural due process and equal protection rights under the Fourteenth Amendment to the United States Constitution. Plaintiff also alleged that the revocation hearing and the ordinances relied on in that hearing violated the Louisiana Constitution, various state laws, Jefferson Parish Ordinances, and Robert's Rules of Order. Plaintiff again prayed for damages and attorney's fees, a permanent injunction, and declaratory relief.
At the Pre-Trial Conference, the court ordered that the issues of liability be tried separately from the issue of quantum. By agreement of counsel, the matter was submitted on briefs, stipulated facts, exhibits, and depositions. The matter is now before the court for disposition.
III.
In its brief, Plaintiff urges essentially two federal claims. Plaintiff's first claim is that the revocation hearing violated due process. Plaintiff's second claim is that Sections 6-148 and 6-154 of the Jefferson Parish Code of Ordinances which allow immediate suspension of a commercial lessor's license, violate due process. Plaintiff also asserts as a federal claim that the Council's failure to follow its own procedural regulations for adjudicatory hearings violates due process. This "claim", however, should and will be treated as part of Plaintiff's main federal claims (i.e., whether the Council's failure to follow its own procedures in the revocation hearing violated due process, and whether that same failure in the suspension hearing violated due process)
Plaintiff also urges a series of "state claims" as follows:
1. Section 6-150 of the Jefferson Parish Code of Ordinances violates the Louisiana Constitution.
2. The Council violated the Louisiana Administrative Procedures Act by not according Plaintiff a pre-suspension hearing, and by not providing other procedural safeguards in the revocation hearing.
3. The Council violated La.Rev.Stat.Ann. § 33:4861.10 (West Supp. 1987) by not providing a pre-suspension hearing.
4. The Council violated Robert's Rules of Order in its conduct of the revocation hearing.
As noted above, Plaintiff has invoked the jurisdiction of this court pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 1343(a)(3) (civil rights jurisdiction). Plaintiff has not invoked this court's pendant jurisdiction to assert state law claims arising out of the same "nucleus of operative facts" as that giving rise to its federal claims. Therefore, this court is without jurisdiction to adjudicate these state law claims as such. To some extent the claims relating to the Louisiana Administrative Procedures Act, Louisiana Revised Statute 33:3861.10, and Robert's Rules of Order can and will be treated as part of Plaintiff's federal claims.
Accordingly, the issues before the court are as follows:
A. Whether the revocation hearing deprived Plaintiff of procedural due process in that:
1. The Council failed to follow its own procedural regulations (including Robert's Rules of Order) and the Louisiana Administrative Procedures Act;
2. Plaintiff did not receive adequate notice of the charges against it;
3. Plaintiff's counsel was prohibited or effectively estopped from cross-examining adverse witnesses;
4. Council members received evidence several days in advance of the revocation hearing, while Plaintiff was only briefly shown that same evidence in the middle of the hearing;
5. Council members did not represent neutral and impartial decision makers;
6. The Council failed to give a statement of reasons for its decision and the evidence relied on, or to provide an official transcript or other recording of the hearing.
B. Whether the suspension of Plaintiff's license without notice or hearing pursuant to Jefferson Parish Code of Ordinances §§ 6-148 and 6-154 deprived Plaintiff of procedural due process in that the Council violated the Louisiana Administrative Procedures Act and La.Rev.Stat.Ann. § 33:4861.10.
To the extent that Plaintiff's Complaints raised claims other than those stated above or in the Pre-Trial Order, such claims, if any, will be dismissed with prejudice as abandoned.
A.
The primary claim asserted by Plaintiff herein is that the Council deprived Plaintiff of property without due process. At the outset, it is clear that neither the substantive invalidity of Jefferson Parish Code of Ordinances § 6-150 under state law, nor the Council's failure to follow procedures mandated by state or parish laws will support a claim under the United States Constitution. It is well established that the mere violation of state laws does not necessarily infringe rights secured by the federal constitution. Likewise, though the Council may not have provided state mandated procedures, this does not necessarily mean that constitutionally mandated procedures were not provided. The question is not what state law requires, but rather, what the United States Constitution requires. Therefore, as far as Plaintiff's rights under the United States Constitution are concerned, it matters not whether Jefferson Parish Code of Ordinances § 6-150 violates the Louisiana Constitution or whether the Louisiana Administrative Procedures Act, Parish Ordinances, or Robert's Rules of Order required the Council to provide Plaintiff certain procedural protections. The question is simply what constitutional minimum process was due Marilyn T, Inc. when the Council revoked its license.The due process clause of the Fourteenth Amendment and jurisprudence interpreting it do not fix a rigid procedural formula to be followed in all cases. And while some sort of notice and meaningful hearing is required before finally depriving a person of a protected property interest, the exact nature and timing of that notice and hearing depend upon the circumstances of each individual case. In evaluating what process is due in each case, the court must weigh several factors: 1) the importance of the Plaintiff's interest; 2) the risk of an erroneous deprivation of the Plaintiff's interest through the procedures used and the probable value of additional procedures; and 3) the Government's interest, including the fiscal and administrative burden that additional procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982) The procedures required under the United States Constitution must accommodate these competing interests.
1.
Plaintiff's most substantial claim is that it was not given a meaningful opportunity to traverse the evidence presented to the Council. Plaintiff maintains, in essence, that it should have been given an opportunity to directly confront and examine the witnesses listed in Mr. Martin's report whose testimony was the sole basis for the charges against Plaintiff. Alternatively, Plaintiff maintains that it should have been given a reasonable substitute in lieu of cross-examination by receiving Mr. Martin's report in advance of the hearing so that it could prepare to rebut the evidence which would otherwise be put before the Council without cross-examination. Plaintiff's proposition is well supported in the law of this circuit. Wells v. Dallas Independent School District, 793 F.2d 679, 682-83 (5th Cir. 1986); Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1228 (5th Cir.), cert. denied, 106 S.Ct. 599 (U.S. 1985); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).
The primary evidence substantiating the charges against Plaintiff consisted of the witness statements in Martin's report. it appears that Martin obtained that information either verbally or in writing from Wally Rothschild of the Jefferson Parish District Attorney's Office. Rothschild had in turn obtained that information from federal authorities conducting the ongoing criminal investigation of bingo operations in Jefferson Parish. Rothschild received this information from FBI reports of interviews with witnesses and from conversations with case agents. The federal authorities, in turn, had interviewed the witnesses whose statements were the source of the information in Martin's report. Thus, the Council received this information third-hand (i.e., from the witnesses, to the federal authorities, to Rothschild, to Martin, and finally, to the Council). Prior to the hearing, Martin informed Council Chairman Evans that the witness information in his report had come from federal authorities through Mr. Rothschild.
Martin compiled and prepared his report a week or so before the revocation hearing. The report was apparently distributed to the Council members a few days before the hearing. Plaintiff's counsel, however, first saw and reviewed Martin's report during the revocation hearing. After reviewing the report, Plaintiff's counsel was allowed to question Mr. Martin. Only Martin testified at the hearing; no witness listed in Martin's report testified at the hearing. Against this factual background, the court must assess whether this aspect of the revocation hearing comported with minimal Constitutional due process.
It is beyond doubt that both the Plaintiff's and the Council's interests were significant. Mr. Martin's report and the stipulated facts establish that Marilyn T, Inc., pursuant to its license, leased its premises to charitable organizations to conduct approximately nine to eleven bingo games per week. At a rental of $450.00 per game, the income generated by virtue of Plaintiff's license was substantial. Thus, Plaintiff's interest in its license was significant. The result of the revocation hearing was the termination of Plaintiff's license, a substantial source of income to Marilyn T, Inc.
Furthermore, this court finds that under the circumstances presented, the risk of an erroneous deprivation was substantial. The Council, or at least Council Chairman Evans, knew that the witness information in Martin's report was obtained third- or fourth-hand. And though the originating Sources of the information, the federal authorities, are arguably trustworthy and reliable sources, the information was passed through several persons either verbally or in writing thereby raising the risk of an error in translation. The court also finds that the proposed alternative procedures, i.e., cross-examination of the witnesses or review of Martin's report in advance of the hearing, would have substantially reduced the risk of an erroneous deprivation.
The Council, on the other hand, has a significant interest in protecting the public from abuses associated with legalized gambling. Furthermore, the Council has the authority and the duty to closely regulate charitable games of chance. La.Rev.Stat.Ann. § 33:4861.1, et seq., (West Supp. 1987); Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La. 1983). Though the Council was legitimately concerned with the alleged violations of Parish Ordinances, the interim suspension of Plaintiff's license substantially protected the public from Plaintiff's alleged abuses of legalized gambling. Furthermore, given that the Council received Martin's report before the hearing and that the Council intended to rely on that report at the hearing, the Council's administrative burden in providing Martin's report to Plaintiff prior to the hearing was minimal.
The court finds that an appropriate accommodation of the parties' competing interests and the substantial risk of error would require that the Council give Plaintiff either an opportunity to cross-examine the witnesses listed in Mr. Martin's report or an opportunity to review that report prior to the revocation hearing. Accordingly, the court holds that Plaintiff, Marilyn T, Inc., was not accorded the minimum process required under the United States Constitution. Plaintiff's other contentions are largely without merit and are treated briefly below.
2.
Plaintiff complains that the content of the notice it received was inadequate. The operative test in determining adequacy of notice is that "the notice as published must reasonably apprise any interested person of the issues involved in the proceeding." North Alabama Express, Inc. v. United States, 585 F.2d 783, 787 (5th Cir. 1978) (emphasis added). The resolution sent to Marilyn T, Inc. notified Plaintiff of the Council's intention to consider permanent revocation of its license "because of an alleged violation of § 6-150 of the Code of Ordinances, by the acceptance of compensation not authorized by the Code of Ordinances . . . ." At the revocation hearing, however, the Council also considered violation of Jefferson Parish Code of Ordinances § 6-149.7 (false statements in license application) as a ground for revoking Plaintiff's license.
The primary issue underlying the violation of § 6-149.7 was that the Plaintiff had allegedly made false statements in its application for its license by affirming, in essence, that it had not violated § 6-150 at the time it applied for the license. Thus, the central "issue" in both alleged violations was the receipt of illegal compensation. Therefore, the court finds that the resolution reasonably apprised Plaintiff of the issues which would be raised at the revocation hearing.
3.
Plaintiff next complains that the Council was impermissibly biased or had prejudged the case against it in that the Council had received Mr. Martin's report prior to the revocation hearing and the Council had impermissibly combined its investigative, quasi-prosecutorial, and adjudicatory functions. Due process requires that a person deprived of a property interest have a meaningful opportunity to be heard before an impartial tribunal. Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976); Corstvet v. Boger, 757 F.2d 223 (10th Cir. 1985); Price v. City of Junction, Texas, 711 F.2d 582 (5th Cir. 1983). In order to support a claim of partiality or bias, plaintiff must allege some sort of actual unfairness or partiality, such as a "personal or financial stake amounting to a conflict of interest." Price, 711 F.2d at 590. Like the court in Price, this court will not presume that the Council members would not act impartially simply because they had previously suspended Plaintiff's license. Without some other evidence of bias, the mere fact that the Council received Mr. Martin's report prior to the revocation hearing will not support a claim of bias or prejudice. Hortonville, 426 U.S. at 492-494, 96 S.Ct. at 2314-15, 49 L.Ed.2d 1 (1976).
Likewise, the combination of investigative, prosecutorial, and adjudicatory functions will not support a claim of bias. In this case, the Council was authorized to and had a duty to investigate and prosecute violations of Parish Ordinances regulating legalized gambling. The Council's exercise of this statutory duty cannot by itself support a claim of bias. Id. Moreover, as explained above, the primary source of the Council's evidence against Plaintiff was the independent federal criminal investigation into bingo operations in Jefferson Parish. As such, Plaintiff's claim that the Council was biased or prejudiced is without merit.
4.
Plaintiff's final complaint is that the Council failed to provide an adequate statement of reasons for its decision and failed to provide an "official" transcript of the revocation hearing. Having considered the parties' competing interests and the risk of an erroneous deprivation, the court finds that the Council's statement of its reasons in the resolution revoking Plaintiff's license was adequate. Furthermore, given that Plaintiff caused an unofficial transcript of the hearing to be made, the fact that the Council itself did not cause an official transcript to be made is insignificant.
B.
Plaintiff's second federal claim is that the ordinances pursuant to which the Council suspended Plaintiff's license violate constitutional due process. This claim is indistinguishable from the claim that the Council, acting pursuant to those same ordinances, deprived Plaintiff of its property without due process. As discussed above, the fact that the Council may have violated state laws or parish ordinances in suspending Plaintiff's license (or in enacting the ordinances which allowed that suspension) does not impinge on a federal constitutional right. As such, this court need not determine the applicability vel non of the Louisiana Administrative Procedure Act nor of La. Rev.Stat.Ann. § 33:4861.10.
In the instant case, the Louisiana Legislature has given the governing authority of each parish the authority to decide whether to allow charitable gambling in the parish, and if so, the parish has been given the power and authority to regulate such gambling in accordance with certain minimum standards set by the State. La.Rev.Stat.Ann. §§ 33:4861.3, 33:4861.10 (West Supp. 1987). The parish may, however, prescribe more restrictive regulations than those minimum standards prescribed by the State. Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515, 518-19 (La. 1985). The Jefferson Parish Regulations at issue here, like those in Theriot, are more restrictive than the State's regulations. Jefferson Parish requires commercial lessors to obtain a license which is subject to suspension without notice or hearing. The State, on the other hand, requires no such license for commercial lessors. Thus, even as a matter of State law, Jefferson Parish Code of Ordinances §§ 6-154 and 6-148 are permissible and entirely proper regulations.
This court, in its Opinion and Order of October 15, 1985, has already held that the suspension of Plaintiff's license without notice or hearing did not violate due process. Implicit in this holding is the conclusion that the ordinances on which the suspension was based were not constitutionally infirm. In addition to the reasons stated in this court's earlier Opinion and Order which this court adopts herein, the court finds that with respect to the suspension of Plaintiff's license, Plaintiff did not have a property interest entitled to the protections of procedural due process.
Property interests protected by the due process clause are created, and their dimensions are defined by existing rules of understanding that stem from an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, in order to claim a protected property interest, a person must have more than an abstract need or desire for that interest or a unilateral expectation of it; he must have a legitimate claim of entitlement to it. Id.
Plaintiff's property interest here is created and its dimensions are defined by the Jefferson Parish Ordinances regulating charitable games of chance. Jefferson Parish Code of Ordinances § 6-149.5(a) provides as follows:
The Parish Council shall have the authority to issue licenses authorizing commercial lessors to lease their premises to organizations who have secured charitable games of chance permits under this division. No game of chance shall be permitted to operate within the Parish except on premises licensed under this division.
Furthermore, Jefferson Parish Code of Ordinances § 6-154 (and § 6-148 by incorporation) provides that the Council shall have the power to suspend temporarily or revoke a commercial lessor's license immediately upon the notification of an alleged violation of any provision regulating charitable games of chance. The Council is then required to call a hearing within thirty days to determine whether to permanently revoke the license.
As noted above, Linda Hug, on behalf of Marilyn T, Inc., executed an affidavit in connection with Plaintiff's application for a commercial lessor's license. In that affidavit, Linda Hug stated that she was familiar with the Jefferson Parish Ordinances regulating charitable games of chance, and specifically those Ordinances regulating commercial lessors.
Plaintiff's interest in its license is created and defined by reference to these Ordinances. The same Ordinances which create the interest also limit that interest. Here, the existing rule of understanding was that though Plaintiff was given a license to lease space to charitable organizations, that privilege was subject to the Council's authority to suspend it without notice or hearing. Plaintiff cannot focus on the provision which creates its right and at the same time ignore the accompanying provision which limits that right. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Therefore, with respect to the suspension of its license, Plaintiff had no protected property interest for purposes of procedural due process. As such, the Council's suspension of Plaintiff's license did not deprive Plaintiff of a protected property interest.
But even if Plaintiff had a protected property interest, the court finds that given the Council's significant interest in protecting the public, the Council's need to act quickly, its provision of a revocation hearing within thirty days of the suspension, and the informal notice provided to Plaintiff, the Council's actions in suspending Plaintiff's license pursuant to §§ 6-154 and 6-148 comported with the minimum process due under the United States Constitution.
Finally, to the extent, if at all, that Plaintiff challenges the substantive invalidity of the Council's actions or the laws and ordinances pursuant to which the Council acted, the court finds that the Council's actions and the laws and ordinances pursuant to which the Council acted are in fact rationally related to legitimate state interests, i.e., the regulation of legalized gambling.
CONCLUSION
For the foregoing reasons, the court holds that the Council deprived Marilyn T, Inc. of its license without the minimum procedural due process mandated by the United States Constitution in that Marilyn T, Inc. was not given an opportunity to traverse the testimony of the witnesses against Plaintiff by cross-examination or by a reasonable substitute for cross-examination. In all other respects, the court finds that the Council's actions comported with due process. Accordingly;
On March 26, 1986, six months after the suspension of Marilyn T, Inc.'s license, Linda Hug pled guilty to a federal indictment charging (1) a conspiracy to conduct illegal gambling businesses from January 1983 to September 1985 and (2) commission of or aiding and abetting in the commission of mail fraud. United States v. Linda Hug, Criminal Action No. 86-146 (E.D. La. 1986). The factual allegations in the indictment are virtually identical to those in Mr. Martin's report to the Council. Though hindsight may prove the Council correct in its assessment of Plaintiff's culpability, the "swift justice" meted out by the Council is no substitute for that justice which is guaranteed every citizen by the United States Constitution. But, while Linda Hug's conviction in no way detracts from this court's holding that Marilyn T, Inc. did not receive minimum procedural due process in the revocation of its license, it may weigh heavily in this court's assessment of Plaintiff's damages. That is, to the extent that Plaintiff's income prior to the revocation was obtained illegally, Plaintiff's burden to show a future loss of legitimate income may prove insurmountable. Plaintiff may nonetheless be entitled to nominal damages and attorney's fees and costs.
IT IS ORDERED that a Status Conference be held in Chambers on Wednesday, September 16, 1987 at 1:15 p.m., to discuss the remedies available to Plaintiff and to set a date for the trial of the remaining issues.
IT IS FURTHER ORDERED that to the extent that Plaintiff's Complaints raise federal claims other than those disposed of above, such claims are hereby DISMISSED with prejudice.
Finally, IT IS ORDERED that any state law claims asserted herein be and are hereby DISMISSED without prejudice for lack of subject matter jurisdiction.