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Constitutional Law No. 02-10360, 5/7/2003. Click here for the full text of this decision FACTS: The issue on appeal is whether the district court erred in granting summary judgment in favor of John Rounsavall, city secretary; Mary Gayle Ramsey, city attorney; and the city of Terrell on the appellant’s “class of one” equal protection claim regarding the permitting of a convenience store. HOLDING: Affirmed. The instant dispute is akin to the plaintiffs’ claims in Bryan v. City of Madison, 213 F.3d 267 (5th Cir. 2000), in which public officials repeatedly frustrated the plaintiff’s plan to construct an apartment complex on land he contracted to purchase, and Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), in which public officials used their powers to delay and frustrate an applicant’s efforts to obtain a liquor license. Like the plaintiff in Bryan, Beeler alleged that 1. the defendants applied the municipal ordinances, including the distance requirements established by Ordinance 1939, unreasonably in his case by frustrating his application for a permit based on a failure to comply with those ordinances; and 2. the extraordinary process he faced, including the delays from March to August 2000, violated his equal protection rights. Beeler must demonstrate that: 1. Beeler and the Rodriguezes (who were able to renew their store’s permit) were similarly situated; and 2. Beeler and the Rodriguezes were treated differently. First, the code clearly distinguishes between applications for new permits and applications to renew existing permits. Texas Alcoholic Beverages Code ��11.31, 11.32, 109.59. Permits were issued for Location A on a continual basis for more than a decade, but never for Location B. For this reason, the Rodriguezes’ application was treated as one to renew an existing permit and Beeler’s application as one for a new permit. Under the code’s grandfather clause, the distance requirements established by Ordinance 1939 only applied to Beeler’s application, not to the Rodriguezes’ application.�109.59. Beeler argues that he was similarly situated to the Rodriguezes because the two stores were located in adjacent buildings and sold the same basic items. However, the relevant criterion here is not the two stores’ proximity or the similarity of their products. Instead, the relevant question is whether the two stores were similarly situated under the code. The code’s differential treatment of businesses applying for their first permit and businesses applying to renew their permits indicates that Beeler and the Rodriguezes were not similarly situated. Whereas Beeler was applying for a new permit, the Rodriguezes were applying to renew an existing permit. Beeler did not cite any other parties applying for new permits; therefore, Beeler failed to satisfy the first element. Second, there is no evidence that Beeler was treated any differently from the Rodriguezes. On March 14, 2000, Lawson’s attorney wrote to Ramsey complaining about the city’s “delay and refusal” to certify the Rodriguezes’ application for a permit based on the failure of Location A to comply with the distance requirements contained in Ordinance 1939. Although the Rodriguezes received their permit before Beeler, the city appears to have treated the two parties in a similar manner by initially refusing to certify their applications and causing unnecessary delays. Therefore, Beeler failed to satisfy the second element. The second claim is more properly characterized as an example of selective enforcement. “The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” Allred’s Produce v. U.S. Dep’t of Agric., 178 F.3d 743 (5th Cir. 2000). “[I]t must be shown that the selective enforcement ‘was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ “ Beeler’s selective enforcement claim fails to satisfy this requirement. OPINION: Clement, J.; Benavides, Stewart and Clement, JJ.

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