Barr v. Johnson

GETA BARR, Plaintiff, v. FLORENCE JOHNSON, TRINA PAULDING, THE CITY OF CENTER POINT,THOMAS HENDERSON, and JOHN WATKINS, Defendants.

Case No.: 2:16-CV-1340-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 15, 2018

MEMORANDUM OPINION

I. INTRODUCTION

This case arises from a dispute over a barber shop in the City of Center Point. Before the Court are several motions. Defendants City of Center Point (the "City"), Thomas Henderson, and John Watkins filed a motion for summary judgment. (Doc. 61). Additionally, Defendants Florence Johnson and Trina Paulding filed a motion for summary judgment. (Doc. 62).¹ Plaintiff Geta Barr filed two separate motions to strike the affirmative defense of justification outlined in the motions for summaryjudgment. (Docs. 65, 66).² Finally, the City, Henderson, and Watkins filed a motion to strike evidence attached to Barr's response opposing summary judgment. (Doc. 70). All five motions are under submission and ripe for review.

For the reasons stated in today's opinion, the motions are granted in part and denied in part. Further, the Court determines that the proper course of action is to remand the remainder of the case to the Circuit Court of Jefferson County, Alabama.

II. RELEVANT BACKGROUND³

A. Facts Pertinent to the City Motion

In 1986 Barr moved from her native Jamaica to Miami, Florida. In 2008 she moved from Miami to Birmingham, Alabama. Barr describes her occupation(s) as: cosmetologist, barber, and income tax preparer. Upon first arriving in Birmingham,Barr rented a barber's chair at a studio in the Birmingham neighborhood of Woodlawn. After briefly opening her own barber shop outside of Center Point, she then opened a barber shop and beauty salon at 1855 Center Point Parkway on August 22, 2008. A very short time after that, she moved the shop to 1849 Center Point Parkway, which was located in the same shopping center.

From 2008 to 2014, 1849 Center Point Parkway was Barr's only location. From that location she operated both Barr Sisters Barber and Style, and Maxi Tax Resources, an income tax preparation service which was only open during tax season, January to April. In 2014, she opened "Barr Sister's Barber and Style II" at 1687 Center Point Parkway.

Starting in 2014, 1687 became the location of the barbershop, while 1849 was the location of the cosmetology salon. Barr testified that, due to this separation, she did not need a license from the Jefferson County Barber Commission ("JCBC") to operate 1849, and that she did not need a license from the Alabama Board of Cosmetology to operate 1687. Barr testified that the JCBC came to her shop "all the time ... [looking for] sanitation and stuff like that ...." On July 25, 2014, Kay Wallace, an inspector and office manager for the JCBC, inspected Barr's 1687location. On August 19, 2014, Trina Paulding,⁴ another inspector for the JCBC, came to Barr's shop at the request of Wallace. Barr was in Florida on August 19th. Barr testified that she was the only person who worked at Barr Sisters with a journeyman barber license, and thus was the only one who could oversee students.

When Paulding arrived at 1687 on August 19th, Barr was not there, but Paulding found that the shop was open for business, and that there was one student barber⁵ in the shop (along with his friends) without a journeyman barber present to supervise him. (See Barr Depo. at 63-65). A man named Chico, who worked at the barber shop, was also there for a short time, but he was not able to oversee students because only Barr could do that. (See id.). At that time, Paulding did not get the names of any of these individuals. (See Paulding Depo. at 52). Barr testified that "Smith was not supposed to be at work that day .... They weren't supposed to be there," and that the barbershop was supposed to be closed. However, despite Barr's directives, Chico "opened the door [for Smith] and left" Smith and his friends tooperate the shop. Paulding testified that it is hazardous for people without licenses⁶ to practice as a barber. (See Paulding Depo. at 55:23 to 56:3).

Paulding wrote Barr a violation of $50 for having a student barber present without a journeyman barber to supervise him. On August 21, 2014, Wallace came back to 1687 and found an unlicensed individual named Lateria Johnson braiding hair. Again, Barr was not present at 1687 at the time of Wallace's inspection. Barr testified that she had sent Johnson from 1849 to 1687 in order to braid a client's hair.

On August 25, 2014, Paulding came back to 1687 and gave Barr a written notice that she needed to appear before the JCBC the next day, August 26, 2014, between 9:30 and 10 AM. Barr appeared but requested the hearing be postponed for her attorney to be present. (See Barr Depo. at 78-79). The statute specifically states as follows:

The commission, before denying an application for a license, or before suspending or revoking any license, shall set the matter down for a hearing, and at least 20 days prior to the date set for the hearing, notify the applicant or licensee in writing, which notice shall contain an exact statement of the charges made and the date and the place of the hearing. The applicant or licensee at all hearings shall have the opportunity to be heard in person and by counsel.

ALA. CODE § 45-37-40.04(d) (emphasis added).

Barr testified that, at the hearing, JCBC Commissioner Florence Johnson said: "[we're] going to send the sheriff to shut you down."⁷ When Barr left the JCBC on August 26th, she went back to 1687. She testified that at some point later that day Trina Paulding, Jefferson County Sheriff's deputies, Center Point building inspectors John Woods, John Watkins, and Center Point Inspections Supervisor Wayne Plunkett arrived at her 1687 location.⁸ Barr testified that the deputies came in and ordered everyone to get out. She testified that everyone left, a notice was placed on the door, and the doors were then chained and locked. Barr testified that, although she saw Wayne Plunkett and John Watkins at the door with the chain and lock, she could not say "who put the lock together." After Barr went across the street to the 1849 building, the police entered that building and told her to leave and that if she were caught on the premises she would be arrested. (Barr Dep. p. 104:16-105:10). Barr was present when the doors to 1849 were chained and locked by the City, but she did not see precisely who locked the doors.⁹ (Barr Dep. p. 106:7-16).

On August 26th, Barr retained attorney Henry Penick, an attorney she had worked with before, to represent her. Barr and Penick went to the JCBC the next day to request an emergency meeting, but Wallace said that the earliest date on which the hearing could occur was September 4, 2014.

On September 4, 2014, the JCBC agreed to re-open Barr's businesses if she paid a $250.00 fine. (Barr Depo. at 108:16-109:17).¹⁰ City Inspector John Watkins was present when this agreement was stated. (See id. at 113:11-23). At some point on September 4th, the locks on her doors were removed, but Barr was not present for their removal. A Center Point City Council meeting regarding Barr's businesses and her business licenses was initially scheduled for September 11th, but was rescheduled to October 9th. Barr was notified of the changed hearing date by Center Point City Attorney Frank Russo. Barr appeared at the hearing on October 9th with her attorney Penick. Penick was given an opportunity to speak at the City Council meeting.

There was a business license meeting before the City Council on October 9. (See 10-9-14 Minutes). At that meeting, the sign issues, compliance with licenses, and the production of the records of revenue¹¹ were discussed regarding Barr's businesses.(See id. at 5). At the meeting it was discussed that "[i]f not in compliance at that time, the business licenses will be revoked and the businesses closed." (See id. at 6). By unanimous vote, the City Council gave Barr until "October 17, 2014, at 5:00P.M. to comply with all city ordinances." (See id.) (emphasis and capitalization omitted).

Barr testified that she never produced all requested revenue records.¹² On October 17, members of the Center Point Inspections Department put a cease and desist notice on the door of both her 1849 and 1687 locations. (Barr Depo. at 129-131).¹³ Additionally, the 1849 location was chain locked. (Hinkle Depo. at 26:15-20). The parties agree that, at that point, the City Council had not passed any new resolution finding Barr to be noncompliant or explicitly shutting down her businesses. (See Doc. 61 at 7 ¶35); (Doc. 63 at 7 ¶35); (Hinkle Depo. at 48-49). On October 17, Barr had no customers in her shop at 1849. (See Barr Depo. at 127). Barr testified that she and her son were "trying to make sure everything was in compliance." (See Barr Depo. at 127).

On October 23, 2014, the Center Point City Council met again. (10-23-14Minutes).¹⁴ The City Council unanimously passed the following motion:

Barr Sisters Barber & Style and Barr Sisters Barber & Style II granted until Friday, October 31, 2014[,] at 1P.M. to present all required information. If not in compliance at that time, the resolution to revoke the business licenses will go into effect[.]

(Id. at 3) (emphasis and capitalization omitted).

After this vote, Barr was allowed to reopen her businesses. During the week of October 17th to October 24th, when the store was allegedly closed, Barr received a credit card payment. She testified alternatively that the deposit came from 1) someone paying her son Vincent, 2) someone who gave her money to buy food out of charity, or 3) somebody who owed her money from working on their hair previously. While Barr does not sell good directly to customers in her store, she does engage in bulk purchasing and selling. (Barr Depo. at 226-228). She sold thousands of dollars of these goods from the 1849 location. (See id.).

Both Barr and Penick were present at the October 9th ...