### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 16, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-12396 Non-Argument Calendar

________________________ D. C. Docket No. 01-03419-CV-CC-1 FOXY LADY, INC., d.b.a Fo xy Lady, DARIUS L. M

ITCHELL,

agent for the alcoholic be

verage license of Foxy Lady, Inc., S.G.T., INC., d.b.a. Please

rs, M. PAUL HIC

KS, JR., agen

t for the alcoholic be

verage license of S.G.T., Inc., Plaintiffs-Appe llees,

versus CITY OF ATLANTA, GEORGIA, SHIRLEY FRANKLIN, Ma yor, in her official ca

pacity as May

or for the City of Atlanta, Georgia, Defendants-Appe llants.

________________________ Appeal from the United States District Court for the Northern D

istrict of Georgia

_________________________ (October 16, 2003)1 In this case, Darius Mitchell a

nd Paul Hicks own an

d operate Fox L

ady and Plea

sures, respectively. The permits to sell alcohol on the premises are in the names of the two g entleman, but for the sake of simplicity we refer only to the Clubs throughout the opinion.

2 The City agreed to stay the revocation proceedings pending the outcome of this case.

2 Before DUBIN

A, HULL and MARCUS, Circ uit Judges. PER CURIAM: After the City of Atlanta (“The City ”) ordered the plaintiffs 1 (the “Clubs”) to show cause why

their alcoholic beve

rage licenses should not be revoked for non-compliance

with City of A

tlanta ordinances concerning the regula tion of nude dancing, the Clubs filed this 42 U.S.C. § 1983 action seeking, among other relief, a permanent in

junction enjoining t

he City from

proceeding with the

revocation hearings. The Cl

ubs contended that the C ity ordinances go

verning the liquor license revocation

process did not provide

them with the r

ight to subpoena witnesses, and the

refore the City ’s process for r evocation of the Clubs ’ liquor licenses violated the

Clubs’ procedura

l due process rights. The district court

agreed with the Cl

ubs, denied the City ’s motion for summary judgment, an

d certified its orde

r for interlocutor

y appeal. 2 This Court then granted the City’s application for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). After

review, we con

clude that the City

provides a constitution

ally3 The record is some what unclear as

to whether the City

sought to revoke

the Clubs’ licen ses or was pr ovidi ng not ice be cause it was refus ing to renew the Cl ubs’ l iquor licen ses. In this case it does not make any difference because the pr ocedure applied to either process is the same. For the sake of simplicity and because it appears from the r ecord that the City was attempting to revoke the Clubs’ liquor licenses, we shall refer to the proceedings as the City ’s attempt to revoke

the Clubs’ liquor lic

enses. 3 adequate process f

or the revocation of

a liquor license. T

hus, we vacate th

e distri ct cour t’s deni al of su mmary judgmen t to the City. I. FACTUAL BACKGROUND The Clubs operate n

ude-dance facilit

ies which are lice

nsed by the City

to sell alcoholic bever

ages for consum

ption on the premi ses. The City sought to revoke the Clubs’ liquor licenses alle ging their dancers w

ere violating cert

ain laws. 3 For example,

under Georgia law

, “touching, caressing, or fondli ng of the breast, buttocks, anus, or genitals” is prohibited in any premise which is licensed to sell alcoholic b everages. O.C.G.A. § 3-3-41(a)(2); see also Harris v. Ent. Sys., Inc. , 259 Ga. 701, 704 ( 1989) (limiting th e scope of the statut

e under the Georgia Constitution). Unde

r the City’s ordinances, it is unl awful for “a

ny person to commit” or

“any lice nsee to knowingly permit or allow ” any of the foll

owing acts: “For any person to touch, caress or fondle an entertainer or dancer, except to place money in gar

ters worn for such

purposes” or “[ f]or any dan cer to, by bend

ing, stooping and other postur al moveme

nts, display the interior of the dancer’s anus or4

vagina.” Code of O

rdinances of the Cit

y of Atlanta (

“C.O.C. A.”) § 10-228(b)( 1) & (b)(3). In October 2001, th

e City ordered

Pleasures to show cause why its alc oholic beverage license s

hould not be revoked for

two illegal inciden

ts. Specificall

y, the City alleged tha

t on September

28, 2000, “8 fe

male dancers

were observed usin

g their hands to fondle t

heir breasts and vag

ina while dancing nude .” The City a lso alleged that on March 12, 2001, 13 dancers were “dancing improperly.” I n November 2001,

Foxy Lady r

eceived a simi

lar letter to show cause why its alcoholic beverage

license should not be r

evoked, alleging tha

t on August 1, 2001, “12 female dancers were observed da ncing improperly.” Although charges were brought against the female dancers for their alleged conduc t, all ch arges we re even tually d ismisse d witho ut adju dicati on. The C ity, however, procee

ded with its attem

pt to revoke both Clubs’ liquor licenses. As mentioned ab ove, the Clubs filed this § 1983 action seeki

ng to enjoin the City from proceeding with the revocation hearings, arguing that the C ity’s liquor license revocation process violated procedural due process. The district court denied the City’ s motion for sum mary jud gment, stating t

hat the Clubs “c annot receive a me

aningful hearing unde

r the City of A

tlanta’s curre

nt license revocati

on process without the r

ight to subpoena witnes ses.” Because th e Clubs did not have5

an absolute or independent right to subpoena witnesses, the district court concluded that the Ci

ty’s process for license revoc ation violated proce dural due process rights guaranteed under the Fourteenth Amendment. The district court denied the City’s motion for summa ry judgment, and this interlocutory appeal followed.

II. DISCUSSION A. Liquor License R

evocation Process i

n Georgia Before discussing th

e substantive issue in t

his case, we fir

st outline the process applied in the City of Atlanta before the City can revoke an establishment’ s liquor license. P ursuant to C.O.C .A. § 10-109(c), the City mu

st provide “five- day written not ice to the licensee , stating the place , date, time and purpose of such heari

ng and setting forth the

charge upon which th

e hearing shall be held.” In this ca

se, Paul Hicks an

d Pleasures rece

ived written notice

on October 29, 2001, of it s liquor license rev ocation hearing on November 20, 2001. The notice provided more than three weeks notice and in all other ways complied with § 10-109(c). As for Darius Mitchell and Foxy Lady, the City notified Mitchell on Novem

ber 11, 2001, of the

liquor license revocation hearing on4 Although § 10-109 provides for a hearing, § 10-109 does not describe the exact contours

of what happens a

t a hearing bef

ore the Lice

nse Review Boar

d. However, the G

eorgia Supreme Court has stated that “local governments are not exempted from the due process requirements of the Fourteenth A

mendment” when “

regulat[ing] the

sale of alcoholic

beverages” a

nd that in liquor license revocation hearings, “the parties must generally be allowed an opportunity to know the claims of the op

posing party

, to present evide

nce to support thei

r contentions, and

to crossexamine witnesses for the other side.” Grovenstein v. Ef fingham County

, 262 Ga. 45, 48 (1992) (internal brackets, quotations, and citations omitted). Thus, based on Grovenstein and because the Clubs do not conte

nd otherwise, we

conclude that the

Clubs will have an op

portunity to present evidence, introduce testimony, and cross-examine witnesses. Grovenstein , however, does not addresswhether parties have a right to subpoena witnesses to liquor license revocation hearings. 6 December 4, 2001. Once again, the City provided m ore than three weeks notice and in all other respects complied with § 10-109(c). Because the Clubs f

iled this § 1983 action a

nd the City volunta

rily agreed to stay the liquor li

cense revocation pr

oceedings until this ca

se is resolved, the remainder of the liquor li cense revocation pro cess was not implemented. However, pursua

nt to § 10-109, the License Review Boar d would normally “conduct the hea

rings and report its conclusions and recom mendations to the mayor.” C.O.C.A . § 10-109(d). At a liquor license

revocation hearing, the License Re view Board mu

st afford the Clubs an opportunity to pre sent their evidence , to introduce testi mony in support of their case , and to cross-exam ine the City’ s witnesses (presum ably the under-cover police officers who witnessed the dancers’ alleged acts). 45 Specifically , § 30-27(a) state

s: Whenever the atte

ndance of any

witness may b

e required befo

re the license review board to establish any fact in connection with any hearing or any investigation which may be lawfully c onducted by the license review board, the mayor or the mayor’s desig nee is authorized to issue a subpoena, directed to the witness, requiring the witness to personally be and appear at the time and plac e of the meeting of the board and to produce at that time and place any documentary evidence which, in the judgment of the board, may be require d . Such witness shall remain in attendance upon the meeting until excused therefrom. The subpoena shall bear teste in the name of the city, shall be signed by the mayor or the mayor's designee and shall be served by any member of the department of police. Such serv

ice shall be had a

t least 24 hours bef

ore the time such w

itness is required to atte

nd and to continue t

he attendance o

f the witness. C.O.C.A. § 30-27(a) (emphasis added). 7 Furthermore , pursuant to C.O. C.A. § 30-27, 5 a party can re quest that the May

or or the Mayor’s d

esignee issue a subpoe

na to compel a w

itness to appear bef

ore the License Review

Board. After the hearing, the License Review Board issues a report to the Mayor, recommending that the Clubs ’ liquor license be revo ked, suspended, or ren ewed. The Mayor, upon a finding of “due cause,” then has the authority to revoke, suspend, or renew the Cl ubs’ liquor licenses

. See C.O.C.A. § 10-109(b) & (d). Due cause is define

d at length in § 10-109(a

). The applicabl

e definitions of “

due cause” in this case are: the “[f ]ailure by th

e licensee to adequa

tely supervise a

nd monitor the conduc

t of the employ

ees . . . on the li

censed premise s” or “[t]he violation of any ot

her law, ordinanc

e or regulation gover

ning the operation of8

establishments licensed to sell alcoholic beverages.” See C.O.C.A. § 10- 109(a)(12) & (14). B. Right to Subpoena Witnesses In this case, the di strict court conclud ed that the process de scribed above violated the Clubs’ procedural due process rights because th e Clubs did not have the absolute or indepe

ndent right to subpoena w itnesses before the

License Review Board. On appeal, the City argues that due process does not require an absolute or independe

nt right to subpoena wi

tnesses at an adm

inistrative hearing , and that the Atlanta City Code provides a reasonable means by which witnesses may be subpoe

naed for the revoca

tion hearing. We

agree, and conclu

de that the City provides a constitutionally ad equate process for

the revocation of a

liquor license. In Cryder v. Ox

endine , 24 F.3d 175, 177 (11th Cir. 1994), this Court developed a three-

prong test for establ

ishing a procedural d

ue process clause violation under § 1983. First, the Clubs must establish “a deprivation of a constitutionally-protected liberty or property interest.” Id. The parties do not dispute that the Clubs h

ave a constitutionall

y-protected pr

operty interes

t in their existing respective

liquor licenses, a

nd we do not discuss that question.9

Second, the Clubs must establish “state action.” Cryder , 24 F.3d at 177. Once again, the pa

rties do not dispute tha

t the City’s a

ttempts to revoke

the Clubs’ liquor licenses amoun t to state action for the purposes of § 19 83. See Bell v. Burson , 402 U.S. 535, 539, 91 S. Ct. 1586, 1589 (1971) (“Once licenses are issued, as in [this] case, their conti nued possession ma

y become e ssential in the pursuit of a livelihood.

Suspension of issued li

censes thus involves sta

te action that adjudicates important interests of the licensees.”). Third, and finall

y, the Clubs m

ust establish a “

constitutionally i

nadequate process.” Cryder , 24 F.3d at 177. T he parties dispute w

hether the Clubs m

ust have a righ t to subpo ena witnes ses to the revocatio n hearing i n order for the City’s liquor license revocation process to be constitutionally adequate. In Goldberg v. Kelly

, 397 U.S. 254, 268-69, 90 S. Ct. 1011, 1021 (1970), the United States Supreme Court explained that “[t]he opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.” That is, procedur

al due process “

is not a technical co

nception with a fixe

d content unrelated to time, place, and circumstances.” Mathews v. Eldri dge , 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976) (quotation marks and citation omitted). Rather, procedural due process “is flexible and calls for such pr

ocedural protectio

ns as the particular situation demands.” Id. (quotation marks and ci tation omitted).6 Specifically, the Supreme Court has identified three distinct factors to be considered

when determining what constitutional process is due. First, the private interest that will be affected by the official ac tion; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeg uards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement wou

ld entail. Mathews , 424 U.S. at 335, 96 S. Ct at 903. 10 Therefore, there is a need to balance the governmental and private interests at stake. Id. (citations omitted). 6 In Travers v. Jones , 323 F.3d 1294 (11t h Cir. 2003), petition for cert. filed , 72 USLW 3155, N

o. 03-321 (Aug. 27,

2003), this Court add

ressed the right to subpoena witnesses to

an administrat

ive hearing in the con

text of a firefight

er who had been suspende d without pay due to in subordination a nd conduct unbeco ming. Specifically, firefighter Travers was involved in a verbal exchange with the Chief Executive Officer of DeKalb Cou nty while Tra

vers and others wer

e picketing outside DeKalb Coun ty’s administration build ing. Travers was susp ended for the incident, and brought

suit alleging that he w

as improperly

suspended because he was engaging in pro tected speech. Id. at 1295. The Travers Court recognized th at a factual dispute

existed between the parties as to what w

as said exactly

between Traver

s and the CEO of D eKalb County. Travers , 323 F.3d at 1296. The issue of fact, however, had been resolved11

during a state administ rative hearing in whi ch Travers’s suspensio n was upheld. Id. The Travers Court noted that the st ate administra

tive findings were binding on this Court if Trave

rs received a full

and fair opportunity

to present his case a

t the administrative hearing

. Id. On appeal to this Cour

t, Travers argu

ed that he was denie

d a full and fair hearing because he was denied the right to compel certain witnesses to testify at the administrative heari ng. Travers , 323 F.3d at 1296-97. Travers adm

itted, however, that he failed to compl y with the adm

inistrative procedu

res regarding the means by w

hich a witness could b e compelled to t estify at the a

dministrative hearing. Id. at 1297. Consequently , this Court conclude

d that “[t]he

County afforded Trave

rs the opportunity

to a hearing where

he could present live witnesses and cross -examine opposin g witnesses. Tra

vers’ inability

to do so was a result of his own tardiness.” Id. In so concluding, this Court went further, however, and stat

ed that “a part

y has no right to subpoena witnesses to sta te administrative hearings.” Id. (citations omitted). In support its adoption of that general principle, the Travers Court cited with approval decisions from other circuits recognizi

ng the ability to su

bpoena witnesses is no

t an absolute or independent righ t in administrative hear ings. Id. ; see Amundsen v. Chicago Park Dist. , 218 F.3d 712, 717 (7 th Cir. 2000) (“

Nonetheless, this c

ourt has held that in12

the administrative hearing context, the ability to subpoena witnesses is not an absolute right. . . . Indeed, in administrative matters, due process is satisfied when the party conce

rned is provided an oppo rtunity to be hea

rd in an orderly proceeding which is adapted to the natu re and circumstances of the dispute.” (quotation mark

s and citations om

itted)); Calvin v. Chater , 73 F.3d 87, 92-93 ( 6th Cir. 1996) (agenc

y may place reasonable l

imitations on the process for produci ng witnesses to testif

y); DeLong v. Ham

pton , 422 F.2d 21, 24 (3d Cir. 1970) (“It was plaintiff’s burde

n to arrange for the

attendance of any

witnesses he wishe

d to testify.”). We agree that r

easonable limit

ations may b e placed on the num ber and scope of witnesses t hat may be compelled to testify at an adminis trative hearing. Therefore, w

e also agree with Travers that no absolute or inde pendent right to subpoena witnesses e

xists during admin

istrative proceedi

ngs, and now hold expressly that pr

ocedural due proce ss also does not requir e an absolute or independent right to sub

poena witnesses in a

dministrative he

arings. The City’s ordinance requiring the Clubs to request the Mayor to issue a subpoena provides an ac

ceptable balance b etween the need to conduct a fair hearing and the City ’s legitimat e desire to place r

easonable limit

ations on the content and durati on of its liquor li cense revocation hea rings. See C.O.C.A. § 30-13

27; see also Richardson v. Perales , 402 U.S. 389, 406, 91 S. Ct. 1420, 1430 (1971) (noting that “the sheer magnitude of [the] administrative burden” is “ an additional and pragmatic factor which, a lthough not controlling,

deserves ment

ion” (quotation marks and citations omitted)). While it is true th

at there is no guara

ntee that the Clubs w

ill be able to convince the Mayor or the Mayor’s designee to subpoena allthe witnesses the Clubs want to call,

§ 30-27 provides a rea

sonable frame

work from wh

ich to judge what witnesses ar

e necessary.Specifically , the witnesses tha

t can “establis

h any fact in connection w

ith any hearing or

any investigation

which may

be lawfully conducted by the license review board” is a reasonable limitation on what witnesses should be pr

esent at the hearin

g. Furthermo

re, there is nothin

g in the record to suggest tha

t the Mayor or th

e Mayor’s de signee does not follow these limitations or th

at different stand

ards are in place f

or the adult enterta

inment indus try. Furthermore , it makes per fect sense for the

Mayor’s off

ice to control the issuance of subpoenas in the license revocation process. For if it were otherwise, one can easily i

magine the proc ess becoming cum bersome and pote

ntially unmanageable.For example, if the Clubs were to have their own, absolute or independent subpoena power, they effectively could stop, or at the very least delay14

significantly,

the entire revoca

tion process by iss

uing subpoenas to potentia lly hundreds of individuals.

In the hopes of frust

rating the City’ s efforts, the Cl ubs could subpoena witness es ranging from club regulars to tes

tify that they

have

never seen any dancer co mmit one of the e numerated vi olations to the dan cer’s parents who ma

y testify th

at their child is unlik

ely to do such things

. Finally, it is r

eadily apparen

t that the Clubs’ c

laim of a dire

need to subpoena witnesses is

exaggerated. A

t the liquor license r

evocation hearing,

the Clubs undoubtedly will be able to cross-examine the undercover police officers who allegedly w

itnessed the illegal acts. Additionally , the Clubs will be a

ble to introduce testim

ony from w

itnesses with rele

vant informati

on, such as certai

n dancers, who agree to testify voluntarily. Finally, the Clubs m ay wish to introduce evidence, to the ex

tent it exists, about how they inform all their dancers of the rules surrounding nude dancing, that they post the rules in conspi

cuous places, and/or how the Club s discipline tho se dancers found vi olating city ordinan ces. Such informat

ion may be r

elevant to the decisi

on to revoke or not rev

oke the Clubs’ liquor lice

nses. C. Effective Stat

e Remedy Alternatively

, to the extent that t

here is an argum

ent that the City ’s current license revocation

process amounts

to a procedural depr

ivation, the State

of15

Georgia provides a

n adequate mea

ns by which to re

medy any allegedly unlaw

ful deprivation, and the

Clubs’ procedura

l due process claim

here is not cognizabl

e under federal law . In McKinney v. P ate , 20 F.3d 1550 (11th Cir. 1994) ( en banc ), this Court held that even if a procedural deprivation exists during an administrative

hearing, such a cl

aim will not be cognizable under § 1983 if the state provides a means by which to remedy the alleged deprivat ion. Id. at 1565 (“Since the Florida courts possess the power to rem edy any def

iciency in the process by which McKinney was terminated, Mc Kinney can not claim that he was deprived of procedur

al due process.”) ; see also Hudson v. Palmer , 468 U.S. 517, 533, 104 S. Ct. 3194,

3204 (1984) (“[A

]n unauthorized int

entional deprivation o f property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendm ent if a meaningful postde

privation reme

dy for the loss is a

vailable.”). I

n Horton v. Board of County Com

m’rs. of Flagler County , 202 F.3d 1297 (11th Cir. 2000), this Court explained that The McKinneyrule is not micr o in its focus, but m

acro. It does not look to the actual involvement of state courts or whether they were asked to provide a remedy in the specific case now before the federal court. Instead, the McKinneyrule looks to the existence of an opportunity – to whe

ther the state cour

ts, if asked, gene

rally would provide an adequate remedy for the procedural deprivation the federal court plaintiff claims to have suffered. If state courts would, then16

there is no federa

l procedural due pro cess violation regar dless of whether the plainti

ff has taken advanta

ge of the state rem

edy or attempted to do so

. Id. at 1300. The Clubs spend a gre

at deal of time

arguing that there i s no state reme dy because they ar

e unable to petition the

Georgia superior courts for a writ of certiorari to cor

rect any proce

dural defects in the

Mayor’s dec

ision to revoke the Clubs’ liquor lice

nses. We need no

t address this issue in great detail beca use the Georgia Suprem

e Court recently

has noted the filing of

petitions for certi

orari in two cases in which a bus iness owner appealed a city’s decision not to ren ew a liquor license. See Northwest Social & Civic Club, Inc.v. Franklin , 583 S.E.2d 858 (Ga. 2003); Consolidated Gov’t of Columbus v. Barwick , 274 Ga. 176 (2001) ; see also Horton , 202 F.3d at 1300 (“ McKinneyis based on a recognit ion that the process a state provides is not only that employed by the board, agency, or other governmental entity whose action is in question, but also includes the remedial process state court s would provide if as ked.”). In fact, Northwest Social and Civic Club dealt with the situation in which the owner of a nightclub which featured adult entertainm

ent petitioned for w

rits of mandam

us and certiorari a

gainst the City of Atlanta

and its mayo

r after the May

or denied the operat

or’s application f

or renewal of its liquor license. Northwest Social & Civic Club , 583 S.E.2d at 8 59.17

In both Barwick

and Northwest Social

and Civic Club , the G eorgi a Supr eme Court addressed whether the plaintiffs who had been denied liquor licenses were entitled to a direct appeal to the Georgia Supreme Court or a discretionary appeal after their petition s for certiorari had bee n denied by the state su perior courts. Barwick , 274 Ga. at 177-79 ; Northwest Social & Civic Club , 583 S.E.2d at 859. There is no threshol

d claim in eithe

r Georgia Suprem

e Court decision that

the state superior courts did not

have jurisdiction t

o consider a petition f

or certiorari for review of a city’s liquor license decision. Instead, the Georgia Suprem e Court discussions focu sed on what type of appeal lies for the state sup erior court orders. Thus, implici

t in each of these de

cisions is the assum

ption that the state sup erior courts had jurisdic

tion to entertain peti

tions for certiora

ri from the de

nials of liquor license renewal applications. For if the superior courts were without such jurisdiction, we

believe that the Ge

orgia Supreme

Court would have addr

essed the jurisdictional iss ue first. See, e.g. , Southern Healthcare Sys., Inc. v. Health Care Capital Consol., Inc. , 273 Ga. 834, 835 ( 2001) (addressing j urisdiction first); see also Dismer v. L

uke , 228 Ga. App. 63 8, 638 (1997) (“ Before addressing

the merits of Dismer’s appeal, we must fir st determine whether the superior court had jurisdiction.”).18

Accordingly,

we conclude that suf

ficient state proc ess exists to correc t any alleged deficiency in the City’s liquor license revocation process afforded under § 30-27. Because an ade quate post-depriv ation process is in place under state law, no federal procedu

ral due process cla

im exists. III. CONCLUSION For all the above re

asons, we vacate

the district court’ s order denying summary judgment to the

City and rem

and this case to the dis

trict court for proceedings consiste

nt with this opinion. VACATED and REMANDED.