This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





Arbuckle's Bar and Grill, Inc.,

Respondent (C0-97-1044),

Appellant (C1-97-1327),


The City of St. Paul, et al.,

Appellants (C0-97-1044),

Respondents (C1-97-1327).

Filed February 10, 1998

Reversed and remanded

Peterson, Judge

Ramsey County District Court

File No. C69610378

Randall D.B. Tigue, Randall Tigue Law Office, P.A., 2620 Nicollet Avenue South, Minneapolis, MN 55408 (for Arbuckle's Bar and Grill)

Peg Birk, St. Paul City Attorney, Gail Lynn Langfield-Seiberlich, Assistant City Attorney, 550 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for The City of St. Paul)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.



In this appeal from an order denying summary judgment, two city employees argue that they are entitled to qualified immunity from suit. We reverse and remand.


Respondent Arbuckle's Bar & Grill, Inc., obtained a liquor license for a bar in St. Paul in 1988. At that time, Dale Sweno was the manager of the bar, but was not an officer or a shareholder of the corporation. In 1990, Sweno became a shareholder and an officer. In October 1990, Sweno wrote a letter to the city licensing office to notify the city of the changes in Arbuckle's corporate structure, and submitted a license transfer application to the city. On October 31, 1990, Carol Lynch, an officer and shareholder, submitted an application to renew Arbuckle's liquor license. The city never took action regarding the transfer application, but granted the renewal application. Arbuckle's license was renewed in October of 1991, 1992, 1993, and 1994.

On June 30, 1995, the Minnesota Department of Revenue revoked Arbuckle's sales tax permit, and Arbuckle's has been closed ever since. On September 21, 1995, the Department of Revenue sent Arbuckle's notice that it owed over $9,000 in taxes. The notice stated that appellant City of St. Paul would not "issue, renew or transfer" Arbuckle's 1995-96 liquor license until its taxes were paid and the Department of Revenue issued a tax clearance certificate.

On September 26, 1995, appellant Philip Byrne, an assistant city attorney, sent a letter informing Arbuckle's owners, Carol Lynch and Dale Sweno, that the city could not renew and must revoke any existing license if Arbuckle's did not submit a tax clearance certificate. After receiving this letter, Sweno phoned Byrne, and Byrne told him that Arbuckle's license was revoked and would not be renewed even if taxes were paid immediately.

Despite Byrne's statements, Sweno filed for renewal of Arbuckle's liquor license (doing business as Wise Guys) on October 31, 1995, the last day to file for renewal before the license expired. On November 3, 1995, Richard Jents, an employee in the city licensing office, phoned Sweno and told him that, because there had been a change in Arbuckle's corporate structure, the city would not accept the renewal application and Arbuckle's would have to file for a license as a new applicant. After attempting to resolve the matter by telephone, Sweno sent Jents a March 20, 1996, letter in which he described the history of Arbuckle's corporate structure and explained that the city had been informed about changes in the corporate structure as required by city ordinances.

In response to Sweno's letter to Jents, appellant Robert Kessler, the director of licensing for the city, sent Sweno a letter on April 11, 1996, stating that Sweno did not have and never did have a valid liquor license in the city, and that Arbuckle's liquor license, held by Carol Lynch, had lapsed. In the letter, Kessler stated that, if Sweno wanted a liquor license, he would have to complete a new application. Sweno has not applied for a license.

Arbuckle's sued the city, Byrne, and Kessler for monetary damages under 42 U.S.C. § 1983, claiming a denial of due process rights under the Fourteenth Amendment and also sought a writ of mandamus to compel the city to accept its renewal application. Arbuckle's claims it was damaged when a potential investor withdrew from investing in the bar because he thought its liquor license was revoked. Appellants moved for summary judgment, claiming they are entitled to qualified immunity. The district court denied both the mandamus petition and the summary judgment motion.

Appellants challenge the district court's denial of summary judgment on their immunity claim. Arbuckle's appealed the denial of the mandamus petition, but this court found that the order denying the petition was not appealable and dismissed the appeal.


A denial of a motion for summary judgment based on a claim of qualified immunity is immediately appealable. Anderson v. City of Hopkins, 393 N.W.2d 363, 363 (Minn. 1986). On appeal from summary judgment, this court must determine if any genuine issues of material fact exist and if the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The existence of qualified immunity from suit brought pursuant to section 1983 is purely a question of law, which this court reviews de novo. Elwood v. County of Rice, 423 N.W.2d 671, 674-75 (Minn. 1988).

An individual has a cause of action against persons who, acting under color of state law, violate the individual's constitutional or statutory rights. 42 U.S.C. § 1983 (1994). Appellants concede that Byrne and Kessler acted under color of state law.

The defense of qualified immunity is a bar to a section 1983 claim. Johnson v. Morris, 453 N.W.2d 31, 39 (Minn. 1990). Officials are entitled to qualified immunity from suit "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Qualified immunity provides protection for "'all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537 (1991) (citation omitted).

An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.

Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985).

Arbuckle's argues that (1) Byrne violated its clearly established Fourteenth Amendment right to due process by revoking its liquor license without following the license revocation procedures set forth in city ordinances, and (2) Kessler violated its clearly established Fourteenth Amendment right to due process by refusing to accept and process its application as an application for renewal.

Byrne's Unilateral Revocation of the Liquor License

Byrne argues that he is entitled to qualified immunity because he did not deprive Arbuckle's of any property and, therefore, did not violate Arbuckle's clearly established right to due process before being deprived of property. Arbuckle's acknowledges that Byrne misstated the status of the license when he told Sweno that Arbuckle's liquor license had been revoked effective immediately, but nevertheless argues that Byrne deprived Arbuckle's of property without due process of law.

In Waste Recovery Coop. of Minn. v. County of Hennepin, 504 N.W.2d 220 (Minn. App. 1993), rev'd on other grounds, 517 N.W.2d 329 (Minn. 1994), this court concluded that county employees who directed a solid waste hauler to deliver used telephone directories to a county waste facility and threatened to revoke the waste hauler's license were entitled to qualified immunity under section 1983. This court stated:

Due process protection arises where there has been a deprivation of liberty or property in the constitutional sense and the government's deprivation procedures were constitutionally inadequate. Procedural due process in essence requires that the government provide an aggrieved party with an opportunity to be heard at a meaningful time and in a meaningful manner.

Here, [the county employees] did not * * * instigate a process to revoke [the waste hauler's] license. Although * * * [the waste hauler] may have a constitutionally protected property interest in the * * * license * * *, [the county employees'] actions did not result in a deprivation sufficient in the constitutional sense to invoke the requirement of due process.

Id. at 227 (citations omitted). Similarly, Byrne's conduct did not revoke Arbuckle's license and, therefore, did not result in a deprivation of property sufficient to invoke the requirement of due process.

Kessler's Refusal to Accept the License Renewal Application

Arbuckle's argues that denying a license renewal application is an adverse action that can only be taken by the city council following notice and a hearing as provided under St. Paul, Minn., Legislative Code § 310.05. Therefore, by refusing to accept and process its license application as an application for renewal, Kessler deprived Arbuckle's of its right to renew its license without affording it the notice and hearing procedures set forth in the city code.

The Eighth Circuit Court of Appeals has indicated that no property interest exists in a license if the licensee has not complied with all of the issuer's requirements. See Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir. 1986) (finding a protected property interest in a building permit conditioned on compliance with all legal prerequisites for receiving permit). See also Scott v. Dep't of Pub. Safety Excise Div., 792 F.Supp. 666, 669 (E.D. Mo. 1992) (finding no constitutionally protected property interest when liquor licensee failed to provide certain documents when renewing license).

St. Paul, Minn., Legislative Code § 310.02(a) (1995) provides:

All applicants for licenses or permits issued pursuant to these chapters shall make both original and renewal applications to the inspector on such forms as are provided by the division. Such applications shall not be received by the inspector until completely filled out, accompanied by all fees, insurance policies, bonds, deposits, sureties, and indemnifications or certificates required by these chapters * * * .

Arbuckle's does not deny that it failed to submit required fees, a tax clearance certificate, and proof of insurance with its renewal application in October 1995. Having failed to submit required documents with its application, Arbuckle's did not have a constitutionally protected property interest in the renewal of its license, and Kessler's conduct did not deprive Arbuckle's of any property interest. Kessler, therefore, is entitled to qualified immunity from suit.

Claim Against the City

An individual may sue a local government under section 1983 if an allegedly unconstitutional action implements a policy, ordinance, or regulation officially adopted by the local government's officials. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36 (1978). Arbuckle's contends that it maintained its damages claim against the city pursuant to Monell, and that the city is not entitled to immunity.

Without distinguishing between the individual and the municipal appellants, appellants simply state in their brief that summary judgment should have been granted to appellants. Appellants' assertion that the city is entitled to summary judgment is not supported by any argument or authority. We, therefore, will not consider whether the trial court erred in denying the motion for summary judgment with respect to the city. See Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion and not supported by argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection).

Reversed and remanded.