                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           MAR 25, 2009
                            No. 08-11557                 THOMAS K. KAHN
                      ________________________               CLERK


                D. C. Docket No. 04-01126-CV-J-32MCR

AVALON CARRIAGE SERVICE, INC.,

                                                          Plaintiff-Appellant,

                                 versus

CITY OF ST. AUGUSTINE, FL,
MARK LITZINGER,
WILLIAM HARRISS, et al.,

                                                       Defendants-Appellees,

STUART GAMSEY,
GAMSEY CARRIAGE COMPANY, INC.,
GAM SAN ENTERPRISES, INC.,
SPIRIT OF ST. AUGUSTINE, INC.,

                                                                 Defendants.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                            (March 25, 2009)
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.

PER CURIAM:

       This appeal presents the issue whether a local ordinance that regulates the

horse-drawn carriage trade and allows the automatic renewal of unused hack

permits violates the Commerce Clause, U.S. Const., Art. I, § 8, or the Equal

Protection Clause, U.S. Const., Amend. XIV, § 1. Avalon Carriage Service sued

the City of St. Augustine, City Manager William Harriss, City Director of

Financial Services Mark Litzinger, Stuart Gamsey, and Gamsey’s carriage services

and alleged that the ordinances and arbitrary permitting practices of the City

unduly burdened interstate commerce, intentionally discriminated against Avalon,

and violated state and federal antitrust laws. Avalon complained that the

ordinances and practices allowed Gamsey to “hoard” most of the available permits

even though he did not use all of those permits. The district court granted partial

summary judgment against Avalon on the claims under the Commerce Clause and

Equal Protection Clause. After a trial on the antitrust claims, the district court

entered judgment as a matter of law for the defendants. Avalon then appealed the

summary judgment. During the pendency of the appeal, Avalon settled and

dismissed its claims against Gamsey and his businesses.


       *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

                                                2
      We agree with the district court that the claim of Avalon under the

Commerce Clause fails. The ordinances evenhandedly regulate in-state and out-of-

state businesses and serve a legitimate interest of the City, and Avalon has not

identified any arbitrary and capricious permitting rules or practices that unduly

burden interstate commerce. See Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.

Ct. 844, 847 (1970).

      We also conclude that the claim of Avalon under the Equal Protection

Clause fails. Avalon has failed to establish that the ordinances or permitting

practices create an intentional and irrational discriminatory classification. See

Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1201 (11th Cir. 2007) (citing Vill. of

Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000)). That there were

limited permits, that Gamsey’s permits were renewed in accordance with the

ordinances, and that the City refused to revoke and transfer to Avalon what

Gamsey legally acquired is not evidence of purposeful discrimination. Even if we

were to assume there was discrimination in the decision of the City not to create

additional permits, the City had a rational basis for its decision.

      The summary judgment is AFFIRMED.




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