To "slow the spread" in the early days of the Co-19 thing, the City ordered businesses to shut down. But not Wal-Mart, liquor stores, or churches. Golden Glow, a tanning salon objected, and told anyone who would listen that it could operate without person-to-person contact. Sorry, no exceptions.
Federal lawsuit followed, alleging the claims you might expect: equal protection and takings claims. Predictably, the district court granted summary judgment to the City.
And just as predictably, in Golden Glow Tanning Salon, Inc. v. City of Columbus, No. 21-60898 (Nov. 8, 2022), the U.S. Court of Appeals for the Fifth Circuit affirmed. The opinion, as you might expect is short.
Was Golden Glow treated differently from other businesses similarly situated without a rational reason? No. First, Golden Glow is similar to other shut down businesses: "[e]ach class of shut-down business provides recreational, social, or, as some would say, 'nonessential' services; the clientele typically spend more than a few minutes at the location; and the likelihood of close person-to-person contact may pose risks." Slip op. at 4. Second, the distinction between which businesses got shut down and which didn't isn't subject to any meaningful judicial scrutiny because of rational basis review.
The right to work isn't a "fundamental" right so you get whatever the City wants to give:
Golden Glow contends that the City Ordinance created an arbitrary distinction between tanning salons and liquor stores that bore no rational relationship to public health given the salon’s ability to operate safely and without customer contact. The City responds that tanning salons, when compared to liquor stores, were not “so important to society that the benefits of continued operations . . . outweigh[ed] the risks of spreading the virus.” The City rationalizes that the length of time spent in a tanning bed as compared to a liquor store raised the probability that the virus was more likely to spread in a tanning salon.
Slip op. at 7-8. The ordinance's reach might have been too over or underinclusive, but so what? Invisible aliens might be walking among us.
The takings claim fared no better. The court rejected the physical invasion claim because there was not a physical invasion "because the City Ordinance did not authorize physical intrusions onto Golden Glow's property." Slip op. at 9 (footnote omitted). Of course, this was not like other physical-invasion-by-regulation cases in which the government invites third-parties to come on your property. But that conclusion dodges the real question of whether a business owner has a right to include patrons. Yeah, maybe Golden Glow would have lost that argument as well, but it would be nice to at least see the proper question being answered.
The court just as easily rejected the Lucas takings claim, concluding that the shutdown order did not render "the entire property 'valueless.'" Slip op. at 10. Apparently, Golden Glow did not assert a Penn Central taking in the district court, so the Fifth Circuit declined to rule on that issue on appeal. See slip op. at 10 n.8.
Judge Ho issued an interesting concurring opinion, arguing that "[i]f we're going to recognize unenumerated rights as fundamental, why not the right to earn a living?" Slip op. at 11, 12 ("Under the Court’s approach to unenumerated rights, we privilege a broad swath of non-economic human activities, while leaving economic activities out in the cold."). Check it out.
Golden Glow Tanning Salon, Inc. v. City of Columbus, No. 21-60898 (5th Cir. Nov. 8, 2022)
