Bbcb, LLC v. City of Independence, WD 64960.
| Decision Date | 15 August 2006 |
| Docket Number | No. WD 64960.,WD 64960. |
| Citation | 201 S.W.3d 520 |
| Parties | BBCB, LLC, a Missouri Limited Liability Company, Appellant, v. The CITY OF INDEPENDENCE, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
David S. Rauzi, Kansas City, MO, for appellant.
Steven E. Mauer and Heather S. Esau Zerger, Kansas City, MO, Allen Garner and Collin A. Dietiker, Independence, MO, for respondent.
Before EDWIN H. SMITH, C.J., and HOWARD and NEWTON, JJ.
Big Bob's County Bunker (BBCB) appeals the circuit court's judgment, pursuant to § 536.150.1,1 upholding the decision of the Liquor License Officer (LL Officer) of the respondent, City of Independence (City), to revoke BBCB's city liquor license.
BBCB raises three points on appeal. In Point I, it claims that the trial court erred in determining that it was not entitled to a contested hearing before both the City's LL Officer and city council and conducting, in accordance with § 536.140, a noncontested case review of the City's revocation of its liquor license because, pursuant to §§ 2.06.002.A and 2.11.001.A of the City of Independence Code (Code), a contested hearing was required. In Point II, it claims that the trial court erred in upholding the decision of the LL Officer to revoke its liquor license, pursuant to § 2.06.002.B of the Code, because the ordinance is void on its face as violating due process for shifting the burden of proof from the City to the licensee to show cause why its license should not be revoked. In Point III, it claims that:
[T]he trial court erred in affirming the city's revocation because the city failed to adduce competent and substantial evidence which supported the revocation and because the revocation was made without law procedures in that the city's evidence was wholly lacking as proof of the essential elements of the case and in that the city made no record of its two revocation hearings so it left nothing to review as to the requirement of lawful procedures.
We affirm.
BBCB owned and operated "The Bunker," a nightclub in Independence, Missouri. BBCB was the holder of a city liquor license issued by the City, which allowed it to sell alcoholic beverages by the drink and packaged liquor at The Bunker.
In 2003, the City's police department received numerous complaints from neighbors concerning excessive noise at The Bunker. In August 2003, due to the number of complaints received, the case was referred to the Community Service Division (CSD) of the City's police department for investigation. The CSD flagged The Bunker as a nuisance and assigned Officer Harold Echols to the case.
Echols proceeded to investigate the alleged noise problems at The Bunker. Echols, having identified the owner of The Bunker as BBCB, sent its representatives, Ollie Gates and David Rauzi, letters of abatement notifying them that The Bunker had been identified as a nuisance and directed it to take the necessary steps to abate the excessive noise. Despite the letters, the police continued to receive complaints from neighbors concerning excessive noise. In fact, Echols went to The Bunker to investigate numerous complaints of excessive noise, including on June 24, 2004, June 25, 2004, and July 10, 2004. On those dates, to determine the noise level at The Bunker, Echols took decibel readings near the property line, which confirmed that the noise levels exceeded 50 decibels, in violation of § 7.10.006.
On August 6, 2004, while investigating another noise complaint, Echols went to The Bunker and observed that a band was playing inside. He asked to speak with Jacqueline Penny, the general manager of The Bunker, so he could determine whether the band was playing pursuant to a valid occupational license, as required by city ordinance. Penny told Echols that the band members were employees so they did not need an occupational license to play. Echols asked her for their employment documentation. Penny went to her office, presumably for the documentation, and when she came back, she was on her cell phone. Echols repeatedly asked her to get off the phone, which she refused to do. After the third demand, Echols cited her for interfering with a police officer. No employment documentation was ever provided, so Echols cited the band for playing without an occupational license in violation of § 5.01.026.
As a result of the ongoing complaints against The Bunker, the City's LL Officer, Terry Hartwig, was contacted about the case. After investigating, he sent a "show cause" letter to BBCB notifying it that on September 17, 2004, at 10:00 a.m., pursuant to § 2.06.002.A, a hearing would be conducted at City Hall to determine whether BBCB's liquor license should be suspended or revoked. The letter advised BBCB that its liquor license was being considered for suspension or revocation for "violations of the City Code," specifically: (1) "licensee has not at all times maintained an orderly place"; or (2) "that the conduct of the business violates, or the licensed premises or the licensee are in violation of, any provision of the City Code." In addition, the letter set forth the underlying bases for the alleged violations:
1. Action of employee Jacqueline Penny, interference with the police on or about August 6, 2004;
2. Maintaining a nuisance property on or about August 24, 2004;
3. Maintaining a nuisance property on or about July 10, 2004;
4. Maintaining a nuisance property on or about June 25, 2004;
5. Maintaining a nuisance property on or about June 24, 2004;
6. Maintaining a nuisance property on or about March 6, 2004;
7. Numerous phone calls regarding noise and/or other nuisance at the licensed premises during 2004;
8. Band performing at the licensed premises without occupational licenses.
At the revocation hearing before the LL Officer, Echols and two neighbors testified on behalf of the City, without being sworn. BBCB was given an opportunity to defend itself. No record of the hearing was made. At the conclusion of the hearing, the LL Officer revoked BBCB's liquor license, based on the alleged Code violations with respect to The Bunker.
On September 21, 2004, BBCB sought a temporary restraining order (TRO) from the Circuit Court of Jackson County to restrain the City from revoking BBCB's city liquor license until it had exhausted its appeal with the City as to the LL Officer's decision to revoke. The TRO was granted on September 22, 2004.
Pursuant to § 2.11.001.A of the Code, BBCB appealed the LL Officer's decision to revoke its liquor license to the city council. The appeal was heard on October 4, 2004. At the appeal, Echols testified that there had been numerous noise complaints made against The Bunker by neighbors. He also testified that on June 24, 2004, June 25, 2004, and July 10, 2004, he went to The Bunker and took decibel readings, which indicated noise levels that exceeded 50 decibels in violation of § 7.10.006. Echols also testified that on August 4, 2004, he cited Penny for interference with a police officer and the band playing at The Bunker for playing without an occupational license in violation of § 5.01.026. He further testified that neighbors of The Bunker had made at least 50 noise complaints to the police. Valerie Logan, one such neighbor, testified that the excessive noise at The Bunker had been an ongoing problem for the neighborhood. Rauzi was present and testified on behalf of The Bunker. At the conclusion of the appeal, the city council affirmed the LL Officer's revocation of BBCB's liquor license.
On October 5, 2004, BBCB appealed the City's revocation of its liquor license to the Circuit Court of Jackson County. The TRO of September 22, 2004, restraining the City from enforcing its revocation, was dissolved that same day. On October 6, 2004, BBCB filed a petition seeking an injunction enjoining the City from revoking its license during its appeal to the circuit court. After a hearing on October 8, 2004, the court granted the preliminary injunction.
BBCB's appeal was heard by the circuit court on October 15, 2004. Initially, the question arose as to the type of judicial review BBCB was entitled to receive from the trial court. The court indicated that the review would be conducted in accordance with § 536.150, a review of a noncontested case before the City. BBCB, however, contended that, pursuant to the City Code, §§ 2.06.002.A and 2.11.001.A, before the City could have revoked its license, it was required to conduct a contested hearing before both the LL Officer and the city council. BBCB further contended that it did not receive the required contested hearing, rendering the City's revocation of its city liquor license void and not reviewable by the trial court as either a contested or noncontested case. The trial court ultimately ruled that BBCB was not entitled to a contested hearing under the City Code, but was only entitled to a noncontested hearing, which it received. Accordingly, the trial court then proceeded with a noncontested case review of BBCB's license revocation in accordance with § 536.150.
Before the circuit court, the City called the LL Officer who testified that he revoked BBCB's liquor license on the basis, inter alia, that The Bunker was not maintained as an orderly place of business because there were numerous complaints from neighbors concerning excessive noise, and it failed to abate the nuisance despite repeated warnings from the City. The Bunker's neighbors, including Logan, Ann LeCluyse, and Julie LeCluyse, testified that they had called the police on numerous occasions to complain about the excessive noise at The Bunker. Officer Echols testified that The Bunker had generated more complaints than any other local business. On December 18, 2004, the trial court affirmed the City's revocation of BBCB's liquor license.
This appeal follows.
In Point I,...
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