Bezayiff v. City of St. Louis

• Decision Date: 04 November 1997
• Docket Number: No. 71824,71824
• Citation: 963 S.W.2d 225
• Parties: David BEZAYIFF, Plaintiff/Respondent, v. CITY OF ST. LOUIS, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 225

963 S.W.2d 225

David BEZAYIFF, Plaintiff/Respondent, v. CITY OF ST. LOUIS, Defendant/Appellant.

No. 71824.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 4, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 9, 1998.

Application for Transfer Denied

March 24, 1998.

Eric Kendall Banks, Steven R. Wild, St. Louis, for defendant/appellant.

David Bezayiff, St. Louis, for plaintiff/respondent.

RHODES RUSSELL, Judge.

The City of St. Louis ("City") appeals from an order and judgment reversing a decision of the St. Louis Board of Public Service to tow a vehicle from private property pursuant to municipal ordinance 60935. ¹ The trial court enjoined the City and its agents from entering private property pursuant to a municipal ordinance for the purpose of removing any disabled automobile without first obtaining the consent of the owner of the property or obtaining a warrant. The City also appeals the trial court's order and judgment declaring unconstitutional a portion of the ordinance. We affirm in part and reverse in part.

David Bezayiff ("Respondent") was the owner of a 1979 Pontiac Trans Am and a GMC pickup truck. Respondent kept these vehicles parked in his backyard on a paved surface. On June 27, 1995, the Director of the Department of Streets ordered both vehicles removed under Ordinance 60935, as both vehicles were not able to be immediately operated or were a public safety hazard.

Respondent appealed the removal orders to the Board of Public Service ("Board") pursuant to Ordinance 60935 and section 536.063 RSMo 1994. On July 12, 1995, the Board determined that respondent's vehicles were in violation of Ordinance 60935 because both vehicles were inoperable. Later, the Board reheard the matter with respondent present and issued its findings of fact and conclusions of law. The Board found the GMC pickup to be operable, but found the Trans Am to be inoperable since it had not been started for a few years. The Board also found that the Trans Am was not completely enclosed in a fenced area because there were gaps in respondent's fence. The Board further found that the Trans Am was visible from a public and private property, and that the vehicle was not used in connection with the business of a licensed salvage, scrap or junk dealer. In its conclusions of law, the Board determined that respondent had not violated Ordinance 60935 with respect to his GMC pickup, but determined that he had violated the ordinance with respect to the Trans Am. The Board ordered respondent to remove the Trans Am within seven days. If respondent failed to remove the vehicle within seven days, the Board stated that the Director of Streets would remove it pursuant to Ordinance 60935.

Respondent appealed the final decision of the Board to remove the Trans Am to the Circuit Court of the City of St. Louis. In his petition for injunction and administrative review ², respondent stated that he felt that the ordinance violated his Fourth Amendment right to be free from unreasonable seizures. Respondent also challenged the ordinance's constitutionality by stating that it violated his Fourteenth Amendment right that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor deny to any person within its jurisdiction the equal protection of the laws." Respondent's petition did not challenge the factual findings of the Board. Respondent requested the trial court to issue an injunction to prevent the City from removing his vehicle and he also asked for the matter to be tried by a jury.

On December 10, 1996, the trial court issued its amended memorandum, order and judgment. The trial court reversed the Board's decision dated August 8, 1995, and enjoined the City and its agents from entering private property pursuant to Ordinance 60935 for the purpose of removing any disabled automobile without first obtaining the consent of the property owner or obtaining a lawful warrant. The trial court held that Section Three, subsection 9 of Ordinance 60935; R.C. section 17.56.20.B.9, and Section Twenty-Three, to the extent it incorporated the provisions of Section Three B 9, were unconstitutional in violation of the Fourth and Fourteenth Amendments to the United States Constitution.

The trial court held that Ordinance 60935 authorized two actions which violated the liberty and property rights protected by the Fourth and Fourteenth Amendments.

First, the ordinance authorized the City and its agents to enter a person's property, without a warrant, to seize disabled automobiles. The court noted that the City had not violated the Fourth Amendment by seizing respondent's automobile because respondent's automobile was never removed from his property. However, the court stated that the issue was the constitutionality of an ordinance which empowered a bureaucrat to seize an automobile from private property without a warrant. The trial court explained that after the time for an administrative appeal had expired, or an administrative appeal had been rejected, the ordinance purported to authorize City officials to remove respondent's automobile from his property without a warrant. Thus, according to the court, even if respondent's vehicle had been properly found to be inoperable under the ordinance, the vehicle could not be seized from his premises without a judicial warrant.

The trial court also found that the ordinance violated the Fourteenth Amendment in that the ordinance worked to deprive the owner of property without due process of law. By condemning the mere possession of a disabled automobile by a property owner, in the absence of proof that the automobile was in fact hazardous to the public, the court reasoned that the ordinance was arbitrary, capricious, and unreasonable, and deprived the owner of property without just compensation.

In its first point, City contends that the trial court erred in holding that the ordinance lacks a reasonable relationship to a legitimate government end because the ordinance bears a reasonable relationship to numerous government ends. We agree.

Section Three, subsection B.9 of Ordinance 60935, St. Louis, Mo., Revised Code section 17.56.20.B.9 (1994) provides:

B. Non-emergency removal.

and whenever:

9. Any vehicle on private land does not operate or is in such a condition as to constitute a public safety hazard, whether it does or does not have license plates currently registered to that vehicle, except;

a. A vehicle which is completely enclosed within a building or fenced area so as to not constitute a hazard to children and which is not visible from the public street or other public or private property;

b. A vehicle or part thereof which is standing or parked in a lawful manner on private property in connection with the business of a licensed salvage, scrap or junk dealer;

such vehicle or vehicle parts or part of a vehicle may be removed subject to the provisions of this ordinance, codified as Sections 17.56.030 and 17.56.040. The police department or director of streets through their agents or contractors are vested with the discretion to determine what constitutes an illegally parked vehicle, abandoned vehicle or abandoned vehicle part (of a vehicle) according to this section.

Thus, the ordinance authorizes the removal of any automobile "on private land [which] does not operate or is in such a condition as to constitute a public safety hazard," unless the automobile is completely enclosed within a building or fenced area so as to be invisible to anyone outside the property.

Addressing the reasonableness of the ordinance, the court stated that it agreed that the city has the power to condemn or abate hazardous conditions, if the property owner was afforded procedural due process. If the ordinance were limited to inoperable automobiles, which were hazardous in fact, the court commented that it did not quarrel with the substance of the ordinance. However, the court found that the command of the ordinance that inoperable automobiles be invisible was purely arbitrary and bore no reasonable relationship to the promotion of the public health, safety, and welfare.

The purpose of police power is to promote the public health, safety, and welfare. Home Builders Ass'n v. City of St. Peters, 868 S.W.2d 187, 189 (Mo.App.1994). Although not unlimited, a municipality's police power is very broad. Id. The test of whether an ordinance is fairly referable to a legitimate exercise of police power is whether the expressed requirements of the ordinance have a substantial and rational relationship to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality. Schnuck Markets, Inc. v. City of Bridgeton, 895 S.W.2d 163, 166 (Mo.App.1995). An ordinance enacted pursuant to the valid police power of a municipality is presumed valid, and the party challenging the ordinance bears the burden of proving its invalidity. Id. The burden is on the party contesting the ordinance to negate every conceivable basis which might support it. Dean Taylor Cadillac-Olds v. Thompson, 871 S.W.2d 5, 7 (Mo.App.1993). If reasonable minds might differ as to whether a particular ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance. See, Schell v. Kansas City, 360 Mo. 27, 226 S.W.2d 718, 719 (1950).

Here, the City was concerned about inoperable automobiles being a hazard to children and being an eyesore to the community. General welfare accommodates the concept that an environment free from unsightliness and other visual intrusion enhances life and is a value that the police power will protect. City of Independence v. Richards, 666 S.W.2d 1, 7 (Mo.App.1983); See also, BBC Fireworks, Inc. v. State Highway and Transp. Com., 828 S.W.2d 879, 882 (Mo.1992). City also argues that inoperable vehicles...