Bldg. Owners v. City of St. Louis

• Decision Date: 26 April 2011
• Docket Number: No. ED 94799.,ED 94799.
• Citation: 341 S.W.3d 143
• Parties: BUILDING OWNERS AND MANAGERS ASSOCIATION OF METROPOLITAN ST. LOUIS, INC., Respondent,v.CITY OF ST. LOUIS, MISSOURI, Appellant.
• Court: Missouri Court of Appeals

341 S.W.3d 143

BUILDING OWNERS AND MANAGERS ASSOCIATION OF METROPOLITAN ST. LOUIS, INC., Respondent,

v.CITY OF ST. LOUIS, MISSOURI, Appellant.

No. ED 94799.

Missouri Court of Appeals, Eastern District, Division Five.

April 26, 2011.

Carl W. Yates, III, St. Louis, MO, for appellant.

John W. Moticka, Clayton, MO, for respondent.PATRICIA L. COHEN, Judge.

Introduction

The City of St. Louis (City) appeals the trial court's grant of summary judgment to Plaintiff Building Owners and Managers Association of Metropolitan St. Louis, Inc. (BOMA). The City contends the trial court erred by: (1) finding that BOMA had standing to bring suit; and (2) invalidating Ordinance # 67423. We affirm.

Factual and Procedural Background

On February 20, 2007, the City enacted Ordinance # 67423, entitled the Displaced Building Service Workers Protection Ordinance (Ordinance). The purpose of the Ordinance, as set forth in its preamble, is “to protect buildings service workers whose building, service contracts or subcontracts are sold for a minimum of 90 days....” Among other things, the Ordinance requires certain successor employers ¹ of building service workers to “retain for a 90–day transition employment period at the affected site or sites those building service employees of the terminated building service contractor and its subcontractors, or other covered employer, employed at the site or sites....” During this 90–day period, the successor employer may not discharge without cause an employee retained pursuant to the Ordinance and, if the successor employer determines that fewer building service employees are required, it must “retain the predecessor building service employees by seniority within job classification” and give preferential hiring treatment to any employees not retained. The Ordinance also requires the successor employer to obtain from its predecessor a list of the names, addresses, dates of hire, and employment occupation classification of its building service employees.

The Ordinance defines “building service” as “work performed in connection with the care or maintenance of an existing building and includes, but is not limited to, work performed by a watchman, security officer, door staff, building cleaner, maintenance technician, handyman, janitor, elevator operator, window cleaner, building engineer and groundskeeper.” A “building service employee” is “any person employed as a building service employee by a covered employer who has been regularly assigned to a building on a full or part-time basis for at least 90 days immediately preceding any transition in employment....” However, the Ordinance's definition of “building service employee” excludes: (1) managerial, supervisory, or confidential employees, but not building engineers; (2) employees earning over $25 per hour; and (3) employees regularly scheduled to work fewer than 6 hours per week at a building.

The Ordinance also limits the buildings to which its provisions apply. “Covered employers” are:

any person who owns or manages real property, either on its own behalf or for another person, or any person who contracts or subcontracts with an owner or manager of real property within the City of St. Louis for real estate, including, but not limited to, housing cooperatives, condominium associations, building managing agents, and any building service contractor....

The Ordinance excludes from the definition of “covered employers” the following: (1) residential buildings under 50 units; (2) commercial office, institutional, or retail buildings of less than 70,000 square feet; (3) buildings in which the City or any government entity occupies 50% or more of the rentable square footage; and (4) any building owned or operated by a hospital or hospital affiliate. The penalty for violating the Ordinance is a fine of not more than $500 and/or a term of imprisonment of not more than 90 days.

BOMA is a non-profit corporation that represents and promotes the interests of its members who are engaged in the commercial real estate industry. BOMA's members include owners and managers of residential and commercial buildings in the City, as well as providers of janitorial, security, and other building services to residential and commercial office buildings in the City.

On December 5, 2008, BOMA filed suit against the City seeking a declaratory judgment and injunctive relief.² BOMA's five-count petition alleged that the Ordinance: (1) is an unconstitutional exercise of the City's home rule authority; (2) is an invalid special law; (3) violates the privacy rights of BOMA's members' employees; (4) exceeds the City's police power; and (5) is invalid because compliance with the Ordinance's provisions is impossible. The City and BOMA filed cross-motions for summary judgment. On March 22, 2010, the Circuit Court of the City of St. Louis entered summary judgment in favor of BOMA on Counts 1, 2, and 4.³ The trial court also declared the Ordinance void and enjoined the City from enforcing the Ordinance. The City appeals.

Standard of Review

We review an entry of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid.-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id.; Mo. Sup. Court Rule 74.04. Here, there is no dispute as to material facts, so we evaluate whether a party is entitled to summary judgment as a matter of law. See, e.g., Jefferson County Fire Prot. Dists. Ass'n v. Blunt, 205 S.W.3d 866, 868 (Mo. banc 2006).

Discussion

I. Standing

In its first point on appeal, the City claims the trial court erred in finding that BOMA has standing to bring suit on behalf of its members. ⁴ An entity has associational standing if: 1) its members would otherwise have standing to bring suit in their own right; 2) the interests it seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 342–43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Mo. Bankers Ass'n v. Dir. of Mo. Div. of Credit Unions, 126 S.W.3d 360, 363 (Mo. banc 2003). The City contends that BOMA fails to satisfy the first two parts of the Hunt three-part test for associational standing.

a. Standing of BOMA's individual members to bring lawsuit

Whether BOMA's individual members would have standing to bring this suit in their own right depends upon whether they are able to satisfy the requirements for bringing a declaratory judgment action. Mo. Alliance for Retired Ams. v. Dept. of Labor and Ind. Relations, 277 S.W.3d 670, 676 (Mo. banc 2009). A declaratory judgment action requires a justiciable controversy. Id. A justiciable controversy exists where: 1) the plaintiff has a legally protectable interest at stake; 2) a substantial controversy exists between the parties with genuinely adverse interests; and 3) the controversy is ripe for judicial determination. Mo. Health Care Ass'n v. Attorney General, 953 S.W.2d 617, 620 (Mo. banc 1997).

We consider, in turn, the three requirements for a justiciable controversy and find that each is satisfied in the present case. This case satisfies the first requirement for a justiciable controversy because BOMA's members that own property in the City have a legally protectable interest in doing business free from the constraints of an unlawful ordinance. See Home Builders Ass'n of Greater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App. E.D.2000).

The City argues, however, that BOMA lacks associational standing because not all of BOMA's members have standing to sue in their own right. BOMA's members own and service buildings throughout the greater St. Louis metropolitan area, which includes the City. There is no dispute that BOMA members that own and service buildings in the City are directly affected by the Ordinance's requirements. The City cites and we find no support for its argument that associational standing to sue on behalf of the association's members requires that all members of the association have standing to sue in their own right. Indeed, Missouri courts have found that organizations have associational standing where some, but not all, of their members would have standing to sue in their own right. See, e.g., Mo. Bankers Ass'n, 126 S.W.3d at 361, 363 (holding that an association consisting of 385 commercial banks and savings banks located throughout the state of Missouri had associational standing where 88 members were affected by regulation of credit unions in a specific area code); Home Builders Ass'n, 32 S.W.3d at 614–15 (holding that an association of home builders in the metropolitan St. Louis area had standing to challenge the City of Wildwood's municipal ordinance).

This case fulfills the second requirement for justiciable controversy because a substantial controversy exists between parties with genuinely adverse interests. Namely, the parties disagree about the constitutionality of the Ordinance. See, e.g., id.; Retired Ams., 277 S.W.3d at 677. Finally, the third requirement for a justiciable controversy is satisfied because this case is ripe for judicial determination. A ripe controversy is one of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Mo. Health Care, 953 S.W.2d at 621. “A ripe controversy exists if the parties' dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character.” Id.

The City contends the controversy is not ripe because the City has not enforced the ordinance and BOMA has suffered no harm. However, a ripe controversy may exist before a statute is enforced. Planned Parenthood...