Cardarella v. City of Overland Park
Citation | 620 P.2d 1122,228 Kan. 698 |
Decision Date | 06 December 1980 |
Docket Number | No. 51747,51747 |
Parties | Anthony J. CARDARELLA, d/b/a Tiger's Records, Appellant, v. CITY OF OVERLAND PARK, Kansas, a Municipal Corporation, and Ben M. Sykes, Mayor of the City of Overland Park, and Richard K. Landtiser, Janet Leick, Edwin C. Eilert, W. Jack Sanders, Douglas L. Smith, F. R. Edgington, Denis Stewart, Byron C. Loudon, Wayne C. Byrd, Jerry Overstreet, Comprising the City Council of the City of Overland Park, Kansas, and Myron E. Scafe, Chief of Police of the City of Overland Park, Kansas, Appellees. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. Rules relative to determination of the constitutionality of statutes restated.
2. In a declaratory judgment action challenging the constitutionality of an ordinance which restricts the sale or display of items identified with drug usage on business premises to which minors have access, the record is examined and it is held : The trial court did not err in determining the ordinance was not (1) overbroad, (2) vague, or (3) an infringement on the right of commercial speech.
Mark R. Singer, of Romain & Singer, Chartered, Overland Park, argued the cause and was on brief, for appellant.
Neil R. Shortlidge, Asst. City Atty., Overland Park, argued the cause and was on brief, for appellees.
This is a declaratory judgment action wherein the plaintiff challenges the constitutionality of an ordinance of the City of Overland Park, which places certain restrictions on merchants selling or displaying items identified with drug usage. More particularly, the ordinance prohibits sale or display of such items on premises open to minors. The trial court upheld the ordinance and plaintiff appeals therefrom.
Plaintiff is the operator of a business establishment which is directly affected by the ordinance. Plaintiff attacks the ordinance on the grounds that it is (1) overbroad, (2) vague, and (3) an infringement on the right of commercial speech.
In the interest of brevity, only those portions of the ordinance necessary for the determination of the issues are reproduced herein.
SECTION 1. Overland Park Municipal Code Section 11.56.130 is hereby amended to read as follows:
"11.56.130. Definitions.
As used in this article:
The general rules relative to determination of the constitutionality of statutes were set forth as follows in City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. PP 1-5, 598 P.2d 1051 (1979):
We turn now to the specific issues raised on appeal. We will first consider whether the ordinance is overbroad.
The parties agree a legitimate goal of the defendant City is to discourage drug usage among its youth. Plaintiff argues that the means chosen by the City of Overland Park to address the drug abuse problem is unduly oppressive by penalizing legitimate business activity without demonstrating that the limitations on the sale and display of the "paraphernalia" items will have the intended effect of discouraging drug use.
In Delight Wholesale Co. v. City of Prairie Village, 208 Kan. 246, Syl. P 2, 491 P.2d 910 (1971), this court held:
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Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
...which prohibited the sale or display of items identified with the drug culture on premises open to minors. Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980). Since the Model Act was drafted it has been adopted in various forms by several political units and challenges ......
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...in more than 1,000 [292 Kan. 327] court decisions, including 5 in the Kansas appellate courts. E.g., Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980); Billingsley v. Comm'rs of Marshall Co., 5 Kan.App. 435, 435–36, 49 P. 329 (1897). Moreover, the rule was already a fa......
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City of Wichita v. Lucero, 69839
......at 418 [, 662 P.2d 1286] (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]." 246 Kan. at 258-59 [, 788 P.2d ......
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Moody v. Board of County Com'rs, 56774
...of a statute or ordinance must be construed in light of their context and the purpose of the enactment.' " Cardarella v. City of Overland Park, 228 Kan. 698, 705, 620 P.2d 1122 (1980). Viewed in this context, the descriptions of the activities the ordinance purports to regulate are not vagu......
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