Cardarella v. City of Overland Park

Citation620 P.2d 1122,228 Kan. 698
Decision Date06 December 1980
Docket NumberNo. 51747,51747
PartiesAnthony 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.
CourtKansas Supreme Court

Syllabus by the Court

1. Rules relative to determination of the constitutionality of statutes restated. (Following City of Baxter Springs v. Bryant, 226 Kan. 383, Syl. PP 1-5, 598 P.2d 1051 (1979).)

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.

McFARLAND, Justice:

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.

"ORDINANCE NO. RD-1048

"WHEREAS, the Governing Body of the City of Overland Park, Kansas, has determined and hereby finds that a problem exists within its territorial limits involving the exposure of children of elementary, junior high school and high school age to the use of drugs and controlled substances other than as authorized by law; and

"WHEREAS, the Governing Body of the City of Overland Park has determined and hereby finds that the display and availability for sale of certain instruments hereinafter enumerated and simulated drugs and simulated controlled substances hereinafter defined contribute to the usage of drugs and controlled substances by the youth of the community by creating an atmosphere of apparent condonation by the community; and

"WHEREAS, the promotion and sale of products containing substances which may be harmless and inert in themselves, but which are packaged or designed to simulate controlled substances or drugs, are harmful in that they promote and encourage entry into the drug culture and foster respectability for drug use and abuse; and

"WHEREAS, the Governing Body of the City of Overland Park deems it to be in the best interests of the health, safety and welfare of its youth to make the use and abuse of drugs and controlled substances difficult by limiting the availability of necessary instruments within the City:

"NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF OVERLAND PARK, KANSAS, that the following amendments and additions be made to the Overland Park Municipal Code, to wit:

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:

"A. 'Controlled substance' means any drug or substance included in Schedules I through V of the Uniform Controlled Substances Act found in Chapter 65, Article 41 of the Kansas Statutes Annotated.

"P. 'Instrument' means a device designed for use, or intended for use in ingesting, smoking, administering or preparing marijuana, cocaine, phencycledine, opium or any derivative thereof, or any other controlled substance.

"For purposes of this subsection the phrase 'intended for use' shall refer to the intent of the person selling, offering to sell, dispensing, giving away or displaying the instrument herein defined.

"In determining whether an item constitutes an 'instrument,' a court may consider the following:

"(a) Whether a person or business establishment charged with violating this section is a licensed distributor or dealer of tobacco products under Chapter 79, Article 33 of the Kansas Statutes Annotated.

"(b) Expert testimony as to the principal use of the devices, articles, or contrivances claimed to be instruments.

"(c) Evidence concerning the total business of a person or business establishment and the type of devices, articles, contrivances or items involved in the business.

"(d) National and local advertising concerning the use of the devices, articles, or contrivances claimed to be instruments.

"(e) Evidence of advertising concerning the nature of the business establishment.

"Q. 'Minor shall mean any person who has not attained 18 years of age.

"R. 'Premises open to minors' means any business establishment which sells its wares or merchandise to minors or which permits minors to enter into its place of business.

"S. 'Simulated drugs' and 'simulated controlled substances' are any products which identify themselves by using a common name or slang term associated with a controlled substance or indicate by label or accompanying promotional material that the product simulates the effect of a controlled substance or drug.

"T. 'Place of display' means any museum, library, school or other similar public place upon which business is not transacted for a profit.

"W. 'Premises' means a business establishment and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of patrons.

"SECTION 2. Overland Park Municipal Code Section 11.56.185 is hereby added and shall read as follows:

"11.56.185 Control of instruments used for inhaling or ingestion of controlled substances or drugs and control of simulated drugs and simulated controlled substances.

"A. Sale and display prohibited. It shall be unlawful for any person, firm or corporation to sell, offer to sell, dispense, give away or display any instrument or simulated controlled substance or simulated drug in or upon any premises which: (a) are premises open to minors, unless the instruments, simulated controlled substances or simulated drugs are kept in such part of the premises that is not open to view by minors or to which minors do not have access; or (b) are in close proximity to a school. Provided, however, that display of any such items at a place of display for educational or scientific purposes shall not be unlawful."

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):

"The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution."

"In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done."

"Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt."

"The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere."

"Once a subject is found to be within the scope of the state's police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose."

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:

"The police power is wide in scope and gives the governmental body broad powers to enact laws to promote the health, morals, security, and welfare of the people. Broad discretion is vested in the governing body to determine for itself what is deleterious to the health or morals, or which is inimical to public welfare. However, the governing body does not possess plenary power to pass legislation that is arbitrary, oppressive, and capricious, and...

To continue reading

Request your trial
23 cases
  • Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 18 Septiembre 1981
    ...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 ......
  • Miami County Bd. of Commissioners v. Kanza Rail–trails Conservancy Inc.
    • United States
    • United States State Supreme Court of Kansas
    • 10 Junio 2011
    ...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......
  • City of Wichita v. Lucero, 69839
    • United States
    • United States State Supreme Court of Kansas
    • 27 Mayo 1994
    ......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 ......
  • Moody v. Board of County Com'rs, 56774
    • United States
    • United States State Supreme Court of Kansas
    • 5 Abril 1985
    ...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......
  • Request a trial to view additional results
3 books & journal articles
  • Home Rule: a Primer
    • United States
    • Kansas Bar Association KBA Bar Journal No. 74-1, January 2005
    • Invalid date
    ...home rule tax). 51. K.S.A 12-188. 52. Heim, Kansas Local Government Law, §3.27(3d ed. 2005)(discussion of the repealed statutes). 53. 228 Kan. 698, 620 P.2d 1122 (1980). See Restaurants of Wichita Inc. v. City of Wichita, 215 Kan. 636, 527 P.2d 969 (1974). 54. K.S.A. 19-101c. 55. K.S.A. 19-......
  • Home Rule Power for Cities and Counties in Kansas
    • United States
    • Kansas Bar Association KBA Bar Journal No. 66-01, January 1997
    • Invalid date
    ...3.19 (1991) which discusses statutes concerning cities that were repealed following the adoption of the City Home Rule Amendment. [FN24]. 228 Kan. 698, 702, 620 P.2d 1122 (1980) (emphasis added). [FN25]. See also Whitmer v. House, 198 Kan. 629, 632, 426 P.2d 100 (1967), in which the court s......
  • Cigarette and Tobacco Sale and Use Case: City Home Rule Prevails
    • United States
    • Kansas Bar Association KBA Bar Journal No. 89-6, August 2020
    • Invalid date
    ...discussion of cities and police power. [23] 7 Kan. App. 2d 65, 67, 638 P.2d 347 (1981). [24] 232 Kan. 634, 657, 657 P2d 1121 (1983). [25] 228 Kan. 698, 620 P2d 1122 (1980). [26] 246 Kan. 253, 788 P2d 270 (1990). [27] 24 Kan. App. 2d 703, 953 P.2d 231 (1998). [28] 244 Kan. 638, 772 P2d 758 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT