Chesnut v. St. Louis County, Mo.
| Decision Date | 13 August 1981 |
| Docket Number | No. 80-1668,80-1668 |
| Citation | 656 F.2d 343 |
| Parties | Jerry P. CHESNUT, Appellant, v. ST. LOUIS COUNTY, MISSOURI, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mark W. Bennett, argued, Allen, Babich & Bennett, Des Moines, Iowa, and Irl B. Baris, St. Louis, Mo., for plaintiff-appellee, Jerry P. Chesnut.
Thomas W. Wehrle, County Counselor, and Dennis C. Affolter, Asst. County Counselor, argued, Clayton, Mo., for defendant-appellee, St. Louis County.
Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.
Plaintiff-appellant, Jerry P. Chesnut, is an individual member of the Holy Spirit Association for the Unification of World Christianity (Unification Church). Chesnut brought suit challenging the validity of various provisions of the St. Louis County Peddler and Solicitor Code (Code). Chesnut filed motions for preliminary injunction, leave to amend the complaint to add the Unification Church as a party plaintiff, and summary judgment. Defendant-appellee, St. Louis County, also filed a motion for summary judgment, and another individual member of the Unification Church filed a motion to intervene. The district court 1 held that Chesnut lacked standing and granted St. Louis County's motion for summary judgment. The court also denied all other motions before it and dismissed the case. Chesnut appeals from the district court's actions. We affirm in part, reverse in part, and remand with instructions.
On October 15, 1979, Chesnut filed a lawsuit pursuant to 42 U.S.C. § 1983, as a class action, to enjoin the enforcement of, and declare unconstitutional, several provisions of the Peddler and Solicitor Code of St. Louis County, Missouri. The challenged provisions created requirements for the issuance of charitable solicitation permits. Filed with Chesnut's complaint was a motion for preliminary injunction.
A hearing was held before the district court concerning the preliminary injunction on October 26, 1979. At that time Chesnut requested and was granted leave to amend the complaint to add the Unification Church as a party plaintiff. Defendant did not resist the motion. Chesnut was to file the amendment by October 31, 1979. On November 5, 1979, a letter from Chesnut's counsel was filed advising the court the Church would not be added as a party and plaintiff would proceed with the suit as a class action.
On December 28, 1979, Chesnut filed a voluntary dismissal of the class action allegation. On January 8, 1980, the defendant filed its motion for summary judgment, and on January 17 Chesnut filed his cross-motion for summary judgment, as well as a motion to amend the complaint to add the Church as a party. On March 20, 1979, Kevin J. Krapfl, a member of the Unification Church, filed a motion to intervene in Chesnut's lawsuit. The district court order granting defendant's motion for summary judgment and dismissing all of Chesnut's motions, as well as Krapfl's motion to intervene, was issued on June 27, 1980. Chesnut appeals, arguing the district court erred in concluding he lacked standing to attack the constitutionality of the challenged provisions.
Chesnut had been engaged in public proselytizing and solicitation of funds on behalf of the Unification Church in the St. Louis area since March 1977. Chesnut had held a St. Louis County peddler's license that had expired in September 1979. After filing this lawsuit, and four or five days prior to the October 26, 1979, hearing on the preliminary injunction, Chesnut testified that he was distributing literature and soliciting funds in St. Louis County when he was stopped by two police officers and threatened with arrest for not having a charitable solicitation permit. He testified that he had been so threatened on past occasions and was aware of arrests of other members of the Church in St. Louis County for soliciting without a permit. After this occurrence, Chesnut on October 22, 1979, obtained a county peddler's license.
From the testimony of Chesnut at the preliminary hearing and the affidavits accompanying his complaint, it appears that his normal procedure was to hand out literature and/or candy and discuss Church doctrine or activities while soliciting funds on behalf of the Church. Chesnut testified that he did not always give out literature or candy when soliciting, although this was the usual practice.
In Krapfl's memorandum in support of his motion to intervene, he alleges he was arrested for violating the ordinance on March 17, 1980, while peacefully proselytizing and soliciting funds for the Unification Church. The relief sought was substantially similar to that of Chesnut.
The Unification Church is a California non-profit corporation, holding Federal tax-exempt status. It was founded in Seoul, Korea, in 1954 and has established itself throughout the United States and the world. Included in the work of the Unification Church is door-to-door and public place proselytizing and soliciting of funds to support the Church's activities.
Like the district court, it is our view that an examination of the St. Louis County Peddler and Solicitor Code is necessary to an understanding of this case. The Code, appearing at Title VIII SLCRP 1964, §§ 804.010-804.260, governs the issuance of peddlers' and solicitors' licenses and charitable solicitation permits in St. Louis County.
We cannot improve upon the district court's summary of the Code set out in its opinion, Chesnut v. St. Louis County, 495 F.Supp. 115, 116 (E.D.Mo.1980):
The Code, as amended in 1972 by ordinances number 6201 and 6510, contains twenty-six sections which govern the issuance of peddlers' and solicitors' licenses for St. Louis County. The Code's definition of "peddler" is as follows: "Any individual who shall deal in the selling of goods, wares or merchandise from a stock of merchandise with him, by going about from place to place to sell the same." Section 804.030(2). The Code's definition of "solicitor" is in part as follows:
Any individual: (a) traveling by foot ... or any type of conveyance from house to house, or place to place; or, (b) positioned on or near street corners, public ways or places of public assembly ... for the purpose of: (i) soliciting property or financial assistance of any kind; or (ii) selling or offering for sale any article, tag, service, emblem, publication or ticket; or (iii) taking or attempting to take orders the sale (sic) of goods ... or other merchandise for future delivery .... The term "solicitor" shall include a "canvasser" and "salesman" and shall exclude a peddler as that term is herein defined.
The Code's definitional section also defines the term "Charitable Solicitation Campaign," as follows:
Any course of conduct involving a solicitor as herein defined whose activities in soliciting property or financial assistance of any kind or in selling or offering to sell any article, tag, service, emblem, publication, ticket, subscription or anything of value are made on the representation that such sale or solicitation or the proceeds therefrom are for a charitable, educational, patriotic or philanthropic purpose. The term "charitable solicitation campaign" specifically includes activities that are commonly known as "tag days" and "charitable toll roads."
Section 804.040 makes it unlawful for a peddler to peddle, and § 804.050 makes it unlawful for a solicitor to solicit, in St. Louis County without having obtained a peddler's or solicitor's license, respectively, from the Division of Licenses of the County Department of Revenue (the "Division"). The information required of an applicant for either type of license is set forth in § 804.110; the information required is the same for both types of license. (Defendant's exhibit "B", introduced at the hearing on the preliminary injunction, exemplifies this fact, as it is labelled "Application for Peddler or Solicitor License.") Each application is to be investigated and recommended for approval or disapproval by the Superintendent of the County Police Department. Section 804.120. The tax imposed on peddlers and solicitors is set forth in § 804.140. Subsection (1) of that section provides, for example, that from a peddler who travels on foot and carries his goods, the County and State of Missouri will each exact a tax of $3.00 for every six month period; subsection (2) provides that the tax upon all solicitors will be $5.00 for a six month period.
Section 804.170, however, establishes a means to avoid the above provisions:
Charitable Solicitation Permit. The provisions of Sections 804.040 through 804.160 shall not be applicable to any organization conducting a charitable solicitation campaign in St. Louis County, provided the organization shall have obtained a charitable solicitation permit from the Division.
A Charitable Solicitation Committee having "the power to recommend the issuance and revocation of permits" is established by section 804.180. An application for such a permit must satisfy the several detailed requirements of section 804.190. Under section 804.200, a permit shall be issued by the Division after approval of the application by the Commission. A fee of five dollars is charged for a permit which may be valid for up to three months. Three additional three month extensions are available for three dollars per each extension.
All individuals soliciting pursuant to a charitable solicitation permit are required to carry an identification card while soliciting, such cards being furnished for a fee of five cents each. Section 804.210. The fact that a cardholder has a permit may be advertised in a prescribed manner, but the holder may not advertise the permit as an endorsement. The Commission may revoke the permit for certain reasons pursuant to section 804.230.
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