City of Kansas City v. McGary, No. WD 66338 (Mo. App. 12/19/2006)
| Decision Date | 19 December 2006 |
| Docket Number | No. WD 66338,WD 66338 |
| Parties | City of Kansas City, Missouri, Respondent, v. Frederick McGary, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Hon. Margaret Louise Sauer, Judge.
Stephen G. Mirakian, for Appellant.
Llowell Gard, for Respondent.
Before Lowenstein, P.J., Breckenridge, J.
Frederick McGary appeals two judgments finding that he violated Section 48-61 of the ordinances of Kansas City, Missouri, in two separate charges by permitting a prohibited nuisance on rental property that he owns. In Case No. 16 CR05359 he was charged with causing or permitting a vehicle without current license plates to be parked in the driveway of the rental property, and in Case No. 16 CR05361 he was charged with causing or permitting a car to be parked on the grass or dirt of the property. Both acts were alleged to be nuisances as defined by Section 48-27(2) and Section 48-28 respectively of the city code of ordinances. McGary contends on appeal that both ordinances defining the nuisance are so vague, ambiguous, and overbroad that he was deprived of due process under the Missouri and United States Constitutions. In his second point he contends that the convictions are not supported by the evidence, are contrary to the weight of the evidence or result from an erroneous application of the law.1 We do not reach the constitutional issue because McGary did not preserve it by raising it in a timely manner as required by Rule 24.04(b)(2). Although the City failed to present evidence of two elements of the charges, McGary waived that defect by presenting evidence of his own. In his evidence he supplied the missing proof. We therefore find that the evidence supports the convictions and the judgments are affirmed.
Frederick McGary owns and leases real property located within Kansas City, Missouri. On May 16, 2005, a warning letter was issued which instructed him that there was an alleged nuisance code violation (trash) on his property and listing six other categories of nuisances.2 The notice also warned that if any of the stated categories of nuisances were found to exist on the property after ten days "a summons may be issued." After receiving the letter, McGary inspected the property and delivered a letter to his tenant telling her that he had received notice from the City that cars were parked on unapproved surfaces or not properly tagged.
On June 7, a city code enforcement officer issued two summonses to McGary for violations of Kansas City Ordinance No. 971346, Sections 48-27(2) and 48-28. Specifically, the tickets charged that appellant "[d]id cause or permit a truck without current state license plates to be parked, stored or otherwise located outside a private garage on [his] residentially zoned premises" and that he "[d]id cause or permit a car to be parked on the grass dirt [sic] of [his] premises." Testimony at the trial showed that a city inspector visited the property on June 7, and observed an unlicensed vehicle parked in the driveway of the house and another vehicle parked on the dirt or grass portion of the backyard. Photographs were introduced of those vehicles. After the court's finding of guilt, but before sentencing, McGary filed a motion for new trial and or judgment of acquittal raising the issue of the constitutionality of the nuisance ordinances under which he was convicted.
For his first argument on appeal, McGary asserts that Sections 48-27(2) and 48-28 are constitutionally deficient and deny due process because of their vagueness, ambiguity, or overbreadth. More specifically, he contends that they do not convey a sufficiently definite warning of the conduct necessary to comply with their standards, fail to apprise law enforcement of the proper standard for enforcement where the landlord has taken action to abate the claimed nuisance, punish innocent conduct without requiring any proof of criminal intent, and criminally punish a defendant for failing to do acts that he has no authority to do, such as moving or removing vehicles improperly parked on leased premises.
"Constitutional violations are waived if not raised at the earliest possibility opportunity." State ex rel York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998) (citing Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 907 (Mo. banc 1992)). Although in some situations that point of opportunity may vary, in criminal cases where the statute upon which prosecution itself is based is attacked constitutionally, the earliest point is defined by court rule. Supreme Court Rule 24.04(b)(2) requires that such issues be raised by motion before trial or be waived. No different rule applies in actions for violations of municipal ordinance. Rule 37.74 provides that on a de novo appeal from a municipal court conviction the rules applicable to misdemeanors apply. Rule 24.02 is applicable to both felonies and misdemeanors.
McGary did not raise his constitutional objections until after trial. Constitutional challenges first brought at the close of the state's evidence and at the close of all of the evidence have been held to be untimely. State v. Turner, 48 S.W.3d 693, 697 (Mo. App. W.D. 2001); State v. Danforth, 654 S.W.2d 912, 917-18 (Mo. App. W.D. 1983). McGary's constitutional claims are waived because they were not brought in a timely manner.3 Point one denied.
McGary's second point questions the sufficiency of the evidence to support his convictions. Violations of municipal ordinances are quasi-criminal in nature. Strode v. Dir. of Revenue, 724 S.W.2d 245, 247 (Mo. banc 1987). Nevertheless, guilt must be proven beyond a reasonable doubt and the rules of criminal procedure apply. City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo. App. E.D. 1990). Furthermore, municipal ordinance provisions imposing penalties are strictly construed against the municipality and will not be extended by implication. Id. (citing Levin v. Carpenter, 332 S.W.2d 862, 865 (Mo. 1960)). These principles also apply to violations of zoning laws where the municipality seeks to impose some penalty as opposed to civil relief. Id. These principles are particularly important where the ordinance seeks to impose vicarious liability on the landlord for a tenant's actions or inaction. Id. at 826-27. ( that a landlord can only be held liable for violations that he has actual or constructive knowledge of and has the ability to control). In order to evaluate the sufficiency of the evidence in this case we need to more fully explore and consider the nuisance ordinances in issue.
The Ordinance Declares what is a Public Nuisance
Section 48-27(2) declares as a public nuisance "[a]ny motor vehicle without a state license plate that is current, and that is parked, stored or otherwise located on [residentially zoned or used premises] other than within a private garage . . . unless the vehicle is not required to have current state license plates under state law." No issue is raised by McGary that one of the vehicles found by the inspector on the property on June 7 met that definition.
Section 48-28 declares as a public nuisance "[t]he off-street parking of vehicles other than on a parking space." No issue is raised that the second vehicle observed by the inspector on June 7 was parked in the backyard and not on a driveway or parking space.
The actual declaration of a defined nuisance as being impermissible is contained in Section 48-61.4 It provides, inter alia, "It shall be unlawful for any owner or occupant . . . to cause or permit any nuisance as defined in this chapter to be created or remain upon such premises; and it shall be the duty of such owner or occupant to abate and remove any such nuisance from such premises." (Emphases added.) There is no allegation or proof that McGary as the landlord caused the nuisance to be created on the property. Thus, the City was required, at a minimum, to prove the existence of a nuisance that the property owner permitted to remain on the property by not abating and removing the nuisance. The City does not dispute that it must also show that the owner has been notified of the alleged nuisance. Actual or constructive notice to the owner is required. City of Webster Groves, 789 S.W.2d at 826-27.
The notice requirements are addressed in Sections 48-62 and 48-63 requiring warning letters of alleged violations (48-62) for certain nuisances or a notice of a violation (48-63) for other types of nuisances. Although these provisions are substantially similar they do have significant differences. Section 48-62 does not specifically require the city to inspect the property for a nuisance. Instead, it allows a notice to be issued when it is based upon some allegation or complaint by, for example, a neighbor. Section 48-63 requires the city to "have determined" that a nuisance exists and then issue a "Notice of Violation" giving the owner fifteen days to abate the specified nuisance.
The Section 48-62 "Warning Letter" requires notice to the owner that the property will be inspected by the city at an unspecified time ("as soon as practicable"). The "Warning Letter" ordinance also provides for notice to the owner that civil remedies or quasi-criminal remedies are available to the city. Under the civil remedy (48-62(5)) procedure, a summons is issued and upon failure to remove the nuisance the city may do so itself and assess the costs as a lien against the property. The civil remedy subsection permits a summons for "the nuisance complained of in the warning letter or any other nuisance" found in the inspection. The notice requirement for the quasi-criminal remedy (subsection (6)) requires the owner to be to told "that failure, neglect or refusal to abate nuisances listed above" makes the owner prosecutable and subject to a fine of up to $1000 and/or 180...
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