City of Kansas City v. Carlson

• Decision Date: 23 June 2009
• Docket Number: No. WD 70576.,WD 70576.
• Citation: City of Kansas City v. Carlson, 292 S.W.3d 368 (Mo. App. 2009)
• Parties: CITY OF KANSAS CITY, Missouri, Respondent, v. Georgia J. CARLSON, Appellant.
• Court: Missouri Court of Appeals

292 S.W.3d 368

CITY OF KANSAS CITY, Missouri, Respondent, v. Georgia J. CARLSON, Appellant.

No. WD 70576.

Missouri Court of Appeals, Western District.

June 23, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2009.

Application for Transfer Denied October 6, 2009.

Jonathan Sternberg, Kansas City, MO, Counsel for Appellant.

P. Benjamin Cox, Kansas City, MO, Counsel for Amicus Curiae

Lowell C. Gard, Kansas City, MO, Counsel for Respondent.

Before THOMAS H. NEWTON, C.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.

THOMAS H. NEWTON, Chief Judge.

Ms. Georgia Jean Carlson appeals the circuit court's judgment finding her guilty of violating Kansas City's municipal smoking ban. Ms. Carlson contends the judgment is invalid because the City's ordinance is in conflict with Missouri's Indoor Clean Air Act (ICAA), §§ 191.765-191.777.¹ We affirm.

Factual and Procedural Background

JC Sports Bar is a bar and billiard parlor in Kansas City that posts signs stating "Nonsmoking Areas are Unavailable." In June of 2008, Kansas City Ordinance No. 080073 went into effect. The ordinance prohibits smoking in enclosed public places and places of employment, with some exceptions for hotels and casinos. KANSAS CITY, MO., CODE §§ 34-471-34-481 (2008). It also provides that "A person having control of a public place or place of employment and who fails to comply with the provisions of this Article shall be guilty of an ordinance violation[.]" Id. at § 34-476(b). In July of 2008, the Kansas City Health Department cited Ms. Carlson for allowing patrons to smoke in JC's.

In municipal court, Ms. Carlson moved to dismiss the charge, contending that the ordinance conflicted with the ICAA and was thus preempted. The municipal court found Ms. Carlson guilty and sentenced her to a fine of $100. Ms. Carlson appealed to the circuit court, which held a trial de novo on stipulated facts. Ms. Carlson again moved to dismiss the charge, contending that the ordinance conflicted with the ICAA. After hearing argument, the circuit court rejected Ms. Carlson's contention. It noted that the state legislature "could have but did not expressly provide that there could be no further regulation of smoking by any other authority" and was "not convinced that a definitional exclusion of certain businesses" was equivalent to preemption. It ordered Ms. Carlson to pay the $100 fine and court costs. Ms. Carlson appeals.²

Standard of Review

In a court-tried case we sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Carter v. City of Pagedale, 982 S.W.2d 744, 745 (Mo.App. E.D.1998). Because this case was tried on stipulated facts, the only question for our review is whether the trial court made the proper legal conclusions. Id. Whether a city exceeds its statutory authority in passing an ordinance is an issue we review de novo. Clifford Hindman Real Estate, Inc. v. City of Jennings, 283 S.W.3d 804, 806-07 (Mo.App. E.D. 2009).

Legal Analysis

In her sole point on appeal, Ms. Carlson argues that the City's ordinance irreconcilably conflicts with state law. She contends that because the ICAA excludes bars such as JC's from its definition of public places, it affirmatively permits smoking in JC's while Kansas City's ordinance prohibits it. The City, however, maintains that the ICAA does not "permit" smoking in bars and billiard parlors. Rather, it leaves those places unregulated, which creates no conflict with municipal regulation that enlarges on the state scheme.

Kansas City is organized under article VI, section 19 of the Missouri Constitution as a constitutional charter city. State ex rel. Chastain v. City of Kansas City, 289 S.W.3d 759, 761 (Mo.App. W.D. 2009). Under section 19(a), the City has:

all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute. Such a city shall, in addition to its home rule powers, have all powers conferred by law.

Section 19(a) thus gives Kansas City "all the power which the legislature could grant," unless otherwise limited by the constitution, statutory law, or its charter. Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 210 (Mo. banc 1986).

This section of the Missouri Constitution was adopted in 1971. Prior to the amendment's adoption, Missouri courts sought specific authority for exercises of municipal power. Id. The intent behind amending section 19(a) was to "insure the supremacy of the legislature while at the same time putting only minimal and necessary limitations on the power of municipalities." Thomas N. Sterchi, State-Local Conflicts Under the New Missouri Home Rule Amendment, 37 Mo. L.REV. 677, 689 (1972). Thus, "[u]nder Missouri's new model of home rule .. . the municipality possesses all powers which are not limited or denied by the constitution, by statute, or by the charter itself." Yellow Freight Sys., Inc. v. Mayor's Comm'n on Human Rights, 791 S.W.2d 382, 385 (Mo. banc 1990) (emphasis removed) (quoting State ex inf. Hannah v. City of St. Charles, 676 S.W.2d 508, 512 (Mo. banc 1984)). Consequently, because the City's power is derived from amended section 19(a), the instant case requires us to ask not whether the City had authority for its ordinance, but whether its authority to enact the ban was denied by other law. See Cape Motor Lodge, 706 S.W.2d at 210.

Ms. Carlson bases her argument in RSMo section 71.010. The statute limits the City's authority by providing that:

[a]ny municipal corporation ... having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state ... shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.

Thus, Kansas City may only enact ordinances "in conformity" with state law on the same subject. If the city ordinance conflicts with a general law of the state, it is void. McCollum v. Dir. of Revenue, 906 S.W.2d 368, 369 (Mo. banc 1995).

An ordinance and state statute conflict if "their express or implied provisions are so inconsistent and irreconcilable that the statute annuls the ordinance." Crackerneck Country Club, Inc. v. City of Independence, 522 S.W.2d 50, 51 (Mo.App. 1974). If the ordinance prohibits what the statute permits, or permits what the statute prohibits, then the two are in conflict. Id. For example, where an ordinance prohibited self-service gas pumps and self-service pumping, but a state regulation expressly stated that self-service gas pumps were permitted, the ordinance was in direct conflict with the state regulation and thus invalid. Page W., Inc. v. Cmty. Fire Prot. Dist. of St. Louis, 636 S.W.2d 65, 67-68 (Mo. banc 1982). However, if the ordinance merely prohibits more than the state statute, the two measures are not in conflict. Kansas City v. LaRose, 524 S.W.2d 112, 117 (Mo. banc 1975). In LaRose, a state crime required a mens rea element, while a municipal ordinance did not—thus criminalizing more conduct than the state statute. Id. However, there was no conflict between the two because the ordinance had simply "gone further" and expanded the prohibition. Id.

Consequently, in the present case, if the ICAA were read to affirmatively permit smoking in bars and billiard parlors meeting its condition, then the municipal ordinance's prohibition would be in conflict with the state law. However, if the ordinance merely enlarges the state law, the two laws are not in conflict.

The laws at issue

The ICAA was enacted "to provide persons with access to smoke-free air in certain areas in certain public places." L.1992, S.B. Nos. 509, 442 & 679. It outlaws smoking in "public places" except in designated areas. §§ 191.765-191.777. The definition of "public place" includes "any enclosed indoor area used by the general public or serving as a place of work." § 191.765(5). Several types of areas "are not considered a public place." § 191.769. Among the section's exclusions from the definition of "public places" are:

Bars, taverns, restaurants that seat less than fifty people, bowling alleys and billiard parlors, which conspicuously post signs stating that `Nonsmoking Areas are Unavailable'[.]

§ 191.769(5).³ Thus, the ICAA does not require bars and billiard parlors such as JC's to provide non-smoking areas.

The City's municipal ban prohibits smoking in "all enclosed places of employment within the City" and in "all enclosed public places within the City." KANSAS CITY, MO., CODE § 34-473. Under the ordinance, a public place is "any enclosed area to which the public is invited or in which the public is permitted." Id. at § 34-472. Private residences and a percentage of hotel rooms are excluded from the ordinance; casino gaming areas are exempted until surrounding counties pass similar bans. Id. at §§ 34-472, 34-475, 34-480. The ordinance, however, does not exempt bars and billiard parlors such as JC's from its restrictions.

Ms. Carlson argues that the ICAA's exclusion of bars and billiard parlors from its prohibition against smoking must be read as "positive law permitting that conduct, such that a city has no authority to prohibit it entirely." Thus, although the ICAA does not give express affirmative authority to JC's to permit smoking, she contends such a meaning should be implied because the ICAA exempts JC's from its definition of "public place." Consequently, she argues, the ICAA permits smoking in JC's while the ordinance prohibits it, causing the statute and the ordinance to be in conflict.

We presume ordinances are valid and lawful. McCollum, 906 S.W.2d at 369. We follow the principle of "ut res magis valeat quam pereat (that the thing may rather have...