City of Wichita v. Basgall
| Decision Date | 28 April 1995 |
| Docket Number | No. 72105,72105 |
| Citation | 257 Kan. 631,894 P.2d 876 |
| Parties | , 4 A.D. Cases 533, 10 A.D.D. 887 CITY OF WICHITA, Appellant, v. Keith BASGALL and Mark Green, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of a trial court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.
2. A city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature or Congress has clearly preempted the field so as to preclude municipal action.
3. Where a municipal ordinance merely enlarges upon the provisions of a statute by requiring more than is required by the statute, there is no conflict between the two unless the legislature has limited the requirements for all cases to its own prescription.
4. The standard for determining whether a criminal statute is vague is whether the language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.
5. City ordinance defining access area adjacent to a handicapped parking space is held not to be impermissibly vague.
Sharon L. Dickgrafe, Assistant City Atty., argued the cause, and Gary E. Rebenstorf, City Atty., was with her, on the brief, for appellant.
No appearances by appellees.
Keith Basgall and Mark Green were each charged with the violation of a city ordinance relating to handicapped parking. The Wichita municipal court found the defendants not guilty based upon: (1) the fact that the access area in which defendants parked was not marked in conformity with state and federal requirements and (2) the portion of the ordinance defining access area was unconstitutionally vague. The City of Wichita appealed therefrom pursuant to K.S.A. 12-4601(b). The district court upheld the municipal court's determination as to both questions reserved. The matter is before us on the City's appeal of the two questions reserved pursuant to K.S.A.1994 Supp. 22-3602(b)(3).
The facts are not in dispute and may be summarized as follows. On December 9, 1993, each of the defendants parked a motorcycle in the parking lot of a Wichita department store. Each vehicle was parked in a triangular area painted in a yellow striped pattern. The area so marked was adjacent to a duly marked handicapped parking space. The defendants were each issued a traffic citation alleging violation of § 11.52.020(25)(b) of the Code of the City of Wichita: Parking in Handicap Zone. This ordinance provides that it is unlawful:
Other facts will be stated as necessary for the discussion of particular issues.
The questions reserved are as follows:
I. Can a municipality, by its home rule or police powers, adopt handicapped parking legislation which is broader than state or federal law?
A. Is the City's ordinance in conflict with state or federal law?
B. Have state and federal laws dealing with handicapped parking preempted this field of legislation?
II. Is the definition of access area contained in § 11.52.020(25)(b) of the Code of the City of Wichita unconstitutionally vague?
An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. We do not entertain a question reserved merely to demonstrate errors of a district court in rulings adverse to the State. Questions reserved presuppose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases. State v. Craig, 254 Kan. 575, Syl. p 1, 867 P.2d 1013 (1994); State v. Ruff, 252 Kan. 625, Syl. p 4, 847 P.2d 1258 (1993); State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 (1980).
Whether or not this case has sufficient statewide importance to warrant entertaining the appeal is a close question. Ordinarily, the validity of a local ordinance has no such status. However, since other municipalities may now have or may adopt handicapped parking ordinances which may give rise to similar issues, we will entertain the appeal.
A city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature or Congress has clearly preempted the field so as to preclude municipal action. See Moore v. City of Lawrence, 232 Kan. 353, Syl. p 4, 654 P.2d 445 (1982).
The City concedes that the state and federal laws concerning handicapped parking, K.S.A.1992 Supp. 8-1,128 and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (Supp. V 1993), respectively, are uniformly applicable to all cities. See K.S.A. 8-2001. Much has been written about conflicts among city ordinances, state statutes, and federal law, as well as preemption and home rule. This case falls so far short of raising a viable issue in any of these weighty areas that no purpose would be served by any lengthy discussion.
We note the following, however. K.S.A.1992 Supp. 8-1,128 provided in pertinent part:
"(b) As of January 26, 1992, any owner of private property available for public use establishing a new parking space or relocating an existing parking space for persons with a disability, shall conform to the following federal regulation: Section 4.6 of appendix A to part 36; nondiscrimination on the basis of disability by public accommodations and commercial facilities, 28 CFR part 36, as required by the Americans with disabilities act of 1990, 42 USCA 12101 et seq." (Emphasis supplied.)
The parking spaces or access areas herein were not new parking spaces or relocated parking spaces and hence were not subject to the statute.
Likewise, the federal law referred to by the Kansas statute does not apply to the parking space access area herein. 28 C.F.R. § 36.401 (1994), which is in subpart D of Part 36 entitled New Construction and Alterations, provides:
Aside from new construction, Part 36 contains guidance for alterations to places of public accommodation. An alteration is a change to a place of public accommodation or a commercial facility, such as remodeling, renovation, reconstruction, etc., that is undertaken after January 26, 1993. 28 C.F.R. § 36.402(b) (1994).
Public accommodations are merely "urged" to remove barriers which would inhibit or prevent access or use by disabled persons, with first priority toward access:
28 C.F.R. § 36.304(c)(1) (1994).
Thus, the Wichita ordinance was not in conflict with any federal or state law as to the particular access area in question. The ordinance also, however, covers newly constructed or relocated parking areas. If the access area had been such new construction, its dimensions would not conform to those required by federal law. Therein, access aisles must be at least 60 inches wide and 96 inches wide to be van accessible. 28 C.F.R. Pt. 36, App. A, § 4.1.2 (1994). It is appropriate to consider the purpose of the federal and state legislation, which is to assist disabled persons and require public accommodations to comply with certain requirements. If a public accommodation is not in compliance, then the owner thereof may well have some legal problems. Failure of the owner to be in compliance is no shield for individuals such as defendants. In fact, it would be contrary to the intent and...
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