Kansas City v. Reed

• Decision Date: 31 January 1977
• Docket Number: No. KCD,KCD
• Citation: 546 S.W.2d 727
• Parties: KANSAS CITY, Missouri, a Missouri Municipality, W. Yates, Webb, Director, Liquor and Amusement Control, Plaintiffs-Respondents, v. James M. REED, Jr., et al., Defendants-Appellants. 27550.
• Court: Missouri Court of Appeals

Page 727

546 S.W.2d 727

KANSAS CITY, Missouri, a Missouri Municipality, W. Yates Webb, Director, Liquor and Amusement Control Plaintiffs-Respondents, v. James M. REED, Jr., et al., Defendants-Appellants.

No. KCD 27550.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

James A. Polsinelli, Shapiro, Polsinelli, Waldo, Schulte & Wehrman, Kansas City, for defendant-appellants.

Aaron A. Wilson, City Atty., Rex G. Bostwick, Asst. City Atty., Kansas City, for plaintiffs-respondents.

Before DIXON, P.J., and NORMILE, CONLEY and BELT, Special Judges.

BRUCE NORMILE, Special Judge.

Forty-two years ago, on August 17th, 1934, Albert Vaccaro was driving an automobile with his older brother in the front seat and his parents and a bushel basket with twenty-six half-pints of moonshine whiskey belonging to them in the back seat. Vaccaro and his brother were arrested. After a plea of guilty to a charge of feloniously transporting intoxicating liquor intended for sale, the nineteen year old Vaccaro was sentenced to four months in the Platte County jail. The charges against the brother were dismissed.

After becoming twenty-one, Mr. Vaccaro has been continually engaged in his occupation as a bartender or employee in a business selling alcoholic beverages at retail in the Kansas City area to the present time. Since approximately 1951 or 1952, the City of Kansas City has issued 'Employee's Permits' to all persons employed in the retail sale of alcoholic beverages under the provision of The Alcoholic Beverage Control Ordinance, which is now Kansas City, Mo.Code of General Ordinances, ch. 4, art. VI, § 4.38 (1967). Since that time, Mr. Vaccaro has made yearly applications for renewal of this 'Employee's Permit.' These applications did disclose the 1934 conviction and the Director of Liquor Control issued Vaccaro yearly 'permits' until until 1970.

In that year the Director 'discovered' the conviction and issued a temporary permit while Mr. Vaccaro sought to void the 1934 conviction in the United States District Court. However, the District Court found the evidence insufficient to find an involuntary plea and refused to set the plea aside. On appeal to the United States Court of Appeals for the 8th Circuit in Vaccaro v. United States, 449 F.2d 735, 736 (8th Cir. 1971), the finding of the District Court was found not to be clearly erroneous and was affirmed. It was there observed by Judge Gibson:

'However, in view of the apparent injustice imposed on Vaccaro by the civil disability enactment, we feel a brief comment is in order.

This is an appealing case for relief since appellant was only 19 years old at the time of this offense and in view of his clean record since that time, the lifetime attainder imposed by the City appears to be out of all proportion to this 1934 offense, and could well present constitutional questions. However, the constitutional issue of the validity of the lifetime civil disability is not before us in this case, and on the record we feel Judge Hunter's findings must be affirmed.'

The Director thereafter denied Vaccaro's application for renewal of the Employee Liquor Permit asserting that he was ineligible for a permit by virtue of Article V, Section 4.35 of the Alcoholic Beverage Control Ordinance, and Section 311.060, RSMo 1969. Article V relates to 'Qualification of Licensee.' Section 4.35 provides that 'licensees' must be of good moral character and qualified to hold an alcoholic beverage license in the State of Missouri. Chapter 311, RSMo 1969 is the Liquor Control Law. Section 311.060 provides '. . . and no person shall be granted a license or permit hereunder . . . who has been convicted, since the ratification of the twenty first amendment to the Constitution of the United States, of a violation of the provisions of any law applicable to the manufacture or sale of intoxicating liquor . . ..' Vaccaro's conviction in 1934 was, of course, subsequent to the adoption of the Twenty First Amendment.

Other portions of the Alcoholic Beverage Control Ordinance are also pertinent here. ¹

Article I--DEFINITIONS, Section 4.1(k) defines 'Licensee' as 'The holder of all licenses issued under the provisions of this chapter.' Section 4.1(p) defines 'Permittee' as 'The holder of an employee's permit issued under the provisions of this chapter.'

Article II--DUTIES AND POWERS OF DIRECTOR, consists of Sections 4.2 through 4.10. Section 4.7 relates to the suspension or revocation of licenses or permits and provides for the hearing procedure before the Director of Liquor Control.

Article III--LICENSES, provides for the requirement of a license and unlawful acts concerning licenses.

Article IV--CLASSIFICATION OF LICENSES, consists of Sections 4.13 through 4.34 and details the various kinds of licenses to be issued and establishes the license fees for them.

Article V--QUALIFICATION OF LICENSEE, contains Section 4.35 relied upon by the Director and providing that 'No license provided for by this chapter shall be issued to any individual . . . (unless such person) . . . is qualified to hold an alcoholic beverage license in the State of Missouri . . ..'

Article VI--EMPLOYEE'S PERMIT, contains the qualifications for such permits and in Section 4.38(a) requires only that all persons employed in the retail sale of alcoholic beverages 'be twenty-one (21) years of age or older and must obtain a permit to do so from the director of liquor control, . . ..' Section 4.38(b) provides that: . . . if the applicant meets the applicable requirements of the city and state, then such applicant will be given a permit . . ..' It must be noted that a 'permit' is not within the definition of 'license' under Article III, nor is it classified as a 'license' under Article IV, nor is it referred to in Article V providing for qualifications of licensees. Article VII--APPLICATION FOR LICENSES, Article VIII--ISSUANCE OR ORIGINAL LICENSE, and Article IX--RENEWALS, TRANSFERS, LOST LICENSES AND CHANGES IN LICENSES do not make any further reference to 'Employee's Permits.'

Article XIV--LIQUOR CONTROL BOARD OF REVIEW, Section 4.79 provides, 'If an application for any license or permit is denied by the director of liquor control, . . . the applicant, licensee or permittee, as the case may be, may request, in writing, a review of such denial or decision touching location, suspension or revocation of a license or permit to the board of review, . . ..' Section 4.82 requires the board of review to 'investigate, examine and review the denial of an application for a license or permit' by the director of liquor control. It is there stated that: 'The board of review may set aside any of the above actions of the director of liquor control if the majority of the members of the board determines that any such act should be altered, and the board may order the director of liquor control to issue a license or permit . . ..'

The Alcoholic Beverage Control Ordinance has thus placed a broad and exclusive discretion in the Liquor Control Board of Review rather than in the Director of Liquor Control. This is similar to the broad discretion granted to the State Supervisor of Liquor Control under Chapter 311, RSMo 1969. See Kehr v. Garrett, 512 S.W.2d 186 (Mo.App.1974). This discretion may also be similar to that of the Board of Zoning Appeals under an ordinance allowing that board to modify application of the zoning ordinance in case of hardship as indicated in the case of State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (Banc 1930). As to matters within the State Liquor Control law, Section 311.700, RSMo 1969, provides for judicial review of the supervisor's action. However, the Alcoholic Beverage Control Ordinance does not make any provision for judicial review of the actions of the Liquor Control Board of Review.

Subsequent to the Director's refusal of a permit, Vaccaro duly appealed that decision to the respondent members of the Liquor Control Board of Review. After hearing, that Board reversed the Director's decision. The Director and the City of Kansas City thereupon filed their petition for review in the circuit court pursuant to the provisions of Chapter 536, RSMo 1969, the 'Administrative Procedure and Review Act.' The petition alleged that the Board's decision was arbitrary and contrary to Section 4.35(3) of the Ordinance and Section 311.060, RSMo 1969. The defendants' answer asserted that the plaintiffs City of Kansas City and the Director were without sufficient standing and had no legal ground to file a petition for review of the actions of the Liquor Control Board of Review. Defendants further stated that the Board's action was in full compliance with the law and that the plaintiffs' petition failed to state a claim upon which relief could be granted. Although the Board's order reversing the Director's denial of the permit is not set forth in either the transcript of the proceedings before the Board or in the transcript in the circuit court, the memorandum opinion filed by the trial court refers to that order and indicates the conclusion of the Board that it was estopped to deny Vaccaro a license because licenses had been issued to him for twenty years, and it would then be an undue burden and hardship on a sixty-year-old man whose lifetime job had been in the liquor business to lose such a permit. The trial court's memorandum opinion concluded that the City could not be estopped and that the imposition of an apparent lifetime civil disability did not involve a denial of due process. Upon that conclusion, the trial court found the issues in favor of the Director, reversed the Liquor Control Board of Review's decision and reinstated the Director's decision of refusal.

On this appeal, appellants Vaccaro and the members of the Liquor Control Board of Review raised two points. First, that the trial court erred in ruling that the City was not estopped from enforcing its Ordinance in the particular fact situation here,...