Lepofsky v. City of Lincoln Park

• Decision Date: 19 March 1968
• Docket Number: Docket No. 2872,No. 1,1
• Citation: 9 Mich.App. 501,157 N.W.2d 463
• Parties: Fred LEPOFSKY and Bessie Lepofsky, d/b/a Liberty Auto Wrecking, and Theodore Lepofsky and Sidney Lepofsky, Plaintiffs-Appellees, Plaintiffs-Appellees, v. CITY OF LINCOLN PARK, a municipal corporation; Ronald R. Stempien, Mayor; John A. Aloisi, George A. Barber, Robert A. DeMars, Max F. Schiebold, Robert L. Tripp, Russell W. White, Councilmen; and Carl Walkmaster, Chief of Police of the City of Lincoln Park, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 463

157 N.W.2d 463

9 Mich.App. 501

Fred LEPOFSKY and Bessie Lepofsky, d/b/a Liberty Auto Wrecking, and Theodore Lepofsky and Sidney Lepofsky, Plaintiffs-Appellees Plaintiffs-Appellees, v. CITY OF LINCOLN PARK, a municipal corporation; Ronald R Stempien, Mayor; John A. Aloisi, George A. Barber, Robert A DeMars, Max F. Schiebold, Robert L. Tripp, Russell W. White Councilmen; and Carl Walkmaster, Chief of Police of the City of Lincoln Park, Defendants-Appellants.

Docket No. 2872.

Court of Appeals of Michigan, Division No. 1.

March 19, 1968.

Released for Publication April 10, 1968.

Robert E. Butcher, Lincoln Park, for appellants.

Edward Grebs, Detroit, for appellees.

Before FITZGERALD, P.J., and LEVIN and T. G. KAVANAGH, JJ.

T. G. KAVANAGH, Judge.

This is an appeal from an order of the Wayne county circuit court granting a writ of mandamus to compel the defendant city to issue a license to the plaintiffs to conduct an auto parts business.

Plaintiffs Fred and Bessie Lepofsky, d/b/a Liberty Auto Wrecking, have been licensed to operate a used auto parts business in Lincoln Park for more than 30 years. Plaintiffs Theodore and Sidney Lepofsky, according to defendants, have never had a license. All licenses under the city ordinance are issued annually and expire on each June 30. In May, 1966 an application for a used auto parts license for the year beginning July 1, 1966 was filed in the name of Liberty Auto Wrecking, and it sought a license for 2 separate premises--1007 and 1059 Fort street. In the original complaint filed on June 29, 1966, only Fred and Bessie Lepofsky were named as plaintiffs. They alleged that the city had not yet passed upon the license application and asked the court to issue a writ of mandamus compelling the city to issue the license. Defendants filed an answer wherein they admitted that final action had not been taken on the application, but they stated that the application was considered by the mayor and city council on June 27 and that the hearing thereon was adjourned until July 5 for the claimed reason that the premises violated the city fire code because certain combustibles were being stored there. Defendants further asserted that on August 1 the city council denied the application for a license for 1007 Fort street for the following reasons:

'(a) The fence surrounding the premises does not comply with the requirements of the licensing ordinance and constitutes a public and private nuisance;

'(b) The applicants for license are...