Levinson v. State, SC 84703.
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | Richard B. Teitelman |
| Citation | 104 S.W.3d 409 |
| Parties | Matthew LEVINSON, Appellant, v. STATE of Missouri, et al., Respondents. |
| Docket Number | No. SC 84703.,SC 84703. |
| Decision Date | 13 May 2003 |
Page 409
v.
STATE of Missouri, et al., Respondents.
Page 410
John L. Davidson, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Theodore A. Bruce, Asst. Attys. Gen., Jefferson City, for respondents.
RICHARD B. TEITELMAN, Judge.
This declaratory judgment action presents two issues. The first issue is whether section 311.060.2(2), RSMo 2000,1 is implicitly repealed by section 561.016.1(4). The second is whether 11 CSR 70-2.140(11), a Division of Liquor Control regulation interpreting section 311.0602(2), is inconsistent with and invalidated by section 311.060.2(2) and section 561.016.1(4). Although section 311.060.2(2) is not implicitly repealed by section 561.016.1(4), 11 CSR 70-2.140(11) is inconsistent with the aforementioned statutes and is, therefore, invalid. The judgment is reversed and the case remanded.2
Matthew Levinson began working as a bartender in 1997. In 2000, he pled guilty to federal felony charges of using a false social security number. He was sentenced to three years probation. As a condition of his probation, Levinson was required to maintain lawful employment, refrain from engaging in any other illegal activities, and follow the directions of his probation officer.
Levinson's probation officer advised him that continued employment as a bartender
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was unlawful as it violated section 311.060.2(2) and 11 CSR 70-2.140(11). Section 311.060.2(2) provides that a liquor license shall not be denied based solely on the fact that an employee has been convicted of a felony unless the employee engages in the direct retail sale of intoxicating liquors.3 Although section 311.060.2(2) is directed at licensees, Levinson's employment was considered unlawful because the division interprets the statute as prohibiting a liquor licensee from employing anyone convicted of a felony in a position involving direct retail sale of intoxicating liquor. 11 CSR 70-2.140(11).4 The regulation provides that a bartender is engaged in direct retail sales. Levinson's continued employment was also considered unlawful because section 311.880 makes the violation of any provision of chapter 311 a crime. Levinson could have been criminally liable for aiding and abetting a violation of chapter 311 under section 562.041.1(2) or for conspiracy under section 564.016.1. Levinson was faced with the choice of resigning his position or violating his probation. He chose to resign.
Levinson filed a petition for declaratory judgment. After hearing the case on stipulated facts, the circuit court dismissed Levinson's petition, finding that section 311.060.2(2) was not implicitly repealed by section 561.016.1(4) and that 11 CSR 70-2.140(11) was valid. Levinson appeals.
The standard of review in a declaratory judgment case is the same as in any other court-tried case. Guyer v. City of Kirkwood, 38 S.W.3d 412, 413 (Mo. banc 2001). The judgment will be affirmed 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. Id.
To maintain a declaratory judgment action, Levinson must demonstrate a justiciable controversy for which he has no adequate remedy at law. Northgate Apartments, L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo.App.2001).
A justiciable controversy exists where the plaintiff has a legally protectible interest at stake, a substantial controversy exists between parties with genuinely adverse interests, and that controversy is ripe for judicial determination. Missouri Health Care Association v. Attorney General of the State of Missouri, 953 S.W.2d 617, 620 (Mo. banc 1997). A controversy is ripe if the parties' dispute is developed sufficiently to allow the court to make an accurate
Page 412
determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character. Id at 621.
This case presents a justiciable controversy that is an appropriate subject for declaratory judgment. First, Levinson's employment is a protectible legal interest. Mager v. City of St. Louis, 699 S.W.2d 68, 70 (Mo.App.1985). Second, a substantial controversy exists between parties with genuinely adverse interests because Levinson cannot resume employment as a bartender or in numerous other service-oriented occupations if the division's current interpretation of section 311.060.2(2) stands. Third, the controversy is...
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...appeal. ANALYSIS The standard of review in a declaratory judgment case is the same as in any other court-tried case. Levinson v. State, 104 S.W.3d 409, 411 (Mo. banc 2003). The judgment will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against......
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