Lewis v. City of University City

• Decision Date: 20 July 2004
• Docket Number: No. ED 83042.,ED 83042.
• Parties: Mamie LEWIS, Petitioner/Appellant, v. CITY OF UNIVERSITY CITY, et al., Respondents/Respondents.
• Court: Missouri Court of Appeals

145 S.W.3d 25

Mamie LEWIS, Petitioner/Appellant, v. CITY OF UNIVERSITY CITY, et al., Respondents/Respondents.

No. ED 83042.

Missouri Court of Appeals, Eastern District, Division Five.

July 20, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 31, 2004.

Application for Transfer Denied October 26, 2004.

Appeal from the Circuit Court, St. Louis County, Patrick Clifford, J W. Bevis Schock, St. Louis, MO, for Appellant.

Richard C. Bresnahan, Clayton, MO, for Respondent.

OPINION

MARY K. HOFF, Judge.

Mamie Lewis (Appellant), appeals from the decision of the City of University City (University City) to close her home for a period of three months. We affirm the judgment of the trial court upholding University City's decision.

Facts

Appellant and her husband, Sammie Lewis (Lewis) own a residence located within University City's municipal limits. Appellant and Lewis are estranged, and Shawnda Wallace, Lewis' girlfriend, lived with them in the residence at the time the events relevant to this case took place.

On August 11, 2001, after receiving reports regarding illegal drug transactions at Appellant's residence, University City obtained and executed a search warrant of the residence for drugs. During the raid, police seized a large amount of currency, cocaine, cocaine base, and marijuana. Police found drugs in plain view throughout the residence, along with money and drug paraphernalia. Lewis admitted he was selling drugs at the residence, and his girlfriend admitted to knowing that drugs were being sold there. Appellant denied knowing that drugs were being sold out of the residence, but admitted that she possessed marijuana found in her room. As a result of the raid, Lewis was arrested, charged, and convicted of possession of controlled substances.¹ Appellant was not charged with any criminal offenses.

On June 25, 2002, University City notified Appellant that it would conduct a hearing to determine whether Appellant's residence constituted a nuisance, pursuant to University City's ordinance, 8.24.260(B), which provides in pertinent part:

Any room, building, structure, or inhabitable structure which is used for the illegal use, keeping, or selling of controlled substances is a public nuisance. No person shall keep or maintain such a public nuisance.

The ordinance further states at subsection (D):

Notwithstanding the other sections of this chapter, if the [University City] manager or the [University City] manager's designee finds that the owner of the room, building, structure, or inhabitable structure knew that the premises were being used for the illegal use, keeping or selling of controlled substances, the [University City] manager or the [University City] manager's designee may order that the premises shall not be occupied or used for such period as the [University City] manager or [University City] manager's designee may determine, not to exceed one year.

At the hearing, University City's manager, Frank Ollendorf (Manager), presided and examined evidence. The evidence included testimony and exhibits showing that Appellant and Lewis were the owners of the residence where the raid had occurred. One police officer testified that his investigation of Appellant's residence had focused on drug trafficking that occurred at the residence rather than on Lewis' individual drug-related activities. The officer further testified that he believed Lewis was not the only drug dealer in the family, but he refused to discuss possible drug transactions at the residence occurring since the raid on the basis that a continuing investigation may have been underway.

At the close of the hearing, Manager took the matter under advisement. He later issued his written findings of fact and conclusions of law: 1) finding Appellant's residence to be "a place used for illegal sale and use of controlled substances," constituting a public nuisance pursuant to the University City Municipal Code, Chapter 8.24; 2) finding Appellant's denial of knowing drugs were being sold out of the residence not credible in light of the other evidence presented; and 3) ordering Appellant's home closed for three months beginning thirty days from the date of the judgment. Appellant appealed to the circuit court, which upheld University City's decision. This appeal follows. We note the parties agreed on a stay of enforcement of the judgment pending the outcome of the appeal.

Standard of Review

Actions delegated by a municipality to a board or retained for itself to enforce an ordinance are administrative in nature. Woodson v. City of Kansas City, Missouri, et al., 80 S.W.3d 6, 9 (Mo.App. W.D.2002). A municipality's decisions made in the course of enforcing an ordinance are reviewable under the Missouri Administrative Procedures Act, Chapter 536 RSMo. Id. When such a decision is appealed, this Court reviews the decision of the municipal agency or board rather than the judgment of the trial court. Rule 84.05(e); State ex rel. Columbus Park Community Council v. Bd. of Zoning Adj. of Kansas City, 864 S.W.2d 437, 440 (Mo.App. W.D.1993). Our standard of review in this case requires us to uphold the decision of the agency or board unless it is not supported by competent and substantial evidence; it is arbitrary, capricious or unreasonable; it is an abuse of if discretion; or it is unauthorized by law. Section 536.140; KV Pharm. Co. v. Mo. State Bd. of Pharmacy, 43 S.W.3d 306, 310 (Mo.2001). We view the evidence in its entirety in the light most favorable to the decision of the board or agency and draw all legitimate inferences therefrom. Woodson, 80 S.W.3d at 9; KV Pharm. Co., 43 S.W.3d at 310. This court may not substitute its judgment for that of the administrative decision-maker. Mertzlufft v. The Civil Service Commission of the City of St. Louis, 85 S.W.3d 63, 66 (Mo.App. E.D.2002). If the evidence supports either of two findings, the court is bound by the administrative determination. Id. Even though the record contains evidence in conflict with the administrative agency's findings, such evidence is not a basis for reversal on appeal. Id.

Discussion

Appellant raises three points on appeal. In her first point, Appellant argues that University City and Manager erred in proceeding with the civil action against her because one person, Manager, both prosecuted and judged the merits of the case. Appellant specifically argues that Manager's dual role as instigator of the case and decision-maker violated her rights under established principles of separation of powers and due process.

University City's ordinances allow for Manager to hold a public hearing to determine whether a nuisance exists, and if so, order it abated. CITY OF UNIVERSITY CITY, MO., Section 8.24.070 (2002). Appellant urges this Court to follow the decision made in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) and disregard Rose v. State Board of Registration for the Healing Arts, 397 S.W.2d 570 (Mo.1965). The Wong decision addressed two issues: introducing greater uniformity of procedure and standardization of administrative practices; and abridging the practice of one person embodying the duties of prosecutor and judge. Wong, 339 U.S. at 41, 70 S.Ct. at 450. In Wong, the Immigration Service required its inspectors to perform multiple tasks in deportation hearings, which were not discrete tasks and hence, violated the separation of powers. The inspectors performed rotating duties of investigation, prosecution, and presiding over multiple cases. Id., 339 U.S. at 45, 70 S.Ct. at 452. If an inspector was not available to act as a prosecutor, the presiding inspector was required to examine witnesses, present evidence, and if needed, lodge additional charges against an alien. Id., 339 U.S. at 46, 70 S.Ct. at 452. The court found this commingling of functions impermissible. Id.

In contrast, Rose involved a doctor whose license to practice had been revoked by the State Board. Rose, 397 S.W.2d at 571. The doctor claimed he was deprived of his due process rights because the charges against him were instituted, heard, and determined by the State Board. Id. at 573. The Court examined multiple cases in which there was obvious unfairness in the conduct of hearings when one person embodied the prosecutor, jury, and judge, including Wong. Id. at 574-75. However, the Court in Rose determined that none of the State Board members were interested personally in the revocation of the doctor's license, there were no opinions formed prior to the hearing, and the State Board did not participate in the case prior to the hearing, except to authorize the notice stating a hearing would be conducted. Id. at 575. We find Rose to be more germane in this instance as Manager only issued notice of a hearing and made a determination. Significantly, Manager was not participating as the prosecutor at the same time he was determining Appellant's rights.

The Missouri Constitution provides, in relevant part:

The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

Mo. Const. art. II, sec. 1.

The separation of powers clause prevents "the concentration of unchecked power in the hands of one branch of government." Dabin v. Director of Revenue, 9 S.W.3d 610, 613 (Mo. banc 2000), citing Asbury v. Lombardi, 846 S.W.2d 196, 200 (Mo. banc.1993). Yet, this language does not erect a complete barrier between the governmental departments. Id.; See also, Missouri Coalition for Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 132-33 (Mo. banc 1997). "From a pragmatic standpoint it...