St. Louis Ass'n of Realtors v. City of Florissant

• Decision Date: 29 June 2021
• Docket Number: No. ED 109207,ED 109207
• Citation: 632 S.W.3d 414
• Parties: ST. LOUIS ASSOCIATION OF REALTORS, Appellant, v. CITY OF FLORISSANT, and Todd Hughes, Respondents.
• Court: Missouri Court of Appeals

632 S.W.3d 414

ST. LOUIS ASSOCIATION OF REALTORS, Appellant,

v.CITY OF FLORISSANT, and Todd Hughes, Respondents.

No. ED 109207

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: June 29, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2021

Application for Transfer Denied October 5, 2021

Philip M. Hess, Judge

Introduction

The St. Louis Association of Realtors ("Appellant") appeals the entry of summary judgment in its declaratory judgment action against the City of Florissant ("the City") and its Director of Public Works, Todd Hughes ("the Director").¹ Appellant alleges regulations governing residential rental property licensure in Chapter 605, Article XVII of the City's Municipal Code ("the Ordinance") violate the Missouri Constitution and are preempted by state law.²

Appellant raises four points on appeal. In Point I, Appellant argues the trial court erred by finding the Ordinance is not unconstitutionally vague. In Point II, Appellant argues the trial court erred by finding the Ordinance provides adequate procedural due process. In Point III, Appellant argues the trial court erred by finding the Ordinance does not violate the takings clause of the Missouri Constitution. In Point IV, Appellant argues the trial court erred by finding the Ordinance is not preempted by Mo. Rev. Stat. §§ 441.020, 441.040, or 441.710.³

We affirm.

Factual and Procedural Background

The City enacted the Ordinance on July 8, 2019 and amended it to its current version on March 9, 2020. The Ordinance requires residential rental property owners to apply for and receive a license before renting to tenants. Each license costs $50 per year and must be renewed annually. License holders must earn and maintain a "crime free housing certificate" from the City. Licenses will not be renewed unless the license holder completes the annual application, submits all necessary accompanying documents, and pays all outstanding fees and fines.

Licenses may be suspended or revoked for City Code violations. Section 605.461 of the Ordinance provides a license may be suspended if a license holder (1) failed to comply with property maintenance codes more than three times in six months and failed to make corrections in a reasonable period, (2) made materially false statements on their license application, or (3) failed to report a change of occupancy. A license may be revoked if the license holder had more than two suspensions in a twelve-month period. A license may be suspended or revoked if (1) a license holder and tenant have been notified of three or more acts by the tenant or occupant constituting disturbance or public nuisance to neighbors or the neighborhood, destruction of property, or a danger to public health, safety, or welfare within one year; (2) a resident, guest, or other person under the resident's control engages in certain criminal activities; or (3) a utility provider halts service and the license holder fails to restore service within fourteen days of receiving notice.

License holders may appeal suspension or revocation by filing a written appeal within ten days of receiving notice of suspension or revocation. Appeals are heard by three-member panels appointed by the Mayor of Florissant. Adverse panel decisions may be appealed to a court. If a suspension or revocation is upheld, the property owner may apply for reinstatement. To achieve reinstatement, the property must be re-inspected for full compliance with all applicable codes and the basis for suspension or revocation must have been reasonably resolved.

Appellant alleges the Ordinance's suspension and revocation provisions are unconstitutionally vague; violate procedural due process requirements; constitute an unlawful taking; and are preempted by state law. The trial court heard oral argument on the parties’ cross-motions for summary judgment on February 21, 2020. The City amended the Ordinance on March 9, 2020 and supplemented the summary judgment record to reflect the March 9 amendment on April 24, 2020. The trial court granted summary judgment to Respondents on August 22, 2020, finding the Ordinance is constitutional and not preempted by state law. This appeal follows. Additional factual and procedural history will be provided below as necessary to address Appellant's claims.

Jurisdiction and Standard of Review

Although the issue of this Court's jurisdiction has not been raised by either party, we have a duty to address our jurisdiction sua sponte. City of Pagedale v. Murphy , 142 S.W.3d 775, 777-78 (Mo. App. E.D. 2004). "The [Missouri] Supreme Court has determined that the initial review of the constitutionality of municipal ordinances is proper in the Court of Appeals, noting that ‘claims that municipal ordinances are constitutionally invalid are not within the exclusive appellate jurisdiction of this Court.’ " Damon v. City of Kansas City , 419 S.W.3d 162, 174 (Mo. App. W.D. 2013) (quoting Alumax Foils, Inc. v. City of St. Louis , 939 S.W.2d 907, 912 (Mo. banc 1997) ).

We review the trial court's grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). The constitutional validity of an ordinance is a question of law this Court reviews de novo. City of Sullivan v. Sites , 329 S.W.3d 691, 693 (Mo. banc 2010). We presume ordinances are valid and lawful. Bennett v. St. Louis Cty. , 542 S.W.3d 392, 397 (Mo. App. E.D. 2017). The "interpretation of municipal ordinances and determination of whether they conflict with state law are [also] questions of law and reviewed de novo. " City of St. Peters v. Roeder , 466 S.W.3d 538, 543 (Mo. banc 2015). "The rules governing interpretation of a statute are employed when interpreting an ordinance. Accordingly, the Court will ascertain the intent of the municipality, give effect to that intent, if possible, and consider the plain and ordinary meaning of the language used." Id. (internal citations omitted).

Discussion

Point I: The Ordinance is not Void for Vagueness

In Point I, Appellant argues the trial court failed to apply the correct standard to its facial vagueness challenge and incorrectly found the Ordinance was not unconstitutionally vague.

1. The Trial Court's Standard of Review

Before reaching its vagueness arguments, Appellant asserts the trial court relied on two faulty premises in its analysis.

First, Appellant claims the trial court failed to distinguish between facial vagueness and vagueness as applied to specific facts. Appellant emphasizes its challenge to the Ordinance is facial only, "not as applied." "The distinction between a facial challenge and an as-applied challenge lies both in the remedy the parties seek and the analysis of the Court. A facial challenge to the constitutionality of an ordinance is more challenging than an as-applied challenge." Bennett , 542 S.W.3d at 397. Appellant argues the trial court acknowledged Appellant raised a facial challenge only, yet used the as-applied standard of review to rule against Appellant. Appellant asserts the trial court used Appellant's failure to establish specific instances of confusion to justify its judgment.

Appellant's argument is meritless. To establish facial unconstitutionality, Appellant must establish "no set of circumstances exists under which the [Ordinance] would be valid." State v. Perry , 275 S.W.3d 237, 243 (Mo. banc 2009) (internal citations omitted). The trial court's judgment indicates the court found Appellant failed to establish the Ordinance is never valid as required by Perry . The breadth of the trial court's analysis was therefore correct.

Second, Appellant claims the trial court erroneously limited its analysis to whether a person of ordinary intelligence could understand the Ordinance and failed to consider if it is susceptible to arbitrary and discriminatory enforcement. We disagree. The test for vagueness is "whether the language conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Cocktail Fortune, Inc. v. Supervisor of Liquor Control , 994 S.W.2d 955, 957 (Mo. banc 1999). The trial court accurately noted the vagueness doctrine "protects against arbitrary and discriminatory enforcement" by giving fair and adequate notice of proscribed conduct. Id. Nothing in the trial court's judgment suggests the court applied the wrong test or failed to consider whether the Ordinance could be arbitrarily or discriminatorily applied.

2. Appellant's Vagueness Allegations

a. Section 605.459 of the Ordinance is not Vague

Appellant first argues section 605.459 of the Ordinance is vague because it is unclear whether violations are punishable by both criminal and civil penalties. Section 605.459 provides failure to maintain or loss of a residential rental license "shall constitute grounds for the revocation or cancellation of all outstanding occupancy permits issued for any parcels of residential rental property of such owner associated with said rental license" (emphasis added). Appellant argues this language means residential license revocation triggers mandatory occupancy permit revocation. Because failure to maintain occupancy permits is a misdemeanor under sections 405.465 and 405.480 of the Zoning Code, Appellant reasons the Ordinance is vague because it purports to carry only civil or administrative penalties, but also subjects violators to fines or imprisonment.⁴

Respondents argue Appellant's emphasis on the interplay between section 605.459 and the Zoning Code is misplaced. Respondents note no penalties in the Ordinance are criminal and argue penalties elsewhere in the Code do not make the Ordinance vague. Respondents assert Appellant makes an "illogical connection" between the provisions permitting occupancy permit revocation in section 605.459 and the criminal consequences of losing an occupancy permit in section 405. Respondents rely on Ross v. Dir. of...