State ex rel. Casey's General Stores, Inc. v. City Council of Salem

• Decision Date: 21 October 1985
• Docket Number: No. 13685,13685
• Citation: 699 S.W.2d 775
• Parties: STATE of Missouri, ex rel. CASEY'S GENERAL STORES, INC., Relator-Appellant, v. CITY COUNCIL OF SALEM, Missouri, Mayor Clarence Inman, Ruth Mullnack, Ray Weaver, Bill Riley, Jr., Russell Weller, and Nadine Victor, City Clerk, Respondents.
• Court: Missouri Court of Appeals

Page 775

699 S.W.2d 775

STATE of Missouri, ex rel. CASEY'S GENERAL STORES, INC. Relator-Appellant, v. CITY COUNCIL OF SALEM, Missouri, Mayor Clarence Inman, Ruth Mullnack, Ray Weaver, Bill Riley, Jr., Russell Weller, and Nadine Victor, City Clerk Respondents.

No. 13685.

Missouri Court of Appeals,

Southern District,

Division Three.

Oct. 21, 1985.

John S. Beeler, Houston, for relator-appellant.

Jerry L. Wilkerson, Salem, for respondents.

PREWITT, Chief Judge.

The Board of Aldermen of Salem refused to issue a liquor license to appellant because of the location of the store where the license would be exercised. The Board contended that refusal was based on a city ordinance prohibiting the issuance of a liquor license to a store "located outside the business district of the city."

Appellant brought mandamus seeking to compel the issuance of the license. After issuing a preliminary order, the trial court held an evidentiary hearing. Appellant claimed that the ordinance upon which the board relied was too vague and indefinite to be valid, but that if the ordinance was valid, the location of its store was within a "business district". The trial court held the ordinance valid and found that appellant's proposed location was outside a business district. The relief sought was denied.

On appeal appellant contends that the trial court erred because the ordinance limiting the issuance of license to places within "the business district of the city" is unconstitutionally vague and indefinite and thus susceptible to arbitrary and unreasonable enforcement.

Mandamus is a proper action to obtain a liquor license which has been wrongfully withheld. State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 424 S.W.2d 73, 80 (Mo.App.1968). To be successful in mandamus relator must establish a "clear and unequivocal" right to the relief requested. State ex rel. Jay Bee Stores, Inc. v. Edwards, 636 S.W.2d 61, 62 (Mo. banc 1982).

A relator may appeal from an adverse final determination in mandamus if a preliminary order was issued. See Hunter v. Madden, 565 S.W.2d 456, 457 n. 1 (Mo.App.1978). On appeal mandamus is reviewed as other nonjury civil matters. State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 475 (Mo.App.1972).

Under its ordinances, Salem provides that liquor can only be sold if a license to sell it is granted by the Board of Aldermen. The ordinance which respondents say prevents appellant from being entitled to a license states:

No licenses shall be issued for the sale of intoxicating liquor or nonintoxicating beer at retail in the original package where the place of such business sought to be licensed, according to the application for such license, is located outside the business district of the city.

There is no definition in the ordinances of Salem defining or describing "the business district of the city". Respondents' brief states that there are two separate business districts in the city, both of which have businesses that were issued liquor licenses. Salem has no comprehensive zoning plan. The transcript of testimony at trial indicates that the aldermen "accepted and adapted" a "Comprehensive Community Plan" in 1971. In 1977 the Board of Aldermen made "changes" to the plan. Apparently appellant's store was to be located in an area designated on the plan as "single family residential".

When reviewing an ordinance we start with the presumption that it is valid. Parking Systems, Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11, 16 (Mo.1974). That presumption is rebutted if the ordinance is unreasonable or vague. Id. See also 5 McQuillin, Municipal Corporations, § 15.24 (rev.3d ed. 1981). An ordinance under the police power for the general welfare must be sufficiently definite "to provide those charged with its administration with a clear standard which operates uniformly and avoids arbitrary enforcement." City of Independence v. Richards, 666 S.W.2d 1, 7 (Mo.App.1983).

An ordinance which forbids or requires the doing of an act in terms so vague that persons of common intelligence must guess at its meaning and would differ as to its application, is void for vagueness. Ferguson Police Officers Ass'n v. City of Ferguson, 670 S.W.2d 921, 927 (Mo.App.1984). The void for vagueness doctrine applies to civil as well as criminal matters. Id.

A city has broader powers to limit or restrict those selling liquor than those engaged in other businesses. See § 311.220.2, RSMo 1978; State ex rel. Payton v. City of Riverside, 640 S.W.2d 137, 140-141 (Mo.App.1982); State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, supra, 424 S.W.2d at 79. However, that authority does not give the city the power to base limitations on an ordinance that is vague or uncertain. In that respect an ordinance regulating liquor licenses must meet the same standards as any other ordinance.

This ordinance attempts limited or partial zoning by setting forth where there can be liquor stores. See 8 McQuillin, Municipal Corporations, § 25.81 (rev.3d ed. 1983). The universal rule in reviewing zoning ordinances is that to be valid districts must be described with reasonable certainty and have definite boundaries. Slattery v. Township of Caldwell, 83 N.J.Super. 317, 199 A.2d 670, 671 (1964). See also State v. Huntington, 145 Conn. 394, 143 A.2d 444, 447 (1958) (Boundary lines must be fixed by the regulations and not by administrative officials or courts); Application of the McDaniel Motor Co., 116 Ohio App. 165, 187 N.E.2d 418, 423 (1962) (holding same); 8 McQuillin, supra, § 25.89; Annot., Validity of zoning regulations, with respect to uncertainty and indefiniteness of district boundary lines, 39 A.L.R.2d 766 (1955); Annot., Zoning regulations in respect to intoxicating liquors, 9 A.L.R.2d 877, 886 (1950).

In City of Cherokee v. Tatro, 636 P.2d 337 (Okla.1981), an ordinance prohibiting the operation of "a place of business, repair shop or junk yard within the resident district of said city, and outside of the business district of said city" without a license was questioned because there was no definition of the residential district or a legal description or map or plat by which the boundaries of the residential and business districts could be determined. Following the general principle set forth in the above paragraph and stating that those views "comport with the great majority of cases dealing with this subject", the court held the ordinance invalid. 636 P.2d at 339.

Other ordinances, not expressly purporting to be "zoning ordinances", which have attempted to restrict the location of certain types of businesses have been held invalid for indefiniteness. See City of St. Paul v. Schleh, 101 Minn. 425, 112 N.W. 532, 533 ("Residence district" not defined; "difficult matter to locate any definite line between the business and residence sections"); Wertheimer v. Schwab, 124 Misc. 822, 210 N.Y.S. 312, 316 (1925) (limitation on location of motion picture theater an attempt "to set apart residential districts, without fixed areas having definite boundaries"); Wasem v. City of Fargo, 49 N.D. 168, 190 N.W. 546, 547-548 (1922) (providing that no undertaking establishment can be located in areas "occupied mainly for residence"). But see Rowland v. City of Greencastle, 157 Ind. 591, 62 N.E. 474 (1902) and Shea v. City of Muncie, 148...