State ex rel. Payton v. City of Riverside, WD
| Decision Date | 03 August 1982 |
| Docket Number | No. WD,WD |
| Citation | 640 S.W.2d 137 |
| Parties | STATE of Missouri, ex rel. Robert E. PAYTON and Betty A. Payton, Respondents, v. CITY OF RIVERSIDE, Missouri and David E. Brenner, Mayor, et al., Appellants. 32770. |
| Court | Missouri Court of Appeals |
Page 137
Payton, Respondents,
v.
CITY OF RIVERSIDE, Missouri and David E. Brenner, Mayor, et
al., Appellants.
Western District.
Motion for Rehearing and/or Transfer to Supreme Court
Overruled and Denied Oct. 5, 1982.
Application to Transfer Denied Nov. 15, 1982.
Page 138
Don Witt, Robert Shaw, Platte City, for appellants.
Wilbur Pollard, Jack Norton, Kansas City, for respondents.
Before KENNEDY, P.J., and CLARK and MANFORD, JJ.
MANFORD, Judge.
This is an action in mandamus. This appeal follows a judgment ordering appellant city to issue a liquor license to respondents. The judgment is reversed.
Page 139
Constitutional challenge has been made toward appellants' passage of a city ordinance upon the grounds of denial of due process and equal protection. Since this challenge does not involve a treaty or statute of the United States or a statute or provision of the Constitution of Missouri, jurisdiction lies with this court. Article V, Section 3, Missouri Constitution, as amended, 1976.
The record reveals the following pertinent facts. Appellant city is a city of the fourth class. The governing body of appellant city, The Board of Alderman (hereinafter referred to as the Board), enacted City Ordinance 80-17. This ordinance was the repeal and reenactment of the city liquor code. The new ordinance allowed the following:
"Section 4: RESTRICTION ON NUMBER ISSUED. The number of licenses issued for the sale of alcoholic liquor by the City shall be limited as set forth in this section:
....
ALL INCLUSIVE LICENSE (EXCEPT SUNDAY)--There shall be not more than seven (7) all inclusive licenses in the City of Riverside, Missouri."
In a preceding provision (Section 3--Classification) all inclusive licenses are defined as:
"ALL INCLUSIVE LICENSE (EXCEPT SUNDAY)--An all inclusive license shall authorize sale for consumption on-premises by the drink and for consumption off-premises in original package."
At the time of passage of the above ordinance (80-17) seven all-inclusive licenses had been issued and were active. On June 30, 1980, two of the seven all-inclusive licenses expired and the holders of these licenses did not endeavor to renew them. These two licenses remained unissued from July 1, 1980 until August 19, 1980. At a regular Board meeting August 19, 1980, the Board adopted Ordinance 80-22. This second ordinance amended Ordinance 80-17, Section 4, Chapter 3 of the liquor code to read as follows:
"ALL INCLUSIVE LICENSE (EXCEPT SUNDAY)--There shall be not more than five (5) all inclusive licenses in the City of Riverside, Missouri."
The record further reveals respondents to be owners of real property within the appellant city. This property contained a building, part of which was used as a bar for dispersing alcoholic beverages. The bar was known as the Cellar Bar. The evidence revealed a bar operation for at least 15 years and perhaps for as long as 40 years. For approximately seven years preceding these proceedings, the premises had been leased by respondents to one Shepherd. Shepherd operated the Cellar Bar and held an all-inclusive license.
On May 31, 1980, Shepherd's lease ended and on or about June 3, 1980, respondents filed an application for an all-inclusive license. The evidence was controverted as to whether the application was complete and in proper form. Respondents claimed the application complied with the requirements of the code, but appellant city alleged the application had many discrepancies. Respondents' application was never acted upon by the Board.
Respondents with their counsel appeared at various Board meetings relative to their pending application. On August 5, 1980, the Board appointed a three member committee to inspect the Cellar Bar. These committee members testified they found the Cellar Bar "gutted" and in other ways deficient. Respondents offered to improve the premises and to post a $50,000 bond as a guarantee of performance.
On August 19, 1980, at a regular meeting the Board adopted Ordinance 80-22 reducing the number of all-inclusive licenses from seven to five. The Board did not vote on respondents' application because in the Board's view no more all-inclusive licenses were available. Respondents filed this action September 18, 1980. The case was tried to the court March 27, 1981. On May 21, 1981, the trial court issued its order directing appellant city to issue respondents...
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