State v. Westrum
| Decision Date | 14 January 1986 |
| Docket Number | No. CX-85-1370,CX-85-1370 |
| Citation | 380 N.W.2d 187 |
| Parties | STATE of Minnesota, Respondent, v. David M. WESTRUM, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Minneapolis, Minn., Code of Ordinances Sec. 118.110 (1982) is not unduly vague, nor is it either in conflict with or preempted by state law. The City of Minneapolis did not impermissibly delegate its licensing authority to a private entity.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Joseph M. LaBat, Asst. City Atty., Minneapolis, for respondent.
Scott J. Strouts, Barrie S. Schumack, Minneapolis, for appellant.
Heard, considered and decided by LESLIE, P.J. and WOZNIAK, and HUSPENI, JJ.
David M. Westrum owns several food-vending booths that he operates at various events across the state. He was licensed to sell food by the Minnesota Department of Agriculture and the Minnesota Department of Health. Twice on August 10 and once on August 11, 1984, Westrum was found operating his booths at the Uptown Art Fair in Minneapolis without a city permit. He was subsequently charged with and convicted under Minneapolis, Minn., Code of Ordinances Sec. 188.100 (1982). We affirm.
The Uptown Art Fair is an annual Minneapolis fair that is sponsored, organized and managed by the Uptown Associates, Incorporated (UAI). The UAI is a private, non-profit organization that was granted a permit to hold the 1984 Uptown Art Fair on August 10, 11, and 12. The permit did not give the UAI the power to receive applications for or allocate spaces to merchants within the area of the fair. However, to avoid having merchants set up booths in the same location, the City required all applicants to go to the UAI to obtain a permit for booth space. UAI's permit also did not give the UAI the power to grant or to receive applications for the permit, or to deny issuance of the permit. However, at least two people were denied a permit because they failed to apply for the permit with the UAI.
Appellant did not apply with the UAI for either the food handlers' permit or for booth space. He did not apply for the food handlers' permit because he believed his state permit was all that was required. He did not apply for booth space because he was told by UAI representatives that only non-profit food vendors would be allocated space. However, Westrum later learned that other vendors were allocated space even though they were not non-profit vendors.
Appellant was arrested and charged with three counts of operating as a food vendor without a short-term food handlers' permit. At trial, the facts were stipulated to and appellant essentially contended that he was not required to have the permit. The trial court found him guilty and this appeal ensued.
1. Does the ordinance irreconcilably conflict with Minn.Stat. Sec. 284.01-.17?
2. Is the ordinance preempted by Minn.Stat. Secs. 284.01-.17?
3. Does the ordinance fall within the exceptions set forth in Minn.Stat. Sec. 28A.065?
4. Is the ordinance unconstitutionally vague or overbroad?
5. Did the City of Minneapolis unlawfully delegate the authority to issue permits to the UAI?
1. It is well established that an ordinance cannot be repugnant to a state statute. See Power v. Nordstrom, 150 Minn. 228, 232, 184 N.W. 967, 969 (1921). An ordinance "cannot authorize what a statute forbids or forbid what a statute expressly permits but it may supplement a statute or cover an authorized field of local legislation unoccupied by general legislation." Id. As a general rule, conflicts that would render an ordinance invalid exist only when the ordinance and statute both contain terms that are irreconcilable with each other. Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 352, 143 N.W.2d 813, 816 (1966).
Appellant contends that the ordinance irreconcilably conflicts with Minn.Stat. Sec. 28A.065 (1984). Minn.Stat. Sec. 28A.065 states as follows:
No person whose place of business is a carnival, circus, or fair and who holds a license pursuant to this chapter or chapter 157 shall be required to obtain any additional license or permit pursuant to the provisions of an ordinance or regulation This section does not exempt the person from compliance with the provisions of chapters 37 and 38, any sanitation, public health or zoning ordinance, privilege license requirements or other regulation of the fair or political subdivision having jurisdiction over the area in which the carnival, circus, or fair is conducted.
of a political subdivision in order to engage in any aspect of food handling or to operate a restaurant.
Minneapolis, Minn., Code of Ordinances Sec. 188.110 states as follows:
Permits for the sale of food and drink for a period of less than fourteen (14) days at community celebrations, circuses, and other like and similar occasions, may be issued upon proper application and the payment of a fifty-dollar ($50.00) fee. The operation of itinerant food establishments must be in conformity with the provisions of this chapter.
Pursuant to the ordinance it is unlawful for any person to conduct or operate a food establishment without first obtaining a license.
Appellant contends that the legislature intended to eliminate local licensing. He relies on the strong language in the first paragraph of the statute, which states that "[n]o person * * * shall be required to obtain any additional license or permit * * * in order to engage in any aspect of food handling * * *." Appellant claims that the ordinance impermissibly conflicts with the statute because the city is attempting to forbid food vendors from selling without a permit even though the statute expressly authorized vendors to sell food without any local permits.
We disagree with appellant. Although the first paragraph of the statute does use very strong language, the second paragraph contains a list of regulations that municipalities may enact concerning food vendors at fairs like the Uptown Art Fair. Included in the list of permissible local regulations is "privilege license requirements." We believe that this exception demonstrates that the legislature realized that there are limited spaces at local fairs and that local governments should be allowed to fill these limited spaces in an orderly fashion. The ordinance works in harmony with the statute to provide an efficient and effective method for the city to organize activities like the Uptown Art Fair. Therefore, we hold that the ordinance does not irreconcilably conflict with the statute.
2. Appellant next contends that the ordinance is preempted by state law. Local regulation will be preempted when the legislature has so completely regulated a field or has indicated that a field is solely a matter of state concern, and the subject matter of the regulation is such that local regulation would have adverse effects upon the general population of the state. Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d 813 (1966). Four criteria should be considered when considering an issue of preemption: the subject matter that is being regulated; whether the subject matter has been so fully covered by state law that it has become solely a matter of state concern; whether the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern; and whether the subject matter is of such a nature that local regulation would have an unreasonably adverse effect on the general population of the state. Id. at 358, 143 N.W.2d at 820.
Appellant relies on the first paragraph of Minn.Stat. Sec. 28A.085 to argue that the state intended to fully occupy the field of licensing food vendors. Although he recognizes that the statute may allow local regulation of sanitation and health, he argues that any ordinance regulating licensing should be preempted.
We disagree with appellant's contentions. Regulation of food vendors at local fairs is an area in which local governments are...
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