April Newsletter (Issue 04-2018)

Request For Proposals
The MMAA  request proposals.  To submit a presentation proposal for a session for the Missouri Municipal Attorneys Association please complete this form:
http://www.mocities.com/page/MMAACallforProposals  by April 24, 2018.  The 2018 Summer Seminar will be held July 20-22, 2018 at Tan-Tar-A Resort, Osage Beach, Missouri.  If you have any questions please contact Emily Koenigsfeld, Event & Training Specialist.

Pay Plan That Uses Prior Pay For Starting Pay Discriminates Against Women Under The Equal Pay Act
Judge Reinhardt, of the Ninth Circuit, starts his opinion in Rizzo v. Yovino, with a roar.

The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex.  The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary?

Judge Reinhardt carefully crafts a very strong opinion holding that a wage differential between male and female employees that relies on prior salary violated the Equal Pay Act.  This Opinion if upheld by the United States Supreme Court will be a landmark opinion.

Facts and Procedural History: The Fresno County Office of Education hired Aileen Rizo as a math consultant.  Previously, she was employed in Maricopa County, Arizona as a middle and high school math teacher.  In her prior position, Rizo earned an annual salary of $50,630 for 206 working days.  She also received an educational stipend of $1,200 per year for her master’s degrees in educational technology and mathematics education.

Rizo’s new salary upon joining the County was determined in accordance with the County’s Standard Operating Procedure 1440 (“SOP 1440”).  The County’s hiring schedule consists of 10 stepped salary levels, each level containing 10 salary steps.  SOP 1440 dictates that a new hire’s salary is to be determined by taking the hired individual’s prior salary, adding 5%, and placing the new employee on the corresponding step of the salary schedule.  SOP 1440 dictated that Rizo be placed at step 1 of level 1 of the hiring schedule, corresponding to a salary of $62,133 for 196 days of work plus a master’s degree stipend of $600.

During a lunch with colleagues Rizo learned that her male colleagues had been subsequently hired as math consultants at higher salary steps.  She then filed a complaint about the pay disparity with the County, which responded that all salaries had been set in accordance with SOP 1440.  After her complaint was rejected, Rizo sued Jim Yovino in his official capacity as the Superintendent of the Fresno County Office of Education in February 2014.  She claimed a violation of the Equal Pay Act (Act).

The County then moved for summary judgment asserting that, although Rizo was paid less than her male counterparts for the same work, the discrepancy was based on Rizo’s prior salary.  The County contended that her prior salary was a permissible affirmative defense to her concededly lower salary than her male counterparts under the fourth, catchall clause, a “factor other than sex.”  The district court denied summary judgment, reasoning that SOP 1440 “necessarily and unavoidably conflicts with the EPA” because “a pay structure based exclusively on prior wages is so inherently fraught with the risk, indeed, here, the virtual certainty, that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand.”  The district court then certified the legal question for interlocutory appeal, which eventually made it to the Ninth Circuit sitting en banc.  The certified question was: “whether, as a matter of law under EPA, 29 U.S.C. § 206(d), an employer subject to the EPA may rely on prior salary alone when setting an employee’s starting salary.”

Elements of Recovery: In order to recover under the Act a plaintiff must show that her employer paid male and female employees different wages for substantially equal work; however, not all differentials in pay for equal work violate the Equal Pay Act, because the Act includes four statutory exceptions—“(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex”— which operate as affirmative defenses.

Issue: The County argued that “any other factor other than sex,” (the catchall exception), allowed an employee’s prior salary to be used in setting the starting salary based on her prior salary.  Therefore, the determinative question was the meaning of the phrase “a differential based on any other factor other than sex.”

The answer to this question is a matter of statutory construction; therefore, the court used a number of well-recognized analytical tools to discern the meaning of the language.

Purpose of the Equal Pay Act: Congress enacted the Act in 1963 (Act) to put an end to the “serious and endemic problem of employment discrimination in private industry” and to carry out a broad mandate of equal pay for equal work regardless of sex.  The remedial purpose of the Act is clear: to put an end to historical wage discrimination against women.

The Court concluded that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the purpose of the Equal Pay Act. “The remedial purpose of the Act is clear: to put an end to historical wage discrimination against women.”  The Ninth Circuit reasoned in light of the clear intent and purpose of the Equal Pay Act, it could not construe the Act as justifying setting employees’ starting salaries on the basis of their prior pay because this perpetuates existing wage disparities between men and women.  At the time of the passage of the Act, an employee’s prior pay would have reflected the existing discriminatory marketplace that valued the equal work of one sex over the other. Congress simply could not have intended to allow employers to rely on these discriminatory wages as a justification for continuing to perpetuate wage differentials.

Textual Analysis: The phrase “any other factor other than sex” follows a series of exceptions.  In order to determine its contextual meaning the Court applied to the catchall term at the end of the list the related principles of noscitur a sociis and ejusdem generis to “cabin the contextual meaning” of the term, and to “avoid ascribing to [that term] a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.”  The Court applied the canon noscitur a sociis— “a word is known by the company it keeps.”  The three specific exceptions prior to the catchall exception are based on systems of seniority, merit, and productivity; therefor, since these three terms all relate to job qualifications, performance, and/or experience it follows that the catchall exception should be limited to legitimate, job-related reasons as well.

A related canon, ejusdem generis, also supports the Courts interpretation of the catchall term because general terms at the end of a list of more specific ones are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.  The Court concluded that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the statutory text.

Legislative History: Examination of the legislative history of the Act also supports the Court’s interpretation that the catchall exception is limited to job-related factors.  During the legislative proceedings industry leaders argued that the earlier exceptions to the Act were specific and under inclusive; therefore, the Court concludes that the catchall exception was added to the final Equal Pay Act in direct response to these employers’ concerns that their legitimate, job-related means of setting pay would not be covered under the exceptions already in the bill.  Representative Robert Griffin, author of the Landrum Griffin Labor Law put it best by describing the catchall exception, as a broad principle, and those preceding it are really examples.”

In addition, interpretations of the Act lend support to the interpretation that prior salary used as a basis to establish initial salary for an employee was not a legitimate measure of work experience, ability, performance, or any other job-related quality although it may bear a rough relation to legitimate factors other than sex.

Based on the above analysis the Court held that the Act was violated by using prior salary as the basis for the starting salary for female employees making this a landmark case in the 55-year history of the Act, if it upheld by the United States Supreme Court. Rizzo v. Yovino (9th 16-15372, 4/9/18)

Comment Howard: The author of the opinion, Judge Reinhardt has been described as the “Liberal Lion” of the Ninth Circuit making the opinion a big target for the United States Supreme Court.  The opinion is strong and very well reasoned making it a good candidate for survival if examined by the United States Supreme Court.  This opinion may be an important part of Judge Reinhardt’s legacy since he unexpectedly passed away after the opinion was fully adopted by the Ninth Circuit.  Even though this is a Ninth Circuit Court of Appeals opinion, if you have a pay practice similar to the one in this case, you should exercise extreme caution in following that practice.  You may want to check your pay plan since my experience is that pay plans generally have similar provisions used to resolve where an employee starts on the pay plan.

Missouri Supreme Court Clarifies Law On Nonuse Variance
Facts and Procedural History: Antioch Church (Church) is located in Kansas City, on Antioch Road, a four-lane roadway, between I-35 and Vivian Road.  The Church property sits within a sizable single-family residential zone that is bookended by commercial areas zoned B4 (the most intense business district), UR (urban residential), D (downtown), and M (industrial), where digital signs are allowed.  Nearly 14,000 vehicles travel this section of Antioch Road every day.

The Church has long had a monument sign (consisting of a glass display cases surrounded by a brick framework) perpendicular to the road to post messages and information about it’s activities by means of letters hung from cup hooks.  After receiving a legacy gift, Church members decided to swap the cup hooks for a digital system that would allow more frequent informational updates in a larger font with significantly less effort.  Unaware that the Kansas City sign ordinance prohibited digital signs on church property in residential zones, they installed the sign in 2010, without seeking a permit or variance, at a cost in excess of $11,000.  The digital component of the sign replaced the display cases that contained the cup hooks and letters; no changes were made to the brick framework surrounding the sign.

After a complaint, Kansas City issued a notice of violation to the Church that the sign violated the sign ordinance, which states that a church in a residential zone may have a monument sign, but that sign “may not include any form of digital or electronic display.” The Church then filed an application for a variance with the Board of Adjustment (Board).  The City staff filed a report with the Board contending that the Board lacked the authority to grant the variance because churches were not allowed to have digital signs.  The Board thereafter conducted a hearing denying the request for a variance without making a written decision.

The Church then filed a petition for writ of certiorari in circuit court challenging the Board’s ruling and the Board thereafter filed its response.  While these proceedings were underway, the City amended its sign ordinance to allow churches on lots of 10 acres or more, if located on a major arterial road to use digital signs.  The Church then filed a motion to supplement its petition to show that the City had amended its ordinance along with a motion to dismiss the proceedings.  The circuit court then sustained the Church’s motion to dismiss because the matter was moot and the Board appealed to the Western District, which transferred the case to the Missouri Supreme Court after concluding that the Board erred in not granting a variance based on hardship.

Adding Digital Lettering to Monument Sign: Section 88-810 defines “Sign Type” as a “group or class of signs that are regulated, allowed or not allowed in this code as a group or class.”  It then lists and defines several possible sign types, such as monument signs, wall signs, digital signs, and electronic signs.

The Board argued it had no authority to grant the Church’s request for a variance because digital signs are defined as signs having digital lettering, meaning that the Church’s addition of digital lettering to its monument sign changed the sign type from a monument sign to a digital sign.

The Court noted that the type of lettering on a sign is not included in the zoning code’s definition of what type of sign is a “monument sign.”  Section 88-810 defines a “monument sign” as a “sign placed upon a base that rests upon the ground where the width of the base of the sign is a minimum of 75 percent of the width of the longest part of the sign.”  The Church’s sign fit within this definition of “monument sign” both before and after the change in the lettering from manual to digital, because definition of “monument sign” did not include any language about what kind of lettering was required on a monument sign.

To accept the Board’s argument would have required the Court to ignore the language in Section 88-445-08-A (3) acknowledging the existence of digital monument signs; therefore, the presence of digital lettering on a monument sign did not prevent the sign from continuing to be a monument sign, because the zoning code implicitly recognized this by setting out requirements for digital lettering on monument signs in non-residential areas.  Therefore, the Board had the authority to grant the Church’s request for a variance if other requirements were met.

Request for Nonuse Variance: The Court distinguishes between a use and nonuse variance concluding that the church request was for a nonuse variance.  A nonuse variance may be granted only if “practical difficulties” are shown noting that its cases have not set out specific criteria for determining when “practical difficulties” have been shown because a nonuse variance belies an all-inclusive definition since it is uniquely a question of fact for the Board.  Consequently the scope of judicial review is limited to whether or not the ruling of the Board was “supported by competent and substantial evidence based upon the whole record.”  The court notes that “…in the absence of specific additional local zoning requirements, Section 89.890 does not require a showing that the need for a nonuse variance is due to topographical limitations or the condition of the land itself, as some prior cases erroneously had stated.”

The Court notes that while it has not had occasion to further address relevant criteria to be evaluated in nonuse variance cases, a myriad court of appeals decisions have followed Slate in considering these criteria.

(1) How substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities (fire, water, garbage and the like), (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.

Therefore, the Court focused on whether the variance requested by the Church from the specific signage requirements of the zoning code would meet the various criteria recognized in the cases.  In examining the reasons offered by the Church for the nonuse variance the Court concluded that the Church did not show there was practical difficulty in carrying out the use of the property as a church; therefore, the court concluded that the Board correctly denied the request for the variance.

First Amendment Claim: The Church requested the Court declare that the portion of the Kansas City zoning code prohibiting digital monument signs and residential zones violated the First Amendment free speech clause by favoring commercial speech over noncommercial speech.  The Church argued that most churches are in residential areas and are not located in commercial areas therefore the zoning ordinance which permits digital signs in commercial areas inherently discriminated against churches based upon content.  The Court noted that the Church did not raise this question at the first opportunity and that the City of Kansas City was a party; therefore, this claim was dismissed.  Antioch Community Church v. Board Of Zoning Adjustment Of The City Of Kansas City, (SC96215, 04/03/18)

Comment Howard: If you are looking at the law concerning nonuse variances this case is for you because the opinion points out conflicts between different cases in this area of law.  All seven judges joined in the opinion making this case the definitive case on nonuse variances.  The earlier Court of Appeals opinion in this case was reviewed in the January 2017 edition of the newsletter, which can be accessed by clicking here.

When Conferring With Attorney On DWI Test There Is No Right to Privacy
Facts and Procedural History: Roesing was arrested on suspicion of driving while intoxicated.  He was transported to the Lee’s Summit Police Department where Officer Jordan Clapp (“Officer Clapp”) read him the implied consent law.  Roesing requested to speak with an attorney.  Officer Clapp permitted Roesing to use his personal cellular phone to attempt to contact an attorney.  Roesing successfully reached an attorney.  Approximately one minute into the call, Roesing handed his phone to Officer Clapp.  The attorney told Officer Clapp that he wanted to speak with Roesing in private.  Officer Clapp advised that although it might be possible to arrange for Roesing to speak with his attorney in another room, the discussion would not be private because every room in the detention facility was audio and video recorded.  Officer Clapp returned the phone to Roesing.  Roesing continued the telephone conversation with his attorney in Officer Clapp’s presence.  Officer Clapp was standing three to four feet from Roesing and could hear what Roesing was saying during the call, but could not hear what Roesing’s attorney was saying.

After twenty minutes passed, following Roesing’s request to speak with an attorney, Officer Clapp again read Roesing the implied consent law.  Roesing expressly refused to submit to a chemical test.

The Director revoked Roesing’s driving privileges for one year.  Roesing filed a petition for review of his driver’s license revocation with the Jackson County Circuit Court.  Following an evidentiary hearing, the trial court entered its judgment sustaining the revocation of Roesing’s driving privileges.

Roesing appealed to the Western District.

Opinion: Roesing argued that he was deprived of his statutory right to counsel because Officer Clapp refused to allow him to speak with his attorney in private because  his phone call with counsel would be videotaped and audio recorded if another room had been used; and because Officer Clapp stood three feet from him permitting Officer Clapp to listen to what Roesing said during the call.  Roesing challenged only whether the Director established the statutory element that Roesing refused to submit to a chemical test.  Roesing argued that his refusal was not valid because he was not allowed to speak with an attorney in private.  Faced with this argument the Western District concluded that: “Resolution of this case depends on the interpretation of Section 577.041.1.”

If a person when requested to submit to any test allowed pursuant to Section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney.  If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

The Western District reasoned that Missouri case law has held there is no constitutional right to speak with an attorney prior to deciding whether to submit to a breath test, although Section 577.041.1 provides a “limited statutory right [to attempt] to confer with an attorney prior to making that decision.”  The courts have concluded that “…this provision is to provide a person with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test (emphasis added).” In addition, “… the statutory twenty-minute requirement has been deemed by the courts to be the definition of ‘reasonable opportunity.”  Roesing v. Director of Revenue, (WD80585, 03/13/18),

Comment Howard: There was a vigorous 14-page dissent in this case raising the likelihood that this case might be transferred to the Missouri Supreme Court.  If you are faced with a situation in which issues are raised about whether or not a person is entitled to privately discuss with his or her attorney during a 20-minute window to make a phone call you need to read the dissent.  I suspect that this issue will continue to be around until the Missouri Supreme Court resolves it.

No Resisting Arrest If Already Arrested
Facts and Procedural History: Daniel Ajak (defendant) was involved in an altercation at his girlfriend’s house resulting in a call to the police.  When the police arrived the other members of the household, who were outside of the house, told the police that the defendant was inside.  Once inside the house the officers immediately detained the defendant and placed him in handcuffs and sat him in a chair at the kitchen table where he continued to yell and scream.  After speaking to the other witnesses the officers told the defendant that he was under arrest and that they were going to take him to jail at which time they escorted him out of the house.

While walking toward a patrol car defendant was jerking back and forth trying to break the officer’s grip while he continued to yell and scream, spitting on one of the officers.  As the door to the patrol car was opened the defendant began to fight back a little and jerked and pulled away from the officers.  The defendant did not break free from the officers and was secured in the patrol car and transported to jail.

The defendant was charged with three counts of domestic assault and one count of resisting arrest.  The jury acquitted the defendant of two counts of domestic assault with one count resulting in a hung jury and a conviction of resisting arrest with a sentence of 280 days in jail.  Defendant appealed to the Missouri Supreme Court arguing that when he was escorted to the car he had already been arrested; therefor, the charge of resisting arrest was invalid.

Opinion: The Missouri Supreme court concluded that when the defendant was told that he was under arrest in the house and was being escorted to the patrol car he was tried to break loose; therefore, since he was already under arrest he could not be guilty of resisting arrest.  The court based its opinion upon the statutory definition of arrest which provides that: “an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise.” Missouri cases previously held that “A person may be said to be under arrest from the moment the police officer takes control of his movements.”  State of Missouri v. Ajak, (Mo. 96333, 04/03/18)

Comment Howard: Three of the judges dissented resulting in four to three split in the Missouri Supreme Court. The dissent argued that an arrest was a continuing process and that the defendant was not arrested until he was placed in the car.  Based on the facts it would appear that the defendant should have been charged with attempting to escape custody instead of resisting arrest.

No Official Immunity Because Policy That Players Wear Face Mask Was Ministerial
Facts and Procedural History: J.M. attended Boy’s Club for the academic year of 2014-2015, which had an after school program for boys at Prairie View Elementary School.  The Boy’s Club program is sponsored and led by Prairie View Elementary gym teacher, Felton Bishop (“Bishop”) who was assisted by DeMarco, a volunteer for the School District who was under the supervision of Bishop.

On the last day of the Boy’s Club program for the academic year, the boys played softball.  Prior to playing, Bishop and DeMarco gathered the boys into the gym, and Bishop explained how to play the game and the safety rules the boys were required to follow.  This included a mandate that any person playing the catcher position was required to wear the facemask and chest protector provided by the District.  The boys were also instructed to drop the bat after a hit instead of throwing it because flying bats were a danger to others.

After the instruction, the boys were split into two groups, half with Bishop and half with DeMarco on an adjacent field.  J.M. was playing on the field supervised by DeMarco.  When it was J.M.’s turn to play catcher, he first tried on one facemask, which was too small for his face.  J.M. then tried on another facemask, which was too big for his face.  J.M. attempted unsuccessfully to tighten the larger facemask so that he could use it.  J.M. took the facemask to DeMarco to have it tightened.  DeMarco was also unable to adjust the facemask to make it fit J.M.  DeMarco instructed J.M. to play catcher without the facemask but stand further back, closer to the fence behind the plate.

During the first play after J.M. began playing catcher, the batter hit the ball and threw the bat behind him, which struck J.M. in the face.  The force of the bat broke J.M.’s nose in two places, requiring surgical intervention.

J.M. brought negligence claims against the District and DeMarco.  The District and DeMarco filed a joint answer.  The District and DeMarco then filed separate motions for summary judgment.  The District argued that J.M.’s negligence claim against it was barred by the doctrine of sovereign immunity.  DeMarco argued J.M.’s negligence claim against him was barred by the doctrines of official immunity and the public duty doctrine.  The trial court granted summary judgment for both Defendants.  J.M. appealed to the Western District.

Issues: J.M. asserted that the trial court erred in entering summary judgment in favor of the District because the District’s sovereign Immunity was waived based upon the dangerous condition of property exception.  J.M.’s also argued that the trial court erred in entering summary judgment in favor of DeMarco because DeMarco was not entitled to official immunity because, under these facts, allowing J.M. to play without wearing the protective mask was a ministerial duty rather than a discretionary decision.

Dangerous Condition: In this case, the placement of J.M. in a situation where he could be injured did not constitute a dangerous condition of the property. “Intangible acts such as inadequate supervision, the lack of warnings and/or signs, the inability to secure an area and the lack of barricades do no create a dangerous condition.”  There was no allegation that the softball field was defective or intrinsically dangerous.  The softball field was not altered or modified in such a way as to become dangerous.  The District was using the softball field for its intended purpose; therefor, it did not create a dangerous condition of the property.

Official Immunity:  A person is not entitled to official immunity if the act was ministerial and not a discretionary decision.

The Board Policy with respect to Illness and Injury Response and Prevention provides that:

“The district will provide protective equipment when it is required by law or when it is determined by the superintendent or designee to be necessary to maintain district safety standard… When protective equipment is provided, all persons are required to use the equipment as directed. (emphasis added).”

In this case, DeMarco had no discretion to allow the players to play catcher without the proper protective gear, including the facemask; therefore, DeMarco’s decisions regarding the wearing of face protection was ministerial.  Consequently, the trial court erred when it held that DeMarco was entitled to official immunity.  J.M. v. Lee’s Summit School District and DeMarco, (WD80705, 03/06/18)

No Relief For Person Who Constructed A Buildings and Structures On County Right-of-way And Building Set Backs
Facts and Procedural History: Reynolds constructed a detached garage, measuring approximately forty-by-forty feet, near his home on Creasy Springs Road in Boone County, Missouri that encroached on the public right-of-way for Creasy Springs Road and violated the twenty-five-foot building setback requirement under zoning regulations.  A total of 1,250 square feet of the 1,804-square-foot building was improperly located.  In the stipulations entered at trial, Reynolds acknowledged that his garage, satellite dish, and privacy fence were all in violation of various zoning regulations and encroached on County’s right-of-way for Creasy Springs Road.

During construction Reynolds was notified that the existing construction had setback issues and that the Board of Adjustment will be necessary for any further activities. Reynolds did not immediately respond to County’s notifications; instead he proceeded with the completion of the garage and structures and then applied for a variance for the setback violations with the Board of Adjustment.

The Board unanimously declined Reynolds’s request.  Thereafter, the County demanded that Reynolds take action to bring his property into compliance with both the right-of-way and the zoning regulations by removing the structures, but Reynolds refused.  The County then filed a petition for permanent injunction against Reynolds, alleging that Reynolds’s property “denied [County] the access to th[e] right-of-way . . . , together with the land-use authority statutorily granted to [County] to establish, promulgate, and enforce zoning regulations, thereby causing [County] irreparable harm,” and that Reynolds’s actions were “perpetual, and so [County] has no adequate remedy at law.”  The County sought a permanent injunction, “mandating that [Reynolds] comply with Boone County, Missouri zoning regulations, and that he remove the accessory building, the fence, and the satellite dish from . . . the right of way area, . . . the setback area, . . . [and] the area in front of the main building.” After hearing the evidence, the trial court found that Reynolds “…unlawfully constructed and maintains on his property an unlawful accessory building abutting North Creasy Springs Road, together with a fence and a satellite television receiver dish between that building and North Creasy Springs Road, all in violation of plaintiff Boone County’s Ordinances and which all unlawfully encroach on the 25-foot setback area established by the Boone County Zoning Regulations and upon the Plaintiff’s right of way abutting North Creasy Springs Road in front of that property.

The trial court entered a permanent injunction, requiring Reynolds to remove in its entirety the building, fence, and satellite receiver dish from the Boone County setback area and Boone County’s North Creasy Springs Road Right of Way within 60 days of the date of the Judgment and . . . permanently restrained and enjoined [Reynolds] from building or maintaining any structures in that setback area or in that right of way in the future.  Reynolds appealed to the Western District.

Opinion: On appeal Reynolds claimed that the County failed to prove entitlement to a permanent injunction because the evidence failed to establish irreparable harm, and lack of adequate remedy at law.

The Western District, noted that the County made out a prima facie case for permanent injunction when it introduced the ordinances and established that Reynolds structure was located in violation of the ordinances.  Reynolds did not dispute that County introduced evidence of both the applicable ordinances and the location of his property in violation of those ordinances.  Reynolds in fact admitted that his property was located in violation of various zoning ordinances and that he refused to remove it.

Reynolds’s claimed that the trial court erred because it “…was required to find harm to either the public safety or health in order to find irreparable injury and that the existence of potential criminal penalties (imposition of a fine for zoning violations) constituted an adequate remedy at law for County, thus barring its right to a permanent injunction.”  The Western relied on Missouri cases that adopted the theory that irreparable harm need not be shown in the case of a repeated or continuing trespass; therefore, the County was not required to show any further harm and was entitled to an injunction requiring the structures to be removed.  The Western District rejected the claim by Reynolds that the availability of potential criminal penalties constituted an adequate remedy because “…equity to prevent irreparable injury to property is not divested by the fact that the act to be enjoined may also be a violation of the criminal law”.

In addition, the court did not abuse its discretion when balancing the equities in light of Reynolds testimony that he was unaware of the need for a permit before starting construction and that other properties appeared to be in violation of the setback requirements.  “Parties are presumed to know the law and cannot avoid their actions based on the ground that they were ignorant of the law…” making Reynolds claim that he lacked knowledge or that other properties appeared to be in violation of the setback requirements irrelevant.  County of Boone v. Reynolds, (WD80846, 04/03/18)