LOU CZECH AWARD NOMINATIONS.The Missouri Municipal Attorneys Association’s Lou Czech Award Committee is soliciting nominations for the Annual Lou Czech Award, which will be presented at the MMAA Summer Seminar July 12-14, 2019, at Tan-Tar-A.
Nominees must be full members of the Missouri Municipal Attorneys Association or former members of the association gone from the state or profession less than three years. The committee will review the applications using the following criteria:
- The individual’s professional accomplishments in serving the public’s interests and the various governmental jurisdictions wherein the nominee was employed.
- The professionalism exhibited by the nominee in his/her relationship with elected officials, the public and other local government professionals. The committee also will consider the nominee’s time and effort spent in training and supporting young professionals just entering the field.
- The individual’s accomplishments in addition to service to the employing jurisdiction; time and effort spent serving the local, state and international city attorneys associations; serving on Municipal League committees and in other capacities that have proven beneficial to the public welfare or the promotion of the profession of municipal law.
- The nominee’s record of ethical conduct in all private and professional matters that bear on the individual’s acceptability of the Lou Czech Award.
Nominations must be received by May 31, 2019. If you have a nomination, please submit the name and reasons you think the person should receive the award to Stuart Haynes, Missouri Municipal League, 1727 Southridge Drive, Jefferson City, MO 65109 or email: firstname.lastname@example.org.
Eighth Amendment Prohibition Against Excessive Fines Applies To States
Facts and Procedure: Tyson Timbs, pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court, sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV, that Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died.
The State brought a civil suit for forfeiture of Timbs’s, Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the Indiana trial court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. The trial court determined that the forfeiture of the Land Rover, would be grossly disproportionate to the gravity of Timbs’s offense, therefore, the forfeiture was unconstitutional under the Eighth Amendment’s Excessive Fines Clause of the United States Constitution, an issue that had not been decided by the United States Supreme Court.
The Indiana Court of Appeals, affirmed the trial court’s determination but the Indiana Supreme Court reversed holding that the Excessive Fines Clause in the United States Constitution constrained only federal action and is inapplicable to state impositions. Timbs appealed to the United States Supreme Court, which granted certiorari to determine if the Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.
Opinion: The starting point, for this case, is the 1994 opinion of the United States Supreme Court in Austin v. United States, that held in rem forfeitures were protected by the Eighth Amendment to the United States Constitution, which prohibits excessive fines. The opinion in Austin v. United States, did not address whether or whether or not the Eighth Amendment applied to forfeitures under state law.
The opinion in this case, written by Justice Ginsberg, is steeped in a long history prohibiting excessive fines going back to Magna Carta, which required that economic sanctions be in proportion to the wrong and not so large as to deprive an offender of his livelihood. Later, when James II, was overthrown in the Glorious Revolution, the attendant English Bill of Rights, reaffirmed the guarantee in Magna Carta, by providing that excessive bail ought not to be required, nor excessive fines imposed or cruel and unusual punishment be inflicted. This language was then adopted, almost verbatim, in the Virginia Declaration of Rights and then in the Eighth Amendment to the United States Constitution.
Justice Ginsberg, noted that by 1868, (when the 14thamendment was adopted) most states had included in their Constitution a prohibition against state forfeitures for excessive fines. After the Civil War, Southern States, enacted Black Codes, which imposed draconian fines for “vagrancy” and other dubious offenses. When newly freed slaves were unable to pay the imposed fines, States often demanded involuntary labor instead. The Congressional Debates, to the 14thAmendment, mentioned that the fines were used to force involuntary labor. Based upon this historical analysis, the case for including the Excessive Fines Clause in the Fourteenth Amendment was overwhelming. Timbs v. Indiana, (U.S. 17-1091, 02/20/19)
Comment Howard: The use of civil forfeitures by local government has been a source of revenue for law enforcement and other local government activities. Finance departments should consider reducing or eliminating this as a source of revenue. In addition, this opinion will continue to encourage serious challenges to fines and penalties, which have been used have been used to finance local government operations. The Opinion is short and well-written, making it worth the read, particularly when one recognizes it would not take much to turn this case into a sword to attack other local government civil penalties, when the primary purpose is to raise revenues. Also, Missouri, has a provision relating to excessive fines that is almost identical to the United States Constitution, which in all likelihood will now be interpreted the same as the Eighth Amendment.
Comment Ragan: This case is a classic example of the importance of seeing the big picture. The decision by the lower court was not unreasonable given that the victim could show with certainty that he purchased the vehicle with money the defendant inherited. Instead of accepting a decision that had no consequence beyond the case the State decided to pursue this matter which resulted in a decision that could have unforseen consequences.
No Cause Of Action For Being Placed On A City Hall “Watch List” Requiring Enhanced Security
Facts and Procedure: Chastain is a long-time community activist in Kansas City. Chastain alleged that the City placed him on a “watch list” at City Hall, which resulted in him being delayed and subjected to enhanced security screening upon entering City Hall, and required that he be escorted throughout City Hall by armed security guards. When Chastain initially protested being on the “watch list,” he was told that the City considered him “possibly dangerous.”
Chastain’s placement on the “watch list” became widely publicized. A news reporter observed and filmed Chastain’s interactions with security personnel when he entered City Hall, and Chastain being escorted by two-armed security guards to the City Clerk’s office to deliver an initiative petition. Chastain “became visibly upset and protested more vigorously than he had in the past.” The reporter interviewed Chastain about his interaction with security personnel. An unnamed City employee verified to the reporter that Chastain had been placed on a “watch list” because the City deemed him to be dangerous. A story about the incident was broadcast or published by multiple news outlets.
When Chastain returned to City Hall, to pick up his copies of the initiative petition, he was once again subjected to enhanced and intrusive security screening. Chastain protested to the head of security and the City’s legal department about being on the “watch list,” and threatened to sue the City if his name was not promptly removed. Chastain’s name was removed from the “watch list” later that day.
Chastain then filed suit, alleging that the City acted with malice in falsely accusing Chastain of being dangerous, and that the City placed him on the “watch list” as retribution for his political activities causing him emotional harm, that had the effect of “smear[ing], malign[ing] and defam[ing] Chastain’s public reputation” and his reputation with City personnel. Chastain prayed that the court award him $1 million in compensatory damages, and $2 million in punitive damages.
Chastain also alleged that the City was not entitled to sovereign immunity because the City “controls and directs its security force,” and the City, “acting through its security force on behalf of its citizens, is performing a proprietary function.” The City filed a motion to dismiss, arguing that it was entitled to sovereign immunity because the basic function being performed by the security guards related to providing public safety, which is protected by sovereign immunity. The trial court denied the motion to dismiss and the City appealed to the Western District.
Opinion: The Western District, noted that it must determine whether the function the City was performing, in this situation was “governmental” or “proprietary.” The Court then discussed the difference between governmental and propriety functions:
As a general matter, “governmental functions are those performed by the municipality as an agent of the state, meaning that they are for the benefit of the general public, or ‘the common good of all.’” “Keeping the peace, enforcing laws and ordinances, and preserving the public health are just some of the duties within the province of a municipality as a governmental agency and upon which the municipality acts without liability.”
Proprietary functions are those functions “performed for the special benefit or profit of the municipality acting as a corporate entity.” “These functions often involve the provision of services or conveniences to a municipality’s own citizens.” For example, a municipality’s sale and distribution of water to customers for private use and a municipality’s maintenance of a park have been found to be proprietary functions.
Based on the above, the Western District held that actions of the City In “identifying persons who may pose a security risk, and subjecting those persons to heightened screening and surveillance, are part of the security function at City Hall.” Therefore, the function is governmental. State of Missouri, ex rel. City of Kansas, Missouri, v. Harrell, (WD82290, 02/05/19)
Comment Howard: The opinion of the Court does a masterful job of explaining the differences between governmental and proprietary functions. I would bookmark this opinion.
No Violation of the Sunshine Law For Making A Record Open That Can Otherwise Be Closed
Facts and Procedure: Steve Cox, who was the Sheriff of Livingston County, (Sheriff) in 2014, sought damages from the City of Chillicothe (City) and the Police Chief of the City for failure to keep records closed to the public.
On September 18, 2014, at approximately 10 p.m. Clifford Hampton (“Hampton”) attempted to repossess Sheriff’s personal vehicle from Sheriff’s home. Sheriff’s home is located in Livingston County, but outside of the City limits of Chillicothe. The home has a driveway that is approximately one-hundred yards long. Sheriff was standing on the back steps of his home when he saw Hampton’s vehicle approaching. Hampton informed Sheriff that he was there to repossess the vehicle. Sheriff informed Hampton that he was trespassing and ordered him to leave the property. After some contentious interaction between the two, Hampton eventually left Sheriff’s property.
Immediately following the encounter, Hampton placed a call to 911, which was received by the Chillicothe Police Department Dispatcher, Wanda Urton (“Urton”). Hampton reported on his 911 call that Sheriff had threatened to unlawfully arrest him, to “kick his ass,” to unjustifiably shoot him, and that Sheriff had reached into Hampton’s vehicle and attempted to physically remove Hampton from the vehicle. After confirming with Urton that Sheriff was in fact the elected sheriff of Livingston County, Hampton stated that he was going to speak with his attorney the following day and would be suing the county. The call was recorded (“911 Recording”). After the call was completed, Urton emailed the supervising dispatcher, Cindy Hanavan (“Hanavan”), notating the time of the call and its location within dispatch records.
The next morning, Hanavan played the 911 Recording for the Police Chief, who in turn, contacted Livingston County prosecutor Adam Warren (“Prosecutor”), who thereafter listened to the 911 Recording in Hanavan’s office, and was provided with a copy of the 911 Recording. Chief also played the 911 Recording for Livingston County Commissioner Ken Lauhoff (“Commissioner Lauhoff”), because during the call Hampton discussed civilly suing Livingston County. Hanavan also played the 911 Recording for Livingston County Commissioner and 911 Advisory Board member Eva Danner-Horton (“Commissioner Danner-Horton”) at Commissioner Danner-Horton’s request.
The Sheriff sued the City and the Police Chief alleging that the disclosure of the 911 Recording to Commissioner Danner-Horton and Commissioner Lauhoff violated the Sunshine Law causing him personal embarrassment and substantial injury. Specifically, the Sheriff sought recovery based on theories of negligence and negligence per se for the Defendants’ alleged violation of their duty’s pursuant to the Sunshine Law to Sections 610.010 to 610.150; recovery for the alleged violation of Section 610.100.2; and for actual and punitive damages as well as statutory damages and penalties including attorney fees and costs.
Sheriff alleged that the disclosure of the 911 Recording to Commissioner Danner-Horton and Commissioner Lauhoff each constituted separate violations because at the time of the disclosure, Commissioner Danner-Horton and Commissioner Lauhoff were members of the “general public” under Section 610.150 and the 911 Recording was a part of the investigative report and was a closed record under Section 610.100.2.
Following a bench trial, the circuit court found that neither the Police Chief, nor any person associated with the City had knowledge that the disclosure of the 911 Recording to the individuals in question was a violation the Sunshine Law. Nor was there any evidence that Chief or any person associated with the City purposefully violated any section of the Sunshine Law. Finding that there was no knowing or purposeful violation, the circuit court found that Sheriff could not recover damages for any alleged violations of the Sunshine Law. The Sheriff appealed to the Western District.
Opinion: The Sheriff sought damages from the Defendants for failure to keep records closed to the public. The Opinion opened by noting that this case is an odd duck because it seeks to punish a governmental agency for making a record open. This runs directly counter to the general purpose of the Sunshine Law, which is to ensure that meetings, records, votes, actions, and deliberations of public governmental bodies are open to the public, unless otherwise provided for by law.
The Sheriff contended that under Sections 610.150 and 610.100.2 of the Sunshine Law, the Defendants were prohibited from sharing the 911 Recording.
Section 610.150 in relevant part states:
Except as provided by this section, any information acquired by a law enforcement agency or a first responder agency by way of a complaint or report of a crime made by telephone contact using the emergency number, “911,” shall be inaccessible to the general public. However, information consisting of the date, time, specific location and immediate facts and circumstances surrounding the initial report of the crime or incident shall be considered to be an incident report and subject to Section 610.100.
The Western District reasoned that Section 610.021 is limited in its application by its opening phrase: “Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following . . . .” (emphasis added). It then proceeds to list 24 classifications of records that, if discussed in a meeting, record, or vote, a public governmental body is authorized to then close the records of such activity. The Court concluded that Section 610.021 is a permissive statute that allows, but does not require, a governmental body to close certain meetings, records, and votes.”
The Western District also noted that the more appropriate reading of these sections of the Sunshine Law is that Section 610.027 does not provide damages as a remedy for violations of Section 610.150 or 610.100.2.
By expressly including the right to civil damages for the improper disclosure of closed records in subsection 610.100.8 but not 610.100.2, the legislature signaled an intent to not provide for civil damages for a violation of subsection 2 of the same section. This principle of statutory interpretation also applies to Section 610.150 which similarly lacks any specific authorization for civil damages for the improper disclosure of an otherwise closed record. Cox v. City of Chillicothe, (WD81748, 02/13/19).
Comment Howard: This case is particularly important because it establishes the principle that opening a record, that is otherwise closed, is not actionable. This would seem to be a case of first impression. This case, further reinforces other opinions that civil damages are limited to a knowing and purposeful violation and the civil penalties provided for such violations.
Negligence In Failing To Require Developer To Comply With Building Code Is Protected By Sovereign Immunity
Facts and Procedure: Kurt Pycior (“Plaintiff”) suffered serious injuries when he fell from an unguarded retaining wall situated between two differently elevated tracts of a parking lot located at the Summit Fair shopping district within the City of Lee’s Summit (City). The City, did not own or operate the property where the retaining wall was located. The retaining wall, where the accident occurred, was not in conformity with the Building Code of the City because it did not include a guard, fence, or barrier. The Plaintiff filed a lawsuit claiming that the City’s negligent inspection, or lack of inspection, contributed to these injuries. The City filed a motion to dismiss, which was denied by the trial court and the City thereafter appealed to the Western District, which granted a preliminary writ of prohibition based on its claim that the activities described in the petition were protected by sovereign immunity that was made permanent with its opinion in this case.
Opinion: The Western District made the Writ permanent because the promulgation of the building code by the municipality is the exercise of police power conferred on it by the legislature for health and safety; therefor, the action was barred by sovereign immunity. The fact that the City charged a fee for issuing a building permit did not make the activity proprietary, even if the negligence’s of the public was grossly negligent. State of Missouri ex rel City of Lee’s Summit v. Hon. Kenneth R. Garrett, (WD82262, 02/13/19)
Statute Of Limitations For Public Nuisance Is 10 Years
Facts and Procedure: Archer-Daniels Midland (ADM), owned property in North Kansas City, (City) that contained a large grain elevator, which it sold to Tauvar in 2002. The City, started an abatement action for a public nuisance on October 28, 2003 against Tauvar, alleging that the grain elevator was “dangerous to life, property and safety of the public.” The notice listed a number of dangerous conditions and required Tauvar to close and secure the structure within ten days, and to submit a plan to NKC within 30 days to repair or demolish the structure. The City posted the notice of abatement and a notice of condemnation on the property. Tauvar tried to repair some of the dangerous conditions on the property in 2004, however the City revoked the building repair permit because it created dangerous conditions to the adjoining property.
Starting in 2013, the city reactivated its efforts to condemn the property and prepared a formal engineering report. In May of 2014, the engineer expressed his opinion that the property was dangerous because of the falling of heavy building materials from the upper portions of the structure. Significant pieces of concrete were also spalling from all sides of the grain elevator as well as pieces of metal framing from the sides of the buildings. A year later the community development director for the City held a hearing about the structures on the property, declaring them a dangerous public nuisance that needed to be demolished.
On September 29, 2016 the City filed a lawsuit against ADM and Trauvar, taking a default judgment against Trauvar. ADM moved for summary judgment alleging it had sold the property in 2002 and that Trauvar knew the condition of the property when it was sold. ADM also alleged that any claim was barred by the 10-year statute of limitations with respect to public nuisances. The court granted summary judgment to ADM and the City appealed to the Western District.
Opinion: The City argued on appeal, that the trial court erred in granting summary judgment because there was a genuine issue of material fact regarding whether or not ADM concealed the condition of the property from Trauvar and whether or not the statute of limitations had run. ADM argued that the City was made aware of the dangerous condition of the structures when it inspected the property between 2003 and 2005, as shown by the notices given by the City.
The City argued that its inspections of the property between 2003 and 2005 did not specifically address the safety and stability of the structures, but was directed towards the dumping of salvage material. Nevertheless, the 2003 to 2005 notices from the City showed that the City had knowledge of the dangers posed by structures; therefore, the statute of limitations began to run not later than 2005. The City had notice when it “…developed knowledge that the structures on the property were “generally dilapidated” and needed to be repaired or demolished.” Therefore, the claim of the City was barred by the 10-year statute of limitations. City of North Kansas City v. Archer Daniels Midland Company, (WD81650, 02/26/19)
Comment Howard: The City, for some reason, did not argue that the nuisance was temporary and continuing, which seems to me to be a reasonable argument because the structure continued to deteriorate from 2003 to 2016. The nuisance continued as the property deteriorated further. The Court discusses this issue in Footnote 7:
We note that “[t]he period of limitations as to a temporary nuisance  runs anew from the accrual of injury from every successive invasion of interest.” “NKC does not argue that there was any new or “successive invasion of interest” involving this property subsequent to 2005 that might have started “anew” the statute of limitations. As a result of NKC’s framing of the issue on appeal, we address this as a single “invasion of interest” temporary nuisance.
Also, this lawsuit seems like a Hail Mary pass, filed out of desperation, because nothing happened for well over 10 years. Nevertheless, the usual option of the city, demolishing the buildings and tax billing the cost, may have been foreclosed by the sheer cost of demolishing a large grain elevator, which in my experience can run hundreds of thousands of dollars. In addition, a site like this may have had severe environmental problems making its worthless to any prospective purchaser.
Police Can Conduct Breathalyzer Test In Police Vehicle
Facts and Procedure: Joseph Baker, was arrested for driving while intoxicated. After his blood alcohol concentration tested over the legal limit, the Director of Revenue suspended his driving privileges. Baker then filed a petition for a trial de novo in the Circuit Court of Lafayette County. At trial, the circuit court, refused to admit the results of the breath test because the location of the testing (inside a law enforcement patrol vehicle) violated regulations promulgated by the Department of Health and Senior Services (“DHSS”). After excluding the breath test results, the trial court found that the Director of Revenue failed to prove that Baker had driven his vehicle with an excessive blood alcohol concentration, and set aside the suspension of Baker’s driver’s license. The Director of Revenue appealed to the Western District.
Opinion: The Western District, noted that the circuit court correctly concluded that Trooper Baxter’s patrol vehicle was a “vehicle used for driving-while-intoxicated enforcement.” Nevertheless, the trial court concluded that the test had been performed in an improper location (car was not a room in a building). The trial court reached this conclusion, based on the wording of the certification that the device operator must provide, which states that the operator must certify that: “No radio transmission occurred inside the room when this was being conducted.” (my emphasis) Baker argued that a room is an area within a building that has its own walls, floor, ceiling, and door. Therefore, according to Baker the breath testing could never be conducted inside a “vehicle[ ] used for driving-while-intoxicated enforcement” despite the explicit authorization found in 19 C.S.R. 25-30.050(2).
The Western District, applied a number of rules of statutory construction to show that the statement on the form requiring the test to occur inside a room, where there is no radio transmission, is an absurdity because if you adopted Baker’s interpretation, law enforcement would not be able to do any testing inside a police vehicle, which is contrary to the plain language of the statute. Furthermore, the Missouri Supreme Court has interpreted Department regulations to control over other contrary provisions. In addition, a specific provision controls over a more general provision. The Western District rejected the trial courts very narrow definition of the word “room” by accepting a broader definition to refer to a room as a “confined space,” which included the police vehicle. Therefore, the trial court erred in its refusal to allow the results of the breathalyzer test to be admitted into evidence. Baker v. Director of Revenue for the State of Missouri, (WD81325, 02/13/19)
Comment Howard: I thought that Judge Alok Ahuja did a masterful job in using a number of statutory rules of construction in his opinion making this opinion well worth studying.
Failure To Notarize Tax Affidavit Does Not Disqualify Candidate for Office
Facts and Procedure: Ken Fredrickson, a candidate for the Maryland Heights Fire Protection District (District), completed a tax affidavit, attesting that he was not aware of any delinquent taxes owed in Missouri, but failed to notarize the affidavit. Fredrickson, had otherwise completed and signed all of his forms, including the tax affidavit, in the presence of Douglas, the District office manager and the election official for the District, who was a notary. On January 22, 2019, Douglas, the election official for the District, wrote the St. Louis County Board of Election Commissioners, stating that Carter was the only candidate for the District, and opined that no election was required since there was only one candidate. Consequently, Fredrickson’s name was not placed on the ballot.
The District, then filed, a petition, in a separate action, to provide a late notice of election, listing both candidates (Carter and Fredrickson) for the Board, to the St. Louis County Board of Election Commissioners, that was granted by the circuit court, which ordered the St. Louis County Board of Election Commissioners to hold an election at the April election day for the District Board, listing both candidates. Carter the other candidate, for the same office, filed a challenge to Fredrickson’s qualifications as a candidate alleging that Frederickson’s failure to submit a notarized tax affidavit, that was otherwise complete, disqualified Fredrickson, from running for the elected position of Director for the District. On the day of trial, February 4, 2019, Fredrickson testified and submitted a notarized tax affidavit that had been sent to the Department of Revenue. The trial court, found on February 4, 2019, that Fredrickson’s submission of a notarized affidavit to the Department of Revenue was sufficient and his testimony was credible ordering that Fredrickson remain on the ballot. Furthermore, it held that the notarized tax affidavit complied with state law. Carter appealed to the Eastern District.
Mootness – State law provides that a candidate or issue cannot be stricken or removed from the ballot less than eight weeks before the election. The deadline to remove Fredrickson from the April 2, 2019, ballot expired February 5, 2019. Since the trial court on February 4, 2019, entered its order requiring that Fredrickson’s name be on the ballot, the issue in this case was moot because February 5, 2019 is the deadline to change the ballot and Fredrickson’s name was on the ballot after the date ballots were required to be complete. Even though the issue was moot, the Eastern District, under the public-policy exception to the doctrine of mootness, decided to reach the issue of whether or not the failure to notarize, an otherwise completed, tax affidavit disqualified a candidate for an elected office.
Disqualification Issue: Analyzing the statutes, the Western District notes that Section 115.306 identifies two reasons a candidate for elective public office might be disqualified. First, the candidate may be disqualified because of a disqualifying felony. Second, the statute provides that any person who files as a candidate for election to public office shall be disqualified if the person is delinquent in the payment of state income taxes, personal property taxes, certain residential real estate taxes, or municipal taxes. Each candidate for office must submit a notarized tax affidavit to the Department of Revenue; however, the statute provides no penalty for failing to submit a notarized tax affidavit. Instead, if a complaint is received that alleges a candidate is delinquent in the filing or payment of state taxes the Department is required to investigate and to notify the candidate of any outstanding taxes and give the candidate 30 days to remit such outstanding taxes, which are not the subject of a dispute between the Department and the candidate.
The Eastern District, noted that the statute states, that if the qualification of a candidate is challenged based on a tax delinquency, the Department shall investigate and provide 30 days in which the delinquent is allowed to pay the outstanding taxes; therefore, it is clear from the plain reading of the statute that the failure to notarize the affidavit does not disqualify the candidate because to do otherwise would be to “absurdly exalt form over substance.” Carter v. Fredrickson, ( ED107582, 02/15/19).
Comment Howard: This is a good case to bookmark since periodically the question of whether or not delinquency with respect to the payment of taxes by a candidate for office comes up. Seems like the statute is very clear on this issue.
Knowing and Purposeful Sunshine Law Violation by Raytown
A Jackson County judge recently ordered that the City of Raytown, pay $4,000 in civil penalties and $38,550 in attorney’s fees for a knowing and purposeful violation of the Sunshine Law according to the February 18, 2019 edition of Missouri Lawyers Weekly. I would be looking at the Cole County case, discussed in the February 2019 MMAA newsletter, to see if it offers guidance as to what constitutes a knowing and purposeful violation of the Sunshine Law. I think it does.
Whatever happened to the idea that if in doubt, concerning the proper application of the Sunshine Law, a governmental agency can bring a declaratory judgment action under Section 510.027.6, seemingly short-circuiting all of the political angst and penalties with respect to whether or not there was a knowing and purposeful violation or even if you were required to respond to a request that might be protected by the exceptions? Frankly, if someone puts a city on notice they are going to file a lawsuit it does not seem to me to be frivolous to contend that the documents are related to legal actions and are protected particularly when there is no case holding otherwise.
I am sure that there must be strategic reasons why the Plaintiffs in the Raytown lawsuit filed a request for documents under the Sunshine Law, instead of using the normal rules of discovery. After all, under the Sunshine Law, a city can charge for its cost in searching and producing the documents. In addition, in a lawsuit, the failure to produce can result in sanctions against the party, for its failure in not complying with rules of discovery. Not so with the Sunshine Law.
DHSS has released draft regulations for medical marijuana related to the following. Follow the links for the information.
- Qualified Patient/Primary Caregiver Rules – Draft
- Medical Marijuana Establishments Generally – Draft
- Cultivation Facility – Draft
- Infused Products Manufacturing Facility – Draft
- Dispensary Facility – Draft
Recently, there was an article in the Springfield News Leader that discussed the steps that were being taken by the City of Springfield to prepare for requests to use property for medical marijuana facilities. I realize that there will be seminars on the Constitutional Amendment and its application with respect to zoning laws and other impacts but after reading the local Springfield news story I thought I would offer my general thoughts on an overall approach without getting into all the details with the big caveat that the final Regulations have not yet been published, making for lots of guess work.
When I initially read the Constitutional Amendment, authorizing medical marijuana, it seemed that the logical approach, to addressing questions with respect to zoning would be to do what we have always done in applying the zoning ordinances to new businesses; you would simply figure out where the marijuana facility logically fits compared to similar uses under the zoning ordinance.
For example, the existing Springfield Ordinance provides guidance as to how to apply the zoning ordinance in specific districts, which seems to be pretty straight forward. Unfortunately, the reality is much more complicated; therefore, you need to be prepared.
The Amendment provides for four types of facilities: Medical Marijuana Cultivation Facility, Medical Marijuana Testing Facility, Medical Marijuana Dispensary Facility, or Medical Marijuana-Infused Products Manufacturing Facility. While marijuana facilities are defined in the Amendment they may lack clarity. For instance, a marijuana dispensary sounds a lot like a pharmacy, leading to the conclusion that marijuana dispensary facilities might be located in zoning districts that authorize pharmacies.
A marijuana manufacturing facility is a lot more complicated because it sounds like a manufacturing facility, where oil or other products may be extracted from the cannabis plant. This sounds similar to an industrial facility with lots of heavy machinery and equipment to protect workers from the byproducts (oil, gas, and waste products) leading to a logical conclusion that this facility should be located in a manufacturing district. But maybe the manufacturing facility is a bakery where processed cannabis is simply added to baked products, other digestible food or drink. This sounds different than manufacturing, but where does it fit in?
As you can might expect, there are going to be lots of questions from businesses about where medical marijuana facilities can be located because in order to get a license from the state it will be necessary for the applicant to provide information showing where the facility will be located, specific to a site. Naturally, this will generate a request by the applicant to the local governmental agency to determine if the proposed location is properly zoned, particularly since applicants must deposit a substantial application fee ($10,000 for cultivation facilities and $6,000 for dispensaries and manufacturing facilities), which deposit is nonrefundable.
Clearly, before anybody is going to make a nonrefundable deposit of $6,000 to $10,000, they will want to know if the property, identified on their state application, is properly zoned, plus there will be lots of money made in this new industry creating a premium on getting a licensed facility in a prime location. The timeframe for starting to issue licenses is August 1, 2019, meaning that applicants are now looking for prime locations for medical marijuana facilities.
Another approach, is to amend your zoning ordinance by designating specific districts where marijuana facilities may be located. In other words, call out the particular marijuana facility use in your zoning ordinance. You may also want to consider whether or not a marijuana facility should be subject to a conditional use permit in order to provide additional control over the location to protect neighborhoods and citizens. It is well to keep in mind, that the Amendment has distance requirements from schools and churches. Can you or should you have other distance requirements from areas that are particularly sensitive, like homeless shelters, group homes for recovering addicts and other similar facilities?
Odor problems with respect to the growing and processing of marijuana are well documented in other jurisdictions; therefore, local ordinances should include odor control provisions, which in my experience can be very complicated. You may want to look at the odor problems in other states to get ideas what you might be facing. See http://www.thecannifornian.com/cannabis-business/marijuana-stinks-heres-cities-businesses-neighbors-can/
So, what can you expect? Based upon experiences in other states there are a host of issues that local government will have to deal with in adjusting its laws and policies to deal with medical marijuana. In addition, there are security problems, odor problems, and even fire code issues since the growing of marijuana and its processing may present unique fire protection issues thereby impacting fire codes. Also, the new law raises questions how and to what extent local government will continue to enforce criminal codes with respect to possession of marijuana.
As you know, predicting the attitude of local government officials and citizens, who are impacted by the location of the facility is impossible to know. Some will like this and others will hate it, both with deeply held beliefs. If citizens react badly to the location or problems caused by marijuana you can expect council members will hear complaints and you will be asked to provide answers or a solution. Considering how this is going to land, you would do well to spend some time reviewing your zoning ordinance to determine where these facilities can be located and other city codes for issues (odor, security and sensitivity of neighbors) that are associated with this industry, so that when the questions come in you will at least have a tentative answer as to the process you are using and likely location that are permitted under the zoning ordinance.
In any event, you can see that there is a lot to be done and at a minimum discussion with staff and public officials as to how these requests should be processed and where they can be located in zoning districts will prevent, surprises. and confusion.
IMLA Model Dog Ordinance
The recently released electronic version of the March April Edition of the Municipal Lawyer has a model dog control ordinance. The Model Dog Ordinance included in the Municipal Lawyer is probably the starting and ending point for most of your research.
There is also an excellent article dealing with recent developments in the telecommunications arena which provides a very concise an updated version of all of the developments that has happened in the last several years making it hard to keep up with the bad news. http://www.imla.org/images/links/ML/MARCH%20APRIL%202019%20FINAL%202-26-2019%20.pdf