June Newsletter (Issue 06-2021)


In June of 2021 there were two very important opinions one of which will require your immediate attention when responding to Sunshine Law requests.  Gross v. Parson, was  a major loss for the State of Missouri and local government entities, who will no longer be able to charge attorney fees for reviewing Sunshine Law requests (fees for producing materials are reduced to cost of copying).  In addition, in your response it is necessary to provide the requestor the exact date when the materials will be available for copying including specific reasons for any delay and if not available immediately why it is not immediately available.  

On the good news side, the City of Florissant scored a major victory in St. Louis Association of Realtors v. City of Florissant, in which the Eastern District upheld an ordinance requiring licensees for rental properties to maintain the property crime free.  I expect that there will be a lot of interest by local government officials in this ordinance.  City of Florissant Code Section 605.455

Missouri Supreme Court Requires Immediate Changes In Response To Sunshine Law Requests

You may recognize the Gross case from my earlier review in the August 2020 MMAA newsletter.  You may toss that review into the trash bin of legal history.

Analysis  – Elad Gross, appealed to the  Missouri Supreme Court in Gross v. Parson, alleging that the trial court erred in sustaining a motion for judgment on the pleadings, filed by the Attorney General.  The Missouri Supreme Court found for Gross on 9 out of 10 of his alleged errors and with respect to the 10th issue it was not reviewable.  The impact of this case is significant requiring local government attorneys to change procedures in responding to Sunshine law requests. Using a question and answer form, my emphasis in analyzing Gross v. Parson is focused on immediate steps that need to be taken to avoid a violation of the Sunshine Law.

Issue No. I. – Gross alleged that the circuit court erred in granting judgment on the pleadings because the Governor’s Office violated the Sunshine Law when it required him to pre-pay an estimate of costs for his first request that included attorney review time.

Answer Attorney fees are not billable because attorney fees are not research time nor are they staff time.  The statute is very specific as to what is billable (costs of copying).  It is not the public records request that requires the closing of records but the statute.

“Because the Sunshine Law obligates a public governmental body to separate exempt and non-exempt material without regard to any particular records request, attorney review time to determine whether responsive documents contain privileged information is not “[r]esearch time required for fulfilling records requests.”

Issue No. 2 – Gross alleged the Governor’s Office violated the Sunshine Law when it failed to provide him with the earliest date upon which the records in his first request would be available.

Answer – The Governor conditioned his response upon payment of the amount of $3,618 in fees and stated that the response would be completed within 120 days. The statute provides that:

If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection.

The statute requires that the records be produced at the “earliest time and date,” if the record cannot be produced within 3 days then the earliest “…date that the record will be available for inspection.

First, the response did not comply with the statute because it was conditioned upon payment of attorney review time. The statute only allows for charging of statutorily authorized copying fees, therefore, the Governor’s Office was not authorized to request payment of $3,618, prior to making copies. which included attorney review time at $40 per hour. The statute also requires the exact calendar date upon which Mr. Gross can inspect the requested records, which it did not; therefore, the Governor’s Office was not entitled to judgment on this issue and violated the Sunshine law.

Issue No. 3 – Gross alleged the Governor’s Office violated the Sunshine Law when it failed to provide him with a detailed explanation of why it required at least 120 business days to produce documents in response to Gross’s  first request.

Answer – The statue provides: “If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay.”

The Governor did not provide  a detailed explanation for the delay to Gross, although before the Supreme Court the Governor’s office explained that the request was voluminous requiring the identification and copying of 24 subjects and thousands of pages, which the Court suggested as sufficient if it had been included when the Governor initial response.  Since the explanation was not given when the Governor responded to Gross it failed to comply with the statute.  I would suggest you cram as much detail as possible into your initial response as to why there will be a delay, although using a similar the explanation provided on appeal by the Governor’s Office to the Court would seem to be sufficient if included in the initial response.

Issue No. 4 – Gross alleged that the Governor’s Office violated the Sunshine Law when it redacted certain records in response to his second request without explanation and without closing the records.

Answer – The Governor’s Office, provided Gross with no explanation as to why it redacted portions of the responsive records.  It did not state the redacted material was privileged attorney-client information or work product.

When a record contains both exempt and non-exempt material, the governmental body must “separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.”  If the separation is readily apparent to a person requesting to inspect or receive copies of the record (like social security numbers)  the public governmental body shall generally describe the exempt record, unless that description would reveal the contents of the exempt information, defeating the purpose of the exemption.  The redacted portion of the materials covered two pages, making those portions impossible to read.  The Governor’s Office, did not provide Gross with any explanation as to why it redacted portions of the responsive records, despite not closing the records.  It did not state the redacted material was privileged attorney-client information or work product.  The unexplained redactions were insufficient and the records had not been closed as required by the statute.  The motion for JOP could not reach the issues because the resolution required proof of facts.

 Issue No. 5 – The circuit court misapplied the law when it concluded that Gross had the burden of persuasion to show that  that he complied with the Sunshine Law when the Governor made the redactions.

Answer – Section 610.027.2, provides that  “when a governmental body claims that an exception to the general rule of openness applies, the burden of persuasion in a suit seeking disclosure of public records shifts to the governmental body.”  Also, since this was a fact question the motion for JOP was premature because a motion for JOP can only reach the pleadings.

Issue No. 6 – Did the Governor Knowingly Violate  the Sunshine law when it initially responded to the First Request for Records?

Answer – Yes it did.  The state of mind of a public governmental entity that violates the Sunshine Law “is not a separate violation of the [S]unshine [L]aw” “it simply determines the extent of [a] court’s discretion in remedying an established [S]unshine [L]aw violation.”

Gross informed the Governor’s Office of the requirements of the Sunshine Law when he responded; therefore, the Governor’s Office knew the requirements of the Sunshine Law, and yet it “repeatedly refused to abide by the requirements of [the Sunshine Law] with respect to [Mr. Gross’s] first Sunshine Request.”

In his petition, Gross alleged the Governor’s Office knowingly violated the Sunshine Law with respect to his first records request because he informed the Governor’s Office of the requirements of the Sunshine Law in his letter to the Governor’s; therefore, the Governor knew the requirements of the Sunshine Law after being informed by Gross, and yet it “repeatedly refused to abide by the requirements of [the Sunshine Law] with respect to [Mr. Gross’s] first Sunshine Request.”

Gross incorporated all of the factual allegations in his petition into his count alleging the Governor’s Office acted knowingly.  The reasonable inference that can be drawn from these allegations and the incorporated facts related to Mr. Gross’s first records request is that the Governor’s Office violated the law in the ways Mr. Gross alleged and knew it was violating the law when it took the challenged actions (i.e., charged $40 per hour for research/processing time; failed to provide the earliest date records would be available’; and failed to provide a detailed explanation of the cause for delay).

Issue No. 7 – The Governor’s Office knowingly violated the Sunshine Law with respect to Gross’s second sunshine request when it redacted two records it provided to him.

The Second Requested by Gross asked for:

“Any and all records, communications, documents, emails, reports, and other material sent by or to Office of the Governor’s staff, advisors, contractors, or other agents involving the Office of the Governor’s response or plans to respond to the Sunshine Requests sent to the Office of the Governor by Elad Gross dated August 18, 2018.”

Gross again asked the Governor’s Office to waive fees related to his request, articulating the same reasons he set forth in his first request.  Mr. Limbaugh responded stating that the Governor’s Office would provide a response or a cost estimate within 10 days, adding, “We do not anticipate this will be a voluminous request.”

The response by the Governor’s office was insufficient because it required Gross to prepay the fees for copying, which included attorney fees for research and attorney staff time; no explanation of why parts of the response were redacted; no explanation as to why the records were not closed as required by law; which were knowingly and purposeful violations of the law.

Having answered  NO to the question; the Court then explained that the JOP motion was improper because a motion for JOP allows only review of the pleadings.  Since the answer to the question required proof of facts the trial court erred when it held that the petition failed to state a cause of action because on its face the petition alleged ultimate facts to support the claim because Missouri requires that a plaintiff need only to “…plead ultimate facts in order to satisfy Missouri’s fact-pleading standard.”  Gross’ petition was sufficient to state a claim because it pled ultimate facts sufficient to state a cause of action.

Issues No’s. 8 and 9 – Gross alleged the trial court erred in sustaining the Governor’s Office’s motion for JOP with respect to Counts III  (First Request) and VII (Second Request), both of which alleged purposeful violations. 

Answer – The state of mind “simply determines the extent of [a] court’s discretion in remedying an established Sunshine Law violation.”  A public governmental body purposely violates the Sunshine Law when it “exhibits a ‘conscious design, intent, or plan’ to violate the law and does so with awareness of the probable consequences.”

Gross alleged that with respect to the First request the Governor’s Office charged him for “research/processing” at a rate of $40 per hour; failed to provide him with a detailed explanation of the cause for delay in producing records; failed to provide the earliest date records would be available and delayed the production of these documents in order to circumvent Missouri campaign finance laws.

With respect to the second sunshine request, Gross alleged the Governor violated the Sunshine Law when it redacted open public records; and when it redacted the records; and  purposely violated the law “to avoid providing information pertinent to Gross’s investigation into government corruption.”

These allegations sufficiently alleged the Governor’s Office had an intent to violate the law and that it was purposeful; however, because the motion was for JOP and proffer of these violations required proof of facts the trial court erred when it granted the motion for JOP.  Maybe they were just too busy running for the next office or promoting themselves but not devoted to the real practice of law.

Issue No. 10 – The issue was a broad and full throated attack on the constitutionality of the actions by the Governor alleging violations of Missouri case law and the Missouri constitution.  The Court held that because Gross did not raise these objections until appeal that they were waived.  Gross v. Parson, (SC98619, 06/29/21)

Comment Howard: Elad Gross performance was brilliant and innovative. Consider:

  • Gross pled and successfully argued that the letters he sent to the Governor stated the law; consequently, the Governor was informed of the requirements of the Sunshine law thereby making the failure to produce records knowing and purposeful.  I have not seeing this tactic used before (inform the government of the law and then argue and win showing that they knew the law because you told them what the law required.)
  • The follow up to Gross’s second request, asking for all records pertaining the denial of the records, put Gross right into the decision making process of the Governor’s Office to redact portions of the records pertaining to a political scandal.  

The lawyers for the Governor were crushed and sloppy leading to a humiliating defeat on 9 out of 10 of the issues (the one issue Gross did not win on is what I call a shot in the dark with no chance of winning.)  No loss for Gross there.  In other words, the high power lawyers for the Governor got skunked big time. They were crushed.  For example, the motion for JOP by the Governor was extremely unwise or stupid because many of the issues could not be decided based on the JOP motion since they required facts in order to determine some of the issues.

Years ago,  when I developed the City of Springfield’s policy I thought it made sense to decentralize the response by letting each agency make the decision on the response.  Decentralization no longer makes sense.  There needs to be one person responsible for handling the responses making that person accountable.  I suspect that many times the work of handling response gets delegated to the lowest person on the ladder.

“Crime Free” License Ordinance For Owners Of Rental Property Is Valid – (St. Louis Association of Realtors  v. City of Florissant)

As mentioned in the introduction above, St. Louis Association of Realtors  v. City of Florissant, was a very hard fought case against entrenched realtor interests that want to maintain the status quo by fighting laws that improve the quality of neighborhoods by providing better tools to fight blight.  Over the years, there has been issues with properties becoming public nuisances, thereby impacting surrounding properties and quality of life.

 Facts and Procedure: The City of Florissant (City), case involves an ordinance that requires rental property to be licensed and maintained “crime free.”  Failure to maintain the property as crime free can result in the revocation of the  “crime free certificate,” issued by the City.  This can lead to prohibitions against further rentals until the condition is cured.  Each license costs $50 per year and must be renewed annually.  License holders must earn and maintain a “crime free housing certificate” from the City.  Licenses will not be renewed unless the license holder completes the annual application, submits all necessary accompanying documents, and pays all outstanding fees and fines.  Licenses may be suspended or revoked for City Code violations.

The Ordinance provides a license may be suspended if a license holder (1) failed to comply with property maintenance codes more than three times in six months and failed to make corrections in a reasonable period, (2) made materially false statements on their license application, or (3) failed to report a change of occupancy.  A license may also be revoked if the license holder had more than two suspensions in a twelve-month period.  A license may be suspended or revoked if (1) a license holder and tenant have been notified of three or more acts by the tenant or occupant constituting a disturbance or public nuisance to neighbors or the neighborhood, destruction of property, or a danger to public health, safety, or welfare within one year; (2) a resident, guest, or other person under the resident’s control engages in certain criminal activities; or (3) a utility provider halts service and the license holder fails to  restore service; the provider halts service and the license holder fails to restore service within fourteen days after receiving notice.  License holders may appeal suspension or revocation by filing a written appeal within ten days of receiving notice.

Realtor’s alleged the Ordinance’s suspension and revocation provisions were unconstitutionally vague; violated procedural due process requirements; constituted an unlawful taking; and were preempted by state law.  The trial court found for the City and the Realtor’s appealed to the Eastern District.

Point I – Ordinance Not Void for Vagueness

Correct Standard of Review, Vagueness – Appellant argued that the trial court did not apply the correct standard of review to its facial vagueness challenge and incorrectly found the Ordinance was not unconstitutionally vague. Appellant further claimed the trial court failed to distinguish between facial vagueness and vagueness as applied to specific facts.

The Eastern District noted that: “The distinction between a facial challenge and an as-applied challenge lies both in the  remedy the parties seek and the analysis of the Court. A facial challenge to the constitutionality of an ordinance is more challenging than an “as-applied challenge” because in “order to establish facial unconstitutionality, the Appellant must establish that under no set of circumstances would the Ordinance would be valid.” The trial court found that Appellant failed to show that the Ordinance under no set of circumstances would be valid as required by Perry, an earlier Missouri case; therefore, the trial court’s analysis was correct.

Appellant claimed that  the trial court erroneously limited its analysis to whether a person of ordinary intelligence could understand the Ordinance and failed to consider if it is susceptible to arbitrary and discriminatory enforcement. The Eastern District, held that the trial court accurately noted the vagueness doctrine “protects against arbitrary and discriminatory enforcement” by giving fair and adequate notice of proscribed conduct, which the Ordinance did.

Ordinance Vagueness Allegations

Criminal and Civil Penalties – Appellant argued that the Ordinance is vague because it is unclear whether violations are punishable by both criminal and civil penalties.  The Ordinance provides that failure to maintain or loss of a residential rental license “shall constitute grounds for the revocation or cancellation of all outstanding occupancy permits issued for any parcels of residential rental property of such owner associated with said rental license,” which is a criminal violation under the Zoning Ordinance another separate part of the City Code although not part of the Ordinance at issue in this case.  Appellant argued this language means residential license revocation triggers mandatory occupancy permit revocation, which is a misdemeanor under the Zoning Code (a separate law from the Ordinance at issue in this case).  Appellant reasoned the Ordinance is vague because it purports to carry only civil or administrative penalties, but also subjects violators to criminal fines or imprisonment in the Zoning Ordinance. 

The City asserted  that the Appellant made an “illogical connection” between the Ordinance that provided for revocation of the “crime free permit” for a rental housing permit and a civil penalty and the criminal consequences of losing an occupancy permit in the Zoning ordinance.  This argument is contrary to Missouri case law, which was decided in an earlier case by the Missouri Supreme Court  that held  “civil license-revocation proceedings under the revocation statute are unrelated to the criminal provisions…” of the DWI statute.  Eastern District applied the statutory rule of construction: “…there is no need to refer to other similar statutes where a statute’s own language is clear.” In Ross, the Supreme Court held that the DWI law is applicable to criminal matters, but the civil license revocations proceedings in DWI proceeding are unrelated to criminal provisions.  Here, the Ordinance alerts property owners to the civil consequences of rental license revocation or suspension but has no criminal provisions.  Like in Ross, the civil revocation consequences in this case stand alone, unrelated to criminal punishment for the failure to maintain a license; therefore, the Eastern District concluded that Appellant has not met its burden of establishing “vagueness permeates the text of [the] law.” Appellant failed to show that under no set of circumstances would the Ordinance be valid.

Use of Categorical Terms Did Not Make the Ordinance Vague – Appellant asserted,  the Ordinance is vague because it fails to define certain terms and phrases in the “Criminal Activity Provision” by using categorical terms

Specifically, Appellant objects to the phrases in the Criminal Activity provisions of the Ordinance like: “criminal activity . . . regardless of whether such person has been convicted;” “criminal activity that threatens the health or safety, or the right to peaceful enjoyment of the premises of other residents;” “vicinity of the premises;” and “abuse of drugs or alcohol that threatens health, safety, or right to peaceful enjoyment.”  Appellant argued further that the phrase “abuse of drugs or alcohol” is also overbroad because it prohibited legal conduct.

Respondents correctly noted that each of the complained-of terms are permissible categorical phrases “of common usage[,] understandable by persons of ordinary intelligence.” The Missouri Supreme Court has held in earlier cases that the public can be expected to understand descriptive or categorical terms such as “intoxicated condition;” “under the influence;” “chronic offender;” “close proximity;” and “immediate vicinity;” therefore, use of categorically terms do not make the Ordinance unconstitutional.

License Reinstatement Requirements Are Not Vague – Appellant argued that the Ordinance does not adequately provide “guidance for how, once a license is suspended or revoked, an owner could reasonably resolve the suspension or revocation so as to be eligible for reinstatement.” Appellant argues the Ordinance does not address how a license holder could reasonably resolve: (1) prior false statements during the license application or renewal process; (2) three or more acts of public disturbance; (3) bases for suspension or revocation in the Criminal Activity Provision; or (4) two or more suspensions in the prior twelve months. (Appellant argued that since the above events already occurred they cannot be reasonably resolved.)

The City argued the trial court correctly found the Ordinance did not have to outline specific procedures that license holders must follow to achieve reinstatement. The City argued “reasonable resolution” cannot be defined because the facts and context underlying each suspension and revocation are different and it would be impractical for the Ordinance to list every way a violation could be resolved.

The Eastern District agreed with the City that  Ordinances need not meet a standard of “absolute certainty” or “impossible standards of specificity” and will be upheld when “the language . . . conveys to a person of ordinary intelligence a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice…,” which it did.

Point II: The Ordinance Provides Sufficient Procedural Due Process

In Point II, Appellant argued that the Ordinance violated license holders’ procedural due process rights because they deprive license holders of a property interest before giving them notice and an opportunity for a hearing.

The Eastern District noted, the Ordinance gives license holders notice and an opportunity to be heard before depriving them of a property right.  Although the Ordinance calls the hearing before a three- member panel an “appeal,” the Eastern District reasoned that this hearing is functionally a pre-deprivation hearing because notices of suspension or revocation do not take effect until (1) the period to file an “appeal” runs or (2) the “appeal” is heard and the panel issues written findings and conclusions, which may then be appealed to a court.

Point III: The Ordinance Did Not Violate the Takings Clause

Appellant alleged the Ordinance violated Article I, Section 26 of the Missouri Constitution because the requirements it imposes on license holders constitute a taking under Article I, Section 26 of the Missouri Constitution, which provides: “That private property shall not be taken or damaged for public use without just compensation.”  Appellant’s further argued that the Ordinance prohibited property owners from renting to tenants without a residential rental license and provided a mechanism for Respondents to take licenses away,  without a hearing thereby depriving them of the use of their property.  

The Eastern District noted that the City correctly argued the Ordinance did not constitute an unlawful taking because municipalities in Missouri have the police power to license and regulate businesses, including rental property, without violating the takings clause provided the police power is exercised “reasonably.” The City countered by arguing that the City’s purpose in passing the Ordinance was to increase public safety in rental properties, by imposing licensure requirements on rental property owners and operators,  which the Eastern District held was a valid public health and safety regulation.

Point IV: The Ordinance Did Not Conflict with State Law

Appellant argued the Ordinance conflicts with and is preempted by and conflicts with Missouri eviction laws.  Under the Ordinance “owners are left on their own to divine what [reasonable resolution] may be.”  Appellant argued license holders at risk of suspension or revocation will feel pressure to evict to save their licenses, effectively transforming a permissive remedy into a requirement.

The Eastern District, noted that the City correctly argued that nothing in the Ordinance mandates eviction; like state law, eviction is a permissive remedy available to landlords.  The Ordinance does not permit any action forbidden by the eviction laws.  Conversely, the Ordinance does not forbid any action the statutes permit.  In both instances, eviction is left to the discretion of the landlord.  Furthermore, the Ordinance simply supplements the laws and is in harmony with state law.  St. Louis Association of Realtors vs. City of Florissant (ED109207, 06/29/21).

Comment Howard: John Hessel, City Attorney for the City of Florissant did a brilliant job by meticulously breaking down the arguments of the Realtor’s.  This was very evident by the Court’s frequent references to and acceptance of the City’s arguments.  Congratulations to John Hessel who represented the City of Florissant.  I thought he showed complete mastery of local government law.  

State And Local Government – Complete List With Summaries Of Important Local Government Cases

Another useful list from Lisa Soronen, is a complete list of important local government cases with summaries. For list of cases see Supreme Court Review.

State and Local Government Chart of Cases – 2020-2021 Term

Another document from Lisa, described this as the most requested item from the SLLC (chart of cases that she compiles at the end of each term.  SLLC Amicus Briefs 2020-2021.

Missouri Adopts COVID Liability Bill

Missouri adopted the COVID liability bill (SS#2/SCS/SB Nos. 51 & 42) to provide protection to health care workers, manufacturers, and businesses, even though there has not been a flood of liability suits.  The above link provides a summary of the bill as well as a copy of the legislation.  There is also a review of this law in the May 24, 2021 Edition of  Missouri Lawyers Weekly.

Tear Gas Suit of Al Jazeera Journalists Settled

During the Michael Brown protests in 2016, three Al Jazeera Journalists were covering the protests and were approached by a St. Louis swat team.  They were gassed and in response filed a civil rights lawsuit.  The federal district court for the Eastern District, dismissed the case except for the First and Fourth Amendment claims.  An appeal ensued resulting in a reversal by the 8th Circuit, holding that the officer was not entitled to qualified immunity; therefore, Plaintiffs could proceed with their case.  The 8th Circuit opinion was discussed in the February 2021 MMAA newsletter.  The 8th Circuit in reversing concluded:

 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out, other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.)  Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

On remand, the case was settled for $280,000.  The settlement was discussed in the July 5thedition of Missouri Lawyers Weekly.  The lawyer for the Plaintiff’s noted that this award was significantly larger than those in prior suits brought by journalists in other media protest suits.

Comment Ragan:  There have been several cases over the last few years where appellate courts looked at video evidence and then used the video evidence toward the court decisions.  What does this mean?  It has come to mean that whether you are a plaintiff or a defendant what you write in your argument is not as important as the picture painted in the video.  If the video evidence does not support or contradicts the claims that you are making then you need to reconsider your position.  I also expect after the last couple years we will see the court’s applying higher expectations toward the pleadings made by attorneys.  Your political persuasion nor should your advocacy take precedent over your obligations to the court.      

Panhandling/Vagrancy Ordinances Is Ticking Timebomb:

As previously discussed a recent decision by a federal district court for the Eastern District of Missouri, held that the vagrancy/panhandling ordinance of St. Louis County, violated the First Amendment free speech rights of a homeless person and that the vagrancy law was unconstitutional.  This case. highlights the dangers of not keeping ordinances up to date.  You should engage in a regular review of your ordinances to ensure that you are consistent with the expectations of the court.  In Fernandez the court awarded $150,000 to the homeless person, whose rights were violated, plus another $138,000 in attorney fees.  

The plaintiff In this case, stood at the intersection of Lindbergh and Interstate 55 asking for donations.  I have been there and admire the choice of location, since there is usually a long line of vehicles that are stopped, making this a prime place to solicit.  The Court, noted that the Ordinance allowed persons to ask for other types of donations like political contributions; therefore, the Ordinance violated the First Amendment Free Speech rights of the homeless person.  The Ordinance had a free speech and vagrancy component, both of which, in my opinion, are clearly invalid.  Plaintiff alleged that the vagrancy component criminalizes the status of being homeless, poor, and unemployed. As previously stated you should also consider suspending enforcement of ordinances that’s differentiate between types of soliciting, conduct a study, and repeal the ordinance if it violates the free-speech clause of the United States Constitution.  Fernandez v. St Louis County, 4:19-cv-01638-SNLJ, 5/18/2020).

Comment Howard: Months ago, the County was given a heads the ordinance was invalid as discussed in the  NPR article.   It is sad to see the gap between in the expectations of council members and what is allowed under current free speech law.

Under one Council proposal the ordinance would be changed and replaced with an equally unconstitutional ordinance:

“A person would also not be able to solicit a person in a vehicle or block a roadway to solicit, according to a draft of the ordinance.  Trakas included exemptions for people who are protesting or picketing. (My Emphasis)

Of course, this is complete failure to understand that treating persons who are protesters or picketing different from a homeless person soliciting a gift is on its face unconstitutional.  Having to balance these competing interests makes the job of City or County Counselor tough.