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IN THE CIRCUIT COURT OF SAINT LOUIS COUNTYSTATE OF MISSOURICITY OF MANCHESTER,)MISSOURI))Plaintiff,) Cause No. 19SL-CC03148)Vs.) Division No. 7)DOCTORS JOHN’S INC.,))Defendant,)ORDER AND JUDGEMENTProcedural Posture of the CaseThis matter comes before the Court upon the City of Manchester, Missouri’s request that the Temporary Restraining Order previously entered herein on August 6, 2019 be made permanent. By consent of the parties both the Preliminary and Permanent injunctive hearings are heard simultaneously. In addition the City of Manchester called for hearing at the same time its Motion to amend and to increase the amount of the fine imposed by this Court following the contempt proceedings held on August 16, 2019, and the resulting Court order of August 20, 2019. The matters are called for hearing on September 19, 2019 the parties appear and announce that they are ready to proceed upon the Motions. Thereafter evidence is adduced and the matter is continued for further evidence. On Sunday, September 22, 2019 the Defendant Doctor John’s Inc., filed a motion in the United States District Court for the Eastern District of Missouri to remove this matter to that Court for disposition. On Tuesday, September 24, 2019 the United States District Court remanded this matter back to this Court for continuation of the instant hearing. At this time the City of Manchester made an oral motion, later reduced to writing, for attorney’s fees and costs. Thereafter the case was called on October 15, 2019 for further evidence. The parties appear and further evidence is adduced until the parties announce that they had presented all evidence upon the motions. The matter is submitted to the Court for determination of the motions on October 18, 2019. Throughout these proceedings the original Temporary Restraining Order which was originally granted by consent of the parties has been extended, on most occasions by consent of the parties. Following the Defendant’s Motion for Removal to the Federal Courts, and the remand to the State Court, the Defendant stopped granting consent to the continuation of the TRO’s and objected generally to the continuation of the Temporary Restraining Order. This Court makes the following findings of fact and conclusions of law as required by the provisions of Rule 92.02, and further requests by the Defendant and enters the following orders. After carefully considering the arguments of the parties in their motions and supporting memorandum of law and the relevant case law the Court enters the following judgment: Findings of FactThe following facts where established by the credible and competent, evidence at the motion hearings on the record:Plaintiff, the City of Manchester, Missouri is a fourth class city formed under Chapter79 RSMo., and is located in Saint Louis County State of Missouri.Defendant, Doctor John’s Inc., is a Missouri corporation with its principal place of business in St. Louis County, State of Missouri.Defendant, Doctor John’s Inc., operates a store at 14633 Manchester Road in the City of Manchester, Missouri.The C1 Commercial zoning district of the City of Manchester includes the location of the Defendant’s store at 14633 Manchester Road.On or about January 19, 2019 the City of Manchester received an initial application from Defendant titled Application for Re-Occupancy Permit, for a “retail sales” use at the Manchester store. This initial application was denied by the City because the general category of uses “retail sales”, is not a permitted use in the C1 Commercial Zoning District. Following several informal discussions between the City of Manchester and Doctor John’s Inc., the Defendant filed on or about March 6, 2019 another application for an occupancy permit for the Manchester property proposing to use the premises for sales of “Apparel and Accessories”. The Defendant further represented to the City that the Defendant would not sell novelties in the store, and would not use the word novelty or novelties in any of its advertising. On or about March 29, 2019 and upon the agreement of the Defendant to refrain from all sales of novelties, and further upon the agreement of the Defendant to restrict the items sold at the Manchester store to “apparel and accessories” the City of Manchester issued an occupancy permit to the Defendant.Thereafter, the Defendant filed a request for a business license from the City of Manchester. On May 10, 2019 and pursuant to the Defendant’s request for the business license, agents of the City of Manchester inspected the property at 14633 Manchester road. The property inspection of May 10, 2019 alerted the City to the fact that the Defendant was selling items that it had agreed to refrain from selling and upon which agreement the occupancy permit described above had been issued. In addition the City inspectors noted the presence of printing equipment in the back room of the store. Following this inspection, the City notified the Defendant of the violations of the agreement and ordinances of the City and demanded that the Defendant remove all items that were not “apparel and accessories” and those items which constituted “novelties” from the store. Further the City notified the Defendant that the occupancy permit for the C1 district did not allow for printing operations to be conducted on the property at that locationOn or about May 16, 2019 the City re-inspected the store, and found that all non-apparel and non-accessory items had been removed from the store. The store on this date was displaying for sale only items that the parties agreed were apparel and accessories and was not engaged in any printing in the back room of the store. On or about May 22, 2019 and as a result of the Defendant’s compliance with the ordinances of the City of Manchester and specifically those ordinances and regulations applicable to the C1 district in which the store was located, the City of Manchester issued a business license to Defendant. On or about July of 2019, the City of Manchester again inspected the Defendant’s store on Manchester Road, and found items that it believed were novelties, and also items that it believed were not “apparell and accessories”.Upon multiple inspections by the City of Manchester of the Defendant’s store, in July, August, September, and October of 2019, the city discovered and documented photographically that the Defendant was selling items that exceeded the permitted sale of apparel and accessories, that is the Defendant was selling novelties, and items that were not apparel and accessories as authorized by the zoning regulations and ordinances for a C1 district in the City of Manchester.On or about July 16, 2019 the City notified the Defendant that the store was operating outside of the authorized use for the C1 district, and further gave the Defendant a deadline of July 19, 2019 to remove those items from the store that were not apparel and accessories and also those items that were novelties. On or about July 30, 2019 the City of Manchester filed a Petition for Declaratory Judgment and also sought a Temporary Restraining Order to prevent the Defendant from offering for sale items that exceeded the permitted use at the location of the store within the C1 zoning district of the City of Manchester. On or about August 6, 2019 this Court entered a temporary restraining order.On or about August 6, 2019 the City of Manchester posted the required bond payment into the registry of the Court.On or about August 20, 2019 the City filed a Motion for Contempt alleging that the Defendant was operating the business in Manchester in violation of the Temporary Restraining Order entered by the Court and by consent of the parties on August 20, 2019. Following a hearing upon the motion for Contempt this Court found the Defendant in Contempt of the Temporary Restraining Order and further ordered that the Defendant pay into the registry of the Court $1,500.00 for each day that the Defendant failed to comply with the Courts orders.Melanie Rippitoe is the Director of Planning and Zoning and Economic Development for the City of Manchester.John Coil is the owner of Doctor John’s Inc., and operates several stores throughout the United States under various names depending on their geographic location. David Lisinsky is a registered architect who performed code review and ADA compliance reviews for clients, including Doctor John’s Inc.Conclusions of LawJurisdictionThis is a Court of general jurisdiction and therefore may exercise authority in this case by virtue of §478.070, 527.010 RSMo.(2010) and the Missouri Constitution, Article V, Section 14, as interpreted by the Missouri Supreme Court. See: J.C.W. ex rel. Webb v. Wyuciskalla 272 S.W. 3d 249, 254 (Mo. Banc 2009).As established by the September 23, 2019 Order of the United States District Court for the Eastern District of Missouri, there are no matters involving federal preemption, or otherwise over which the Federal Courts have exclusive jurisdiction. No direct appeal or writ relief from that order has been requested by any party.Venue is properly established in this Court pursuant to §508.010 RSMo. et seq. Zoning and Ordinance provisions.27.The City of Manchester has lawfully enacted Zoning Regulations, which establish Districts including the C1 Commercial District. 28.The Zoning regulations of the City of Manchester are found at chapter 405 of the Ordinances and regulations of that City.29.The purpose of the Zoning Ordinances and Regulations in the City of Manchester is set out in §405.030 as followsThe zoning regulations and districts as herein established have been made, in accordance with a master plan, to promote, in accordance with present and future needs, the safety, order, convenience, prosperity, and general welfare of the citizens of Manchester, Missouri, and to provide for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of access and of traffic and circulation of people and goods, for the appropriate use and occupancy of buildings, for healthful and convenient distribution of population, for protection against overcrowding of land, undue density of population in relation to the community facilities existing or available, or destruction of or encroachment upon historic areas, to encourage good civic design and arrangement to facilitate the creation of a convenient, attractive and harmonious community, and for adequate public utilities, public services and facilities, by regulating and limiting or determining the height and bulk of buildings and structures, the area of yards and other open spaces, and the density of use. They have been made with reasonable consideration, among other things, of the existing use and character of property, the existing land use plan, the character of the district and its peculiar suitability for particular uses, trends of growth or change, and with a view to conserving natural resources and the value of land and buildings and encouraging the most appropriate use of land throughout the City of Manchester, Missouri.§405.03030.Every business within the City of Manchester including the Defendant is required to obtain an occupancy permit, pursuant to §505.040, to protect the health, life and safety of the building and community and also a business license pursuant to §605.030 to allow the City to regulate the business in the building. 31.Section 405.060 of the Ordinances of the City of Manchester contains the definitions for the Zoning chapter. Nowhere within that section or chapter as a whole are the terms, “apparel”, “accessory”, or “novelty” defined. Section 405.060 does define “Accessory Building” and also “accessory use”. 32.Section 405.070 of the Ordinances of the City of Manchester outlines the establishment of zoning districts to include C1 “Commercial District”. 33.Section 405.240 of the Zoning code of the City of Manchester authorizes multiple permitted uses for C1 district businesses. One of the permitted uses authorized for a C1 district business is “Apparel and accessories, excluding used apparel and accessories (which may be allowed subject to the provisions of subsection (c) hereof).” Id at (1) There are thirty-nine permitted uses authorized for the C1 zoning district under the city’s Ordinance and Zoning structure. For any other purpose, not listed in the Ordinance, a business in the C1 district must apply for a special use permit. Id.34.Section 405.240 allows printing businesses within the C1 district but requires a special use permit. No such special use permit was requested by the Defendant, nor granted by the City of Manchester in this matter.35.The City of Manchester has not amended its Ordinances or Zoning regulations during this litigation, nor at any time relevant to this instant matter.36.The Ordinances and the Zoning regulations of the City of Manchester are content neutral and conversely are not content based. Adult oriented business operations are defined in the City’s Zoning Code (see: 405.050, and §606.020, et seq.). The testimony at the hearing established that the City was regulating the type of items that could be sold in the C1 district not the content of any such item. In fact the evidence at hearing demonstrated that the City only sought to restrict Defendant’s operations to those allowed in the C1 district, nothing more.Vagueness37.The Defendant asserts that as applied to it the Ordinance language does not supply sufficient notice to him as to what constitutes prohibited conduct under the Ordinance, and neither does the Ordinance supply law enforcement with sufficient standards for enforcement of the Ordinance’s terms. State v. Young, 695 S.W. 882, 884(Mo. banc. 1985) The City of Manchester argues that the Ordinance language satisfies Due Process, by supplying sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. State v. Shaw, 847 S.W.2d. 768(Mo. 1993). 38.Due Process is satisfied if an ordinance or statute’s “words used bear a meaning commonly understood by persons of ordinary intelligence.” Missourians for Tax Justice Educ. Project v. Holden, 959 S.W. 2d. 100(Mo. Banc. 1997). Courts have long been tasked with applying cannons of [statutory] construction to interpret allegedly ambiguous statutes “in a manner that conforms to the demands of the Constitution”. Id. “When interpreting a statute, the primary goal is to give effect to legislative intent as reflected in the plain language of the [ordinance] or statute.” Morse v. Dir. of Revenue, 353 S.W.3d 643, 645 (Mo. banc 2011) (citing State v. Salazar, 236 S.W.3d 644, 646 (Mo. banc 2007)). “If statutory language is not defined expressly, it is given its plain and ordinary meaning, as typically found in the dictionary.” Morse, 353 S.W.3d at 645 (citing Derousse v. State Farm Mut. Auto. Ins. Co., 298 S.W.3d 891, 895 (Mo. banc 2009)). 39.The City of Manchester argues and the evidence demonstrates that the terms “apparel and accessories” and “novelty” are readily capable of ascertainment and comprehension by a person of ordinary intelligence. These terms as stated above are not defined in the Ordinances at issue in this case. Neither are these terms used or defined elsewhere in the Ordinances of the City. 40.Missouri Courts have not specifically defined the terms apparel, accessories or novelities, however the Missouri Supreme Court in Coach House of Ward Parkway, Inc. v. Ward Parkway Shops, Inc, et al, 471 S.W.2d. 464 (Mo. 1971) considered lease terms that included “apparel” and “woman’s sportswear” and tangentially, accessories which terms were at the center of that breach of lease case. In that case no definition was requested or required because the parties understood the common and ordinary meaning of the terms accessory and apparel.41.In Missouri the law has long provided that where terms in a statute or ordinance are undefined, the Courts must look to the plain and ordinary meaning of the words, which may be derived from a dictionary. Peoples v. Medical Protective Company, W.E. 81715(MO. App. W.D. Mar. 12, 2019), Moynihan v. Gunn, 204 S.W.3d 230(Mo.App. 2006), Missouri Title Loans, Inc. V. City of St. Louis Bd. Of Adjustment, 62 S.W. 3d. 408(Mo. App. 2001), WireCo World Group, Inc. V. Liberty Mutual Fire Insurance Company, 897 F.3d. 987(8th Cir.2018)42.Merrian Webster defines each of the terms at issue herein in the following manner:Accessory; an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else,… i.e. clothing.Apparel; personal attire, clothing of a particular kind…used chiefly in U.S. English to refer to clothing that is being sold in stores.Novelty; a small manufactured article intended mainly for personal or household adornment--usually used in plural-…something (such as a song or food item) that provides often fleeting amusement and is often based on a theme—often used attributively.43.Each of the terms at issue in this case, and as defined in the current dictionary are readily capable of ascertainment and understanding by a person of average intelligence and experience. This conclusion is further strengthened and supported by; 1.) The failure of the Defendant, Doctor John’s Inc., to ever ask the City for clarification of any one of the terms at issue, prior to the hearing, and 2.) by the ability of Doctor John’s to successfully comprehend and fully act upon that commonly understood definition of the term, accessory, apparel and novelties when in the spring of 2019 and again in July of 2019 it directed its employees and agents at the Manchester store to remove the items from the store that were not properly accessories, apparel or where in fact novelties. 44.In fact Doctor John’s consented to the use of the terms without issue when it agreed to be bound by the restrictions of the C1 District in the City of Manchester, and again when it consented to the Temporary Restraining Order. At no time did the evidence at trial indicate that there was confusion or misunderstanding on the part of any party in this matter as to what those terms meant, what the Defendant was to do in order to conform its conduct within the parameters of the Ordinances, and finally what the City was to do in enforcing those Ordinances objectively and without arbitrary and capricious application. 45.The Court has considered carefully the testimony of Melanie Rippitoe, the Director of Planning and Development for the City of Manchester who is primarily responsible for the interpretation and enforcement of the Zoning regulations and Ordinances of the City of Manchester consistently with the stated purpose of the Zoning regulations and Ordinances. 46.Ms. Rippitoe testified under repeated questioning on the topic that she applied the common and ordinary meaning to the disputed terms at issue in this case, in enforcing the ordinances herein and that she looked at the totality of the circumstances to determine the nature and classification of items offered for sale by any business including the Defendant. While she did indicate at one point during her testimony, after repeated questions, that she was uncertain of the meaning of the disputed terms, a review of the entirety of her testimony demonstrates clearly that she, and the defendant understood the common ordinary and plain meaning of the terms at issue, and the same were administered by her office objectively. 47.The agreement between the parties upon which the business license and occupancy permit were issued, by the City to the benefit of the Defendant, was that the Defendant was authorized to sell apparel and accessories like those found at the Walmart of Manchester, and not that the Defendant was authorized to sell any item found at Walmart 48.This Court finds that the Defendant’s argument that any and all items sold at the Manchester store were in fact accessories to lingerie is not credible or competent and is itself illustrative of the Defendant’s gaming approach to the administrative process and to the Courts.49.Taken to its extreme conclusion the Defendant’s argument, repeatedly asserted at trial in an effort to classify everything in the store as an “accessory to lingerie”, would allow for the sale of automobiles as accessories to lingerie at the Manchester store; as cars are often used to transport a couple for diner, and because, as the Defendant’s argument asserts, many couples go out for dinner proximate to engaging in sexual conduct, which conduct could include the use of lingerie. This is precisely the illogical argument advanced by the defendant for example in justifying the sale of razors, magazines, party favors with anatomical caricatures, just to name a very few of the countless items categorized by the defendant as accessories to lingerie. First and Fourteenth Amendment 50.With specific regard to the Defendants First and Fourteenth amendment claims relating to the Ordinance structure herein the evidence at hearing barely touched upon this claim. However, the evidence at hearing did demonstrate that the City was in no way restricting content of items sold, the City is merely enforcing the zoning codes and regulations in place at the time of the application.51.This Court further finds that none of the various applications forwarded to the City by the Defendant applied pursuant to § §606.020, et seq of the City of Manchester’s Ordinances which provisions apply to adult oriented businesses. None of those Ordinances are challenged by any party in the instant action. This Court finds that there is no facial nor applied constitutional infirmity to the provisions of Chapter 405, or 505 of the Ordinances of the City of Manchester that violates either the First or Fourteenth amendments of the United States Constitution. This Court notes that the Defendant’s pleadings do not include any reference to the parallel provisions of the Missouri Constitution, and further seeks relief pursuant to §42 U.S.C. 1983, and 1988 and so those State constitutional claims are deemed abandoned.52.This Court finds that the conduct sought to be regulated herein by the Zoning and Ordinance regulations of the City of Manchester do not constitute expression, but rather Commercial transactions and at a very long stretch of logic in this case Commercial speech-i.e. no advertising of novelties by the Defendant. Had the Defendant wished to sell novelties he could have made an application for a license in an area of the City of Manchester that was zoned for such a use. This court notes that the simple sale of sexually oriented items such as those offered for sale at Doctor John’s has been held not to constitute expression protected by the First Amendment of the United States Constitution. See; Adam and Eve Jonesboro LLC. Vs. Perrin et.al., 933 F.3d. 951(8th Cir. 2019). 53.Defendant, in its First Amendment claim, fails to articulate in what way the City of Manchester violated its rights as guaranteed by that provision of the United States Constitution. 54.The Defendant failed to sustain its burden of demonstrating what particular speech was being infringed, and that such speech was expressive in nature, and thereby protected speech. Clark v. Committee for Creative Non-Violence, 468 U.S. 288, 293(l984).55.The Defendant has failed to sustain its burden to prove that Defendant did not knowingly and voluntarily waive its rights when it agreed with the City of Manchester to not use Novelty in promotions nor to sell Novelties in the Manchester store. 56.The Defendant failed to sustain its burden of proving that the City of Manchester has treated it differently than other businesses against which the City had enforced its Zoning and Ordinance regulations in violation of the Fourteenth Amendment of the United States Constitution. It is unclear from the pleadings if Doctor John’s assertions are pursuant to the Equal Protection or the Due Process provisions of the Fourteenth Amendment of the United States Constitution.57.This Court finds that the Defendant did not sustain its burden of demonstrating that the City treated Doctor John’s any differently than any other business license or occupancy license applicant similarly situated-that is seeking a license to sell apparel and accessories in the C1 business district of the City. See; In re Kemp, 894 F.3d 900(8th Cir. 2018)58.If the Defendant’s claim is that the City treated Doctor John’s differently than Walmart this court notes that “it is well established that dissimilar treatment of dissimilarly situated persons does not violate equal protection.” See; Klinger v. Dep’t of Corrections, 31 F.3d.727(8th Cir. 1994). In addition, the Defendant has failed to sustain its burden of demonstrating that the Ordinance and Zoning regulations enforced against it are designed not to achieve the stated purpose as set out in §405.030 but rather to harm a politically unpopular group, of which it is a member. See; Holmberg v. City of Ramsey, 12 F.3d. 140 (8th Cir. 1993),Other Motions59.This Court finds that there is no basis whatsoever upon the record to grant the Defendant’s Motion for Damages as the evidence clearly demonstrates that the Defendant failed and continues to fail to abide by the orders of this court and as such did not experience any interruption in its business operations as a result of the orders herein. The record herein is void of any evidence whatsoever, of any damages sustained by the Defendant. In fact the record clearly shows that converse that is that Doctor John’s Inc., has benefited financially from its repeated and continuing violations of the Ordinances and Zoning regulations of the City of Manchester, and further from its contemptuous violations of this court’s orders. 60.In addition the Defendant’s Motion for a jury trial on the Plaintiff’s motion for contempt was filed after the Plaintiff’s motion for contempt had already been determined and was therefore filed out of time and became moot. 61.This court finds that the Defendant, Doctor John’s Inc., remained in contempt of the court’s order of August 6, 2019 and also the courts order of August 20, 2019 at the time of the hearing on the Permanent and Preliminary Injunction. While John Coil testified that he had no knowledge of the Temporary Restraining Order issued by this court, and further had never seen the Order, this testimony was patently not credible. 62.This court has seriously considered the request of the City of Manchester to increase the amount of the daily fine previously imposed against the Defendant, designed to bring the Defendant into compliance with the court’s orders, however, the record does not support the grant of this request. The balance currently assessed against the Defendant is approximately One Hundred Fifty Seven Thousand, Five Hundred Dollars ($157,500.00) to date, and if this amount of fine is not sufficient to command compliance than it is doubtful that any amount will curtail the Defendant’s ongoing and purposeful contempt.63.This court notes that although the Defendant filed a Motion for Summary Judgment herein, the same was never perfected nor called for hearing, nor brought to the court’s attention. Therefore the same is deemed abandoned.Orders64.The Plaintiff’s request for a Permanent Injunction to prevent Doctor John’s Inc., from violating the Ordinances and Zoning regulations of the City of Manchester, Missouri including those relating specifically to the C1 zoning district sales and permitted uses is GRANTED, and therefore the Temporary Injunction previously ordered herein is made permanent, and65.The Plaintiff City of Manchester’s Motion to Modify the amount of the fine imposed by this Court, concurrently with the Contempt Order and Judgement of August 20, 2019 in the amount of $1,500.00 per day shall not be amended nor increased, and therefore the request of the Plaintiff City of Manchester to increase the fine for each day that Doctor John’s fails to comply with the Injunction is DENIED, and66.The bond previously posted by the City of Manchester shall remain with the registry of the Court pending requests for payout by the parties, and further proceedings herein, and67.The Defendant Doctor John’s remains in contempt of this Court’s order of August 6, 2019 and August 20, 2019 and as of the date of this Permanent Injunction is ordered to pay into the registry of the Court $157,500.00 such fine shall continue to accrue until such time as Doctor John’s complies with the orders of this Court.68.The Defendant’s Motion for Summary Judgment is DENIED as moot and otherwise abandoned by the Defendant, and69.The Defendant’s Motion for Damages is DENIED, 70.The Plaintiff’s Motion for Sanctions is DENIED SO ORDERED;_____________________________Mary Elizabeth Ott MBE 35302Judge, Division 07 Date: ................
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