 

In the Missouri Court of Appea[s
Eastern District

 

SOUTHERN DIVISION
ClTY OF CAPE GIRARDEAU, ) ED103593
Missouru, )
) Appeal from the Circuit Court
Respondent, ) of Cape Girardeau County
) l3CG-CR01274
V- )
) Honorable Craig D. Brewer
RICHARD KUNTZE, )
)
Appellant. ) Filed: November 8, 2016
lntroduction

Richard Kuntze (Appellant) appeals the judgment of the trial court finding him
guilty of the offense of creating a public nuisance, in violation of an ordinance of the City
of Cape Girardeau (City). Appellant argues that the ordinance is vague and therefore the
City failed to meet its burden of proot`. Appellant also argues the ordinance is
unconstitutional We affirm.

Background

On January 14, 2014, an officer With the Cape Girardeau Police Department

observed a green Jeep With two flat tires parked in the driveway of Appellant’s property.

T he tags on the license plate had expired in Maroh of 2007. The officer left a notice

 

advising that the vehicle had to be currently registered and operable or removed from the
property Within seven days.

On January 22, 2014, the officer returned and found the vehicle in the same
condition. The vehicle Was titled to Appellant. The officer mailed Appellant a citation for
violation of City Ordinance Section 13-52, Which states the following:

Except as provided in other regulations, any inoperable vehicle

or part thereof, located on any property in the city is hereby

declared to be a public nuisance.
The citation stated facts supporting the violation: “Failure to maintain property free of
inoperable vehicles by having a green Jeep With expired license plates at [Appeliant’s
address].”

The parties appeared before the trial court, which heard argument and thereafter
found Appellant guilty. The trial court found that Section 13-51 of the City ordinances
defines “inoperable vehicle” as follows: -

[A]ny vehicle which is not registered or which is improperly

registered within the state, or is not displaying proper license

plates, or is inoperable for more than seventy-two (72) hours
The trial court concluded that because the tags on Appellant’s license plates Were expired,
this meant the plates Were “ilnproper” under the ordinance The trial court also found the
statute was not unconstitutional The trial court sentenced Appellant to a fine of $20() in
accordance With City ordinancesl This appeal foiiows.

Discussion
Appellant raises three points on appeal. First, he argues that the trial court erred in

concluding he violated the nuisance ordinance because the terms of the ordinance are

vague In Point II, Appellant argues this same vagueness renders the ordinance

 

unconstitutional Appellant argues in Point Ill that application of the ordinance vioiates
Appellant’s constitutional right to equal protection under the law. We discuss each in turn.l
Standard of Review

Where, as here, a case is tried on stipulated facts, “the only issue we review on
appeal is whether the trial court reached the proper legal conclusions from the stipulated
facts.” City of Beliefontaine Neighbors v. Scatizzi, 302 S.W.3d 730, 732 (Mo. App. E.D.
2010) (citation omitted). Our review of a trial court’s interpretation of a city ordinance is
denovo. id

§Qini_l

Appeliant argues that the trial court erred in concluding he violated the nuisance
ordinance because the evidence failed to establish such a violation He argues this is
because the meaning of the word “register,” in the definition of “inoperable vehicle” is
unclear. He argues it could be read to mean simply having the vehicle titled in the owner’s
name, and if so, then his vehicle was “registered.” We disagree

Ordinances imposing penalties are to be strictly construed against the municipality
§ Citv of Kansas Citv v. Heather, 273 S.W.3d 592, 595 (Mo. App. W.D. 2009).
However, we presume ordinances are valid. Moynihan v. Gunn, 204 S.W.3d 230, 234
(l\/io. App. E.D. 2006). “Where a provision’s language is clear, courts must give effect to
its plain meaning and refrain from applying rules of construction unless there is some
ambiguity.” I_d.

The applicable definition in Section 13-5] of c‘inoperable vehicle,” is the following:

 

1 We note the City’s argument that Appellant failed to exhaust administrative remedies provided for in other
City ordinances l-Iowever, we do not reach this issue as the ordinances have not been properly made a part
of the record on appeal SB Consumer Contact Co. v. State of Mo.` Del)t. of Revenue, 592 S.W,Zd 781, 785
(Mo. banc 1980) (courts may not take judicial notice of city ordinances).

3

 

[A]ny vehicle which is not registered or which is improperly

registered within the state, or is not displaying proper license

plates, or is inoperable for more than seventy-two (72) hours.
Appellant argues the word “registered” is ambiguous, in that it could mean simply having
titled his vehicle in Missouri. However, Missouri statutes require vehicles to be annually
registered Scction 3()1.020.12 provides that “[e]very owner of a motor vehicle . . . shall
annually file . . . an application for registration[.]” l\/loreover, this is distinct from the
requirement that owners obtain a certificate of title, as made clear in Section 301.190.1:

No certificate of registration of any motor vehicle . . . shall be

issued by the director of revenue unless the applicant therefor

shall make application for and be granted a certificate of

ownership of such motor vehicle[.]
Under these sections, a vehicle cannot be registered in Missouri until the owner applies for
a title. The titlng of the vehicle is not the same as the annual registration

In light of the statutory scheme, the word “registered” in the City ordinance is
unambiguous The ordinance refers to proper registration “within the state.” One need
then only consult Missouri’s Department of Revenue, or Missouri state statutes, to
determine what registration within the state entails.3
Moreover, here, Appellant had applied for a title and had, at least once, registered

the vehicle in Missouri, as evidenced by the Missouri license plates with tags expiring in

2007. We fail to see how Appellant could be unaware of the meaning of registering a

vehicle within Missouri or that his own registration for this vehicle had lapsed, especially

 

2 Ali statutory references are to RSMo. (Supp. 2015), unless otherwise indicated

3 We are not persuaded by Appellant’s argument that the differing definitions of “vehic|e” between City
ordinances and Missouri state statutes require us not to conclude the meaning of “registered” in the ordinance
can be found by looking to Missouri state statutes. The very fact that a different definition of “registered” is
not specified in City ordinances indicates that the City had no intent to vary the meaning of “register" as
defined in Missouri state statutes

 

given the fact that he received a warning seven days prior to the issuance of the citation.
The trial court did not err in finding Appellant’s vehicle was not properly registered under
the plain language of the City ordinances Point denied.
M
Appellant argues the trial court erred in finding him guilty of violating the nuisance
ordinance because the definition of “inoperable vehicle” is unconstitutional in that it is void
for vagueness We disagree
The vagueness doctrine is rooted in constitutional principles of due process U.S.
Const. alnend. V, XIV; Mo. Const. Art. l, §10; see also St. Louis Countv v. Kienzle, 844
S.W.2d 118, 122 (Mo. App. E.D. 1992). “Due process requires that laws provide notice to
the ordinary person of what is prohibited . . . . Ifthe terms or words used in the ordinance
are of common usage and are understandable by persons of ordinary intelligence they
satisfy the constitutional requirement as to definiteness and ceitainty.” Ki_e_LZE, 844
S.W.2d at 122 (citing State ex rel. Cook v. Savnes, 713 S.W.2d 258, 260 (Mo. banc 1986)).
liere, we have already determined that the ordinance was not ambiguous
Appellant’s claim that it is unconstitutional due to vagueness is unfounded4 Point denied.
P.Qintlil
Appellant argues that the nuisance ordinance violates constitutional principles of
equal protection under the law because there is no rational basis to distinguish in the

ordinance between vehicles which have different tags on their license plates We disagree

 

4 To the extent Appe|lant argues that the ordinance is overbroad within the body of his argument because, for
instance, it would find an out-ot`-state vehicle to be a nuisance, we disagree We fail to see how an out-of-
state vehicle that is properly registered in its home state would fall under the categories of either a vehicle
that is “not registered” or a vehicle that is “iinproperly registered within the state.” Thus, we do not see how
the nuisance ordinance would apply to such a vehicle Regardless, Appellant’s vehicle had Missouri license
plates and was titled in Missouri.

 

Appellant does not argue he is a member of a suspect class or that the ordinance
impinges upon a fundamental constitutional right. § Weinschenk v. State, 2013 S.W.3d
201, 210-11 (Mo. banc 2006) (explaining two-step equal protection analysis; first is
determining whether strict scrutiny is required because ordinance implicates suspect class
or fundamental right). Thus, our “review is limited to determining whether the
classification is rationally related to a legitimate state interest.” Etling v. Westport Heating
& Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003).

i-Iere, Appellant argues there is no rational basis in distinguishing between two
vehicles in substantially the same condition, yet with different color tags on the license
plates, as it relates to the status of his property in regards to creation of a nuisance The
trial court found that the City has a legitimate interest in keeping properties free from
inoperable vehicles due to their impact on property values and the beautification of the
City. The trial court also found that applying the ordinance to an unregistered vehicle,
which is therefore illegal to operate, is rationally related to the City’s interest. We agree
Point denied.

Conclusion

The judgment of the trial court is affirmed

 

 

 

- GM ' Jr., dge
Philip M. Hess, C. J., concurs

Lisa P. Page, J., concurs

 

 

