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HomeMy WebLinkAboutagenda.2020-06-05.PACKET_-RESCHEDULED-_.pdfCITY of CAPE GIRARDEAU RESCHEDULED Liquor License Review Board Friday, June 5, 2020 Council Chambers City Hall 401 Independence Street Cape Girardeau, MO 1:30 p.m. Abiding by the recommendations made by the Missouri Department of Health and Senior Services Director, individuals should maintain six feet (6') of space between one another. The number of observers in the meeting space may be limited. AGENDA 1. Call to Order 2. Introduction and Opening Comments 3. Approval of the January 3, 2020, Meeting Minutes 4. Appeal Review: Revocation of Liquor License held by Ricky Lynn Werner, d/b/a River Valley Banquet Center, LLC, located at 631 South Sprigg Street, Cape Girardeau, Missouri, License No. 2799, for Retail Liquor by the Drink and Sunday sales a. Applicant Comment b. City Staff Comment c. Public Comment if requested by the Board d. Board review, discussion, and possible action 5. Adjourn The Liquor License Review Board of the City of Cape Girardeau, Missouri, may vote to hold a closed session to discuss issues listed in RSMo. Section 610.021, including but not limited to: legal actions, causes of legal action or litigation, or confidential or privileged communications with its attorneys. A Meeting Notice had been posted for May 18, 2020 Meeting. A continuance was granted upon the request of Ricky Lynn Werner's attorney. A Meeting Notice had been posted for April 6, 2020 Meeting. A continuance was granted upon the request of Ricky Lynn Werner's attorney. A Meeting Notice had been posted for April 1, 2020 Meeting. A continuance was issued in response to Social Distancing Order issued by Missouri Department of Health and Senior Services Director regarding COVID-19. A Meeting Notice had been posted for March 16, 2020 Meeting. A continuance was granted upon the request of Ricky Lynn Werner's attorney. A Meeting Notice had been posted for March 6, 2020 Meeting. Rescheduled due to scheduling conflict. CITY (-)/CAPE GIRARDEAU Liquor License Review Board January 3, 2020 Osage Centre — Room 1A 1625 N Kingshighway Cape Girardeau, MO 63701 Board Present: Brandon Cooper, Chief Review Officer Dan Grimm James Newman City Staff Present: Bruce Taylor, Deputy City Clerk Greg Young, Assistant City Attorney Cpl. Richard Couch, Police Department Others Present: Jamaal Carter, Derick Williams, Quinten Gaither ('all to (briar Chief Review Officer Brandon Cooper called the meeting to order at 10:00 a.m., stated the purpose of the meeting, introduced the board members present, and explained the rules of procedure for addressing the Board. A Motion was made by James Newman, Seconded by Dan Grimm, to approve the July 22, 2019, Liquor License Review Board meeting minutes. Motion passed. 3-0. Ayes: Cooper, Grimm and Newman. Items for Review Review of appeal of Suspension of Retail Liquor By The Drink Liquor License held by Jamaal Carter, d/b/a The Barnyard, located at 731 Broadway, Cape Girardeau, Missouri Chief Review Officer Brandon Cooper called for Applicant Comment. Derrick Williams representing Jamaal Carter appeared. Mr. Williams spoke of the citations received by the Barnyard and that those citations were for nuisance sounds. He went on to describe the location and the surroundings businesses including another bar next door. He stated that he felt the suspension was premature as the allegations were not yet determined to be true by the Court. Mr. Cooper asked if any measures have been taken to dampen the sound. Mr. Williams responded that sound dampening devices were installed along the walls right after Christmas. Chief Review Officer Brandon Cooper called for Staff Comment. Corporal Richard Couch appeared. He gave a chronology of events that brought about the recommendation for the suspension. The incident reports are included in the agenda Liquor License Review Board 1 January 3, 2020 CITY AGAPE GIRARDEAU packet. Mr. Copper asked and received confirmation from Corporal Couch that the reports in December were two separate events and Mr. Carter was contacted about each. Mr. Grimm asked about the excessive sound. Couch said the complaints were received from neighboring residents. The neighboring bar built offices and bathrooms toward the back of the building that dampen the sound toward the residential area and this has been suggested to Mr. Carter. Video was played that was provided by residential property owner Mr. Gaither. Chief Review Officer Brandon Cooper allowed appearance by the public. Quentin Gaither is the owner of the residential apartment building located behind the business. He explained the various complaints that he and his wife had received from tenants. These included the loud noise during the night, customers parking and gathering in the apartment's parking spaces, and threaten behavior toward them from customers and staff. Mr. Gaither went on to describe several attempts to discuss his and his tenants' concerns without resolution. Jamaal Carter asked if he could address the Board. Chief Review Officer Brandon Cooper allowed it. Mr. Carter said that the event shown on the video was a fundraiser event with a live artist and that he had talked to Mr. Gaither about using the backdoor for the artist's entry and exit. Fans did gather and were asked to disperse. He added that he used to hire Taskforce Security for events and such, but they will no longer work for him because of possible shooting being reported which did not occur. He said that three inches of insulation and sound/fire board have been added to the back walls and will be adding two layers of two- inch liquid filled insulation. The Board reviewed and discussed the information provided and the comments presented. Following discussion, Brandon Cooper made a Motion, Seconded by Dan Grimm, to amend the City Manager's to Suspension of Retail Liquor By The Drink Liquor License held by Jamaal Carter, d/b/a The Barnyard, located at 731 Broadway, Cape Girardeau, Missouri, by reducing the suspension to five days. The motion passed 3-0. Ayes: Cooper, Grimm and Newman. Meeting Adjournment A Motion was made by Brandon Cooper, Seconded by Dan Grimm, to adjourn. Motion passed. 3-0. Ayes: Cooper, Grimm, and Newman. There being no further business, the meeting ended at 10:40 a.m. Minutes taken by: Bruce Taylor Deputy City Clerk Liquor License Review Board 2 January 3, 2020 RONALD GARMS Attorney at Law P. O. Box 795 • Cape Girardeau, MO 63702 • 314.315.3131 • r.garms@garmslaw.com March 20, 2020 Mr. Brandon Cooper Mr. James Newman City of Cape Girardeau 401 Independence Street Cape Girardeau, MO 63701 RE: NOTICE - Ordinance 13-31 et al. — Unconstitutional and Unenforceable Gentlemen: RVBC Liquor License Revocation I. Background Information Including Former Federal Court Lawsuit At this time, let me clarify that I represent only Ricky Werner and the River Valley Banquet Center in the action back in January of the City Manager attempting to revoke their liquor license yet again. This continued harassment and string of defamatory statements issued to the media stating flagrantly illegal intent and action by the CGPD and city officials has reached its end. This may be a small town, but these repeated constitutional civil rights violations are indeed serious and worthy of widespread attention. Other than this case, I have retired and in the process of relocating to a substantial residence I inherited Florida. Consequently, I shall only represent this client through the Liquor License Review Board proceeding. After that, I have put them in contact with an excellent trial lawyer who I believe will be joined by several very accomplished civil rights attorneys either independently or working through the American Civil Liberties Union (ACLU) or other organizations with whom they are frequently involved. They may include some of the attorneys from the Clary case in which the individual police officer and the City jointly were forced to pay $120,000 for the attorney's services on behalf of Mr. Clary. Of course, I shall be available to work on the case further in Florida and can return for hearings or trials, to the extent requested. I wrote you on March 12, 2020, explaining some of the common legal errors which an untrained, lay person or an unprepared (or unskilled) city attorney would likely make in dealing with the ordinance relied on by the City Manager in this case. Before presenting further legal authority on the salient issues addressed in that letter, however, permit me to give you another example of an unconstitutional ordinance currently being enforced by the City of Cape Girardeau. It is my hope that you can better understand the bases of Mr. Werner's complaints by comparing the two ordinances. It should help you put the improper handling of my client's matters into perspective. And, perhaps it can help you understand why the City and several employees and managers may have now worn out their welcome in federal court and are now ripe targets for punitive damages in addition to the $200,000 the court has previously made them pay in attorney fees alone. These have not been well publicized matters, but may become so soon as the their details are revisited. You might want to do the math and calculate what only a few more cases like Cary will do to the City's budget and the catastrophic effect 2 class actions would have. In February 2016, the U.S. District Court announced its decision in the case of Clary v. (Officer) Matthew Peters and the City of Cqpe Girardeau, 165 F.Supp. 808. The Court held that an ordinance enacted by the Cape City Council and enforced by Officer Peters violated the civil rights protections of the First and Fourteenth Amendments of the U.S. Constitution. It struck down the ordinance by enjoining its further enforcement, ordered the individual police officer and the City of Cape Girardeau jointly to pay thousands of dollars in damages to Mr. Clary, and further ordered Officer Peters and the City jointly to pay Mr. Clary's attorney's fees in the amount of approximately $120,000 (which came on the heels of having to pay $60,000 in fees in the Snider v. Police Officer Peters and the City of Cpe Girardeau case). That case was brought pursuant to 2 federal statues: 42 U.S.C. § 1983 and 42 U.S.C. § 1988. The first of these statutes establishes personal liability for any person acting under color of law or employed by a governmental division whenever such a person attempts or succeeds in enforcing any state or federal statute or municipal ordinance which violates the civil rights guaranteed by the U.S. Constitution. Without belaboring the facts of the Clary case, it involved an ordinance enacted by the City Council of Cape Girardeau which the Court found violated Mr. Clary's First Amendment rights of free speech and his Fourteenth Amendment guarantee of Due Process of law by being vague. In writing her lengthy opinion, Judge Carol Jackson stated in great detail the legal precedents and factual findings involved in her decision. Basically, she wrote a roadmap for Cape Girardeau to follow in order to bring its Ordinances into compliance with at least those constitutional rights which were involved in the case before her. II. Cape Girardeau Code of Ordinances 13-31 Also Unconstitutional The City's response to Judge Jackson's decision was apparently to ignore it. While some city ordinances are troublesome for reasons not addressed in Clary, several others flagrantly violate the instructions laid out in detail by the federal court to clear up at least the ones with the same issues as in Claw. The City has had 4 years since Judge Jackson's ruling to amend or delete the ordinances with the same problems as addressed in Clary. Instead, the City and its managers and staff have done nothing. One would have expected the City Manager to have provided strong leadership on this task, or at the very least, the City Attorney. As iust one example of an ordinance known to be unconstitutional if one has even skimmed Judge Jackson's opinion which overflows with controlling U.S. Supreme Court 2 precedent, is Code of City Ordinances of Cape Girardeau 13-31. That ordinance defines an actionable nuisance as: (1) Any act done or committed or suffered to be done or committed by any person, or any substance or thing kept, maintained, placed or found in or upon any public or private place within this city which is injurious, dangerous, annoying, unsafe or offensive to the public. (2) Any pursuit followed or act done or omission failed to be done by any person which is injurious, dangerous, annoying, unsafe or offensive to the public. (3) Any building, bridge or other structure which is unsafe, dangerous, injurious, unhealthy, offensive or annoying to the public. (4) Any slaughterhouse, stockyard or stable, cattleyard, hog, sheep or cow pen, which is offensive, injurious, obnoxious, unsafe or annoying to the public. (5) Any pond or pool of stagnant water or any foul or dirty water or liquid discharged through any drainpipe or spout or thrown into or upon the street, alley, thoroughfare or lot which is injurious, dangerous, offensive, unhealthy or unsafe to the public. (6) Any obstruction caused or permitted on any street, sidewalk, public or private alley, which is injurious, dangerous, offensive, inconvenient, unsafe or unhealthy to the public. (7) Any stone, dirt, filth, slops, vegetable matter, animal matter or other articles thrown or placed in or upon any street, alley, sidewalk or other public place which is injurious, dangerous, obnoxious, unsafe or offensive to the public. (8) The placing or storage of any green or salted hides which cause an odor, which is injurious, dangerous, obnoxious, offensive, unhealthy or unsafe to the public. (9) Any animal or vegetable matter, or other substance liable to become putrid, offensive or unhealthy, which is injurious, dangerous, unhealthy, unsafe and offensive to the public. (10) Any cellar, vault, private drain, pool, privy, sewer, sink or container which may be sufficiently tightly closed to cause suffocation, which is injurious, dangerous, unsafe or offensive to the public health. 3 (11) Any tenement, boardinghouse or lodging house in the city leased, let, rented or occupied by any person for dwelling which is not sufficiently lighted, ventilated, heated or provided with water or kept in a clean and sanitary condition, which is dangerous, injurious, obnoxious, offensive or unsafe to the public. (12) Any house or building or tank within the city used for the special or exclusive storage of powders or dynamite, with a glycerine, coal oil or other explosive substance, detrimental to the public health, or endangering human life, or any house, building or store, wherein small quantities of such explosives are kept, exposed or insecure, or kept in any manner so as to endanger the public. (13) A radio, television set or musical instrument or device operated in such manner or at such hours which are injurious, inconvenient, obnoxious, offensive or annoying to the public or persons living or doing business nearby. (14) Any growth of weeds, grass, or poisonous or harmful vegetation to a greater height than ten (10) inches on the average within two hundred (200) feet of any building or one hundred (100) feet of any improved street, or any accumulation of dead weeds, grass or brush, within two hundred (200) feet of any building or one hundred (100) feet of any improved street. (15) Any swimming pool which is not surrounded by a fence or wall not less than four (4) feet in height, having no openings or holes larger than four (4) inches, in any dimension except for doors and gates, such doors and gates to be latched or closed, and locked when the swimming pool is not in use and such doors and gates to be outfitted with handles, latches, or locks of such a nature so as to thwart any efforts by an infant or small child to open such doors or gates. For the purpose of this section, a swimming pool shall be defined as an artificial receptacle containing a body of water used or intended to be used for public, semipublic or private swimming. (16) Any unwanted or discarded waste materials in a solid or semisolid state, including but not limited to garbage, ashes, street refuse, rubbish, dead animals, animal and agricultural wastes, yard wastes, discarded appliances, industrial wastes and demolition and construction wastes, or items kept, placed or stored outside of a building, which are not being used as designed and which pose a threat to the health, safety or welfare of the public, or any items that have deteriorated to such an extent that they are incapable of being used for their intended purpose, or items not kept in an orderly, clean, sanitary, weed free condition or which may collect water in an unsanitary manner such that they pose a threat to the health, safety or welfare of the public. 4 In her Clary opinion, Judge Jackson did an excellent job identifying and explaining many of the major controlling decisions of the U.S. Supreme Court and the U.S. Court of Appeals, Eight Circuit which invalidate Cape's Ordinance 13-31. The legal basis clearest and likely best understood by laymen such as City Manager Meyer, Assistant City Manager Mehner, Police Chief Blair, Lt. Scott and others in city management which also invalidate Cape Ordinance 13-31 is the Due Process clause of the Fourteenth Amendment. Under the controlling federal cases cited by Judge Jackson, [which obviously preempt Cape Girardeau's low-level ordinances [see, Ord. 1-9(2)], the above ordinance is unconstitutionally vague which inherently a violation of due process. Focusing just on the highlighted terms in Ordinance 13-31 as set out above, the Ordinance meets all the definitions of an unconstitutionally vague ordinance set out by the U.S. Supreme Court. [There are significant legal problems created by the use of many of the other terms not highlighted, but I shall not belabor this communication with a discussion of them also]. Essentially, Ordinance 13-31 is a text book example of a completely poisonous ordinance, yet the City, its managers, and especially its city attorneys either are not familiar with even basic constitutional law or they are not familiar with even the basic terms of a very frequently enforced ordinance in Cape. I have an email to me from Police Chief Wes Blair in another of my cases which indicates he is ignorant of both. The highest federal courts have explained the concept of unlawful vagueness quite clearly and quite consistently. This is not an area of law in which there are any conflicts or even subtlety. A fundamental principle in our legal system is that laws with regulate persons or entities must give fair notice of conduct that is forbidden or required. FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317. (2012) (citing Connally v. Gen. Constr. Co., 46 S.Ct. 126 (1926). A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 92 S.Ct. 2294 (1972). A [law] fails to comply with due process if the statute or regulation... fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement. United States v. Williams, 128 S.Ct. 1830 (2008). With regard to Cape's Code of Ordinance 13-31 set out above, every time the term "annoy" or "offensive" is used, it is an independent basis to find the ordinance unconstitutionally vague. Part of the Supreme Court's reasoning is the conduct attempted to be regulated by the use of such terms is always subjective and subject to change with the wind. Plus, it requires a post -activity determination. How can one know in advance of taking an action if he will be in compliance with the ordinance or be in violation of it? It simply lacks the required degree of 5 prior notice. The only way one can find out if he has offended or annoyed "the public" is after he has done so. Who exactly is "the public" - our neighbors, an entire section of town, an entire town? What if some persons find the activity desirable while others find it "offensive" and "annoying? What level of offensiveness or annoyance is sufficient to criminalize conduct? Assuming it is possible to even determine in advance of an activity the identity of potentially affected persons, how are their individual or collective opinions gathered and documented in advance of the activity? If I chose to paint my house yellow must I complete the entire project before I am cited for creating a nuisance because one or more persons in an undefined area prefer blue and is "annoyed" or "offended" by my color choice? If I were to repaint it blue and other persons prefer white, must I comply with their preferences also? Benjamin Moore paints come in approximately 200 different colors to which someone is likely offended and annoyed by all. There was recently an article on a major website that owners of property who are vegetarian object to an adjoining neighbor's bar-b-ques. Does one other property owner constitute the public? At what level of distaste or discomfort is it proper to involve government enforcement agents? How would one know the sensitivities or preferences of the neighborhood until he had engaged in the activity? How could he know in advance which actions he must take or refrain from to be in compliance with the ordinance? The absurdity of Cape Girardeau's nuisance statute is flagrantly apparent to everyone except the City Manager, the Assistant City Manager, the Police Chief, the Nuisance Abatement Officer, and no telling how many others associated with city operations. Courts have found that the meaning of "annoy" is not so apparent that an ordinary person would be on notice of what constitutes a violation. Coates v. City of Cincinnati, 91 S.Ct. 1686 (197t) ... Conduct that annoys some people does not annoy others, and therefore, no standard of conduct is specified at all such that men of common intelligence must necessarily guess at its meaning. Id. [N]on-specific terms such as "annoying" contain an obvious invitation to discriminatory enforcement against those whose conduct is annoying because their ideas, their lifestyle, or their personal appearance is resented by the majority of their fellow citizens. Id. A court cannot uphold an unconstitutional statute merely because the Government promises to use it responsibly. U.S. v. Stevens, 130 S.Ct. 1577 (2010). There is another very serious problem with Ordinance 13-31, and it lies in the intentional deceitful conduct of city officials, including one or more members of the CGPD, involved its enforcement. Subsection (14) of the ordinance clearly and expressly prohibits grass or vegetation more than ten (10) inches tall on the average. Cape Girardeau prints, distributes, and makes a nuisance handbook available online to guide citizens in their attempts to comply with the ordinance — even as defective and unenforceable as it is. In this handbook, it states that the city ordinance prohibits that grass or vegetation not be more than ten (10) inches in height. It deletes the term "on the average." The inclusion of the term "on the average" would 0 likely prevent the prosecutorial success of most of the cases prosecuted. Is it possible that omission is accidental, especially in view of the fact the publication has been reprinted on multiple occasions without correction? Similarly, when the City, acting through a "Nuisance Abatement Officer" or an assistant, informs a property owner of suspected non-compliance, the CGPD personally serves or posts on the affected property a document entitled "Nuisance Abatement Notice." On that notice form, there is also a deceitful recitation of subsection (14). Just as in the Handbook, the City has omitted from the Notice the term "on the average." Why? These misrepresentations by omission have been brought to the attention of at least the City Manager, the Assistant City Manager, the Chief of Police, and several prior members of the City Council. It was also the subject of threatened litigation that resulted in a settlement which included a cash payment to the injured property owner after the City unlawfully entered onto his property and abated vegetation which was in compliance with the full text of the ordinance. Nonetheless, no change has been made to the ordinance, and no change has been made to the unlawful enforcement documents and procedures. The CGPD employs people to specialize in the enforcement of this particular ordinance who knowingly misrepresent its terms in order to make findings of liability thereunder. This is more than disgusting; it is illegal. I shall defer to the City Attorney or his assistant to detail for you the bases of the illegality. That way, there will be no doubt as to the level - and breadth - of knowledge involved. In view of the unconstitutionally vague foundation ordinance, the entire nuisance enforcement scheme is void. Each individual abatement officer as well as the City are subject to a federal court finding of actual and punitive damages each time it is enforced. There are other unlawful ordinances in the Code of Cape Girardeau, but the problems with Ord. 13-31 are probably the ones best understood by laymen. Although the problems with still other ordinances may be more esoteric, they are no less unconstitutional or otherwise defective. Every time the City or individuals associated with the City attempt to enforce them, they subject themselves to personal liability under 42 U.S.C. § 1983 and related federal statutes. Obviously, with the number of the City's ordinances which are in flagrant violation of the U.S. Constitution and several federal and state laws, the decision of City Manager Meyer is entitled to no deference in the case revoking Mr. Werner's liquor license. Mr. Meyer is a layman who has no training in interpreting statutes, and he most likely has not even tried very hard. Oddly enough, the same holds true for City Attorney Cunningham and Assistant City Attorney Young. The lack of legal knowledge and respect of cases in this area of law is dumbfounding. It is a required course in law school, is covered in bar examine preparation courses, and is tested on the Bar exam. The United States District Court has instructed them at least twice on how to bring at least the majority of the City's ordinances into constitutional compliance, and they either do not understand the instructions (although very clear if read carefully), or they are indifferent to the violations of basic civil rights of citizens. If ordering an individual police officer and the City itself to pay jointly over $200,000 for just two violations did not get their attention or motivate them to correct the problems, the next possible step is for the Court to assess substantial punitive damages in the next case brought before it. 7 It is beyond question that city officials are definitely aware of the problem. There is a physical, public record of this knowledge which includes emails, court reporter transcripts, and even YouTube films of City Council meetings. III. Concept of Qualified Immunity Inapplicable Council members, managers, and employees of governmental units often believe that they cannot be held personally liable for the acts they engage in on behalf of the city. And on many occasions, this is true because of the doctrine of sovereign immunity. However, to belief that sovereign immunity is a blanket defense for all personnel and for all actions is incredibly naive or ignorant. I shall spare you a comprehensive discussion of the doctrine as it applies to torts committed by employees and most public policy decisions. Instead, permit me to focus on the extent the doctrine has been abrogated in situations like I have addressed in this and my prior correspondence. If you will read the first paragraph of 42 U.S.C. § 1983 even briefly, you will see that it focuses on those who act in a government capacity, or "under color of law." If you read the second paragraph, you will see that judges are not even immune from the statute. With respect to suing judges under the statute, however, remedies are restricted to injunctive relief. One must look to the decisions of the federal courts to determine who is a "judge." The hearing officers of the Liquor License Review Board clearly do not fall into that partially protected category. There is no requirement that they be licensed attorneys. They are not required to have a legal education, have not had their background and fitness determined by an extensive investigation, and have not had their legal skills tested by means of a Bar examination. In the case of Mr. Neman he is trained and his profession is in an area basically prohibited to be considered by a board sitting in a judicial setting. That is not the time to consider what legislation should instruct or restrict. That is not a setting in which considerations of public policy plays a role. His background is highly useful in helping frame legislation. Once that legislation is passed and in effect, a hearing officer must know several areas of law punctiliously and understand how to resolve acts in several areas when they supersede, preempt, or conflict with others, the rules of procedure required to afford due process, the rules of evidence to confine his decision and build a record of reliable facts (rather than hearsay or evidence introduced without proper foundation), and the rules of statutory interpretation from an ambiguity either by omission, exclusion, or conflict. Hearing officers of the Liquor License Review Board have no authority to compel the attendance of witnesses or to enforce written or oral discovery matters. They do not protect the right of the licensee to confront or cross-examine witnesses, and they do not make decisions on evidentiary or significant procedural matters. They are not subject to the rules and punishments of the Missouri Commission on Retirement, Removal and Discipline of Judges. That disciplinary board does not review their conduct, hold hearings, and make recommendations to the Missouri Supreme Court that a Liquor License Revie Board member be reprimanded, suspended without pay, or removed from office. They are not bound by the Rules of the Supreme Court. They are not even authorized to exist under the U.S. or federal constitution. No state statute or city ordinance can supersede the application of the civil rights statutes. Not only is 91 Mr. Newman not trained in interpreting the lowly ordinance (which includes inserting terms supplied by the courts or as defined by the courts, he is not trained on the role of the subordinate legislation in the hierarchy of judicial enforcement and may well not even recognize the unalterable terms of the superior civil rights legislation. The distinctions between persons who hear liquor license cases who are not protected from monetary liability under 42 U.S.C. § 1983 and official judges who enjoy limited protection go on and on. The Liquor License Review board hearing officers simply lack sufficient indicia of judicial qualifications or activities to fall within the partial protection of the civil rights statutes. They can be held personally liable for actions and decisions which violate those statutes. That liability can include nominal or substantial actual damages, punitive damages, and payment of the attorney's fees for the plaintiff. Admittedly, some conduct of government officials can indeed be sheltered from liability. I shall spare you a detailed explanation of under what circumstances this doctrine does apply because, as Judge Jackson explained so clearly in her Clary decision, it does not apply to the matters such as Mr. Werner now faces or an action attacking Ordinance 13-31. This limited, "qualfied immunity" never applies in cases where "a violation of a federal constitutional or statutory right is established at the time of the violation. Capps v. Olson, 780 F.3d 879 (8th Cir. 2015). "If the right was clearly established then `a reasonable official would have known that [his] actions were unlawful."' Clary, Id at 821 citing Clayborn v. Struebing, 734 F.3d 807, 808 (8th Cir. 2013). IV. Additional Authority and Argument Concerning the Revocation of Mr. Werner's Liquor T .irPnca To the untrained or unprepared, the ordinance in issue no doubt looks like just a few simple words stating basically that if a shooting occurs on a premises holding a liquor license, that license is subject to revocation or suspension. The ordinance in issue, however, is preempted by both state and federal statutes and both state and federal case law. [Cape Girardeau Ord. 1-9(b)]. Furthermore, the ordinance exceeds the legislative authority granted the City under several state statutes, and Mr. Meyer is either totally ignorant of or indifferent to the interpretation given the ordinance by Missouri courts -- most notably by the Missouri Court of Appeals, Eastern District (the appellate court which has jurisdiction over cases arising in Cape Girardeau). I fear from the city's lack of action that either city officials are saying "damn the torpedoes, full steam ahead," in order to unlawfully direct public opinion and engage in unlawful vindictive conduct. To confiscate an issued permit or not to renew a previously issued one upon expiration requires exact compliance with citizen's civil rights. Otherwise, the persons involved who are affiliated with city government can be held personally liable and can also trigger liability for the City. The current line of cases denies insurance payments to reimburse for this type of liability under the circumstances of cases like this one. There is an extensive newspaper and television record of inaccurate, defamatory, but most importantly, statements of flagrant illegal conduct made by Scott Meyer, Wes Blair, Brad Smith, 0 and most recently, by Bob Fox. That tells me either these people are totally ignorant of civil rights and statutory interpretation, or they are blinded by their own prejudices and vindictiveness. First let me summarize some of the salient legal issues and facts identified in my earlier correspondence. Then let me review what U.S. District Court Carol Jackson has told the City of Cape Girardeau in 2 formal federal court decisions (if care to go back a few more years, there are prior incidents involving other judges as well). Then, under Judge Jackson's clear and unequivocal wording, I will explain why another city ordinance is flagrantly unconstitutional and cannot be lawfully enforced but the City issues citations based on it several times per week. I have not discussed this statute in connection with liquor cases before, but I will use it as an example of just how blind, lazy, stupid, or untrained the present city attorneys are, or just how little respect city officials have for their opinions if the attorneys have in fact opined. I use this newly introduced statute as a classic simple example that is so wrong any grade school student who can read Judge Jackson's opinions would know the statute is flagrantly unconstitutional, but apparently bothers no one is the CGPD or City Hall. It is truly incredulous for supposedly qualified government officials to ignore the ordinances problems or, worse yet, for them to lack even the most basic knowledge of civil rights to even recognize the problems. The most salient legal points of my earlier letter are: 1. Chapter 311 RSMo regulates exclusively the manufacture, sale, and consumption of liquor in Missouri, except as allowed under Section 311.220 RSMo. The board of aldermen, city council or other proper authorities of incorporated cities, may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, located within their limits, fix the amount to be charged for such license, subject to the limitations of this law, and provide for the collection thereof, make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, provide for penalties for the violation of such ordinances, where not inconsistent with the provisions of this law. 2. In other words, if any of Cape's liquor -related ordinances varies from the language of the state's statute on liquor matters, it is not authorized or enforceable. It is a nullity. It cannot be any simpler than that. The actions of Mr. Meyer, Mr. Cooper, Mr. Newman, Mr. Young, and Mr. Cunningham, et al. are violating daily the constitutional guarantee of due process against actions by failing or refusing to withdraw the City Manager's fraudulent notice. Each individual, along with the City itself, can be held liable for damages and attorney's fees under 42 USC §§ 1983 and 1988 (recall the Clary and Snider cases cited in my prior letter but distinguish the extent that insurance coverage is available when an intentional act of high government officials, versus a lone police officer with little training and no one like me who has repeatedly publicized the error or such acts). 10 It is not unlikely that damages in this case could include punitive damages because the case is so blatant. Plus, you have now been forewarned twice by me alone, have 2 full time city attorneys, and are intentionally refusing to retract the notice and Order. This is not a simple mistake or oversight. All of those involve are more than deserving of significant financial punishment. Sometimes, an appellate court can sever a troublesome clause in an ordinance if an ambiguity exists in order to satisfy legislative intent. However, no court can ever insert a missing term to bring it into compliance with a superior or conflicting statute. For the reasons I stated in my letter, Cape's liquor ordinance is missing a key adverbial modifier which could seriously be outcome determinative to the present case. 3. The Missouri Supervisor of Liquor is authorized by statute to promulgate regulations that have the same force and effect as statutory provisions. See, § 311.660 RSMo. Relevant to this case, 11 CSR § 70-2.130(12)(a) provides that the State of Missouri has the authority to revoke or suspend a liquor license i£ (12)(A) At no time, under any circumstances, may any licensee or his/her employees immediately fail to prevent or suppress any violent quarrel, disorder, brawl, fight, or other improper or unlawful conduct of any person upon the licensed premises. In striking contrast, Cape Girardeau's Ordinance No. 5-37 requires a liquor licensee to: "(a) Prevent or suppress any violent quarrel, disorder, brawl, fight or other unlawful conduct of any person on the premises." The City's ordinance is missing the key term "immediately." If you will read the case law on interpreting the state's statute which includes a defined time frame, you will see that a licensee cannot just sit back and do nothing if an outbreak is imminent. Under state law, a failure to run background checks on patrons, use metal detectors, or even "pat down" or otherwise search a third party offender is not required. 4. In Egenreither v. Carter, 23 S.W. 3d 641(Mo. App. 2000), the Missouri Court of Appeal, Eastern District, examined in great detail the history of the state requirement set out in 11 CSR § 70-2.130 (12)(a). The Court compared it to similar requirements in other states, and it compared it to other similar Missouri statutes which appear to be strict liability/negligence per se ordinances but who do not share the same underlying public policy or the same legislative intent as the one dealing with liquor. In unequivocal language comprehensible by every member of the CGPD and other city departments, the Court stated: "VIOLATION OF THE LIQUOR ORDINANCE THUS REQUIRES SOME SORT OF KNOWLEDGE OR ACQUIESCENCE." 5. In other words, to have its liquor license placed in jeopardy of any kind under the ordinance cited by layman City Manager Scott Meyer, an employee of RVBC had to know in advance that there was to be a shooting at the facility at approximately 1:00 a.m. on January 26, 2020. Or, in the alternative, an employee of RVBC had to affirmatively acquiescence to the shooting. 11 City Manager Scott Meyer does not even allege that facts which would suggest, nevertheless prove, either of those two elements of the offense. The basis for the City Manager's action is legally inadequate, or to borrow a legal term, the City Manager has failed to state a claim upon which the relief requested can be granted. His notice is deficient in form, and the evidence submitted to him which was supplied to Mr. Werner and me certainly has no such facts stated or even implied. In contrast, the CGPD, Mr. Meyer, the members of the Liquor License Review Board, et al., all have access to -- or have actually viewed -- the very clear video surveillance tape of the shooting episode recorded from 13 different cameras. Consequently, these individuals have detailed, accurate, physical evidence of the entire shooting event. There is not one shred of evidence that any employee knew there would be a shooting or they in any way consented to it. The mere suggestion of same would be ludicrous. For the City Manager and the City to continue to pursue this case against my client under these circumstances is nothing but evil, illegal, vindictive prosecution. If the city attorneys will do a little research, they can give you an estimate of the price of just what price could be involved for the individuals and the City This continued prosecution raises more substantive and procedural statutory and judicial issues than I can warrant specifying in this communication. The levels of ignorance or bad judgment involved are shocking to every experienced attorney I have shown this case. It cannot be overlooked that there are 2 city attorneys at the disposal of the City Manager, the CGPD, the Liquor License Review Board, etc. etc. 5. If Mr. Werner is harassed and defamed any further by the failure of the City Manager to withdraw his license revocation notice post haste or if any member of city government proceeds in any way or to any degree to enforce that Order, this case is guaranteed to result in prolonged litigation in both the state and federal courts. I trust that the city's 2 full time attorneys have advised you thoroughly about the line of more recent Missouri cases preventing an insurance company from paving out on matters involving intentional conduct. Of course, there has never been coverage available for punitive damages. In view of lust the last 2 adverse cases of a U.S. District Court of which both involve lengthy written opinions, my prior appearances before city officials on the topics, and at a minimum, the most recent written communications from me, a continued attack of my clients will never be determined by a court to be accidental. It is undeniably intentional. I will bet my 38 year career that this present attack on RVBC will indeed prove very costly to individuals associated with the City and the City itself. They are have significant exposure to money damages and judicial discovery and appearance time. The amount of research the city staff will have to perform in order to respond to multiple, complex document requests and interrogatories (all at City's expense; this is not a FOIA situation). 12 I suspect that current government officials and city employees will also take a huge hit as well to their credibility and attractiveness to voters. After you have been warned twice by a federal court and failed to follow what is essentially a roadmap as to how to run the city within the law, I certainly would not be shocked if one of the federal iudges from St. Louis would not access punitive damages. 6. Assuming arguendo that an employee of RVBC had prior knowledge a shooting was to occur in the early morning hours when they were doing the closedown tasks (which of course is a ridiculous assumption), Missouri courts allow at least 3 affirmative defenses for failure to prevent it which prohibit placing a liquor license in Jeopardy. For example, in MacArthur v. Gendron, 312 S.W.2d 146 atl50 (Mo. App. 1958), the Missouri Supreme Court recognized that "considerations of safety, emergency conditions, or impossibility of compliance" (and perhaps others if one looks to the law in additional states), are all valid excuses for noncompliance with a strict liability statute. It takes a miniscule level of logic for anyone not to foresee that would be the courts' decisions. As I also mentioned in my earlier correspondence, if these exceptions were not recognized, then the statute would be "overbroad" and thereby violate the Due Process Clause of both the U.S. and the Missouri constitutions. I have access to an ample record of evidence to prove just how enthusiastic, Mr. Meyer, Chef Wes Blair, Lt. Smith, Mayor Fox and others are now, and have been in the past, to shut my client's businesses down. They have gone to incredible lengths. Most present officials have not been around long enough to remember all the ways one of Chief Blair's predecessors and earlier police officers openly harassed and bragged out harassing Mr. Werner and the patrons of Independence Place. The concept of a gathering place for gays, especially one where they could and did have fun and build friendships was completely intolerable to Chief Boyd and his merry lynch men. Although times have changed in many ways -- with no thanks to the CGPD or city government and management — how the city is being operated today without regard to civil rights and beyond legal authority is absolutely the same. Right now, it is aimed more at Blacks and Black neighborhoods, its just a matter of time before the discriminatory, abusive focus changes — or more likely enlarges. Do you think anyone in city government can explain the statistical disparity between the baseless, endless attacks on my client and the City Manager's flagrant tolerance of wildly high numbers of fights, stabbings, and shootings at other bars and in the downtown bar neighborhood. The same holds true with respect to Rhodes 101 convenience stores on both north Sprigg Street and south Sprigg Street. With the number of incidents these locations have enjoyed, how is it possible that the CGPD and the City Manager Scott Meyers has never moved to even suspend their liquor licenses, nevertheless revoke one. If the individuals involved and the Ci1y if they desire — or perhaps even believe that is would sound public policy — that is not even close to the situation. The City Manager and the Liquor License Review Board are NOT POLICY making entities. They are sitting in a judicial capacity in the present situation. They cannot make laws; they cannot amend laws. They are legally obligated to follow existing law to the extent it complies with state and federal statutes 13 and the state and federal constitutions. Once again, the City only has the authority in the relevant areas to pass ordinances it has authority to pass. If it has unauthorized or conflicting ordinances on its books, that is a problem for the City, not my client. The CGPD, City Manager Meyer, Assistant City Manager Mehner, have all admitted on multiple occasions and in multiple identifiable, city documents — as well as in direct statements to Mr. Werner and to the local media—that they all have intended to deny the civil rights of free speech, free association, and free assembly of patrons of the RVBC. Just as importantly, if not more so, this intentional interference includes the civil rights of the potential patrons of the establishment. Their illegal actions could easily support a class action involving hundreds, if not thousands, of claimants. If professional nationally know civil rights have to get involved in this matter, The CGPD cannot interfere either directly or indirectly with a social gathering because a rapper might sing about guns or violence or disrespect of women. All of those topics are protected speech, and the result will be as in the Clary v. the Cape Girardeau and the Snider v. City of Cape Girardeau case. It may find such conduct offensive, just as Officer Peters found Mr. Clary's statements to him. It may find it just as, or perhaps more so, offensive than Officer Peters found flag burning. The level of offense to the CGPD is not even an issue. It is the infringement on a civil right that is the focus when determining liability. My client has several emails and other documents from Lt. Brad Smith instructing him, as an instrumentality for the department, to prevent such speech in Cape Girardeau. The City attorneys, the City Council members, the members of the Liquor License Review Board, inter alis., all know about Lt. Smith's special requirements of my client to be permitted to operate its business without interference from the CGPD. More shocking, Lt. Smith even made the same and more serious requirements of him in documents submitted to the City Manager and to a reporter for the Southeast Missourian newspaper. I even have them recorded verbatim by an experienced, certified court reporter. (I shall reserve analysis of this outrageous and ignorant conduct under the Equal Protection Clause of the Fourteenth Amendment). Lt. Smith, Corporal Couch, and Assistant City Attorney Young and Assistant City Manager Mehner, were all present at the CGPD own headquarters when my client was instructed to act as an instrumentality of the CGPD to violate the free rights of assembly and association. While at least those present at that meeting were discreet enough to recognize that without the active participation of my client in its scheme, the CGPD or other employees of the City would be flagrantly operating under "color of law" as interpreted in cases based on 42 USC § 19 83. The CGPD and the city officials were plainly aware during that meeting in other statements int client can produce, including some made to local media, of the impropriety of the actions they were demanding of my client. They were simply trying to violate patrons and potential patrons constitutional rights using the backdoor instead of the front door. (Again, I shall reserve analysis of these governmental actions under the Equal Protection Clause of the Fourteenth Amendment). To the extent that City Manager Meyer is refusing to withdraw his revocation notice because he is interpreting the City's ordinance to mean otherwise, he is attempting to enforce a city ordinance which is inconsistent with Chapter 311 RSMo and a nullity. The actions of inter 14 alia., Mr. Meyer, Mr. Cooper, Mr. Newman, Greg Young, and Eric Cunningham, et al. violate constitutionally guaranteed due process against actions based on nullities and each, along with the City itself, can be held liable for damages and attorney's fees under 42 USC §§ 1983 and 1988. It is not unlikely those damages could include punitive damages in a case this blatant and after you have now been forewarned twice, have 2 full time city attorneys, and are intentionally refusing to retract notice and Order. I cannot encourage you strongly enough to read this letter and my letter to you of March 12, 2020. The matters addressed therein are not going to disappear or be ignored. If you do not invest a few minutes now, you could end up living with these matters for 2 to 5 years. Please, be smart. Sincerely, s/ Ronald Garms 15 RONALD GARMS Attorney at Law P. O. Box 795 • Cape Girardeau, MO 63702 • 314.315.3131 • r.garms@garmslaw.com March 12, 2020 Liquor Review Board City of Cape Girardeau Attention: Gayle Conrad P.O. Box 617 401 Independence Street Cape Girardeau, MO 63701 RE: Liquor License Revocation Appeal River Valley Banquet Center 631 South Sprigg Street Gentlemen: I. Introduction The River Valley Banquet Center (RVBC) facility is a 3800 ft2 rectangular building located at 621 South Sprigg Street which is lawfully owned by an LLC controlled by Ricky L. Werner. Since its construction approximately 20 years ago, the facility has been operated regularly as a public event venue for lease by individuals, charitable and political organizations, associations, and businesses except for a brief period approximately 5 years ago when it as closed while the original owners relocated and before Mr. Werner's company purchased it. The building is inspected regularly and all aspects, including its kitchen, comply with all local codes. It was unilaterally assigned to the category of "public hall" by the city for business license purposes, and it also has a restaurant permit. Both permits are current. It has only recently added separate restaurant hours for times when special events are not scheduled. The restaurant operation, however, has had a slow start-up and is enjoying only limited patronage. The typical lessees use the space for wedding receptions, bachelor/bachelorette parties, anniversary parties, birthday parties, graduation parties, charitable and political association or company meetings, and baby showers. When the facility is leased for such traditional functions it operates in a very similar fashion to the Cape Girardeau Convention Center adjacent to the new Drury Hotel, the former Ray's Banquet Center, The Celebrations Downtown facility, the Eagles Lodge, the V.F.W. Hall, the Elks Club, the Arena Building owned by the City of Cape Girardeau, and the banquet areas of the Dalhousie Country Club and the Cape Girardeau Country Club, and ballroom at the local casino. In that regard, any special duties or equipment required of the RVBC would also be required of all the others to afford it equal protection under the law as required by the Fourteenth Amendment of the U.S. Constitution. It cannot be assumed that its clientele will engage in any activities there different from how they would behave elsewhere. There are 2 significant distinctions between the RVBC and all the others mentioned above. First, it is the only venue whose clientele is almost exclusively Black. Two, it is the only venue located in the area of the city known as "the South Side" which is predominantly populated by Blacks. In essence, this is the main gathering facility used by groups of Blacks for social, political, and business events, especially for those held on the "South Side." There is simply no other business of this size and type within a radius of 2 or 3 miles which is regularly utilized by Black groups for such activities. There are several churches with predominantly Black congregations nearby, however, but these are not generally available for as broad of range of events. Few, if any, were built especially as a banquet center or are handicapped accessible. And, many might discourage liquor availability or seek to licensed to sell alcohol. For purposes of scrutiny under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and 42 USC § 1983, these distinctions of typical lessee and location constitute identifiable protected classes. The City of Cape Girardeau issued the most recent liquor by the drink license for the RVBC in July 2020. If not revoked or suspended, it will be effective through June 30, 2021. II. Events of January 26, 2020 The RVBC was leased for a private birthday party by a Black female named Antravia Green residing at 321 Dearmont Circle in Cape Girardeau. She and her male partner, Ron Green, (believed to be her husband) had leased the facility for events on several prior occasions. The CGPD has required the RVBC to contact Lt. Bradley Smith prior to leasing it for an event in order to afford the police department an opportunity to determine whether the lessee (and the band or music provider to be used) had any "red flags" in police records, and if so, Lt. Smith would veto the event. (Discussion of the coerced subversion by the CGPD of the rights of individuals to free speech, free assembly, and free association contained in the First Amendment and freedom from unauthorized search and seizure is reserved). Mr. Werner has a dozen or two copies of emails between himself and Lt. Smith wherein Lt. Smith approved or rejected potential lessees for MR. WERNER's business. Several of these emails deal with Ms. Green wherein Lt. Smith indicates there are no "problems" (whatever that term means in Lt. Smith's vernacular) and that the CGPD had no objections with them holding events at RVBC. Lt. Smith made similar statements to Mr. Werner on the telephone as can be discerned from the email copies. As a term and condition of the Contract for Event executed by the parties, Ron Green was to supply 5 security guards which he did and proceeded to "pat down" those coming in the main entrance to the event. This unusual clearance mandatory pre -leasing clearance procedure stems from a demand expressed to the media and in police and city records that my client should be held to a "higher standard" that expressly required by any ordinance or statute. In taking this approach, the CGPD denied my client equal protection under the laws as required by the Fourteenth Amendment I have personally viewed all the relevant footage from the 13 surveillance cameras mounted inside and outside the RVBC on January 25 and 26, 2020. If the members of the Liquor Review Board have not done likewise, I most strongly urge you to do so. You can see for yourself that many of the statements given to the media by police spokesmen and set out in the incident reports do not match up with the actual video physical evidence. For example, one of the bar's employees 2 who is professionally trained in administering first aid, immediately went into action when the shooting stopped. It is clear on the video that he was attempting to apply a tourniquet to one of the shooting victims when a police officer literally pulled him away from the victim (by the collar it appears), despite the employee identifying his qualifications and attempting to return to administering aid. Then, the police officer simply stood over the victim rendering no aid or even investigating the nature of his injury. This is difficult to believe, but it is clear as day on the video. Another portion of the surveillance video shows a different uniformed policeman giving a glass of water to another of the downed victims. It is elementary emergency response training not to give a potential surgery victim anything to eat or drink. There were 4 policemen at the facility at the time of the shooting, but they were not eyewitnesses to any shooting inside as they were all outside at the time. The police spokesman issued statements indicating that upon hearing the shots, those officers immediately stormed the building and began herding and protecting a large group of patrons trapped inside the building. In contrast, the video actually shows the policemen hesitating for some time before entering and then doing so without their weapons held out in front of them but merely by their sides. I would characterize their style of movement more as "strolling" than rushing. I am not trained in police work so I am not judging which method is the correct one. I am merely pointing out that the police press statements appear out of sync with reality. Thereafter, an additional policeman entered from a side door holding a shotgun or rifle upright against his chest. Other police reports state that there was considerable "chaos" following the shooting with hundreds of patrons falling and others piling on top of them as everyone tried to flee the building. That description is indeed peculiar in that at the time of the shooting the bar staff had already announced it was closing, liquor service had stopped, and all the music had stopped. All of the bar's overhead fluorescent lights were turned on (which was fortunate in that it enhanced the quality of the video). As one attempts to count the number of persons still in the building at the time of the shooting, however, the number is probably closer to 2 dozen than 200. The only patrons I recall seeing on the floor were two obese women likely wearing high heels who stumbled or who were pushed. I do not recall seeing anything that even remotely resembles "piles" of bodies. I can only imagine how adrenaline charged a shooting scene is and how much drama some people enjoy adding to their stories. The claim of piles of bodies, however, exceeds all bounds. Also, the fact that all 4 of the policemen on site at the venue were outside conducting crowd control rather than inside ushering out a large number of patrons out is telling. Mr. Werner can personally add no details of the event except what he observed after -the - fact from the surveillance video and what he learned from talking with his staff. At the time of the shooting, Ricky was returning from a trip to Thailand where he had developed a respiratory infection. In view of the rudimentary early reports of the coronavirus which then appeared to be concentrated in Southeast Asia, he was hospitalized and quarantined in Instanbul, Turkey. Fortunately, Mr. Werner tested negative for the virus, but was nonetheless diagnosed with a severe case of pneumonia which delayed his return to Missouri for approximately 2 more weeks. Regardless, Mr. Werner is willing to stipulate that a shooting occurred within the confines of the River Valley Banquet Center at approximately 1:10 a.m. on January 26, 2020. 3 As they had done in connection with previous episodes at the RVBC, City Manager Meyer and Mayor Fox almost immediately issued highly irregular statements to the media about the shooting. At the time, not all of the police reports had been completed or the surveillance footage examined to the fullest extent. Mayor Fox made a legally frightening statement to the press in response to the shooting: And its probably not [W]erner's fault that shooting occurred... [I]n my mind, with the things that have happened in the past and things that just happened this past weekend, it's a place we do not need open in Cape Girardeau. The lack of logic of that statement and the legal impropriety is flagrant. Dr. Fox may be an excellent dentist, but he obviously is not trained in the law or sensitive to the civil rights of all citizens. Obviously, if any bad act occurs, it would always have been better if the location had not been there or other circumstances involved as it could have been avoided. For example, if the young girl who was shot on her porch a few blocks away last fall had not been at that house then, that shooting would not have occurred there. But, the City has no constitutional right to make the family move or to confiscate the house. The lady who had her throat slashed by her son only a few blocks south on Sprigg from my client's business would be alive today if she had used effective contraception. Within the past few weeks, CGPD officers were involved in a dangerous car chase which included shots being fired towards them from the pickup truck as it approached the Mississippi River Bridge. If that highway hot not been there, there could have been no highspeed chase over it. But, we do not tear out sections of highway or close bridges so no such incident can be repeated. The solution to these events is societal behavioral change or more and better policing and court action. Perhaps the simplest way to have prevented these acts would have been for the courts to have given the perpetrators longer sentences or instituted effective programs to eliminate recidivism as I believe they were all prior offenders. Of course, drugs were most likely involved somehow in most, if not all, of these events, and it is not too difficult to evaluate the success rate the police and courts are having on that topic. Revoking or denying a bar's liquor license just provides a distraction and temporarily pacifies public uproar. When that revocation or rejection, however, is at the expense of legitimate business owners in an already grossly depressed area creating yet another empty building what long, or even short, term solution does that provide. The production and sale of liquor is one of the very few businesses expressly provided for in the U.S. Constitution. A municipal government, especially when it involves attempting to punish the innocent businessman or his customers by infringing on the rights granted them by our constitutions and superior statutes, cannot be tolerated. Citizens have enforceable rights under federal and states constitutions and federal and state statutes regardless of what might be better public policy. Until that policy is proposed as a bill, goes through committee scrutiny, passes 2 houses of the Legislature and survives a veto by the Governor, it is simply a desire. It does not provide a legal basis for action. In making just the outrageous comment cited above, Mayor Fox evidenced a strong desire for an indentified result and then went looking for a crime. Law enforcement and prosecutors are mandated to determine first if a crime has been committed and then it is up to the judicial system to mete out a penalty. 4 This same unlawful mindset has appeared in several prior statements by Chief Wes Blair and City Manager Meyer. Its like a politician or criminal justice official not liking who someone has become engaged to and ordering a tax audit in hopes of preventing the wedding because incarceration is achieved. If each member of the Liquor Review Board does not recognize the egregiousness of such a mindset as demonstrated by the leaders of the City, I can easily provide you with a detailed legal brief on the matter and specific case law. I also have connected Mr. Werner with the legal staff of the most relevant social justice reform groups who can impress the errors in such judgment in a variety of ways and in a variety of forums. This nonsense is going to stop, and it is going to stop soon. If it cannot be solved at the ballot box because of the high number of lazy voters or the fact that the worst abuses only involve a small number of voters who heretofore have been ineffective in voice, it is time to resort to other means to bring about recognizable change. When Title VII could not be passed under the civil rights amendments, it was passed under the Commerce Clause of the Constitution. It is strange how people can rise to action when it affects their pocketbooks. III. Resignation Or. In the Altermative. Recusal of Board Member Newman Unlike many, or perhaps the majority, of the liquor license matters which come before the Liquor License Review Board, this one is not particularly fact -sensitive. There is a bar with a city liquor license, and during the term of the license, a shooting occurred on the premises. This present revocation case involves several issues of local, state, and federal law. It requires an understanding of the hierarchy of validity of the laws of various levels of government. There are conflicting chapters of the Revised Statutes of Missouri which must be reconciled if possible, and there are significant issues of statutory interpretation. In order to even begin to sort out the legal complexities, it is essential that sophisticated legal research be conducted regarding prior interpretations of the statutes involved to determine if any of the terms used have a legal meaning rather than a ordinary usage meaning. It is also essential to determine whether any Missouri courts have inserted by implication any aspects or elements of statutory operation not readily apparent from what might admittedly be very simple wording used in the statute. These are the types of tasks in which only attorneys duly licensed to practice law in Missouri are trained and authorized to perform on behalf of others including cities and especially citizens. Although Mr. Werner does not mean to suggest any personal objection to Mr. Newman, both he and I object strenuously to his professional service on the Liquor License Review Board. He is inter alia. untrained in the substantive areas of law involved, untrained in the judicial rules of evidence, untrained in the procedural rules necessary to guarantee Mr. Werner and the RVBC their due process rights under the Fourteenth Amendment, and untrained in conducting the required legal research of statutes and case law. In short, he is simply professionally unqualified for the position generally and particularly unqualified to hear and determine the present case. Accordingly, we respectfully request Dr. Newman to resign from the Liquor Review Board or, in the alternative to recuse himself from hearing and deciding this revocation matter against Mr. Werner and the River Valley Banquet Center 5 While his background in public policy and administration may be of great use to the City in another capacity, consideration of those matters in which is educated and experienced are exactly the matters which are irrelevant hereto. This Board is setting in a judicial capacity tasked with restoring or confiscating a valuable property right of Mr. Werner and his business. It is not setting in some public policy capacity as to what laws might be desirable or how the ones in play should be applied to achieve a certain policy or administrative goal. To the contrary, it is the legal duty of the Board to identify and determine the application of an assortment of and interaction with a variety of laws which are already in existence at the local, state, and federal levels, which will require the striking of certain unlawful ordinances and city actions which a lay person may be extremely hesitant to do. IV. Ordinance Preemption In order to even begin to understand and correctly decide the most recent action against Mr. Werner by the City Manager, you must be aware of Cape Girardeau Code of Ordinances ("Ordinance") 1-9(b) which states in pertinent part: (b) No provision of this Code shall apply to any circumstances in which such application shall be unlawful under superseding federal or state law. Furthermore, if any section, subsection, sentence clause, phrase, or portion of this Code is now or in the future superseded or preempted by state or federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law. In other words, in the hierarchy of statutory regulation, Cape's city ordinances are all subordinate to the U.S. and Missouri constitutions and all federal and state statutes. City ordinances are the lowest ring on the totem pole. The Cape City Council can draft and submit a proposed ordinance, put it to the requisite number of public readings, and pass it by a majority of the Councilmen, but that does not it make it an enforceable law if it in way conflicts with the federal and state constitutions or a federal or state law. Right now, several of Cape's ordinances are constitutionally invalid, enacted beyond the authority granted the city by the controlling state statute, and/or in conflict with federal or state statutes on the subject. The present action by Mr. Meyer against the RVBC involves several of these defective ordinances. Furthermore, the courts have implied additional terms into what may appear to a layman to be simple ordinances written in plain language. V. Consequences of Attempted Enforcement of Unlawful Ordinances The consequences of enacting such deficient ordinances by Cape Girardeau can be quite severe and some can include personal liability for the city employees and volunteers who were involved in its passage or enforcement. For example, 42 USC § 1983 states in pertinent part: Every person who, under the color of any statute, ordinance, regulation, custom, or useage and any State or Territory of the District of Columbia, subjects or 0 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... Cape Girardeau is not a stranger to cases brought under § 1983. In 2016, the U.S. District Court for the Eastern District Missouri struck down the city's "excess noise statute." The court analyzed it both as a violation of the First Amendment and then also explained why it is invalid under the Due Process Clause of the Fourteenth Amendment for being vague and ambiguous. The case originated when CGPD officer Matthew Peters pulled over a vehicle driven by David Clary. After a heated discussion between the two, Officer Peters issued a citation alleging a violation of § 17-157 of Cape Girardeau Code of Ordinances which classified certain actions to constitute "excessive noise." Mr. Clary sued Officer Peters personally and the City of Cape Girardeau in the U.S. District Court for the Eastern District of Missouri. The Court found that the City's ordinance was unconstitutional, permanently enjoined its enforcement, ordered Officer Peters and the City to pay Mr. Clary thousands of dollars in damages, and further ordered the defendants to pay approximately $120,000 to Mr. Clary's attorneys for their fees in prosecuting and prevailing in the case. Clary v. City of Cqpe Girardeau, 165 F. Supp. 3d 808 (E.D. 2016). With regard to holding the City of Cape Girardeau liable, the Court stated: In Monell v. Department of Social Services , 436 U.S. 658,98 S.Ct. 2018 (1978), the Supreme Court held that a municipality can be liable under § 1983 if an "action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690, 98 S.Ct. 2018. Three years earlier than the Clary debacle, the same police officer, Officer Matthew Peters, and the City of Cape Girardeau were held jointly and severally liable for thousands of dollars in damages and approximately $60,000 in attorney's fees in the case of Snider v. Peters, 928 F. Supp. 2d 1113 (2013). In that case, the same Officer Matthew Peters as in the Clary case, arrested a man in south Cape for burning an American flag. At the time of the arrest the Revised Statutes of Missouri contained a statute prohibiting such conduct. However, the U.S. Supreme Court had ruled statutes which prohibit flag burning are an unconstitutional infringement on an individual's First Amendment right to free speech. For whatever reason, the State of Missouri never removed its statute from is printed and bound statutes. This case did not involve an invalid city ordinance, but rather a state statute. Nonetheless, the individual police officer and the City were held jointly and severally liable for the damages and the attorneys fees. The attorneys fees alone is that case were approximately $60,000. The list goes on and on. Cape Girardeau was a party to a lawsuit in the 1990's which is also involved in this action against RVBC. VI. License Revocation Notice issued by City Manageryer Inadequate and Unlawful 7 In response to the January 26, 2020 shooting at the RVBC, City Manager Scott Meyer issued a Liquor License Revocation Notice to the RVBC dated January 29, 2020. The "Grounds for Action" is stated as: "Licensee did permit or fail to prevent or suppress a violent quarrel, brawl, or fight on the premises." that "Pursuant to Sec. 5-42 of the Cape Girardeau Code the REVOCATION is hereby Ordered." Pursuant to the Revised Statutes of Missouri that notice issued by Mr. Meyer is inadequate and unlawful. The production and sale of alcohol is guaranteed by an amendment to the U.S. Constitution. However, each state has the rights to regulate certain aspects of the business. Unlike some states Missouri has a rather comprehensive legislative scheme of regulation at the state level, but municipalities have very limited rights to participate. All city ordinances regarding liquor are inferior to state laws on the subject. No city ordinance can be inconsistent with the provisions of Chapter 311 RSMo. Although City Manager Scott Meyer may prefer the "short and sweet" method of providing notice of a revocation, that is not within his discretion and yet another example of his ignorance or defiance of state law. If the City had an ordinance which permitted this style (Cape's simply does not define "grounds"), it would be invalid because inconsistent with a state statute. Prior to revocation, the licensee is entitled to a "written description of the specific conduct for which discipline is sought, a citation of the law or rules allegedly violated." § 311.680 RSMo. Mr. Meyers is inadequate and ineffective because it fails to allege the specifics facts alleged in support of each required element of the offense. For future reference, Mr. Meyer and the City Attorney might wish to note that Missouri statutes require a licensee to receive no less than 30 days notice from the date of any warning, probation, revocation or suspension issuing. I will let the City Attorney advise you on the ramifications of inadequate notice under the Missouri statute versus the inferior city ordinance. If his advice is incorrect and you proceed with this nonsense, perhaps he can at least explain what a nullity is. Mr. Werner and the RVBC have not and do not waive the deficiencies in the notices herein the present matter. VII. City Ordinance Lacks an Outcome Determinative Term Required by State Statute & Due Process In addition to the extensive provisions of Chapter 311 RSMo., § 311.360 RSMo the Supervisor of Liquor Control is empowered to enact regulations covering other related topics or giving more clear instruction. Accordingly, 11 CSR 70-2 (12)(A) provides in pertinent part that a licensee must act so as to "immediately fail to prevent or suppress any violent quarrel, disorder, brawl, fight, or other improper or unlawful conduct of any person upon the licensed premises." Peculiarly, the Code of Cape Girardeau has a similar provision which is the "grounds" on which City Manager Meyer predicated his notice of license revocation to my client. However, Cape's Code states that a licensee must "prevent or suppress any violent quarrel, disorder, brawl, fight or other unlawful conduct of any person on the premises." The distinction between the superior state regulation and the city's inferior ordinance is that the key word "immediately" is missing from the City's inferior ordinance. Whether that deletion was intentional or the result 0 of a clerical error is irrelevant. The required term ordinance is still missing from Cape's ordinance relied upon by the City Manager in issuing his notice of license revocation to my clients. City Manager Meyer and the members of the CGPD appear to believe that the defective ordinance as written verbatim without a qualifying adverb can nonetheless be enforced by the City. In other words, it is an ordinance of strict liability from which there is no escape. Only a lay person who surely is just choosing to be illogical could apply the requirement without its qualifying adverb. If there were no time limit on the requirement to prevent a shooting, it could be applied to situation when a shooter got in his car to come to the bar. If it were an absolute requirement, then a bar owner with a substantial investment could lose his entire livelihood if he had blocked the shooter's car in his driveway. If a shooter flew into town, the licensee could lose his investment if he had not canceled his reservation. With the adverb contained in the sensible (and superior in enforcement) state statute, time from of "immediately" operates to punish only those who in fact have an opportunity to prevent a shooting just before it happens and do nothing. Also, if a statute is worded in such a way as to make compliance impossible, it is deemed overbroad within in the meaning of the Due Process Clause of the Fourteenth Amendment. As an absurd example if a city ordinance required cars to be parked on the moon or face a fine or imprisonment, no one could disagree such a ridiculous requirement would be "overbroad." VII. Missouri Courts Have Interpreted the Requirement to Prevent a Shooting to Include Two Implied Terms in Addition to the Express Language The Missouri Court of Appeals for the Eastern District of Missouri is headquartered in St. Louis. Its rulings are binding on the City of Cape Girardeau which lays within its jurisdictional boundary. On very rare occasions a lower decisionmaker can fail to follow the appellate court to which its cases will be assigned, but such a variance requires that a significant change in circumstances exist than existed when the original decision was rendered. Not such event is present in this case. Because of the length of this communication and the level of legal sophistication of the Court's rationale, I shall spare you a lengthy discussion of the line of cases which have interpreted such terms as "permit or fail to prevent" as meaning far, far more than a lay person with no legal education or a lawyer who has failed to do a thorough job of legal research and analysis. First, the courts look for the normal everyday meaning of the term "permit." "The term permit means `to give permission; to authorize; to allow by silent consent." Webster's New Universal Unabridged Dictionary, 1336 (2d ed. 1983). The City did not recite, or even allege, that anyone associated with RVBC remotely gave permission, authorized, or stood silently by in such a fashion as to imply consent to the shootings. Absolutely no evidence of such outrageous conduct exists in the present matter. Again, the Board members are welcome to view the video tape and interview the eye witnesses, but you will find no such conduct. For no other reason than this, this case against RVBC must be dismissed for failure to even state, nevertheless, prove this required element of the ordinance violation. 0 The ordinance relied on by the City is being interpreted to apply to persons associated with the RVBC allegedly failing to act in anticipation of an event or to intervene once it had begun so as to prevent damage. In essence, the City Manager claims that one or more of my client's employees would have to "take a bullet" in order to save the businesses liquor license. The requirement to "take a bullet" may apply to Secret Service officers, but the City of Cape has no authority to establish such an extreme requirement in order to preserve a business' liquor license. There is an entire line of cases establishing that the type of instructive ordinance involved here (equivalent to the theory of negligence per se) excuses those who are not under the immediate control of the actions of a third party. In Egenreither v. Carter, 23 S.W.3d 641 (Mo. App. 2000), the appellate Court which interprets statutes and creates and enforces common law for this jurisdiction stated unequivocally "Violation of the liquor license ordinance thus requires some sort of knowledge or acquiescence." That is the controlling authority above all else commented on in this communication which the Liquor License Review Board must faithfully, and without hesitation or equivocation abide by and follow. VIII. RVBC Entitled to Present Exculpatory Affirmative Defenses Again, to a layman with no legal training or to a lazy attorney, the language of the ordinance in issue likely seems perfectly clear: if a shooting occurred on the premises of a licensed bar, it is subject to losing its liquor license. To such benighted souls, it no doubt comes a surprise that the Missouri courts allow a series of affirmative defense to be established which erase what would otherwise be a violation of a per se ordinance. These include facts showing justification or excuse for the violation. Schlegel v. Knoll, 427 S.W.2d 480 (Mo. 1968). There is absolutely no evidence that any employee of RVBC knew, or even should have known, that an immediate shooting was about to occur in order to take any sort of preventive action. The video is crystal clear that the shooter had not be brandishing a weapon or that whatever fight which in fact took place was in now predictable so as to allow employees sufficient time to prevent or even minimize the shooting. The concepts of allowing or failing to prevent a proscribed activity "always involves knowledge or consent." Old Fortress, Inc v. Mme, 453 S.W.2d 692, 695 (Mo. App. W.D. 1970). "In MacArther v. Gordon, the court observed that considerations of safety, emergency conditions, or impossibility of compliance constitute valid excuses for noncompliance with a statute. 312 S.W.2d at 150. IX. Firearm Regulation is Exclusively Reserved for the State to Perform & Missouri is Presently a Permitless Cara State Article I, Section 23 of the Missouri Constitution provides that the right of every citizen to bear arms, ammunition, and accessories... and the rights shall be unalienable." Furthermore, any restriction on these rights shall be subject to strict scrutiny." Prior to 2017, Missouri had a detailed concealed weapon program that included a background check, a written and practical test, and permit licensure. However, all that changed 10 in 2017 when Missouri scrapped the system and went to a constitutional carry state status where anyone over 19 (with some minor exceptions) can carry a concealed weapon without any sort of permitting or registration. Despite these sweeping changes in all aspects of firearm acquisition and carrying, the most recent amendment to any Cape Girardeau ordinance regarding firearms is 2016. Has the city attorney been asleep, or is the CGPD simply comfortable enforcing outdated laws? In September 2016, SB 656 passed allowing permitless concealed carry by anyone 19 years or older. The bill was vetoed by Governor Nixon in June 2016 after which the Missouri Legislature reconvened for a special session during which both houses voted to override the veto. The permitless carry provision went into effect on January 1, 2017. In what seems to many to be a time for more rather than less regulation of the purchasing registering, and carrying of loaded firearms, Missouri has become one of the least stringent of all the states. On the morning of January 26, 2020, one or more persons had loaded firearms in their possession at the River Valley Banquet Hall. And, one or more of them were discharged. The immediate public response fueled by the CGPD and city officials was to condemn RVBC for not having prevented those guns from being on the premises. The blame, however, belongs with the state Legislature. I shall reserve comment on the legality of inspecting every patron that evening, but I remind you that the lessee of the Center that night agreed to provide 5 security persons and the video footage clearly shows this staff "patting down" the persons entering the building. Not being present, I cannot say that human error could not have been involved in not discovering the ones which ended up being discharged. Regardless if they had been detected or not prior to the shooting, the persons who used the firearms later in the evening or early morning were not required to have a permit to carry them in a concealed fashion or even to open carry them provided they did not brandish them in a threatening manner. While Cape Girardeau might wish to see firearms banned, no doubt especially those that are concealed, it has no legislative authority to override the Missouri Legislature or to even have ordinances compatible with state statutes. Cities in Missouri must keep their hands off gun regulation. Section 21.750 of the Revised Statutes of Missouri provides; "The general assembly hereby occupies and preempts the entire field of legislation touching in any way firearms, components, ammunition and supplies to the complete exclusion of any order, ordinance or regulation by any political subdivision of this state." This preemption in favor of state regulation to the express exclusion of municipal regulation or involvement could not be any clearer. Without being able to determine which firearms present at the RVBC on the night in issue were possibly stolen which is almost impossible now since gun registration is no longer required in Missouri or knowing which of the persons who might have been felons as we do not brand felons in Missouri as the Nazis did to certain groups during World War II, how is it logically possible to blame Ricky Werner or the RVBC for the guns being present on the premises. It cannot be overlooked that none of the firearms or their injurious use is any way tied to liquor 11 sales. The police have no evidence that any of the shooters purchased even a single drink at the bar that night, and there is no video evidence of the shooters drinking or purchasing liquor. While public outrage is understandable and perhaps even to be encouraged for shootings in a banquet center, the problem does not originate and does not fall on the shoulders of the bar owner or the relevant liquor license. This situation is a societal problem which has even been augmented by the Missouri Legislature allowing more people to carry concealed weapons by right. There were 4 CGPD officers on the premises that evening. They had been both inside and outside the building over a period of time. Obviously, it was not terribly predictable that a shooting was going to occur or one or more of the police officers present would surely have taken some sort of preventative action. At a minimum, some of them would have remained positioned inside the building until all the patrons had exited. If professional law enforcement agencies cannot detect an impending shooting or take immediate steps to prevent a shooting, how is it possible for service staff employed by the RVBC? The answer is it is not. X. Unrelated and Unsubstantiated Allegations of Additional Events Although in no way related to the incident on January 26, 2020, repeated reference has been made in the press and in police reports to a gun fight which occurred in the vicinity of my client's property in April 2019. Apparently, our leaders are ignorant of the doctrines of collateral estoppel and res judicata and in the criminal sense, double jeopardy. That shooting was reported to have involved 3 guns and approximately 50 casings, but other than occurring in the same high crime neighborhood that the residents and the Cape Girardeau Police Department are unable to control, that prior event had nothing to do with the activities of my client. Nonetheless, in a baseless attack on my client, the City Manager tried once again to close my client's business by refusing to renew its liquor license when it was up for renewal. In conspiracy with the CGPD, both the City Manager and Chief of Police Wes Blair made grossly false statements defamatory to Mr. Werner personally and to the banquet center's reputation. The true site where that episode originated and how it unfolded onto the RVBC and adjoining properties were repeatedly misrepresented in various statements and to the press. The CGPD hand-picked the police reports submitted to your Board, deleting those reports which did not line up exactly with the narrative Chief Blair created by his grossly premature statements and the equally false ones issued by City Manager Meyer. The first policeman to radio a report of gunfire in the vicinity of my client's business falsely indicated that my client's business was in fact the site of the bullet exchange. That first reporting officer was out of his car almost 2 blocks away when he heard the first shots with his vision of the RVBC completely blocked by a large brick church. There is no way he could have learned the exact location of the shooting from his vantage point. Instead, he made a false assumption based on prejudice against my client's business. Thereafter, the police dispatcher relayed this incorrect information to every other unit who responded (and there were more than a dozen) thereby perpetuating the falsehood and prejudicing their understanding of the event long before the other officers ever arrived in the neighborhood. 12 An eyewitness who lived in the apartment building next door to the banquet center looked out his westly facing window almost immediately after he heard the first shot because he was sitting right next to the window. He saw the first shots being exchanged in the parking lot of the church behind the RCBC. Almost directly in line with the church lot and more than a half block from the RVBC, the owners of a brick house showed police officers where their house had been struck by a bullet from the initial exchange of gunfire on the church parking lot. The owners even gave an interview to the Southeast Missourian which was printed along with a photograph of the where the bullet struck their house. This same eyewitness who had watched the entire episode from his apartment told the officers to search the church parking lot for casings and that they were wasting their time searching the parking lot behind my client's building. However, the officers failed and refused to search the church lot until they returned on another day. Apparently, whomever was the intended target of the other shooters ran onto parking lot of a building next to parking lot behind the RVBC and then he headed for the rear door of the business to take cover. There were approximately a dozen cars parked perpendicular to the rear of the RVBC and also parked the same way behind the building next door. Several of these vehicles had their REAR windows shot out as the shooters from the street were aiming at the person taking refuge behind the two buildings. If any shots had been fired directed from the RVBC lot, the cars would have had their FRONT windows shot out. Only one casing was found close to my client's business while more than 40 were located along the sidewalk and in the street. Simple math indicates where the most active shooting came from. That narrative, however, would not have impugned the reputation of my client for whom the CGPD and City Manager Meyer had previously shown open, discriminatory contempt and whose businesses they had previously sought to close without adequate evidence and by baseless claims. When the City Manager attempted once again to deny RVBC a liquor license based on grossly misleading reports and photographs, once again my client prevailed on appeal, this time to the City Council after losing the matter at level of your Board. At the time of that neighborhood shooting, there was an orderly, contained post -graduation party being held at the RVBC. There is not a shred of evidence that anyone from that post -graduation event participated in what would seem to be gang type attack. The River Valley Banquet Center could have been completely empty and closed with the doors locked, and that same shooting would have occurred. In short, a group of shooters from outside the building were attacking the building. Where the CGPD and the City Manager contended that my client's business is a danger to the neighborhood, the truth obvious to those who carefully collected and viewed the facts is THE NEIGHBORHOOD IS A DANGER TO MY CLIENT. The cause of that shooting episode falls squarely on the shoulders of the CGPD and the judicial system for inadequate patrolling, failure to block off some streets so that perpetrators can then only escape from that dangerous neighborhood by way of only a few, rather than a dozen routes, by failing to install city neighborhood surveillance cameras like those enjoyed by higher city revenue producing areas of the city. The inability to of the CGPD to capture and get these 13 criminals convicted, incarcerated to take them off the streets, and to provide adequate deterrence of future crimes was not then, and is not now, the responsibility of my client. It is a police matter. That gangland style attack had absolutely, positively nothing to do with my client serving liquor because it was an underage post -graduation party, and no liquor was even served. Plus none of the 40 -plus shell casings were from inside the banquet center. This was a neighborhood problem that the CGPD did nothing to prevent and, to the best of the knowledge available to the public, has had no success in even identifying the perpetrators, nonetheless arresting them. Demeaning my client and his business may help distract the public from the inadequacies of the CGPD in that neighborhood, but it does nothing in the long term to prevent a reoccurrence. Closing my client's business might satisfy a sick sense of vindictiveness, but it will not stop another shooting of someone unrelated to the business who is being ambushed. While I can appreciate the desirability of the City Manager examining information provided him by the police, provided it is prepared after a thorough investigation and the reports are based on completed findings. However, it is rather obvious based on several examples I can detail in Circuit Court that the only source of information Mr. Meyer relies on is that provided by the police. If police information is always correct, how does one explain the hundreds of thousands of criminal acquittals which occur each year? Why are an outstanding number of criminal convictions reversed or dismissed by state and federal courts each year because of inadequate or improper police conduct? Whether he finds it convenient or not, City Manager Scott Meyer is a mere employee of the City of Cape Girardeau. In that role, he owes a duty of fairness and allegiance to all of its citizens and visitors. He cannot he be married only to the CGPD or be blind to their faults and prejudices. At all times, he must remain absolutely objective in his reviews of all of the information they provide him. When he is forced to acknowledge in Circuit Court or in a federal court action that on more than one occasion the CGPD has hand-picked reports to him which present an incomplete or distorted picture of an occurrence and submitted data summaries have been used to totally distort occurrences (many of which can be proven by a simple comparison to the department's call rolls), then swift and serious disciplinary actions will be mandated. The looming question is how Scott Meyer is going to explain his failure to address the situations sooner. In addition to the RVBC, Mr. Werner owns another LLC which operates a bar in Cape named Independence Pace (IP). That bar is the longest continuing operating bar in the entire city. During its thirty-four (34) years of operation, it has never received a single liquor violation citation of any kind, and its liquor license has never been suspended or revoked despite a failed attempt by City Manager Scott Meyer to close that operation as well. Mr. Werner had decided around age sixty (60) that he was wearing out operating a bar that did not close till 1:30 a.m. and then required another hour or two of cleaning. Consequently, he leased the Independence Place business to a long term employee who obtained a liquor license in the lessee's name. Unfortunately, the lessee soon proved to have been a far better employee (which is the only capacity in which Mr. Werner had known him before the lease) than he was a bar manager. During the period of the lease, the IP bar got behind in its bills with a liquor distributor 14 and was cited for serving a minor. Mr. Werner immediately gave notice to terminate the lease and applied for a new license in his own name again as he done for the prior thirty -plus years. Upon receipt of the application, City Manager Meyer immediately rejected it, and he steadfastly refused to alter his unnaturally quick denial decision on the theory that Mr. Werner had never truly leased the bar. Meyer had absolutely no evidence upon which to base such a decision, and if not a pretext for his prejudice against the bar and my client, then it was delusional. Immediately upon learning of the license denial, Meyer was furnished a copy of the lease which had been notarized a year or so before at the time of its inception and a list of witnesses such as liquor delivery personnel, contractors, customers, and others willing to testify that Mr. Werner had withdrawn himself from operating the IP bar months before. They were prepared to testify that it was the lessee with whom they had been dealing since Mr. Werner's withdrawal. Recognizing that City Manager Meyer's license denial decision was unsupported by any evidence and that his baseless theory would be both contradicted and controverted by substantial, credible evidence from disinterested third parties, Meyer's ridiculous denial was unanimously reversed by your board. It cannot be overlooked that 2 of the board members at that time were contemporaneously city employees reporting to the City Manager. When deciding his action was erroneous, the salaries and benefits of these 2 city employees were under the control of the person whose decision was being reversed. After much harassment and expense by the City, Mr. Werner finally received his new license. The bar was then returned to Mr. Werner's management, and it has continued to operate without any incident just as it had done for the thirty -plus prior years. The Independence Place bar is historically a gathering place for gay locals and college students of age. Mr. Werner has shown incredible patience and tolerance of numerous incidents over the past thirty -plus years by the CGPD and others directed at him and his customers. Times have changed and these problems will sound even more egregious when discussed today. I shall gladly offer specifics of harassment and discrimination as evidence if this present case must advance to the Circuit Court. Extensive discovery of police records and deposition testimony will also be available in that event. XI. Closing The building was erected originally as a component of a fine dining complex and successfully operated by two (2) gentlemen as an upscale event venue. During their ownership, the Shawnee Parkway highway and the new bridge over the Mississippi River to Illinois were built as well as two (2) large convenience stores with liquor licenses a half block up the street. One of these stores more than the other is literally a hotbed of violence, including shootings. The level of crime in the neighborhood within a 6 to 8 block radius of the banquet hall has increased drastically during the time of Mr. Werner's involvement. Presently, the levels of violence and property damage are totally out of control. Although the CGPD have admittedly devoted substantial resources to the area, they are failing miserably returning the neighborhood to even close to safe. Within the past 3 or 4 months alone, a young girl was shot and killed on her own front porch approximately four blocks from the RVBC. There have been several shootings 15 on Jefferson Street which is only a few blocks away. A month or so ago, a female had her throat slahsed and died just five blocks farther south on Sprigg Street than my client's property, and a heavily decayed dead body was found in an alley not far from the RVBC which indicated it had gone unnoticed even for at least months. One way to solve these problems is to clear out the neighborhood of residents and businesses. Of course, the City has no legal right to do this. If that logic is extended, Cape could solve almost all its crime if it vacated the city. In fact, there are shootings all over Cape Girardeau. One was on Clark Street requiring the evacuation of the Central Swimming Pool. At least a half dozen have happened recently west of Arena Park on Themis and the streets which run parallel to it. There was even a shooting in Arena Park close to the large, city -owned event venue and literally within sight of the new CGPD headquarters and jail. The list goes on and on. My most current information from the CGPD was last summer due to an unexplained adjustment in the level of cooperation in gathering such data which oddly enough was addressed specifically to me by Chief of Police Blair himself. However, the most recent information provided me by the police showed thirty-three (33) shooting reports in June 2019 and twenty-six (26) in July 2019. At odds with the incidents released by the CGPD to the local newspaper, my request for updated information of similar incidents during the most recent 6 months came back with a report by Lt. Brad Smith that not a single similar episode had occurred during the period I questioned. Is this report a miracle or a misrepresentation? At this point, the Cape Girardeau Police Department must either acquire additional resources, or deploy existing ones under new management. Chief Blair even went so far a few months ago as to make a media statement that the number of shootings in Cape has not gone up recently. If he believes that he is out of touch, and if he is stating it with access to different information, that raises a different issue. The decline in the safety level of Cape Girardeau in just a few short years is worthy of a federal investigation aimed at achieving an effective consent decree management plan which addresses a managerial problem that not only places citizens in constant danger, but drastically reduces property values when the city's sale tax revenue has remained relatively constant. Despite its rosy public relations attempts, Cape Girardeau is in a state of crisis. When its true condition becomes better known by drawing the participation of several national organizations, several facets of the community's income and population growth (or stability) will likely be negatively impacted. Prior to the most recent skyrocketing violence in its neighborhood, the banquet hall building was offered for sale as the owners were relocating. At the time, Mr. Werner purchased it through an LLC he controls. Due primarily to police failures -- including an inability to gain neighborhood trust so that crime witnesses cooperate — Mr. Werner obviously now regrets his decision to purchase the property, but it cannot be moved. He would likely not repeat the transaction under the current state of the neighborhood, and it is doubtful that there is a long list of purchasers waiting to buy it. The end result of the City Manager's license revocation decision will be yet one more empty building on the South Side. In view of the number of times the property has been vandalized in just the past few months, it is unlikely its condition will remain constant and most certainly not improve if it is vacant. Although the "good" patrons of the business may have few options for 16 their assemblies and associations, the criminal element will find another spot, perhaps returning Indian Park to a public hotbed of criminal activity, even during broad daylight. Whomever is dealing drugs in someone else's claimed territory or who has not been paid what they feel is owed them, will still be shootings. Revoking a liquor license based on episodes which are not related to the consumption of liquor will do nothing but take some of the public spotlight off the failures of the city government and the CGPD. The citizens and their constitutional guarantees require absolutely nothing less. The revocation of a valuable liquor license is confiscatory in nature. Missouri courts characterize the role of the City Manager in such events as ministerial rather than administrative. Admittedly, there is a limited element of discretion involved, that discretion (per the U.S. and Missouri constitutions) is subject to "strict scrutiny" as that term has been defined by the courts and appears in the constitutions. All such decisions must be predicated on specific, identified rationale and be equitable in view of prior similar decisions. Under no circumstances can it be arbitrary and capricious. Based on the failure to Mr. Meyer to specify the "grounds" of his decisions or the specifics of his allegations, his actions fail both the constitutional and statutory tests miserably. Many jurisdictions would question his qualifications for employment based on just the shockingly disparate variances in the exercise of his limited discretion. If this revocation of Mr. Wemer's present license is not reversed immediately and it must advance through the state and federal courts, we may discover that Missouri is one of those jurisdictions. It has been my observation on several occasions over the past few years that Mr. Meyer only accepts the information provided to him by the police department — regardless how erroneous that information ultimately turns out to be. Mere incident reports from the CGPD are not sworn statements, and they have not been subjected to cross-examination. The present revocation decision was not the first incident of Mr. Meyer evidencing flagrant bias - if not outright vindictiveness - against Mr. Werner, including reckless defamatory statements made to local media and others. It was not the first incident of Mr. Meyer denying Mr. Werner his legal rights under the U.S. and Missouri constitutions and certain state statutes superior in force to city ordinances. I have not reviewed the most recent statistics of every other bar in Cape due to a recently altered level of cooperation of the CGPD which includes the unusual personal intervention of the Chief Blair, himself. Nonetheless, I think it would be a very safe bet based on all the historical I do have that very few, and more likely none, of the bars operating in Cape can claim such a spotless record. Oddly enough, many of the holders of liquor licenses in Cape have had dozens of incidents of violence, including at least 2 shooting episodes with one involving a bullet wound, for which no violation citations have been issued and no administrative action taken. In addition to prior shootings, a couple of years ago, a customer of Hotshots Bar on Main Street got his throat slashed, and the city took no punitive action against the bar. The City Manager of Cape Girardeau and the city attorney's office have a very patchwork pattern of enforcement of the city's liquor ordinances which until recently has escaped careful 17 legal examination by persons trained in the areas of law involved. Just as one example, I have seen the equivalent of several shoe boxes of fake age identification cards collected by only a few of the local bars, and I suspect they all have equivalent amounts. Although the city and the state make the possession and/or use of false identification by a minor to gain entry to bar a crime, the city never prosecutes the minor. At best, this is indefensible, systematic selective prosecution and a denial of equal protection of the law for the bar operators in violation of the Fourteenth Amendment. In contrast to its totally ignoring whether lengthy state and local statutes proscribing the misconduct of the minors, the City has revoked the liquor licenses of bars based on scant examples of serving a minor. To gain entry that minor violated statutes the moment he/she came into contact with liquor, but that violation was only after the minor intentionally and fraudulently misrepresented his/her age and was in possession of false documentation. Much like it is necessary to arrest the "johns" if a city is genuinely interested in curtailing prostitution, Cape Girardeau must start arresting and prosecuting underage bar customers who have gained entry under false pretenses and are in possession of unlawful false documents. Although it is not a popular thing to do in communities heavily dependent on university student spending and whose government seeks to maintain good public relations with the institution, I think you are going to see very shortly, a group of students sued as individual fraudsters. Depending on their true age, their parents may also be sued for all the costs incurred by a bar in defending its license under such circumstances. If this sounds far-fetched to you or not a legally sound action, Missouri has a specific statute that addresses. Albeit, the statute has not been the subject of many appellate decisions, it has also never been contested and certainly never reversed. It is a valid statute which addresses this exact fact pattern and recognizes the potential liability of an offending minor. I suspect that its use may drive the University off the cliff when their high numbers of minors with false identification start getting sued, I have an extremely talented trial lawyer ready to proceed if the city does not step up SUBSTANTIALLY its enforcement against the offending minors. This enhanced enforcement may add additional burden to the city attorney's office, but I have never seen anything to indicate that Mr. Cunningham's work load is anywhere near that of a normal attorney, or for that matter any of the dozens of city attorneys I worked with during my tenure as Senior Counsel of the NYSE firm which was then the second largest owner of real estate in the United States, plus is dozen foreign holdings. If he cannot handle a little extra work, there are certainly others who can. In one particular incident that comes to my mind, a bar's liquor license was revoked for serving a small number of minors — by provable fact, a much lower number than other bars operating in Cape which have received at best a slap on the wrist. Predictably, the loss of its license caused the business to close. The owner lost not only his stream of income from a business which had been highly profitable for years, but he also did not get top dollar when forced to sell the building that housed the bar. If the federal government were to conduct an audit of citations and the wildly fluctuating punishment or non -enforcement, the consent decree necessary to resolve it would be voluminous. The same holds true for actions taken by relevant state agencies. 18 Cape's City Manager, Scott Meyer, has demonstrated repeatedly knee-jerk reactions before all the facts of an incident are even been collected, nevertheless synthesized. Some of the statements he (and Mayor Fox and Police Chief Blair) have made to the press, especially against my client and his businesses have been outrageously unprofessional, completely unfounded in fact and thereby defamatory, and crystal clear examples of a desired result/punishment in search of a specific crime. They may well have expressed what might be sound public policy and in some instances excellent goals for social justice reform, but until that reform is legislatively enacted, the city's job at hand is to clean up their defective ordinances and enforce them equally and fairly. Mr. Meyer has inter alia. demonstrated repeatedly either an ignorance or intentional defiance of basic civil rights, including due process regarding person and property. His decisions have been erratic and discriminatory, making them at best unlawfully arbitrary and capricious. The granting, denial, and revocation of liquor licenses which are valuable property to a new or existing business (in the case of something like a casino one could be worth millions of dollars). They cannot be dealt with depending on whom might be in the favor (or disfavor) of a city manager on a given day or because he feels he, other members of city government, or the voting public might truly desire a certain result to be achieved. Their issuance cannot go up and down like a roller coaster. This flagrant pattern of misconduct has been tolerated perhaps due to the expense to appeals or out of fear of retribution if the licensee prevailed. Similarly, it has escaped the scrutiny of the state circuit courts and courts of appeal guaranteed access by the Administrative Procedure Act, the U.S. District Courts under 42 USC § 1983 (personal liability against city employees involved). That will not be the case with the City Manager's most recent attack on Mr. Werner if this Board fails to reverse the liquor license revocation notice issued to him. Accordingly, Mr. Werner and the RVBC hereby request that the decision of liquor license revocation entered against them by City Manager Scott Meyer dated January 29, 2020 be reversed forthwith. Sincerely, s/ Ronald Garms 19 CITY of CAPE GIRARDEAU OFFICE OF THE CITY CLERK COUNTY OF CAPE GIRARDEAU ) ) SS. STATE OF MISSOURI ) I, Gayle L. Conrad, duly qualified and acting City Clerk for the City of Cape Girardeau, Missouri, a Missouri municipal corporation, hereby certify that the attached is a true and correct copy of Section 5-39, Standards of Conduct, of the Code of Ordinances of the City of Cape Girardeau, Missouri.. IN WITNESS WHEREOF, I have hereunto set my hand this I3"' day of March, 2020. Gvyle L. Conrad, City Clerk EXHIBIT �sr 401 Independence Cape Girardeau, MC 63703 573-339-6320 Tel 573-339-6302 Fax cityofcape.org/management Sec. 5-39. - Standards of conduct. The standards set forth in this section shall be considered in determining whether a license under this chapter should be renewed, suspended or revoked. In conducting business on the licensed premises, a licensee and the licensee's agents and employees shall: (a) Prevent or suppress any violent quarrel, disorder, brawl, fight or other unlawful conduct of any person on the premises. As used in this section, "premises" includes the licensed premises and the parking lots and areas around the business which are owned, used or maintained as part of the business. (b) Immediately report to the police any illegal or violent act committed on the premises when the licensee or the licensee's employee knew or should have known that the act occurred on the premises. (c) Cooperate fully with law enforcement authorities during an investigation of an illegal or violent act committed on the premises. (d) Operate the business in such a manner that it does not constitute a nuisance. (e) Take appropriate and necessary steps to supervise the outdoor area of the premises including keeping the area free from litter and preventing the parking area from becoming a gathering place for customers of the business. (f) Comply with all provisions of this chapter and this code. (g) Comply with all state and federal law, including all rules and regulations pertaining to the sale and licensing of intoxicating liquor. (Code 1967, § 5-27; Ord. No. 4233, art. 4, 5-16-11) RECEIVED PH 0 3 2020 RONALD GARMS Attorney at Law P. 0. Box 795 • Cape Girardeau, VMO 63702 • 314315.3131 • r, aarmsfagarmslaw.com Febuary 3, 2020 Liquor Review Board City of Cape Girardeau Attention: Gayle Conrad P.O. Box 617 401 Independence Street Cape Girardeau, MO 63701 RF'. Liquor License Denies Appeal River Valley Banquet (,enter 631 South Sprigg Dear Ms. Conrad On behalf of Ricky Werner and the River Valley Banquet Center, 1 am writing to give notice of our intent to appeal the notice of liquor license revocation issued by the City Manager dated January 29, 2020. Please forward to me immediately all documents provided the City Manager upon which his decision is based whether part of an appeal document package or otherwise. Mr. Werner is out of the country for a long -planned trip to Thailand and other Asian countries. He became ill several days ago, and my Latest information is that he is hospitalized in 'I urkey moss likely with pneumonia. Fortunately, the latest indication I have received is that he does not appear to suffer from the coronavirus. His return travel plans, of course, are dependent on his health. I believe he will be back in Cape in approximately a week or 10 days, but that is subject to change if his condition worsens or is further diagnosed. Please keep this information in mind when scheduling a hearing date. Also, I andereland that Mr. Dan Grimm is anew member of the Liquor Revicw Board. Mr. Grimm has preciously performed legal services for Mr. Werner I believe on a:iquor related matter. In that event. it will bu necessary for -Mr. Grimm to recuse himself from hearing the present matter. Please bring this iss,:e to Mr. Grimm's attention and advice me promptly of Mr. Grimm's and the City's resolution of the prohibited conflict. Sincerely, s/ Ronald Garms CITY,,CAPE GIRARDEAU OFF[CE OI7111E M'v MAN WER LIQEOR LICENSE REVOCATION NOTICE the ('II} If Cap, Girardeau liquor liccnsc held by Rieke Lynn b\ci.mr, dt, a River Valley Banquet Ccutcl. LLC, located Lit 631 South Spro- Street, Cape Girardeau. %lissoun, License No. 1799. for Retail Liy unr by the Drink unci Sunday sales is hcrubv REVOKED. GROUNDS FOR AC I ION, I Licemcc did permit or Fail to picecnt or supptess a ciolcnt qumlel.. blarl. oC fight on the prcrnisos. RI \()('At ION EFF L( IIVEDATE: I ehrunry I I, 3020 nh_rcc mry"d .I, .Ii r,myr Irah",min•hehrz.Ite1_qII..Ie.«rw hoar d. t he coria I i—I —I Vest Ic :-iced toillun ren t107 day alts the none I ,I I � 1,.,. _- . aaired. the rcvoation armee i, . ,..I -arc -.' tl Iha Been �a throe 131 dzw aliLr n e Ili, rtI n "t be L, min,, t d nddreasd to. Gayle ( .I. "III is ,t:e Ilei i, H,111!. Cit' of ( I. ( 11,1113 ',ILI, Ilov 6,7. U)1 I til.patda . (epu un,Iaeaa. 00 6]'f: PL 15llant to Sec. 5-42 M Il c Cape Girardeau Code the RI VOCA'I ION is hereby Ordered. $Coit McYer City Vanager Datc I f I. t of ca .'_0:0. I nuaed e cap, do dais NOI ICL to L(cke Lyall ICenter, 1 I.A I?i�er Cull lla rlucl Cat I 1 ('. by I-, r, l I ,mail. posh. paid_ m the aderca�� proclekd Gla Cil by d:c liceror. l l lr hq;:orlirel ypliemim: Crcsba[td� Cape (� 11 "'1", bl U 6 l'N l and 631 So uth Sti (aI" la'dene. M0 P. 7d C IbIC ('InrHtl �� Cil} Clclk 4a1 1LA 1. ,_1 - r (11 1. daru, Yp I I_1 1i . 1 1 ono I -171-n}a' 1-ar I, PROBABLE CAUSE STATEMENT Date 02/07/2020 I, Corporal Darrin Sides/DSN 8338, knowing that false statements on this form are punishable by law, state that the facts herein are true: I have probable cause to believe that Myron Lamont Andrews, Marquelis Jamaal Andrews and JaQuavion Markeice Anderson committed one or more criminal offenses. 'Ibe Facts supporting this belief are as follows, Based on the video surveillance and witness statements, I have probable cause to believe Myron Andrews, Marquelis Andrews and JaQuavion Anderson all tired guns in a crowded night club after Anderson initiated a physical fight with another patrun,� I'he shooting resulted in mass panic inside the business. In total, there were five victims who suffered gunshot wounds. On Sunday, January 26, 2020, officers from the Cape Girardeau Police Department responded to a report of gunshots fired at a venue named The River Banquet Center located at 631 S. Sprigg Street in Cape Girardeau, Missouri. There was asocial event occurring at the location at that time and it is estimated that between 200-300 individuals were present inside the venue when the shooting occurred. The business was equipped with security cameras (inside and outside) and much of the events of the shooting were captured on video. An initial review of the surveillance video revealed a crowded room with people socializing and dancing prior to the shooting. As the video progresses, it appears that a vernal confrontation occurs in the area of several dancing patrons. As a ohy suml fight breaks out, multiple individuals appear to pull guns from their persons and begin shooting towards one of the males involved in the physical fight. That shooting victim is identified as� As the First shots were fired, chaos breaks out in the club with patrons running away in all directions. There were multiple body piles as people fell to the floor while attempting to either get away from the shooting or take cover. One of these body piles appeared to have tripped two of the shooters who were caught up with other patrons. One of those shooters (Shooter 1) is Revi.,erl Jw,q 2019 described as a black male with a larger build, wearing a light colored or white hoodie. Shooter 1 is cacyh g a black handgun with an extended magazine and he can be seen firing his gun multiple times. Another shooter (Shooter 2) is described as a slim, black male with long dreads, wearing a light colored or white denim jacket, Shooter 2 can be seen running towards from behind and a muzzle Flash can be seen as Shooter 2 fires at� After tripping into others, Shooter 1 and Shooter 2 can be seen getting back to their feel and rushing out of one of the exits -along with other patrons, Surveillance cameras outside of the business captured footage of the fleeing patrons, including Shooter I and Shooter 2. As people attempted to exit one particular door, people trip and fall to the ground in the doorway creating a bottle neck, Shooter 1 and Shooter 2 who are attempting to escape through that door were again tripped and fell with the crowd. It is believed that one of those shooters dropped his firearm as he fell. A Cape Girardeau Police Officer stationed at the door, who was attempting to cover the fleeing crowd and make entry into the business, saw the fireami and immediately placed his foot on top of the gun and pushed it behind the open door and out of reach of civilians. Shooter I and Shooter 2 then flee in the same direction, off camera. Once officers were able to make unary around the exiting patrons, they located one shooting viclim,VMMon the floor of the business. 14Wad been shot multiple times. Officers immediately began administering aid tos Four other shooting victims were located inside orjust outside of the business. All of the victim were inside the business when the shooting occurred. Victim 2 —wm� M was shot once in the right thigh and the ballet exited his body. Mstated a fight broke out between other patrons and he heard gunshots. Mstated he was attempting to exit the business when he was shot. Victim 3 —� was shot once in the left buttock and the bullet lodged inside his body. stated did not see the shooting. Victim 4 was shot in the right leg. UM,tated he was trying to get away from the shooting when he was shot and did not see the shooters. A bullet was recovered from his body. Revi,ed lune, 1019 Victim 5 — _was shot in the back of his left leg. testate someone started shooting and he got down and was on top of other patrons when he was shot. A bullet was recovered from his body. Officers col:ucted various items of evidence from the scene of the shooting including spent bullets and multiple spent shell casings of different calibers. _had suffered serious physical injuries and was hospitalized and unconscious for a number of days. On February 4, 2020, 1 made contact with while he was still in the hospital. _told me the following (paraphrased and summarized): � Iiad arrived at The River Banquet Center to pick up a female cousin. While inside the business as saw two men he had previously had problems with in the past, including a male 40wamed JaQuavion Anderson. The other male was identified as Marquelis Andrews. ! stated he located his female cousin inside the business and as he was standing near her, Anderson swung his fist atUWs face, causing a fight to break out. observed both Anderson and Marquelis Andrews with handguns. _stated Anderson shot him. _ was shown photo line-ups and identified Marquelis Andrews and Anderson, was then shown the video surveillance that captured the shooting. From the video, M identified Shooter I as Myron Andrews. _also picked Myron Andrews out of a photo line- up. Sfurther identified Marquelis Andrews as Shooter 2 ane Anderson as Shooter 3. Jaquavion Anderson is a previously convicted felon and currently has charges pending in another jurisdiction for ]Von in Possession of a Firearm, Myron Andrews has multiple prior felony convictions and is currently on parole. Marquelis Andrews also has multiple prior felony convictions and is also currently on parole. "The above statement is a probable cause statement which only states the probable cause which was present to effect the arrest and/or apply for formal clraraes. Hevii r.I ✓mm, 2619 For the issuance of a warrant complete lire fottowing., I have reasonable grounds to believe that the defendant poses a danger to the community or to any other person because Myron Andrews, Marquelis Andrews and SaQuavion Anderson fired multiple shots inside of a crowded business, shrnoing a complete disregard for the safety of all present, As a result, rive patrons were shot, including who was shot many times. Cot Darrin E. Sides CI —,,. 3gq _ printed Name Signalise Date: 02/07/2020 Re.vszJ lune, ?RJ9 t RENEWAL OF LIQUOR LICENSE APPLICATION Date SubmIItxd�� CITY Of CAPE GIRARDEAU r r'"p' LV$TCMEA Se Rts,^E OFFICE nUi 1NDEP6N6£M^,ESi_GrtPE G124RLFRV. aaP 83103.5i2U33-632] 4ppllaatlon For Il elk all tht, apply, s% 114"1 by to. Di 'A IiMho;+lalen of Mall Ggwr Nor cl i,xv, of S% n {S."a"she's ia^ Peta 11 Uouor by the Drink Whele sa let of lel ovl(dting liquur—Ural, 22% Cl Wine iutNg O Dngi,, a mosaic; bpuar WM1Ulesal¢ry of lntooeatl"U'Se,—AO "'n"l�l� Comumptlon of L,,or I-1 L(i•� Manuldtlurprs C(dppr D Dnt11len/hWO faMunS 0r Liquor D that o ly 11I I Name Ir(�, MioE{L Ie, )all} ayii�pyf'.Mafl,£ (.•J� / Lor% _ Drrrpr SaCd Qzi + �r {1us�n 5 d e1 �J✓ � hater �p aPPpcanV0lher peon¢ 1— v=. aero r^e un, a, me oin, eo, earn vanversaoartne. e, a ......... . or ene owner of a sole prophetorship rYlhNan4 (anCrnaiOeo rx'4 fapqurabtel fpaaeor-Nmr, 3lrth not It lorme[01Y2r 6[eMPI[a[eS ( IS the a�ruing9NYeraU snoName I I,.m ITo .az the Owner, managing D16cer, Corp.rallon, any stockholder owning 10% Or more of issued Stock, Or any partner, Or any membf 0( OwnCr'a managing oMCprS- or any Frilmeel hoosenole or m,medlate fainly Mao any "'ne, lzloed be the......... ar Inoue, GontrolofI e. rate of N1,,ourl or by the lice n, of of any of her slate orb,any city, su speeded or revoked w,, hie t he last u 32 momh.P YES [:]NQ )/ ch, glaf detoil5' I. there now employed or do you expect to employ in the busime54 hereundef any person YES D N(X� ""o, glee tlefal.. Na,, add,e5, a0d pecon, humbeY of partner. 0f oWCe R, and owne,shlp percentage) fArrach 05ephrbte Sheet i]OPedelt aJbelz �,�l pfa t' [m•age xetS �1iC�x,i'I1�,- Psrem N 1511 EOR PARTNERS OR SOLE PROPRIETORS: STATE OF 55. COUNtt OF of lawlul age being tiro duly sworn upon oaths, depend and say that (he, She) have react this application and Ino Instructions with reference thereto and that Ihe, she, Ivey) EUOy understand the same, that Ihe, she) knew the contents and the statements contained therein and that the same are true. Appl',cant has persowl knowledge of the loforma0.. contained the application and has read the provisions of guide nl of Chapter 15 0l the Code of Cirdmanwy.1 the Ciry of Cape GLdrdeau, Mssoun 5Um(nbed and sworn to me Illi this day of My Commission fhp res' NOTARY PUBLIC FOR MANAGING OFFICER OF CORPORATION/PARTNERSHIP: S'ATE01 rl 11 ',s,1 I Ss. COUNTY OF_ Ill U't ,LAS CV_ at lawlul age, art first only sworn upon (his, her) oath, deposes and says hat RIF, snot B the nag'ng efuldrof fine Corpol seeking a license Truro rader,lnal(be, I has been authorized by 9a to corps, ratiorl make this a pphcanon In IS for that (he, she has read his applicarlpn and In, Instructions wins reference hudip ane mune, shot fully understand the l/Jaa)aud that me sualredlighufford1hessool. 9LSOOCLIM Iip1591W Ws,'.) OLK Ir.4^f fa nwpp Aal r. aIs Sebs(rltil and p I before rim this 7 1 day _ of %1 Aa oO1 pS Ibno, 5Slw 30 31tl15 is SA N bland .kati 1 MY pn Eepirec '�' ( NC ES'1, SIN NMtlH9 NOTARY PUBLIC -- OFFICE USE ONLY ,.,I'd Oull aid'i DisapWove Signal rt Date ❑ ❑ gadding lnspeRpr Approve Disapprove Signal" Dale ❑ ❑ Zoning lnspeRor Approve O�sapro p Slgnarure Date ❑ 1:1v Health mspeRor ApWpve Disapprove Signature Dare ❑ ❑ Fire Inspector Approve Oisoppo Signature Dale El E➢B lropPROr Approve Lunl ave ",nature Date T..er totill a 511 Assessment No be Lune ®-� Eli, Q— Lleen9e x �-Ylq9 setpp lEoe Bill 11i DUO TAXATION DIVISION DCPARTMCNT of RDvEN-je PO BOX 3666 s e,'�, JEFFFRSON CITY. N1065t05SMOO 3=f 'f;F ha."aoe: 573 7" 6m�u. Iazdoa,n�ce@aornmm� RIVER VALLEY BANQUET CENTER LLC DATE: 05r31/2019 1722 CRESTWOOD DR VALID THROUGH- 00103121719 CAPE GIRARDEAU. M0 63701 2914 CAPE GIRARDEAIJ CERTIFICATE OF NO TAX DUE MISSOURI 10. 23168668 Notice Number 200(1 To Whom it May Concern The Department of Revenue, State Of i'vidiscuri, ceOTOS the above listed taxpayer has filed all required returns and paid all sales or withholding tax due, including pendithes and merest, and doe, not owe any sales and withholding by, as 0, may 30, 2019. This review does not include returns that are not required N be filed as of this auto or hat have been filed but not ycl processed by the Deparlment. This statement only applies to sales arid withholding tax duo and IS no1 to be r'.onsfued as limiting the aathoriiy of the Director of Reve n e to assess, or Pursue collecaorof facilities resulting from final litigation, default In payment of any Installment agreement entered into with the Duector of Revenue, any successor liability that may become due in the fut ire, or gudlls or reviews of the taxpayer's records as provided by law. THIS CERTIFICATE REMAINS VALID FOR 90 DAYS FROM THE ISSUANCE PATE TAXATION DIVISION CITYO CAPE 6usinass License Renewal Notice G1 R A R b E A U ms+omEA simtiCE F.'�i'X IS�yY� Lwe zx res CO. - 4 � 01 S, as T,,w — 131A MCC a IT,, PU3.IG`IEDI'VD 573-BOJ'QgV 1110V$1 19-a n +rz•..�:' !+! k,L, RIDG.:.T .�ri�str:H mal ,1 S,Sin-SS LICENSE'. FI -ST RATE 40.50 IF UQSINESS PC£NSE GROSS RECEIPTS, S0 ">_DRQ4_5E —TS rldle6ubz;CCIDL 5AEESI OU E. C£e'SE :.,,^rN: 01 E X51 PCR 31 J'.I SIO.WI 6cIN1Tylvl" F R'Ol PAa011, Al 11 .-IbltY1... 15, PENALTY EACH MONUK MAXIMUM 15YI ToIAL AMOUNT CUE fL 1E15d P11 Pzsroh„'.. (SEE INSRdCnaNS CN PA") Pnba, me wnaarsls"aa. ¢..sear for aN•m; +na+ the eowpeng fipuraz am s+aremwtrs gee Irve, tun and ¢erred 'a 1-a ben at my x1.111451¢ and 1,01e1. 0 P, m, - bull ye seanmeo R4 Ya0' npzce _ s;gn a. .,E Webs enn solum lame appEs.6an. Sry`dl�u2rpi )m ar RummxeJ Ae i MTN¢ NOTE -pub -11a1 OI IM1e:onewil Poll[ antl repa Iran I...G,ee 10T Inai-'R1,,1"al bmina56 Ne mal tlh Ghy Ooda, and has ,"lab Ilce". 1. aIa the wP.P a1 acual e.elees L.Ga-a fs 1.111 ed loam the CII,, Ino bwlnasa.dH be a.lh.dea. W a,"R. TM9 license ehall not be slid P, have my le9M OPICl unle5. and lath the Was W. ufE0d by law Lada p nald-), a. shown On Lha l R,Elag eppllCalien ana 1.1,1P be paid IO IM1e Cpy .I Cape G 1,110 o, AIeO all the, acm+tbb 11110e Ca, el cape Gl:atdeau mull be Pu.....IPS.Ii,, a+ pa:zanal propany b:val ezealy Uzes said +p Wpv Gi—'a." C.oNy, Ab. Sf-D," s+ems , "IS', a n0 salsa lac t.ba, b t0 6a Nvchac. Mad Mailing All—a....,.hon C1.... Poi Ie.n01' .0, Ho: 6t1 CITYOfCAPE G1 R A R D E A U CUSTOMER SERVICE 111 I / J Business License Renewal Notice I Pc:aula �6g0 C"i's .. 144BI iI'ER , L --EY 3*11J,;E- ceN TOR APR 2 9 2919 1122 CREST,'A= DR CAPE GIR IRDEAa. 16l 6'I'ol CITY 9' CAPE HARDEAU L.acse Yee. 2018 Smnl i"1, 231686,8 PUBLIC BUILDING ,- 5I3-0114094] ID31(2Cffi - WERNER R.K `/ I rT D -M,, YCQI C`31u�;C--IcHR RIVER VALLEY BANOUE F CENTER CAR CR ARDFAJ In P:, �p DOPE C,IRARDFAJ, MO 83'u1 1. BUSINESS LICENSE FLAT RATE IF BUSINESS LICENSE GROSS RECEIPTS, TO FAIL GROSS RECEIP'3(W71HOUT RLCOI-OL SALES,_._ _. -CENSE AMOUNT DUE (31 FER $1000'.. MININIUM 510.00L__.._ BE'_INJ N IFVO- PsCBYJAN B-ENATY, __ (5% PENALTY EACH MONTH', MAXIMUM 25%( TOTAL AMOUNT DUE ('_ c n PI,s PE,I7j _.. (SEE INSTRUCTIONS ON BACK) 40,00 Oath: I, tI a mi rslgne ! des ear (or affirm) that the foregoing figures and statements are true, full and correct to the Fast of my knowledge and .bell .. t. ' If no longer m usmass, a se check Cox ❑ antl give data business closed sign and data below and return Four,a apd cahon `. follow instructions on back r/ Signature of Owner or Authorized Agent aid Title Date NOTE: Submtttal of the renewal notice and required fees does NOT indicate that the business has met all City . due and has a valid Imense to operate. When an actual Business License Is received from the City, the business will be authorized to operate. ". This license shall not be valid or have any legal effect unless antl until the taxes prescribed by law (and penalties), as shown on the foregoing application and hereon, be Faitl to the City of Cape Girardeau. Also all other accounts with the Clty of Cape Girardeau must be current, including all personal property d real estate taxes paid to Cape Girardeau County, Also If sell Ing Items at rata ll. a no sales tax letter Is to be attached. Mail T. City of Cape Girardeau P.O. Box 617 Cape Gaardaaq MO 69101 Mailing Address or Location Change Icircle one) CITY OF CAPE GIRARDEAU Business License Renewal Information, Rules and Regulations • Under the terms of the CRyof Cape Girardeau Cade of Ordinances, Section 15-89, you are required to pay a minimum tax of $10.00, or an amount equal to $1.00 per $1,000.00 an gross business done during the 2018 year Caplinger the last day of DECEMBER 2018. If you're a Flat rate license, then only the 540.00 flat rate Is the license fee. • Round up all cents to the next dollar. • Kindly fill out and execute the affidavit ofgross sales on the front of this renewal or pay the flat rate amount Indicated, and return by January 31, 2019. RULES AND REGULATIONS 1. Gross sales means the gross receipts of the business, occupation, or cal ling for which the license was issued either through the sale of merchandise or lFmugh the sale of services, derived through transactions of the licensee, whether such sales, services, or transactions are for cash or on credit. Gross receipts do not include sales tax remitted to the state OR alcoholic sales. 2. The making of a false affidavit can subject a person to imprisonment for not less than 6 months or a fine of not less than $500.00. 3, rehire to pay the proper amount of license tax and amounts owed to the City can result in the City refusing to issue licenses. 4. loo ire to pay this tax can result In a civil suit by the City to collect this tax plus penalties and attorney fee. Only one notice will be sent following Jan. 31, followed by a citation If the license remains delinquent 5. AI! delinquent licenses shall, In addition to the license tax due, pay the tax penalty. Please refer to the penalty provisions of Section 144250 RSMo relating to delinquent sales taxes. 6. Must enclose no tax due statement from Missouri Department of Revenue or certify that you are not required to collect sales and/or withholding tax. Website for the no tax due form: f s. /dor�pr ogoy/tax/r.ISo notaxdue/taxoave, 7. All other accounts with the City must be current, Including Cape Girardeau County taxes. Closed Business: Ifycur business closed during 2018, you must still fill out the front side and calculate the $1.00 per $1,000 gross receipts. In toe penalty amount, write ($10. 00). This credit is from when you opened your business. Examples: Ifyour$1,00 per $1,000 due is $26.00, you need to pay $16.00. Ifyour g-oss receipts are less the $10,000, nothing is due but form must still be submitted. Please be sure to sign the bottom of the page and include date business closed. Relocated Business: If your business has relocated, please contact the Customer Service Department for a Change of Information form, or visit htt r. Lwww.ciNofcapegl rardeau.org/tlepartments/citizen serv'ces/I'censes permits/business EXAMPLE ADDITIONAL PENALTY EQUATIONS Penalty Example For failure to pay license on o, before the due date, the license penalty Is 5% of the license amount due, up to a maximum of 25%(5 months rate =25%). Example 1: Return is due Jan. 31, out is fled (postmarked) Feb, 10 Line 2 is $480 $490 x 5%= $24 $24 is the penalty Example 2: Return Is due Jan. 31, but is flied (postmarked) March 21 Line 2 is $480 $480 x 10% = $49 $49 is the penalty If you have any questions, please call the Customer Service Department at 573-339-6322. CMECN 46.00 Check Num0erO03B20 Change due 0.00 Paid by; WERNER, RICK Thank you fcr ycur payrent CUSTOMER COPY DUPLICATE RGCEIPT - r City of Cape Girardeau CUSTOMER SERVICE 401 Independence Cape Girardeau, NO 63703 5/3-339-6322 2114068-0075 Mega, S. D4/29/20i9 01;2CPM BUSINESS LICENSE WERNER, RICH 3690 2018 Item 14593 BUSINESS LICENSE -LAT RATF 40,00 15 M PENALTY §,00 46.00 Subtotal 46.00 Total 46.00 CMECN 46.00 Check Num0erO03B20 Change due 0.00 Paid by; WERNER, RICK Thank you fcr ycur payrent CUSTOMER COPY DUPLICATE RGCEIPT TAXATION DIVISION=''���"",')Vi Y+9ioao s✓r.c BOX 3666 irs ( E JEFFERSON CITY, MO 65106 TaI,i, ,, 573-751- 9268 � E�mnI axdcaraiceCaaomr. lav RIVER VALLEY BANQUFT CENTER LLC DATE. 04/29/2019 1722 CRFSTWOOD DR VALID THROUGH: 07/30/2019 CAPE GIRARDEAU, MO 53701-2914 CAPE GIRARDEAU CERTIFICATE OF NO TAX DUE MISSOURI ID. 23168668 Notice .Numbs, 2005749860 To Whom It May Concern: The Department of Revenue, Stale of Missouri, certifies the above listed taxpayer has filed all required returns and paid all sales or withholding tax due, including penalties and interestand does not owe any sales and withholding tax.. as of April 28, 2119. This review does not include returns that are not required to be filed as of this date or that have been filed but not yet processed by the Department. This statement on'y applies tc sales and withholding tax due and is not to be construed as limiting the authority of the Director of Revenue to assess, or pursue collection of liabilities resultirg from final litigation, default in payment of any installment agreement entered into with the Director of Revenue, any successor liability that may become due In the future, or audits or reviews of the taxpayer's records as provided by law. THIS CERTIFICATE REMAINS VALID FOR 90 DAYS FROM THE ISSUANCE DATE, TAXATION DIVISION PARCEL NUMBER I msralcT I �onc I coup I CAPE GIRARDEAU COUNTY 0994273 3tzz 30 LFP PERSONAL PROPERTY TAX BILL PRINT MAILING ADDRESS CHANGE INDEPENDENCE PLACE 5 S HENDERSON CAPE GIRARDEAU MO 63703 NY18500011 AA1099427300000000000000000 I an— L—. I cw;, I cow I PRINT MAILING ADDRESS CHANGE WERNNR RICKY 1410 GOOD HOPE ST CAPE GIRARDEAU RID 63703 ORIGINAL TAW '2 OO -5Gi1PTGN Of-PROPFRtt - Bus Quip A]aa YD0000004098-0 3 CAPE GIRARDEAU COUNTY DUPLICATE TAX YEAR REAL ESTATE TAX BILL 04179rz019 2018 RrraB.sr. cBRunes. aRe PRl AY —THIS THIS AMOUNT 2 4024 45. ns - o.ao 8602.15- ` IFMPAID EY 0aR912J.!D B MKl FEES - _— oe uNOFXAovrRry = 1410 GOOD HOPE ST CAPE GIRARDEAU: W 1/2 LOT 5 ELK 22 - - WEST END PLACE 2ND ADD - - ACRES SECTION 005 TWP 030 RANGE 014 - YY18000011 PA1211CLO040009000OU0000000 XDUOOOU6U215 2 '�rUr^M - �'z, ''� �aU'o�{n '<w�"e� ���, �y 'C�C�'S rimy kapp �.yazW F"��l-,��na�— �2�)g+1 i�J Q2i"��.. d�C� S}�q i�}� � di Y i w sf-fr :G:i �. Y,� Y'1 �1, �� � — kx ��\� 1. �'. t L � n.. E .. a � ry >. .. t r � .. .� r Cape Girardeau police Investigate'gun hatle' By Kalsev Andnrsoo and Nathan Ellgree I April 28, 2019 at 1-13 AM CUT - Updated Apr0 29 at 7:00 PM CAPE GIRARDEAU, MO (KEVS) - Cape Girardeau Police are investigating what they are calling a `gun battle' outside a business this weekend on the city's south side, and the incident left it's mark on families who live close by. According to Sgt. Joey Hann officers arrived at the River Valley Banquet Center at 631 South Sprigg Street early Sunday morning. https I/www.k(v512conL2019/04128/shah-foeahanque4hall-cape *,,Ieaw va 6/112020 Neighborhood reacts to gun battleavlsde banquet hall in Cape Girardeau FYom there law enforcement discovered 50 to 60 shell casings from at least three different firearms, and police currently have one person in custody. No injuries related to the gunfire have been reported at this time. Happy and Tiffany, who did not want to give their full names, have an 8 -year-old daughter and live a block away from the banquet hall. , 'they call the gunfire disturbing and a wake up call to do something about the violence. "Well this one literally hit home. It wasn't just close to home. It hit home," Tiffany said. "When you see the flashes of the gunfire outside your window, through the curtains you know it's real life," Happy said. "And the police are saying there were 50 rounds fired off. In about R seconds. That is all it lasted and it was and there were kids running up and down street, kids trying to get away." The parents are concerned for their daughter's safety because she often plays outside with other kids around the neighborhood and could have been caught in the crossfire. "Knowing that there are teenagers involved it is very heartbreaking to know that it could've been one of them that was hurt," Tiffany said. "It could of been us. My daughter could be an orphan right now. I could be without my child right now which is my only child." 5/29/2020 Missouri Revisor of Statutes- Revised Slalu Les of Missouri, RSMo Section 536.150 Missouri EXHIBIT Revisor of Sla/ules Constitution Committee Publications About Help & FAQ Other Information & Links Word? , 1 st search term or section r And v 2nd search term l Title XXXVI STATUTORY ACTIONS AND TORTS Chapter 536 4C 1 Effective - 28 Aug 1953 536.150. Review by injunction or original writ, when — scope. — 1. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed. 2. Nothing in this section shall apply to contested cases reviewable pursuant to sections 536.100 to 536.140. 3. Nothing in this section shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section. (L. 1953 p. 678 §§ 1, 2, 3) https/(revisor.mogovlmaiNOneSection.aepx7saclmn=538.150 112 512912020 Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 536.150 (1972) Where county ordinance provided no appeal from ruling of Board of Building Appeals, relator was entitled to writ of certiorari to compel the board to certify a sufficiently complete record of proceedings of basis leading to board's decision including name and identity of witnesses and at least a summary of their testimony. State ex rel. Walmar Investment Co. v. Armstrong (A.), 477 S.W.2d 730. (1975) School district has no right to appeal decision of county board of equalization. State ex rel. St. Francois County School Dist. R -III v. Lalumondier (Mo.), 518 S.W.2d 638. (1979) Mandamus was remedy when city council denied a liquor license under a municipal code when all conditions were met and was not a "contested" case. State ex rel. Keeven v. City of Hazelwood, et al. (A.), 585 S.W.2d 557. ---- end of effective 28 Aug 1953 ---- use this link to bookmark section 536.150 In accordance with Section 3.090, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such enacted statutory section. ► Other Information ► Other Links of A ,rf.�R+r Missouri Senate MO.gov Missouri House Errors / suggestions- ;c;Missoun Legislature, all rights WebMaster@LR.mo.gov reserved. History and Fun Facts 9� b @04 43:09.J 48 M1flpsllrevisor ind,govlmain/One Section. aspOsection=536.150 2,2 61412020 MO Rev Sial § 536.140. Section 536.140. Scope of judicial review--jutlyment-.appeals, 2011 Missouri Rem EXHIBIT 4 Laws & Legal Resources. View the 2019 Missouri Revised Statutes I View Previous Versions of the Missouri Revised Statutes 2011 Missouri Revised Statutes TITLE XXX'VI STATUTORY ACTIONS AND TORTS Chapter 536 Administrative Procedure and Review Section 536.140. Scope of judicial review--judgment--appeals. Universal Citation: MO Rev Stat § 536.140. Scope of judicial review--judgment--appeals. 536.140. 1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4 of this section, shall hear it upon the petition and record filed as aforesaid. 2. The inquiry may extend to a determination of whether the action of the agency (1) Is in violation of constitutional provisions; (2) Is in excess of the statutory authority or jurisdiction of the agency; (3) Is unsupported by competent and substantial evidence upon the whole record; htlpa—.l JUS"ttacvnt esimisscurd20111;I1texxxvUchapterS36tsectjw53614W try 61412020 MO Rev Slat § 536.140. Section 536.140. Scope of judicial reviewyudgment—appeals, . 2011 Missouri Revised Statutes'.: US Godes a_. (4) Is, for any other reason, unauthorized by law; (5) Is made upon unlawful procedure or without a fair trial; (6) Is arbitrary, capricious or unreasonable; (9) Involves an abuse of discretion. The scope of judicial review in all contested cases, whether or not subject to judicial review pursuant to sections 536.roo to 536.140, and in all cases in which judicial review of decisions of administrative officers or bodies, whether state or local, is now or may hereafter be provided by law, shall in all cases be at least as broad as the scope of judicial review provided for in this subsection; provided, however, that nothing herein contained shall in any way change or affect the provisions of sections 31r.69o* and 311.700*. 3. Whenever the action of the agency being reviewed does not involve the exercise by the agency of administrative discretion in the light of the facts, but involves only the application by the agency of the law to the facts, the court may upon application of any parry conduct a de novo review of the agency decision. 4. Wherever under subsection 3 of this section or otherwise the court is entitled to weigh the evidence and determine the facts for itself, the court may hear and consider additional evidence if the court finds that such evidence in the exercise of reasonable diligence could not have been produced or was improperly excluded at the hearing before the agency. Wherever the court is not entitled to weigh the evidence and determine the facts for itself, if the court finds that there is competent and material evidence which, in the exercise of reasonable diligence, could not have been produced or was improperly excluded at the hearing before the agency, the court may remand the case to the agency with directions to reconsider the same in the light of such evidence. The court may in any case hear and consider evidence of alleged irregularities in procedure or of unfairness by the agency, not shown in the record. 5. The court shall render judgment affirming, reversing, or modifying the agency's order, and may order the reconsideration of the case in the light of the court's opinion and judgment, and may order the agency to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in the agency, unless the court determines that the agency decision was arbitrary or capricious. 6. Appeals may be taken from the judgment of the court as in other civil cases. htlpsI/law_justla.comlcodesfmisseuril Iftitlexxxvl/chapter5361sectlon5361401 2/3 m lytevav 42 US. Code § 1983- Civil action for dapnvation of 1l1hta I LLS_ Codi, I US Law I LII I Legal Information ns i EXHIBIT 42 U.S. Code § 1983. Civil action for deprivation of rights U.S. Code Notes Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. (R.S. § 1979; 'Pub. L9116-_170, §,1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104 317, title III, § 309(c), Oct. 19, 1996, 110. Stat 3853.) IIA' U.S. Code Toolbox Law about... Articles from Wex Table of Popular Names Parallel Table of Authorities https.11www law_comell edwuscodetmxt/4211983 1 2 61412020 ACLU of Missouri Clary v. Cape Girardeau I ACLU of Missouri $b EXHIBIT a Menu David Clary v. City of Cape Girardeau, Missouri and Matthew Peters Update: February 29, 2016 The United States District Court for the Eastern District of Missouri issued a permanent injunction that prohibits the city from enforcing its unconstitutional "noise" ordinance. A trial will be held to determine the damages resulting from Mr. Clary's 2013 arrest under the unconstitutional ordinance. Date Filed: September 5, 2014 After receiving a citation for making a prohibited turn, Clary used strong language to express his displeasure to Officer Peters. Officer Peters retaliated by arresting Clary on August 30, 2014 because of the content of his speech. Clary is seeking: • A declaration that § 17-157 of the City of Cape Girardeau Code of Ordinances is unconstitutional on its face • A declaration that the application of § 17-157 of the City of Cape Girardeau Code of Ordinances to Plaintiff's conduct was unconstitutional • An injunction requiring Defendant City to develop and implement adequate training programs for its police officers about rights under the First and Fourteenth Amendments • nominal damages • costs hi flwww.aclu-mo-orglenlnode164 112 61,V2020 • attorneys' fees ATTORNEY(S) Anthony Rothert and Gillian Wilcox DATE FILED JANUARY 23, 2017 Clary v- Cape Girardeau I ACLU of Missouri COURT United States District Court/Eastern District of Missouri/Southeastern Division STATUS Open hit,1 www-acro-mo.or,renmoaer6a 212 61412020 , Clary v- City of Cape Girardeau, 165 F. Supp, 3d 808 I Casetexl Soarch . Cila EXHIBIT casetext He[ Search all cases and statutes— Browse cases 8th Circuit February Clary V. City of Cape Girardeau L Download United States District Court, E.D. Missouri, Southeastern Division. Feb 29, 2016 165 F. Supp. 3d 808 (E.D. Mo. 2016) Copy Citation Cases citing this case D.P. v. Gtasconade Cnty. Bar! beau v, City of Minneapolis, 596 F. 3d465, 481 (8th Cir, 2010). To prevail on a First Amendment - 3 3 Citing Cases > Case No. 1:14 -CV -125 -CEJ o2-zg-zot6 hkps:Ucasetextconvcasetcary-v-MYot-cape-9irardeau-i ! ' - fv 1131 61412020Clary v. City of Cape Girardeau, 165 F Supp. 3d 8081 Casetext Search +Citator liavia eiary, riamtirr, v. Miry of cape urraraeau, ivussourr ana mattnew Fetters, Defendants. Anthony E. Rothert, Andrew J. McNulty, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, Grant R. Doty, U.S. Equal Employment Opportunity Commission, St. Louis, MO, Gillian R. Wilcox, American Civil Liberties Union of Missouri, Kansas City, MO, for Plaintiff. Albert M. Spradling III, Spradling & Spradling, Cape Girardeau, MO, for Defendants. CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE Anthony E. Rothert, Andrew J. McNulty, Jessie M. Steffan, American Civil Liberties Union of Missouri Foundation, Grant R. Doty, U.S. Equal Employment Opportunity Commission, St. Louis, MO, Gillian R. Wilcox, American Civil Liberties Union of Missouri, Kansas City, MO, for Plaintiff. Albert M. Spradling III, Spradling & Spradling, Cape Girardeau, MO, for Defendants. MEMORANDUM AND ORDER CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE This matter is before the Court on the parties' cross-motions for summary judgment, pursuant to Fed. R. Civ. P. 56(a). The issues arc fully briefed. Plaintiff David Clary brings this action pursuant to 42 U.S.C. § 1983, claiming that the defendants violated his First Amendment right to freedom of speech. The defendants are the City of Cape Girardeau, Missouri (the "City") and Matthew Peters, one of the City's police officers, who is sued only in his individual capacity. I. Background A. The traffic stop and arrest hftps'.fleae,dext pomlceselclary-v-city-o6 capeglrardeau-1 2137 6/E/2020 Clary v. City of Cape Girardeau, 165 F Supp. 3d 606 1 Casetext Search + Cilator On the morning of August 30, 2013, plaintiff was driving his truck in the City when he made an illegal right turn at an intersection. Peters, who was in a marked police car, saw plaintiff make the illegal turn and decided to initiate a traffic stop. Peters turned on the police car's emergency lights, signaling plaintiff to pull over. The parties dispute where the traffic stop occurred. According to defendants, plaintiff drove onto the parking lot of a battery store and the traffic stop occurred there. Plaintiff maintains that he pulled over on the public street adjacent to the battery store. Because it does not affect the outcome, the Court will assume that the stop occurred on a private parking lot. After plaintiff stopped his truck, Peters parked his police car behind it. The parties also dispute whether Peters parked five feet from the rear of plaintiff's truck or a full car -length away. Regardless, neither party contends that the distance between the vehicles or between plaintiff and Peters was ever fifty feet or more. Once stopped, plaintiff and Peters exited their respective vehicles. Peters instructed plaintiff to get back into his truck, and plaintiff complied. Peters then approached and told plaintiff that he was being stopped for making an illegal right turn. In response to Peters' request, plaintiff produced his driver's license and vehicle registration, both of which were valid. Peters returned to the police car where he verified plaintiff's documentation and prepared a citation and a summons for the illegal right turn. When Peters returned to '813 the truck, he told plaintiff that a citation was being issued for the traffic violation. He also told plaintiff that he could either plead guilty by mail and pay a fine or dispute the citation by appearing in court on the date listed on the summons. Plaintiff signed the citation and acknowledged receipt of the summons. Plaintiff then told Peters that he intended to appear in court to challenge the citation, because it was "crap." He also said that the citation was "bullshit" and called Peters a "dick." Peters responded, "I'm sorry." Plaintiff then again called hVpsJlcasetextoom/case/clary-v-cllyb(cepe-glrardeaui 3/37 6/412020 Clary v City of Cape Girardeau, 165 F. Supp. 3d 0081 Casetext Search + Citator Peters a "dick." Peters asked plaintiff why he had said that, and plaintiff replied to the effect that Peters had been a "dick" from the moment he first exited the police car. Peters handed plaintiff the citation, told plaintiff to "drive safely" and to "have a nice day," and walked back to his police car. After Peters walked back to his police car, plaintiff told him to "go fuck" himself. When Peters asked plaintiff what he had said, plaintiff replied, "fuck off." The parties disagree about whether or not plaintiff yelled the profanity. Because it does not affect the outcome, the Court will accept defendants' contention that he did. According to defendants, after plaintiff began yelling approximately ten people exited a pool store that was located across a four -lane street and more than too feet from the scene and watched the encounter. Defendants also contend that a man also exited the battery store and began watching. Plaintiff does not concede that anyone came out the pool store; he asserts that one person came out of the battery store only after he had stopped yelling. In response to the profanity, Peters told plaintiff, "[I]f I can hear your voice over So feet, I'm going to take you to jail." Pl. Dep. 14:19-20. Peters then reiterated his intention to arrest plaintiff if he continued to yell. Plaintiff responded that Peters should either "do it or shut the fuck up." Peters then walked back to plaintiff's truck and told him to exit the vehicle. Plaintiff complied and was handcuffed. Plaintiff was arrested for violating § 17-157(a) (9) of the Cape Girardeau Code of Ordinances, not for the illegal right turn. According to defendants, Peters arrested plaintiff because "people [came] out of the business[es]... plus the level of [plaintiff's] voice[.]" [Doc. # zz at S] However, despite the City's policy that an officer should record witnesses to a violation of the ordinance when those witnesses are identifiable, Peters did not do so. Peters did not interview or attempt to interview any witnesses or alleged victims either before or after the arrest. He spoke to the person who had exited the battery retailer, but only to obtain permission to leave plaintiffs truck on the parking lot while he took plaintiff to the police station. Peters acknowledges that his only evidence that anyone was disturbed by nlaintiffre rnnr7nrt orae thm Fort that n�uxnla. twits rl tha txxm etnrae anri nmtrh nli thn htlps:Ucasetext.cam/case/clary-v cityof-cape-guardeau-1 4/31 6/4/2020 Clary v Cily of Cape Girard", 165 E Supp. 3d 808 1 Case?text Search +Dilator encounter. Peters Dep. 31:1-5 (exiting the stores was "a sign of them being disturbed"). Peters testified in his deposition that had any of these individuals reported being disturbed by the profanity, then plaintiff would have been guilty of peace disturbance, which is covered by a different ordinance. Id. at 18:19-24. Peters further admitted that he would not normally obtain the names of witnesses or victims for "something like this," because the "victim" is the "general population." Id. at 19:3-17. Plaintiff was taken to the police station where he was fingerprinted and photographed. He was detained there for approximately one hour. After a bench trial in the City's municipal court, plaintiff was found guilty of making an illegal right turn for which he "814 was assessed a fine and court costs. fie was found not guilty of violating Ordinance 17-1S7(a) (9). B. The ordinance Ordinance § 17-157 prohibits certain categories of noise -producing activity, such as broadcasting electronically amplified music at night without a permit in a residential area. The parties agree that no court in Missouri has ever had cause to interpret § 17-157. The plaintiff was charged and acquitted oI'violating § 17-157(a) (9) (the "Ordinance"), which provides as follows: (a) In general. No person shall make, continue, or cause to be made or continued, or allow anyone or anything under his control to make or cause, any noise disturbance. Noncommercial public speaking and public assembly activities conducted on any public space or public right-of-way and otherwise complying with this Code of Ordinances shall be exempt from the operation of this section. The following acts, among others not herein listed, and the causing thereof, are declared to be in violation of this article, but said enumeration shall not be deemed to be exclusive, namely: >rT� hUeS11aaaa,te4 amrcase:clary-IC01Y 4'-pe*911arde-11 537 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 8081 Caselext Search a Citator (9) Yelling, shouting, hooting, whistling or singing on any public street, particularly between the hours of 11:0o p.m. and 6:0o a.m., or at anytime or place so as to annoy, disturb the quiet, comfort or repose of persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity[.] Cape Girardeau Code of Ordinances § 17-157(a) (9). Unlike other sections of § 17-157, subsection (a) (9) does not specify at what distance from the source of the yelling, shouting, hooting, whistling, or singing a sound must be audible to constitute a violation. Further, the Ordinance does not define "yelling," "shouting," "hooting," "whistling," "singing," "annoy," "disturb," "quiet," "comfort," "repose," or `vicinity." Defendants contend that the only two factors that determine whether a person has committed a violation are: (1) the "level of [that person's] voice" and (2) whether that sound "disturb[s]" "[s]emeone in [a] business." [Doc. # 22 at 5] Nevertheless, defendants concede that the Ordinance plainly forbids "annoy [ing]" or "disturb[ing]" anyone in any "dwelling, hotel or other type of residence" or "annic ing]" or "disturb[ing]" "any persons in the vicinity[.]" The City has an unwritten policy that its police officers have "discretion to decide" based on their "common sense" whether a person's yelling, shouting, hooting, whistling, or singing is violative of the Ordinance. Barker Dep. 1024-16, 12:15-18. Further, the City interprets the Ordinance to mean that an individual may be guilty of a violation even in the absence of a non -officer complainant. Id. at 10:6-16. That is to say, a police officer can be the complainant if the officer is himself annoyed or disturbed by a person's yelling, shouting, hooting, whistling, or singing, provided that the officer can hear the sound at a distance of at least fifty feet. Id. at 22:4-10. Peters interprets the Ordinance to mean that he may arrest someone for yelling, shouting, hooting, whistling, or singing that "disturb[s] [a] business [ ]," even if the businessperson who is disturbed is a mere five feet from the source of the hues//casetexl. corn/case/clary-v-city-of-capeylradeau-1 6137 6/412020 Clary v. City of Cape Girardeau, 165 F Supp- 3d 8081 Casetext Search t Citator sound. Peters Dep. 21x1-25, 24:4-10. By way of example, though Peters' common sense tells him that "normal speech" "probably" would not disturb a business, he believes that a person yelling political slogans in favor of a particular candidate for office would be guilty of violating the Ordinance if yelling the slogans disturbed anyone's business. Id. at 24:4-10, 35:15-25, 36:1-5.'815 Peters further explained that the Ordinance operates "kind of like a peace disturbance," except that "if there's a peace disturbance, you will have a victim who will actually sign a piece of paper." Id. at 22:7-22. In contrast, the City's police officers can "be a little more proactive" and can charge individuals with violating the Ordinance in situations where the person allegedly annoyed or disturbed wants to "end the problem without having to identify themselves," provided the officer hears the purportedly offensive sound. Id. at 22:7-22, 29:7-21. In addition to granting its police officers discretion to determine when a violation has occurred, the City's unwritten policy further provides that an officer has the "discretion" to decide whether to arrest an individual for violating the Ordinance or to just issue a citation. Barker Dep. 14.23-15:3. In deciding how to exercise this discretion, an officer considers the following factors: (1) whether the violator refuses to sign the citation, (2) whether the officer has had prior contacts with the violator and has "knowledge of whether" the violator is "likely to appear in court or not," and (3) the officer's perception of the violator's "demeanor" and "attitude toward the officer." Id. at 15:4-17:5. None of these factors is listed in the Ordinance. II. Summary Judgment Standard Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the moving party shows "that there is no genuine dispute as to any material fact and the movant is entitled to ajudgment as a matter of law." In ruling on a motion for summary judgment the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgHStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cinio87). The movine natty bears the burden of showine both the absence of a https a/casetext, omlcaselclary-v-city-of-cape-girardeau-1 7137 8/4/2020, Clary v. City of Cape Girardeau, 165 F Supp. 3d 8081 Casetext Search +Citator genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, io6 S.Ct. 2505, 91 L.Ed.2d 2o2 (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 1o6 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has met its burden, the non- moving party may not rest on the allegations of his pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. United of Omaha Life Ins. Co. v. Honea , 4S8 F.3d 788, 791 (8th Cir.2oo6) (quoting Fed. R. Civ. P. 56(e) ). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Coil). v. Garrett, 477 U.S. 317, 322, 1o6 S.Ct. 2548, 91 L.Ed.2d 265 (1986). M. Discussion Plaintiff first claims that Peters retaliated against him for exercising his First Amendment right to freedom of speech (Count I). Plaintiff also claims that the City failed to train Peters regarding the rights protected by the First Amendment and that the City failed to adequately supervise Peters to prevent infringement of those rights (Count II). Plaintiff additionally seeks a declaration that § 17-157 in its entirety is unconstitutional on its face (Count III) and as applied to him (Count IV), and that the Ordinance is void for vagueness (Count V). A. Void for Vagueness The parties have focused their summary judgment motions on § 17-1-57(a)(9) and have not addressed the other +816 provisions of § 17-157. The City bears the burden of proving that the Ordinance does not violate plaintiff's First Amendment right to free speech, because "[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions." United States v. Playboy Entnt't Grp., Inc. , 529 U.S. 803, 816,1zo S.Ct. 1878, 146 L.Ed.zd 865 (z000) ; see Phelps - Roper v. Koster, 713 F•3d 942, 949 (8th Cir.2013) (same). But because defendants arc opposing summary judgment on https'.1/casetextcem/case/clary-v- city -of -cape-girardeau-1 ' • r 8137 6)4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 I Caselexl Search t Citator plaintitrs voia-tor-vagueness clalm, the t;ourt is required to view the racts in the light most favorable to them on that claim. Farrow, 82,6 F.2,d at 734. (I) Legal Standard "A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." FCC v. Fox Television Stations, Inc. , --- U.S. ---, 132 S.Ct. 2,307, 2,317, 183 L.Ed.zd z34 (2012) (citing Connally v. Gen. Constr. Co. , 2,69 U.S. 385, 391, 46 S.Ct. 126, 7o L.Ed. 322 (1926) ). The "requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. It requires the invalidation of laws that are impermissibly vague." Id. (citation omitted); see Johnson v United States , U.S. , 135 S.Ct. 2551, 2,556,192 L.Ed.zd 569 (2o15). The Supreme Court has explained: Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. Fox Television Stations, Inc. , 132, S.Ct. at 2317 (citing Grayned , 408 U.S. at lo8-o9, 92 S.Ct. 2.294); see City of Chicago v. Morales , 5z7 U.S. 41, 56,119 S.Ct. 1849, 144 L.Ed.zd 67 (1999)• Put another way, "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned , 4o8 U.S. at lo8—o9, 92, S.Ct. 2294• The Due Process Clause's proscription against vague regulations is stronger still when the regulation in question implicates the First Amendment. "When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech." Fox Television Stations, Inc. , 132, S.Ct. at 2317. That is so because "[s]peech is an activity particularly susceptible to being chilled, and regulations that do not provide citizens with fair notice of nrhvt nnn etitn the n hart th nee. .nhn a•cnnnen https/Icasepexl.com/caselclary- cdy-of-cape-girartleau-1 9/37 61412020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 8081 Casetext Search+Citator unpopular or controversial beliefs." Stahl v. City of St. Louis , 687 F.3d 1038, 1041 (8th Cinzotz). In Fox Television Stations, Inc. , the Supreme Court wrote: "A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained `fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' " 132 S.Ct. at 2317 (quoting United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, v70 L.Ed.zd 65o (2oo8) ). "[A] regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved." Id. (citing Williams, 553 U.S. at 3o6, 128 S.Ct. 1830). The "plain meaning of the text controls, and the legislature's specific motivation for passing a law is not relevant," *817 when deciding whether a regulation fails to provide fair notice of what is prohibited or authorizes or encourages seriously discriminatory enforcement. Phelps - Roper v. City of Manchester, 697 F.3d 678, 688 (8th Cir.zotz) (en bane) (quotation marks and citation omitted). Words "should be read according to their ordinary meaning." United States v. Stevens, 559 U.S. 46o, 474-75,130 S.Ct. 1577,176 L.Ed.zd 435 (nolo). The text standing alone is not the only source from which to derive the ordinary meaning of the words, however. "The inherent uncertainty of language often will impart some degree of vagueness to a statute, but that uncertainty alone does not mean that a statute is unconstitutional. Recourse to additional sources like dictionaries or judicial opinions may provide sufficient warning." Neely v. McDaniel, 677 F.3d 346, 350 (8th Cir.2012). Another analytical tool in the plain -text analysis is "the commonsense canon of noscitur a sociis," by which "an ambiguous term may be given more precise content by the neighboring words with which it is associated" and "an unclear definitional phrase may take meaning from the term to be defined...." Stevens, 559 U.S. at 475, 130 S.Ct. 1577. In addition, " `[i]n evaluating a facial challenge to a state law, a federal court hflps:Ocasetextcom/easefolary-v-city-of-cape-0irardeao-1 10137 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 888 I Caselexl Search + Citalor must... consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v. Rock Against Racism , 491 U.S. 781, 795-96, tog S.Ct. 2746, toy L.Ed.zd 661 (1989) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494 n. 5, lot S.Ct. 1186, 71 L.Ed.2d 362 (1982) ). Here, no state court has interpreted the Ordinance. Thus, the Court is left with the limiting construction proffered by the City and Peters, the enforcing agents. However, a narrowed reading of the plain text is distinct from a policy of limited enforcement or prosecutorial discretion. For "the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige." Stevens, 559 U.S. at 48o, 130 S.Ct. 1577. A court cannot "uphold an unconstitutional statute merely because the Government promise[s] to use it responsibly." Id. (2) Evaluation of Ordinance for Vagueness The Ordinance bans the following: "Yelling, shouting, hooting, whistling or singing ... at any time or place so as to annoy, disturb the quiet, comfort or repose of...any persons in the vicinity." The Ordinance does not define "yelling," "shouting," "hooting," "whistling," "singing," "annoy," "disturb," "quiet," "comfort," "repose," or "Vicinity." The Supreme Court has held that "singing... whistling, shouting, [and] yelling" are forms of speech protected by the First Amendment. Madsen v. Women's Health Ctr, Inc. , 512 U.S. 753, 772, 114 S.Ct. 2516,129 1,.Ed.2d 593 (1994) ; see also Ward, 491 U.S. at 790,109 S.Ct. 2746 ("Music, as a form of expression and communication, is protected under the First Amendment."). No party has disputed, and the Court is confident, that "hooting," however defined, enjoys the same protection. See Virginia v. Black , 538 U.S. 343, 358,123 S.Ct. 1536,155 L.Ed.2d 535 (2003) ("The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.") (a) Manner of Communication Government has the power to regulate yelling, shouting, hooting, whistling, or singingi.e. , the manner of communication—and the time and place thereof hitpsl/casetext comlcase/clary-v-,,'i epeguard i 11/37 614/2020 Clary v. City of Cape Girardeau, 165 E Supp. 3d 808 1 Casetext Search +Cilater only if its regulations are: (1) "content and viewpoint neutral," Veneklase v. City of Fargo , 248 F.3d 738, 744 (8th Cir.2.ci (en bane); (2) "narrowly tailored to serve a significant government interest"; and (3) *818 "allow for ample alternative channels for communication" Koster, 713 F.3d at 950 (quotation marks and citations omitted). "[T]he requirement of narrow tailoring is satisfied so long as the... regulation promotes a substantial governmental interest that would be achieved less effectively absent regulation," provided that it does not "burden substantially more speech than is necessary to further the government's legitimate interests." Ward , 491 U.S. at 799, tog S.Ct. z746 (quotation marks and citations omitted).' 1 The Ordinance also criminalizes annoying or disturbing speech on private property (c.g. , the battery store's parking lot). Although it is disputed whether plaintiff was stopped on private property or on a public street at the time he violated the Ordinance, neither party has addressed the question of whether the City may forbid an individual poised on private property—including in his or her own house—from annoying or disturbing another person on that property or elsewhere. That question, however, warrants no further discussion, because the Court concludes that the Ordinance is unconstitutionally vague regardless of where the speaker is located. As applied to "noise restrictions," a time, place, and manner regulation may be justified based on the volume of noise produced at a particular place and time, because "the nature of a place, the pattern of its normal activities, dictate the kinds of regulations... that are reasonable." Madsen , 512 U.S. at 772, 114 S.Ct. 2516 (quotation marks and citations omitted); see id. at 772-73,114 S.Ct. 2_516 (upholding regulation of excessive noise and protests around medical facilities); Ward, 491 U.S. at 796, tog S.Ct. 2746 (holding that "government may act to protect... traditional public forums as city streets and parks from excessive noise"); Frisby v. Schultz, 487 U.S. 474, 484, 487,108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (recognizing that government may restrict noise that invades "the well- hfips//cosetext com/case/clary-v-city-of-cape-grrardeau-1 12137 6W2020 Clary v. City of Cape Girardeau, 166 F. Supp. 3d 8081 Cesetexl Search +Captor oeing, Iranquuiry, ane privacy of the nome- to protect the -captive- auclience that "cannot avoid the objectionable speech"); Grayned , 408 U.S. at 120, 92 S.Ct. 2294 (upholding a regulation meant to prevent disruptions to schools during the school day); id. at 116, 92 S.Ct. 2294 (recognizing bans on "overamplified loudspeakers"); City of Manchester, 697 F.3d at 691-92 (shielding funeral services from excessive noise and protests). Some imprecision is undoubtedly involved when deciding whether a vocalization constitutes yelling or shouting, as opposed to mere talking. So, too, when distinguishing between mere noise and hooting, whistling, or singing. In this case, the constitutionally -protected manner of communication the Ordinance regulates is sufficiently defined such that an ordinary person would understand what activity is proscribed. Further, the fact that the City decided to regulate certain manners of expression without defining those terms does not in itself authorize or encourage seriously arbitrary enforcement. (b) Time and Place of Communication The Ordinance also clearly delineates the times and places where yelling, shouting, hooting, whistling, or singing might be criminal. Those forms of speech are potentially forbidden at any place and at any time (provided that the speaker is also annoying or disturbing, as discussed below). A person of ordinary intelligence would have no trouble understanding the Ordinance's categorical ban on certain forms of speech everywhere, all of the time. Moreover, such sweeping regulation does not authorize or encourage seriously discriminatory enforcement, any more than categorical bans on driving in excess of the speed limit or the use of controlled substances at all places and times necessarily means that some offenders will be caught and others will not. Thus, a prohibition r 'big on whistling at any place and at any time is not vague. But plainly a regulation categorically banning all of those forms of unamplified speech at any place and time would be, at minimum, unconstitutional on its face under the overbreadth doctrine. See Stevens , 559 U.S. at 473,130 S.Ct. 1577 ("[A] law may be invalidated as overbroad if `a substantial number of its applications htlps Po,eetextcoMcaselclary-v-city-of-cape-0irartleau-1 13137 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 I Caselexl Search + Cii are unconstitutional, judged in relation to the statute's plainly legitimate sweep.' " (quoting Grange, 552 U.S. at 449 n. 6,128 S.Ct. 1184)); Morales , S27 U.S. at S2, 119 S.Ct. 1849; Grayned , 408 U.S. at 114-15, 92 S.Ct. 2294 ("The crucial question ... is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments."); see also Kovacs v. Cooper, 336 U.S. 77, 81-82, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (remarking, in dicta, that the "[a]bsolute prohibition within municipal limits of all sound amplification , even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities" (emphasis added)). Further, the City's interpretation of "vicinity" as encompassing only those forms of speech audible fifty feet or more from the speaker does not cure the constitutional defect. Even if the Ordinance criminalized, for example, only singing or whistling that was audible over fifty feet from the speaker at all places and at all times, the Ordinance would still be either unconstitutionally overbroad on its face or unconstitutional as a time, place, and manner restriction that is not narrowly tailored. See Stevens , 559 U.S. at 473,130 S.Ct. 1577 ; Deegan v. City of Ithaca , 444 F.3d 135, 140 (2d Cir.20o6) (holding that a noise ordinance that, as interpreted by a rnunicipality, restricted "any noise—anywhere in the city at any time of the day or night—if it can be heard 25 feet away" was not a narrowly tailored time, place, and manner restriction and was thus unconstitutional (quotation marks and citation omitted)); United States v. Doe, 968 F.2d 86, 90 (D.C.Cir.1992) (striking down as unconstitutional a noise ordinance that banned sound in excess of 6o decibels at So feet). Thus, if the Ordinance forbids yelling, shouting, hooting, whistling, and singing at all places and at all times wherever audible at a distance of fifty feet or more without an additional element to distinguish the licit from the illicit, the Court would have to conclude that the Ordinance was unconstitutional. The Ordinance consequently survives or falls on the particular circumstances in which conduct —that is, forms of speech audible anywhere, at any time, from fifty feet or more —transforms into an actual crime. The Court need not remark further on the haps://casetext.comlcase/clary-v-city-of-capegirerdeau-1 14137 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp, 3d 8081 Casetext Search a Citator sweeping times and places where the Ordinance might criminalize protected speech, because the vague circumstances in which the Ordinance does criminalize protected speech are fatal. (c) Annoying or Disturbing Third Parties The Ordinance fails to put a person of ordinary intelligence on notice of when his regulated forms of speech at any place and time actually violate the law, and it also authorizes and encourages seriously discriminatory enforcement. The operative words are "annoy" and "disturb the quiet, comfort or repose," by which yelling, shouting, hooting, whistling, or singing at any time or place in the City becomes criminal. Again, these terms are not defined, nor has any state court been called upon to examine the Ordinance to determine their meaning. Cf. Smith v. Coguen , 415 U.S. 566, 573, 94 S.Ct. 1242,39 L.Ed.2d 605 (1974) ("Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, "sao the doctrine Eof vagueness] demands a greater degree of specificity than in other contexts."). Courts have found that the meaning of "annoy" is not so apparent that an ordinary person would be on notice of what constitutes a violation. Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.zd 214 (1971), is instructive. In Coates, the Supreme Court struck down an ordinance as void for vagueness where it prohibited "conduct... annoying to persons passing by." Id. at 612, 91 S.Ct. 1686. The Supreme Court explained that, "'annoying' is a widely used and well understood word," so the term "annoy" is not vague. Id. The Court found, however, that "[c]onduct that annoys some people does not annoy others," and, therefore, "no standard of conduct is specified at all," such that "men of common intelligence must necessarily guess at its meaning." Id. (quotation marks and citations omitted). Coates held: The city is free to prevent people from... engaging in countless... forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable snecificity toward the conduct to hfips l/casetext.com/case/clary-v-city-of-cape-girardeau-1 15137 6/412020 Clary v. City of Cape Girardeau, 165 F Supp. 3d 868 I Caselext Search + Citator be prohibited.... It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed. Id. (citation omitted). Further underscoring its rationale, the Supreme Court addressed the inevitable chilling effect that vague regulations have on speech: The First and Fourteenth Amendments do not permit a State to make criminal the exercise of [free speech] simply because its exercise may be "annoying" to some people. If this were not the rule, the right of the people to [speak] would be continually subject to summary suspension through the good -faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose [speech] is "annoying" because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens. Id. at 615—i6, 91 S.Ct. 1686 ; see also Cohen v. California , 403 U.S. 15, 21, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ("The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner." (citations omitted)). Precedent also forecloses interpreting the undefined phrase "disturb the quiet, comfort or repose" as anything other than a vague prohibition that "authorizes or encourages seriously discriminatory enforcement." Fox Television Stations, Inc. , 132 S.Ct. at 2317. In Cox v. Louisiana , 379 U.S. 536, 85 S.Ct. 466,13 L.Ed.2d 487 (1965), the Supreme Court struck down as unconstitutionally vague a statute that defined a "'breach of the peace' as actions with a tendency `to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.' " Id. at 551, 85 S.Ct. 466 (citation omitted). The Court reasoned that such a "definition[ ] would allow persons to be punished merely for peacefully expressing unpopular views." Id. ; see Brown v. Entm't Merchs. Assn , 564 U.S. 786, , , Q Ot o..n iQ, T WA A -vn51 /,rna1 ("FW;c,e ,et;o not o ,,olid hneie 17n, https://casetext,wm/case/clary-v-city-ofcape-gimrdeeu-1 16137 6/4/2020, Clary v. City of Cape Girardeau, 165 F Supp. 3d 8081 Casetext Search +Citator .restricting expression."); Goguen , 415 U.S. at 573, 94 S.Ct. 1242 ("[W]hat is contemptuous to one man may be a work of art to another."). The Ordinance makes no distinction between speech that disturbs the quiet, comfort, or repose of the hearer because of its volume and that which disturbs because of '82, its subjective offensiveness. See McCullen v. Coakley , -- U.S. ----,134 S.Ct. 2518, 2531-32, 189 L.Ed.2d Sot (2014) (explaining that a statute "would not be content neutral if it were concerned with undesirable effects that arise from the direct impact of speech on its audience or listeners' reactions to speech"). Under the Ordinance, a too -loud sound and a subjectively offensive sound are treated equally as a noise disturbance and, leaving the speaker to guess what sounds may disturb his fellow citizens. Inevitably such a regulation will have a chilling effect on speech, and the Ordinance therefore violates due process. Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 789 (8th Cir.2015) ( "[T]he right to free speech `includes the right to attempt to persuade others to change their views' which `may not be curtailed simply because the speaker's message may be offensive to his audience.' " (quoting Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.F.d.2d S97 (2000) ); see Grayned , 408 U.S. at 117-18, 92 S.Ct. 2294 ("[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.... Expressive activity [can] certainly be restricted, but only if the forbidden conduct materially disrupts [a captive audience] or involves substantial disorder or invasion of the rights of others." (quotation marks and citation omitted)); Street v. New York , 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) ("[U]nder our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."); Terminiello v. City of Chicago, 337 U.S. 1, 3, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (reversing a conviction for "breach of the peace" where that crime was defined so as to punish speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or ... molests the inhabitants in the enjoyment of peace and quiet by arousing alarm"); see also Joyce, 779 F.3d at 790 hftps //casetext com/case/clary-v-city-of-cape-gimudeau-1 17137 6/412020 Clary v. City of Cape Girardeau, 165 E Supp. 3d 8081 Casetext Search * Cooler (citing Texas v. Johnson, 491 U.S. 397,407-08,414,109 S.Ct. 2533, ios L.Ed.2d 342 (1989), and explaining that "[d]isagreement with a message does not permit its suppression"); City of Manchester , 697 F.3d at 686. Moreover, that the Ordinance criminalizes speech that annoys or disturbs any third party without defining those terms means that an individual can avoid a criminal charge only by never yelling, shouting, hooting, whistling, or singing anywhere, at any time. In Stahl, the Eighth Circuit found a municipal ordinance void for vagueness where the ordinance did "not provide people with fair notice of when their actions are likely to become unlawful." 687 F.3d at 1041-42. That ordinance "criminalize[d] speech if it ha[d] the consequence of obstructing traffic, but the speaker [did] not know if his or her speech [was] criminal until after such an obstruction occur[red.]" Id. The Eighth Circuit struck down the ordinance because it "criminalize[d] activity based primarily on often unpredictable reactions of third parties rather than directly on a person's own actions." Id. The Ordinance here suffers from the same problem, for the speaker has been given no meaningful standard to determine whether his speech is disruptive before he speaks. The speaker learns that he has disturbed others nearby only after yelling, shouting, hooting, whistling, or singing, at which point he has already committed the crime. Such a prohibition again has the inevitable effect of chilling protected speech, for to avoid committing a crime, the speaker must err on the side of caution and never yell, shout, hoot, whistle, or sing within the City limits. Additionally, due to the absence of any definition there is a conflation of prohibited and permitted conduct. Thus, the Ordinance "822 contains no mens rea requirement: it matters not whether the hooter, singer, or whistler intends to offend, only that a third -party, the victim, is annoyed or disturbed. In Morales, the Supreme Court explained that a criminal law may be vague if it "contains no mens rea requirement," because such a law permits a state to punish the offender based solely on third -parties' reactions to his conduct. 527 U.S. at 55, ti9 S.Ct. htlpsllcaselext.comtcaselclary-v-city-of-cape-girardeau-1 18/3] 6I4I2020 Clary v. City o1 Cape Girardeau, 165 F. Supp. 3d 608 1 Casetext Search a Citator 1849; see Grayned , 408 U.S. at 113-14, 92 S.Ct. 2294. Applying the same standard, the Eighth Circuit found the ordinance at issue in Stahl void for vagueness because a "violation of the ordinance does not hinge on the state of mind of the potential violator, but the reaction of third parties." 687 F.3d at 1041-42, (citing Morales , S27 U.S. at 55, 119 S.Ct. 1849 ). That the Ordinance here subjects a speaker to criminal liability solely based on third -parties' subjective annoyance or disturbance, without a requirement that the City prove any scienter, also compels the conclusion that the Ordinance is void for vagueness. Further, defendants offer no official policy or unofficial interpretation that would explain to a person of ordinary intelligence how to shape his conduct to avoid annoying or disturbing the quiet, comfort, or repose of all persons fifty feet or more from him at all times. The determination of what separates annoyance and disturbance from innocent conduct is made by a police officer based on his "common sense." Even when the officer is not the complainant, he need not interview or even identify the `victims," for all that matters is that his "common sense" tells him that the people he observed more than fifty feet away were annoyed or disturbed by the speech. Vesting law enforcement officials with complete discretion to decide whether a violation has occurred is the hallmark of a vague regulation. As the Supreme Court wrote in Kolender v. Lawson , 461 U.S. 352,, 103 S.Ct. 1855, 75 L.Ed.zd 903 (1983), a statute that accords to police "the full discretion... to determine" whether a violation has occurred "entrusts lawmaking to the moment -to - moment judgment of the policeman on his beat[,]... furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure[,] ... and confers on police a virtually unrestrained power to arrest and charge persons with a violation." Id. at 357-58, 360-61, 103 S.Ct. 1855 (quotation marks and citations omitted). "Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law." Goguen , 415 U.S, at 575, 94 S.Ct. 12,42,. httpsa/casetard comlcaselciary-v-city-of-cape-glrardeau-1 10/31 614/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 [ Casetext Search + Cilator Itis clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or...the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. Cox, 379 U.S. at 557-58, 85 S.Ct. 466. These long-standing precedents establish that the Constitution does not permit the arbitrary criminalization of conduct that the defendants' "common sense" standard sanctions. Finally, the following examples illustrate why the Ordinance is unconstitutionally vague, both as written and as interpreted by defendants: *82,3 e A concertgoer who whistles or yells to draw her friend's attention from across a crowded private parking lot could be arrested if anyone fifty feet or more away found that sound annoying or disturbing. • The sports fan in one of the City's taverns who makes the mistake of hooting with glee at a Cubs'victory might find himself jailed for drawing the ire of a despondent Cardinals fan across the bar. • The Stentor who attempts to achieve a world record by shouting unamplified at 125 decibels is in no trouble if the onlookers to the sonorous feat are all impressed. Contrariwise, if the same person whistles a few notes from America the Beautiful at a low volume, he has broken the law if one person fifty feet away is annoyed or disturbed. • A veteran who, while standing in her back yard next to a flagpole on the Fourth of July, begins to sing the Star-Spangled Banner slightly off-key hltpsa/casepurt com/case/clary-v-city-of-cape-girardeau-1 2013] 6142020 1 Clary v. City of Cape Girardeau, 165 E Supp. 3d 8081 Casetexl Search +Cilalor could find herself arrested if a police officer patrolling nearby hears the song and is annoyed or disturbed by the imperfect rendition of America's national anthem. (3) Severability "[A]mbiguous statutory language should be construed to avoid serious constitutional doubts." Stevens, 559 U.S. at 481, 130 S.Ct. 1577 (quotation marks and citation omitted). To give effect to that canon of avoidance, a court must "look to state law to determine the severability of a state statute." Koster, 713 F.3d at 953. As the Eighth Circuit explained in Koster: Missouri law requires courts to sever unconstitutional provisions of statutes and give effect to the remaining statutory text unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. Id. (citing Mo. Rev. Stat. § 1.140, and quoting Gen. Motors Corp. v. Dir. of Revenue, 981 S.W.ad 561, 568 (Mo.1999) (en bane), which held that "[s]tatutes are presumptively severable" and "should be upheld to the fullest extent possible"). However, a court " `may impose a limiting construction on a statute only if it is "readily susceptible" to such a construction.' " Stevens , 559 U.S. at 481,130 S.Ct. 1,577 (quoting Reno v. Am. Civil Liberties Union , 521 U.S. 844, 884,117 S.Ct. 2329, 138 L.Ed.zd 874 (1997) ). A court cannot "rewrite a ... law to conform it to constitutional requirements .... for doing so would constitute a serious invasion of the legislative domain...." Id. (quotation marks and citations omitted). The distinction between severance and redrafting hinges on whether the regulation in question is ambiguous as a result of the inclusion of "a void term" or the "failure to include further clarifying provisions." Koster-, 713 F.3d at 953• A court https Ocasets xt.ccm/casekIary-v-city-of-cape-girardeau-1 21137 614/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 8081 Casetext Search * Citator faced with a regulation that cannot be cured by severing the provisions that make the regulation unconstitutional is not permitted to "insert terms" to cure the error, because courts "have an obligation to refrain from embellishing statutes by inserting language the legislature has opted to omit." Id. (quotation marks and citation omitted); see also United Food & Commercial Workers Intl Union v. IBP, Inc. , 8S7 F.2d 422, 432 (8th Cir.1988) (holding that it is "beyond [the] power [of] a federal court to rewrite the broad, straightforward language of [a statute] to avoid the constitutional difficulties presented by the plain meaning of its I terms"). Thus, the Court can at most excise ambiguous *azo terms from the Ordinance, but it may not add words to clarify any ambiguity. The Ordinance is rendered unconstitutionally vague by its inclusion of the undefined terms "annoy, disturb the quiet, comfort or repose' of a third party as an essential element of the crime. Though the Court could strike the words "annoy" and "disturb the quiet, comfort or repose' from the Ordinance, it cannot add additional terms to clarify the meaning of those vague prohibitions. With those terms excised, the Ordinance would prohibit the following: "Yelling, shouting, hooting, whistling or singing ... at any time or place." For the reasons discussed above, however, such a categorical ban on particular forms of speech would be, at minimum, unconstitutionally overbroad. See Stevens, 559 U.S. at 473, 130 S.Ct. 1577; Morales, 527 U.S. at 52,119 S.Ct.1849 ; Grayned , 408 U.S. at 114- 1S, 92 S.Ct. 2294; Kovacs , 336 U.S. at 8i-82, 69 S.Ct. 448. Further, accepting the City's narrow reading of "vicinity" as imposing a proscription against certain sounds audible only at or over fifty feet, if the Court were to strike the vague terms, the Ordinance would still prohibit all yelling, shouting, hooting, whistling, or singing that was audible at or over fifty feet from a speaker. Again, however, the Court would be compelled to conclude that such a regulation was unconstitutionally overbroad for criminalizing speech that sweeps far beyond the legitimate purpose of curtailing noise. See Stevens, 559 U.S. at 473, 130 S.Ct. 1577 ; Deegan , 444 F.3d at 140 ; Doe, 968 F.2d at 90. Even a further limiting construction would necessitate the same result. If the ('nnrt urorn to etriba o11 of thn trxrme thot ras.nrn rl nnnn thn vamrn tr�rmc ttannnv'x https l/casetexl.comlcase/clary-v-city-of-cape-girardeau-i 22137 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 I Casetexl Search + Citalor and "disturb" (e.g. , persons in dwellings, hotels, offices, and the like) and the terms by which the Ordinance applies to all times and places, the Ordinance would then only forbid "yelling, shouting, hooting, whistling or singing on any public street between the hours of u:oo p.m. and 6:0o a.m." Such a construction would render the Ordinance "incapable of being executed in accordance with the legislative intent," Koster, 7t3 F.3d at 953, because the Ordinance explicitly exempts from regulation noncommercial speech on a public street. Thus, no construction of the Ordinance in which the vague terms are excised would pass constitutional muster. For those reasons, the Court will grant summary judgment in favor of plaintiff and against the City on plaintiff's claim in Count V that the Ordinance is void for vagueness. Plaintiff is entitled to, and he will be granted, a declaratory judgment that the Ordinance is unconstitutional. Plaintiff's alternative First Amendment challenges in Counts III and IV are moot. B. Peters Peters contends that he is entitled to qualified immunity on plaintiff's First Amendment retaliation claim, which claim stems from his having cited and arrested plaintiff for the Ordinance violation. A state official "is entitled to summary judgment based on qualified immunity unless (t) the evidence, viewed in the light most favorable to the nonmoving party, establishes a violation of a federal constitutional or statutory right, and (i) the right was clearly established at the time of the violation." Capps v. Olson , 78o F.3d 879, 884 (8th Cir.2015). If the right was clearly established, then "a reasonable official would have known that [his] actions were unlawful," and no immunity attaches. Clayborn v. Struebing , 734 F.3d 807, 808 (8th Cinzoi3) (quotation marks and citations omitted). Addressing the second prong first, see Moore v. City of Desloge, 647 F.3d 841, 846 (8th Cir.2on), Peters' decision to cite and arrest plaintiff implicates ^825 plaintiff's First Amendment right to free speech and his Fourth Amendment right against unreasonable seizure. See U.S. Const. amends. I, IV. "A citizen's right to frilled //casetextcom/case/clary-v-city-ofcapeyirardl 23/37 614/2020 Clary v. City of Cape Girardeau, 165 R Supp. 3d 808 I Caselexl Search + Citalor exercise First Amendment freedoms `without facing retaliation from government officials is clearly established.' " Baribeau if. City of Minneapolis , 596 F.0465, 480- 81 (8th Cir.2oto) (quoting Kilpatrick v. King , 499 F.3d 759,767 (8th Cir.2007) ). Further, "[i]t is well established that a warrantless arrest without probable cause violates an individual's constitutional rights under the Fourth and Fourteenth Amendments." Joseph v. Allen , 712 F.3d 1222,122 6 (8th Cir.2013) (quotation marks and citation omitted). Consequently, the inquiry as to qualified immunity is whether a genuine dispute of material fact remains as to plaintiffs claim that Peters subjected him to First Amendment retaliation, the same inquiry that applies to determine if either parry is entitled to summary judgment on that claim. "To prevail on a First Amendment retaliation claim, the plaintiff[ ] must show" (i) "that [he] engaged in protected activity," (2) "that the defendant['s] actions caused an injury to the plaintiff[ ] that would chill a person of ordinary firmness from continuing to engage in the activity," and (3) "that a causal connection exists between the retaliatory animus and the injury." Small v. McOystal , 7o8 F.3d 997, 1oo8 (8th Cir.2ot3) (quotation marks and citation omitted). "Under the third prong, a plaintiff must show that the retaliatory motive was a `substantial factor' or `but -for cause' of the adverse action. In other words, the plaintiff must show he was `singled out because of [his] exercise of constitutional rights.' " Peterson v. Kopp, 754 F.3d 594, 6o2 (8th Cir.2oi4) (bracketing in original) (quoting Baribeau , 596 F.3d at 481 ). "Retaliatory motive, however, may be proved by circumstantial evidence giving rise to an inference of retaliatory intent." Williams v. City of Carl Junction , 523 F•3d 841, 843 (8th Cir.2oo8). "The causal connection is generally ajury question ... [unless] the question is so free from doubt as to justify taking it from the jury.' " Peterson , 754 F.3d at 603 (bracketing in original) (quoting Revels v. Vincenz , 382 F.3d 870, 876 (8th Cir.2004) ). To succeed on a First Amendment retaliatory arrest claim, a plaintiff must also establish (4) "lack of probable cause or arguable probable cause." Id. at 6o2 (citations omitted). As to the first element, defendants concede that shouting profanity at a police htlps l/casetexdcomlcaselciary-v-cii cape-guardeau-1 24137 6/4/2020 Clary v. City of Cape Girardeau, 165 E Supp. 3d 808 [ Casetext Search + Citator officer is activity protected by the First Amendment. See id. at 599, 602 (quoting City of Houston v. Hill, 482 U.S. 451, 461,107 S.Ct. z5o2, 96 L.Ed.2d 398 (1987), which held that, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers," and Naucke v. City of Park Hills , 284 F -3d 923, 927 (8th Cir.zooz), which explained that, "criticism of public officials lies at the very core of speech protected by the First Amendment") As to the second element, plaintiff was cited for the illegal right turn and the Ordinance violation, and the two charges were prosecuted in a single court proceeding. He was ultimately acquitted of the Ordinance violation, suffering no injury distinct from the time and effort he expended to defend against the right turn violation. Consequently, the citation alone, which resulted in no additional adverse consequences, would not chill a person of ordinary firmness from exercising his First Amendment rights. See Naucke , z84 F.3d at 928 ("[I]t would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise." (quotation marks and citation omitted)). > '826 However, being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future. Peterson , 754 F.3d at 6oz (holding that "the effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable" (quotation marks and citation omitted)). Thus, Peters' actions constituted a deprivation of plaintiff's First Amendment right to free speech for which plaintiff may be entitled to relief. As to the third element, the question is whether Peters arrested plaintiff because of his protected speech or for some other, non -retaliatory reason. See Kilpatrick , 499 F.3d at 767 (holding that whether a defendant is liable for First Amendment retaliation in part "depends upon the defendant['s] motives for making the official decisions at issue"). Peters has offered only one reason for arresting plaintiff: his assessment that there was probable cause to believe plaintiff violated the Ordinance. See Hartman v. Moore, 5$7 U.S. 250, 260, 126 S.Ct. 1695, htlps:llcasetext,com/caselclary-v-city-of-cape-girardeau-1 25137 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 806 I Casetext Search + Citator 164 L.Ed.2d 441 (2006) (holding that "upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of" (citation omitted)). "Adverse action that cannot be defended by any non - retaliatory explanation provides a basis for a reasonable jury to find that the defendant[ ] acted with improper motives." Kilpatrick , 499 Fad at 767 ; see Hartman , 547 U.S. at 2S6,126 S.Ct. 1695 ("[W]hen nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to recovery as the but -for cause of official action offending the Constitution."). The next inquiry is whether there was in fact probable cause to arrest plaintiff. Hartman , S47 U.S. at 261,126 S.Ct. 169,5 ("Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but -for basis for [the official's action]."). The existence of probable cause to arrest hinges on whether "the facts and circumstances are sufficient to warrant a man of reasonable caution in the belief that the person was involved in the commission of a crime." United States v. Smith , 715 F.3d 1110, 1115 (8th Cir.2013) (quotation marks and citation omitted)). " `The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.' " Baribean , 596 F.3d at 474 (quoting Brinegar v. United States, 338 U.S. 160,175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ). "A reasonable ground for belief means more than bare suspicion, but less than evidence which would justify condemnation or conviction." Id. (quotation marks and citation omitted). Whether or not Peters had probable cause to arrest plaintiff for the illegal right turn is irrelevant. Peters admitted at his deposition that he arrested plaintiff not for the illegal right turn, but solely because he believed that plaintiff had violated the Ordinance. Further, the traffic stop ended when Peters handed plaintiff the citation for the illegal turn, told plaintiff to "drive safely" and to "have a nice day," and walked back to his police car. See Arizona v. Johnson , 555 U.S. 323, 333, 129 S.Ct. 781,172 L.Ed.2d 694 (2009). ("[T]he stop ends when the police have no haps://casetexl.com/caselclary-vcity-of-cepa-girardeau-1 26/37 6/412020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 8081 Casetext Search+Citator further need to control the scene, and inform the driver and passengers they are free to leave."); see also United States v. Peralez , 526 F.3d itis, 1120 (8Th Cir.2oo8) (explaining in dicta that a traffic stop ends "once an officer has decided to permit 7 a routine traffic offender to depart with a ticket, a `827 warning, or an all clear, [and] the Fourth Amendment applies to limit any subsequent detention or search" (quotation marks and citation omitted)). Instead, Peters effected the arrest based solely on his suspicion and assumption that the people who exited the battery and pool stores were disturbed by plaintiffs speech. Thus, there was no probable cause. But "[t]he qualified immunity doctrine provides protection to all but the plainly incompetent or those who knowingly violate the law. It allows officers to make reasonable errors. Officers are allowed considerable room for mistaken judgments. Qualified immunity applies if there is even arguable probable cause for an arrest." Clayborn , 734 Fad at 808 (quotation marks and citations omitted); see Peterson , 7S4 F.3d at 602 (holding that a First Amendment retaliatory arrest claim fails if an officer had even arguable probable cause to arrest). "Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based on probable cause if the mistake is objectively reasonable." Allen , 712 F.3d at 1226 (quotation marks and citation omitted). In turn, "[o]bjective reasonableness depends on the totality of the circumstances." Clayborn , 734 F.3d at 809 (quotation marks and citations omitted). in determining whether Peters is entitled to qualified immunity despite the absence of probable cause, the question becomes whether under the totality of the circumstances Peters lacked even arguable probable cause to arrest plaintiff. Thus, Peters must show that his mistaken conclusion that he had probable cause to arrest plaintiff was not objectively unreasonable. Were the facts otherwise and had Peters gathered evidence that plaintiff had annoyed or disturbed the bystanders at the scene, the Court would look to whether the Ordinance, "as it existed at the time of the arrest, gave the defendant [ ] `fair warning' that the arrest was unconstitutional." Baribeau , S96 F.3d at 478 (citation omitted). Based on the totality of the circumstances in this case, the Court concludes that Peters' hides l/casetext comlcase/clary-vcity of capegirardeau-1 27137 6/4/2020 Clary v City of Cape Girardeau, 165 F Supp, 3d 8081 Casetexl Search-, Citalor stated belief that he had probable cause to arrest plaintiff for the Ordinance violation was not objectively reasonable, and he lacked even arguable probable cause for his actions. That conclusion is compelled by the fact that Peters failed to conduct even a cursory investigation of the alleged crime. "[L]aw enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as Saw enforcement would not be unduly hampered ... if the agents ... wait to obtain more facts before seeking to arrest.' " Kuehl v. Burtis , 173 Rad 646, 651 (8th Cir.i999) (quoting United States v. Woolbright , 831 F.zd 1390, 1394 (8Th Cir.1987) ). A police officer "need not conduct a `mini -trial before making an arrest, but probable cause does not exist when a minimal further investigation would have exonerated the suspect." Id. (quotation marks and citation omitted). See also BeVier v. Hucal , 806 F.2d 123,128 (7th Cir.1986) (a police officer "may not close her or his eyes to facts that would help clarify the circumstances of an arrest."); Romero v. Fay, 45 Fad 1472,1476-77, 1477 n. 2, (loth Cir.1995) (police must "reasonably interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention"). The people who exited the battery store and the pool store were the only potential victims of the Ordinance violation; Peters himself could not have been a victim since he was never fifty feet away from plaintiff. Yet, Peters did not ask any of them whether 828 they were disturbed or annoyed by plaintiffs utterances. At best, it may have been reasonable for Peters to believe that the bystanders heard the plaintiff, but the Ordinance requires that the sound be annoying or disturbing, not merely audible. Kuehl, 173 F.3d at 651 (police officer not entitled to qualified immunity based on arguable probable cause where he had "refused to interview [a witness] despite [that person] having witnessed the entire altercation between" the offender and the alleged victim). The Court is required to give plaintiff, the nonmoving party on this claim, "the benefit of all rrlrvant infaranrPc at thr enmmary inrlamrnt eta yr " Rmitla cnly v Aldrirh 22c F7rl haps licaseted.comlcaselclary-v-city-of-cape-girardeac-1 2813 6/4/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3tl 8081 Caselext Search ♦ Cli ioS8, io6i (8th Cir.2000). Under that standard, the Court concludes that the presence of the bystanders at the scene was insufficient to establish that they were annoyed or disturbed. Peters failure to interview any of the bystanders belies any suggestion that he had arguable probable cause for the arrest. According to his testimony, Peters believed he was entitled to conclude that an individual was the victim of the Ordinance violation, based solely on his "common sense," because the "victim" is the "general population." But no reasonable officer could have held such a belief. See Kuehl , 173 F.3d at 651. The Bafibeau case cited by Peters is distinguishable. In that case, the police received a complaint about the plaintiffs who were dressed as zombies and playing loud music as part of an anti -consumerism protest. After arriving at the scene, the officers saw that the plaintiffs were carrying bags containing sound equipment. They also observed a young girl become frightened by plaintiffs' appearance. The police took the plaintiffs into custody and booked them for displaying simulated weapons of mass destruction (WMDs). The plaintiffs were released after spending two nights in jail and, ultimately, no formal criminal charges were ever filed against them. Barfbeau , 596 F.3d at 471-472. The Eighth Circuit held that the defendants were not entitled to qualified immunity on the plaintiffs' Fourth Amendment wrongful arrest claim because they lacked even arguable probable cause to arrest the plaintiffs for disorderly conduct or possessing simulated WMDs. Id. at 480-81. But the Baribeau court also held that the defendants were nonetheless entitled to summary judgment on the plaintiffs' First Amendment retaliatory arrest claim. Id. The court reached that conclusion for two reasons. First, the evidence demonstrated that the officers arrested the plaintiffs after one of the officers "claimed to have observed a young girl become frightened by the plaintiffs' appearance, which he unreasonably believed constituted `disturbing the peace.' " Id. at 481. Second, the Court found "no evidence to suggest that the decision to arrest the plaintiffs... was not based on an actual but overly exaggerated belief that the plaintiffs violated" a statute at issue. Id. ; see also Osborne v. Grussing , 477 F.3d iooa, 1006 (8th Cir.2007) (explaining that a public official may escape is/casetext. com/oase/clary-v,atyofcapegrtardeao-i 29/37 614/2020 Clary v. City of Cape Girardeau, 165 F Supp. 3d 8081 Casetexl Search + Citaler liability for First Amendment retaliation if the official can prove " `by a preponderance of the evidence that [he] would have reached the same decision... even in the absence of the protected conduct' " (quoting Mount Healthy City Sch. Dist. Bd. of Edue. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, So L.Ed.2d 471 (1977))). Peters has not shown that it is more likely than not that he would have reached the decision to arrest plaintiff if plaintiff had been shouting something other than profanity. Further, unlike the officers in Baribeau, Peters neither received a complaint about plaintiff nor did he observe any behavior of the bystanders indicating they were disturbed or annoyed. Thus, in =829 contrast to the facts present in Baribeau, sufficient circumstantial evidence exists here for a reasonable jury to find that Peters would not have arrested plaintiff had he not been engaged in protected speech and that retaliatory animus was a substantial factor or but -for cause of plaintiff's arrest. The Court finds that plaintiff has established the fourth element of his First Amendment retaliatory arrest claim and that he has rebutted Peters' sole stated reason for the arrest. Thus, there exists a genuine dispute of material fact as to causation and "a basis for a reasonable jury to find that [Peters] acted with improper motives." Kilpatrick, 499 F.3d at 767; see City of Carl Junction , 523 F.3d at 843 ; see also Hartman , S47 U.S. at 256,126 S.Ct. 1695 ; United States v..3234 Wash. Ave. , 48o F.3d 841, 84S (8th Cir.2007) (holding that "where specific facts are alleged that if proven would call the credibility of the moving party's witness into doubt, summary judgment is improper, especially when the challenged testimony is an essential element of the plaintiff's case," and that, "if the credibility of a critical interested witness is even partially undermined in a material way by the non-moving party's evidence, summary judgment in favor of the party with the burden of proof should be denied" (quotation marks and citations omitted)). What remains then is for the factfinder to determine whether Peters had a rataliatnry mntiva that nrac "a cnheta ntioI Fo rtnr nr of hie rinri Ginn hitps lcasetextcomlcase/clary-vcityofcape-glrardeau-1 30137 6/4/2020 Clary v. City of Cape Girardeau, 165 F Supp. 3d 008 1 Casetext Search* Goiter to arrest plaintiff, singling plaintiff out for adverse treatment for exercising his right to free speech. Peterson , 754 F.3d at 603 (quotation marks and citation omitted); id. ("The causal connection is generally a jury question ... [unless] the question is so free from doubt as to justify taking it from the jury."); Kilpatrick , 499 F.3d at 767. Accordingly, Peters is not entitled to qualified immunity or summary judgment, and plaintiff's First Amendment retaliatory arrest claim in Count I will proceed to trial. C. The City (I) Monell Liability In Count V, plaintiff seeks damages from the City for having promulgated the unconstitutionally vague Ordinance. In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipality can be liable under § 1983 if an "action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 69o, 98 S.Ct. zo18. "To establish municipal liability, a plaintiff must first show that one of the municipality's officers violated [his] federal right." Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.2010) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) ). Plaintiff has established this element by virtue of the fact that he was cited and arrested for activity protected by the First Amendment, pursuant to the unconstitutionally vague Ordinance. He must next establish "the requisite degree of fault on the part of the municipality and a causal link between municipal policy and the alleged violation." Id. (citing City of Canton v. Harris , 489 U.S. 378, 388-92,109 S.Ct. 1197, 103 L.Ed.zd 412 (1989) ). "Such a showing requires either the existence of a municipal policy that violates federal law on its face or evidence that the municipality has acted with `deliberate indifference' to an individual's federal rights." Id. (citing Bd. of Cty. Comni rs of Bryan Cty. v. Brown , S2o U.S. 397,404-07, 117 S.Ct. 1382,137 L.Ed.2d 626 (1997), and Harris , 489 U.S. at 388-89, 109 S.Ct. httpsi/casetext com/case/clary-v-city-ot-cape-grardeau-1 31137 6/4/2020 Clary v. City of Cape Girardeau, 165 F Supp. 3d 8081 Caselexl Search 4 Citator 1197). i *830 Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward .... [T]he conclusion that the action taken or directed by the municipality..Jtself violates federal law will... determine that the municipal action was the moving force behind the injury of which the plaintiff complains. Brown , Szo U.S. at 404-05,117 S.Ct. 1382. "To establish a constitutional violation, no evidence is needed other than a statement of the municipal policy and its exercise." Szabla v. City of Brooklyn Park , 486 Fad 385.389-90 (8th Cir.2007) (en bane) (citation omitted). Under Monell and its progeny the City is therefore liable for violating plaintiffs constitutional rights because it promulgated the Ordinance, the Ordinance is unconstitutionally vague, and plaintiff was cited and arrested pursuant to the Ordinance. Where such a violation is established, a plaintiff is entitled to at least nominal damages, Carey a Piphus , 435 U.S. 247, z66, 98 S.Ct. 1042, SS L.Ed.zd 252 (1978), the Court may award reasonable attorneys' fees, 42 U.S.C. § 1988(b), and ajury may award compensatory and other damages. See Young v. City of Little Rock, 249 F.3d 730,736 (8th Cir.2oo1) ; see also Smith v. Wade, 461 U.S. 30, S6,1o3 S.Ct. 1625, 75 L.Ed.zd 632 (1983) (holding that a jury may award punitive damages "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others"); Schaub v. VonWald , 638 F.3d 9o5, 922-23 (8th Cir.2o11). Accordingly, issue of damages in Count V will proceed to trial. (z) Failure to Train and Supervise In Count 11, plaintiff alleges that the City failed to train Peters regarding First Amendment rights. "The inadequacy of police training may serve as the basis for Masi/casetextcom/case/clary-v-city-o6 capeyirardeau-1 32137 8/4/2020 Clary v. City of Cape Girardeau, 165 E Supp. 3d 8081 Casetext Search t Citator § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Snider v. City of Cape Girardeau , 752 F.3d 1149, 116o (8th Cir.2014) (citing Harris , 489 U.S. at 388, 109 S.Ct. 1197 ). To establish such a claim, a plaintiff must demonstrate: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) that [the] plaintiff was injured by acts pursuant to the governmental entity s custom, i.e. , that the custom was a moving force behind the constitutional violation. Id. (italics added) (citing Johnson v. Douglas Cty. Med. Dep't, 725 F.3d 825, 828 (8th Cir.2013) ). The Court need not address the first and third elements, or the parties' evidence thereof, because plaintiff's failure to establish the second clement is dispositive. To establish deliberate indifference, a plaintiff must offer evidence that the municipality "had notice that its procedures were inadequate and likely to result in a violation of constitutional rights." Andrews v. Fowler, 98 F.3d 1o69,1076 (8th Cir.1996). A plaintiff may show that a municipality had notice in one of two ways: (1) by showing that the failure to train municipal employees was "so likely to result in a violation of constitutional rights that the need for training [was] patently obvious'; or (2) by showing "a pattern of misconduct" that indicated that the municipality's "responses to a regularly recurring situation" were "insufficient to protect" the citizens' constitutional rights. *831 S.J. v. Kan. City Mo. Pub. Sch. Dist. , 294 F.3d 1025, 1029 (8th Cir.2oo2) (quotation marks and citations omitted). One can presume that the City expects its police officers to enforce all of its ordinances. The fact that the Ordinance in this case is unconstitutional is not a reflection of the City's training and supervision procedures. It is instead a function of the City's misunderstanding of the First Amendment in adopting the (lrrjin�nrr� Dlainti FF'c i r flnx,rc frnm thn ('ini c nnortm nm rhn htlpsi/casetexMom/caselclary-vclty-of-cape-girar4eau-1 33/37 61412020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 1 Caseac,t Search + Citater v. u...u...,x.. i.u....... .r...J-1 iavrr., asvaa 1. 1 —..y .a -u11...1. 1 Ia.., unconstitutional Ordinance, not from any failure to train and supervise Peters in enforcing it. To survive summary judgment, plaintiff would have to submit evidence from which a reasonable jury could conclude that the City was deliberately indifferent to its citizens' constitutional rights when it instructed Peters and its other officers to enforce the unconstitutional Ordinance at issue. But no reasonable jury could so conclude, because to do so the jury would have to find that the City was obligated to train its police officers to question—or even refuse to enforce— the laws that the City enacted and that the officers were being paid to enforce. By the same measure, no reasonable jury could reach that conclusion with regard to the City's supervision of its officers, because to do so the jury would have to find that the City was obligated to direct its police officers not to enforce its ordinances if the officers believed them to be unconstitutional. Because plaintiff cannot establish that the City was deliberately indifferent, his failure to train and supervise claim fails as a matter of law. Accordingly, summary judgment will be granted in favor of the City on Count II. D. Permanent Injunction In addition to damages and a declaration that the Ordinance is unconstitutional, plaintiff seeks a permanent injunction barring enforcement of the Ordinance. A court must consider the following factors in determining whether to issue a permanent injunction: (t) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties; (3) whether the movant proves actual success on the merits; and (4) the public interest. Lowry ex rel. Crow v. Watson Chapel Sch. Dist. , 54o F.3d 752,762 (8th Cir.2oo8) (quoting Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir.2003), and citing, among other cases, Dataphase Sys., Inc. v. C L Sys., Inc. , 64o E2d 109,114 (8th Cir.logl) (en hanc)). htas Ocasetext.comIca said Iary-v-city-ot-cape-girardeaei 34137 61412020 Clary v City of Cape Girardeau, 165 F Supp. 3d 6061 Casetext Search +Crater As to the first factor, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 4?7 U.S. 347, 373, 96 S.Ct. ?673, 49 L.Ed.2d 547 (1976). In the absence of a permanent injunction barring enforcement of the Ordinance, the free speech rights of the plaintiff and other citizens would continue to be curtailed. Second, the issuance of an injunction would cause little or no harm to defendants, because defendants have no significant interest in the enforcement of a regulation that contravenes the Constitution. Any interest defendants have in noise reduction, moreover, can be achieved through regulations that comport with the Constitution. Cf. Men2bers of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803,104 S.Ct_ 2118, So L.Ed.2d 772. (1984)• Third, plaintiff has succeeded on his claim that the Ordinance is unconstitutional. Cf. Minn. Citizens Concerned for Life, Inc. v. Swanson , 692 F.3d 864,870 (8th Cir.2o12) (en bane) ("When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied." x832 (quotation marks and citation omitted)). Finally, "it is always in the public interest to protect constitutional rights." Amos v. Higgins, 996 F.Supp.2.d 810, 814 (W.D.Mo.2014) (citation omitted). Therefore, the Court concludes that it is appropriate to issue a permanent injunction barring enforcement or threatened enforcement of the Ordinance. IV. Conclusion For the reasons discussed above, the Court concludes: (1) Peters is not entitled to qualified immunity on plaintiffs First Amendment retaliation claim in Count I, and a genuine dispute of material fact precludes summary judgment on that claim; (2) the City is entitled to summaryjudgment on plaintiffs failure to train and supervise claim in Count II; (3) plaintiff is entitled to summary judgment on Count V, because the Ordinance is void for vagueness; (4) plaintiffs First Amendment challenges to the Ordinance in Counts III and IV are moot; and (5) Dlaintiff had established that a permanent inunction barrine enforcement of the https l/casetextcoMcaseldary-v-city-of-capeylrardeau-1 35137 614/2020 Clary v. City of Cape Girardeau, 165 F. Supp. 3d 808 1 Casetext Search t Cilator Ordinance should issue. This case remains set for a jury trial with respect to plaintiff's First Amendment retaliation claim against Peters and plaintiffs claim for damages against the City. IT IS HEREBY ORDERED that the parties' cross-motions for summary judgment [Does. ## zo, 23] are granted in part and denied in part as set forth above. Coverage SmartCite Public records search Partnerships and Resources Law schoolaccess Bar associations About us Jobs Blog Podcast News Twitter Facebook LinkedIn hops Jlcasetexl.comlcaselclary-v-city-ofcape-girardeaW 36137 6/4/2020 Clary v. City of Cape Girardeau, 165 E Supp. 3d 808 i Casetext Search a Cilator Instagram Help articles Customer support Contact sates Privacy Terms O 2020 Casetext Inc. Casetext, Inc. and Casetext are not a taw firm and do not provide legal advice. hltps llcasetext,ccm/caselcIary-v-cily-of-cape-girardeau-f 37137 EXHIBIT PROBABLE CAUSE STATEMENT Date: 02/07/2020 I, Corporal Darrin Sides/DSN #338, knowing that false statements on this form are punishable by law, state that the facts herein are true: I have probable cause to believe that Myron Lamont Andrews, Marquelis Jamaal Andrews and JaQuavion Markeice Anderson committed one or more criminal offenses. The Pacts supporting this belief are as follows: - Based on the video surveillance and witness statements, I have probable cause to believe Myron Andrews, Marquelis Andrews and JaQuavion Anderson all fired guns in a crowded night club after Anderson initiated a physical fight with another patron,_The shooting resulted in mass panic inside the business. In total, there were five victims who suffered gunshot wounds. On Sunday, January 26, 2020, officers from the Cape Girardeau Police Department responded to a report of gunshots fired at a venue named The River Banquet Center located at 631 S. Sprigg Street in Cape Girardeau, Missouri. There was a social event occurring at the location at that time and it is estimated that between 200-300 individuals were present inside the venue when the shooting occurred. The business was equipped with security cameras (inside and outside) and much of the events of the shooting were captured on video. An initial review of the surveillance video revealed a crowded room with people socializing and dancing prior to the shooting. As the video progresses, it appears that a verbal confrontation occurs in the area of several dancing patrons. As a physical fight breaks out, multiple individuals appear to pull guns from their persons and begin shooting towards one of the males involved in the physical fight. That shooting victim is identified as_ As the first shots were fired, chaos breaks out in the club with patrons running away in all directions. There were multiple body piles as people fell to the floor while attempting to either get away from the shooting or take cover. One of these body piles appeared to have tripped two of the shooters who were caught up with other patrons. One of those shooters (Shooter 1) is Ro."I lune. 2019 described as a black male with a larger build, wearing a light colored or white hoodie. Shooter I is carrying a black handgun with an extended magazine and he can be seen firing his gun multiple times. Another shooter (Shooter 2) is described as a slim, black male with long dreads, wearing alight colored or white denim jacket. Shooter 2 can be seen running towards_ from behind and a muzzle flash can be seen as Shooter 2 fires aJM After tripping into others, Shooter l and Shooter 2 can be seen getting back to their feet and rushing out of one of the exits along with other patrons. Surveillance cameras outside of the business captured footage of the fleeing patrons, including Shooter I and Shooter 2. As people attempted to exit one particular door, people trip and fall to the ground in the doorway creating a bottle neck. Shooter I and Shooter 2 who are attempting to escape through that door were again tripped and fell with the crowd. It is believed that one of those shooters dropped his firearm as he fell. A Cape Girardeau Police Officer stationed at the door, who was attempting to cover the fleeing crowd and make entry into the business, saw the firearm and immediately placed his foot on top of the gun and pushed it behind the open door and out of reach of civilians. Shooter I and Shooter 2 then flee in the same direction, off camera. Once officers were able to make entry around the exiting patrons, they located one shooting victim,_on the floor of the business. Jrad been shot multiple times. Officers immediately began administering aid tos Four other shooting victims were located inside or just outside of the business. All of the victim were inside the business when the shooting occurred. Victim 2 —_'was shot once in the right thigh and the bullet exited his body. _stated a fight broke out between other patrons and he heard gunshots.'stated he was attempting to exit the business when he was shot. Victim 3 —_ rwas shot once in the left buttock and the bullet lodged inside his body. stated did not see the shooting. Victim 4 --: _was shot in the right leg. fj�tated he was trying to get away from the shooting when he was shot and did not see the shooters. A bullet was recovered from his body. RM,ed J.n, 2019 Victim 5 — was shot in the back of his left leg. Unastated someone started shooting and he got down and was on top of other patrons when he was shot. A bullet was recovered from his body. Officers collected various items of evidence from the scene of the shooting including spent bullets and multiple spent shell casings of different calibers, _had suffered serious physical injuries and was hospitalized and unconscious for a number of days. On February 4, 2020, 1 made contact with_while he was still in the hospital. _ told me the following (paraphrased and summarized): � had arrived at The River Banquet Center to pick up a female cousin. while inside the business _saw two men he had previously had problems with in the past, including a male tamed JaQuavion Anderson. The other male was identified as Marquelis Andrews.' stated he located his female cousin inside the business and as he was standing near her, Anderson swung his fist at N=s face, causing a fight to break out. _ observed both Anderson and Marquelis Andrews with handguns. _stated Anderson shot him. _ was shown photo line-ups and identified Marquelis Andrews and Anderson. Swas then shown the video surveillance that captured the shooting. From the video,_ identified Shooter 1 as Myron Andrews. _also picked Myron Andrews out of a photo line- up. _further identified Marquelis Andrews as Shooter 2 and Anderson as Shooter 3. Jaquavion Anderson is a previously convicted felon and currently has charges pending in another jurisdiction for Felon in Possession of a Firearm. Myron Andrews has multiple prior felony convictions and is currently on parole. Marquelis Andrews also has multiple prior felony convictions and is also currently on parole. "*The above statement is a probable cause statement which only states the probable cause which was present to effect the arrest and/or apply for formal charees. fi, th,d J,, e,1019 For the issuance of a warrant complete the following: I have reasonable grounds to believe that the defendant poses a danger to the community or to any other person because Myron Andrews, Marquelis Andrews and JaQuavion Anderson fired multiple shots inside of a crowded business, showing a complete disregard for the safety of all present. As a result, five patrons were shot, including—who was shot many times. Cpl Darrin F. Sides i) 933 Printed Name Signature Date: 02/07/2020 Rekned June, 2019 CONTRACT FOR EVENT River Valley Banquet Center {1�11�� 631 South Sprigg Street, Cape Girardeau, MO 63703 -l Name:!1'rdl vii If f�-^'�CF1 .— Address: �./'(idp'`6ak City, n Lig (l'r c16� State: �+ Zip: Telephone # DEvents License State- Number: Date and Time _. .�.... — Type of Event .. .—. Cover Charge and/or Age Verification?Yes 0 No ❑ rpt If yes, who will collect and ID for age verification? Us IN you ❑ Extra charge for our door service applies. Amount Security We require security services for some events for the benefit of your guests and the banquet center. You may provide security service orwe can provide at additional cost. Security Measures:,,,,,rJ..;"i..^...=""' n Sew} i �a n Gm�a1 Additional Security Cost Special Needs: Deposit Rental: x�3i�� i Total (over) sf..�I ' 1rjC�lzn,-a0 im1-! IF�c� CITY of CAPE GIRARDEAU LIQUOR LICENSE REVOCATION NOTICE The City of Cape Girardeau liquor license held by Ricky Lynn Werner, d/b/a River Valley Banquet Center, LLC, located at 631 South Sprigg Street, Cape Girardeau, Missouri, License No. 2799, for Retail Liquor by the Drink and Sunday sales is hereby REVOKED. GROUNDS FOR ACTION: I. Licensee did permit or fail to prevent or suppress a violent quarrel, brawl, or fight on the premises. REVOCATION EFFECTIVE DATE: February 11, 2020 The licensee may appeal this revocation by requesting a hearing before [lie liquor license review board. The written appeal request must be received within ten (10) days after this notice of revocation was received. The revocation notice is presumed received by the licensee thee, (3) days atter it is mailed. The appeal most be in writing and addressed to Gayle Conrad. Liquor License Review Board, City of Cape Girardeau. P.O. Boz 617. 401 Independence, Cape Girardeau, MO 63702. Pursuant to Sec. 5-42 of the Cape Girardeau Code the REVOCATION is hereby Ordered. i l' Sco 7G[eyer 1 Date City Manager l 1 certify that on this SLI it.,, o1 � L Kj t0,yl. _. 2[130, 1 mailed a copy of this NOTICE to Ricky Lynn Warner, d/b/a River Valley Banquet Center, I L , by fist cl ,'mail, postage paid, to the address provided the City by the licensee on the liquor license application: 1722 Crestwood Dr., Cape Girardeau, MO 63701 and 631 South Sprigg, Cape Glrerdeao, MO 63703. Gayle arrad City Clerk 401 Independer,e Cope Girardeau, MO 63703 573-339-6320 Tel 573-339-630^_ Fax eityofcape.org 5/2912020 Missouri Revised Statutes § 311.040 (201]) -Application id law.._ 2017 Missouri Revisetl Statutes -: 11S Cotle EXHIBIT .rn;' v Laws & Legal Resources. View the 2019 Missouri Revised Statutes I View Previous Versions of the Missouri Revised Statutes 2017 Missouri Revised Statutes Title XX ALCOHOLIC BEVERAGES Chapter 311 Liquor Control Law Section 311.04o Application of law. Universal Citation: MO Rev Stat § 311.040 (2017) Effective 28 Aug 1939 Title XX ALCOHOLIC BEVERAGES Chapter 311 311.04o. Application of law. — The provisions of this law shall be in force in and apply to every incorporated city, town or village in this state, whether same be organized under the general law relating to cities, towns and villages, or by special charter under the state constitution, any ordinance or charter provision of any city, town or village to the contrary notwithstanding. (RSMo 1939 § 4908) (1957) City ordinance prohibiting sales by any wholesaler to retailers who are delinquent in gayment of accounts to any wholesaler held valid and not in conflict with either the liquor control law or the nonintosicating beer law. Passler v. Johnson (Mo.), 304 S.W.2d 903. htlps/4awjustiacomlcodes/missourll2017Ititle-xxlchapter-311/section 311.0401 112 529002.,2 M,s ,, Revtrsa, a( Ste6Ges- Re,,e d Statoies o[ MsSoun, R5Ne Sectwn 536-156 Missouri Revisor of Statutes Constitution Committee Publications About Help & FAQ Other Information & Links + Words v 1st search term or section r And v 2nd search term =N KI Title XXXVI STATUTORY ACTIONS AND TORTS Chapter 536 Effective - 28 Aug 1953 + 536.150. Review by injunction or original writ, when — scope. — 1. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such derision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed. 2. Nothing in this section shall apply to contested cases reviewable pursuant to sections 536.100 to 536.140. 3. Nothing in this section shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section. (L. 1953 p. 678 §§ 1, 2, 3) 60.05ylrevtror.n gUWrnaiNOtIeSeotM aepxlserrion=536-I50 1'2 Licensee shall: • Keep all licenses posted in a conspicuous place on the licensed premises. • Keep the licensed premise clean and sanitary. • Keep all records pertaining to the business upon the licensed premises for a period of two years. • Report all changes in license information to the Excise Division in writing within fifteen days of such change. • Cooperate with the St. Louis Metropolitan Police Department and the Excise Division Officers at all times. • Maintain an orderly establishment on licensed premise at all times and immediately report or suppress any violent quarrels, brawl, fights or other improper or unlawful conduct of any person upon the licensed premise to the St. Louis Metropolitan Police, Excise Division. • Renew all licenses by the (anniversary) expiration date. St. Louis, MO Sec. 3-114. - Responsibilities of licensee. Licensees are at all time are responsible for the conduct of their business and at all times .directly responsible for any act or conduct of any employee on the premises which is in -violation of any of the provisions of this chapter At no time, under any circumstances, shall any licensee or his/her employees immediately fail to prevent or suppress any violent quarrel, disorder, brawl, fight or other improper or uri awful conduct of any person upon the licensed premises. (Ord. No. 4641, § 1, 8-6-2013) Hannibal, Musoun 5/29/2020 Missouri Revisor of Statutes -Revised Statutes of Missouri, RSMo Section 311.2 EXHIBIT Missouri Revisor ojStatutes 11 Constitution Committee Publications About Help & FAQ Other Information & Links + Words � 1st search term or section r And - 2nd search term Title XX ALCOHOLIC BEVERAGES Chapter 311 i Effective - 28 Aug 2016, 2 histories + 311.220. Counties and cities may charge for licenses — amount — display of license. — 1. In addition to the permit fees and license fees and inspection fees by this law required to be paid into the state treasury, every holder of a permit or license authorized by this law shall pay into the county treasury of the county wherein the premises described and covered by such permit or license are located, or in case such premises are located in the City of St. Louis, to the collector of revenue of said city, a fee in such sum not in excess of the amount by this law required to be paid into the state treasury for such state permit or license, as the county commission, or the corresponding authority in the City of St. Louis, as the case may be, shall by order of record determine, and shall pay into the treasury of the municipal corporation, wherein said premises are located, a license fee in such sum, not exceeding one and one-half times the amount by this law required to be paid into the state treasury for such state permit or license, as the lawmaking body of such municipality, including the City of St. Louis may by ordinance determine. 2. The board of aldermen, city council or other proper authorities of incorporated cities may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, located within their limits, fix the amount to be charged for such license, subject to the limitations of this law, and provide for the collection thereof, make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, provide for penalties for the violation of such ordinances, where not inconsistent with the provisions of this law. 3. 'Every licensee shall keep displayed prominently at all times on their licensed premises any city or county license designating their premises as a place licensed by the city or county to sell intoxicating liquors. Nonetheless, no application shall be disapproved by the supervisor of alcohol and tobacco control for failure to possess a city or county license when making application for a license. Within ten days from the issuance of said city or county license, the licensee shall file with the supervisor of alcohol and tobacco control a copy of such city or county license. here Urevisor.mo.govlmaiNOneSection. espx9sectlou=311.220 V3 6142020 Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 311.660 HIBIT Missouri Revisor of Statutes Constitution Committee Publications About Help & FAQ Other Information & Links Words � 1st search term or section r And � 2nd search term = 0 Title XX ALCOHOLIC BEVERAGES Chapter 311 Effective - 28 Aug 1989 311.660. Powers of supervisor — regulations — subpoenas. — The supervisor of liquor control shall have the authority to suspend or revoke for cause all such licenses; and to make the following regulations, without limiting the generality of provisions empowering the supervisor of liquor control as in this chapter set forth as to the following matters, acts and things: (1) Fix and determine the nature, form and capacity of all packages used for containing intoxicating liquor of any kind, to be kept or sold under this law; (2) Prescribe an official seal and label and determine the manner in which such seal or label shall be attached to every package of intoxicating liquor so sold under this law; this includes prescribing different official seals or different labels for the different classes, varieties or brands of intoxicating liquor; (3) Prescribe all forms, applications and licenses and such other forms as are necessary to carry out the provisions of this chapter, except that when a licensee substantially complies with all requirements for the renewal of a license by the date on which the application for renewal is due, such licensee shall be permitted at least an additional ten days from the date notice is sent that the application is deficient, in which to complete the application; (4) Prescribe the terms and conditions of the licenses issued and granted under this law; (5) Prescribe the nature of the proof to be furnished and conditions to be observed in the issuance of duplicate licenses, in lieu of those lost or destroyed; (6) Establish rules and regulations for the conduct of the business carried on by each specific licensee under the license, and such rules and regulations if not obeyed by every licensee shall be grounds for the revocation or suspension of the license; (7) The right to examine books, records and papers of each licensee and to hear and determine complaints against any licensee; hftpsllrevisor.mo.gov/main/OneSection.aspx?section-311.660 1/3 6/4/2020 Missouri Revisor of Statutes- Revised Statutes of Missouri, RSMo Section 311.660 (8) To issue subpoenas and all necessary processes and require the production of papers, to administer oaths and to take testimony; (9) Prescribe all forms of labels to be affixed to all packages containing intoxicating liquor of any kind; and (10) To make such other rules and regulations as are necessary and feasible for carrying out the provisions of this chapter, as are not inconsistent with this law. (RSMo 1939 § 4889, A.L. 1989 S.B. 429) CROSS REFERENCE: Regulations to be filed in office of secretary of state, Const. Art. V § 22 (1964) This section and regulation of supervisor pursuant thereto forbidding any advertisement of intoxicating liquor which contains offer of coupon, premium, prize or rebate as inducement to purchase intoxicating liquor held valid. Milgram Food Stores, Inc. v. Ketchum (Mo.), 384 S.W.2d 510. (1975) For discussion of "reasonable rule regulation" as applied to this section, see Brown -Foreman Distillers Corporation v. Stewart (Mo.), 520 S.W.2d 1. ---- end of effective 28 Aug 1989 ---- use this link to bookmark section 311.660 In accordance with Section 3.090, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such enacted statutory section. ► Other Information ► Other Links r Errors / suggestions - WebMaster@LR.mo.gov History and Fun Facts OMissouri Legislature, all rights reserved. I hapsJhevisocmo.gov/main/OneSection.aspx?section=311.660 2,3 malt liquor, or to pour into, mix with or add intoxicating liquor other than malt liquor, to water, soda water, ginger ale, seltzer, or other liquid. (3) The holder of a license authorizing the retail sale of intoxicating liquor by the drink miry sell liquor in any quantity, not for resale, but may not possess any spirituous liquor in any container having a capacity of more than one (1) gallon or airy wine in any container having a capacity of more than fifteen and one-half (15 112) gallons. (4) No person holding a license authorizing the retail sale of intoxicating liquor may sell or deliver any liquor to any person with knowledge or with reasonable cause to believe, that the person to whom the liquor is sold or delivered has acquired the liquor for ; tL'n the purpose of peddling or reselling it. � (12 ) per Acts." to p (A) At no time, under any circumstances, may any licensee or histher employees imme diately fail to prevent or suppress anynom Icut J'q'177TI disorder, brawl, fight, or outer improper or unlawful conduct of any person upon the licensed premises, tuts may any licensee or his/her employees allow any inde- cent', profane, or obscene literature or adver- tising material upon the licensed premises. (B) In the event that a licensee or his/her employee knows or should have known, that an illegal or violent act has been committed on or about the licensed premises, they are obligated to immediately report lire occur- rence to law enforcement authorities and cooperate with law enforcement authorities and agents of the Division of Alcohol and Tobacco Control during the course of any investigation into an occurrence. , uy, or ntrougu EXHIBIT licensed wholesalers. h yyy (11) No holder of a license to sell into R Ing liquor by the drink only give to, sel e permit to be given to or sold to any on e ( employee of the establishment operated by authorities, the licei the licensee any intoxicating liquor, in any member of the arnre quantity, nor may s/he permit any patron of the premises coverer the establishment operated by hindher to give video, this is only c to any on duty employee any intoxicating is notified of the or liquor, in any quantity, or to purchase it for cr Alcohol and Tobacc drink it with any on duty employee, in the the Military Polite es(ablishment or or, premises of the licensee exempt from this pot This provision is inapplicable when the estab- lishment is closed to the public, so long as the AUTHORITY sectio, licensee is allowed to be open at that time This version of retie, pursuant to section 311,290, RSMo, or any live Feb. 18, 1973. ,, other provisions of Chapter 311 relating to 1974, effective Sep opening and closing. Plied Alay 16, 1977, (S) No licensee may sett, give away, or pos- ses,, any spirituous liquor from or in any con- tainer when the intoxicating liquor is not that set out ort the manufacturer's label on the container ar does not have alcoholic content shown on the mauufaemrer% label_ (6) No retail licensee may bottle any intoxi- cating liquor from any barrel or other con- tainer nor may s/he refill any bottle or add to the contents of the bottle bran any barred or other container, (7) A licensee selling intoxicating liquor by the thick, when requested to serve a particu- lar brand or type of spirituous liquor or beer, may not sulutitue another brand or type of spirituous liquor or beer. (8) No retail licensee only allow or cause any sign or advertisement pertaining to iatoxical ing liquor or malt beverages to be carried or transported upon any sidewalk m street of (13) Lewdness No retail licensee or his/her employee may permit in or upon his/her licensed premises— (A)'The pertnrmance of acts, or simulated JOHN R. ASIICROFT (4130119) CODE OF STATE REGULATIONS Secretary of state Amended: mled.Aup. 13, 1979. Amended. effeculn Aug. 13, April 7, 1983, qf( Amended: Filed rVlay 11, 1983. Amended effec!ive Ian. 13, 19f 27, 1998, effecave At Filet[ Oct. 10, 2018, +0rlgirmi 'Whi,""' 311. less Chiffon v. Wright, 41 agents testifying That of liquor from liceim to be refills in violali tions because some aj and some had morn necks, along with testi ryas compe!ent subste, licensee possessed ref, of rules and regulafrc by 71 CSR 70-2.1A "several different ttt'o, of it mss in hall piety, graphical location of. Chapter 2—Rules and Regulations 11 CSR 70-2 CSR l the onler of 1111,111to Issuui by the mrou r TI Alcohol and Tell.. C t- I' mepllnoux 11a,, on plc more a so that it[ Persalts els'aing the tacroocs may madly nee the alder of mspeusime, (2) No perzan Iwlding a lacers, To, the Icm'd sale of Inn, ligaar by du drink nhny know. ly sell, } of Icor the p c xclifted - the I'fa 'll", WHtG, xoda water, phnxplate6, or any ower kind of [,quids 10 be uscl d+r we Pur- posc of nuxleg intoxicating drinks and wm- an ly r t d it, .wt -nm, roor may lt, Ic t.e, allowar, Pasoh sillhorhpoh the tontines uwcrcd by thelounscm possess or colouhc auy in[xica(ng liquor all dot malt liquor; or to pour anal, mix will, at add 'met .sting Ilqum'Aler than malt Ilquor, to wwo_wda waor, gager ale, cin r. or otrcr liquid (3) The holder of or liccum auoillnon, fe rctall call of lnox lent ing liquor by the firm, now sell Ilquor in any quantity, net for costly, I'll' may urn prolull lay 'pian uofs liquor it auy o-nnuinm'r having1, a capachy of more 'hint one U Millon or any xrn omeTner a laryc having a IS 1/2ty of more Ilan often and nny-half (IS I/2) cottons. (4) No person holding a Inerts, anam ,,ora the retail sale of ...oxicatfng liquor may roll or deliver any iqum la any Terson with knowlalge a with reasonable cause to belul, that the fief..... ro whom it,, Ilquor Is sold or ddln:red hal acquired the liquor for pre puq...a, of peddling or resell imp IT. (5) No Iknuee To sell, give away, or pos- sess only slmoous liquor foul or In arty con - inner whcu N1 imoxicafing liquor is not that ,It ITT on We t mfaauru'. label nh the ontainer or does nut have alcoholic ,,alcor shown on the oauufadolo ria label_ (6) No rctall 1111,111, may hall, any inoxl- eaf,g liquor lion) i v band or other top - ta'Iler nor 'hay fl/he [11111 arty battle 1,r add to the of dlm boodle from any bamil or of... Ulnhiner. (7) A Icamy,c selling ourvaicadng liquor by the drunk, who, reqummd o serve a partici, lar brand or type of punman, liquor or beer may not substitute arnller brand or type of "i Ilgmr or bust_ (8) No rctall [Kele. Illy rIll 1,r cause any N1211 al,I&CFescrant Penalising to Irmxical- m Ilquor or mall h,vorages to he carncd or I inelorted upon ala' .idewalk m ,feet of any nnmerfulily .1 upon any hlg]rwey of the state 9hs .... 'Ann 11 -mppliomer, to any III sign or advanislm,nt placed nn a vehi- cle hcfng used to deliver interacting liquor or malt never..... (9) Whenever hours of tante are ret forth in the Liquor Control Act, they arc to he after - pat I ch) look lim, which sha11 be omct Cannot Standard q -me or -Central Fray- Tight ryIlght 'rune whelot. one is then being oba,tv,d_ (10) No persou 1101dalf or IICClGo Alithrili7lug the tat sale of inoxiculiny liquor may no,- "" any nucleating firtura which has net lictio purchased It()]]', go or Through duly leas"d wholcsulers. (II) No holder of a license to ,It jet IN Ilquor by the drink may give to, sell, or pnmil 1' be givan to or sold In .,I, on duty arployw or me caxbhahmenl npemled by de hosteler, any inwxicaling liquor, it any quanfiry. .,of n:ly s/hc perms[ any plain of Ih, enabhshmenr opumed by Imu/hcrso give to any on duly employee any intoxieaue, liquor, or any quantity, or to purchase it for or drink it with any nn duty employee, in the eswblishnhcut or en promo of the liwnlee. "Chis pmvisloo Is inapplicable when the extab- ],,It nlfs dosed mthe puhli, soling as the licu¢ce a '11....1.1 to be effort at That dale pursuant to .ct:fum 111 290, R4Mo, or any, other ,,..TSm.0 of Chapter 311 refiring to npeniug and closing. (12) hnpolcr Aa, (A) At no lint, under any crearnegances. cony o y Ikcuseu or Ads/her employe ca iulme- dia¢ly Gil to prcvem car supffe" any vlolcnt quarrel, disorder, brawl, fight, or liter improper nr or luwhd conduct of at, persm talon file licensed premixes, ,a, may airy licarscc or his/her employees allow, any rude - over, profane, of obccnc Iher pale or all loo, '...Fall upon or,, licensed cenroul; (R) In file evcal that a Ikensce or his/her employhx Knowe ,, should have known, that .in illegal or violent as has been ceiroutted [ sheat Nc hceir pmur'rn , they of obligated to immediately [,Port the occur- reoCe To law, eufnic mens anthmincl and .....taco ,at, lull enfor"reaut vulhoroure, and agcn¢ of the Division of Alcohol and Ibbaccn Conaol fano, the course of any rmestgatian Inco) un ouvuua.. (13) Lewdnus. No mull lc,,U,we or his/her anploycr may permit In or upon his/h¢ ric,nled fire rniscs— (A) The perfol'nw if, of sups, or si uar Lona R. A1nLROFT (4130119) CODE OF STATE REGULATIONS Scantily of Grate ac¢ of seoull 11 i .'al rharion. sodomy. Ii . .y, Dal super . tiaAdla- Into Ill am, aexual alas which all pohlhhntl Fly law; (R) The displaying of any panlan of the [cola of the female breasr. (C) the actual or simulated lone,,:,. comessilog, orfandling of the breast, buuodes, I geu'4als nhfi t (D) The actual or_lnubted d>nlayo+_ of me ',,hit hair, anus, vuroa, at genual,: (E) The D,motr l by a licensee of eny Person to remain h Ne licensed I runions who expos.. m pull" sall, all,, portion of his/her guf rls or mals, and (P) The displaying of nlmc Pro pro- grams, or pictures deli t ht, arts, the lice p,1folun cls of which are pmhlblled by T... regulate, or by may other Ill (14) In the e... ttire pa ccs of may lictc,of d G declared to be off =limits by The miliary call the licuuce'lay lot lmme any manblr, of Ne armed forces , be fn or upou file promises covered by his/her llmnse. Po- vided, this is only cffedlvn atter the Ilwnec, ix notified of the order by the .....vle'r of Alcohol and Tobacco Control. Worrell of die Military Police or Sher, PAlml IT exempt From this provision. AUTHORITN lnaioa 311.660. Ripe, 2016.1 All 1111111, of r'u(e filed '01. S. 1973. FI1ee- live Feb. 18, 1973. 4,1,1,11,1: Filed Ag23. 1974, cpenive Sept. 2, 1974. Alaoodad: Filed Miry 16. 1977, eff onv Aug. 11, 1977. Amended: Fired A,,. 20. 1979, ,(Rana, Dee. 13, 1979, Amended: Filed April 23, 1All. effective Aug_ 13, 1931. dutead,,[ Filed Apel 7, 1983.efftool, Jill 11, 1983_ A frol, Filed May 25, 191 g,,,o, Sep,. 11, 1983. Amended' Fled Aug. 5. 1991. effeclihe Jan. 131 1992_ Ame,rded: Filal la b_ 27, 1998, eJjettive Aug 30, 1998. Arncnrled: 1Ffed Oa. 10, 2018, olosolo, M,, 30. 2019. -Ortgtnnl norhorvv. iso,") I'll, ,939, um.enleA 19N9 Chilton a {14iglhq 480 SIV2d I (1972). Tr.o agents 111'afirrg /1,111 1111, onmverl 44 ball,. of NicoleCann licnuee's prnrds,, nrlpeuld 1, be rifilt, io violarior. / ,I or mrd o"d, [ions bemuse salve oppem,d us be ,,Killed rzl)d rorne had ano, ot, x1..11, r it,, neck, nlmtg will, r ,,Nwpvf erre, I.en.... ornpelenI "If" Trial evident, Oau 1h, been[[,, pax...I'd 1ef1[ed bolder in l,,,I Ion 'l came wird "'Ifuloo, UA) (nmv "rend by 11 CSR 70-2130(5)). Ru, ,vide..... r.1 w1 dff" 11111 bzudr all 11,11111-1l,, hulk of I use, in half-pints and pial."and dm yo0- grapinml loemiml roof rhe relali In Ties 1111 ias EXHIBIT Section 600.081Certain Acts Prohibited in Premises Licensed To Sell At Retail Intoxicating Liquor, Wine or Beer. [Ord. No. 6420 §1, 4-12-2016] A. It shall be unlawful for any retail licensee, licensed to sell intoxicating liquor, wine or beer, or his/her employee to permit in, upon or about the licensed premises'. 1. The performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law: 2. The displaying of any portion of the areola of the female breast or failure to cover the entire areola and front of the breast with opaque clothing, 3. The actual or simulated touching, caressing or fondling of the breast, buttocks, anus or genitals, 4. The actual or simulated displaying of the pubic hair, anus, vulva or genitals or failure to cover pubic hair, anus, vulva or genitals with opaque clothing, S. Any person to remain in or upon the licensed premises who exposes to public view any portion of his/her genitals or anus or fails at any time to have and keep opaque clothing over all parts of his/her genitals and anus, and 6. The displaying of films, video or DVD programs or pictures depicting acts, the live performances of which are prohibited by this regulation or by any other law. B. Additional unlawful acts for any retail licensee, licensed to sell intoxicating liquor, wine or beer, or his/her employee: 1. At no time, under any circumstances, shall any licensee or his/her employees imme iatel fail to prevent or suppress any violent quarrel, disorder, brawl, fight or other improper or unlawful conduct of any person upon the licensed premises, nor shall any licensee or his/her employees allow any indecent, profane or obscene language, song, entertainment, literature or advertising material upon the licensed premises. 2. 'In the event that a licensee or his/her employee knows or should have known, that an illegal or violent act has been committed on or about the licensed premises, they immediately shall report the occurrence to law enforcement authorities and shall I22,gAroo, 1110 cooperate with law enforcement authorities and agents of the Division of Liquor Control during the course of any investigation into an occurrence. Clayton, MO 6/4/2020 What a Licensee Shall or Shall Not Allow on Their Licensed Premise .q EXHIBIT STLOUIS-MO !-GOV $ �� What a Licensee Shall or Shall Not Allow on Their Licensed Premise Section 14.03.020 - Licensees at all times are responsible for the conduct of their business and at all times are directly responsible for any act or conduct of an employee on the licensed premise which is in violation of Ordinance 68536. Licensee shall: • Keep all licenses posted in a conspicuous place on the licensed premises. • Keep the licensed premise clean and sanitary. • Keep all records pertaining to the business upon the licensed premises for a period of two years. • Report all changes In license information no the Excise Division in writing within fifteen days of such change. • Cooperate with the St. Louis Metropolitan Police Department and the Excise Division Officers at all times. • Maintain an orderly establishment on licensed premise at all times and immediate report or suppress any violent quarrels, brawl, fights or other improper or unlawful conduct of any person upon the licensed premise to the St. Louis Metropolitan Police, Excise Division, • Renew all licenses by the (anniversary) expiration date. Licensee shall not: • Sell intoxicating liquor and/or beer without a valid City of St. Louis and a valid State of Missouri liquor license posted upon the licensed premise. • Permit any person under the age of twenty-one from consuming intoxicating liquor or nonintoxicating beer on or about the licensed premise. • Sell or supply intoxicating liquor, wine or beer to any person under the age of twenty-one on or about the licensed premise. • Purchase liquor or beer from other than a duly licensed wholesaler. • Supply or sell intoxicating liquor and/or nonintoxicating beer to any person who is intoxicated or appears to be intoxicated. • Refill any liquor containers. • Allow bartenders to consurne intoxicating liquor or nonintoxicating beer while working on the licensed premise. • Permit lewd entertainment and/or lewd conduct on or about the licensed premise. • Sell intoxicating liquor, wine and/or beer or store liquor products off the licensed premise. haps://www.stiouis-mo gov/governmenUdepadments/public-safely/excise/helpful-retailers-informarion.ofm 1/2 EXHIBIT Section 600.165 Licensees Responsible For Conduct of Their Businesses. [R.O. 2007 §600.165; Ord. No. 4891 §§1-3, 8-16- 2005] A. At no time, under any circumstances, shall any licensee or his/her employees immediately fail to prevent or suppress any violent quarrel, disorder, brawl, fight or other improper or unlawful conduct of any person upon the licensed premises, nor shall any licensee or his/her employees allow any indecent, profane or obscene language, song, entertainment, literature or advertising material upon the licensed premises. B. In the event that a licensee or his/her employees knows or should have known that an illegal or violent act has been committed on or about the licensed premises, they immediately shall report the occurrence to the O)EaUgn Police Department and shall cooperate with 'Fallon Police Department during the course of any investigation into an occurrence.... EXHIBIT Sec. 3-114. - Responsibilities of licensee. Licensees are at all time are responsible for the conduct of their business and at all times directly responsible for any act or conduct of any employee on the premises which is in -violation of any of the provisions of this chapter. At no time, under any circumstances, shall any licensee or his/her employees immediately fail to prevent or suppress any violent quarrel, disorder, brawl, fight or other improper or unlawful conduct of any person upon the licensed premises. (Ord- No 4641, § 1, 8-6-2013) Hannibal, Missouri Sec. 1-9. - Scope of provisions of Code. E (a) Application Unless otherwise provided in this Code, this Code applies to acts performed within the city limits of the City of Cape Girardeau. Provisions of this Code also apply to acts performed outside the city limits and up to the limits prescribed by law, where the law confers power on the city to regulate such particular acts outside the city limits. (b) Preemption No provision of this Code shall apply to any circumstance in which such application shall be unlawful under superseding federal or state law. Furthermore, if any section, subsection, sentence, clause, phrase, or portion of this Code is now or in the future superseded or preempted by state or federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law. (Ord. No. 4735, art. 1.. 7-20-15) Editor's note—Ord. No. 4735, art. 1, adopted July 20, 2015. repealed the former 1-9, and enacted a new section as set out herein. The former & 1-9 pertained to similar subject matter and derived from Code 1967,E-9. 61412020 Local News'. Concealed -carry restrictions remain in Missouri despite new slate law (9118116) 1 Southeast MisEXHIBIT SOUTH FAST MISSOURI, I -A Concealed -carry restrictions remain in Missouri despite new state law 13v Mark Bliss— Southeast Missourian Snnday, September 18, 2016 Missouri still has restrictions on where people can carry concealed weapons, despite lawmakers override of Gov. Jay Nixon's veto of a gun bill last week. The Republican -majority General Assembly approved a new law last week that allows people to carry concealed weapons without a permit as of Jan. 1, 2017. But the law doesn't overturn existing state and local restrictions, according to local law- enforcement officials. The city of Cape Girardeau, like a number of other communities in the state, has a municipal ordinance that requires anyone wanting to open carry a firearm to obtain a concealed -weapon permit from their respective county sheriffs department. Cape Girardeau police chief Wes Blair said that restriction remains in place in Cape Girardeau. City ordinance states any person `who is open carrying a firearm shall be required to have it valid concealed cavy endorsement or permit from this state, or a permit from another state that is recognized by this state, in his or her possession at all times." The person must display his or her permit upon demand of a law-enforcement officer, the ordinance states. Cape Girardeau County Sheriff John Jordan said there are no such restrictions on open carry of weapons in Jackson or the rest of the county. He said confusion persists over how the state law might affect local gum laws. "It may have to be settled in court," the sheriff said. Blair and Jordan said under existing state law, the general public is barred from carrying concealed weapons in certain places. The new law doesn't change that. The ban extends to police stations, jails, polling places, meetings, government buildings, bars without consent, airports, schools, amusement parks, hospitals, sports arenas with seating for more than 5,000 people and private or public places where posted. hire:Owww.semissourien.comistory/2340158.html V3 61412020 Local News: Concealed -carry restrictions remain In Missouri despite new stale law (9/18/16)1 Southeast Missourian newspaper, Cape Gir_. Even with the new law, Missourians will need to obtain concealed -carry permits to legally cavy guns when traveling in most other states, .Jordan said. "Constitutional (right to) carry is recognized in only it states," he said. Blair advised gun owners to educate themselves about state and local restrictions. Under the permit system, gun owners had to obtain a minimum of eight hours of personal firearms safety training to be allowed to legally carry a concealed weapon in Missouri. Without the permit requirement, gun owners will be able to carry concealed weapons without training. Blair and Jordan expressed concern about the elimination of the firearms -training requirement, expressing hope lawmakers will revisit that issue next year. Both said the training involves more than just learning how to load and shoot. Blair said it also educates gun owners about "when you can or can't use your gun." Blair said the new law is "confusing for everybody." The police chief said, "I am one of the biggest gun supporters you can find, but you need to apply some common sense." Jordan said gun owners need to know what constitutes legal use of weapons in combating assailants. "You have to be right if you take someone's life," he said. Even if a legal gun owner is not charged in connection with a shooting incident, he or she still could face a civil snit from the aggrieved party, Jordan said. The sheriff added, "I think the training is a good element to have." The new law doesn't do away with the permit system entirely, Jordan said. Sheriffs departments will continue to issue permits to those who wish to have them. People who are 19 years old or older can apply for the concealed -carry permits. Since the initial concealed -carry law went into effect more than a decade ago, the Cape Girardeau County Sheriff's Department has issued more than 9,500 permits, according to Jordan. The cost for a permit is $8o in Cape Girardeau County. Some counties charge $too for a permit, lie said. The permit is valid for five years, after which it can be renewed every five years. .Jordan estimated his department has denied permits to about half a dozen applicants each year. mas //wwweemissounan.com/story/2340158.html 213 EXHIBIT Sec. 5-42. - Suspension or revocation of license. (a)Suspension or revocation. The city manager may suspend or revoke the license of any licensee under this chapter Tho has failed to meet the standards of conducting business set forth in this chapter or who has made any false, misleading or fraudulent statement in the license application. Whenever a license holder under this chapter shall be closed for business for over thirty (30) consecutive calendar days, the license holder's license shall be subject to suspension or revocation upon notification by the city manager. (b)Notice of suspension or revocation. The city manager shall suspend or revoke a license issued under this chapter by sen' II notice of the suspension or revocation to the licensee by first class mail or by personal service on the licensee or the person in charge at the licensed premises. Mailed notice shall be presumed received three (3) days after it is mailed. The notice shall contain: (1) A statement of the grounds for the suspension or revocation. (2) eve ate of the suspension or revocation, which shall be at least ten (10) days after the notice is received. (3) In the case of a suspension, the length of the suspension. (4) Instructions on how to appeal the suspension or revocation. (c) Appeal to liquor license review board The licensee may appeal the suspension or revocation by requesting a hearing before the liquor license review board. The appeal must be in writing, addressed to the assistant to the chief review officer and received by the chief review officer within ten (10) days after the notice of suspension or revocation was received. Receipt of an appeal by the chief review officer shall automatically stay enforcement of the suspension or revocation. The hearing shall be conducted in the same manner as under section 5-37 of this Code. (Code 1967, § 5-30; Ord. No. 4233, art. 4, 5-16-11) Sec. 5-39. - Standards of conduct. M The standards set forth in this section shall be considered in determining whether a license under this chapter should be renewed, suspended or revoked. In conducting business on the licensed premises, a licensee and the licensee's agents and employees shall: (a) Prevent or suppress any violent quarrel, disorder, ravel, fig t oi'F—r offer unlawful conduct of any person on the premises. As used in this section, "premises" includes the licensed premises and the parking lots and areas around the business which are owned, used or maintained as part of the business. (b) Immediately report to the police any illegal or violencecommitted on the premises when the licensee or the licensee's employee knew or should have known that the act occurred on the premises. (c) Cooperate fully with law enforcement authorities during an investigation of an illegal or violent act committed on the premises. 3/19/2020 Missouri Rovisor of StaWos- Ravlsad StaWtes of Missouri, RSM. Sec9on 311.6 EXHIBIT Rcvr`or of .`sfatitfes 22 Constitution Committee Publications �--- About Help & FAQ Other Information & Links Words • 1st search term or section n And I 2nd search term Title XX ALCOHOLIC BEVERAGES Chapter 311 Effective - 28 Aug 2009 + 311.680. Disorderly place, warning, probation, suspension or revocation of license, when, notice — civil penalties — meet and confer opportunity, when. — 1. Whenever it shall be shown, or whenever the supervisor of liquor control has knowledge, that a person licensed hereunder has not at all times kept an orderly place or house, or has violated any of the provisions of this chapter, the supervisor of liquor control may warn, place on probation on such terms and conditions as the supervisor of liquor control deems appropriate for a period not to exceed twelve months, suspend or revoke the license of that person, but the person shall have ten days' notice of the application to warn, place on probation, suspend or revoke the person's license prior to the order of warning, probation, revocation or suspension issuing. 2. Any wholesaler licensed pursuant to this chapter in lieu of, or in addition to, the warning, probation, suspension or revocation authorized in subsection 1 of this section, may be assessed a civil penalty by the supervisor of liquor control of not less than one hundred dollars or more than twenty-five hundred dollars for each violation. 3. Any solicitor licensed pursuant to this chapter in lieu of the suspension or revocation authorized in subsection 1 of this section may be assessed a civil penalty or fine by the supervisor of liquor control of not less than one hundred dollars nor more than five thousand dollars for each violation. 4. Any retailer with less than five thousand occupant capacity licensed pursuant to this chapter in lieu of the suspension or revocation authorized by subsection 1 of this section may be assessed a civil penalty or fine by the supervisor of liquor control of not less than fifty dollars nor more than one thousand dollars for each violation. 5. Any retailer with five thousand or more occupant capacity licensed pursuant to this chapter in lieu of the suspension or revocation authorized by subsection 1 of this section, may be assessed a civil penalty or fine by the supervisor of liquor control of not less than fifty dollars nor more than five thousand dollars for each violation. 6. Any aggrieved person may appeal to the administrative hearing commission in accordance with section 311.691. ht(ps.hwww.revisor.mogov/main/OneSection aspx?section=311.090&bid=16666&h1= 113 3119/2020 Mss.uri Remsot of Stal.Ms- Nevised SWrWes of Missouri, RSM. S.nIi., 311.680 7. In order to encourage the early resolution of disputes between the supervisor of liquor control and licensees, the supervisor of liquor control, prior to issuing an order of warning, probation, revocation, suspension, or fine, shall provide the licensee with the opportunity to meet or to confer with the supervisor of liquor control, or his or her designee, concerning the alleged violations. At least ten days prior to such meeting or conference, the supervisor shall provide the licensee with notice of the time and place of such meeting or conference, and the supervisor of liquor control shall also provide the licensee with a written description of the specific conduct for which d Scipline is sought, a citation of the law or rules allegedly violated, and, upon request, copies of any violation report or any other documents which are the basis for such action. Are, order of warning, probation, revocation, suspension, or fine shall be effective no sooner than thirty days from the date of such order. (RSMo 1939 § 4905, A.L. 1975 S.B. 661, A.L. 1996 S.B. 933, A.L. 2002 S.B. 834, A.L. 2009 H.B. 132) (1964) Evidence was sufficient for superintendent to find that licensee had sold intoxicating liquor to minor and it was not necessary that licensee's guilt be determined by court or jury or that supervisor overcome any presumption of innocence of licensee in order for superintendent to suspend licensee's license Crooms v. Ketchum (Mo.), 379 S.W.2d 580. ---- end of effective 28 Aug 2009 ---- use this link to bookmark section 311.680 In accordance with Section 3.090, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such + enacted statutory section. ► Other Information ► Other Links yap.+Y�rny �i sibaa� Missouri Senate Mo.gov Missouri House Errors I suggestions- sot I_i 1 ,.. i�tpg Wttb M est e.. rs) U1, ni o. a ov 1 - c,ec, httpsi/www.revisor mo gov/main/One Sectioo.aspx9sect on=311.680&bo-16686&b1- 2C1 614/2020 osmose E////XtttHh�I���BIT Search Terms: Select term(s) to navigate v Page 692 453 S.W.2d 692 OLD FORTRESS, INC. and James Salvatore Duardi, Plaintiffs -Appellants, V. Orson F. MYERS, Defendant -Respondent. No. 25318. Kansas City Court of Appeals, Missouri. April 6, 1970. Page 693 Galen Knowlton, Michael J. Drape, Knowlton & Drape, Kansas City, for plaintiffs - appellants. Herbert C. Hoffman, City Counselor, Rex G. Bostwick, Asst. City Counselor, Kansas City, for defendant -respondent. SHANGLER, Presiding Judge. Defendant, Orson F. Myers, Director of the Department of Liquor Control of Kansas City, Missouri, suspended the liquor permit of plaintiff Old Fortress, Inc. and that of its employee and managing officer, plaintiff James Salvatore Duardi, each for a period of seven days. Although the record does not explicitly indicate it, the permit seems to have been for the sale of liquor by the drink. Each plaintiff had been charged with, and upon a hearing been found guilty of having violated Sec. 4.140--(a)--(8), Revised Ordinances of Kansas City, Missouri, which provides: 'No person holding a permit under this chapter shall allow upon the premises covered by said permit * * * any gambling of any kind or character for money, trade checks, prizes, merchandise or any other consideration.' Plaintiffs sought and had judicial review of the administrative proceedings by Petition for Review under the Administrative Procedure and Review Act, Chapter 536, V.A.M.S., 1959; Civil Rules 100.03 et seq., V.A.M.R. On this appeal, plaintiffs challenge the circuit court's affirmance of the Director's orders of suspension as not supported by competent and substantial evidence upon the whole record. The episode which gave rise to the charges against the plaintiffs was described in evidence by Thomas Six, special investigator for the Kansas City, Missouri, Department of Liquor Control. As his was Page 694 the only testimony relating to the alleged infractions (apart from Duardi's denial that he had any knowledge of the incidents related), the validity of the Director's orders must derive its support, if at all, from such evidence. On February 8, 1967, at about 11:45 P.M., Six, in the company of a young lady, entered the Old Fortress tavern, sat down at a table and ordered a drink. (We make no https//apps.fasmase.com/Research/PageslDocument.aspx9LTID=30yoE9FRCgAYeMn3k NGB24vzn%2bkUuC10HUNBG43Bpuh6FPkH130aPio8M5_. 1A 614/2020 Fastcase further reference to his companion, as she neither testified at the administrative hearing nor was referred to again in the testimony.) There he remained until the tavern's closing at 1:30 A.M. During all that time, there were on an average from twelve to fifteen patrons in the tavern at any given time. Of this number, two, besides Six himself, sat at tables. The rest were seated at the bar. Plaintiff Duardi tended bar and, as it appears he was the only one then working, served the patrons at the tables, as well. Six had seated himself with his back to the east wall. From that coign of vantage, he enjoyed an unobstructed view of a pool table some thirty feet in front of him. About eight feet beyond the pool table, also directly facing Six, was the bar which extended along the west wall. Upon entering the tavern, Six noticed two men at the pool table playing 'eight ball'. At the conclusion of that game, the losing player handed the winner a five dollar bill. Three succeeding games were concluded in the same fashion. In each instance, the loser paid the winner five dollars and, in each instance, payment was made at the table. Although two additional games were played thereafter, no money was exchanged consequent to them. Six could descry the denominations of the bills which passed, for although his table was dimly lit, the pool table, itself, was well illuminated. As closing time approached, Six witnessed this conversation between 'an elderly man' and the 'man who had been winning'. Elderly man: 'I will play the winner for the champion's cup.' Winning man: 'We're playing for five.' Elderly man: 'You mean five dollars?' Winning Man: 'Yes.' Elderly man: 'I am just a sportsman.' Six also recounted other remarks made about the table (although he did not fix them in point of time or sequence), such as, 'I wish I could afford to play' and 'That was a five dollar shot'. Although we assume Six was seated at the east wall throughout these verbal exchanges, there is no indication where the authors of any of these statements were located at the time they were made with relation to Duardi or any other identifiable person. These events, and the others we describe, were accompanied by whatever sounds were emitting from a juke box which was apparently playing, as well as by the usual murmuration of bar -room conversation. During all this time, plaintiff Duardi was attending to his duties, 'moving about the premises' and tending bar. On the one occasion when he put an intoxicated man off the premises, Duardi passed by the pool table. He was not at or near that table, however, when the exchanges of money took place, although '(h)e was on the patron's side of the bar one time when there was a pay-off'. Mr. Duardi, himself, testified that he knew nothing about gambling on the premises on that date, nor was he informed of it. On this evidence, the Director found that plaintiffs had infracted the cited ordinance by having 'allow(ed)' gambling on the permitted premises. Plaintiffs do not dispute that the activity we have described constitutes 'gambling * * * for money' within the ordinance but contend that there was no substantial proof that plaintiffs 'allowed' it. At the outset, we must dispel a misconception which plaintiffs seem to entertain https 11a1ps.fastease.coralResearchlPageslDocumentaspx?LTID=30,oE9FRCgAYeMn3k NGB24,zn%2bkUUC1 0H.NBG43Bpuh6FPkH,30aP,aM5_. 2/4 61012020 Page 695 Fastown concerning the appellate function in the review of the findings and decisions of an administrative agency entered pursuant to a hearing required by law. In such cases, the scope of our review, as well as that of the circuit court, is to determine if the administrative findings and decisions are supported by competent and substantial evidence upon the whole record. St. Louis County v State Tax Commission, Mo., 406 S.W.2d 644, 649(2--4); State _ec r l favazza v.KetchuM, fQ., 367 S W Zd 542(2, 3). In their Petition for Review, however, plaintiffs contend that Six could not have seen nor heard that to which he testified because of the thirty feet separating him from the wagering pool players and also because of the prevailing physical conditions. And, although plaintiffs couch this contention in terms of the lack of 'probative value' of such evidence, it is obvious that they are actually asserting that Six' evidence was not credible and therefore should not have been taken into account by the Director. The Director of Liquor Control, not this court or the circuit court, is the fact finding tribunal. State ex rel. Chestnut Inn, Inc. v. Johnson, Mo.App., 297 S.%2d 5,76, 577(1). The assessment of the credibility of witnesses is implicit in the fact finding process. In such an administrative review, we defer to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony. Wo vu. Wagner Electric Corporation, 355 Mo. 670, 197 S.W,2z-47, 649(1--5); McCallister v. Priest, Mo,,, 422 5 W 2d 650, 658(7). Whether the acuity of Six' visual and aural senses was such as to have enabled him to hear and see what he claimed to have heard and seen was a matter of credibility for the Director's determination. The essential question to be determined on this appeal is whether there is competent and substantial evidence upon the whole record that plaintiffs allowed gambling on the permitted premises. The word 'allow' is not a technical term. Giffin V. Petree, 226 Mo App. 21a, 46 S W 2d 609 (concurring opinion by Bland, J., at 618(6)). It is equivalent in meaning to 'acquiesce' and always implies knowledge or consent. 3 C.J.S. Allow p. 888; Words and Phrases, Vol. 3, Per a pion(gu g nowledge implied', pp. 349--350). That is the meaning to be given 'allow' within the context of the ordinance under which plaintiffs are charged. The Director's findings that plaintiffs allowed gambling on the permitted premises and the consequent suspensions may stand, therefore, only if there is competent and substantial evidence upon the whole record that Duardi knew of the gambling, but nonetheless acquiesced in it or consented to it. The question becomes, upon what substantial evidence can it be said that Duardi came to the knowledge of the gambling? Certainly, there was no direct evidence that Duardi was told of the gambling, nor saw it, nor heard the wagering language described by Six. The fact of knowledge, however, may be proven by circumstantial evidence. State on inf. of L`'ICKIttrlCk v Graves, 346 Mo. 990, 144 S.W.2d 91, 95(5); Herrman v. Daffin, Mo.App., 302 S W 2d 313, 316. 'Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.' 31A C.J.S Evidence p. 440; Harrison v. Harrison, Mo.App., 417 S.W.2d 39, 46(8--10). The circumstances, however, must point to the inference drawn with such a degree of certainty as to make it 'reasonable and probable and must rise above the stature of guesswork, speculation or surmise'...., ree v. Ralston Purina Company,Mo , 376 S.W.2d I19, 124(1--4). In determining the sufficiency of the evidence, of course, we consider it in that light most favorable to the Director's findings, together with all reasonable inferences supporting them. Baker & Theodore, Inc. v. Quinn, Mo.App., 4()0 5 W 2d 477, 480(4--8); Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 5.W.2d 201, 203(1--3). Even so considered, however, we conclude that the facts offered as circumstantial evidence Page 696 ht, iiappsfas5eso.wMRese chJPaS s+ cumeni.espx?LTU=30y E91"'RC9AYeMn3k7NG624vzr,%kUuClOHuNBGd38 i6FPkHJ3DaP�o6M6_ %4 81412020 Fastcasei do not afford a basis for a reasonable inference of Duardi's knowledge of the gambling on the permitted premises. As the mere presence of the pool table and its normal use by the patrons were not forbidden, they were not circumstances from which Duardi's knowledge of gambling could be inferred. As to the 'pay-offs', there was evidence of four of them, after each of the first four games of 'eight -ball'. Each payment was made at the pool table. The evidence does not disclose how long the money was in view, although it seems reasonable to assume that the payments were accomplished with fleeting manual maneuvers. Nor do we know where Duardi was on each of those occasions, except that he was 'on the patron's side of the bar' one time when there was a 'pay-off'. But we are not informed as to what he was then doing within those eight feet separating the bar and pool table, whether his back was to the wagerers, or whether their backs were to him. The only other time Duardi was near the pool table was when he put an intoxicated patron off the premises. But no exchange of money took place then. In short, there was no evidence from which it could be inferred, with a degree of certainty rising above conjecture and speculation, that Duardi saw the gambling and thus knew of it. As to the utterances, 'We're playing for five' and the like, the evidence gives no inkling as to where Duardi was when they were made or, for that matter, except conjecturally, where anyone else was (except for Six, who seems to have remained against the east wall throughout). We neither know, nor can reasonably infer, how loud these statements were, nor how far they carried. Even if we discount the juke box sounds and the drone of the conversation of fifteen patrons, can we make out evidence of sufficient substance from which Duardi's perception of the words spoken --and hence his knowledge of gambling on the premises --can be inferred. To this, we add the evidence that Duardi, as the only employee on duty was preoccupied serving his customers, for the most part from behind the bar, but also at the tables. To find the fact of Duardi's knowledge of the gambling from circumstantial evidence so vague and uncertain is to draw an inference that amounts to scarcely more than a possibility that the fact of Duardi's knowledge of the gambling might exist. 'However, proof by circumstantial evidence must establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn.' Willoughby v. Safeway Stores, Inc., Mo.App., 397 S W 2d 748, 751(3, 4); Clymer v. Tennison, Mo.App., 384 S W 2d 829, 834. Six' evidence is no more probative of Duardi's knowledge of the gambling than his lack of it. Neither inference is more reasonable and probable than the other. Evidence is substantial if it has probative force upon the issues and could reasonably lead to the belief of the material facts. Davis v. State Department of Public Health & Welfare, Mo.App., 274 S. W.2 61 , 617--618(6, 7); Baker & Theodore, Inc. v. Quinn, supra, 400 S.W.2d P. 480; B2rkemeler v Reller,317 Mo 614., 296 S W 739, 752(15--17). We therefore conclude that the Director's findings and orders of suspension are not supported by competent and substantial evidence that Duardi allowed gambling on the permitted premises. The judgment of the circuit court is reversed and remanded and the circuit court is directed to set aside the orders of suspension entered against plaintiffs by the Director of Liquor Control. All concur. ® Live Chat Mips tlapps.fastcase crnu'ftesearcOYagestboc�rzront aspx�lTiD=30yoE9FRC�AveMn3kZNGa24r.+%2bkUuCtOHUNBG438puh6rPkHj30aP1o8M5... 414 61412020 Fastcase EXHIBIT Search Terms: Select term(s) to navigate v 23 S.W.3d 641 (Mo.App. E.D. 2000) This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Melissa Egenreither, A Minor, By and Through Her Next Friend and Natural Father, Michael Egenreither, and Michael Egenreither, Individually Case Number: ED75956 Missouri Court of Appeals Eastern District Handdown Date: 05/16/2000 Appeal From: Circuit Court of City of St. Louis, Hon. Jimmie Edwards Counsel for Appellant: Martin J. Buckley Counsel for Respondent: Robert H. Pedroli Opinion Summary: Defendant Sandra Carter appeals the trial court's order granting a new trial after the jury rendered a verdict in her favor on plaintiff Melissa Egenreither's claim for personal injuries when she was bitten by Carter's dog. AFFIRMED AND REMANDED. Division Five holds: (1) A plaintiff need not show that the owner of a dog had knowledge or affirmatively consented to the dog running loose to make a submissible case of negligence per se for violation of a leash law. (2) The trial court did not err in granting Egenreither's motion for a new trial because no evidence was presented to support Carter's instruction on legal justification or excuse. Opinion Author: Lawrence G. Crahan, Judge Opinion Vote: AFFIRMED AND REMANDED. Russell, C.J. and Crist, J., concur. Opinion: Opinion modified by Court's own motion on June 6, 2000. This substitution does not constitute a new opinion. Sandra Carter ("Defendant") appeals the trial court's order granting a new trial after the jury rendered a verdict in her favor on Melissa Egenreither's ("Plaintiff") claim for personal injuries sustained when she was bitten by Defendant's dog. We affirm. Plaintiff, then thirteen years old, was walking home through the alley behind Defendant's home in the City of St. Louis. Plaintiff saw Defendant's son come out of the back yard into the alley through a gate in the chain link fence. Defendant's dog, Neno, a mixed breed of German Shepherd and Rotweiller, came through the gate shortly thereafter. When Plaintiff was five or six feet away from the gate, the dog jumped up and bit her on the arm. It is undisputed that Defendant was the owner of the dog at the time of the incident and that the dog was not on a leash. hltps Papps.fastcase. com/Research/Pages/Documant aspx9LTIU=boaU WJXGu%2bW6%2bn ESaW F6131pOBKoYU%2f6dBfai6Leu%2b3RjgHyQ%2f2 _. 115 614/2020 Fastcase Plaintiff submitted her case on the theory that Defendant was in violation of section 10.04.220 of the revised code of the City of St. Louis and that such violation constituted negligence per se. The ordinance provides: Leashing of Dogs. No owner of any dog shall permit such dog to be found at large on the streets of the City of St. Louis or in any public place or on another person's private property, unless such dog is on a leash, not longer than six feet in length and held by or under control of a responsible person so as to effectively prevent it from biting any person or animal. All dogs are prohibited from running or being at large unless under restraint as described above. Plaintiff's verdict director, as instruction number 5, provided: Your verdict must be for plaintiff, Melissa Egenreither, and against defendant, Sandra Carter, if you believe: First, that Sandra Carter owned the dog in question, and Second, that the dog owned by Sandra Carter was on property other than that owned by defendant, and Third, that the dog owned by Sandra Carter was not restrained by a competent person, and Fourth, as a direct result of such conduct, plaintiff, Melissa Egenreither, sustained damage. Over Plaintiff's timely objection, the trial court also gave instruction number 6, tendered by Defendant, which provided: Your verdict must be for defendant if you believe that Neno was at large on the streets of the City, or in any public place while not on a leash but defendant was not thereby negligent.? After the jury returned a verdict in Defendant's favor, Plaintiff timely filed her motion for a new trial claiming, inter alia, that Defendant's converse instruction was improper under the circumstances and was a misstatement of the law. The trial court agreed and sustained Plaintiff's motion for a new trial. Defendant appeals, claiming her converse instruction correctly stated the law and that, even if the instruction was erroneous, Plaintiff failed to make a submissible case. We disagree. We will first address Defendant's claim that Plaintiff failed to make a submissible case. Defendant claims Plaintiff failed to show that Defendant "permitted" the dog to be at large while not on a leash because the undisputed evidence shows she was not at home when the dog escaped from her yard after her child opened the gate. Defendant urges that the requirement that an owner not "permit" the dog to run loose implies that the owner must have knowledge or affirmatively consent to the dog running loose. We disagree. The term "permit" means "to give permission; to authorize; to allow by silent consent, or by not prohibiting ..." Webster's New Universal Unabridged Dictionary 1336 (2d ed. 1983). It is in the latter sense that the term is used in the ordinance at issue. The ordinance is not concerned with the owner's knowledge of the violation. Rather, the ordinance imposes upon a dog owner the affirmative obligation to ensure that the dog either remains in the yard or is restrained on a leash under the control of a responsible person "so as to effectively prevent [the dog] from biting any person or animal." Defendant relies on bltps I/apps fastcase.com/Research/Pages/Document aspx?LTID=boaU WJ%Gu h2b W6%2bnESa W F6131gOBKOYU%2f6d8fai6LeuY 2b3RjgHyp%22.. 215 61412020 Fastcase Monteer v. Prospectors Lounges„ 821 S.W.2d 898, 900 (Mo. App. 1992) and cases from other jurisdictions for the proposition that there must be a showing of some element of knowledge, consent or fault to make out a violation of a leash law. See, e.g., City of Champaign v. Auler, 442 N.E.2d 330, 332 (III. App. 1982); Lange v. Minton, 738 P.2d 576, 577 (Or. 1987). Monteer is readily distinguishable. In Monteer, the plaintiff sought to hold a bar owner liable on a theory of negligence per se for violating an ordinance providing that no liquor licensee or employee shall "allow" disorderliness or brawls upon the premises. The plaintiff, whose husband was murdered in the parking lot of a bar some time after a brawl had been broken up by the bartender, sought to hold the owner liable on a theory of negligence per se for failing to call the police. The court held that the plaintiff had not proven negligence per se because the evidence showed that the bartender had been actively involved in trying to end the fracas and had not acquiesced in the conduct. 821 S.W.2d at 900-01. Monteer is distinguishable on two grounds. First, unlike the ordinance in this case, the ordinance did not establish an affirmative obligation to prevent brawls; the licensee's obligation was to promptly attempt to stop them if they occurred. More importantly, the ordinance in Monteer dealt with what was required of licensees in response to the actions taken by third parties not under the licensee's immediate control. In contrast, a leash law addresses what is required of dog owners with respect to an instrumentality they are affirmatively required to keep under control. Violation of the liquor license ordinance thus requires some sort of knowledge or acquiescence; violation of a leash law does not. We also find the authorities from other states unpersuasive. Our review of Missouri cases persuades us that Missouri courts have never required a showing of the owner's knowledge or acquiescence to make out a claim of negligence per se for violation of a leash law. Shobe v. Borders, 539 S.W.2d 330, 332 (Mo. App. 1976); Jensen v. Freely, 691 S.W.2d 926, 929 (Mo. App. 1985). Point denied. We now turn to Defendant's contention that the trial court erred in granting a new trial because her converse instruction was supported by the evidence and in proper form as reflected in MAI 33.05(2). In reviewing a trial court's award of a new trial because of an erroneous instruction, we determine if the instruction is erroneous as a matter of law upon the record presented, not as a matter within the discretion of the trial court. State ex rel. Missouri Highway and Transp. Com'n v. Mertz, 778 S.W.2d 366, 368 (Mo. App. 1989). If the instruction is found to be erroneous, we defer to the discretion of the trial court, absent a showing of an abuse of this discretion, because the trial court has the best opportunity to determine the effect of any error. Whiting v. United Farm Agency, Inc., 628 S.W.2d 407, 409 (Mo. App. 1982). Defendant relies on Wilson v. Shumate, 296 S.W.2d 72, 75 (Mo. 1956), MacArthur v endr n, 312 S.W.2d 146, 150 (Mo. App. 1958) and e_entleyv. Crews, 630 S.W.2d 99, 105 (Mo. App. 1991), for the proposition that the courts have always allowed defendants in negligence per se cases to explain the reasons for noncompliance with the statute and to hypothesize that explanation for the jury in a converse instruction. Defendant urges that her explanation that she was not at home and the absence of any evidence that the dog had previously escaped the yard justified submission of her converse instruction patterned after MAI 33.05(2).? We find that Defendant's authorities do not support her sweeping generalization. As cautioned in the Notes on Use No. 1 following MAI 33.05(2), a defendant is only entitled to submit this type of converse instruction if the plaintiff submits on negligence per se "and only if it is supported by the evidence and the facts show that legal justification or excuse is applicable." In other words, a defendant is not entitled to submit a converse instruction patterned on MAI 33.05(2) regardless of the nature of her explanation for failing htlpsl/apps fasaase comtResearch/PageslDocument.aspx9LTID=boa U WJXGu%2b W6%2bnESa W F613igCBKoYU%2f6dBfai6Leu%2b3Rj9HyD%2f2.. 315 61412020 Faslcase to conform to the statute. The defendant may submit the converse only if the explanation constitutes a legal justification or excuse. In general, legal justification or excuse requires proof of circumstances beyond the defendant's control and not the result of the defendant's negligence which justify or excuse strict compliance with the statute. The cases relied upon by Defendant are consistent with this view. In Wilson v. Shumate, for example, the plaintiff sought to hold the defendant liable on a theory of negligence per se for violation of an ordinance requiring all motor vehicles to have two sets of adequate brakes in good working order. 296 S.W.2d at 75. The plaintiff sustained injuries when the foot brake failed. Id. at 74-75. The court acknowledged that the plaintiff made a submissible case of negligence per se but noted that the defendant was entitled to offer proof of legal excuse or avoidance for his failure to have observed a duty created by the statute which the court defined as "proof that an occurrence wholly without his fault made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided." Id. at 75. Upon submission of such proof, the defendant would be entitled to have the jury determine if he was negligent in failing to comply with the statute.! Id. Likewise in MacArther v. Gordon, the court observed that considerations of safety, emergency conditions, or impossibility of compliance may constitute valid excuses for noncompliance with a statute. 312 S.W.2d at 150 (citing Lix v Gastain 261 S W 2d 497 (Mo. App. 1953); Lewis v. Zagata 350 Mo. 446, 116 S.W.2d 541 (Mo. 1942); and Politte v. Miller,. 301 S.W.2d 839 (Mo. App. 1957).. Cowell v. Thompson similarly recognized that proof that the defendant's actions were undertaken in response to an emergency may justify submission of an instruction hypothesizing justification or excuse. 713 S.W.2d 52, 54. (Mo. App. 1986). In the instant case, Defendant's explanation for her failure to conform to the statute did not constitute a legal justification or excuse that the law will recognize as a defense. The fact that Defendant was not at home when the incident occurred did not relieve her of her affirmative obligation imposed by the statute to ensure that the dog either remained in her yard or was restrained on a leash by a responsible person so as to prevent it from biting anyone. Compliance with the ordinance was not rendered impossible by any circumstance beyond Defendant's control. Indeed, the evidence showed that Defendant had a dog pen that could have been used to restrain the dog when necessary to open the gate. Because Defendant's explanation did not constitute a legal justification or excuse, it follows that the trial court did not err in granting Plaintiff's motion for a new trial. Affirmed and remanded for a new trial consistent with this opinion. NOTES: 1. Instruction number 7 defined "negligence" in accordance with MAI 11.02. 2. Defendant's converse instruction tracked the overall form of MAI 33.05(2) but erroneously omitted the affirmative defense tail required by the caution in the Notes on Use. Plaintiff did not object to the form of the instruction. �. Although we resolve this case on the basis that Defendant's evidence did not establish a legal justification or excuse to support the submission of an instruction patterned after MAI 33.05(2), we note that the pattern instruction itself may not properly present the issue to the jury. Although the Notes on Use permit defendant to submit a converse upon offering evidence of a legal justification or excuse, MAI 33.05(2) as drafted does not require that the jury find that the facts constituting the legal justification or excuse actually exist -- i.e., that the defendant was responding to an emergency, circumstances rendered compliance impossible, compliance would have increased the danger, etc. As drafted, MAI 33.05(2) merely requires the jury to find htlps happs.fasicase.com/Researrh/P.g.s/Documenl. aspx?LTID=boaU W JxG.%2bW6%2bnE5aW F613igOBKOVU%2f6dBfai6Leu %2b3RigHyQ%2f2_. 415 614/2020 Fastcase Search Terms: Select terms) to navigate Page 146 312 S.W.2d 146 A. James MacARTHUR (Plaintiff), Appellant, v. Joseph R. GENDRON (Defendant), Respondent. No. 29972. St. Louis Court of Appeals, Missouri. EXHIBIT April 1, 1958. Motion for Rehearing or for Transfer to Supreme Court Denied May 2, 1958. Page 148 George T. Williams, St. Louis, for appellant. Fred B. Whalen, Warren Grauel, St. Louis, for respondent. HOUSER, Commissioner. This is a suit for damages arising out of a collision between the automobiles of plaintiff and defendant. The trial jury returned a verdict for defendant. Plaintiff has appealed. The appeal comes to this court on an abbreviated transcript of the record consisting of copies of plaintiff's petition, defendant's answer, an agreement that evidence was introduced at the trial 'tending to prove' the allegations of petition and answer, the instructions, the objection plaintiff's counsel made at the time Instruction No. 3 was offered and given, namely, that it 'does not provide that in order for the defendant to receive a judgment the plaintiff's driver must be directly and solely the cause of the collision to the automobile of plaintiff, and that the case before this court is based on the bailment,' the verdict in favor of defendant, motion and order overruling motion for new trial and notice of appeal. The sole question on this appeal is whether the court erred in giving Instruction No. 3, offered by defendant, as follows: 'The Court instructs the jury that it is the law of Missouri that the driver of an automobile within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction, which is within the intersection or so close thereto as to constitute an immediate hazard. 'The Court therefore instructs the jury that if you find and believe from the evidence in this case that at the time of the collision mentioned in the evidence plaintiff's driver was operating plaintiff's automobile southwardly on Skinker Boulevard and defendant, Joseph R. Gendron, was operating his automobile northwardly on said Skinker Boulevard; and if you further find and believe plaintiff's driver commenced his left turn into Clemens Avenue by crossing the center line of said Skinker Boulevard when defendant, Joseph R. Gendron, was so close to said intersection as to constitute an immediate hazard, and plaintiff's driver thereby failed to yield the right of way to defendant, Joseph R. Gendron, if you so find; then hhps Papps.fastcase.com/ResearchiPages/Document,aspx?LTID=962fF3o4gNC]KpCPF/2fBoNWt vNlwNEhfUtbeg8f%2fRW%2fvL58Y.u2fcFiCsha_. 14 614/2020 Fastcase the Court instructs the jury that plaintiff's driver was negligent in the operation of plaintiff's automobile, and if you further find that the negligence, if any, of plaintiff's driver directly caused the collision and damage to plaintiff's automobile, then and in that event the Court instructs you that plaintiff cannot recover from defendant and your verdict will be for the defendant, Joseph R. Gendron.' Plaintiff-appellant proposes error in the giving of No. 3 because (1) it fails to negative defendant's negligence; fails to hypothesize a state of facts which would exonerate defendant from all fault, and hypothesizes facts under which the jury could find for defendant notwithstanding defendant might be guilty of negligence; .(2) it fails to require defendant to exercise any degree of care whatever to avoid the collision, regardless of whether plaintiff, in the exercise of the highest degree of care, could have yielded the right of way or whether defendant, by the exercise of due care, could have avoided the collision notwithstanding plaintiff's failure to yield the right of way; (3) it fails to define the clause 'yield the right of way;' (4) it fails to inform the jury that the right of way is not an absolute right, but is qualified, and improperly imposes on Page 149 plaintiff an absolute duty (that of an insurer) to avoid injury to himself and others by yielding the right of way under any and all circumstances while making a left turn whereas the true standard of duty is merely to exercise the proper degree of care to avoid injury. Plaintiff-appellant in his brief refers to his driver as his 'bailee' and claims that No. 3 is a sole cause instruction. If this was a bailor -bailee and not an agency relationship and if No. 3 was a sole cause instruction appellant's first two contentions would begin to take on substance. The case, however, was not tried on the theory of bailment. The petition does not allege that plaintiff's driver was a bailee. It alleges that plaintiff was a passenger in his own automobile, which is inconsistent with the theory of bailment, which contemplates delivery to the bailee, Hope v. Costello, 222 Mo.App. 187, 297 S.W. 100, and the right of exclusive possession of the property, even against the bailor. Suits v. Electric Park Amusement Co., 213 Mo.App. 275, 249 S.W. 656. Certainly plaintiff's driver's negligence would be imputed to plaintiff where plaintiff, the owner of the automobile, was personally present therein, if the two were engaged in a joint journey. Kieffer v. Bragdon, Mo.App., 227 S.W.2d 10, loc. cit. 16. Defendant's answer refers to the negligence of 'plaintiff's agent and servant, Edwin Goodcoe' as the proximate cause of plaintiff's damages. Under the parties' agreement there must have been evidence that plaintiff was in the automobile as a passenger and that plaintiff's driver was plaintiff's agent and servant. Nothing in the transcript reveals any evidence that there was a bailor -bailee relationship. No instruction submits any facts upon the basis of which the jury could have found that plaintiff's driver was merely a bailee. The only indication that a bailment theory was in the mind of plaintiff's counsel is his objection to No. 3 set forth in the second paragraph of this opinion. That Ione objection is not enough to show that plaintiff tried this case on the theory that plaintiff's driver was merely a bailee whose negligence could not be imputed to plaintiff. Nor was this case pleaded or submitted by defendant on the theory that the negligence of plaintiff's driver was the sale cause of the collision. The issues framed by the pleadings, the only evidence of which we have any information, and the instructions submitted by both parties indicate that plaintiff sought to recover from defendant upon the theory that defendant negligently damaged plaintiff's property, and that defendant sought to escape liability on the ground that defendant was not negligent and that it was the negligence of plaintiff's hVps'I/apps fastcase. com/ResearchIPages/Document.aspx?Ll'ID=%2fF3o4gNC7KpCPF%2fBoN WrvvNI WNEhNtbeg6f%2iRW %2fvL58VoU2fcFiCsha... 2/4 6/4/2020 Fastcase driver that caused the damage. Under the issues and evidence it is our opinion that No. 3 was intended to and did sufficiently submit the defense of the contributory negligence of plaintiff's driver. While No. 3 does not specifically admit that defendant was negligent or contain a 'notwithstanding that you may find defendant negligent' clause, such an admission is not necessary to constitute a proper instruction on contributory negligence. See Peterson vMetropolitan St. R. Co., 211 Mo. 498, 111 S.W. 37, in which Lamm, J., said, 211 Mo. loc. cit. 520, 111 S.W. loc. cit. 43: 'Defendant's answer in this case denied its own and pleaded plaintiff's negligence. Now, plaintiff's negligence, in a case where (as here) defendant's negligence is charged and proved, is at bottom 'contributory negligence,' and nothing else. There is nothing in a name --the thing to be got at is the substance.' It was not necessary that No. 3, an instruction on contributory negligence, negative negligence on the part of defendant or submit defendant's compliance with any duty or degree of care he may have owned plaintiff. Nor does the use of the term 'directly caused,' used in submitting the question of causation instead of the term 'directly caused or contributed to cause,' Page 150 convert No. 3 into a sole cause instruction or detract from its character as a contributory negligence instruction. We find no fault with the failure of the court to more particularly define the clause 'yield the right of way.' These are words of general usage and common understanding. They do not require further definition for the reason that they are terms that no layman would misunderstand. See Wirth v. St. Louis County Transit Co., Mo.App., 253 S.W.2d 547; Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243. More challenging is plaintiff's charge that No. 3 imposed upon plaintiff's driver an absolute and unqualified duty to yield the right of way under every conceivable circumstance, rather than a duty to yield the right of way in the exercise of the highest degree of care under the particular circumstances. The statutory rule in question is Sec. 304.021(3) RSMo 1949, V.A.M.S. which provides: '3. The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.' If plaintiff's criticism is valid No. 3 cannot stand because traffic regulations imposed by statute are not unyielding and inflexible. 60 C.J.S. Motor Vehicles Sec. 271. They are not to be applied rigidly, absolutely and peremptorily without regard to the circumstances or conditions. Wines v. Goodyear Tire & Rubber Co., supra, and cases cited. The duties imposed by the statutory rules of the road may be qualified by the circumstances. Nelms v. Bright, Mo.Sup., 299 S.W.2d 483. Under the circumstances of a particular case there may be a valid excuse for failing to comply with a statutory rule of the road, as where non- observance of the statute is induced by considerations of safety, Lix v. Gastian, Mo.App., 261 S.W.2d 497, or emergency conditions, Lewis v. Zagata, 350 Mo. 446, 116 S.W.2d 541; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or where compliance is impossible, as in the case where knowledge, actual or constructive, of the immediate approach of an emergency vehicle comes too late to yield the right of way under an emergency statute. Politte v. Miller, Mo.App., 301 S.W.2d 839. Whether in a given case there are exceptional circumstances requiring that the statutory rule of the road yield to other considerations is a question of evidence. What evidence is there in the instant appeal upon the basis of which https//apps.fastcase.com/Research/Pages/Document. aspx9LTID=%2fF3o4gNC7KpCPF%2MoNWf vNIwNEhfUfbe98f%2MW%2fvL58VoU2fcFiCsha... 3/4 6/4/2020 Fastcase we can make that determination? None. The evidence has not been preserved for review. On this record we are unable to determine whether No. 3 improperly omits reference to some exculpatory rule of law or some absolving hypothesis of facts which would relieve plaintiff from the peremptory command of the statute to yield the right of way. In the absence of such a showing a failure to comply with the statutory rule of the road constitutes negligence per se. Lix v. Gastian, supra. A close analysis of Instruction No. 3 does not lead to the conclusion that the submission of the defense of contributory negligence for statutory violation in the form employed constitutes reversible error on the ground assigned. We are unable to read into No. 3 the imposition upon plaintiff of an absolute duty to yield that right of way to defendant under all circumstances. It does not amount to a universal interdiction. It does not unqualifiedly instruct the jury that if plaintiff's driver failed to yield the right of way to defendant the former is guilty of negligence. No. 3 carefully limits the duty to yield to a particular hypothesized situation, namely, the situation which existed when defendant's car, approaching the intersection, was so close that for plaintiff to then cross the center line would constitute an immediate hazard. Its prohibition is confined to limited and specified facts within the purview of the statute and Page 151 defined in the terminology of the statute. In order for plaintiff's driver's conduct to be denominated negligent the jury is required to find facts which constitute negligence per se. No. 3 is not erroneous for the assigned reason, and this point must be disallowed. Finding no error the Commissioner recommends that the judgment of the circuit court be affirmed. PER CURIAM. The foregoing opinion of HOUSER, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, affirmed. RUDDY, P. J., ANDERSON, J., and JOHN C. CASEY, Special Judge, concur. 0 Contact Us Ups'.Oapps.fastcase.com/Research/Pages/Document.aspx?LTID=%2fF3o4gNC7KpCPF%2BoNWf vNIwNEhfUtbeggf%2MW%2NL56YOU2fcFiCsha _. 4/4 POLICE REPORTS FROM RHODES 101 546 S. SPRIGG Date Incident# Event EXHIBR Report 07/20/17 2017034534 Disturbance Unruly No 07/22/17 2017034773 Disturbance Unruly No 07/31/17 2017036193 Disturbance Unruly - No 07/31/17 2017036297 Disturbance Unruly No 08/24/17 2017040777 Assault in Progress No 08/26/17 2017041041 Shooting Subject Hit 17005468 08/26/17 2017041043 Shooting Subject Hit No No 10/08/17 2017048944 Disturbance Fight 11/11/17 2017054944 Disturbance Unruly No 11/18/17 2017056158 Disturbance Unruly No 02/25/18 2018009040 Disturbance Unruly No 03/27/18 2018014011 Disturbance Fight 18001787 04/16/18 2018017197 Disturbance Unruly No�i 05/20/18 2018023557 Disturbance Unruly No 06/22/18 2018030312 Disturbance Unruly No 06/30/18 2018032252 Disturbance Fight 18003850 08/01/18 2018039050 Disturbance Unruly No 08/05/18 2018039783 Disturbance Unruly No 09/11/18 2018047044 Disturbance Unruly No 09/16/18 2018048083 Disturbance Unruly No 10/08/18 2018052120 Disturbance Unruly 18006238 10/31/18 2018056142 Shooting - Shots Fired No 11/07/18 2018057416 Weapon Violation No 11/14/18 2018058519 Disturbance Unruly No 12/20/18 t 2018064066 Assault in Progress No i 01/23/19 2019003261 Disturbance Unruly No 04/02/19 2019014590 Disturbance Unruly No 04/18/19 2019017571 Assault in Progress 19002336 05/10/19 2019021843 Disturbance Fight No 05/11/19 2019021994 Disturbance Unruly No 05/12/19 2019022102 Assault Delayed No rocas Nevin. man BiotlataOy atCape convenience store. Major Case Squad activated (91271}7} I Snath¢ast "HISR SOUTHEAST MISSOURRIA -A- - Man shot fatally at Came convenience store; Major Case Squad activated By [text Matthews - Southeast Missourian Sunday, August 27, 201'7 The Cape Girardeau/Bollinger County Major Case Squad was activated after a homicide at Rhodes rot Stop convenience store at 546 South Sprigg at 3:49 a.m. Saturday, August 26, 2019 in Cape Girardeau. The victim was found in the loo block of South Sprigg and taken by ambulance to a hospital, where he was pronounced dead. Ainnew .7. Whitaker - Sonthc 1st Missourian T11e Cape Girardeau/Bollinger County Major Case Squad was activated after a homicide early Saturday in Cape Girardeau, according to a news release from police. The release stated officers received reports of shots fired near Rhodes roi Stop convenience store at 546 S. Sprigg Si:. at 3:49 a.m. Saturday. Mtpsllwwwsarnissourian.camistory/2A3BBOO.I Orsi C? 52912020 Local News: Man shot fatally at Cape convenience store; Major Case Squad activated (827/17)1 Southeast Missourian newspaper, Cap... A male victim was found in the 7Oo block of South Sprigg Street and taken by ambulance to a hospital, where he was pronounced dead. A Southeast Missourian photographer at the scene said he saw dozens of bullet casings in the parking lot of the Rhodes rot Stop. The gas station was closed until re -opening later that morning. Multiple vehicles at the store were struck by gunfire, Cape Girardeau Police Sgt. Rick Schmidt said. Anyone with information is encouraged to call the Cape Girardeau Police Department at (573) 335-6621 or at their anonymous tip line (573) 339-6313. The police department can also be reached via email at police@cityofcape.org or by testing "CAPEPD" to 847411. bmatthews@semissourian.com (573)-388-3652 Pertinent address: 546 S. Sprigg St., Cape Girardeau, Missouri, 63703 Comments ► View 9 comments or respond httpe lie..semiss.rl cam/storyf2438808.h(ml 212 INCIDENTS OF FIGHTS AND DISTURBANCES ExHieir DOWNTOWN CAPE GIRARDEAU 2018-2019 Blue Diamond 16 Hotshots 30 (plus 1 firearm incident) Shakers 17 (plus 1 firearm incident & a stabbing) The Library 15 Pour House 12 Coin -Op 4 Ragsdales 1 (closed part of period) Rude Dog 5 On Main Street in front of other businesses besides bars 8 Corner of Broadway and Water 16 Water Street and on Main Street 7 Themis and Spanish 2 Main Street and Independence 13 Spanish and Independence 2 Date Event Type Incident Number Location 01/17/20. Shooting COUSIN ST 01/21/20 Traffic / Shooting SPRIGG / SHAWNE PARKWAY 01/28/20 Shooting 400 S BENTON 01/28/20 Shooting 1100 S SPRIGG 01/31/20 Shooting S BENTON 02/05/20 Shooting Near Southeast Hospital 02/08/20 Shooting BENTON/JEFFERSON 03/03/20 Shooting 900 BLOCK COLLEGE ST 03/11/20 Shooting 20002065 1200 BLOCK S SPRIGG ST 03/12/20 Shooting HACKBERRY ST 03/18/20 Shooting 1300 BLOCK INDEPENDENCE 03/20/20 Shooting 600 BLOCK JEFFERSON AVE 03/20/20 Shooting BLOOMFIELD / SPRING 03/21/20 Shooting 20002181 600 BLOCK JEFFERSON AVE 03/23/20 Shooting 20002206 S PACIFIC ST / COLLEGE ST EXHIBIT =% Date Event Type Incident Number Location 03/28/20 Shooting THEMIS / RODNEY / SILVER SPRINGS RD 03/30/20 Shooting 20002305 900 BLOCK GOOD HOPE ST 03/30/20 Shooting 20002311 900 BLOCK COLLEGE ST 03/31/20 Shooting 600 BLOCK JEFFERSON AVE 04/04/20 Shooting 20002392 1000 BLOCK GOOD HOPE 04/04/20 Shooting SAILER CIRCLE 04/05/20 Shooting MORGAN OAK ST 04/06/20 Shooting SPRIGG / WILLIAM 04/08/20 Stabbing 500 BLOCK S BENTON 04/11/20 Shooting 1000 BLOCKS ELLIS 04/13/20 Shooting KAGE RD 04/13/20 Shooting 20002508 WILLIAM ST / S PACIFIC ST 04/14/20 Shooting HENDERSON / INDEPENDENCE 04/15/20 Shooting 20002535 400 BLOCK S BENTON ST 04/16/20 Shooting 3000 BLOCK MIMOSA Date Event Type Incident Number Location 04/16/20 Shooting 600 BLOCK S SPRING 04/17/20 Shooting S GOOD HOPE ST 04/24/20 Shooting 1028 N SPRIGG 04/24/20 Shooting 1000 BLOCK S ELLIS 04/27/20 Shooting 1400-1500 N MAIN / OLIVE / BIG BEND 04/27/20 Shooting 900 BLOCK N FOUNTAIN 04/28/20 Shooting BERTLING ST 05/02/20 Shooting 1000 BLOCK BLOOMFIELD / GOOD HOPE 05/02/20 Shooting 20002784 MORGAN OAK ST / S FOUNTAIN ST 05/03/20 Shooting WEST END BLVD / NEW MADRID 05/05/20 Shooting KINGSHIGHWAY / BLOOMFIELD 05/07/20 Shooting 300 BLOCK S HANOVER 05/09/20 Shooting 1000 BLOCKS RAMMEY 05/14/20 Shooting WILLIAM ST / WEST END BLVD 05/14/20 Shooting 20002974 500 BLOCK S HENDERSON AVE Date Event Type Incident Number Location 05/17/20 Shooting, BENTON / JEFFERSON 05/17/20 Shooting 915 FREDERICK ST 05/17/20 Shooting 423 WILLIAM ST 05/17/20 Shooting 800 BLOCK S ELLIS 05/18/20 Shooting 700-800 BLOCK S SPRIGG 05/18/20 Shooting ELM / PACIFIC 05/18/20 Shooting 20003055 BLOOMFIELD RD / S BENTON 05/19/20 Shooting 20003081 500 BLOCK S SPRIGG ST 05/19/20 Shooting LORIMER / BENTON / ELM 05/19/20 Shooting 20003076 500 BLOCK S PACIFIC ST 05/19/20 Shooting 400 BLOCK S BENTON ST 05/19/20 Shooting 900 BLOCK BLOOMFIELD RD 05/19/20 Shooting BLOOMFIELD / BENTON / PACIFIC 05/20/20 Shooting S LORIMEIR /WILLIAM ST 05/21/20 Shooting FREDERICK ST Date Event Type Incident Number Location 05/21/20 Shooting Area of Casino 05/22/20 Shooting 20003126 800 BLOCK S SPRIGG ST 05/22/20 Shooting JEFFERSON ST 05/25/20 Shooting 20003183 800 BLOCK S WEST END BLVD 05/28/20 Shooting 20003260 COLLEGE ST / S MIDDLE ST 05/30/20 Shooting 900 BLOCK FREDERICK 01/13/20 Shooting N HENDERSON / WAYNE 05/27/20 Shooting 45 S WEST END BLVD 05/28/20 Shooting 400 BLOCK S HANOVER ST 05/28/20 Shooting 200 BLOCK S HANOVER ST btirebLU Investlgalion after gunshots reportedly treed Haar pAlm pool In Cape Girardeau, M .¢ M11911 l CRIME $ q Investigation after gunshots reportedly fired rte pool in Cape Girardeau, Mo. Pool evacuated after shots fired call in Cape Giraeeav By James Long I August 4, 2019 at 421 PM CDT - Updated August 4 at 5:44 PM CAPE GIRARDEAU, Mo. (KFVS) - Police are investigating after gunshots were reportedly fired in Cape Girardeau, Missouri on Sunday afternoon, August 4 shortly before 4 p.m. According to Sgt. Joey Hann, at 3:50 p.m, there were multiple calls of gunshots heard in the area of 100 North Clark Ave. One officer at the scene told Heartland News they are investigating the possibility of two vehicles that shot at each other while driving in the area. At least two bullet casings were found on Clark Ave, near Whitener Street. The Cape Girardeau Municipal Pool did evacuate swimmers from the pool area after the incident occurred. Sgt. Hann said staff took everyone in the pool to the locker room. Visitors to the pool were allowed back inside after police secured the scene. httpsJwvm_kfvs12com/2g19108104lmvesM1gafton-aftervgunshots-repodedly-firebnearoubRo pool-Cape-gireMeao-oroi 115 OnrzUGu Investigation after gunshots reportedly fired near public pool in Cape Girardeau, Mo. There were no witnesses or suspect descriptions. If anyone knows any information about the incident, they are asked to call the Cape Girardeau Police Department at 573-335-6621. Stay with Heartland News for updates to this developing story. Copyright 2019 KFVS. All rights reserved. haps/Iwww.kfvsi2.coml2019108104/investigation-after-gunshOs-reportedly-fired-near-public-pool-cape-girardeau-mol 2/5 61412020 Local News_ Liquor license revocation notice sant to The River (1130720) 1 southeast Miss ounen newspap EXHIBIT ` SOUTHEAST MISSO�II�IA � _ Liquor license revocation notice sent to The River By Ben Matthews -Southeast Missourian Thursdyy, January :}t7, 2020 Monday in Cape Cirardeau. Five people were injured Sunday morning in a shooting inside, the business. Ben Matthews - Southeast D9issourian A liquor license revocation notice from the City of Cape (,irardeau has been sent to The River, also known as River Valley Banquet Center, where five people were shot early Sunday morning inside the business. RELATED STORY http'wwsesemlssoa4aic./stayi266519P-hhr,-i V4 61412020 Local News: Liquor license revocation notice sent to The River (113020)1 Southeast Missourian newspaper, Cape Girardeau, MO Shooting inside Cape business leaves 5 injured, L in serious condition By Ben Matthews - Southeast Missourian Five people were injured early Sunday morning when one or more shooters opened fire inside The River, formerly known as River Valley Banquet Hall, in Cape Girardeau.... City manager Scott Meyer revoked the establishment's liquor license Wednesday because the "licensee did permit or fail to prevent or suppress a violent quarrel, brawl, or fight on the premises," according to the notice. A business license application for River Valley Banquet Center LLC dated Aug. 6, 2019, identifies Ricky L. Werner of Cape Girardeau as the owner of the establishment, which is classified as a restaurant, bar and rental banquet hall. Werner also holds the now -revoked liquor license for retail liquor by the drink and Sunday sales. Ile will have to days to submit a written appeal requesting a hearing before the city's liquor license review board. According to the notice, the liquor license revocation will take effect Feb. it if no written appeal request is filed. hops llwwwsemissounan.comistory/266519].hael 214 614/2020 Local News. Liquor license revocation notice sent to The River (1130/20)1 Southeast Missourian newspaper, Cape Girardeau, MO Mayor Bob Fox said the city and the police department are also looking into possibly classifying the property as a nuisance, which would allow for revoking the establishment's business license. "It's just so sad that it's come to this," Fox said. A new appeal process for liquor licenses was implemented in December, according to Fox, which now requires liquor license revocation appeals to go before a circuit court instead of the city council. "We felt like that was vital, because if somebody comes before the city council to protest a repeal, they aren't sworn in as witnesses," the mayor said. "They don't necessarily have to tell the truth, and in a court situation, they do. They can be held liable for not telling the truth." Last year, the banquet hall's liquor license renewal request was denied by the city manager after police cited multiple incidents of violence near the property, including an April 27 shooting in which approximately go shots were fired. The banquet hall ultimately obtained a renewed license after the city council failed to secure four votes to uphold the decisions made by the city manager and the Cape Girardeau Liquor License Review Board. During last year's appeal hearing before the review board, attorney Ron Garms represented Werner and argued the banquet hall at 631 S. Sprigg St. was being unfairly singled out for the disturbances. Garms also cited a shooting near a gas pump at Rhodes lot Stop convenience store on North Sprigg Street, after which city officials did not seek to shut down the convenience store. Acknowledging this argument, Fox said the number of recent incidents to have occurred near Werner's business make this situation different. "I know if somebody cwns a gas station/convenience store down by the bridge and they have a shooting in their parking lot, you don't close the business down," Fox said. `It's not that business owner's fault that shooting occurred, and it's probably not [Werner's] fault that this shooting occurred. But when you've got repeated things happening over and over and over at the same place ... it's a little different deal." In the wake of the Sunday shooting, Fox said the city is looking at solutions implemented in other cities facing similar issues, such as Columbia, Missouri, where a violent crime task force was recently formed. "[We're] looking at ways we can combat this and find out what's going on," Fox said. "Why is this happening? Is it drugs? Is it gangs? You just don't know until you investigate it, and we need to spend more time doing that." Fox also mentioned societal problems contributing to the violence. hfl siXerew.semissourian.comislory/266519]. hlml 3/4 6/4/2020 Looal News'. Liquor license revocation notice sent to The River (11301 Southeast Missourian newspaper, Cape Girardeau, MO "Our society has this thing in their head, you know, just take your gun with you everywhere you go and when things don't go your way you just pull out your gun and start shooting," Fox said. "We have got to do something about it." Regardless of the causes of the recent violence in the business, the mayor gave his definitive opinion about the situation. "In my mind, with the things that have happened in the past and things that just happened this past weekend, it's a place we do not need open in Cape Girardeau." Attempts to reach the banquet hall at 631 S. Sprigg St. and by email were unreturned at the time of publication. Comments ► View 1 comment or respond https9/wwwsemissourlan_com/story/266519]. hunt 414 61412020 Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 21. EXH1BtT Missouri RMsor of Statutes _ Constitution Committee Publications About Help & FAQ Other Information & Links Words � 1 st search term or section r And � 2nd search term 4 Title III LEGISLATIVE BRANCH Chapter 21 4 Effective - 28 Aug 2014 *21.750. Firearms legislation preemption by general assembly, exceptions — limitation on civil recovery against firearms or ammunitions manufacturers, when, exception. — 1. The general assembly hereby occupies and preempts the entire field of legislation touching in any way firearms, components, ammunition and supplies to the complete exclusion of any order, ordinance or regulation by any political subdivision of this state. Any existing or future orders, ordinances or regulations in this field are hereby and shall be null and void except as provided in subsection 3 of this section. 2. No county, city, town, village, municipality, or other political subdivision of this state shall adopt any order, ordinance or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes or other controls on firearms, components, ammunition, and supplies except as provided in subsection 3 of this section. 3. (1) Except as provided in subdivision (2) of this subsection, nothing contained in this section shall prohibit any ordinance of any political subdivision which conforms exactly with any of the provisions of sections 571.010 to 571.070, with appropriate penalty provisions, or which regulates the open carrying of firearms readily capable of lethal use or the discharge of firearms within a jurisdiction, provided such ordinance complies with the provisions of section 252.243. No ordinance shall be construed to preclude the use of a firearm in the defense of person or property, subject to the provisions of chapter 563. (2) In any jurisdiction in which the open carrying of firearms is prohibited by ordinance, the open carrying of firearms shall not be prohibited in accordance with the following: (a) Any person with a valid concealed carry endorsement or permit who is open carrying a firearm shall be required to have a valid concealed carry endorsement or permit from this state, or a permit from another state that is recognized by this state, in his or her possession at all times; Mlps:l/revisor.mo.gov/main/OneSection asp7section=21.750 113 61412020 Missouri Revisor of Statutes -Revised Statutes of Missouri, RSMo Section 21.]50 (b) Any person open carrying a firearm in such jurisdiction shall display his or her concealed carry endorsement or permit upon demand of a law enforcement officer; (c) In the absence of any reasonable and articulable suspicion of criminal activity, no person carrying a concealed or unconcealed firearm shall be disarmed or physically restrained by a law enforcement officer unless under arrest; and (d) Any person who violates this subdivision shall be subject to the penalty provided in section 571.121. 4. The lawful design, marketing, manufacture, distribution, or sale of firearms or ammunition to the public is not an abnormally dangerous activity and does not constitute a public or private nuisance. 5. No county, city, town, village or any other political subdivision nor the state shall bring suit or have any right to recover against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement or injunctive relief resulting from or relating to the lawful design, manufacture, marketing, distribution, or sale of firearms or ammunition to the public. This subsection shall apply to any suit pending as of October 12, 2003, as well as any suit which may be brought in the future. Provided, however, that nothing in this section shall restrict the rights of individual citizens to recover for injury or death caused by the negligent or defective design or manufacture of firearms or ammunition. 6. Nothing in this section shall prevent the state, a county, city, town, village or any other political subdivision from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the state or such political subdivision. (L. 1984 H.B. 928 § 1, A.L. 2003 S.B. 13, A.L. 2007 S.B. 225, A.L. 2014 S.B. 656) *Effective 10-10-14, see § 21.250. S.B. 656 was vetoed July 14, 2014. The veto was overridden on September 10, 2014. (1994) City may enact ordinance regulating carrying of firearm capable of lethal use. City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo.App. E.D.). ---- end of effective 28 Aug 2014 ---- use this link to bookmark section 21.750 In accordance with Section 3.090, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such enacted statutory section. Mtesllrevisor.mo.gov/main/OneSection.aspx?section=21.]50 213 614/2020 Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 21.]50 ► Other Information ► Other links tiq" 'I k Missouri Senate MO.gov Missouri House Errors / suggestions- <c7Missouri legislature, all rights WebMaster@LR.mo.gov reserved. History and Fun Facts iFt0 3 b @17'.99:96.5 4 hftps:/Irevisor.mo,gov/mainlOneSection,aspx?section=21.750 313 61312020 Missouri Revisor of Statutes - Revised Statutes of Mlssoun, RSMo Section 571.0 I'eXHIBIT Missouri Revisor of Statutes Constitution Committee Publications About Help & FAQ Other Information & Links Words , 1st search term or section r And , 2nd search term Title )0=11I CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS r7 - Effective - 01 ]an 2017, 4 histo jes, see footnote *571.0 n aw u useof weapons — exceptions — penalties. — 1. A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly: (1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.1117; or (2) Sets a spring gun; or (3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, or any building or structure used for the assembling of people; or (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or (5) Has a firearm or projectile weapon readily capable of lethal use on his or her person, while he or she is intoxicated, and handles or otherwise uses such firearm or projectile weapon in either a negligent or unlawful manner or discharges such firearm or projectile weapon unless acting in self-defense; or (6) Discharges a firearm within one hundred yards of any occupied schoolhouse, courthouse, or church building; or (7) Discharges or shoots a firearm at a mark, at any object, or at random, on, along or across a public highway or discharges or shoots a firearm into any outbuilding; or (8) Carries a firearm or any other weapon readily capable of lethal use into any church or place where people have assembled for worship, or into any election precinct on any election day, or into any building owned or occupied by any agency of the federal government, state government, or political subdivision thereof; or (9) Discharges or shoots a firearm at or from a motor vehicle, as defined in section 301.010, discharges or shoots a firearm at any person, or at any other motor vehicle, or hftps:Oreviser me govlmain/OneSeution.aspx?section=571.030 17 61312020 Missouri Revisor of Statutes - Revised Statutes of Missouri, RSM. Section 571.030 at any building or habitable structure, unless the person was lawfully acting in self- defense; or (10) Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any function or activity sponsored or sanctioned by school officials or the district school board;or (11) Possesses a firearm while also knowingly in possession of a controlled substance that is sufficient for a felony violation of section 579.015. 2. Subdivisions (1), (8), and (10) of subsection 1 of this section shall not apply to the persons described in this subsection, regardless of whether such uses are reasonably associated with or are necessary to the fulfillment of such person's official duties except as otherwise provided in this subsection. Subdivisions (3), (4), (6), (7), and (9) of subsection 1 of this section shall not apply to or affect any of the following persons, when such uses are reasonably associated with or are necessary to the fulfillment of such person's official duties, except as otherwise provided in this subsection: (1) All state, county and municipal peace officers who have completed the training required by the police officer standards and training commission pursuant to sections 590.030 to 590.050 and who possess the duty and power of arrest for violation of the general criminal laws of the state or for violation of ordinances of counties or municipalities of the state, whether such officers are on or off duty, and whether such officers are within or outside of the law enforcement agency's jurisdiction, or all qualified retired peace officers, as defined in subsection 12 of this section, and who carry the identification defined in subsection 13 of this section, or any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer; (2) Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime; (3) Members of the Armed Forces or National Guard while performing their official duty; (4) Those persons vested by Article V, Section 1 of the Constitution of Missouri with the judicial power of the state and those persons vested by Article III of the Constitution of the United States with the judicial power of the United States, the members of the federal judiciary; (5) Any person whose bona fide duty is to execute process, civil or criminal; https I/revisor.mo.gov/mamlOneSection. as,1section=571.030 )9 6/3/2020 Missouri Reviser of Statutes - Revised Statutes of Missouri, RSMo Section 571.030 (6) Any federal probation officer or federal flight deck officer as defined under the federal flight deck officer program, 49 U.S.C. Section 44921, regardless of whether such officers are on duty, or within the law enforcement agency's jurisdiction; (7) Any state probation or parole officer, including supervisors and members of the board of probation and parole; (8) Any corporate security advisor meeting the definition and fulfilling the requirements of the regulations established by the department of public safety under section 590.750; (9) Any coroner, deputy coroner, medical examiner, or assistant medical examiner; (10) Any municipal or county prosecuting attorney or assistant prosecuting attorney; circuit attorney or assistant circuit attorney; municipal, associate, or circuit judge; or any person appointed by a court to be a special prosecutor who has completed the firearms safety training course required under subsection 2 of section 571.111; (11) Any member of a fire department or fire protection district who is employed on a full-time basis as a fire investigator and who has a valid concealed carry endorsement issued prior to August 28, 2013, or a valid concealed carry permit under section 571.111 when such uses are reasonably associated with or are necessary to the fulfillment of such person's official duties; and (12) Upon the written approval of the governing body of a fire department or fire protection district, any paid fire department or fire protection district member who is employed on a full-time basis and who has a valid concealed carry endorsement issued prior to August 28, 2013, or a valid concealed carry permit, when such uses are reasonably associated with or are necessary to the fulfillment of such person's official duties. 3. Subdivisions (1), (5), (8), and (10) of subsection 1 of this section do not apply when the actor is transporting such weapons in a nonfunctioning state or in an unloaded state when ammunition is not readily accessible or when such weapons are not readily accessible. Subdivision (1) of subsection 1 of this section does not apply to any person nineteen years of age or older or eighteen years of age or older and a member of the United States Armed Forces, or honorably discharged from the United States Armed Forces, transporting a concealable firearm in the passenger compartment of a motor vehicle, so long as such concealable firearm is otherwise lawfully possessed, nor when the actor is also in possession of an exposed firearm or projectile weapon for the lawful pursuit of game, or is in his or her dwelling unit or upon premises over Mlpsfirevisor mu gov/main/OneSection.aspx?section=571.030 T7 6/312020 Missouri Revisor of Statutes -Revised Statutes of Missouri, RSMo Section 571.030 which the actor has possession, authority or control, or is traveling in a continuous journey peaceably through this state. Subdivision (10) of subsection 1 of this section does not apply if the firearm is otherwise lawfully possessed by a person while traversing school premises for the purposes of transporting a student to or from school, or possessed by an adult for the purposes of facilitation of a school -sanctioned firearm -related event or club event. 4. Subdivisions (1), (8), and (10) of subsection 1 of this section shall not apply to any person who has a valid concealed carry permit issued pursuant to sections 571.'101 to 571.121, a valid concealed carry endorsement issued before August 28, 2013, or a valid permit or endorsement to carry concealed firearms issued by another state or political subdivision of another state. 5. Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031. 6. Notwithstanding any provision of this section to the contrary, the state shall not prohibit any state employee from having a firearm in the employee's vehicle on the state's property provided that the vehicle is locked and the firearm is not visible. This subsection shall only apply to the state as an employer when the state employee's vehicle is on property owned or leased by the state and the state employee is conducting activities within the scope of his or her employment. For the purposes of this subsection, "state employee" means an employee of the executive, legislative, or judicial branch of the government of the state of Missouri. 7. Nothing in this section shall make it unlawful for a student to actually participate in school -sanctioned gun safety courses, student military or ROTC courses, or other school -sponsored or club -sponsored firearm -related events, provided the student does not carry a firearm or other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any other function or activity sponsored or sanctioned by school officials or the district school board. S. A person who commits the crime of unlawful use of weapons under: (1) Subdivision (2), (3), (4), or (11) of subsection 1 of this section shall be guilty of a class E felony; (2) Subdivision (1), (6), (7), or (8) of subsection 1 of this section shall be guilty of a class B misdemeanor, except when a concealed weapon is carried onto any private property whose owner has posted the premises as being off-limits to concealed firearms by means of one or more signs displayed in a conspicuous place of a odes:Hrensor me.gov/main/OneSection. assx9section=571.030 4/7 6/3/2020. Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 571.030 minimum size of eleven inches by fourteen inches with the writing thereon in letters of not less than one inch, in which case the penalties of subsection 2 of section 571.107 shall apply; (3) Subdivision (5) or (10) of subsection 1 of this section shall be guilty of a class A misdemeanor if the firearm is unloaded and a class E felony if the firearm is loaded; (4) Subdivision (9) of subsection 1 of this section shall be guilty of a class B felony, except that if the violation of subdivision (9) of subsection 1 of this section results in injury or death to another person, it is a class A felony. 9. ' Violations of subdivision (9) of subsection 1 of this section shall be punished as follows: (1) For the first violation a person shall be sentenced to the maximum authorized term of imprisonment for a class B felony; (2) For any violation by a prior offender as defined in section 558.016, a person shall be sentenced to the maximum authorized term of imprisonment for a class B felony without the possibility of parole, probation or conditional release for a term of ten years; (3) For any violation by a persistent offender as defined in section 558.016, a person shall be sentenced to the maximum authorized term of imprisonment for a class B felony without the possibility of parole, probation, or conditional release; (4) For any violation which results in injury or death to another person, a person shall be sentenced to an authorized disposition for a class A felony. 10. Any person knowingly aiding or abetting any other person in the violation of subdivision (9) of subsection 1 of this section shall be subject to the same penalty as that prescribed by this section for violations by other persons. 11. Notwithstanding any other provision of law, no person who pleads guilty to or is found guilty of a felony violation of subsection 1 of this section shall receive a suspended imposition of sentence if such person has previously received a suspended imposition of sentence for any other firearms- or weapons -related felony offense. 12. As used in this section "qualified retired peace officer" means an individual who: (1) Retired in good standing from service with a public agency as a peace officer, other than for reasons of mental instability; (2) Before such retirement, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any hftps'.hrevisor,di gov/main/OneSection. asp 'taeclion=571.030 5q 61312020, Missouri Revisor of Statutes- Revised Statutes of Missouri, RSMu Section 571-030 person for, any violation of law, and had statutory powers of arrest; (3) Before such retirement, was regularly employed as a peace officer for an aggregate of fifteen years or more, or retired from service with such agency, after completing any applicable probationary period of such service, due to a service - connected disability, as determined by such agency; (4) Has a nonforfeitable right to benefits under the retirement plan of the agency if such a plan is available; (5) During the most recent twelve-month period, has met, at the expense of the individual, the standards for training and qualification for active peace officers to carry firearms; (6) Is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (7) Is not prohibited by federal law from receiving a firearm. 13. The identification required by subdivision (1) of subsection 2 of this section is: (1) A photographic identification issued by the agency from which the individual retired from service as a peace officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active peace officers to carry a firearm of the same type as the concealed firearm; or (2) A photographic identification issued by the agency from which the individual retired from service as a peace officer; and (3) A certification issued by the state in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the state to meet the standards established by the state for training and qualification for active peace officers to carry a firearm of the same type as the concealed firearm. (RSMo 1939 § 4425, A.L. 1959 H.B. 43, A.L. 1981 H.B. 296, A.L. 1993 H.B. 562 merged with S.B. 250, A.L. 1995 H.B. 160, A.L. 1997 S.B. 367, A.L. 1998 S.B. 478, A.L. 2000 S.B. 944, A.L. 2003 H.B. 349, et al. merged with S.B. 5, A.L. 2007 S.B. 62 & 41, A.L. 2010 H.B. 1692, et al., A.L. 2011 H.B. 294, et al., A.L. 2012 H.B. 1647, A.L. 2013 H.B. 533 merged with S.B. 75, A.L. 2014 S.B. 656 merged with S.B. 745 merged with S.B. 852, A.L. 2016 S.B. 656) htlps.11revisor.mo.gov/main/OneSectioo-aspx7section=5]1.030 6q 0/372020 Missouri Revisor of Statutes- Revised Statutes of Missouri, RSMo Seesi 571 c30 Prior revisions: 1929 § 4031;1919 § 3277; 1909 § 4498 *Effective 1-01-17. S_S. 656 was vetoed June 27, 2016..The veto was overridden on September 14 2016, (1986) A weapon is "on or about a person" if it is within his "easy reach and convenient control". State v. Ni 713 S.W.2d 49 (Mo. App.). ---- end of effective 01 Jan 2017 ---- use this fink to bookmark section 571.030 - All versions In accordance with Section 3.040, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such + enacted statutory section. ► tither Information ► Other Links SJF�UF kfj� hr ry Missouri Senate MO.gov Missouri House Errors / suggestions • <cMissour; Legislature, all rights WebMaster@LR.Mo.gov reseraed. History and Fun Facts b 022:4 :49.9 56 httpsl/revoiO..govlmainlonessetioaaspx?sectivnSlt_030 "1 Effective End 571,030 1/1/2017 571.030 8/28/2014 1/1/2017 571.030 8/28/2013 8/28/2014 571.030 8/28/2012 8/28/2013 In accordance with Section 3.040, the language of statutory sections enacted during a legislative session are updated and available on this website on the effective date of such + enacted statutory section. ► tither Information ► Other Links SJF�UF kfj� hr ry Missouri Senate MO.gov Missouri House Errors / suggestions • <cMissour; Legislature, all rights WebMaster@LR.Mo.gov reseraed. History and Fun Facts b 022:4 :49.9 56 httpsl/revoiO..govlmainlonessetioaaspx?sectivnSlt_030 "1