City of Wichita v. Trotter

494 P.3d 178

CITY OF WICHITA, Appellant,

v.Arlando TROTTER, Appellee.

No. 122,007

Court of Appeals of Kansas.

Opinion filed July 16, 2021

Jan Jarman, assistant city attorney, of Wichita, for appellant.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellee.

Before Gardner, P.J., Green and Buser, JJ.

Green, J.:

The City of Wichita (City) appeals the district court's order dismissing Arlando Trotter's municipal charges for violating Wichita Municipal Ordinance (W.M.O.) 3.06.030.A. in operating an unlicensed after-hours establishment and for violating W.M.O. 3.30.030.A. in operating an unlicensed entertainment establishment. The district court dismissed both of Trotter's charges because it determined that the City's after-hours establishment licensing framework was so overbroad that it impermissibly infringed on a person's First Amendment expression rights under the United States Constitution. And on appeal, the parties dispute if the district court dismissed both of Trotter's charges because it determined that the City's after-hours establishment licensing framework expressly violated the First Amendment right to assemble. But regardless of this dispute, the record on appeal establishes that the district court erred when it dismissed Trotter's municipal charges for violating W.M.O. 3.06.030.A. and for violating W.M.O. 3.30.030.A. because the City's after-hours establishment licensing framework was not unconstitutional based on the arguments properly before the district court. As a result, we reverse the district court's dismissal order and remand to the district court for further proceedings consistent with this opinion.

Facts

In fall 2018, the Wichita Police Department cited Trotter with violating W.M.O. 3.06.030.A., for operating an unlicensed "after-hours establishment," and with violating W.M.O. 3.30.030.A., for operating an unlicensed entertainment club.

W.M.O. 3.06.030.A. provided that absent certain exceptions, it was "unlawful for any person ... to own, lease, manage, maintain or operate an after-hours establishment without first obtaining a license." W.M.O. 3.06.020, the provision that defined "after-hours establishment," further stated:

"[A]ny venue for a series of events or ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed which is open anytime between midnight and 6:00 a.m., where individuals gather and is not otherwise licensed for the sale of alcoholic beverages or cereal malt beverages or otherwise licensed by the City of Wichita or state of Kansas for a business at that location. This term shall not include hospitals, hotels, motels or other boarding houses nor is it intended to apply to private homes where specifically invited guests gather."

On the other hand, W.M.O. 3.30.030.A. stated that it was "unlawful for any person ... to own, lease, manage, maintain or operate a[n] ... entertainment establishment without having first obtained a license from the City Treasurer."

Eventually, Trotter challenged his municipal charges in Wichita Municipal Court. But the municipal court found Trotter guilty of violating both W.M.O. 3.06.030.A. and W.M.O. 3.30.030.A. For his W.M.O. 3.06.030.A. violation, the municipal court ordered Trotter to pay a $200 fine and to serve 12 months on nonreporting probation, for which he had an underlying 90-day jail sentence. Conversely, for his W.M.O. 3.30.030.A. violation, the municipal court simply ordered Trotter to pay a $200 fine.

Trotter timely appealed his municipal court convictions to the Sedgwick County District Court. He requested that the district court hold a jury trial on whether he violated W.M.O. 3.06.030.A. and W.M.O. 3.30.030.A. Once the district court docketed Trotter's appeals, Trotter's municipal court convictions were conditionally vacated pending the district court's de novo review of his appeal. See City of Salina v. Amador , 279 Kan. 266, Syl. ¶ 5, 106 P.3d 1139 (2005) (holding that "[a]s an appeal from a municipal court conviction mandates a trial de novo in district court, the appealed conviction before the municipal court must be conditionally vacated"). After this, Trotter moved to dismiss his charge for violating W.M.O. 3.06.030.A. in operating an unlicensed after-hours establishment.

In his motion, Trotter contended that his W.M.O. 3.06.030.A. charge should be dismissed because W.M.O. 3.06.30.A. was unconstitutionally vague, unconstitutionally overbroad, and otherwise expressly contrary to his right to assemble under the First Amendment. As for W.M.O. 3.06.030.A.'s alleged vagueness and overbreadth, Trotter seemingly argued that the ordinance was both impermissibly vague and overbroad because it could be interpreted as requiring many people and organizations to obtain licenses to engage in expressive activity between midnight and 6 a.m. In making this argument, Trotter provided many examples of after-hours activities or businesses that he believed could be affected by W.M.O. 3.06.30.A.'s licensing requirement. In particular, he alleged that churches holding masses and serving communion between midnight and 6 a.m. would need a license under W.M.O. 3.06.030.A. And he implied that W.M.O. 3.06.030.A. was unconstitutionally vague and overbroad because W.M.O. 3.06.020.A.'s definition of "after-hours establishment" included a nonexhaustive list of factors, that is, activities done between midnight and 6 a.m. at a specific venue. For example, if two people were present at the venue, this would result in the City deeming the venue an after-hours establishment.

Also, although Trotter never cited authority to support his contention that W.M.O. 3.06.030.A. expressly violated his First Amendment right to assemble, he argued that W.M.O. 3.06.030.A. expressly violated this right because it sought to "regulate persons who ‘gather.’ " In making this argument, Trotter emphasized that W.M.O. 3.06.020.A. defined "after-hours establishment" as venues "where individuals gather ." (Emphasis added.) He argued that by including this language in W.M.O. 3.06.020.A., the City sought to create "a blanket prohibition" against people assembling after hours.

On the other hand, the City argued that the district court should deny Trotter's motion to dismiss because Trotter had failed to establish that W.M.O. 3.06.030.A. was unconstitutional. It argued that W.M.O. 3.06.030.A. was not unconstitutionally vague because its plain language sufficiently put Wichitans on notice about the City's after-hours establishment licensing scheme. It further argued that W.M.O. 3.06.030.A. was not unconstitutionally overbroad because the ordinance did not prohibit any conduct that was not already illegal. Also, it argued that W.M.O. 3.06.030.A. did not expressly violate the First Amendment right to assemble because it merely regulated how, where, and when an expression could occur—that this served a substantial governmental interest of minimizing the safety and nuisance risks associated with after-hours establishments. In making this argument, the City pointed out caselaw from many jurisdictions indicating that a licensing ordinance does not expressly violate a person's First Amendment right to assemble if it is content-neutral and narrowly tailored to serve a substantial governmental interest.

After the City filed its response, the district court held a hearing on Trotter's appeal. At the start of the hearing, the district court granted the City's pending motion to consolidate Trotter's appeals. It then considered the merits of Trotter's motion to dismiss. The parties repeated the arguments made in their respective filings. At the end of the hearing, the district court took the parties' arguments under advisement.

But the next day, the district court issued a memorandum on Trotter's motion to dismiss. In its memorandum, the district court sua sponte concluded that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague. As for his remaining constitutional challenges, although the district court determined that Trotter had standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad and as expressly contrary to the First Amendment right to assemble, it further noted that it believed Trotter's case "involves more constitutional issues than those raised, at least directly, by the parties." It speculated that W.M.O. 3.06.030.A. could be challenged as violating a person's right against unreasonable searches under the Fourth Amendment to the United States Constitution because W.M.O. 3.06.040.B.10. required persons with after-hours establishment licenses to allow City personnel inside their establishment for inspection at any time. Relying on this speculation, the court ended its memorandum by giving the parties the opportunity to submit supplemental briefing on the Fourth Amendment's application to W.M.O. 3.06.030.A.

Shortly afterwards, Trotter filed a supplemental brief addressing the Fourth Amendment's application to W.M.O. 3.06.030.A. In his supplemental brief, Trotter cited no authority on the Fourth Amendment's application to licensing ordinances. Even so, Trotter asserted that W.M.O. 3.06.030.A. violated the Fourth Amendment right against unreasonable searches since after-hours establishment licensees must consent to inspections of their establishment by City personnel at any time to obtain a license.

The district court granted Trotter's motion to dismiss. In doing so, the court first repeated its previous ruling that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague. After repeating this ruling, the district court determined that Trotter's remaining arguments about W.M.O. 3.06.030.A. being unconstitutionally overbroad and about W.M.O. 3.06.030.A. expressly violating the First Amendment right to assemble were legally identical: "Because the challenge of overbreadth in this case is based on First Amendment arguments[,] including free exercise of religion,...