State v. Nayeb

THE STATE OF TEXAS, Appellant v. FARHAD NAYEB, Appellee

No. 05-15-00279-CR

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Court of Appeals Fifth District of Texas at Dallas

January 13, 2016

On Appeal from the County Court at Law No. 2 Collin County, Texas

Trial Court Cause Nos. 002-82535-2013, 002-82536-2013, 002-082537-2013, 002-82538-2013, 002-82539-2013, 002-82540-2013, 002-82541-2013, 002-82545-2013, 002-82546-2013, 002-82551-2013, 002-82553-2013, 002-82554-2013, 002-82555-2013, 002-82557-2013, 002-82560-2013, 002-82563-2013, 002-82564-2013, 002-82565-2013, 002-84704-2013, 002-84810-2013, 002-84811-2013, 002-84812-2013, 002-84813-2013, 002-84814-2013, 002-84815-2013, 002-84823-2013, 002-84824-2013, 002-84825-2013, 002-84826-2013, 002-84827-2013, 002-84828-2013, 002-84829-2013, 002-84830-2013, 002-84831-2013, 002-84832-2013, 002-84833-2013, 002-84834-2013, 002-84835-2013, 002-84836-2013, 002-84837-2013, 002-84838-2013, 002-84839-2013, 002-84840-2013, 002-84841-2013, 002-84842-2013, 002-84843-2013, 002-84844-2013, 002-84845-2013, 002-84846-2013, 002-84847-2013, 002-84848-2013, 002-84849-2013, & 002-84850-2013

MEMORANDUM OPINION

Before Justices Fillmore, Stoddart, and O'Neill¹

Opinion by Justice Fillmore

After purchasing Kim's Korner, a convenience store located in the City of Melissa, Texas (the City), Farhad Nayeb constructed a booth with bullet-proof glass inside the store and began cashing checks and transferring money for customers and buying gold from customers. The Cityissued fifty-three citations to Nayeb based on alleged violations of the City's code of ordinances: nine for construction without a permit, nine for illegally operating a check cashing business, and thirty-five for illegally operating a money transmission business. The municipal court found Nayeb guilty of the alleged violations, and Nayeb appealed to the county court for trial de novo.

In the county court, Nayeb filed a motion asserting the City's Comprehensive Zoning Ordinance No. 92-08, incorporated in the City's code of ordinances as article 12.300 (the Ordinance), was unconstitutionally vague and violated his right to equal protection under the law. The county court found the Ordinance was unconstitutionally vague and dismissed the complaints against Nayeb.

In two issues, the State contends the county court failed to follow established rules of statutory construction and erred by determining the Ordinance is unconstitutionally vague. In a third issue, the State asserts Nayeb has accepted the benefits of the Ordinance and, therefore, does not have standing to challenge the Ordinance as unconstitutional. In his brief, Nayeb argues this appeal is moot because the Ordinance has been amended, the complaints have been dismissed, and there is no live controversy between the parties. For the reasons set out below, we conclude this appeal is not moot, Nayeb has standing to challenge the constitutionality of the Ordinance, the county court erred by dismissing the complaints based on citations issued for construction without a permit because those citations were not based on alleged violations of the Ordinance, and the county court erred by determining the Ordinance was unconstitutionally vague and dismissing the complaints based on citations issued for alleged violations of the Ordinance. We reverse the county court's order dismissing the complaints against Nayeb and remand these cases for further proceedings.

Background

Kim's Korner, a convenience store which has conducted business in the City since sometime in the 1980s, is located in an area zoned under the Ordinance as C-2 (General Commercial). Section 20 of the Ordinance states:

Land and buildings in each of the following classified districts may be used for any of the following listed uses but no land shall hereinafter be used and no building or structure shall hereinafter be occupied, used, erected, altered, removed, placed, demolished or converted which is arranged or designed to be used for other than those uses specified for the district in which it is located as set forth by the following schedule of uses [.]

Section 20 of the Ordinance then contains a grid which lists various uses and the corresponding zoning districts in which each use might operate or be constructed. For each zoning district, a listed use is shown to be "permitted," "prohibited," or "permitted with specific approval" by the City. A "convenience store" is not a listed use in the grid in section 20 of the Ordinance. However, permitted uses in the C-2 zoning district include the sale of alcoholic beverages, bakery, bank or financial institution, grocery store, meat market, restaurant or café, and service station. It is undisputed that Kim's Korner sold gasoline, beer and wine, and food products, and had a deli counter and a "fudge factory."

According to Harold Watkins, who has code enforcement oversight for the City, a certificate of occupancy states the "uses" allowed at a location. Nayeb purchased Kim's Korner in the summer of 2012 and contacted the City about obtaining a new certificate of occupancy.² Nayeb was told that, if he was not making "any changes to the business," he did not need a new certificate of occupancy. Nayeb indicated there would be painting of the building as well as some stucco work on the outside of the building, but there would not be any construction work and no uses would be changed or added. Watkins testified Nayeb subsequently made structuralchanges to the building by reorganizing the layout of the kitchen, adding a dedicated check-cashing booth with Kevlar glass and a service window, and adding a wall to dedicate an area of the building as a restaurant. Nayeb also made changes to the electrical wiring in the building.

At the time Nayeb purchased the store, Kim's Korner did not offer check cashing as a business.³ After the booth was constructed in the store, Watkins observed an employee of the store cashing checks for customers from the booth. Kim's Korner also began offering money transfer services. The City sent a letter to Kim's Korner, as well as to other businesses, requesting they cease offering check cashing and money transfer services. After Kim's Korner failed to comply with the request, Watkins wrote nine citations to Nayeb based on violations of articles 3.201 and 105.1 of the City's code of ordinances, which required a property owner to apply for and receive a permit prior to any construction on the property or any alteration of any electrical, gas, mechanical, or plumbing system on the property. Watkins also wrote forty-four citations to Nayeb for violations of section 20 of the Ordinance: nine for operating a check cashing business and thirty-five for operating a money transfer business. Neither "check cashing" nor "money transfer" are listed in section 20 of the Ordinance as a permitted use in a C-2 zoning district.

The municipal court found Nayeb guilty of all fifty-three alleged code violations. Nayeb appealed to the county court for trial de novo and filed a motion challenging the constitutionality of the Ordinance. Nayeb argued the Ordinance failed to define most of the uses listed in the grid in section 20 and that, although the Ordinance allowed for an accessory use on property, it failed to set out which accessory uses were permitted or prohibited and failed to provide any standards by which a code enforcement officer could determine whether an accessory use was permitted. Nayeb argued the Ordinance violated due process under the United States Constitution and duecourse of law under the Texas Constitution because it was unconstitutionally vague and gave the City unfettered discretion to claim that any unlisted use was illegal. He also argued the Ordinance violated his right to equal protection under both the United States and Texas Constitutions because the owners of other, similarly situated convenience stores, had not been cited even though those stores offered similar services.

After considering Watkins's testimony and counsels' arguments, the county court determined the Ordinance was unconstitutionally vague and found Nayeb not guilty of each offense.⁴ The State moved for reconsideration and filed a notice that the judgments of acquittals were void because there had not been a trial of the allegations. The county court set aside the judgments of acquittal as void, but made a finding that:

The City of Melissa Zoning Ordinance No. 92-08 is unconstitutionally vague because it does not give fair notice to citizens accused of violating the ordinance by cashing checks and/or transmitting money allegedly contrary to the permitted uses of a premises covered by the ordinance.

The City sought relief from the county court's ruling by petition for writ of mandamus. We denied the petition because the State had an adequate remedy by appeal. See In re State, No. 05-14-00572-CV, 2014 WL 2049545, at *1 (Tex. App.—Dallas May 15, 2014, orig. proceeding) (mem. op.). The county court dismissed the complaints in all fifty-three cases based on its determination the Ordinance is unconstitutionally vague, and the State...