State of Minnesota, Respondent, vs. David John Rose, Appellant.

State of Minnesota, Respondent, vs. David John Rose, Appellant. A04-1640, Court of Appeals Unpublished, August 16, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1640

 

State of Minnesota,
Respondent,
 
vs.
 
David John Rose,
Appellant.

 

Filed August 16, 2005

Affirmed

Peterson, Judge

 

Kandiyohi County District Court

File No. T50359680

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN  56201 (for respondent)

 

John E. Mack, Mack & Daby, 26 Main Street, New London, MN  56273 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from his conviction of violating a county zoning ordinance, appellant argues that the ordinance is unconstitutionally vague, his use of his property was permitted under the grandfather clause of the ordinance, and prosecuting him represented an unlawful discrimination and an attempt to shut down his business through selective enforcement of the laws.  We affirm.

FACTS

            Appellant David John Rose operated a business, Builder's Supply Warehouse, just outside the Willmar city limits in an area zoned "C-2 Highway Service Commercial District," under the Kandiyohi County Zoning Ordinance.  In December 2002, appellant was granted a conditional-use permit (CUP) to operate his business subject to certain conditions.  Following complaints that the conditions set forth in the CUP were not being met, the Kandiyohi County zoning administrator investigated the complaints and determined that some of the CUP conditions were not being met.  The county board of commissioners reviewed the matter and gave appellant time to meet the CUP conditions.  When the conditions were not met, the county board revoked the CUP.  

            Following complaints that appellant continued operating his business without a CUP, a deputy sheriff went to appellant's business, met with an employee, and purchased some shingles.  Based on this sale, appellant was charged with two misdemeanor violations of the ordinance: engaging in a use that required a CUP when he did not have the required CUP, and aiding and abetting his employee's violation of the ordinance.

Appellant moved to suppress certain evidence and dismiss the charges, arguing that his arrest was illegal, the allegations in the complaint were insufficient to establish probable cause, and the facts alleged did not constitute a violation of the ordinance.  Following a pretrial hearing, the parties submitted letter briefs.  Appellant argued in his letter brief that the ordinance was unconstitutionally vague and asserted that his business was a permitted use because it was a "drive-in retail store" and because it was a preexisting, nonconforming use that was grandfathered in when the ordinance was enacted.  Appellant also claimed that he was "being selectively targeted for prosecution under an ordinance which does not clearly proscribe [his] activities."

The district court denied appellant's motion to suppress and dismiss.  The district court concluded that the ordinance was not unconstitutionally vague; appellant's business was not a "drive-in retail store"; appellant did not have any "grandfather" rights to operate his business; and there was probable cause to support the charges.  The district court declined to address the issue of selective prosecution, deeming it waived because it "was not raised either at the time of the hearing or in [appellant's] written motion."

Before trial, the district court granted the state's motion in limine to prevent appellant from raising the defense of selective enforcement or arguing that he was engaged in a pre-existing, nonconforming use on the date he was charged.  The jury found appellant guilty of both counts.  The district court imposed a stayed 60-day jail sentence and a fine.  This appeal followed.

D E C I S I O N        

Appellant makes several arguments under the general claim that the sort of business he carried on did not constitute a criminal violation of the Kandiyohi County zoning ordinance.

Appellant first contends that the complaint does not state what ordinance he was violating.  But the complaint identifies the ordinance provisions for each count charged:  Kandiyohi County, Minn., Zoning Ordinance §§ 1-328, subd. 3, 1-500; 1-116, subds. 1, 2b (2003).  The complaint also identifies the statutory provision governing liability for crimes of another, Minn. Stat. § 609.05, subd. 1 (2002).  

Appellant also complains that the complaint refers to conduct taking place "in Willmar, Kandiyohi County, Minnesota," when his conduct did not take place within the Willmar city limits.  But there is no dispute that the Kandiyohi County Zoning Ordinance applies to the location of appellant's business.  See Kandiyohi County, Minn., Zoning Ordinance § 1-112, subd. 1 (2003) (stating ordinance shall apply to all areas outside the incorporated limits of municipalities).

Citing an obvious typographical error in the ordinance, appellant next argues that he is entitled to the benefit of the criminal statute as written.  The ordinance states, "The C-2 HIGHWAY COMMERCIAL DISTRICT is intended to provide a district that will allow compact and convenient limited highway-oriented business, closely related to existing urban areas in the County and at standards that will impair the traffic-carrying capacities of abutting roads and highways."  Id. § 1-328, subd. 1 (2003) (emphasis added).  

Appellant argues that courts may not supply missing words in the ordinance, and, as written, the ordinance obviates claims made by the county that his business might cause traffic problems.  But the ordinance provision that appellant cites is not the provision that appellant was charged with violating; it is the purpose statement of the C-2 Highway Commercial District.

            Vagueness 

Appellant's primary argument is that the ordinance is unconstitutionally vague.  "[D]ue process requires that criminal statutes be sufficiently clear and definite to warn a person of what conduct is punishable.  The goal is to prevent arbitrary, standardless enforcement."  State v. Davidson, 481 N.W.2d 51, 56 (Minn. 1992) (citation omitted).  "A statute must offer guidance to law enforcement officials limiting their discretion as to what conduct is allowed and what is prohibited."  Id.  A municipal ordinance is presumed constitutional.  City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955).  The burden of proving that an ordinance is unconstitutional is on the party attacking its validity.  Id.

The Kandiyohi County zoning ordinance states:

The following uses shall be permitted within the C-2 COMMERCIAL DISTRICT:  . . . .

5.   Drive-in retail stores or service uses.

6.  Drive-in restaurants or similar uses that provide goods and services to patrons in automobiles.

7.   Drive-in theater.

8.   Garages (repair).

9.   Landscape nursery, garden store.    . . .

 

The following uses may be allowed in the C-2 COMMERCIAL DISTRICT, subject to the issuance of a Conditional Use Permit as provided in SUBTITLE 1-127:  Other highway oriented business activities of the same general character as listed in Subdivision 2 of this SUBTITLE.

 

Kandiyohi County, Minn., Zoning Ordinance § 1-328, subds. 2-3 (2003) (emphasis added).  The ordinance includes 15 uses that are permitted within the C-2 commercial district.  The only one of these 15 uses that arguably applies to appellant's business is number five, "[d]rive-in retail stores or service uses."  The ordinance does not define "[d]rive-in retail stores or service uses."

Appellant argues that because the ordinance does not define "drive-in retail stores or service uses" and does not restrict what a drive-in retail store may sell, a reasonable merchant would have reason to believe that shingles could be sold without a CUP.  But appellant's argument assumes that the merchant is selling the shingles at a drive-in retail store.  The issue before the district court was not whether it was legal to sell shingles without a CUP; the issue was whether appellant was operating a drive-in retail store, which is a permitted use under the ordinance that does not require a CUP, or was using his property in a manner that required a CUP when he did not have a CUP.  The sale of shingles was simply a specific act used to prove how appellant was using his property.

Appellant also argues that a reasonable merchant could conclude that any retail business that has parking spaces where its drive-in customers can park their vehicles while they enter the building is a drive-in retail store.  But this argument ignores the ordinary meaning of "drive-in," which is "[a]n establishment, especially an outdoor movie theater, designed to permit customers to remain in their motor vehicles while being accommodated."  The American Heritage Dictionary of the English Language, 548 (4th ed. 2000).  Applying this ordinary meaning of "drive-in" to the words of the ordinance, a "drive-in retail store" is a retail store designed to accommodate customers in their motor vehicles.[1] A retail store where customers drive into a parking lot, park their vehicles, and then leave their vehicles to enter the store to receive service is not designed to accommodate customers in their motor vehicles.  Therefore, under the ordinary meaning of "drive-in," such a store is not a drive-in retail store, and it is not a permitted use in a C-2 Highway Commercial District under ordinance section 1-328, subd. 2.5.  See Wright County v. Kennedy, 415 N.W.2d 728, 730 (Minn. App. 1987) (stating that rules governing statutory construction also apply when construing an ordinance); Minn. Stat. § 645.08(1) (2004) (words used in a statute are construed according to their common and approved usage).

Appellant also argues that because some of the permitted C-2 uses, such as a landscape nursery or garden store, might involve selling building materials, his sale of building materials should also be permitted.  But even if a landscape nursery or garden store may legally sell some building materials as part of its business, selling building materials does not make appellant's business a landscape nursery or garden store.[2]  In making this argument, appellant again focuses on the single sale of shingles, rather than on whether the use that he is making of his property is one of the uses permitted under the ordinance.   

Finally, appellant argues that the ordinance is vague because it does not forbid sales in contravention of a CUP.  But the ordinance states:

Any person, firm or corporation who shall violate any of the provisions hereof or who shall fail to comply with any of the provisions . . . shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine and/or by imprisonment as authorized by law for punishment of a misdemeanor.

 

Kandiyohi County, Minn., Zoning Ordinance § 1-500 (2003).  The provisions of the ordinance permit certain specified uses of property in a C-2 commercial district without a CUP and require a CUP for other uses of the same general character as the permitted uses.  The ordinance is not impermissibly vague because it does not separately prohibit each activity that might occur when using property in a manner that requires a CUP.  All that is required is that the descriptions of the permitted uses in a C-2 commercial district be sufficiently clear and definite to warn a person of what uses are not permitted without a CUP.  We conclude that the term "drive-in retail store" is sufficiently clear and definite to warn a person that a retail store that is not designed to accommodate customers in their motor vehicles may only be operated in a C-2 commercial district with a CUP.  Because this meaning is sufficiently clear and definite to warn a person of what conduct is punishable and to prevent arbitrary, standardless enforcement, the ordinance is not unconstitutionally vague.

Grandfather Rights

            Appellant argues that his use of his property to sell building supplies is a preexisting, nonconforming use that was grandfathered in when the ordinance was initially enacted.  The ordinance permits "[u]ses lawfully established prior to the effective date of [the] [o]rdinance."  Kandiyohi County, Minn., Zoning Ordinance § 1-116, subd. 2.a (2003).

The state argues that appellant waived this claim when, during a discussion of the state's motion to exclude any evidence or arguments that appellant was engaged in a pre-existing, nonconforming use, appellant's counsel said, "I don't have a problem with [the motion] on the . . . nonconforming use."  But we interpret counsel's statement as only acquiescing to excluding evidence and argument at trial.  Appellant properly preserved the grandfather issue for appeal by raising it during the pretrial hearing and obtaining a decision on the issue in the April 2004 pretrial order.  See Minn. R. Crim. P. 28.02, subd. 2 (2) (stating defendant may not appeal a pretrial order until final judgment adverse to the defendant has been entered by the trial court).

The district court found that appellant began using his property to sell building supplies in 1997.  The ordinance was originally enacted in 1992 and was revised on June 11, 2003.  Appellant does not dispute that the 2003 revision generally recodifed the prior ordinance, at least as it pertains to the C-2 commercial district.  Consequently, appellant's use of his property was not a use that existed when the ordinance was enacted, and the district court did not err when it concluded that appellant does not have any grandfather rights.

            Selective Enforcement

Appellant argues that the criminal prosecution of his alleged ordinance violation constitutes unlawful discrimination through selective enforcement of the laws.  Appellant contends that he is being selectively targeted for prosecution under an ordinance that does not proscribe his activities.  The district court found that appellant waived this issue because he failed to include it in his motion to suppress and dismiss.  Appellant does not argue that the district court erred in refusing to address his selective-enforcement argument; rather, he simply presents his argument to this court.

"Criminal prosecutions . . . are presumed to have been undertaken in good faith and in a nondiscriminatory manner."  State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988).  

In proving discriminatory enforcement, "a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion or the desire to prevent his exercise of a constitutional right."

 

Id. at 872-73 (quoting State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984)).

            A discriminatory-enforcement issue should be disposed of at a pretrial hearing because the issue of discriminatory enforcement does not go to the defendant's guilt or innocence.  Id. at 873. 

[T]o trigger a pretrial hearing, a defendant must allege sufficient facts to take the question past the frivolous state and to raise a reasonable doubt as to the prosecutor's purpose.

 

            To take a claim of discriminatory enforcement beyond the frivolous state, the defendant must allege facts which show that he was singled out for enforcement and that his selection was invidious or in bad faith.

 

Id. (citation omitted).

In his pretrial motion to suppress and dismiss, appellant did not allege facts that show that he was singled out for enforcement or that his selection for prosecution was invidious or in bad faith.  As the district court found, the issue of selective enforcement was not even raised in appellant's motion.  Because appellant did not allege facts sufficient to take the selective-enforcement issue past the frivolous state and raise a reasonable doubt as to the prosecutor's purpose, appellant did not trigger a pretrial hearing on the issue, and the district court properly treated the issue as waived.

            Affirmed.

[1] This is also the meaning of "drive-in" that is used in the next clause of the ordinance, which states that one of the permitted uses in a C-2 commercial district is "[d]rive-in restaurants or similar uses that provide goods and services to patrons in automobiles."   Kandiyohi County, Minn., Zoning Ordinance § 1-328, subd. 2.6. (emphasis added).    Describing uses that provide goods and services to patrons in automobiles as being similar to a drive-in restaurant implies that a drive-in restaurant is a restaurant that provides goods and services to patrons in automobiles.

[2] We also reject appellant's argument that a retail business is a permitted use if the business can provide goods or services to customers in their motor vehicles.  A business that is designed to have customers leave their vehicles and come into a store to receive goods or services is not a drive-in retail store simply because it is possible for the business to bring goods or services to a customer in a vehicle.