Ordinance changes may be necessary

As reported in the last CVR Report, numerous laws affecting local governments were passed in the 2021 legislative session. Accordingly, municipalities will want to review their ordinances and policies to ensure no changes are needed in the following areas:

  • §67.494 RSMo preempts (i.e., prohibits) any local regulation of “physical security measures” except if the local law regulates aesthetics, structural soundness, or effect on drainage/access to the right-of-way of the physical security measure. The term physical security measure is not defined but presumably could include fences, bollards, barbed wire, electric fencing or trip wires, security systems, gates, doors/locks, cameras, lighting and even security guards. Local governments are advised to review their regulations on physical security measures to ensure they only regulate the areas permitted.

  • SB 126 made several changes to Chapter 311 RSMo relating to Alcoholic Beverages, mainly relating to Sunday Sales (can now begin at 6:00 AM under certain circumstances) and allowing restaurants to sell mixed drinks “to-go” if sold with takeout meals.

  • § 590.502 RSMo compels certain procedures and standards that a Police Department must follow whenever one of its officers is “under administrative investigation”, subject to “administrative questioning”, or when “the officer reasonably believes [such questioning] could lead to disciplinary action, demotion, dismissal, transfer, or placement on a status that could lead to economic loss[.]” It is recommended that police department personnel manuals or general orders be reviewed for compliance with the new process. Failure to do so opens a municipality up to lawsuits by a police officer for enforcement of these provisions and, if a court finds that a law enforcement agency “purposely” violated the statute, can undo any firing or demotion and award the officer the costs of bringing the suit plus attorneys’ fees.

While not related to new legislation, municipalities may want to review certain laws and polices based on recent cases reported on in the last CVR Report as well.

  • Gross v. Parson. Review Open Records and Meetings Policy to ensure you are providing a detailed explanation for a delay in not producing the requested records within the three (3) days allowed by the Sunshine Law; that you are not requiring the requestor to pay for attorney review time for responding to Sunshine requests; if redactions are made, provide an explanation as to why the portions of the responsive records were blacked out; that you have a policy for how you respond to requests to waive fees under this 610.026.1(1) of the Sunshine Law; among other things.

  • Fernandez v. St. Louis County, Missouri. Cities should review relevant solicitation and vagrancy regulations to ensure they are solely motivated by safety and/or health concerns and supported by substantial evidence. Careful consideration must be given to the type of regulation desired and the evidence that will be presented to the governing body (and referenced in the ordinance) to support.

  • City of Center v. Andrews. Since courts cannot take judicial notice (i.e., referring to a document or law without it being presented as evidence) of municipal ordinances, municipalities should review their policies and procedures to ensure that in any type of proceeding that may wind up in front of a court, including those in front of the board of adjustment or quasi-judicial administrative proceedings (such as business license revocations), that the ordinances for which the violations are based is formally entered into the record at the municipal proceeding/hearing.

  • Fowler v. Missouri Sheriffs’ Retirement System. It is recommended that your ordinances setting court fees and costs be amended to remove the $3 surcharge collected by municipal courts and distributed to the sheriffs’ retirement fund.

If have any questions about these changes, please feel free to call Paul Rost at 314.446-0800.