E & H Enterprises, Inc. v. Skaggs

607 S.W.2d 215, 1980 Mo. App. LEXIS 2732
CourtMissouri Court of Appeals
DecidedOctober 21, 1980
DocketNo. 41896
StatusPublished

This text of 607 S.W.2d 215 (E & H Enterprises, Inc. v. Skaggs) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E & H Enterprises, Inc. v. Skaggs, 607 S.W.2d 215, 1980 Mo. App. LEXIS 2732 (Mo. Ct. App. 1980).

Opinion

SNYDER, Judge.

This is an appeal from a judgment denying a petition for review filed under § 536.100 et seq., RSMo 19781 by plaintiff-appellant E & H Enterprises, Inc., d/b/a Beaver Lodge Health Spa. The Director of the Division of Licenses, Department of Revenue of St. Louis County suspended appellant’s massage parlor permit for 30 days after a hearing. Appellant’s petition for review by the circuit court was denied.

The trial court’s judgment is affirmed.

Appellant contends that: (1) the suspension procedure did not meet the requirements of due process because no reasonable notice was given of the charges to be brought at the hearing; (2) there was no proof that the alleged violators were employed by appellant and their names were not furnished to appellant; and (3) the director should have been estopped from considering three of the seven alleged violations because they occurred prior to the time appellant’s permit was granted.

Appellate review of administrative decisions is limited to a determination of whether they are supported by substantial evidence, violate provisions of the constitution or law, or are otherwise arbitrary or an abuse of discretion. § 536.140.2. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 894[1] (Mo. banc 1978); Sowder v. Board of Police Commissioners, 553 S.W.2d 525, 527[1] (Mo.App.1977).

The applicable section of the St. Louis County Revised Ordinances provides that a massage establishment or outcall massage service permit is subject to suspension for up to 90 days, or revocation, for violation of any provision of the Massage Establishment Code or for any grounds that would warrant the denial of the original application for the permit. The permit holder is entitled to a hearing before the Director of Licenses prior to revocation or suspension. § 626.060, S.L.C.R.O. 1974 as amended. The requirement of a hearing prior to revocation makes this a “contested [217]*217case” for the purposes of Chapter 536. This statute enumerates questions which the court may consider including whether the agency finding was predicated “upon unlawful procedure or without a fair trial.” § 536.140.2(5).

Appellant’s first point relied on challenges the sufficiency of the notice received. Missouri courts recognize that a licensee is entitled to receive notice of the reasons for the proposed revocation to enable him to prepare his defense. Ringwald v. Division of Health,, 537 S.W.2d 552, 556[7] (Mo. banc 1976). State Board of Registration for the Healing Arts v. Masters, 512 S.W.2d 150, 163[15, 16] (Mo.App.1974).

There were two hearings in this case. Notice of the first hearing was given by a letter dated December 12, 1978 from the Director of Licenses to Edgar Gray, president of the Beaver Lodge Health Spa. Appellant’s counsel received that letter December 13, 1978. No details of the alleged violations were set forth in the letter. The hearing was originally scheduled for December 27, 1978, but, at the request of appellant’s counsel, the date was changed to December 26, 1978. Testimony regarding seven alleged violations was offered and received at the hearing. Four of the violations involved solicitation of sex for money between March 16, 1976 and July 6, 1977. No warrants were issued because St. Louis County was restrained from enforcing its prostitution ordinance pending a decision in Caesar’s Health Club v. St. Louis County, 565 S.W.2d 783 (Mo.App.1978), cert. denied 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978), in which the constitutionality of the ordinance was challenged. The other three were violations of the regulation requiring a masseuse to have a valid health certificate on her person. The officers testified to one such offense on August 17,1978 and two on June 28, 1978. One of the persons charged pleaded guilty and was fined, and the other two charges were dismissed on payment of costs. Appellant was not given dates or other information regarding the alleged violations prior to the hearing. For this reason counsel for appellant objected repeatedly to the evidence presented at the December 26 proceedings.

In response to these objections a second hearing was scheduled for February 5, 1979 in order for appellant to have an opportunity to cross-examine the witnesses who testified on December 26 and to present additional evidence. Counsel for appellant had access to the pertinent police reports and a transcript of the testimony given at the first hearing. Additionally, all of the witnesses who testified on direct examination at the December hearing were made available for further cross-examination. Although properly notified, neither an officer or employee of appellant nor appellant’s counsel appeared at the second hearing.

Appellant contends that due process was not provided because the specific details of the incidents were not available to counsel until the time of the hearing. Respondent points out that all of the information which was in fact used by the Director of Licenses came from records which are open to the public for inspection and duplication. The police reports which were received in evidence were part of the records of the director which were public records available to appellant. The first hearing made appellant’s counsel aware of every detail of the charges except the names of the alleged offenders which could not be disclosed because of the Sunshine Law. Chapter 610, RSMo. 1978. These were the first hearings to be held under the suspension or revocation provision of the massage parlor ordinance and were perhaps less than perfect from a procedural point of view. However, appellant had ample notice of the second hearing and knew it was for the purpose of considering the suspension or revocation of its license. This was not a criminal prosecution and need not have been conducted as such. Theodoro v. Department of Liquor Control, 527 S.W.2d 350, 353[3, 4] (Mo. banc 1975); Crooms v. Ketchum, 379 S.W.2d 580, 588[6] (Mo.1964); Giessow v. Litz, 558 S.W.2d 742, 749[11-12, 13] (Mo.App.1977). Appellant, after obtaining knowledge of the violations in the first [218]*218hearing was given the opportunity to cross-examine all of the witnesses and produce evidence of its own at the second hearing.

The cases cited by appellant which ruled on administrative hearings are not controlling. A discharged teacher sued for reinstatement and back pay in Valter v. Orchard Farm School District, 541 S.W.2d 550 (Mo.1976). The teacher’s claim that the notice was too general was denied by the Missouri Supreme Court which found compliance with procedural due process. Appellant had access to a comparable amount of information prior to the second hearing.

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Related

Giessow v. Litz
558 S.W.2d 742 (Missouri Court of Appeals, 1977)
Valter v. Orchard Farm School District
541 S.W.2d 550 (Supreme Court of Missouri, 1976)
State Board of Registration for the Healing Arts v. Masters
512 S.W.2d 150 (Missouri Court of Appeals, 1974)
Friedman v. Division of Health
537 S.W.2d 547 (Supreme Court of Missouri, 1976)
May Department Stores, Inc. v. Supervisor of Liquor Control
530 S.W.2d 460 (Missouri Court of Appeals, 1975)
Crooms v. Ketchum
379 S.W.2d 580 (Supreme Court of Missouri, 1964)
Hermel, Inc. v. State Tax Commission
564 S.W.2d 888 (Supreme Court of Missouri, 1978)
Myers v. Moreno
564 S.W.2d 83 (Missouri Court of Appeals, 1978)
Caesar's Health Club v. St. Louis County
565 S.W.2d 783 (Missouri Court of Appeals, 1978)
Wiggins v. Coy
462 S.W.2d 751 (Supreme Court of Missouri, 1971)
Theodoro v. Department of Liquor Control
527 S.W.2d 350 (Supreme Court of Missouri, 1975)
Ringwald v. Division of Health
537 S.W.2d 552 (Supreme Court of Missouri, 1976)
Sowder v. Board of Police Commissioners
553 S.W.2d 525 (Missouri Court of Appeals, 1977)
Haste v. American Home Products Corp.
439 U.S. 955 (Supreme Court, 1978)

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Bluebook (online)
607 S.W.2d 215, 1980 Mo. App. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/e-h-enterprises-inc-v-skaggs-moctapp-1980.