Legal Challenge To City’s Smoking Ban Denied

In late December news broke involving the city’s smoking ban, specifically the expiration of the 5-year exemption for some small bars:

Confronted with a lawsuit from Herb Krischke and his south-city bar the Trophy Room, a judge has halted enforcement of St. Louis’ smoking ban — which was set to go into law much more widely as of midnight on January 1.

The last-minute reprieve was first reported just minutes ago by the St. Louis Business Journal, which says that Judge David Dowd has issued a temporary restraining order, stopping the city from enforcing the ban on the Trophy Room until he can hear the case on January 11. (RFT)

The TRO was only applicable to the Trophy Room. My post on January 11th, Lottery Machine Does Not A Casino Make, argued why Dowd would likely rule against the bar. I never heard the results of the hearing, so I went to Missouri Courts online to see what I could find.  Turns out Judge Dowd ruled on the request for a preliminary injunction on January 15th!

What’s a preliminary injunction?

Definition
A temporary injunction that may be granted before or during trial, with the goal of preserving the status quo before final judgment.

Overview
To get a preliminary injunction, a party must show that they will suffer irreparable harm unless the injunction is issued. Preliminary injunctions may only be issued after a hearing. When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party’s likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties may appeal judge’s decisions on whether to award a preliminary injunction.

The petitioner is Trophy Room owner Herbert Krischke, the respondent is the City of St. Louis, the docket entry was one big paragraph but I’ve broken it up.

Introduction of the claim:

ORDER THE COURT HAS BEFORE IT PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION. FOLLOWING CONSIDERATION OF THE PLEADINGS, ARGUMENT, AND EVIDENCE PRESENTED, THE COURT NOW RULES AS FOLLOWS. PETITIONERS FILED THEIR VERIFIED PETITION SEEKING INJUNCTIVE RELIEF AND A JUDGMENT DECLARING THAT THE TROPHY ROOM IS EXEMPT FROM CITY OF ST. LOUIS ORDINANCE 68481 AS A “CASINO GAMING AREA” AS DEFINED BY THE ORDINANCE. IN THE ALTERNATIVE, PETITIONERS SEEK A JUDGMENT DECLARING THAT ORDINANCE 68481 IS INVALID BECAUSE IT IS UNCONSTITUTIONAL UNDER ARTICLE III, S40(30) OF THE MISSOURI CONSTITUTION. PETITIONERS REQUEST THAT THE COURT ISSUE A PRELIMINARY INJUNCTION PREVENTING RESPONDENT FROM ENFORCING SECTIONS FOUR AND FIVE OF CITY OF ST. LOUIS ORDINANCE 68481 AGAINST PETITIONERS. RESPONDENT’S OBJECTION TO PETITIONERS’ EXHIBIT 2, A CERTIFIED COPY OF CHAPTER 11.31 OF THE REVISED CODE OF THE CITY OF ST. LOUIS, WAS TAKEN UNDER SUBMISSION AT THE HEARING. RESPONDENT’S HEARSAY OBJECTION HAS NO MERIT. RESPONDENT’S OBJECTION THAT THE DOCUMENT IS INACCURATE AND INCOMPLETE DOES NOT GO TO ITS ADMISSIBILITY BUT RATHER ITS WEIGHT. THE COURT HEREBY OVERRULES RESPONDENT’S OBJECTION.

What the court must weigh in its decision:

A COURT, IN WEIGHING A MOTION FOR A PRELIMINARY INJUNCTION, SHOULD WEIGH THE PETITIONERS’ PROBABILITY OF SUCCESS ON THE MERITS, THE THREAT OF IRREPARABLE HARM ABSENT THE INJUNCTION, THE BALANCE BETWEEN SUCH HARM AND THE INJURY INFLICTED BY THE INJUNCTION ON OTHER INTERESTED PARTIES, AND THE PUBLIC INTEREST. STATE EX REL. DIRECTOR OF REVENUE V. GABBERT, 925 S.W. 2d 838, 839 (MO. BAC 1996). TRIAL COURTS ARE ALLOWED BROAD DISCRETION AS TO PRELIMINARY INJUNCTIVE RELIEF. FURNITURE MFG. CORP. V. JOSEPH, 900 S.W. 2d 642, 647 (MO. APP. W.D. 1995).

And the decision:

THE COURT FINDS THAT PETITIONERS HAVE NOT SHOWN SUFFICIENT PROBABILITY OF SUCCESS ON THE MERITS TO JUSTIFY THE GRANT OF A PRELIMINARY INJUNCTION. THE COURT DOES NOT FIND IT IS PROBABLE THAT PETITIONERS’ RETAIL LICENSE TO SELL MISSOURI LOTTERY PRODUCTS RENDERS THE SUBJECT PROPERTY A “CASINO GAMING AREA” AS DEFINED BY ORDINANCE 68481. IN ADDITION, PETITIONER HAS NOT SHOWN PROBABLE SUCCESS ON ITS CONSTITUTIONAL CHALLENGE OF ORDINANCE 68481. SEE CITY OF ST. PETERS V. ROEDER, 466 S.W. 3d 538,547 (MO. BANC 2015); LABRAYERE V. BOHR FARMS, 458 S.W. 3d 319, 334 (MO. BANC 2015); GENERAL MOTORS CORP. V. DIRECTOR OF REVENUE, 981 S.W. 2d 561, 568 (MO. BANC 1998). FINALLY, THE COURT HAS EXAMINED ORDINANCE 68481 AND FINDS THAT PETITIONERS’ ARGUMENT THAT THE ORDINANCE IS VOID FOR VAGUENESS IS NOT LIKELY TO SUCCEED. IN ADDITION, THE OTHER FACTORS CONSIDERED BY THIS COURT DO NOT SUPPORT THE GRANT OF A PRELIMINARY INJUNCTION. PETITIONERS HAVE NOT SHOWN SUFFICIENT THREAT OF IRREPARABLE INJURY ABSENT INJUNCTIVE RELIEF. THE BALANCE BETWEEN THE HARM TO PETITIONERS AND INJURY TO OTHERS DOES NOT WEIGH IN FAVOR OF GRANTING A PRELIMINARY INJUCTION. FINALLY, THE PUBLIC INTEREST WOULD NOT BE FURTHERED BY GRANTING A PRELIMINARY INJUNCTION IN THIS MATTER. THEREFORE, IT IS ORDERED AND DECREED THAT PETITIONERS’ MOTION FOR PRELIMINARY INJUNCTION IS HEREBY DENIED. SO ORDERED: 32929-JUDGE DAVID L. DOWD

The actual case is still pending, this was just a motion for a preliminary injunction. I don’t see any record of Krischke filing an appeal — my understanding is the city can now enforce the smoke-free ordinance at the Trophy Room. Smoking ban exemption everywhere else ended January 2nd. Nick Pistor of the Post-Dispatch posted about this on January 15th — I didn’t see it until researching for this post:

The Trophy Room argued that it operates Missouri Lottery’s Keno game, which makes it a gaming area.  

“The court does not find it is probable that petitioners’ retail license to sell Missouri Lottery products renders the subject property a ‘casino gaming area,'” Dowd wrote. 

It remains unclear how vigorously the city will enforce the ordinance. Bars can be fined $500 a day for violating it, but so far no citations have been written.  (Post-Dispatch)

— Steve Patterson

Autonomous Cars, Urban Planning, Public Transit

Two weeks ago today I attended a Economic Club of Chicago luncheon — the guest speaker was Lex Kerssemakers, President & CEO of Volvo Car USA. His words got me thinking about driverless cars and the implications for cities in the future.

In December Elon Musk said in two years a new Tesla will be able to drive itself.

As I began to research the topic I found varying thoughts on the future:

Whether self-driving cars reduce harmful emissions or the amount of land, energy, money, and other resources consumed by the transportation system depends largely on whether they reduce car ownership and driving. Optimists envision a future where driverless cars lead to a revolution in shared urban mobility. Why own a car when you can summon one to pick you up while avoiding the worries of parking, insurance, or maintenance?

In this scenario, the shift in ownership will also encourage payment based on miles driven and time of day rather than lumpy vehicle purchases, insurance fees, and parking. Instead of thinking about how much gas is in the tank, travelers will now consider the full marginal cost of a car trip when deciding whether to walk, bike, drive, or take transit. Transit service may also improve as a result of shared cars and minivans operating on fixed and flexible routes.

The biggest opportunity for improvement is in cities and neighborhoods where densities are currently too low to justify frequent bus or rail service. If shared or public, self-driving cars will dramatically reduce the demand for parking. Even privately owned vehicles will drop off passengers at front doors before driving off-site or behind a building to park, thus decoupling parking from other urban land uses. This would allow cities to dedicate more space to housing, shops, and offices, as well as stormwater management, street trees, and other sustainable features.

Pessimists, by contrast, see vehicle automation as one more technology that makes driving more comfortable and convenient and thus increases the amount that people drive. In this scenario, most households will own one or more self-driving cars, send their vehicles to run errands, circle to avoid paying for parking, and treat travel as if it had zero or very low time costs.

Many cars may become full-time mobile offices, whisking people between meetings, and the number of workers commuting between metropolitan regions will almost certainly increase. Making long commutes more productive will support the growing trend in long-duration commutes. Between 1990 and 2010, the proportion of commuters traveling more than 60 minutes and more than 90 minutes to work increased from six to eight percent and 1.6 to 2.5 percent, respectively.

Self-driving cars will also expand personal mobility for the third of the population without drivers’ licenses and the tenth of households without cars due to age, disability, low income, or preference. A demonstration video of one of Google’s prototype self-driving cars features a legally blind man riding to a Taco Bell in a self-driving vehicle.

Expanded access to cars may be particularly important for the nation’s elderly, many of whom live in and would like to remain in car-dependent communities. In this scenario, even if self-driving cars double existing capacity, this capacity will fill quickly — encouraging dispersed development and greater land consumption, which would further erode any sustainability benefits from increased efficiency. (When Autonomous Cars Take to the Road — American Planning Association)

No doubt there will be unintended consequences — both good & bad. Even as the technologies get closer to reality few cars on the road will be so equipped. It’ll be interesting to watch changes as more and more cars can drive themselves.

Further reading:

• Autonomous Vehicle Implementation Predictions: Implications for Transport Planning by Todd Litman, Victoria Transport Policy Institute
• Planetizen articles on autonomous cars
• Urban Transit’s Uncertain Future — PBS/Nova
• Why self-driving cars won’t replace mass transit — Mother Nature Network 
• Elon Musk Says Tesla Vehicles Will Drive Themselves in Two Years — Fortune

You can watch Lex Kerssemakers talk to the Economic Club of Chicago luncheon here — was on 2/11/16.

— Steve Patterson

Readers: No Raise For License Collector

Since the 1876 “Great Divorce” the City of St. Louis has been both a city and a county — AKA an independent city. St. Louis has many “county” elected offices. St. Louis County, on the other hand, has just three: County Executive, Prosecuting Attorney, County Assessor.

The person(s) you see to pay your property tax, get your business licensed, or obtain a marriage license aren’t elected. Many tasks that in the city are handled by seaports citywide elected officials fall under the Department of Revenue in the County:

The Saint Louis County Department of Revenue administers a tax levying system and various fees that generate the funds necessary for Saint Louis County Government and other political subdivisions to provide services to Saint Louis County residents.

• Board of Equalization
• Collection
• Licensing
• Recorder of Deeds

So no, we shouldn’t raise the salary of the elected License Collector  — we should eliminate most of the city’s “county” offices.

In the Sunday Poll less than a third favored increasing the salary:

Q: Rep Hubbard introduced & withdrew a bill that would’ve raised the salary of the License Collector from $64,130 to $120,000. What should happen?

1. Combine License Collector & Collector of Revenue with the latter’s current salary 17 [41.46%]
2. Raise salary of the License Collector, but not to $120,000 11 [26.83%]
3. Keep the salary/office as is 9 [21.95%]
4. TIE 2 [4.88%]
   1. Reintroduce the bill, raise the salary to $120,000
   2. Unsure/no opinion

Reentering St. Louis County as a municipality would also eliminate these elected offices.

— Steve Patterson

Sunday Poll: Should The License Collector Get A Raise?

Missouri House Bill 2469, to increase the annual salary of the License Collector, was in the news earlier this month:

State Rep. Penny Hubbard has filed legislation that would nearly double St. Louis License Collector Mavis Thompson’s salary, taking it from $64,130 to $120,000. (Post-Dispatch)

Hubbard introduced the bill on February 2nd, but withdrew it just six days later on February 8th.

Some other citywide salaries I could find online:

• Collector of Revenue $161,679
• Circuit Attorney $152,672
• Mayor $131,820
• Comptroller $113,190
• Recorder of Deeds $97,000

At the time this created lots of online discussion, likely causing Hubbard to withdraw the bill.  The topic is the subject of today’s poll:

Answers are presented in random order — or you can supply your own answer if you don’t like those provided. The poll closes at 8pm.

— Steve Patterson

A Look at AARP Public Policy Institute’s Livability Index

At the beginning of the month I attended Livability Matters: Transportation Choice and Connections — sponsored by Citizens for Modern Transit and others.  The day before I was able to interview the event’s primary speaker: Jana Lynott, Senior Strategic Policy Advisor from American Association of Retired Person (AARP)’s Public Policy Institute in Washington D. C.. We talked for an hour in the lobby of her hotel.

First, some background:

AARP’s Public Policy Institute:

The Public Policy Institute informs and stimulates public debate on the issues we face as we age. The Institute promotes development of sound, creative policies to address our common need for economic security, health care, and quality of life.

Jana Lynott, AICP, MA, Senior Strategic Policy Advisor:

Jana Lynott manages AARP’s transportation research agenda and is responsible for the development of policy related to transportation and other Livable Communities issues adopted by the AARP Policy Council and Board and presented in the AARP Policy Book. Her research focuses on human services transportation coordination, accessible street design, the travel patterns of older adults, transit service needs, and older driver safety. She was responsible for the development of AARP’s Livability Index, released in April 2015. This first of its kind on-line tool is designed to help communities better serve an aging population. The Index blends mapping technology, preference survey results, quantitative measures, and public policies to measure how well a location—down to the neighborhood level—is meeting residents’ current and future needs. It uses a scoring system of 60 indicators spread across seven categories of livability: housing, neighborhood, transportation, environment, health, engagement and opportunity.

Prior to her employment with AARP, she was director of transportation planning for the Northern Virginia Transportation Commission, where she designed and managed a groundbreaking study on the link between land use and the mobility of older adults. She also initiated and managed a travel instruction program to teach seniors how to use transit services.

As a land use and transportation planner, she brings practical expertise to the research field. She serves on her county Transportation Commission and on the Transportation Research Board’s Committee for Safe Mobility of Older Persons. She holds a Master of Urban and Environmental Planning from the University of Virginia and a Bachelor of Arts in global studies from the University of Iowa.

What is the Livability Index?

The AARP Public Policy Institute developed the Livability Index as a web-based tool to measure community livability. Users can search the Index by address, ZIP Code, or community to find an overall livability score, as well as a score for each of seven major livability categories: housing, neighborhood, transportation, environment, health, engagement, and opportunity. Users also can customize the Index to place higher or lower emphasis on the livability features of most importance to them. The Livability Index website provides resources to help consumers and policymakers use livability scores to effect change in their communities. It is the first tool of its kind to measure livability broadly at the neighborhood level for the entire country, and it is intended to inform and encourage people to take action to make their communities more livable.

During our hour conversation we looked at the Livability Index on her tablet, the categories are:

• Housing
• Neighborhood
• Transportation
• Environment
• Health
• Engagement
• Opportunity

The index is location based:

Part of understanding the livability of your location, or prospective location, is understanding how that location compares with other livable communities across the nation. Use our Location Comparison tool to examine the difference between up to three (3) different locations, comparing Livability Categories and the metrics and policies that go into defining them.

This video explains:

I compared three locations I know well: In the first column is the address where I grew up in Oklahoma City, next is my loft in downtown St. Louis, and last is the condo where we stay in Chicago.

Clicking on the question marks throughout will give you a pop-up with an explanation, for example:

TRANSPORTATION: Safe and convenient options 
How easily and safely we’re able to get from one place to another has a major effect on our quality of life. Livable communities provide their residents with transportation options that connect people to social activities, economic opportunities, and medical care, and offer convenient, healthy, accessible, and low-cost alternatives to driving. 

From there you can click for more detail:

So check it out here — the link has also been added to the right sidebar.

— Steve Patterson