Kleiber v. City of Idaho Falls , 110 Idaho 501 ( 1986 )

SHEPARD, Justice.

This is an appeal from a summary judgment dismissing the complaint of appellant Kleiber who sought damages under the theories of common law tort and a violation of his constitutional rights under 42 U.S.C. Section 1983 which allegedly resulted from the city’s refusal to allow Kleiber to operate a mobile hot dog stand on the sidewalks of downtown Idaho Falls. We affirm.

In May 1982 Kleiber applied to the city of Idaho Falls for a business license to operate a'mobile hot dog stand in downtown Idaho Falls. Kleiber indicated that he was unsure where his stand would be located but that he intended to operate at various locations throughout the city. It is asserted by the city that Kleiber was told he would be in violation of City Ordinance No. 9-9-1 if he attempted to operate his business on a public sidewalk.¹ Kleiber denies that he received any such warning. A license was issued and Kleiber began operating his business on public sidewalks. Shortly thereafter the police warned Kleiber he was violating Ordinance No. 9-9-1, and thereafter began issuing citations to him for obstructing the sidewalk in violation of the ordinance. Kleiber nevertheless continued to operate the stand and receive citations. Thereafter, at a regular meeting of the Idaho Falls City Council, over the protests of Kleiber, the council voted to revoke his license. The council also informed Kleiber that if he would agree to conduct the business on private property it would reinstate his license. Subsequently Kleiber acquired a location for his business on private property and his license was reinstated.

Thereafter, Kleiber filed this action against the city alleging both common law tort and 42 U.S.C. Section 1983 causes of actions, to which the city filed a motion for summary judgment. The district court granted summary judgment as to the tort claims, but denied summary judgment as to the Section 1983 claim holding that the ordinance was unconstitutionally vague. Upon a motion to reconsider, the court adhered to its ruling that the ordinance was unconstitutionally vague, but held that the city was also entitled to summary judgment as to the Section 1983 cause of action since neither a fundamental first amendment right nor a property right was implicated.

Kleiber filed a motion asking for reconsideration of the court’s summary judgment relating to the 1983 causes of action, to which the city filed a motion to strike on the basis that the motion to reconsider was not filed within ten days as required by I.R.C.P. 59(e). That motion to strike was denied and the court issued a decision on the merits. Since we decide the case on its merits, we do not address the issue of the timeliness of Kleiber’s motion to reconsider.

We note initially that Kleiber’s sole issue on appeal is the granting of summary judgment on the Section 1983 claim. No contention is made upon appeal as to the granting of summary judgment in favor of the city on Kleiber’s common law tort claim, and Kleiber has cited neither authority nor made argument upon that question. See V-1 Oil Company v. Lacy, 97 Idaho 468, 546 P.2d 1176 (1976); Oregon Shortline Railroad Co. v. City of Chubbuck, 93 Idaho 815, 474 P.2d 244 (1970).

As stated in Stewart v. Hood Corporation, 95 Idaho 198, 506 P.2d 95 (1973):

“In ruling on an appeal from a summary judgment we will only determine:

1. Whether there is a genuine issue as to any material fact; and

2. Whether the moving party is entitled to judgment as a matter of law.” (Citations omitted.)

We hold that here the trial court correctly ruled that no genuine issue of material fact remained to be resolved. The only dispute of fact is whether Kleiber was notified of Ordinance No. 9-9-1 and that he could not operate his business on a sidewalk. However, that dispute of fact is not material since the city is not estopped from enforcing its ordinance, albeit the license may have been issued by mistake or in contravention of the ordinance.

The application of estoppel against a municipality in the exercise of its police power is prohibited. Boise City v. Sinsel, 72 Idaho 329, 241 P.2d 173 (1952); Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948). We stated in Harrell v. City of Lewiston, 95 Idaho 243, 247, 506 P.2d 470, 474 (1973), “although a municipality may be estopped in limited circumstances, the enactment of zoning regulations is a governmental function which is not usually subject to estop-pel.” In Harrell the facts were much more egregious than in the instant case. There the plaintiff had deeded property for a frontage road to the city in reliance on its proposal that if he did so he would be granted a zone change and a building permit for a restaurant. In Harrell, clearly the plaintiff had changed his position to his substantial detriment in reliance upon the city’s assurances, yet no right to a building permit was held to exist when a valid zoning regulation prohibited such use. Although in the instant case Kleiber may have been issued a business license, such license did not confer upon him any property right to use the public sidewalks for the conduct of his business. Therefore, the city was entitled to judgment as a matter of law.

In Idaho the streets from side to side and end to end belong to the public and are held by the municipality in trust for the use of the public. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121 (1917). A city has exclusive control by virtue of its police power over its streets, highways and sidewalks within the municipal boundaries. Tyrolean Associates v. City of Ketchum, 100 Idaho 703, 604 P.2d 717 (1979); City of Nampa v. Swayne, 97 Idaho 530, 547 P.2d 1135 (1976); Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); Yellow Cab Taxi Service v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948). In Boise City v. Sinsel, supra, the Court held that the holder of a permit to install an obstruction on the public street acquires no vested property right because the city has no right or authority to grant a private right to permanent use of the public streets.

Likewise, in Yellow Cab Taxi Service v. City of Twin Falls, supra, the Court held:

“A city, in the exercise of its police power, can revoke a license if the particular thing permitted is or becomes a public nuisance, or such revocation is necessary and in the interests of the public welfare or public safety, and is not arbitrary, unreasonable, discriminatory, oppressive or capricious, and the conditions existing at the time justify such action.” 68 Idaho at 151. (Citations omitted.)

Here there is no showing by Kleiber that the action of the city is unreasonable, arbitrary or discriminatory. The evidence reveals that no licenses are issued for the operation of pushcarts on the sidewalks of the city of Idaho Falls. While there is evidence which indicates that at certain times of the year the city allows all of the merchants to conduct what are commonly referred to as “sidewalk sales,” such is not indicative of any abrogation of authority on the part of the city to prohibit the use of sidewalks for the conducting of businesses at all other times. The evidence is also clear that during such time of “sidewalk sales” Kleiber was permitted to operate his stand on the public sidewalks, as were other merchants.

The ultimate issue herein is whether Kleiber, by purchasing a business license from the city of Idaho Falls, obtained a vested or fundamental right to conduct a business on the public sidewalks, and whether the revocation of that license contravened Kleiber’s constitutional rights.

We emphasize that Kleiber asserts only a constitutional right to conduct a private commercial business on the public sidewalks of the city, and that there are not implicated the constitutional rights of freedom of speech, freedom of assembly, or freedom of religion. See N.A.A.C.P. v. State of Alabama, ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed.2d 1488 (1943); Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); International Society for Krishna Consciousness v. Engelhardt, 425 F.Supp. 176 (W.D.Mo.1977).

As in Yellow Cab, supra, the city here, by granting plaintiff a business license, did not confer upon him any vested right to use the sidewalk as a place of business. In Yellow Cab plaintiff had paid the city $240.00 for a 12-month license to operate a taxi service in Twin Falls and to maintain a certain taxi stand on Main Street. He had been operating that taxi service for approximately 16 years. When the city no longer permitted him to use that taxi stand he filed suit to enjoin the city from interfering with his use, and to quiet title to his use of the stand. That action was dismissed for failure to state a cause of action, and on appeal the dismissal was affirmed with this Court stating that no one has a vested right to use a public street for private gain.

The power of cities to prohibit the use of public sidewalks for commercial vending activities has been upheld against constitutional challenge in many jurisdictions. See San Francisco Street Artists Guild v. Scott, 37 Cal.App.3d 667, 112 Cal.Rptr. 502 (1974); Duchein v. Lindsay, 42 A.D.2d 100, 345 N.Y.2d 53 (Sup.Ct.1973); People v. Galena, 24 Cal.App.2d Supp 770, 70 P.2d 724 (1937).

The city also asserts that the trial court erred in holding Ordinance No. 9-9-1 to be vague, indefinite and hence void. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) stated:

“In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth argument must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” 455 U.S. at 494, 495, 102 S.Ct. at 1191.

The court further held:

“The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depend in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action.” 455 U.S. at 498-99, 102 S.Ct. at 1193-94.

The standards set forth in Hoffman are significant to the instant case in that Ordinance No. 9-9-1 does not implicate any constitutional right, nor does it infringe upon a fundamental right under state law. As in Hoffman, Kleiber in this case, is also a businessman who had an opportunity to clarify the meaning of the regulation. Ordinance No. 9-9-1 clearly prohibits the obstruction of public sidewalks within the city, or the maintenance of any vehicle upon a public sidewalk within the city. Equally clearly, Kleiber’s maintenance of a pushcart on a sidewalk within the city consists of an obstruction of the sidewalk and the maintenance of a vehicle of a type, and thus is prohibited by the ordinance. The fact that the ordinance might also be construed to prohibit other activities which are not engaged in by Kleiber, does not allow him to sustain a challenge to the ordinance. Ordinance No. 9-9-1 does not address the conduct of a lawful business in a lawful manner, but only regulates activities on public streets or sidewalks. Although Kleiber may have a fundamental right of a sort to operate a business, such right does not extend to the operation of his business on city streets or sidewalks. The orders granting summary judgment to the city, and dismissing the complaint of Kleiber are affirmed. A holding of the district court that City Ordinance No. 9-9-1 is vague, ambiguous and void is reversed.

Costs to respondent.

DONALDSON, C.J. and BAKES, J., concur.

1 . 9-9-1: UNLAWFUL TO OBSTRUCT SIDEWALKS:

(A) Obstructing streets, alleys and sidewalks. It shall be unlawful for any person to obstruct any street, alley or public sidewalk within the city.

(B) Structures on sidewalks. It shall be unlawful for any person to store, install or maintain any material, vehicle, structure or fixture upon any public sidewalk within the city, except as hereinafter in this chapter set forth.

(C)Exceptions. The following structures or fixtures may be installed and maintained in and on a public sidewalk in compliance with the following standards:

(1) All utility poles and equipment, fire hydrants, traffic signs and signals, benches, receptacles for decorative trees and plants, and all other structures, receptacles and fixtures installed or placed with the approval of the State, or of the city are deemed to conform to acceptable standards, and are lawful.