Branson Courier

Category: Research

  • Table Rock Lake boat ramps remain open as Corps makes seasonal park closings

    The 2009 recreational season came to an end on Sept. 13 for nine of the Branson Area’s camp ground parks operated by the U.S. Army Corps of Engineers (Corps) at Table Rock Lake. It announced the closing of Cricket Creek, Aunts Creek, Baxter, Big M, Campbell Point, Long Creek, Moonshine Beach, Viola and Viney Creek. The Corps parks at Cape Fair, Eagle Rock, Indian Point and Old Highway 86 will still have camping available through Oct. 31.

    Paul Miller, General Manager for the Branson Tourism Center, one of Branson’s largest and most respected vacation planning services and sellers of Branson show and attraction tickets and lodging, said “It is a normal seasonal thing and reminds campers there are a lot of alternative camp grounds to fill in the gap.” He points out that pretty good list of Branson area campgrounds and contact information can found on www.Branson.com under lodging.
    Miller went on to explain that the boat ramp at Moonshine Beach, used by many Branson visitors, and at all the other seasonally closed parks will remain open. The standard daily usage fees will apply.

    For more information about Table Rock Lake, visit the website at www.swl.usace.army.mil/parks/tablerock or contact the Chief Recreation Ranger Jeff Farquhar at (417) 334-4101 extension 3013. For information about alternate campgrounds, vacation planning services or Branson show and attraction tickets or lodging please contact Branson Tourism Center by calling 800- 785-1550or through its website www.BransonTourismCenter.com.

  • The Branson Promise

    We believe that a vacation is not an escape from reality but a connection to what is real. You. Your family. Laughter. Music. Pure fun. Doing the things you really want to do … together.



    We believe you don’t have to go far from home to feel far from home. We believe you deserve to take a break from your regular life while preserving the security and comfort that comes from feeling “right at home.”



    We believe the best experiences are live and personal. They affect you – and you affect them. The most memorable experiences have always been personal and unique. Spontaneous and unexpected – not planned or manufactured.



    We believe in families, and that vacations can belong to everybody in the family. While on vacation everyone can and should have a child’s sense of energy and enthusiasm – adults especially.



    We believe in our American values and celebrate them everyday. Respect for the individual, patriotism, faith, hope, optimism, family, courage, generosity, and opportunity for all. We believe in the home. Homemade. Homegrown. Homespun. Home cooked.



    We believe that new people aren’t strangers, just friends who haven’t visited. We believe that every guest can be a part of our Branson family. From headline performers to the folks who sell the tickets, we invite you to become part of the fun we create every day as the families who built this community.



    We believe that world- class entertainment doesn’t need to cost a world-class fortune!


    We believe that money is hard earned, and respect the work that sits behind every dollar spent by our guests. We still think it’s possible to be surprised about how much money can buy, especially in Branson.



    We believe in Branson, Missouri, nestled in the lakeside beauty of the Ozark Mountains. We’re proud of who we are and where we are going. We’d love to show you around, because we love the ways in which we will surprise you. We’ve found what we want in Branson, and we know you’ll find what you want here too. Our doors are open –come on in.


  • Who is the Ole Seagull?

    Gary J. Groman, aka “The Ole Seagull” is a 66 year old grandfather living in the Branson, Missouri area just outside of the thriving community of Hollister. He is the editor and publisher of the Branson Courier, an online newspaper about the live family entertainment capital of the world, "Branson, Missouri, and publishes a weekly column in the Sunday edition Branson Daily Independent entitled, "Seagull Musings."

    After vacationing in the Branson area for one week a year from 1976 to 1985 he and his family elected to move to the Branson area in 1986. He is blessed in that his three children and their families who all reside within 50 miles of Branson.

    About six years ago, as he decided to make a commitment to writing about the things that concerned him and decided that a "brand" would be helpful in communicating those concerns. “The Ole Seagull” evolved from a speech given by Jim King, past National Transportation Safety Board Chairman, during the Carter administration. At a presentation given at the FAA Center in Oklahoma City, King characterized his position within the political hierarchy of the day as that of, “a lowly seagull walking along after the horse in the parade picking at the droppings.” Even as it gave Jim perspective at that time so too does it keep the Ole Seagull’s roll in perspective today.

    On occasion, the Ole Seagull has been asked what his qualifications are to his write his opinions and why anyone should pay any attention to them. In order, the answers are “none” and “they shouldn’t unless, one way or the other, they have evaluated those opinions and find them useful in their own decision making process.”

    “But couldn’t your opinion in a given situation be 100 percent wrong?” Absolutely, and that’s why the Ole Seagull tries to give the basis for the majority of the opinions he writes. Hopefully there is enough information and references so that the reader can evaluate the opinion and put it in perspective.

    It’s easy to want to spew forth a list of qualifications but, in the final analysis it is a useless act and a waste of time. Abraham Lincoln said it best when he said, “If the end brings me out all right, what’s said against me won’t amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference.”

  • The Chamber Tax Law


    The Chamber Tax Law



    What is presented below is an unofficial copy of the “Chamber Tax” as contained in Chapter 67 of the Missouri Revised Statutes (RSMo) and current as of August 2003.It was prepared and formatted by Gary J. Groman, aka The Ole Seagull, as the research document he will be using for Columns relating to this issue. Bold type, if any, has been added to assist him in his research and emphasis in particular areas he is interested in. (Bold in parenthesis),if any, are his annotations, The official unedited version may be found at http://www.moga.state.mo.us/STATUTES/C067.HTM. It starts at Section 67.1950 and endsat Section 67.1959.



    67.1950.Definitions



    As used in sections 67.1950 to 67.1977, the following terms shall mean:



    (1)”Board of directors” or “board”, tourism community enhancement district board of directors established pursuant to section 67.1956;


    (2)”Convention and visitors bureau”, a not-for-profit corporation established and operated for the sole purpose of promoting convention and other tourism activities in the county, city, town or village;


    (3)”Destination marketing organization”, a not-for-profit corporation established for the purpose of tourism marketing and designated by the division of tourism as such;


    (4)”District”, a tourism community enhancement district;


    (5)”Funeral services”, all labor and services used in preparation for, in the course of or completion of a funeral, including the sale of caskets and vaults.



    67.1953.Tourism community enhancement district authorized for certain counties–boundaries–procedure.



    1.The governing body of any county containing any part of a Corps of Engineers lake with a shoreline of at least seven hundred miles and not exceeding a shoreline of nine hundred miles or any city, town or village located in a county containing any part of a Corps of Engineers lake with a shoreline of at least seven hundred miles and not exceeding a shoreline of nine hundred miles, may create a tourism community enhancement district in the manner provided in this section and, upon establishment, each such district shall be a body corporate and politic of the state. If such district is established, it shall consist of the boundaries delineated in the petition filed with the governing body of a county, city, town or village pursuant to this section, and such boundaries may extend beyond the boundaries of the county, city, town or village creating such district, but shall not overlap with the boundaries of any previously incorporated tourism community enhancement district.



    2.The governing body of a county, city, town or village may create a district when a proper petition has been signed by at least two percent of the registered voters of a county, city, town or village within such proposed district. The petition, in order to become effective, shall be filed with the clerk of the county, city, town or village that includes a majority of the area within the proposed district. A proper petition for the creation of a district shall set forth the boundaries of the proposed district and the maximum proposed sales tax rate up to one percent.



    3.The boundaries of the proposed district shall be described by metes and bounds, streets or other sufficiently specific description.



    4.The plans and specifications for the district shall be filed with the clerk, as applicable, and shall be open for public inspection. Such clerk shall thereupon, at the direction of the governing body, publish notice that the governing body will conduct a hearing to consider the proposed district. Such notice shall be published in a newspaper of general circulation at least twice not more than thirty days and not less than seven days before the hearing and shall state the name for the district, the date, time and place of such hearing, the boundaries of the district, and that written or oral objections will be considered at the hearing.




    5.If the governing body, following the hearing, decides to establish the proposed district, it shall adopt an order or ordinance to that effect. The order or ordinance shall contain the following:


    (1)The name of the district;


    (2)A statement that a tourism community enhancement district has been established; and


    (3)The creation of a board of directors and enumeration of its duties and responsibilities, as provided by section 67.1956.



    67.1956. Board of directors, members, terms, duties.



    1.In each tourism community enhancement district established pursuant to section 67.1953, there shall be a board of directors, to initially consist of not less than five members.One member shall be selected by the governing body of the city, town or village, with the largest population, at the inception of the district, within the district. (Branson)One member shall be selected by the governing body of the city, town or village, with the second largest population, at the inception of the district, within the district, if such a city, town or village exists in the district. (Village of Indian Point) If no such city, town or village exists in the district then one member shall be selected by the board of directors of the district from the unincorporated area of such district. Two members shall be selected by the largest convention and visitor’s bureau or similar organization, at the inception of the district, within the district. (Branson Lakes Area Chamber of Commerce & CVB)One member shall be selected by the destination marketing organization (DMO) of the second largest county, city, town or village, at the inception of the district, within the district. (Indian Point Chamber of Commerce)(City of Branson gets the same number of votes at Village of Indian Point, that’s nuts! Three out of five members of Board appointed by non elected entities who appear to be in a conflict of interest situation and will directly receive tax proceeds if approved. No consideration for county to appoint a representative, boy did they get a surprise when the City of Branson withdrew. The term “governing body” is only used in connection with the terms city, town or village.)



    Of the members first selected, the two members from the city, town or village shall be selected for a term of three years, the two members from the convention and visitor’s bureau shall be selected for a term of two years, and the member from the destination marketing organization of the second largest city shall be selected for a term of one year. Thereafter, each member selected shall serve a three-year term. Every member shall be a resident of the district. All members shall serve without compensation. Any vacancy within the board shall be filled in the same manner as the person who vacated the position was selected, with the new person serving the remainder of the term of the person who vacated the position. The board shall elect its own treasurer, secretary and such other officers as it deems necessary and expedient, and it may make such rules, regulations, and bylaws to carry out its duties pursuant to sections 67.1950 to 67.1977.



    2. Any time a district is expanded by either an unincorporated or incorporated area, the board shall be expanded by two members. One member shall be appointed by the governing body of the incorporated area added to the district or by the board of directors of the district for the unincorporated area added to the district and one member shall be appointed by the governing body of the city, town or village with the largest population at the inception of the district for the first expansion and every odd numbered expansion thereafter, or by the convention and visitor’s bureau or similar entity of the largest city, town or village, at the inception of the district, for the second expansion and every even numbered expansion thereafter.



    3.The board, on behalf of the district, may:



    (1)Cooperate with public agencies and with any industry or business located within the district in the implementation of any project;



    (2)Enter into any agreement with any public agency, person, firm, or corporation to implement any of the provisions of sections 67.1950 to 67.1977;



    (3)Contract and be contracted with, and sue and be sued; and



    (4)Accept gifts, grants, loans, or contributions from the United States of America, the state, any political subdivision, foundation, other public or private agency, individual, partnership or corporation on behalf of the tourism enhancement district community.



    67.1958.Modification of requirements by vote of the district.


    A tourism community enhancement district may modify the requirements of sections 67.1956 and 67.1968 by an affirmative vote of the qualified voters of such district provided any such modifications are placed upon and approved by the qualified voters on the same ballot as the sales tax provided in section 67.1959. (This section was added in 2001 after the tax failed in an attempt to give some flexibility to change the most onerous provisions of law. Cumbersome and unlikely to withstand legal challenge?)



    67.1959.Sales tax imposed, when–submitted to voters, ballot language.



    1.The board, by a majority vote, may submit to the residents of such district a tax of not more than one percent on all retail sales, except sales of new or used motor vehicles, trailers, boats, or other outboard motor and sales of funeral services, made within the district which are subject to taxation pursuant to the provisions of sections 144.010 to 144.525, RSMo. (Is food excepted?)Upon the written request of the board to the election authority of the county in which a majority of the area of the district is situated, such election authority shall submit a proposition to the residents of such district at a municipal or statewide primary or general election, or at a special election called for that purpose. Such election authority shall give legal notice as provided in chapter 115, RSMo.



    2.Such proposition shall be submitted to the voters of the district in substantially the following form at such election:



    Shall the Tourism Community Enhancement District impose a sales tax of …………. (insert amount) for the purpose of promoting tourism and community enhancements in the (name of county, city, town or village that includes a majority of the area within the proposed district) ………………. Tourism Community Enhancement District?


    o Yes o No



    If you are in favor of the question, place an “X” in the box opposite “Yes”. If you are opposed to the question, place an “X” in the box opposite “No”.



    If a majority of the votes cast on the proposal by the qualified voters of the proposed district voting thereon are in favor of the proposal, then the order shall become effective on the first day of the second calendar quarter after the director of revenue receives notice of adoption of the tax. If the proposal receives less than the required majority, then the board shall have no power to impose the sales tax authorized pursuant to this section unless and until the board shall again have submitted another proposal to authorize the board to impose the sales tax authorized by this section and such proposal is approved by the required majority of the qualified voters of the district.



    67.1962. Special trust fund created.



    1.All revenue received by a district from the tax authorized pursuant to the provisions of section 67.1959 shall be deposited in a special trust fund, and be used solely for the purposes specified in the proposal submitted pursuant to subsection 1 of section 67.1959 for so long as the tax shall remain in effect.



    2.All sales taxes collected by the director of revenue pursuant to section 67.1959 less one percent for cost of collection which shall be deposited in the state’s general revenue fund after payment of premiums for surety bonds as provided in section 32.087, RSMo, shall be deposited in a special trust fund, which is hereby created, to be known as the “Tourism Community Enhancement District Sales Tax Trust Fund”. The moneys in the tourism community enhancement district sales tax trust fund shall not be deemed to be state funds and shall not be commingled with any funds of the state. The director of revenue shall keep accurate records of the amount of money in the trust and which was collected in each district imposing a sales tax pursuant to this section, and the records shall be open to inspection by officers of the county, city, town or village and the public. Not later than the tenth day of each month the director of revenue shall distribute all moneys deposited in the trust fund during the preceding month to the board which levied the tax; such funds shall be deposited with the board treasurer of each such district.



    3.The director of revenue may authorize the state treasurer to make refunds from the amounts in the trust fund and credit any district for erroneous payments and overpayments made, and may redeem dishonored checks and drafts deposited to the credit of such district. If any district abolishes the tax, the district shall notify the director of revenue of the action at least ninety days prior to the effective date of the repeal and the director of revenue may order retention in the trust fund, for a period of one year, of two percent of the amount collected after receipt of such notice to cover possible refunds or overpayment of the tax and to redeem dishonored checks and drafts deposited to the credit of such accounts. After one year has elapsed after the effective date of abolition of the tax in such district, the director of revenue shall remit the balance in the account to the district and close the account of that district. The director of revenue shall notify each district of each instance of any amount refunded or any check redeemed from receipts due the district.



    4.Except as modified in this section, all provisions of sections 32.085 and 32.087, RSMo, shall apply to the tax imposed pursuant to section 67.1959.



    67.1965.County collector to collect tax at discretion of the board–rules.



    Notwithstanding the provisions of section 67.1962, if the board chooses, on and after the effective date of any tax authorized pursuant to section 67.1959, the board may enter into an agreement with either the county collector of the county where the majority of the area of the district is situated for the purpose of collecting the tax or the city collector of the largest city existing at the inception of the district. The tax to be collected by the county or city collector shall be remitted to the board of the district not later than thirty days following the end of any calendar quarter. The governing body of the county or city shall adopt rules and regulations for the collection and administration of the tax. The county or city collector shall retain on behalf of the county or city one percent for cost of collection.



    67.1968.Expenditure of sales tax revenue, conditions.



    Expenditures may be made from the tourism community enhancement district sales tax trust fund or moneys collected pursuant to section 67.1965 for any purposes authorized pursuant to subsection 1 of section 67.1959, provided as follows:



    (1)Ten percent of the revenues shall be used for education purposes. The board shall transmit those revenues to the school district or districts within the district, on a basis of revenue collected within each school district.These revenues shall not be used in any manner with respect to the calculation of the state school aid pursuant to chapter 163, RSMo; (Carrot)



    (2)Ten percent of the revenues collected from the tax authorized by this section shall be used by the board for senior citizen or youth or community enhancement purposes within the district. The board shall distribute these revenues to the cities, towns and villages based upon the amount of sales tax collected within each city, town or village and the portion of the revenues not attributable to any city, town or village shall be distributed at the discretion of the board; (Carrot)



    (3)Seventy-five percent of the revenues shall be used by the board for marketing, advertising and promotion of tourism. The district shall enter into an agreement with a not-for-profit organization providing local support services, including but not limited to visitor’s centers, to conduct and administer public relations, sales and marketing of tourism on behalf of the district to enhance the economic health of the district. Such marketing, advertising and promotional activities shall be developed into a comprehensive marketing plan, for the benefit of the district; (As of November 2000 only one organization could qualify, the Branson Lakes Area Chamber of Commerce and CVB.) (What does not for profit status have to do with ability to market? Why just one agreement, why can’t the Board have multiple agreements to accomplish their 0bjectives? Because those that drafted the law didn’t want it that way. No accountability to an elected entity.)



    (4)Two percent of the revenues shall be distributed among each destination marketing organization (DMO) located within each school district or districts within the district based upon the amount of sales tax collected within each school district; (Carrot. What school district is Indian Point in? Show Boat Branson Belle? Could this two percent go to a DMO other than the Indian Point Chamber of Commerce located within the schools district?)



    (5)Two percent of the revenues shall be transmitted to the not-for-profit organization conducting and administering the marketing plan within the district for purposes of administering the marketing plan. (Not only does the not for profit get the 75% but then get two percent for administering the plan.)



    (The law makes no provision for the funding of the Boards activities.It is obvious that the Board is intended to be a relatively powerless impotent entity at the mercy of those who drafted the law for their purposes.This not only creates an illogical impractical situation in terms of the Boards ability to function but creates the appearance of a conflict of interest. The Boards history, from day one to present, is a solemn testimony of its impotency and lack of independence.)



    67.1971.Reduction of liability for entities remitting the sales tax.



    All entities remitting the sales tax authorized pursuant to section 67.1959 shall have their liability reduced by an amount equal to twenty-five percent of any taxes collected and remitted pursuant to sections 94.802 to 94.805, RSMo. (Theatres, attractions, and restaurants collecting the current Branson Tourism tax get a 25 % credit on this tax if passed. Why? Do not most detinations have a tourism tax on rooms etc that is more than two percent? Why not just reduce the rate of the tax across the board? Answer obvious those that drafted it did not want it that way. How will this provision work.Do they not collect the 25% or do they collect it and keep it?)



    67.1974.Expansion of district boundaries, procedure.



    The boundaries of the district may be expanded by the addition of either an adjacent unincorporated or incorporated area. Upon presentation of a petition to the board signed by two percent of registered voters residing in either the unincorporated or incorporated area adjacent to the district. If the board determines that expansion is in the best interest of the current district, then the board shall give written notice to the election authority in the county in which the unincorporated or incorporated area is located to call an election. The election authority shall submit a proposition to the residents of the unincorporated or incorporated area at a municipal or state primary or general election, or at a special election called for that purpose. Such election authority shall give notice as provided in chapter 115, RSMo. The proposition shall be submitted to voters in the unincorporated or incorporated area in substantially the following manner:



    Shall the (unincorporated or incorporated area) of ………………….. (county, city, town or village) be included in the …………… (name of district) Tourism Community Enhancement District and any sales tax imposed by the …………… (name of district) Tourism Community Enhancement District also be imposed in the ……………… (unincorporated or incorporated area) of …………………… (county, city, town or village)?


    Yes o No



    If you are in favor of the question, place an “X” in the box opposite “Yes”. If you are opposed to the question, place an “X” in the box opposite “No”.



    If a majority of the votes cast on the proposal by the qualified voters of the unincorporated or incorporated area voting thereon are in favor of the proposal, then the order shall become effective on the first day of the second calendar quarter after the director of revenue receives notice of adoption of the tax. If the proposal receives less than the required majority, then the board shall have no power to impose the sales tax authorized pursuant to this section unless and until the board shall again have submitted another proposal to authorize the expansion of the current district and such proposal is approved by the required majority of the qualified voters of the unincorporated or incorporated area voting on such proposal.



    67.1977.Dissolution and repeal of the tax, procedure.



    1.The board, when presented with a petition signed by at least one-third of the registered voters in the district that voted in the last gubernatorial election, calling for an election to dissolve and repeal the tax shall submit the question to the voters using the same procedure by which the imposition of the tax was voted. The ballot of submission shall be in substantially the following form:



    Shall ……………….. (name of district) dissolve and repeal the …………….. (insert amount) percent tourism community enhancement district sales tax now in effect in the …………….. (name of district)?



    Yes No



    If you are in favor of the question, place an “X” in the box opposite “Yes”. If you are opposed to the question, place an “X” in the box opposite “No”.



    (Take 33% but it has to be to dissolve the district and repeal the tax. How do you dissolve the district if no tax has been passed?)



    If a majority of the votes cast on the proposal by the qualified voters of the district voting thereon are in favor of repeal, that repeal shall become effective December thirty-first of the calendar year in which such repeal was approved or after the repayment of the district’s indebtedness incurred pursuant to sections 67.1950 to 67.1962, whichever occurs later.



    2.No dissolution of such tourism community enhancement district shall invalidate or affect any right accruing to such tourism community enhancement district or to any person or invalidate or affect any contract entered into or imposed on such tourism community enhancement district.



    3.Whenever the board of directors dissolves any such tourism community enhancement district, the governing body of the city with the largest population at inception of the district, shall appoint a person to act as trustee for the district so dissolved, and such trustee, before entering upon the discharge of his duties, shall take and subscribe an oath that he will faithfully discharge the duties of his office, and shall give bond with sufficient security to be approved by the governing body of the city, to the use of such dissolved tourism community enhancement district, conditioned for the faithful discharge of this duty. The trustee may prosecute and defend to final judgment all suits instituted by or against the district, collect all moneys due the district, liquidate all lawful demands against the district, and for that purpose shall sell any property belonging to such district, or so much thereof as may be necessary, and generally to do all acts requisite to bring to a speedy close all the affairs of the district.



    4.When the trustee has closed the affairs of the tourism community enhancement district, and has paid all debts due by such district, he shall pay over to the treasurer of the school district, or school districts within the district, all money remaining in his hands, based upon the amount of sales taxes collected in each school district in the prior calendar year, and take receipts therefor, and deliver to the governing body of the city with the largest population at inception of the district, all books, papers, records and deeds belonging to the dissolved district. These revenues shall not be used in any manner with respect to the calculation of the state school aid pursuant to chapter 163, RSMo.



    67.1978.Annual audit required.



    The board of directors shall have an annual audit performed by a certified professional accountant or accounting firm.The board of directors shall provide a copy of the annual audit to the governing bodies within the district. (When was the audit conducted and by who?)



    67.1979.Removal of board members.


    Members of the board of directors may be removed by two-thirds vote of the appointing governing body. (The term “governing body” is only used in connection with the terms city, town or village.. Is there no way to get the members appointed by the CVB or DMOs off? Can the county Commissioners remove them by a 2/3 rds vote?)


  • Missouri Law & Supreme Court Case- ability of cities to regulate the sale of alcohol


    Editors Note: The applicable law from Missouri’s Liquor Control Law is stated first followed by the Missouri Supreme Court’s interpretation of what that law says. (08/14/04). Those portions highlighted are particularly applicable to the editorial entitled, “Why can’t the city of Branson regulate the sale of intoxicating liquors?” published on August 15, 2004.



    311.095.1. Notwithstanding any other provisions of this chapter to the contrary, any person who possesses the qualifications required by this chapter, and who now or hereafter meets the requirements of and complies with the provisions of this chapter, may apply for, and the supervisor of liquor control may issue, a license to sell intoxicating liquor, as defined in this chapter, by the drink at retail for consumption on the premises of any resort as described in the application. As used in this section the term “resort” means any establishment having at least thirty rooms for the overnight accommodation of transient guests, having a restaurant or similar facility on the premises at least sixty percent of the gross income of which is derived from the sale of prepared meals or food, or means a restaurant provided with special space and accommodations where, in consideration of payment, food, without lodging, is habitually furnished to travelers and customers, and which restaurant establishment’s annual gross receipts immediately preceding its application for a license shall not have been less than seventy-five thousand dollars per year with at least fifty thousand dollars of such gross receipts from nonalcoholic sales, or means a seasonal resort restaurant with food sales as determined in subsection 2 of this section. Any facility which is owned and operated as a part of the resort may be used to sell intoxicating liquor by the drink for consumption on the premises of such facility and, for the purpose of meeting the annual gross receipts requirements of this subsection, if any facility which is a part of the resort meets such requirement, such requirement shall be deemed met for any other facility which is a part of the resort.



    311.220. 1. In addition to the permit fees and license fees and inspection fees by this law required to be paid into the state treasury, every holder of a permit or license authorized by this law shall pay into the county treasury of the county wherein the premises described and covered by such permit or license are located, or in case such premises are located in the city of St. Louis, to the collector of revenue of said city, a fee in such sum not in excess of the amount by this law required to be paid into the state treasury for such state permit or license, as the county commission, or the corresponding authority in the city of St. Louis, as the case may be, shall by order of record determine, and shall pay into the treasury of the municipal corporation, wherein said premises are located, a license fee in such sum, not exceeding one and one-half times the amount by this law required to be paid into the state treasury for such state permit or license, as the lawmaking body of such municipality, including the city of St. Louis may by ordinance determine



    311.220. 2The board of aldermen, city council or other proper authorities of incorporated cities, may charge for licenses issued to manufacturers, distillers, brewers, wholesalers and retailers of all intoxicating liquor, located within their limits, fix the amount to be charged for such license, subject to the limitations of this law, and provide for the collection thereof, make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, provide for penalties for the violation of such ordinances, where not inconsistent with the provisions of this law.



    Opinion
    Supreme Court of Missouri



    State of Missouri, Respondent v. Entertainment Ventures I, Inc., d/b/a High Hill Cabaret, and James L. Alexander, Appellants.



    Case Number: SC83339



    Hand down Date: 05/15/2001



    Appeal From: Circuit Court of Montgomery County, Hon. Edward D. Hodge



    Counsel for Appellant: Mark G. Anderson and Charles E. Smarr



    Counsel for Respondent: Kelly C. Broniec



    Opinion Summary:



    High Hill Cabaret and its president (collectively EVI) were found to be operating a public and common nuisance pursuant to section 311.740 for serving alcohol without a city liquor license, selling alcohol to intoxicated persons, and allowing certain acts of lewdness, all in violation of state liquor control law. EVI appealed, challenging the constitutionality of the public nuisance law.



    AFFIRMED.


    Court en banc holds:



    (1) EVI’s claim that the provision defining a nuisance, section 311.740, is so vague and indefinite that it violates due process fails. EVI points to the provision relating to manufacturing liquor, but that was not applied to EVI and is not relevant. EVI does not claim the part of the statute relating to the “place . . . where intoxicating liquor is sold . . . in violation of this law” is anything other than perfectly clear. There is no evidence that application of the law in this case is arbitrary or discriminatory.



    (2) EVI has no standing to challenge section 311.750’s provision for an action in equity to enjoin a nuisance prior to trial, since the cabaret was never closed prior to hearing. EVI also fails to consider that Rule 92 may supercede the temporary injunction procedure. As to the hearing itself, there was no due process violation.



    (3) The state’s authority to issue a resort license does not deprive an incorporated city of the authority to license the sale of liquor. Section 311.220.1 and section 311.095.1 are compatible and part of a complementary system of state and local regulation.



    (4) To find EVI operating a public and common nuisance, it was only necessary for EVI to have one violation of liquor control law. The record shows substantial evidence of at least six separate violations in three ways: serving intoxicated persons, lewd conduct, and no city liquor license.



    Citation:



    Opinion Author: John C. Holstein, Judge



    Opinion Vote: AFFIRMED. All concur.



    Opinion:



    Entertainment Ventures I, d/b/a High Hill Cabaret, and its president, James L. Alexander, (collectively referred to as EVI) were found to be a operating a public and common nuisance pursuant to section 311.740(FN1) for serving alcohol without a city liquor license, selling alcohol to intoxicated persons, and allowing certain acts of lewdness, all in violation of state liquor control law. EVI appealed, and the case was transferred to this Court, Mo. Const. art. V, sec. 11, because of our exclusive appellate jurisdiction in all cases involving the validity of statute or provision of the constitution of this state. Mo. Const. art. V, sec. 3. EVI challenges the constitutionality of sections 311.740 and 311.750 under the Due Process Clause of the United States and Missouri constitutions, claims that the findings in the trial court are not supported by the evidence, and claims that the trial court erroneously applied the law. This Court affirms.


    I.


    The standard of review of this bench-tried case is set out in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. In a court-tried matter we accept as true the evidence and reasonable inferences in favor of the prevailing party and disregard the contrary evidence. Gilmartin Bros., Inc. v. Kern, 916 S.W.2d 324, 331 (Mo. App. 1995).



    EVI operated the Hill High Cabaret (Cabaret), an establishment where patrons are entertained by semi-nude female dancers. The Cabaret serves alcohol by the drink, and possessed a temporary retail liquor by the drink resort license issued by the state. The City of High Hill, however, requires that retail liquor establishments also obtain a liquor license issued by the city. EVI knew about the city license requirement and inquired about obtaining a city liquor license, but the City of High Hill ultimately refused EVI’s application. EVI did obtain a license from the city to operate only as a restaurant.



    Even though it was denied a city liquor license, the Cabaret opened in February of 2000 and began serving liquor on the premises. On February 25, three Missouri Division of Liquor Control (Division) agents went to the Cabaret. The agents observed a female dancer perform certain lewd acts, including exposing the vulva and areola portions of her body. On March 4, patrons Daniel Sheperd and Bill Sheperd saw a dancer completely expose her breasts while at the Cabaret.



    On February 27, 2000 a witness saw Merle Palmer enter the establishment sober, and three hours later leave the establishment staggering and visibly intoxicated. Police arrested Mr. Palmer shortly after and found him to have a blood alcohol content of .226 percent. On March 19, John Miller was served four beers and two shots of alcohol at the establishment. When a police officer pulled over Mr. Miller’s car a short distance from the Cabaret, the officer found him to be visibly intoxicated, with a blood alcohol content of .157 percent. On April 1, witnesses observed Sammie Ray Williams, visibly intoxicated, leaving the High Hill Cabaret. Police stopped his vehicle and administered a breath test, and the result was .307. Mr. Williams told police that he had consumed twelve beers while at the High Hill Cabaret from 2:00 p.m. and 9:30 p.m.



    On March 31, 2000 the Montgomery County prosecutor filed a complaint asking the circuit court to declare the Cabaret a public and common nuisance pursuant to section 311.740 because the Cabaret served intoxicating liquor in violation of state liquor control law. The state alleged the lewd acts, the city license requirement, and the incidents involving Mr. Palmer and Mr. Miller, noted above. On April 19, the state filed an amended petition raising the incident with Mr. Williams. A hearing was held on April 21. EVI offered 12 exhibits, cross-examined the state’s witnesses, and put the president of EVI, James L. Alexander, on the witness stand. He denied any knowledge of the lewd acts or that he served intoxicated persons, though he was present in the establishment when the activity occurred.



    The circuit court issued an order on May 22 finding that the Cabaret was in violation of state liquor control law because the establishment does not have a city liquor license from the City of High Hill, because dancers employed at the Cabaret had engaged in lewd acts on the premises, and because the Cabaret had served intoxicated persons. The court declared the Cabaret to be a common and public nuisance as defined by section 311.740 because it was in violation of state liquor law, and closed the establishment for one year pursuant to section 311.750. This appeal followed.



    II.


    EVI’s first constitutional argument(FN2) challenges the nuisance law, which allows an action to enjoin any establishment as a public and common nuisance if it is operating “in violation of [the liquor control] law.” Sec. 311.740. Citing the Due Process Clause of the United States Constitution and article I, section 10 of Missouri’s Constitution, EVI claims the provision defining a nuisance, section 311.740, is so vague and indefinite that it violates its right to due process of law.



    In reviewing vagueness challenges, the language is to be evaluated by applying it to the facts at hand. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 959 (Mo. banc 1999). A valid statute provides a person of ordinary intelligence a reasonable opportunity to learn what is prohibited. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990); Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984) . The prohibition against vagueness ensures that laws give fair and adequate notice of proscribed conduct. State ex rel. Cook v. Saynes, 713 S.W.2d 258, 260 (Mo. banc 1986). In addition, the void-for-vagueness doctrine protects against arbitrary and discriminatory enforcement. Id. A statute can be void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).



    Section 311.750.1 expressly authorizes the prosecuting attorney of any county or city to bring an action to enjoin any nuisance as defined in the liquor control law. Section 311.740.1 defines a public and common nuisance, in relevant part, as:



    Any room, house, building, boat, vehicle, structure or place of any kind where intoxicating liquor is sold, manufactured, kept for sale or bartered, in violation of this law and all intoxicating liquors and all property kept and used in maintaining such a place and any still, doubler, worm, worm tub, mash tub, fermenting tub, vessel, fixture or other property of any kind or character used . . . in the production or manufacture of intoxicating liquor is hereby declared to be a public and common nuisance . . . .



    EVI’s complaint is with the words: “and any still, doubler, worm, worm tub, mash tub, fermenting tub, vessel, fixture or other property of any kind or character. . . .” EVI claims that these words enacted in 1939 render the entire provision an out-of-date relic of post-prohibition era legislation, that these words are no longer of common usage, and that after reading the statute a person of ordinary intelligence is left to guess at what conduct is prohibited.



    The statute addresses both the sale and manufacture of liquor. But the part of the statute relating to manufacture does not apply to EVI, because there is no evidence that EVI manufactures liquor. The words the legislature used to describe tools involved in the manufacture of liquor are not relevant to this appeal, and the Court need not reach the issue of whether they are unconstitutionally vague. EVI does not claim the part of the statute relating to the sale of liquor, the “place . . . where intoxicating liquor is sold. . . in violation of this law,” is anything other than perfectly clear. Moreover, there is no evidence that application of the law in this case is arbitrary or discriminatory.



    EVI’s second constitutional issue involves section 311.750, which allows an action in equity to enjoin a nuisance as it is defined in section 311.740. Section 311.750 states that the state or local prosecutor may bring such an action. It further provides: “If it is made to appear by affidavit, or otherwise to the satisfaction of the court . . . that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or maintaining any such nuisance until the conclusion of the trial.” Sec. 311.750.1. EVI’s claim is that the statute, on its face, deprives a defendant of a meaningful opportunity to be heard before being deprived of legal rights. Fuentes v. Shevin, 407 U.S. 67, 81 (1972). EVI fails to consider the possibility that Rule 92 was followed by the trial judge and that the rule might supercede the temporary injunction procedure described in section 311.750.



    In any event, EVI’s claim fails because to have standing to raise a constitutional issue, the objecting party’s rights must have been affected. Silcox v. Silcox, 6 S.W.3d 899, 903 (Mo. banc 1999). In this case the Cabaret was never closed or otherwise enjoined prior to hearing or a final order. On April 4, 2000, the state moved for a temporary restraining order. There was no allegation demonstrating that immediate and irreparable harm would result absent such relief. Consistent with Rule 92.02(a)(1), the trial court denied the motion. On April 21, the state asked for a temporary order closing the Cabaret pending the court’s final order. The court also denied that request. EVI has no standing to raise this issue of the temporary injunction.



    As to the constitutionality of the nuisance hearing itself, EVI introduced evidence and had the opportunity to call its own witnesses and cross-examine the state’s witnesses at its trial. There is no due process violation evident. EVI had a meaningful opportunity to be heard, including the right to an impartial decision maker, the right to know the claims against it, and the right to confront and cross-examine opposing witnesses and to rebut their testimony with its own evidence. Mueller v. Ruddy, 617 S.W.2d 466, 475 (Mo.App. 1981); Valter v. Orchard Farm Sch. Dist., 541 S.W.2d 550, 557 (Mo. 1976).



    III.


    EVI next argues that because it had a liquor-by-the-drink resort license, the city had no authority to license it. Its argument is founded on the opening phrase of section 311.095.1. It begins, “Notwithstanding any other provisions of this chapter to the contrary, . . . .” a qualified person may be issued a license for retail consumption of liquor by the drink on the premises of a resort. EVI then points to the closing phrase of section 311.220.2, which authorizes incorporated cities to license retailers of intoxicating liquor, “where not inconsistent with the provisions of this law.” EVI asserts that section 311.220.2 is “contrary” to section 311.095.



    The precise question presented here was discussed at length in State ex rel Casey’s v. City of West Plains, 9 S.W.3d 712 (Mo. App. 1999). The court, after careful analysis, concluded that the authority of the state to issue a resort license under 311.095.1 was not intended to deprive an incorporated city of the specific authority granted in section 311.220 to license the sale of liquor. Id. at 719. EVI requests that Casey’s be overruled based on this Court’s holding in Allstate Distribs., Inc. v. Norfleet, 750 S.W.2d 73 (Mo. banc 1988). But in that case the Court did not hold that section 311.095.1 supercedes a city’s authority to issue a license to a resort. The actual holding was that a municipality exhausts its authority to tax liquor when it requires a city license. Id. at 76. Casey’s is not inconsistent with Allstate. Casey’s is not overruled.



    EVI also claims that the Division has construed section 311.095 as preempting the power of cities to license liquor retailers. It relies on the testimony of liquor control agent Steve Shimmers, who testified that the policy of his agency was to issue a resort license prior to the licensee having obtained a city liquor license. Contrary to EVI’s assertions, Shimmers did not state that the Division’s policy was to encourage or permit the actual operation of a resort licensee without the required city license. The order in which licenses are issued is of no consequence in determining whether an establishment has the lawful authority to operate.



    Other arguments are advanced claiming that section 311.220.1 is contrary to section 311.095.1. Put simply, the two sections are not contrary to or inconsistent with each other. Indeed, the two sections are entirely compatible and are part of a complementary system of state and local regulation of businesses that sell intoxicating liquor.



    IV.


    EVI’s remaining points generally attack the sufficiency of the evidence. EVI claims that the findings of the trial court relating to the city license, the lewdness, and the serving of intoxicated persons are not supported by the facts. Appellate courts, in reviewing bench trials, give due deference to the trial court and its unique ability to judge the credibility of the witnesses and will uphold the judgment of the trial court if the result was correct on any tenable basis. Trapp v. Barley, 897 S.W.2d 159, 164 (Mo. App. 1995).
    The Division’s lewdness regulation provides, in relevant part:



    (14) Lewdness. No retail licensee or his/her employee shall permit in or



    upon his/her licensed premises—


    . . . .


    (B) The displaying of any portion of the areola of the female breast;


    . . .


    (D) The actual or simulated displaying of the pubic hair, anus, vulva
    or genitals;


    . . . .



    11 CSR sec. 70-2.130(14(B) and (D); see also sec. 311.660 (authorizing the supervisor of liquor control to establish regulations for the conduct of liquor licensees). The trial court found that “the evidence indicated that on numerous occasions, female dancers displayed and exposed the areola portion of their breasts, pubic hair and vulvas.” On several occasions in one evening, liquor control agents observed a female dancer expose the vulva and areola portions of her body. On another occasion, two patrons observed a female dancer expose the areola portion of her breasts. Both incidents are a clear violation of the regulation noted above.



    On three different occasions within a little more than a month, visibly intoxicated persons were arrested moments after leaving the Cabaret. Two of these patrons had blood alcohol levels at 200 percent and 300 percent, respectively, of that giving rise to a presumption of intoxicated driving. Sec. 302.505.1. Another had a blood alcohol content of .157 percent. Each of these persons had consumed several alcoholic beverages inside EVI’s business. Serving intoxicated persons is a violation of the liquor control law. Sec. 311.310.



    Evidence of just one of these violations would have been sufficient for the trial court to have found a violation of liquor control law under section 311.740. In response, EVI points to the self-serving testimony of James L. Alexander, in which he claims he was ignorant of the lewd conduct of his employees. He also claims that he stopped serving alcohol to Mr. Williams, Mr. Palmer, and Mr. Miller once he was aware of their inebriated condition. EVI would have us disregard the testimony of those present who saw the dancers’ performances, and others who observed the obvious drunkenness of the customers, albeit from a distance as the customers exited the Cabaret. Given that Mr. Alexander was present on each occasion, his claims of ignorance ring hollow. His assertion that, of all present, only he did not see the lewd acts or realize the intoxication of his patrons prior to serving their last drinks strains credulity. The record discloses substantial circumstantial evidence that Mr. Alexander knew what was happening and permitted it to occur.



    The record also establishes beyond question that EVI operated without a municipal license as required by the city ordinances of High Hill. State liquor licensees are required to comply with valid local licensing ordinances. See sec. 311.220. High Hill’s ordinance is not shown to be unauthorized by law.



    In order to find EVI to be operating a public and common nuisance, it was only necessary for EVI to have committed one violation of liquor control law. The record shows substantial evidence of at least six separate violations committed in three different ways; that EVI employees served liquor to intoxicated persons on three occasions, that lewd conduct was permitted on the premises on at least two occasions, and that EVI did not possess a valid city liquor license. The judgment is affirmed.