Unverferth v. City of Florissant

LAWRENCE E. MOONEY, Judge.

I concur in the principal opinion with this single reservation: I also would hold that Florissant’s ordinance conflicts with state statutes by establishing a rebuttable presumption that the registered owner was the driver.

The Florissant ordinance establishes a rebuttable presumption that the registered owner of a vehicle was its driver at the time of the alleged violation. Certainly, the fact-finder may consider the vehicle’s registration in trying to determine who the offending driver was. But he is not free to *109infer beyond a reasonable doubt that the registered owner was the driver based solely on the vehicle’s registration because such an inference is unreasonable.

The Missouri Supreme Court upheld the constitutionality of a St. Louis parking ordinance in 1949. City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468 (1949). The St. Louis ordinance challenged in Cook established a rebuttable presumption that the registered owner of the car was the driver at the time of the parking violation. Id. at 468. In 1949, such a presumption may have been reasonable. Often, the head of a household titled the vehicle in his own name and drove the car most frequently. Moreover, meaningfully, the Supreme Court was dealing with a parking ordinance. Id. Indeed, the Supreme Court partially justified the presumption from a practical standpoint that the police could not keep watch over all the parked vehicles to determine who drove them. Id. at 470. None of these considerations apply to Florissant’s red-light ordinance. When the facts justifying a conclusion have changed, so should the conclusion. I see no reason to extend the Supreme Court’s reasoning in the Cook case beyond the prosecution of parking violations.

But, like the Supreme Court in Cook, I think we should consider the context in which the presumption operates because, as in Cook, the presumption does not stand in isolation. Here, Florissant tried to convert a moving violation of state law to a non-moving violation of its own ordinance. Here, Florissant failed to report violations to the Director or Revenue for the assessment of points. Here, Florissant failed to conform its violation notice to the mandatory rules established by our Supreme Court, such that the registered owner would have notice of the time, place, and procedure to contest Florissant’s ticket. Remarkably, Florissant even had the temerity to counsel the alleged violator: “It is in your best interest to pay the ticket.” Given the context in which it operates, Florissant did all in its power to render the rebuttable presumption conclusive. I would hold that the presumption that Flor-issant attempted to impose by this regime is not reasonable and does not accord due process to the registered owner. Indeed, I would conclude that the only presumption present here is Florissant’s.