Thin Mints v. The City
The days of child-run lemonade and cookie stands may soon be over.
In the spring of 2005, two enterprising sisters, ten-year old Caitlin and eight-year-old Abigail Mills of Hazelwood, Missouri sold Girl Scout Cookies for a few hours each evening after school from the stand they set up in their drive-way. And this little stand was mighty successful. In 2011, the girls sold around 1,700 boxes, a feat that would make any parent or troop leader proud.
This tradition continued until one year ago when their mother, Carolyn Mills, found an unpleasant surprise waiting for her with the mail: a notice from the City of Hazelwood Code Enforcement, a zoning board, stating that the Girl Scout Cookie stand violated a home occupations Code, and that her family was prohibited from involvement in this kind of quasi-criminal activity.
Not wanting to break the law — they are Scouts, after all — Ms. Mills and her daughters filed for a license to sell their cookies. The city, citing health and safety concerns, denied their application.
And so Ms. Mills is suing. According to the complaint filed in the Circuit Court of St. Louis County Missouri, the Mills family claims that the city has no evidence of the cookie stand causing any considerable public health, safety, or welfare hazards. The Mills family also claims that the Code is unconstitutional, and deprives them of their liberty and their right to use personal private property as they see fit.
The Mills family is not seeking money from the city; they just want the right to sell their cookies. Several media outlets (see here and here) have reported on this cookie-selling case, but they haven’t weighed in on the lawsuit’s merits. LASIS investigates.
The Hazelwood City Code lists examples of home occupations that are permitted and include tutoring, art, and internet-related occupations.
Listed home occupations that are prohibited under the Code include auto sales, car painting, retail sales, and – this is the important one for the Mills girls – operating eating or drinking establishments, the idea being that these types of occupations have public health and safety risks.
But that’s not the end of the story. Because though you might be skeptical about the U.S. Constitution being involved, it is.
A home occupations code is a type of zoning that dictates what buildings or establishments can be built on certain property. Some zoning codes allow for only single family homes, for example, while others allow for apartment buildings, or businesses. Zoning codes restrict how people can and cannot use their own property, and this is where the constitution comes in.
The 14th Amendment provides that no individual’s “life, liberty, or property,” can be taken without “due process of law.” The 1926 Supreme Court decision in The City of Euclid v. Amber Realty Co., is the landmark case that set the parameters for whether or not a zoning ordinance will violate the 14th Amendment. The Court essentially stated that zoning restrictions must bear a rational and reasonable relationship to protecting the “public health, safety, morals, or general welfare,” of the community. Without such a rational relationship, a zoning ordinance would run afoul of the constitution.
The Mills girls, of course, are arguing that using this zoning ordinance to restrict front lawn cookie sales has no rational relationship to protecting the public’s welfare.
In a 1993 Maryland case, home health practitioner Lawrence Levinson was selling commercially available eyeglasses and appealed from a board decision that said he was violating a zoning ordinance. The county allowed products such as clothes, jewelry, and pottery to be sold out of people’s homes and Dr. Levinson argued that there was no justifiable distinction between these items and eyeglasses. But the court found that the county could restrict the types of products sold because the ordinance was substantially related to the health, safety, and welfare of the community. The court noted that the right to enjoy real estate property is not absolute, and the ordinance was presumed to be constitutional.
Even though the Maryland case is not binding on a Missouri judge, judges may look outside of their jurisdiction to see how other courts have ruled on similar cases to inform their decisions. So if Judge Bresnahan, who is presiding over the Mills’ case, bases his decision on the Maryland court, the Mills family is not likely to win the battle against the city.
But it could go the other way.
In 2010, Girl Scouts in Savannah, Georgia selling cookies on a residential sidewalk were told they were violating a city ordinance and had to stop. But vocal public opinion got the best of city officials and in 2011, a temporary exemption on the ordinance was granted. And just this year in Los Angeles, after shopping mall development guru, and rumored mayoral contender, Rick Caruso, banned Girl Scouts from selling cookies in one of his shopping malls, he got a healthy dose of criticism from his potential voters and relented.
So maybe if Girl Scouts supporters in Hazelwood got a little more vocal and exercised their constitutional right to free speech, Judge Bresnahan and city officials would give the Mills girls a permit.
We’re on your side, Mills family.
And so a shout out to the citizens of Hazelwood, Missouri: Give these ladies a break. We’re not talking Bryan Cranston and a meth lab here; just two girls and their mom wanting to sell some Thin Mints and Do-si-Dos.