This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Daryl Ken Haase,
Washington County District Court
File No. KX992764
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Richard C. Ilkka, Oakdale City Prosecutor, 1584 Hadley Avenue North, Oakdale, MN 55128 (for respondent)
Seldon H. Caswell, Caswell & Associates, P.A., 6070 50th Street North, Oakdale, MN 55128 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Darryl Ken Haase was convicted of seven counts of violating Oakdale, Minn., Code of Ordinances § 12-48 (Mar. 8, 1994), which requires Oakdale residents to store abandoned and junk vehicles on their property in an enclosed building. He contends his convictions must be reversed because: (1) he was subject to discriminatory enforcement; (2) his multiple convictions violate prohibitions against double jeopardy; (3) the ordinance conflicts with state law; (4) the ordinance was not properly enacted; (5) the ordinance is unconstitutionally vague; and (6) multiple convictions are prohibited because the convictions are indistinguishable. We affirm.
Appellant argues that the Oakdale prosecutor’s decision to enforce the ordinance based on neighbors’ complaints constitutes discriminatory enforcement. We disagree. “[I]ntentional, discriminatory enforcement of municipal ordinances” is prohibited by the Equal Protection Clause of the Fourteenth Amendment. State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988) (citation omitted). But it is presumed that criminal prosecutions are brought in good faith and in a nondiscriminatory manner. Id. To prove discriminatory enforcement
a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.
Id. at 872-73 (citation omitted). Discriminatory enforcement must be proven by a preponderance of the evidence. Id. at 873. In order to warrant an evidentiary hearing on the issue of discriminatory enforcement, a “defendant must allege facts which show that he was singled out for enforcement and that his selection was invidious or in bad faith.” Id. (citation omitted).
Here, appellant failed to establish discriminatory enforcement. While appellant presented evidence that others in the same community were violating the same ordinance, he did not show that the fact he was prosecuted, while others were not, was based on an impermissible consideration such as race, religion, or the desire to prevent his exercise of a constitutional right. See id. (holding that without a showing of membership in a suspect class or exercise of a fundamental right, a defendant is unable to meet his burden of establishing discriminatory enforcement). We conclude the district court did not err in denying appellant’s claim of discriminatory enforcement.
Appellant contends he was sentenced on all seven petty misdemeanor convictions in violation of the Double Jeopardy Clauses of the United States and Minnesota Constitutions. We disagree. This “court reviews de novo the constitutional issue of double jeopardy.” State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999) (citations omitted).
Criminal prosecutions for municipal ordinance violations are afforded the protections of Minn. Stat. § 609.035 (2000), the statute prohibiting double jeopardy. State v. Erickson, 367 N.W.2d 539, 540 (Minn. App. 1985). Section 609.035, subdivision 1, provides, in part:
[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.
“Nuisance, however, is a continuing offense.” Erickson, 367 N.W.2d at 540. “Thus, repeated prosecutions may proceed over claims of double jeopardy until the nuisance is abated.” Id. (quotation omitted). Here, as in Erickson, appellant was charged more than once for the same nuisance violation. The violations were documented weeks apart. Under Erickson, appellant’s violations were part of a continuing offense and thus his convictions do not violate the prohibition against double jeopardy.
Appellant argues that because the state issued to him a used-car-dealer permit, Oakdale, Minn., Code of Ordinances § 12-48 (Mar. 8, 1994), impermissibly conflicts with state law. We disagree.
This court looks at the following factors in determining if an ordinance conflicts with a state statute:
(a) As a general rule, conflicts which would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other.
(b) More specifically, it has been said that conflict exists where the ordinance permits what the statute forbids. * * *
(c) Conversely, a conflict exists where the ordinance forbids what the statute expressly permits. * * *
(d) It is generally said that no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute.
Northern States Power Co. v. City of Granite Falls, 463 N.W.2d 541, 544-45 (Minn. App. 1990) (emphasis added) (citation omitted), review denied (Minn. Jan. 14, 1991).
Here, appellant’s used-car license allows him the right to
sell, lease, broker, wholesale or auction and to solicit and advertise the sale, lease, broker, wholesale or auction of any used motor vehicles for consumer use at retail or for resale to a dealer. A used motor vehicle dealer may engage in the business of buying or otherwise acquiring vehicles for dismantling the vehicles and selling used parts and remaining scrap materials under chapter 168A.
Minn. Stat. § 168.27, subd. 3 (2000). The ordinance appellant was charged under states that
[i]t shall be unlawful for any person in charge or in control of any property within the city to allow any junk or abandoned vehicle, including any parts thereof or therefrom, to remain on any private property for a period of longer than seventy-two (72) hours unless within an enclosed building or by written permission obtained from the City Administrator.
Oakdale, Minn., Code of Ordinances § 12-48.
The Minnesota statute allows appellant to sell used motor vehicles and to dismantle them. The ordinance only adds to the statute by requiring that abandoned and junk vehicles be kept in an enclosed building. Because the statute does not “expressly” allow a used-car dealer to leave abandoned and junk vehicles outside an enclosed building, we conclude the ordinance is not in conflict with state law.
Appellant contends the ordinance was not enacted pursuant to authority from the state. Respondent argues that this issue was not raised below, but the record indicates appellant made a similar argument in his motion for reconsideration.
The ordinance at issue here was adopted pursuant to Minn. Stat. § 168B.09, subd. 2 (1998), which allows a local government to
adopt ordinances and regulations to control the matter subject in accordance with sections 168B.01 to 168B.101, so long as the ordinances and regulations are not less stringent than the provisions of sections 168B.01 to 168B.101.
Pursuant to Minn. Stat. § 168B.01 (1998), it is “in the public interest that the present accumulation of abandoned motor vehicles and other scrap metals be eliminated” because “[a]bandoned vehicles constitute a hazard to the health and welfare of the people of the state,” and are a “blight on the landscape of the state.” The Oakdale ordinance was enacted pursuant to section 168B.01, and limits the accumulation of abandoned and junk vehicles by requiring that these vehicles be kept in an enclosed building. Thus, we conclude the ordinance regulates abandoned and junk vehicles as authorized by section 168B.09, subdivision 2.
At oral argument appellant further argued that the ordinance should have been enacted under the zoning code. Because this argument was not raised at the district court, it has been waived on appeal. Rairdon v. State, 557 N.W.2d 318, 322(Minn. 1996).
Finally, appellant argues for the first time on appeal that the ordinance is void because it is unconstitutionally vague. But a failure to raise a constitutional issue at the district court waives review of the issue on appeal. Mullins v. Churchill, 616 N.W.2d 764, 769 (Minn. App. 2000). Likewise, appellant’s argument that Minn. Stat. § 609.04 (2000) prohibits convictions of two or more offenses when the offenses are indistinguishable was not raised at the district court and thus is waived. See Rairdon, 557 N.W.2d at 322.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.