IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CA-00546-SCT

DELMER L. LARSON, JR. AND TERESA C. LARSON

v.

CITY OF CANTON, MISSISSIPPI

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 04/24/95

TRIAL JUDGE: HON. EDWARD G. CORTRIGHT JR.

COURT FROM WHICH APPEALED: MADISON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANTS: J. M. RITCHEY

ATTORNEY FOR APPELLEE: PATRICK M. RAND

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 4/3/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE DAN LEE, C.J., McRAE AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

For many years, an event known as the Canton Flea Market has taken place in Canton, Mississippi on

the second Thursday in May and the second Thursday in October of every year. The Canton Flea

Market is one of the largest and oldest flea market events in the state of Mississippi. The Canton Flea

Market is not operated by the City of Canton, but is a joint effort of several civic, religious, and

nonprofit groups, as well as various individuals.

The May Flea Market attracts an average crowd in excess of 30,000 people; in October, the crowds

exceed 45,000. For each event, the City issues approximately 1,500 Flea Market permits to various

vendors, allowing them to take part in the event. The City receives revenue from the issuance of Flea

Market permits and from sales taxes collected on Flea Market sales. The revenue is used to offset

expenses for additional services in connection with the flea market.

On April 1, 1986, the City of Canton had enacted a Flea Market Ordinance which served the purpose
of establishing Flea Market Days, Flea Market zones, and requiring a special Flea Market permit in

order to sell merchandise, food or beverages on the second Thursday of May and the second

Thursday of October of each year.

Delmer Larson and his wife, Teresa Larson, plaintiffs and appellants herein, commenced this action

for an injunction, damages, and other relief against the City of Canton, Mississippi. The Larsons paid

the required license fee to the City and were issued a valid privilege license to operate a flea market

business at premises that they leased at the fixed location of 3113 South Liberty Street, in Canton

under the trade name of "Fancy That Flea Festival". The license which the Larsons held was not a

Flea Market permit, but an ordinary business privilege license. A flea market is neither a nuisance per

se or per accidens, but the Larsons' leased property is outside the Flea Market Zone established in

the ordinance.

The Larsons had intended to open and conduct their licensed flea market business for profit at 3113

South Liberty Street on the second Thursday of May, 1994 (May 12, 1994), and they made some

necessary preparations to do so. They intended to rent spaces to third party vendors to exhibit and

sell wares at "Fancy That Flea Festival" on that date. The City, through its attorney, informed the

Larsons on May 2, 1994, that their proposed operation of their flea market was in specific violation

of the Ordinance because it was outside the designated Flea Market Zone. Rather than face

prosecution under the ordinance, the Larsons canceled their May 12, 1994 flea market business.

However, the Larsons have operated their flea market business on all days that they wished to do so

except on May 12, 1994, and October 13, 1994.

The case was tried using an agreed upon stipulation of facts. On April 25, 1995, the chancellor

rendered his final judgment, which held that the City of Canton's Flea Market Ordinance was properly

constituted and was a legitimate exercise of the City's right to tax a business enterprise and to provide

services and protection to its citizens and visitors. That final judgment also held that the Larsons

could operate their flea market business at its fixed location on any legitimate business day, including

the second Thursday in May and in October, but that the Larsons could not rent spaces to third party

vendors, not holding valid Flea Market Permits, on the second Thursday in May or October of any

year.

The Larsons appealed, claiming that they could not operate their business on any day without renting

space to third party vendors, thus the effect of the judgment is that they are totally prohibited from

operating their business of the second Thursdays of May and October.

DISCUSSION OF LAW

I.

BECAUSE THE LARSONS ARE NOT TRANSIENT VENDORS WITHIN THE MEANING

OF MISS. CODE ANN. § 75-85-1 ET SEQ., THE CITY OF CANTON HAD NO

AUTHORITY UNDER MISS. CODE ANN. § 21-19-35 TO PROHIBIT THE LARSONS'

DULY LICENSED FLEA MARKET WHICH OPERATES FROM A FIXED LOCATION.

Mississippi has enacted a transient vendor law which requires a transient vendor to obtain a license or

pay a fee in each county or municipality before he or she may transact business there. Miss. Code
Ann. § 75-85-1 et seq. (1972). The Larsons argue that duly licensed flea markets, such as theirs,

which operate from a fixed location are not transient vendors within the meaning of the statute and

are specifically exempted from the transient vendor law under Miss. Code Ann. § 75-85-3(1)(h).

Because they are specifically exempt from the transient vendor statute, they argue that the City has

no authority to prohibit their flea market from operating on the Flea Market Days set out in the

ordinance.

While the Larsons are correct to argue that they are exempt from the transient vendor statute, it

cannot be said that the third-party vendors who sublet space from the Larsons are exempt. As a

matter of fact, Miss. Code Ann. § 75-85-3(2) specifically states that such vendors are not exempt

because of their association with exempt merchants such as the Larsons. Therefore, the Larsons'

claim that the City could not regulate them under the ordinance is misplaced. As a result, this Court

finds that this claim is meritless.

II.

THE CITY'S FLEA MARKET ORDINANCE BEARS NO RELATIONSHIP

WHATSOEVER TO THE PROTECTION OF THE PUBLIC HEALTH, SAFETY, MORALS

OR GENERAL WELFARE, AND WAS THUS ENACTED AS AN INVALID EXERCISE OF

THE CITY'S POLICE POWER AND IS NULL AND VOID.

Miss. Code Ann. § 21-19-15 gives municipalities the authority to enact police regulations to preserve

good order and peace of the municipality and to prevent injury to, destruction of, or interference with

public or private property. Municipalities have the power to adopt reasonable regulations to protect

and preserve the property and health of the community. City of Vicksburg v. Mullane, 106 Miss.

199, 211, 63 So. 2d 412 (1913). This Court has stated that there can be established no fixed and

permanent guide to settle in future cases what is or is not a reasonable exercise of regulatory powers.

Each case must be settled by its own facts. Johnson v. City of Philadelphia, 94 Miss. 34, 41, 47 So.

526, 527 (1908). Canton is not a very large city. Because the Canton Flea Market is one of the

largest in the state, with up to and over 45,000 people attending, the population of Canton grows

significantly on Flea Market Day. The method that the city chose to regulate the event was the Flea

Market Ordinance. It is a rational and reasonable scheme limiting the event to a confined area to

allow for proper police protection, adequate sanitary facilities, and reasonable traffic control. Left

unchecked, it is possible that unregulated pedestrian and vehicle traffic could become logistically

difficult. It seems reasonable that the City could control the Flea Market by regulating where the

crowds would congregate. Therefore, the City could better plan where to expend the necessary

municipal resources, such as police protection, fire protection, sanitary stations and emergency

personnel, which accompany and are required by such an event.

Additionally, the Larsons may hold open their business on those days, they simply may not sublet to

any third-party vendors on those days. If they were allowed to do so, they would be circumventing

the purpose of the ordinance, which is to maintain reasonable control of a very high profile event.

Accordingly, this Court finds that this issue is meritless.

III.
BY DENYING THE LARSONS THE RIGHT TO OPERATE THEIR FLEA MARKET

BUSINESS ON DAYS WHEN ALL OTHERS ARE PERMITTED TO OPERATE THEIR

DULY ESTABLISHED AND LICENSED BUSINESSES, THE CITY OF CANTON'S FLEA

MARKET ORDINANCE DENIES TO THE LARSONS THE EQUAL PROTECTION OF

THE LAWS.

The Fourteenth Amendment to the U.S. Constitution provides in part as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.

§ 6 of the Canton Flea Market Ordinance provides:

On Flea Market Days the exhibit of and/or sale of arts, crafts goods, wares, merchandise,

plants, food or beverage of any type is prohibited except by those persons and/or business

establishments possessing proper privilege licenses and except by those persons and/or

businesses which have obtained a proper Flea Market Permit from the City of Canton. Garage

sales, carport sales and those similar in nature are prohibited on Flea Market Days.

The Larsons take the position that they are denied the right to run their duly licensed and lawful

business establishment on Flea Market Days, while all other business establishments are allowed to

operate. However, the chancellor specifically stated that the Larsons are not prohibited from

operating their business on Flea Market Days. He simply forbade them from renting space to third

party vendors on that date. The Larsons contend that it is useless for them to open up their shop on

Flea Market Days if they cannot rent out space to third party vendors. Thus, the effect of the

chancellor's ruling is that they cannot operate their business on Flea Market Days. In this Court's

opinion, this argument does not overcome the argument of the City that to allow unrestricted flea

market sales would defeat the purpose of the ordinance. Once again, the purpose of the ordinance is

to allow the city to maintain logistic control of the Flea Market, which for a single day can increase

the population of the City of Canton by upwards of 45,000 people. The City also prohibits garage

sales on Flea Market Days. This is obviously because someone could conceivably sell their wares

outside the Flea Market Zone under the guise of a garage sale. This would circumvent the purpose of

the ordinance, as well as cause the City to miss out on the sales tax and permit revenue which it gets

from participants in the Flea Market. Likewise, vendors could simply set up at the Larsons' business

and sell their goods, thus avoiding the need for a flea market permit. That vendor would then get the

benefit of the additional traffic without having to bear the burden of paying for the permit to sell his

goods. The City is correct to take precautions against such occurrences, and the Flea Market

Ordinance is a reasonable means to achieve such and end.

Therefore, this Court finds this issue to be meritless.

IV.

THE CITY OF CANTON'S FLEA MARKET ORDINANCE WAS ENACTED FOR THE

PURPOSE OF CREATING A MONOPOLY FOR THE CITY OF CANTON. THUS THE
ORDINANCE UNCONSTITUTIONALLY ABRIDGES THE PRIVILEGES AND

IMMUNITIES OF THE LARSONS AND DEPRIVES THEM OF A VALUABLE

PROPERTY RIGHT WITHOUT DUE PROCESS OF LAW OR JUST COMPENSATION.

First, this Court would point out that the fact that a monopoly is created does not necessarily make

that monopoly unconstitutional. The Larsons point out no authority which says so, and this Court

could find none. In fact, some situations naturally lend themselves to the creation of a monopoly:

public utilities which are regulated by a governmental body come readily to mind. Secondly, it is not

readily apparent that the Canton Flea Market is a monopoly for the benefit of the City, since it is run

by various civic, religious and nonprofit business organizations. As has been stated earlier, the City's

role appears to be to maintain control for the health, safety, and welfare of the public. It escapes this

Court how an ordinance which is reasonably constructed to achieve those ends is a "taking" without

due process or just compensation.

Turning to the claims set out by the Larsons, those appear to be threefold:

(1) That the Larsons were denied Due Process under the Fifth and Fourteenth Amendments to the

United States Constitution and under Article III, § 14 of the Mississippi Constitution of 1890; (2)

That the City abridged the Privileges and Immunities Clause of the Fourteenth Amendment to the

United States Constitution; (3) The denial of the right to sublet space to third persons is a taking

under the Fifth Amendment to the United States Constitution.

This Court has not directly addressed the issue, but the United States Court of Appeals for the Fifth

Circuit has held that once an action is characterized as legislative, procedural due process

requirements do not apply. Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d

1070, 1073 (5th Cir. 1989). This action was one taken by the Canton City Council, which is a

legislative body. Therefore, if this Court follows the logic of Jackson Court, which we now choose

to do, the Larsons's Due Process claim must fail.

The Larsons cite no authority that the ordinance violates any of the privileges and immunities of

United States citizenship, and this Court does not particularly see any violation. It would appear that

the Larsons are afforded all the protections of United States citizenship. Since the ordinance

preexisted their ownership of "Fancy that Flea Festival," it would appear reasonable that they knew

or could easily have found out that they were outside the Flea Market Zone. Furthermore, this issue

also relates back to the fact that under the chancellor's judgment, the Larsons may themselves

continue to operate their business. So there is no visible violation of the Privileges and Immunities

Clause.

The determination of what constitutes a "taking" depends upon the facts of each individual case.

Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978). The economic

impact of the regulation on the claimant and, particularly, the extent to which the regulation has

interfered with distinct investment-backed expectations are relevant considerations. Id. So, too, is the

character of the governmental action. A "taking" is more likely to be found where there has been a

physical governmental invasion than when, as in this case, there has been governmental interference

arising from a public program adjusting the benefits and burdens of economic life to promote the

public good. Id. "Government could hardly go on if to some extent values incident to property could

not be diminished without paying for every such change in the general law." Id.; Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 413 (1922).

The burden which has been imposed upon the Larsons is that for two days out of a year, they cannot

sublet space in their business. Admittedly, their business may not be as profitable on those days as it

is on any other day. But in the grand scheme, they cannot claim that their property rights have been

interfered with to the point that there has been an unduly harsh impact upon the investment-backed

business expectations of the Larsons.

As a result, This Court finds that this issue is meritless.

CONCLUSION

This Court affirms the judgment of the chancellor as to all issues in this case because the Transient

Vendor Statute is effective against any third-party vendors who would be seeking to rent space from

the Larsons. Secondly, the Flea Market Ordinance does bear a rational relationship to the protection

of the general health, welfare, and safety and is therefore within the City's police power. Additionally,

The Larsons's equal protection claims must fail because the ordinance affects all similarly situated

citizens in a like manner.

Finally, there has been no showing on the part of the Larsons that the ordinance violates any due

process expectations under the Fifth or Fourteenth Amendments to the United States Constitution, or

under the Mississippi Constitution of 1890, or that the ordinance effects a taking under the Fifth

Amendment to the United States Constitution.

Accordingly, the judgment of the chancellor in this case is affirmed.

JUDGMENT AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS

AND MILLS, JJ., CONCUR.