Opinion
43581 Record No. 761524.
October 7, 1977
Present: All the Justices.
Constitutionality of Sunday closing law: whether retailer of automotive parts exempt under Code Sec. 18.2-341(a)(4).
(1) Sunday Closing Law — Exemptions — Effect of 1976 Amendment Permitting Sale of Parts for Emergency Repairs.
(2) Constitutional Law — Equal Protection — Businesses Similarly Situated.
(3) Constitutional Law — Equal Protection — Territorial Uniformity not Prerequisite.
(4) Constitutional Law — Vagueness in Term "Emergency" — Business People of Ordinary Intelligence Understanding as Matter of Commercial Knowledge.
(5) Constitutional Law — Local Option Under Sunday Closing Law — Constitutionality not Considered on Appeal when no Indication in Record of Argument on Point at Trial.
Defendant, a retailer of automotive parts and supplies in Virginia Beach, sold a quart of oil on Sunday and was convicted of violating Code Sec. 18.2-341. The sale occurred after the 1976 amendment of the section which added to the categories of excepted industries and businesses the words italicized: "(4) Servicing, fueling and emergency repair of motor vehicles . . . including the selling of such parts and supplies for such emergency repairs."
1. The 1976 amendment to Code Sec. 18.2-341(a)(4) affects only businesses engaged in the servicing, fueling and emergency repair of motor vehicles which, pursuant to the 1976 amendment, could also sell on Sunday parts and supplies for these repairs. Defendant, as a seller of automobile parts, 80% of its stock constituting emergency items, is not within the exemption of Code Sec. 18.2-341(a)(4) and this would be so even if its principal business was selling emergency repair items. Bonnie BeLo Enterprises v. Commonwealth, 217 Va. 84, 225 S.E.2d 395 (1976) distinguished.
2. Defendant is not denied equal protection because other businesses are permitted to sell oil in Virginia Beach on Sunday, the statute applying to all who are similarly situated or engaged in the same kind of business without discrimination. Mandell v. Haddon, 202 Va. 979, 121 S.E.2d 516 (1961) followed.
3. Assuming other auto parts stores in nearby cities of Chesapeake, Hampton, Newport News and Norfolk are permitted to sell oil on Sunday, the equal protection clause relates to equality between persons as such rather than between areas, territorial uniformity not being a constitutional prerequisite. Moreover defendant will not be heard to complain that authorities in other jurisdictions have failed to enforce a law which Virginia Beach officials have enforced.
4. The term "emergency" as used in the exemption in Code Sec. 18.2-341(a)(4) is not unconstitutionally vague, business people of ordinary intelligence being able to know what exceptions are encompassed by the statute as a matter of ordinary commercial knowledge.
5. The record not indicating defendant argued at trial constitutionality of the local option feature of the Sunday Closing Law, this argument will not be heard on appeal 5:21, Rules of Court.
Error to a judgment of the Circuit Court of the City of Virginia Beach. Hon. Philip L. Russo, judge presiding.
Affirmed.
Montgomery Knight, Jr. (Reid H. Erwin; Doumar, Pincus, Knight Harlan, on brief) for plaintiff in error.
Alan Katz, Assistant Attorney General (Anthony F. Troy, Attorney General, on brief) for defendant in error.
For selling a quart of motor oil on a Sunday, Malibu Auto Parts, Incorporated, was convicted by the trial court of violating Code Sec. 18.2-341, a part of Virginia's Sunday Closing Law. Malibu's appeal presents questions of the applicability and the constitutionality of the Closing Law.
The record shows that Malibu is a retailer of automotive parts and supplies, with a store in the City of Virginia Beach. On Sunday, July 4, 1976, a city police officer, Howard T. Carr attired in civilian clothing, entered Malibu's store and ordered quart of motor oil. He told a clerk he wanted the oil for use in his lawnmower. At the clerk's request, Carr signed a statement indicating the oil was "needed for emergency repairs o[r] emergency service of a vehicle." After receiving and paying for the oil, Carr identified himself as a police officer. Subsequently, Malibu was indicted for violating Code 18.2-341 in making the sale.
As pertinent to this appeal, Code Sec. 18.2-341 reads as follows:
"(a) On the first day of the week, commonly known and designated as Sunday, no person shall engage in work, labor or business or employ others to engage in work, labor or business except in the following industries and businesses:
". . . .
"(4) Servicing, fueling and emergency repair of motor vehicles . . . including the selling of such parts and supplies for such emergency repairs" (emphasis added).
The italicized language was added to the statute by an amendment enacted at the 1976 session of the General Assembly. Acts 1976, c. 569. The sale in the present case occurred subsequent to the effective date of the amendment.
Malibu contends first that, by the 1976 amendment, the General Assembly "carved out" a new exemption for "certain businesses," viz., those engaged in selling parts and supplies for the emergency repair of motor vehicles. Malibu then argues that, because 80% of the items it stocks, including motor oil, "could fall into the category which could be considered for an emergency purpose," it "falls within the category of businesses" covered by the new exemption. It "should be allowed," therefore, Malibu concludes, to "stay open [on Sunday] in order to sell those [emergency repair] items.
Furthermore, Malibu maintains, because its principal business is the sale of emergency repair items and this business is exempted from Sunday closing, under the rationale of Bonnie BeLo Enterprises v. Commonwealth, 217 Va. 84, 225 S.E.2d 395 (1976), it should be permitted to sell on Sunday not only emergency repair items but also "other items which are sold in the ordinary and normal course" of its business. Here, although it is not clearly expressed, apparently it is Malibu's contention that, if motor oil is not considered an emergency repair item, the Sunday sale of oil in the present case still was permissible because the sale was incidental to Malibu's claimed principal business of selling emergency repair items.
We disagree with Malibu upon the effect of the 1976 amendment to Code Sec. 18.2-341(a)(4). We do not believe the amendment "carved out" a new class of businesses that would be permitted to remain open on Sunday. Instead, we believe, as the trial court held, that the amendment affects only businesses engaged in the servicing, fueling, and emergency repair of motor vehicles. Those businesses, which were already permitted to operate on Sunday, may now sell on Sunday the parts and supplies necessary to perform emergency repairs on motor vehicles.
Malibu is not engaged in servicing, fueling, or repairing motor vehicles. Rather, it is a mere seller of automotive parts and supplies. As such, even if 80% of its stock consists of emergency repair items, it is not covered by the exemption contained in Code Sec. 18.2-341(a)(4), either in the section's original form or its amended version.
For this reason, Malibu's reliance upon our decision in Bonnie BeLo is misplaced. In that case, we held that, if a merchant's principal business is permitted as an exception to the Sunday Closing Law, he may, incidental to the operation of that business on Sunday, sell such other items as are sold in the ordinary and normal course of his business.
Even if we assume that Malibu's principal business is the sale of emergency repair items and that motor oil is ordinarily sold in the course of that business, Malibu's Sunday sale of oil in the present case still would not have been permissible. Malibu's principal business is not permitted as an exception to the Sunday Closing Law.
Malibu contends next that the Sunday Closing Law is unconstitutionally discriminatory. Malibu argues first that the statute discriminates because other businesses in the City of Virginia Beach are permitted to sell motor oil on Sunday, while auto parts stores, including Malibu, are forbidden to sell the same product. Here, Malibu points to testimony it presented in the court below which showed that, on a Sunday subsequent to the date of Malibu's offense, sales of motor oil were made in a drugstore, a supermarket, and a service station, all located in Virginia Beach.
This precise objection was raised to the Maryland Sunday Closing Law in McGowan v. Maryland, 366 U.S. 420 (1961). The objection was rejected. 366 U.S. at 427-28. A similar complaint of discrimination was leveled against the Massachusetts Sunday Closing Law in Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961). This complaint was rejected. 366 U.S. at 622-24. And this court, in Mandell v. Haddon, 202 Va. 979, 121 S.E.2d 516 (1961) held "without merit" a contention that Virginia's Sunday Closing Law denied the retail merchants there involved "equal protection of the laws."
At the time Mandell was decided, the exceptions to Virginia's Sunday Closing Law were stated in terms of commodities. The exemptions in the present statute, however, are expressed in terms of industries and businesses. Even so, considering that all auto parts businesses similar to Malibu are required to close on Sunday, what was said in Mandell is applicable here:
"[The statute applies] to all who are similarly situated or engaged in the same kind of business, without discrimination. The equal protection clause goes no further than prohibiting invidious discrimination, and the [statute does] not fall within that category. . . ." 202 Va. at 992, 121 S.E.2d at 526-27.
Malibu argues also that it is subjected to unlawful discrimination in the enforcement of the Sunday Closing Law because, as it showed in the court below, auto parts stores are permitted to remain open on Sunday in the nearby Tidewater cities of Chesapeake, Hampton, Newport News, and Norfolk. The ready answer to this argument is two-fold: first, "the Equal Protection Clause relates to equality between persons as such, rather than between areas and . . . territorial uniformity is not a constitutional prerequisite." McGowan v. Maryland, 366 U.S. at 427; second, Malibu will not be heard to complain that the authorities in other jurisdictions may have failed to enforce a law which Virginia Beach officials have enforced against Malibu.
Malibu's next contention is that the Sunday Closing Law is unconstitutional and void "in its entirety" because it is vague and indefinite. Malibu argues that the term "emergency," as used in the exemption contained in Code Sec. 18.2-341(a)(4), "is not sufficiently definite to enable an individual of ordinary intelligence in any case to determine with a fair degree of accuracy what is permitted and what is prohibited."
In McGowan v. Maryland, supra, the Supreme Court upheld the Maryland Sunday Closing Law against a claim that certain of its terms were "unconstitutionally vague." We adopt, as dispositive of Malibu's present contention, what the Supreme court said in McGowan:
Inscrutably, Malibu says in its brief that the Court "struck down" the Maryland statute because of vagueness.
"We believe that business people of ordinary intelligence . . . would be able to know what exceptions are encompassed by the statute . . . as a matter of ordinary commercial knowledge. . . . [T]here is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. . . ." 366 U.S. at 428.
Finally, Malibu contends that "the entire" Sunday Closing Law is unconstitutional because of its local option feature. This feature permits a county or city, by ordinance and public referendum, to provide that the Closing Law "shall have no force or effect" within such locality. Code Sec. 18.2-342.
The record fails to disclose, however, that Malibu raised in the trial court any claim that the Sunday Closing Law is unconstitutional because of the local option feature. Accordingly, we will not notice the claim here. Rule 5:21, Rules of Court; Manley v. Commonwealth, 211 Va. 146, 149, 176 S.E.2d 309, 312 (1970).
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed.