TORCH ELECTRONICS LLC v. CITY OF SPRINGFIELD (2026)

Torch Electronics, LLC (“Torch”) appeals the trial court's judgment affirming an administrative decision of the City of Springfield (“the City”) which denied the issuance of a business license to Torch at the time of renewal. The City denied Torch's renewal application due to a purported violation of Springfield City Code (“City Code”) Section 78-10, which generally prohibits entertainment devices that offer a monetary prize. Torch raises four points on appeal. In Points I and II, Torch argues the Missouri Constitution and state law require municipal ordinance violations to be heard by a municipal judge; thus, the City's hearing officer made an unauthorized finding that Torch violated City Code Section 78-10. In Point III, Torch argues the City Code does not permit the denial of a business license based on a violation of Section 78-10. In Point IV, Torch argues Section 78-10 is preempted by state law and thus cannot serve as a lawful basis for the denial of its business license. We affirm.

Factual and Procedural History

Torch is a company in the business of placing and maintaining coin-operated amusement machines in other business's establishments, including businesses located in Springfield. The City requires those who engage in certain enumerated occupations to obtain a business license annually. Springfield City Code § 70-34, 70-37. Among those occupations include the placing of coin-operated machines in the establishments of others. Id. § 70-84(37). The Director of Finance (“Director”) is responsible for issuing all occupational licenses. Id. § 70-33. Accordingly, Torch has applied for and received a Springfield business license each year from 2019 to 2023.

On January 8, 2024, Torch submitted its annual business license renewal application. On February 12, 2024, before the City considered the application, it enacted Section 78-10 of the City Code. Section 78-10 prohibits entertainment devices that offer a monetary prize.¹ On March 5, 2024, the Director sent Torch a letter notifying it that its license was not eligible for renewal. The letter explained that “The operation of a business which provides entertainment devices that offer monetary prizes would violate City Code Section 78-10, Monetary Prizes.” In response, Torch requested an informal hearing before the Director pursuant to Section 70-51(b),² which was held on March 26, 2024. The Director subsequently reaffirmed the denial of Torch's business license application. The Director's written decision utilized information on Torch's website to explain how Torch's “No Chance Games” operate. “[T]he player may view each and every outcome which may entitle them [to] a prize before playing the game. They may simply touch the ‘Prize Viewer’ button on the game console and view the result of the game before playing.” Further, the “user inserts money to play and may cash out a ticket that is redeemable for cash.” The Director concluded that, “because your entertainment devices offer a monetary prize, they violate the terms of [Section] 78-10, which is a basis for denial pursuant to [Section] 70-51[³ ] of the City Code, Revocation or denial of license.”

Torch then requested a public hearing, also pursuant to Section 70-51(b), which was held on October 28 and 29, 2024. The hearing officer was appointed by the City Manager and was not a municipal judge. Springfield called three witnesses: the Licensing Supervisor, the Director, and a Sergeant with the Springfield Police Department's Community Services Section, the unit tasked with enforcing Section 78-10. The Licensing Supervisor and Director generally testified that Section 78-10 served as the basis for not renewing Torch's business license. The Sergeant offered his opinion that Torch's machines violate Section 78-10, but that he has nothing to do with the licensing decision. All testimony indicated that Torch has never received a ticket, been charged or convicted, or received a penalty for violating Section 78-10.

On December 27, 2024, the hearing officer entered his thorough Findings of Fact, Conclusions of Law, and Order (“Order”) upholding the denial or nonrenewal of Torch's business license. The Order summarized Torch's machines as follows:

There is a prize viewer setting forth the predetermined outcome. The player decides if and how much money he is going to insert in the machine and then the individual plays the machine. The player can press the cash out button to get a voucher and be paid by the store employee.

The Order's conclusions of law found “It is clear that Section 70-51(a) allows for the [Director] to deny or not renew the business license if the director believes it will result in the operation of the business in violation of [the City Code].” The Order further found testimony at the hearing and Torch's website establish Torch is in violation of Section 78-10. The hearing officer was not persuaded by Torch's arguments to the contrary, discussed in detail below.

Torch then filed its Petition for Judicial Review, Declaratory Judgment, and Injunctive Relief on January 23, 2025. The parties entered into a joint stipulation of the administrative record, which included the City Code sections relevant to our disposition of this appeal.⁴ On September 25, 2025, the trial court entered its final judgment affirming the hearing officer's Order. Torch then timely appealed to this Court.

Standard of Review

“Enforcement of an ordinance by a municipality is administrative and should be reviewed under the Missouri Administrative Procedure Act [MAPA], Chapter 536[.]” BBCB, LLC v. City of Independence, 201 S.W.3d 520, 526 (Mo. App. W.D. 2006) (alterations in original) (citation omitted); see also Lewis v. City of Univ. City, 145 S.W.3d 25, 29 (Mo. App. E.D. 2004) (noting same). On appeal, we review the decision of the hearing officer, not the judgment of the trial court. Lewis, 145 S.W.3d at 29 (“When such a decision is appealed, this Court reviews the decision of the municipal agency or board rather than the judgment of the trial court.” (citation omitted)). The scope of our review in a contested administrative case is set by statute and is limited to determining whether the decision:

(1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any other reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious, or unreasonable; or (7) involves an abuse of discretion.

New Life Evangelistic Ctr. v. City of St. Louis, 564 S.W.3d 665, 687 (Mo. App. E.D. 2018) (citing § 536.140.2).⁵ While “we review the administrative agency's decision rather than the judgment of the trial court[,] ․ we affirm or reverse the trial court's judgment based upon such review of the administrative decision.” Ciesemier v. Dir. of Dep't of Pub. Safety, 673 S.W.3d 877, 882 (Mo. App. W.D. 2023) (citation omitted).

Analysis

Torch raises four points on appeal, each arguing the City's hearing officer erred in upholding the Director's denial of Torch's business license. In Point I, Torch argues Article V, Section 23 of the Missouri Constitution requires municipal judges to hear and determine alleged violations of municipal ordinances, and here, the City denied Torch's license based on an unconstitutional administrative finding that Torch violated City Code Section 78-10. In Point II, Torch similarly argues the City made an unauthorized administrative finding under state law because Sections 479.010 and 479.011, RSMo require municipal judges to adjudicate criminal ordinance violations and Section 78-10 is a criminal ordinance. In Point III, Torch asserts the City could not rely on City Code Section 70-51 to deny renewal because Section 70-51 only permits denial based on violations of ordinances that relate to the operation of the business, and Section 78-10 does not so relate. Finally, in Point IV Torch asserts Section 78-10 is preempted by state law and thus cannot serve as the basis for nonrenewal. Notably, throughout this appeal, Torch never argues that its machines do not violate City Code Section 78-10.

Points I and II

In Points I and II, Torch argues that both the Missouri Constitution and related statutory provisions (absent some exceptions discussed below) require municipal judges to adjudicate alleged violations of municipal ordinances. It asserts that here, the City impermissibly determined Torch violated Section 78-10 through an administrative process. “Questions of law, including those of statutory and constitutional interpretation, are reviewed de novo.” K.D.W. v. Mo. State Highway Patrol Recs. Repository, 720 S.W.3d 912, 916 (Mo. App. W.D. 2025) (quoting Fletcher v. Young, 689 S.W.3d 161, 164 (Mo. banc 2024)).

Article V, Section 23 of the Missouri Constitution provides in relevant part, “Each circuit may have such municipal judges as provided by law ․ A municipal judge shall hear and determine violations of municipal ordinances ․” Springfield has established a municipal court. Springfield City Charter § 12.1.⁶ Section 479.010, RSMo similarly provides that “Violations of municipal ordinances shall be heard and determined only before divisions of the circuit court as hereinafter provided in this chapter.”⁷ Finally, Springfield City Charter Section 12.1 provides in relevant part, “There shall be a municipal court which shall have jurisdiction to hear and determine all cases involving violations of the provisions of this Charter or of the ordinances of the city ․” Torch argues these provisions require ordinance violations to be adjudicated in municipal court, not through an administrative process.

The City does not dispute this general law but instead argues the City made a licensing decision, it did not determine a City Code violation. We agree. Torch fails to articulate how the City “heard and determined” a municipal ordinance violation. See RSMo § 479.010; Mo. Const. art. V, § 23; Springfield City Charter Section 12.1. Section 479.010 defines “[h]eard and determined” to mean

any process under which the court in question retains the final authority to make factual determinations pertaining to allegations of a municipal ordinance violation, including, but not limited to, the use of a system of administrative adjudication as provided in section 479.011, preliminary to a determination by appeal to the court in question.

(emphasis added). The hearing officer is not a “court,” and does not have the “final authority to make factual determinations” pertaining to Torch's alleged violation of City Code Section 78-10. The City was solely tasked with reviewing Torch's application for renewal of its business license. In doing so, the City was guided by City Code Section 70-51(a), which allows the Director to not renew a business license if the applicant is in violation of the City Code and prohibits the Director from issuing a license if there is reason to believe issuance will result in a business operating in violation of the City Code. There is no real dispute that Torch was in violation of, or that the Director had reason to believe Torch would violate, City Code Section 78-10 if its business license was renewed. Section 78-10(a) provides, “No person shall maintain or offer for use by any person any entertainment device that offers a monetary prize ․” “Entertainment device” is defined as “any device which operates for the entertainment or amusement of the operator, whether or not manipulated by the operator[,]” including video games or electronic games. City Code § 78-10(b). “Monetary prize” includes “cash, check, bank transfer, negotiable instrument, store credit, gift card or any ticket or other item that is redeemable” for same. Id. § 78-10(c). As Torch explained in its business license application and website, and the hearing officer found, Torch is in the business of placing amusement machines, which award vouchers redeemable for cash, in various establishments. This certainly appears to fit within the prohibition of Section 78-10 and Torch does not argue otherwise on appeal. Thus, relying solely on Torch's statements, the City could, and did, make a licensing determination that it could not award Torch a business license because, at a minimum, the City had reason to believe City Code Section 78-10 would be violated if the business license was renewed.

Importantly, the City did not issue Torch a citation for violating Section 78-10 or impose any of the penalties authorized by Section 78-10. Should it have a basis for doing so in the future, the municipal court would have the final authority to decide whether a violation occurred, not the hearing officer in this matter. Thus, the City did not hear and determine a violation of City Code Section 78-10, as prohibited by Section 479.010, RSMo.

In arguing otherwise, Torch relies heavily on Yellow Freight Sys., Inc. v. Mayor's Comm'n on Hum. Rts. of Springfield, 791 S.W.2d 382 (Mo. banc 1990) and City of Springfield v. Belt, 307 S.W.3d 649 (Mo. banc 2010), arguing “the Supreme Court has already admonished the City for unlawfully adjudicating alleged municipal code violations through administrative channels.” While we agree with the legal principle, both cases are factually distinguishable and of no help to Torch. In fact, a comparison of Yellow Freight and Belt to the case at hand bolsters the differences between them.

In Yellow Freight, Springfield adopted an ordinance containing various anti-discrimination provisions and establishing the Mayor's Commission on Human Rights. 791 S.W.2d at 383, 387. This commission, an administrative agency, was given the power to hear contested discrimination cases based on a violation of the ordinance and award the parties appropriate relief. Id. at 383-84. Accordingly, the Mayor's Commission determined Yellow Freight discriminated against an employee as prohibited by the ordinance, ordered the employee reinstated, and awarded her backpay. Id. at 383. The Court quoted Article V, Section 23 and Section 479.010, RSMo in declaring that the procedure to determine the violation of an ordinance must be heard before a municipal judge. Id. at 384-85. It thus held the Mayor's Commission had no authority to determine city ordinance violations. Id. at 387.

In Belt, the appellant was issued a citation and corresponding fine for running a red light in violation of a Springfield municipal ordinance. 307 S.W.3d at 650-51. A hearing officer, rather than a municipal judge, presided over the appellant's hearing and issued an administrative decision finding the appellant violated the red light ordinance and imposing the resulting fine. Id. at 651-52. On appellate review, our Supreme Court vacated the hearing officer's decision, holding it violated Section 479.010, RSMo—which requires “violations of municipal ordinances be heard and determined” by a trial court—to create an administrative system to prosecute the ordinance violation. Id. at 653.

The present case presents an entirely different scenario. In both Yellow Freight and Belt, Springfield created an administrative system to prosecute violations of specific city ordinances. Yellow Freight, 791 S.W.2d at 383, 387; Belt, 307 S.W.3d at 651-52. In both cases, the appellants were first charged with violating a city ordinance, then administrative proceedings were held to adjudicate if that violation occurred, after which administrative personnel imposed a fine for the violation of the ordinance. Yellow Freight, 791 S.W.2d at 383; Belt, 307 S.W.3d at 651-52. None of those three things occurred in the present case. Torch was not charged with violating City Code Section 78-10. The City did not initiate administrative proceedings to adjudicate such a violation. No penalty authorized by Section 78-10 was imposed on Torch. Simply put, Yellow Freight and Belt present a straightforward application of Section 479.010, RSMo when ordinance violations are heard and determined administratively. Because the City did not hear and determine a violation of City Code Section 78-10, Yellow Freight and Belt are inapposite.

Our conclusion that the City did not hear and determine the violation of an ordinance is consistent with our Supreme Court's decision in O'Brien v. Department of Public Safety, 589 S.W.3d 560 (Mo. banc 2019). In O'Brien, the Administrative Hearing Commission found cause to discipline the license of a peace officer under Section 590.080.1(2), RSMo and the Missouri Director of the Department of Public Safety subsequently revoked the peace officer's license permanently. Id. at 562. At that time, Section 590.080.1(2) provided that the director had cause to discipline a peace officer licensee who “committed any criminal offense, whether or not a criminal charge has been filed[.]” Id. at 561 n.2. The peace officer argued the statute violated constitutional separation of powers principles because it permitted an administrative agency, rather than a court, to determine if a peace officer committed a criminal offense and thus may be subject to discipline. Id. at 562-63. The Supreme Court held the peace officer's argument “misperceive[d] the nature of the [agency's] role[.]” Id. at 563. The statute only authorized the agency “to make a particular factual determination, i.e., whether a peace officer has engaged in conduct that Missouri statutes identify as a criminal offense. [The agency could not] convict the officer of that offense, nor ․ subject the officer to the criminal punishments applicable to that offense.” Id. O'Brien concluded the statute did not violate separation of powers principles because it did not “authorize the [agency] to adjudicate the licensee's criminal liability[.]” Id. at 564.

In interpreting the same statute as O'Brien (Section 590.080), our Court has focused on “the distinct and independent nature of criminal prosecution versus civil administrative license disciplinary proceedings.” Schumer v. Lee, 404 S.W.3d 443, 447 n.3 (Mo. App. W.D. 2013). In Schumer, a peace officer similarly argued that only the judiciary may declare conduct criminal, and allowing an administrative body to determine whether a criminal offense has been committed violates separation of powers principles. Id. at 447. Schumer held that the “determination of whether the crime has been committed, for this purpose”—professional license discipline—“may be made administratively[.]” Id. at 448. Both O'Brien and Schumer distinguished Belt because in Belt, no statute gave Springfield the option of creating an administrative procedure for adjudicating traffic violations, whereas in O'Brien and Schumer, a statute did authorize license discipline if the licensee engaged in conduct constituting a criminal offense. O'Brien, 589 S.W.3d at 563-64; Schumer, 404 S.W.3d at 448. And, as made clear in O'Brien, this is a factual determination, not an adjudication of criminal liability. 589 S.W.3d at 564.

These principles apply to the City's determination here. City Code Section 70-51 provides that any person who operates a business in violation of any provision of the City Code that applies to the operation of the business shall be subject to having their business license revoked or not renewed. Section 70-51 similarly prohibits the Director from issuing a business license when the Director has reason to believe such issuance will result in a business operating in violation of the City Code. These sections clearly authorize the Director's findings here, that Torch is not eligible for a business license because it is or would be in violation of City Code Section 78-10. This was an administrative determination made solely for the purpose of granting or denying a business license. It was not a criminal prosecution to determine whether Torch violated Section 78-10 and should be subjected to the penalties therein. Thus, the administrative ruling in question did not violate Article V, Section 23 of the Missouri Constitution, Section 479.010, RSMo, or Springfield City Charter Section 12.1.

To hold otherwise would produce results inconsistent with other Missouri precedent on this topic. Torch would have us hold that an administrative body could never condition a license on compliance with applicable city ordinances, unless the ordinance violation has been adjudicated in municipal court. However, ordinances often consider an applicant's compliance with local law in granting or denying a license. See St. Louis Ass'n of Realtors v. City of Florissant, 632 S.W.3d 414, 418 (Mo. App. E.D. 2021) (discussing a city ordinance allowing the suspension or revocation of a rental license for city code violations, including engaging in certain criminal activities); City of Boonville v. Rowles, 869 S.W.2d 889, 890-94 (Mo. App. W.D. 1994) (upholding the suspension of a liquor license based upon an ordinance authorizing the city council to suspend a license if the licensee violates state liquor control law, as determined by a “master” and the city council). We will not require an administrative body to grant a license in the face of a clear ordinance violation and wait for the licensee to be prosecuted for that violation before considering its effect on licensure. This unreasonable result cannot be what the legislature intended. See City of Kan. City v. Fasenmeyer, 907 S.W.2d 195, 199 (Mo. App. W.D. 1995) (“[W]ell-established rules of statutory construction provide that the ‘[c]ourts must give effect to statutes as they are written, and presume that the legislature intended a logical result, not an absurd or unreasonable result.’ ” (quoting State ex rel. Lebeau v. Kelly, 697 S.W.2d 312, 315 (Mo. App. E.D. 1985))). Points I and II are denied.⁸

Point III

In Point III, Torch asserts City Code Section 70-51 itself does not permit the Director to deny its business license based on an alleged violation of City Code Section 78-10, because Section 70-51 only allows the Director to consider ordinances that “appl[y] to the operation of the business.”

Again, Section 70-51(a) provides:

No licensee shall ․ operate the business in violation of any provision of [the City Code] that applies to the operation of that business. Any person who operates a business licensed pursuant to this chapter in violation of any provision of [the City Code] that applies to the operation of the business ․ shall be subject to having the business license revoked or not renewed by the [D]irector in accordance with procedures set forth in this chapter. The [D]irector shall not issue a business license when the [D]irector has reason to believe that the issuance of the license will result in the operation of the business in violation of [the City Code] ․

(emphasis added).

Torch thus argues that Section 78-10 “does not apply to particular businesses.” It asserts that only Chapter 70 deals with business operations and Section 78-10 is not located in Chapter 70 but rather Chapter 78. Further, Torch reasons that Section 78-10 does not relate to the operation of a business because anyone, licensed or not, can violate it. Instead, Torch characterizes Section 78-10 as a generally applicable criminal ordinance. In so reasoning, Torch focuses on the ordinance's language that “No person shall maintain or offer for use by any person any entertainment device that offers a monetary prize to any person ․” (emphasis added).

The City presents a common-sense approach, noting that Section 78-10 specifically governs the entertainment devices constituting Torch's business. Further, the City argues, while Section 70-51 does not allow any City Code violation to result in nonrenewal, it certainly includes those code sections that directly bear on the licensee's specific business activity. We agree with the City.

“The interpretation of a municipal ordinance is a matter of law that is reviewed de novo.” City of Aurora v. Spectra Commc'ns Grp., LLC, 592 S.W.3d 764, 784 (Mo. banc 2019) (citing City of St. Peters v. Roeder, 466 S.W.3d 538, 543 (Mo. banc 2015)). We “employ[ ] the rules governing statutory interpretation when interpreting an ordinance.” Id. (citing Tupper v. City of St. Louis, 468 S.W.3d 360, 371 (Mo. banc 2015)). “[T]he cardinal rule for construing an ordinance is to ascertain and, if possible, give effect to the intent of the enacting legislative body.” BBCB, LLC, 201 S.W.3d at 527 (citation omitted).

It is illogical to argue that City Code Section 78-10 does not apply to the operation of Torch's business. As explained above and in Torch's business license applications over the years, Torch is in the business of placing and maintaining coin-operated amusement machines in various locations. At the conclusion of the game, the user receives a ticket redeemable for cash. Section 78-10(a) prohibits maintaining or offering for use “any entertainment device that offers a monetary prize[.]” An “entertainment device” is defined as “any device which operates for the entertainment or amusement of the operator[.]” City Code § 78-10(b). The definition of “monetary prize” includes tickets redeemable for cash. Id. § 78-10(c). These Section 78-10 provisions bear specifically on the activity at the heart of Torch's business operations. It is clear Section 78-10 applies to Torch. See City of Skidmore v. Stanton, 668 S.W.3d 277, 283 (Mo. App. W.D. 2023) (“Our ‘primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.’ ” (citation omitted)). Nor can we say otherwise simply because Torch is an entity and not a natural person.

Generally, the term “person” applies to corporate entities. See RSMo § 1.020(12), (“The word ‘person’ may extend and be applied to bodies politic and corporate, and to partnerships and other unincorporated associations[.]”). While such an application is permissive,⁹ we see no reason why Torch as an entity should not be included in the definition of person, and Torch has provided us with none.¹⁰ The very provision requiring Torch to obtain a business license provides that “No person shall engage in any occupation named in this article without obtaining a license therefor.” City Code § 70-34. (emphasis added). City Code Section 70-50 (which Torch relies on as discussed infra) generally pertains to the suspension, revocation, or denial of a license to “any person” who is found guilty or civilly liable for the commission of certain proscribed activities. Notably, Torch does not contend that these references to “person” do not apply to Torch as an entity.

Next, Torch argues that a different result may occur had Torch actually been tried and convicted of violating Section 78-10 in a municipal court. It relies on City Code Section 70-50, which provides for license discipline after a licensee is convicted or found civilly liable for certain proscribed activities in court. Torch believes that without such a finding in court, denial of a business license is not proper. Here, however, Section 70-50 is irrelevant. First, the list of proscribed activities generally includes fraud, unfair trade practices, and similar activities prohibited by state law. Id. § 70-50(a). None of those are implicated here. Second, the City never relied on Section 70-50 in declining to renew Torch's license, it relied on Section 70-51. These sections are distinct and do not purport to limit one another.

Finally, Torch contends the City cannot rely on City Code Section 70-51's “reason to believe standard” because such standard applies only to the “issuance” of a business license, and here Torch has applied for a renewal of its license. See City Code § 70-51(a) (“The [D]irector shall not issue a business license when the [D]irector has reason to believe that the issuance of the license will result in the operation of the business in violation of [the City Code] ․” (emphasis added)).¹¹ This argument is without merit. There is no support for the proposition that the quoted portion of Section 70-51 only applies to licensure in the first instance. Torch reads the word “issuance” to apply only to a business's initial application for a license. However, a license, whether initially issued or issued on renewal, is still simply issued. In Springfield, business licenses are issued for a term of one year. City Code § 70-37 (“All occupational licenses shall be for one year, beginning January 1 and ending December 31, unless otherwise provided for in this article.”). Each year, businesses must apply for a renewal of their license and, if appropriate, the City will issue a license to operate for that year. Torch has not directed us to any other portion of the City Code where it is logical to read “issuance” to apply only to a new business's initial application for a license, and neither do we find any such support.

Further, Torch contends the City has been inconsistent with its application of the reason to believe standard. It notes that while on appeal the City takes the position it denied Torch a business license because it had reason to believe a violation of Section 78-10 would occur, in the proceedings below the City argued Torch affirmatively did violate Section 78-10. This distinction is inapposite as under Section 70-51, the City also could have denied Torch's business license based on a finding that Torch did violate Section 78-10. See id. § 70-51(a) (“Any person who operates a business licensed pursuant to this chapter in violation of any provision of [the City Code] that applies to the operation of the business ․ shall be subject to having the business license revoked or not renewed ․”) (emphasis added). As explained in Points I and II, it is not unlawful or unconstitutional to deny Torch a business license because the City believed Torch was operating a business that violated Section 78-10. Point III is denied.

Point IV

In Point IV, Torch argues City Code Section 78-10 is expressly preempted by Section 572.100, RSMo and thus cannot serve as a lawful basis for declining to renew Torch's business license. As a preliminary matter, the parties dispute whether Torch's claim is preserved for our review. The City argues Torch waived its preemption argument by failing to raise it before the hearing officer. Torch counters that it was not required to raise preemption at the administrative level because administrative agencies do not have the authority to adjudicate constitutional challenges. We agree with Torch.

“The principles of preemption arise from [A]rticle VI, [S]ection 19(a), granting charter cities power to enact laws ‘provided such powers are not limited or denied ․ by statute.’ ” Coop. Home Care, Inc. v. City of St. Louis, 514 S.W.3d 571, 578 n.4 (Mo. banc 2017) (quoting Art. VI, § 19(a)). “A constitutional challenge must be raised at the earliest possible stage or it is waived.” Tadrus v. Mo. Bd. of Pharmacy, 849 S.W.2d 222, 225 (Mo. App. W.D. 1993) (citing City of St. Louis v. Butler Co., 219 S.W.2d 372, 378 (Mo. banc 1949)). “The critical question in determining whether waiver occurs is whether the party affected had a reasonable opportunity to raise the unconstitutional act or statute by timely asserting the claim before a court of law.” Damon v. City of Kan. City, 419 S.W.3d 162, 178 (Mo. App. W.D. 2013) (quoting State ex rel. York v. Daugherty, 969 S.W.2d 223, 225 (Mo. banc 1998)).

Here, Torch was not required to raise its preemption claim before the hearing officer because the hearing officer was not a court of law and had no authority to determine if the ordinance was preempted and thus invalid. See President Riverboat Casino-Missouri, Inc. v. Mo. Gaming Comm'n, 142 S.W.3d 747, 750-51 (Mo. App. W.D. 2004) (“The Commission had no authority to determine the validity of the ordinance. The declaration of the validity of a law is ‘purely a judicial function’ reserved for the courts under Article V, Section 1 of the Missouri Constitution.” (quoting State Tax Comm'n v. Admin. Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982))). The hearing officer could only “presume the ordinance was valid and enforceable in the absence of contrary court ruling.” Id. at 751. “It would present an unnecessary burden on [Torch] as well as the administrative and court systems involved to require [Torch] to raise claims in front of the [hearing officer] where the [City], as an administrative entity, has no authority to resolve them.” Duffner v. City of St. Peters, 482 S.W.3d 811, 821 (Mo. App. E.D. 2016) (citation omitted); see also Accident Fund Ins. Co. v. Casey, 536 S.W.3d 360, 365 (Mo. App. W.D. 2017) (holding that, in the analogous context of a state statute rather than a local ordinance, “We see no logical reason to require that a constitutional challenge to the validity of a statute be raised before an administrative body in order to preserve the issue for appellate review.” (quoting Duncan v. Mo. Bd. for Architects, Pro. Eng'rs & Land Surveyors, 744 S.W.2d 524, 531 (Mo. App. E.D. 1988))). Torch raised its preemption argument at the earliest opportunity it had to do so before a court of law—in its petition for judicial review. See TGB, Inc. v. City of St. Louis Bd. of Bldg. Appeals, 154 S.W.3d 353, 355 (Mo. App. E.D. 2004) (holding that a challenge to the constitutionality of an ordinance was preserved because it was asserted in appellants’ petition for review to the trial court); Fitzgerald v. City of Md. Heights, 796 S.W.2d 52, 58 (Mo. App. E.D. 1990) (noting, in the context of judicial review of an administrative decision, that an appellant's “first meaningful opportunity to challenge the constitutionality” of a state statute was in his petition for judicial review). Thus, Torch's claim that City Code Section 78-10 is preempted by state law is preserved for our review.

“If there is an issue regarding the constitutional validity of an ordinance, which the [agency] does not review, we review the decision of the [trial] court on the constitutional issue, and our standard of review is the same as in any other court-tried case.” New Life Evangelistic Ctr., 564 S.W.3d at 675 n.6 (internal quotations and citation omitted). “An ordinance's constitutional and statutory validity are questions of law that we review de novo.” Id. at 675 (citing Coop. Home Care, Inc., 514 S.W.3d at 578) (further citation omitted); see RSMo § 536.140.3. “[O]rdinances are presumed to be valid and lawful. The party challenging the validity of the ordinance carries the burden of proving the municipality exceeded its constitutional or statutory authority.” Zang v. City of St. Charles, 659 S.W.3d 327, 331 (Mo. banc 2023) (quoting Coop. Home Care, Inc., 514 S.W.3d at 578).

“Preemption may be either express or implied.” Id. at 332 (citing Coop. Home Care, Inc., 514 S.W.3d at 579). “Express preemption occurs when the legislature ‘explicitly proscribed local regulation in a specific area.’ ” Id. (quoting Coop. Home Care, Inc., 514 S.W.3d at 579). Implied preemption can occur in two ways: “(1) the local ordinance permits what the state statute prohibits or prohibits what the statute permits, i.e., conflict preemption; or (2) the General Assembly creates a regulatory scheme so comprehensive that it reasonably can be inferred the General Assembly intended to occupy the entire legislative field, i.e., field preemption.” Roth v. City of St. Louis, 737 S.W.3d 847, 854-55 (Mo. App. E.D. 2026) (citing Zang, 659 S.W.3d at 332).

Torch's preemption argument is based on Section 572.100, RSMo, which provides in relevant part:

The general assembly by enacting this chapter intends to preempt any other regulation of the area covered by this chapter. No governmental subdivision or agency may enact or enforce a law that regulates or makes any conduct in the area covered by this chapter an offense, or the subject of a criminal or civil penalty or sanction of any kind.

Section 572.100 is an express preemption statute as it unambiguously states the legislature's intent to “preempt any other regulation of the area covered by this chapter.” Thus, we must determine the scope of “the area covered by this chapter.”

Chapter 572, is titled “Gambling” and “deals with the subject of gambling as a crime.” State ex rel. Glendinning Cos. of Conn., Inc. v. Letz, 591 S.W.2d 92, 96 (Mo. App. W.D. 1979). A person participates in the act of “gambling” when they “stake[ ] or risk[ ] something of value upon the outcome of a contest of chance or a future contingent event not under his or her control or influence, upon an agreement or understanding that he or she will receive something of value in the event of a certain outcome.” Torch Elecs., LLC v. Mo. Dep't of Pub. Safety, 694 S.W.3d 548, 553 (Mo. App. W.D. 2024) (quoting § 572.010(4)). “Contest of chance” is in turn defined as “any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that the skill of the contestants may also be a factor therein[.]” § 572.010(3). A “gambling device” itself can be generally defined to include devices usable in gambling. Thole v. Westfall, 682 S.W.2d 33, 36 (Mo. App. E.D. 1984) (citing § 572.010(5)). “Thus, the statutory definitions show that gambling includes playing games wherein 1) players stake or risk something of value, 2) chance is a material factor and 3) successful play is rewarded by something of value.” Veterans of Foreign Wars Post 6477 v. Mo. Gaming Comm'n, 260 S.W.3d 388, 391 (Mo. App. W.D. 2008) (internal quotations omitted) (quoting Thole, 682 S.W.2d at 36-37). Determining whether an activity constitutes gambling is a fact intensive inquiry. See e.g. id. at 391-92 (summarizing an abundance of evidence related to the operation of the machine at issue); Thole, 682 S.W.2d at 37 (detailing the facts of a particular game to determine whether it features all of the gambling elements); Chandler v. Hemeyer, 49 S.W.3d 786, 793 (Mo. App. W.D. 2001) (similarly applying the features of illegal gambling devices to the machine at issue). It is possible that some games would fall outside the definition of gambling and thus not be encompassed within Chapter 572. For example, games that award prizes based on skill or on an available, fixed outcome—if they truly lack the element of chance—are not gambling devices as defined by Section 572.010. See Thole, 682 S.W.2d at 37 n.8 (“In Missouri, chance must be a material element in determining the outcome of a gambling game. It need not be the dominant element.”). Indeed, Torch itself markets its devices as “No Chance Games” which set forth a predetermined outcome before a player participates in the game for exactly this reason.¹²

The parties invite us to participate in a debate on whether “gambling” and “gaming” are synonymous and if not, what the difference in the two terms might be. We decline to do so. It is sufficient to recognize that some devices fall outside the area covered by Chapter 572 and thus may be subject to local regulation. That is exactly what the City has done. City Code Section 78-10 prohibits entertainment devices that offer monetary prizes. Section 78-10(b) provides that the regulated entertainment devices do not include “any gambling device which is prohibited by state law or any device which is necessary to participate in any [state licensed gaming] activity[.]” City Code Section 78-10 thus does not cover any activity falling under Chapter 572 and is not preempted. Point IV is denied.

Conclusion

The trial court's judgment affirming the administrative decision of the City of Springfield is affirmed.

FOOTNOTES

1.   City Code Section 78-10(a) provides, “No person shall maintain or offer for use by any person any entertainment device that offers a monetary prize to any person regardless of the frequency with which a monetary prize is conferred or the odds of any individual user realizing a monetary prize.” Under Section 78-10(d) the penalties for violating subsection (a) include “a fine of not more than $1,000.00 or ․ imprisonment in jail for a period not exceeding 180 days, or both such fine and imprisonment.”

2.   City Code Section 70-51(b) provides:Procedure for denial or nonrenewal. If the director determines that the application for a license is not to be granted or if he determines not to renew the license, then the notice to the person requesting the license or renewal thereof shall give the applicant at least five days’ notice to request an informal meeting with the director. The director shall, if a hearing is requested within that time, hold an informal meeting with the applicant, informing the applicant of the basis upon which the decision was made, and shall attempt to informally resolve the matter. After such informal meeting, the director may reverse his decision or may reaffirm his decision in writing. Thereafter, the applicant may request a public hearing by filing a written request with the director within 15 days of the date of the director's decision. At the public hearing, a hearing officer appointed by the city manager shall hear evidence, determine the facts upon the evidence presented at the hearing, and render a decision.

3.   City Code Section 70-51(a) provides in pertinent part:Grounds for revocation, denial or nonrenewal. All business licenses issued pursuant to this chapter shall be issued by the [Director] upon the condition that the licensee complies with this section. No licensee shall ․ operate the business in violation of any provision of [the City Code] that applies to the operation of that business. Any person who operates a business licensed pursuant to this chapter in violation of any provision of [the City Code] that applies to the operation of the business ․ shall be subject to having the business license revoked or not renewed by the [D]irector in accordance with procedures set forth in this chapter. The [D]irector shall not issue a business license when the [D]irector has reason to believe that the issuance of the license will result in the operation of the business in violation of [the City Code]

4.   “Missouri caselaw clearly holds that, unlike state statutes, ‘[c]ourts may not take judicial notice of municipal ordinances; instead such ordinances must be admitted in evidence or stipulated by the parties.’ ” Stanton v. City of Skidmore, 620 S.W.3d 245, 254 (Mo. App. W.D. 2021) (collecting cases); accord Weatherby Lake Improvement Co. v. City of Weatherby Lake Bd. of Zoning Adjustment, 696 S.W.3d 499, 503 (Mo. App. W.D. 2024); Quiktrip Corp. v. City of St. Charles, 732 S.W.3d 482, 487 n.3 (Mo. App. E.D. 2026).

5.   All statutory references are to RSMo (2016), as updated through the 2024 Cumulative Supplement, unless otherwise indicated.

6.   “Article I, section 19 of the Missouri Constitution dictates that the courts shall take judicial notice of city charters.” St. Louis Ass'n of Realtors v. City of Ferguson, 499 S.W.3d 395, 399 n.6 (Mo. App. E.D. 2016).

7.   Municipal courts are divisions of circuit courts. City of Moline Acres v. Brennan, 470 S.W.3d 367, 381 n.16 (Mo. banc 2015) (“Effective January 2, 1979, municipal courts became divisions of circuit courts.” (citing Mo. Const. art. V, § 27(d))).

8.   In their respective appellate briefs, the parties dispute the applicability of Section 479.011, RSMo. Section 479.011 allows certain cities to “establish, by order or ordinance, an administrative system for adjudicating housing, property maintenance, nuisance, parking, and other civil, nonmoving municipal code violations consistent with applicable state law.” Torch asserts the legislature has permitted cities to administratively determine only these types of ordinance violations, and Section 479.011, RSMo does not allow the City to administratively adjudicate alleged violations of City Code Section 78-10 because Section 78-10 is a criminal ordinance, not a “civil, nonmoving municipal code[.]” The City counters that it is not attempting to criminally prosecute Torch but rather is acting through its licensing mechanisms. Regardless, the City argues that the conduct at issue here is a civil matter because it deals with the maintenance of commercial devices on business premises in the licensing context, notwithstanding the potential for criminal enforcement. Because, as explained in our analysis of Points I and II, the City did not adjudicate a municipal code violation, Section 479.011, RSMo is not implicated. The City did not establish an administrative system for adjudicating City Code Section 78-10. It simply made a licensing decision. Thus, we need not consider Torch's argument that City Code Section 78-10 is a criminal ordinance falling outside the realm of Section 479.011, RSMo.

9.   Doe v. Meritas Health Corp., 732 S.W.3d 207, 232 (Mo. App. W.D. 2026) (“Courts have read the word ‘may’ in § 1.020(12) ‘as permissive’ rather than mandatory, and emphasized that ‘[c]onstruction of the word “person” to include “corporation” is not required.’ ” (quoting Mark Twain Cape Girardeau Bank v. State Banking Bd., 528 S.W.2d 443, 446 (Mo. App. 1975))).

10.   The City suggests that the City Code contains a similar definition of “person” which includes entities. Such a definition is not provided in our legal file; thus, we may not review it. See supra note 4.

11.   We note this is the only challenge raised in Torch's appellate brief related to the City's use of the reason to believe standard. Additional arguments raised in its reply brief are not considered. Kohn v. Mo. Dep't of Revenue, 565 S.W.3d 716, 719 n.4 (Mo. App. W.D. 2018) (“[W]e do not review an assignment of error made for the first time in the reply brief.” (citation omitted)).

12.   We express no opinion on the legality of Torch's devices under state or local law.

W. Douglas Thomson, Judge

All concur.