MISSOURI CIRCUIT COURT

TWENTY-SECOND CIRCUIT
(City of St. Louis)

RAJA A. NAEEM,
Petitioner,
v.
METROPOLITAN TAXICAB COMMISSION,
Respondent.

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No. 1322-CC09365
consolidated with
No. 1422-CC00064
Div. 18

MEMORANDUM, ORDER AND JUDGMENT

. . . the circuit court's judgment -- and of course the petition
for review that began the circuit court process -- is of no particular
interest when the matter is appealed either to the court of appeals or
to this Court. * * * The circuit court's review is not completely
irrelevant . . .
Wolff, J., Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 520,
522 (Mo.banc 2008).

The revered Justice Holmes once wrote that everyone has a right
to talk politics, but not everyone has a right to be a police officer.
See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517
(1892).

The Metropolitan Taxicab Commission evidently subscribes to a

corollary to the Holmesian view, to wit, that everyone has a right to

practice his religion, but not everyone has a right to be a cab
driver.

These views are inconsistent with the plain text of the

Missouri Constitution as well as the modern application of the First

Amendment.

The Commission holds that the public health, safety and welfare
depend on whether taxicab drivers wear white shirts and black pants1
and so has imposed such a dress code on cab drivers as part of the
Commission's taxicab licensing regulations.

Mr. Naeem is a Muslim

whose religious practices entail wearing certain kinds of clothing.

Mr. Naeem believes (and there is no reason to doubt him) that his
religion requires that he wear certain clothing, including white
pants, when engaged in his daily activities, and so he refuses to
conform to the Commission's dress code.
yielded on everything but color:
pants, no matter what.

The Commission apparently has

it wants white shirts and black

Hence, the Commission has attempted to

penalize Mr. Naeem's white pants (and also tan or green ensembles) by
fining him and revoking his taxicab driver's license.2
At the outset, the Court is confronted with the Commission's
jurisdictional argument that Mr. Naeem has "forfeited" his right to
assert his constitutional free exercise claims by failure to exhaust
his administrative remedies.

It is undisputed that Mr. Naeem applied

for an exception to the dress code on account of religion.

It is also

undisputed that the Commission's director determined (based on an

independent investigation of the requirements of Mr. Naeem's religion)
that he would be allowed to wear religious garb, but subject to the
Commission's color scheme.

Finally, it is undisputed that Mr. Naeem

Except that the Commission allows cab companies to require their employees
to wear different kinds of uniforms, and sometimes cab drivers can wear garb
representing St. Louis professional sports teams.
2
The Court was required to remand the matter to the Commission for proper
entry of a final decision. 536.090, RSMo. The parties adduced additional
evidence, but the decision to revoke Mr. Naeem's license was unchanged, save
that the Commission itself complied with the law and adopted the decision of
its hearing officer.

never sought further accommodation or appealed the director's decision

to the Commission in the matter of color scheme.

The rules of the

Commission clearly provide (consistent with the decree in United

C.O.D.) that a taxicab licensee may seek relief from the dress code
and that any objection to accommodation proffered by the director can
be appealed to the Commission.
Generally speaking, a party cannot seek judicial review of an
administrative action absent exhaustion of available administrative
remedies.

The Commission argues that Mr. Naeem's failure to seek

further accommodation of his clothing needs and failure to seek

Commission review of the director's proposed accommodation bars review
of the penalties subsequently imposed on him.

The Court is not

persuaded.
First, the Commission mistakenly relies on cases arising in the
context of federal and state employment discrimination laws as
determinative of the free exercise issue in this case.

Employment

discrimination laws forbid discrimination against an employee on the

basis of religion when the employee's religious needs can be
accommodated by the employer without undue hardship.

An employer can

be liable even if the employee does not expressly inform the employer
of the need for accommodation.

See, e.g., EEOC v. Abercrombie & Fitch

Stores, Inc., ___ U.S. ___ (2015).

The constitutional question

presented here is whether the Commission can punish Mr. Naeem for
refusing to comply with the dress code on religious grounds.

Mr.

Naeem's failure to request further accommodation can hardly amount to

a forfeiture of his constitutional right to free exercise as against a

governmental licensing agency.
Second, on this record the exhaustion issue is a false issue.
Until the Commission took some adverse action against Mr. Naeem, the
sufficiency or insufficiency of the director's accommodation could not
be the subject of judicial review, notwithstanding Mr. Naeem's ability
to seek review of the director's accommodation by the Commission
itself.

This is so because the matter of accommodation did not rise

to the level of a contested case or present a ripe and justiciable

controversy absent some concrete adverse action by the Commission as
licensing authority.

See Strozewski v. City of Springfield, 875

S.W.2d 905 (Mo.banc 1994); see generally A. Neely, 20A Missouri

Practice:

Administrative Practice & Procedure 13:4 (2006).

Mr.

Naeem's petition for review goes to the legality of the enforcement

actions taken by the Commission, and he was and is entitled to contest
the decision to revoke his license and impose financial sanctions
notwithstanding his failure to seek further accommodation.

The

accommodation issue is relevant only insofar as the accommodation

accorded him was sufficient to avoid infringement of his free exercise
rights.

In other words, if Mr. Naeem's free exercise of his religion

does not entitle him to wear white pants when driving his taxi, his
claim must fail, but not because he failed to ask the Commission to
let him wear white pants.

The Commission's decision is therefore

properly before the Court under 536.140, RSMo.

Mr. Naeem's first attack on the Commission decision is that the
Commission's dress code exceeds its statutory authority.
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The

Commission apparently construes this claim as a due process challenge,

and adverts to the "rational relationship" between the dress code and
the legitimate objectives of promoting driver cleanliness and
appearance and thereby enhancing the attractiveness of the
metropolitan area to visitors.

The Court is willing to assume that

the regulation bears a rational relationship to a legitimate

regulatory objective, but the Court views Mr. Naeem's claim as
asserting that the Commission simply has no power to impose a dress
code on licensees.
While both parties allude to United C.O.D. v. State, 150 S.W.3d
311 (Mo.banc 2004), neither party has filed with this Court the decree
entered in that case by this Circuit (Grady, J.).

The Supreme Court

noted on appeal in United C.O.D. that the trial court enjoined the
Commission "from applying the [taxicab] code's dress code provisions
to persons who certify that they are subject to a religious mandate
that prohibits or conflicts with full compliance."

150 S.W.3d at 312.

The Supreme Court then rejected various constitutional attacks on the

general taxicab code as promulgated by the Commission, but without
addressing any issue of the Commission's statutory authority to impose
a dress code in the first place.
Administrative agencies possess only those powers conferred or
necessarily implied by statute. The scope of power and duties for
public agencies is narrowly limited to those essential to accomplish
the principal purpose for which the agency was created.

Bd. of Ed. of

City of St. Louis v. State, 47 S.W.3d 366, 370 (Mo.banc 2001); see
generally A Neely, 20 Missouri Practice: Administrative Practice &
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Procedure 7:25, cases cited at n. 7.

In this case, the General

Assembly has created the Commission, declared its purpose, and

conferred authority on it as follows:
67.1804.
For the regional taxicab district, there is hereby
established a "Regional Taxicab Commission", which shall be a
body politic and corporate vested with all the powers expressly
granted to it herein and created for the public purposes of
recognizing taxicab service as a public transportation system,
improving the quality of the system, and exercising primary
authority over the provision of licensing, control and
regulations of taxicab services within the district.
67.1808. The regional taxicab commission is empowered to:
(1) Develop and implement plans, policies, and programs to
improve the quality of taxicab service within the district;
* * *
(4) Cooperate and collaborate with governmental entities whose
boundaries adjoin those of the district to assure that any
taxicab or taxicab company neither licensed by the commission nor
officed within its boundaries shall nonetheless be subject to
those aspects of the taxicab code applicable to taxicabs
operating within the district's boundaries;
* * *
(8) Adopt a taxicab code to license and regulate taxicab
companies and individual taxicabs within the district consistent
with existing ordinances, and to provide for the enforcement of
such code for the purpose of improving the quality of taxicab
service within the district . . .

Despite the "narrow" scope of administrative authority mentioned

above, it is also generally held that regulations promulgated under
statutory authority are to be sustained unless unreasonable and
plainly inconsistent with statute, and are not to be overturned except
for weighty reasons.

See Massage Therapy Training Inst., LLC v.

Missouri State Bd. of Therapeutic Massage, 65 S.W.3d 601 (Mo.App.S.D.

2002), citing Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193
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(Mo.banc 1972).

The Court questions the relationship between the

color of a taxicab driver's pants and the quality of taxicab service,

but the Court is not authorized to set policy in this realm.
Reasonable minds may differ as to what means may be employed to foster
a businesslike, professional appearance when serving the public as a
taxi driver.

The Court can annul the Commission's regulation only if

it is arbitrary or unauthorized by law.

To be sure, any dress code is

arbitrary in the sense that choices must be made without any

particular evidence to show which choice is better; but the real
question is not the choice of uniform colors, but the choice to compel
some sort of uniform as a condition of a taxicab license.

The

Commission's requirement of a black-and-white color scheme, as a

default uniform for taxicab drivers who are not otherwise subject to
an employer's dress code, is not a libertarian's dream, but neither is
it a matter on which this Court may substitute its discretion for that
of the Commission.

Consequently, the Court must hold that 504.B of

the Commission's taxicab code is within the Commission's statutory

authority.

This conclusion compels the Court to address Mr. Naeem's

constitutional claims.
The First Amendment bars infringement of the free exercise of
religion except for compelling reasons; the correlative Missouri
constitutional provision, Mo.Const. art. I, 5 is even broader.
Albeit many clauses are not pertinent to this case, the Court quotes
it in full as its provisions emphasize the importance accorded to
religious expression by Missouri voters:
That all men and women have a natural and indefeasible right to
worship Almighty God according to the dictates of their own
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consciences; that no human authority can control or interfere

with the rights of conscience; that no person shall, on account
of his or her religious persuasion or belief, be rendered
ineligible to any public office or trust or profit in this state,
be disqualified from testifying or serving as a juror, or be
molested in his or her person or estate; that to secure a
citizen's right to acknowledge Almighty God according to the
dictates of his or her own conscience, neither the state nor any
of its political subdivisions shall establish any official
religion, nor shall a citizen's right to pray or express his or
her religious beliefs be infringed; that the state shall not
coerce any person to participate in any prayer or other religious
activity, but shall ensure that any person shall have the right
to pray individually or corporately in a private or public
setting so long as such prayer does not result in disturbance of
the peace or disruption of a public meeting or assembly; that
citizens as well as elected officials and employees of the state
of Missouri and its political subdivisions shall have the right
to pray on government premises and public property so long as
such prayers abide within the same parameters placed upon any
other free speech under similar circumstances; that the General
Assembly and the governing bodies of political subdivisions may
extend to ministers, clergypersons, and other individuals the
privilege to offer invocations or other prayers at meetings or
sessions of the General Assembly or governing bodies; that
students may express their beliefs about religion in written and
oral assignments free from discrimination based on the religious
content of their work; that no student shall be compelled to
perform or participate in academic assignments or educational
presentations that violate his or her religious beliefs; that the
state shall ensure public school students their right to free
exercise of religious expression without interference, as long as
such prayer or other expression is private and voluntary, whether
individually or corporately, and in a manner that is not
disruptive and as long as such prayers or expressions abide
within the same parameters placed upon any other free speech
under similar circumstances; and, to emphasize the right to free
exercise of religious expression, that all free public schools
receiving state appropriations shall display, in a conspicuous
and legible manner, the text of the Bill of Rights of the
Constitution of the United States; but this section shall not be
construed to expand the rights of prisoners in state or local
custody beyond those afforded by the laws of the United States,
excuse acts of licentiousness, nor to justify practices
inconsistent with the good order, peace or safety of the state,
or with the rights of others.
In the Court's view, wearing white pants while driving a cab is
not an act of licentiousness nor is it inconsistent with the good

order, peace or safety of the state.

wearing a fez in a courtroom.

Rather, it is analogous to

In that context, Judge Simeone opined:

. . . under the free exercise clauses of the United States and

Missouri constitutions, every person is guaranteed the privilege
of freely exercising that religion, . . . a person claiming an
infringement of the right to free exercise of religion, has the
burden initially to show that there is a "religion" within the
constitutional meaning of religion; that the conduct infringed is
truly "religious" in nature, and while it is inappropriate to
question the verity of a religious belief, the sincerity of the
religious belief may be examined. To determine these questions of
whether there is a religion in the constitutional sense, that the
conduct is truly religious and the sincerity of the religious
belief, a person claiming the free exercise of religion is
entitled to a threshold hearing to offer testimony and evidence
thereon. Cf., United States v. Seeger, 380 U.S. 163, 85 S. Ct.
850, 13 L. Ed. 2d 733 (1965); Intern. Soc. for Krishna, Etc. v.
Barber, 650 F.2d 430 (2nd Cir. 1981); Lyng v. Northwest Indian
Cemetery Protective Assn., 485 U.S. 439, 56 L.W. 4292, 99 L. Ed.
2d 534, 108 S. Ct. 1319 (1988), . . . and . . . if a person
claiming free exercise of religion is given a reasonably full
opportunity to develop and prove, or if judicial notice may be
taken, that the religion is truly a religion within the meaning
of constitutional principles, and the act or conduct . . . is an
essential tenet or essential part of that religion, then the
state bears a heavy burden to establish that the state's interest
in maintaining dignity and decorum would override the interest of
the free exercise of religion which would threaten public peace,
order and safety. . . . [State ex rel. Burrell-El v. Autrey, 752
S.W.2d 895, 901 (Mo.App.E.D. 1988).]
Applying the foregoing principles to the case at bar, it is
evident that the Commission's position is untenable.

Mr. Naeem's

religion is well recognized and the sincerity of his beliefs is not in

question.

Neither the Commission nor the Court has the authority to

question the verity of those beliefs--and, indeed, the Commission made

no findings calling into question either Mr. Naeem's sincerity or the
relationship between his religion and his attire.

Whether attire is

an "essential" part of Mr. Naeem's religion is a closer question; but,

on reflection, the Court concludes that Judge Simeone's observation,
quoted above, means that a fact finder can determine if a contested
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practice in fact has a relationship to a person's religion, not that

the contested practice is doctrinally or theologically sound.

Hence,

the opinion of a clergyman that Mr. Naeem's beliefs regarding attire

are mistaken is immaterial; likewise immaterial is the well-meaning
effort of the Commission's director to "accommodate" Mr. Naeem's
religious practices by conducting his own investigation into what
clothing standards are consistent with Muslim practice.

It is

sufficient that the record shows that the Muslim religion does in fact
entail prescriptions about attire.

There can and should be no further

inquiry on that score.

The Commission has wholly failed to establish any compelling
interest at stake here that would override Mr. Naeem's right to free
exercise of religion.

The licensing process ensures criminal

background checks, sufficient insurance, and necessary qualifications

to drive.

No interest other than esthetics is served by the uniform

code.
It can be argued that the dress code is a generally applicable
regulation having no purpose to promote or impair the exercise of
religion, and so is not limited by the First Amendment.

See

Employment Division, Dept. of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990).

Even under the reasoning of Smith, however, the

regulation must fail.

Wearing particular clothing as part of the

practice of one's religion also implicates the First Amendment

guaranty of freedom of speech.

When both speech and religion are

affected by a regulation, there must be a compelling justification.

See Smith, 494 U.S. at 881-82.
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But the First Amendment is not the only consideration here.

As

adumbrated above, the Missouri Constitution embraces a much broader

and more detailed prohibition on state interference with the free
exercise of religion.

Under Mo.Const. art I, 5, "no person shall, on

account of his or her religious persuasion or belief . . . be molested

in his or her person or estate" and, further, "that to secure a
citizen's right to acknowledge Almighty God according to the dictates
of his or her own conscience, neither the state nor any of its
political subdivisions shall establish any official religion, nor
shall a citizen's right to pray or express his or her religious
beliefs be infringed."
In the case at bar, Mr. Naeem's right to express his religious
beliefs by his mode of dress is directly infringed by the Commission's
dress code.

The Missouri Constitution clearly prohibits such

infringement.

Further commentary would be superfluous.

Petitioner also attacks the authority of respondent Commission to

assess fines against him, citing Mo.Const. art. I, 31.

While the

bulk of the citations against Mr. Naeem do not survive the Court's
determination of the religious freedom issue, one citation involved a
failure to display a license--a rule violation that Mr. Naeem does not
contend is privileged by religious freedom.

Thus, the Court must turn

to the issue of the Commission's authority to impose "administrative

penalties" on Mr. Naeem for violations of its regulations.
Section 67.1818, RSMo, expressly authorizes the Commission to
"establish as part of the taxicab code its own internal,
administrative procedure for decisions involving the granting,
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denying, suspending, or revoking of licenses, or the imposition of

administrative penalties not to exceed two hundred dollars . . ."

The

Commission has adopted such "administrative penalties" and has

inflicted them on Mr. Naeem in an aggregate sum exceeding $1,000.
There is nothing in the record to show that the purpose of such
penalties is anything other than to punish licensees who violate
Commission regulations, although the receipt of such penalties is a
significant part of the Commission's revenue.
Article I, 31 of the Missouri Constitution was first adopted in
1945, at the same time as an earlier version of art. V, 18, governing
judicial review of administrative decisions.
provides:

Section 31 expressly

"That no law shall delegate to any commission, bureau,

board or other administrative agency authority to make any rule fixing

a fine or imprisonment for its violation."
language is plain and unambiguous:

To this Court, the

an agency cannot impose a fine for

violation of an agency's rule unless there is explicit statutory

authority to do so.
There can be little doubt that the "administrative penalties"
inflicted on Mr. Naeem are "fines" within the meaning of 31.

See

State v. Spilton, 315 S.W.3d 350, 358 n. 10 (Mo.banc 2010)("The term

'fine' denotes 'payment extracted by the government and payable to the
government.'"); see also Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 109 S.Ct. 2909 (1989)(discussing meaning of "fines"
and noting the relationship between fines and "amercements").
However, the authority of the Commission to impose fines is not
derived from the Commission's rules, but from the express terms of
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67.1818, which authorizes the Commission to impose "administrative

penalties" of up to $200.
Mo.Const. art. I, 31 has been construed by the Supreme Court on
only one occasion, in McDermott v. Nations, 580 S.W.2d 249 (Mo.banc),
cert. denied, 444 U.S. 901 (1979).

The Court construed 31 in light

of the debates at the Missouri Constitutional Convention and concluded

that disciplining a public employee by docking his wages or denying
compensatory time off did not contravene the constitutional provision.
The penalties imposed on Mr. Naeem are not analogous to such
sanctions; rather, they are involuntary exactions payable to the
government.

See Convention Debates, April 17-18, 1944, at p. 1779

(remarks of Delegate Marr) ("The term 'fine' . . . means the

assessment of money, the payment of money, for the failure to comply .
. .").
That the penalties visited upon Mr. Naeem are fines within the
meaning of 31 does not end the inquiry, however.

The original

version of 31 debated at the 1944 Constitutional Convention expressly

denied any administrative agency "the power to . . . impose any fine
or imprisonment."
1774.

See Convention Debates, April 17-18, 1944, at p.

This language was amended to substitute the current language.

Although the Constitutional Convention debates reflect that the

delegates were concerned (and rightly so) with the burgeoning power of
administrative agencies, Debates, supra at p. 1781 (remarks of
Delegate Phillips), see also 1 K. Davis, Administrative Law Treatise
2.13 (1958), the language of 31 as adopted by the voters simply does
not forbid imposition of fines by agencies.
13

It forbids the General

Assembly to delegate to agencies the power to prescribe fines as an

original proposition.

In 67.1818 the General Assembly has not done

so; it has authorized the Commission to impose fines of up to $200.

(Whether the imposition of such fines by executive decree without
trial by jury is constitutional is another question, not raised on the
record here.)
Under the Missouri Administrative Procedure Act, this Court is
authorized to review administrative decisions to determine if they are
in violation of a constitutional provision or are otherwise
unauthorized by law.

536.140.1, RSMo.

The factual findings of the

Commission, evinced by the decision of its hearing officer as approved

by the Commission, are not contested.

As a matter of law, the

Commission's decision is in error as to all penalties imposed on the

basis of Mr. Naeem's violation of the dress code.

Accordingly, the

Court may render judgment reversing the agency's order, and may order
the agency to take such further action as it may be proper to require.
536.140.5.
ORDER AND JUDGMENT
For the foregoing reasons, it is
ORDERED, ADJUDGED AND DECREED that the decision of the
Metropolitan Taxicab Commission dated January 28, 2015, in the matter
of Raja Naeem v. Metropolitan Taxicab Commission be and the same is
hereby reversed in part as follows: the revocation of petitioner
Naeem's taxicab driver's license is reversed and set aside, and the
fines levied against petitioner Naeem by orders of the Director in
reference to ticket numbers 5328, 4340, 4342, 4346, 4382, 6313, 4777,
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5427, 4778, 4781 and 5391 are reversed and set aside; and it is
declared that Commission Regulation 504.B.1 and .2 is invalid as
applied to petitioner Naeem; and it is
FURTHER ORDERED, ADJUDGED AND DECREED that the decision of the
Metropolitan Taxicab Commission as aforesaid be and the same is hereby
affirmed as to ticket number 4339 and the imposition of administrative
penalties of $200 and 3 points; costs herein taxed against respondent
Commission.

SO ORDERED:

_________________________
Robert H. Dierker
Circuit Judge

Dated: June 22, 2015

cc: Counsel/parties pro se

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