Malone v. City of Omaha
294 Neb. 516
| Neb. | 2016Background
- Omaha enacted Ordinance No. 39090 (Aug. 16, 2011) to require licensing of “contractors” (originally drafted as “general contractors”) after public hearings and several amendments narrowing certain exemptions.
- Malone sued, alleging the ordinance violated Omaha City Charter § 2.12 (notice/title requirements), was beyond the City’s authority (monopolistic and preempted by state law), and violated his constitutional right to conduct a lawful business.
- The district court granted summary judgment to the City on most claims and, after a bench trial on Malone’s remaining claim (injuries to business/property), ruled for the City; Malone appealed to the Nebraska Supreme Court.
- The Supreme Court reviewed de novo questions of ordinance interpretation, statutory preemption, and constitutional regulatory limits on business.
- The court affirmed, holding the City complied with charter notice requirements, had authority under state statutes and case law to license contractors, the ordinance was not preempted by state statutes at issue, and the regulation reasonably related to public health, safety, and welfare.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Charter § 2.12 notice/title change | Malone: changing title from “general contractor” to “contractor” after hearing required republication/recommencement of notice. | City: initial notice and hearing satisfied § 2.12; title change tracked substantive amendments and narrowed scope. | Held: No new notice required; change was stylistic and did not broaden scope. |
| City authority to license contractors | Malone: Charter/case law do not authorize city licensing of contractors; licensing unlawfully burdens business. | City: State statutes and charter grants (police power, building-code statutes) authorize local regulation and licensing. | Held: City has authority; precedent and statutes support local licensing tied to building/code regulation. |
| Preemption by state statutes | Malone: Building Construction Act, Contractor Registration Act, and Lead-Based Paint Act preempt local contractor licensing (field or conflict preemption). | City: No express preemption; statutes regulate related areas but do not occupy the field or conflict—state registration and local licensing can coexist; lead statutes exclude many renovation activities. | Held: No preemption; state laws do not fully occupy the field nor directly conflict with the ordinance. |
| Constitutional right to conduct business | Malone: Licensing unconnected to public safety and unreasonably restricts liberty to contract/business. | City: Regulation bears real and substantial relation to public health, safety, welfare (inspections, reduced reinspections, oversight). | Held: Ordinance is a valid police-power regulation reasonably related to public health, safety, and welfare. |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (Neb. 2009) (interpretation of municipal ordinance and charter provisions)
- Butler County Dairy v. Butler County, 285 Neb. 408 (Neb. 2013) (preemption analysis and legislative intent governs)
- State v. Wiggenjost, 130 Neb. 450 (Neb. 1936) (limits on municipal licensing where police power not implicated)
- Gray v. City of Omaha, 80 Neb. 526 (Neb. 1908) (municipal licensing found monopolistic or improper on facts)
- State v. Phillips, 133 Neb. 209 (Neb. 1937) (upholding municipal licensing where occupation affects public safety)
- Wolf v. City of Omaha, 177 Neb. 545 (Neb. 1964) (presumption that municipal legislatures act within police-power authority)
- Smith v. City of Papillion, 270 Neb. 607 (Neb. 2005) (standard that challenger bears burden to show ordinance exceeds authority)