St. Charles County, MO
 
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Table of Contents
Table of Contents
Editor’s Note: In this Chapter the word "Sheriff" is changed to "Chief of Police" pursuant to the St. Charles County Charter Article IV, Sections 4.250 and 4.1300, as amended in 2012 and effective 1-1-2015, and St. Charles County Ord. No. 15-012, Section 2, adopted 1-26-2015.
[Ord. No. 09-035 §1, 4-1-2009]
As used in this Chapter, the following terms shall have these prescribed meanings:
BUSINESS ENTITY
Any person or group of persons performing or engaging in any activity, enterprise, profession or occupation for gain, benefit, advantage or livelihood. The term "business entity" shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors and subcontractors. The term "business entity" shall include any business entity that possesses a business permit, license or tax certificate issued by the County, any business entity that is exempt by law from obtaining such a business permit and any business entity that is operating unlawfully in the County without such a business permit. The term "business entity" shall not include a self-employed individual with no employees or entities utilizing the services of direct sellers as defined in Subdivision (17) of Subsection 12 of Section 288.034, RSMo.
CONTRACTOR
A person, employer or business entity that enters into an agreement to perform any service or work to be provided in the unincorporated area of the County or to provide, within the unincorporated area of St. Charles County, a certain product to a person or business entity in exchange for valuable consideration. This definition shall include, but not be limited to, a general contractor, subcontractor, independent contractor, contract employee, project manager or a recruiting or staffing entity.
EMPLOYEE
Any person performing work or service of any kind or character for hire within the unincorporated area of the County of St. Charles.
EMPLOYER
Any person or entity employing any person for hire within the unincorporated area of the County of St. Charles, including a public employer. Where there are two (2) or more putative employers, any person or entity taking a business tax deduction for the employee in question shall be considered an employer of that person for purposes of Sections 622.525 to 622.550.
EMPLOYMENT
The act of employing or state of being employed, engaged or hired to perform work or service of any kind or character within the unincorporated area of the County of St. Charles.
FEDERAL WORK AUTHORIZATION PROGRAM
Any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or an equivalent Federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, under the Immigration Reform and Control Act of 1986 (IRCA), P.L.99-603.
KNOWINGLY
A person acts knowingly or with knowledge:
1. 
With respect to the person's conduct or to attendant circumstances when the person is aware of the nature of the person's conduct or that those circumstances exist; or
2. 
With respect to a result of the person's conduct when the person is aware that the person's conduct is practically certain to cause that result.
POLITICAL SUBDIVISION
Any agency or unit of this State which now is, or hereafter shall be, authorized to levy taxes or empowered to cause taxes to be levied.
PUBLIC EMPLOYER
Every department, agency or instrumentality of the State or political subdivision of the State.
UNAUTHORIZED ALIEN
An alien who does not have the legal right or authorization under Federal law to work in the United States, as defined in 8 U.S.C. 1324a(h)(3).
WORK
Any job, task, employment, labor, personal services or any other activity for which compensation is provided, expected or due, including, but not limited to, all activities conducted by business entities.
[Ord. No. 09-035 §1, 4-1-2009]
A. 
No business entity or employer shall knowingly employ, hire for employment or continue to employ an unauthorized alien to perform work within the unincorporated area of the County of St. Charles.
B. 
As condition for the award of any contract or grant in excess of five thousand dollars ($5,000.00) by the County of St. Charles to a business entity, the business entity shall, by sworn affidavit and provision of documentation, affirm its enrollment and participation in a Federal work authorization program with respect to the employees working in connection with the contracted services. Every such business entity shall also sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized alien in connection with the contracted services.
C. 
St. Charles County, which enrolled in the Federal work authorization program in 2007, shall continue its participation so long as a Federal work authorization program is in operation.
D. 
An employer may enroll and participate in a Federal work authorization program and shall verify the employment eligibility of every employee in the employer's hire whose employment commences after the employer enrolls in a Federal work authorization program. The employer shall retain a copy of the dated verification report received from the Federal Government. Any business entity that participates in such program shall have an affirmative defense that such business entity has not violated Subsection (A) of this Section.
E. 
A general contractor or subcontractor of any tier shall not be liable under Sections 622.525 to 622.550 when such general contractor or subcontractor contracts with its direct subcontractor who violates Subsection (A) of this Section, if the contract binding the contractor and subcontractor affirmatively states that the direct subcontractor is not knowingly in violation of Subsection (A) of this Section and shall not henceforth be in such violation and the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor's employees are lawfully present in the United States.
[Ord. No. 09-035 §1, 4-1-2009]
A. 
The Department of Community Development shall enforce the requirements of Sections 622.525 to 622.550. The County Counselor shall prosecute violations of this Chapter.
B. 
The Department of Community Development shall provide a statement explaining the provisions of this Chapter with every permit issued, and any County department issuing licenses shall likewise provide such statement.
C. 
An enforcement action shall be initiated by means of a written, signed complaint under penalty of perjury as defined in Section 575.040, RSMo., to the Director of Community Development submitted by any County, municipal or other official of a political subdivision within St. Charles County, any business entity with its principal place of business within the County or a County resident. A valid complaint shall include an allegation which describes the alleged violator as well as the actions constituting the violation and the date and location where such actions occurred. A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity or race shall be deemed invalid and shall not be investigated.
D. 
Upon Receipt Of Valid Complaint—Director Of Community Development's Responsibilities.
1. 
Upon receipt of a valid complaint, the Director of Community Development shall, within two (2) business days, provide such information to the Attorney General of the State of Missouri and inquire as to whether the Attorney General is accepting the complaint for investigation. If the Attorney General accepts the investigation, the Director of the Department of Community Development shall turn the matter over to the Attorney General with a written request that the Attorney General provide a summary of the disposition of the matter. If the Attorney General does not accept the matter or if the Attorney General does not respond within three (3) business days, then within five (5) business days the Director of Community Development shall request identity information from the business entity regarding any persons alleged to be unauthorized aliens. Such request shall be made by certified mail. In addition, the Director of Community Development, subject to the approval of the Director of Administration, may promulgate rules pursuant to which building inspectors may be used to verify information obtained in the course of the investigation of a valid complaint.
2. 
The Director of Community Development shall direct the applicable County department to suspend any applicable license, permit or exemptions of any business entity which fails, within fifteen (15) business days after receipt of the request, to provide such information and shall notify the Attorney General of the State of Missouri of the inquiry and failure.
3. 
Should the Attorney General enter the investigation after the third (3rd) business day after notice has been provided to that office, the County investigation shall be coordinated with the Attorney General's investigation if the Attorney General so agrees.
E. 
The Department of Community Development, after receiving the requested identity information from the business entity, shall work with the Police Department to submit identity data required by the Federal Government to verify, under 8 U.S.C. 1373, the immigration status of such persons and shall provide the business entity with written notice of the results of the verification request:
1. 
If the Federal Government notifies the Chief of Police that an employee is authorized to work in the United States, the Department of Community Development shall take no further action on the complaint;
2. 
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States, the Chief of Police shall notify the Department of Community Development, which shall proceed on the complaint as provided in Subsection (F) of this Section;
3. 
If the Federal Government notifies the Chief of Police that it is unable to verify whether an employee is authorized to work in the United States, the Department of Community Development shall take no further action on the complaint until a verification from the Federal Government concerning the status of the individual is received. At no point shall any County official attempt to make an independent determination of any alien's legal status without verification from the Federal Government.
F. 
Federal Notification—County Is Authorized To Bring Civil Action—When.
1. 
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States and the employer of the unauthorized alien participates in a Federal work authorization program, there shall be a rebuttable presumption that the employer has met the requirements for an affirmative defense under Subsection (D) of Section 622.530 and the employer shall comply with Subsection (G) of this Section.
2. 
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States, the Department of Community Development shall notify the County Counselor who shall be authorized to bring a civil action in St. Charles County Municipal Court if the County Counselor reasonably believes the business entity knowingly violated Subsection (A) of Section 622.530. Any civil action filed in the Municipal Court arising from this Chapter shall be placed on the first (1st) available court date, but no later than twenty-one (21) days from the service of the summons on the business entity alleged to have knowingly violated Subsection (A) of Section 622.530.
a. 
If the County Municipal Court finds that a business entity did not knowingly violate Subsection (A) of Section 622.530, the employer shall have fifteen (15) business days to comply with Subdivision (1) and paragraph (a) of Subdivision (2) of Subsection (G) of this Section. If the entity fails to do so, the court shall direct the County to suspend the business permit, if such exists, and any applicable licenses or exemptions of the entity until the entity complies with Subsection (G) of this Section;
b. 
If the court finds that a business entity knowingly violated Subsection (A) of Section 622.530, the court shall direct the County to suspend the business permit, if such exists, and any applicable licenses or exemptions of such business entity for fourteen (14) days. Permits, licenses and exemptions shall be reinstated for entities who comply with Subsection (G) of this Section at the end of the fourteen (14) day period.
G. 
The correction of a violation with respect to the employment of an unauthorized alien shall include the following actions:
1. 
Business entity's responsibility with respect to employment of an unauthorized alien—correction of a violation.
a. 
The business entity terminates the unauthorized alien's employment. If the business entity attempts to terminate the unauthorized alien's employment and such termination is challenged in a court of the State of Missouri, the fifteen (15) business day period for providing information to the Department of Community Development referenced in Subsection (D) of this Section shall be tolled while the business entity pursues the termination of the unauthorized alien's employment in such forum; or
b. 
The business entity, after acquiring additional information from the employee, requests a secondary or additional verification by the Federal Government of the employee's authorization, under the procedures of a Federal work authorization program. While this verification is pending, the fifteen (15) business day period for providing information to the Department of Community Development referenced in Subsection (D) of this Section shall be tolled; and
2. 
A legal representative of the business entity submits, at an office designated by the County Counselor, the following:
a. 
A sworn affidavit stating that the violation has ended that shall include a description of the specific measures and actions taken by the business entity to end the violation and the name, address and other adequate identifying information for any unauthorized aliens related to the complaint; and
b. 
Documentation acceptable to the County Counselor which confirms that the business entity has enrolled in and is participating in a Federal work authorization program.
H. 
The suspension of a business license or licenses under Subsection (F) of this Section shall terminate one (1) business day after a legal representative of the business entity submits the affidavit and other documentation required under Subsection (G) of this Section following any period of restriction required under Subsection (F) of this Section.
I. 
For an entity that violates Subsection (A) of Section 622.530 for a second (2nd) time, the court shall direct the County to suspend, for one (1) year, the business permit, if such exists, and any applicable license or exemptions of the business entity. For a subsequent violation, the court shall direct the county to forever suspend the business permit, if such exists, and any applicable license or exemptions of the business entity.
J. 
In addition to the penalties in Subsections (F) and (I) of this Section:
1. 
Upon the first (1st) violation of Subsection (A) of Section 622.530 by any business entity awarded a County contract or grant, the business entity shall be deemed in breach of contract and the County may terminate the contract and suspend or debar the business entity from doing business with the County for a period of three (3) years. Upon such termination, the County may withhold up to twenty-five percent (25%) of the total amount due to the business entity;
2. 
Upon a second (2nd) or subsequent violation of Subsection (A) of Section 622.530 by any business entity awarded a County contract or grant, the business entity shall be deemed in breach of contract and the County may terminate the contract and permanently suspend or debar the business entity from doing business with the County. Upon such termination, the County may withhold up to twenty-five percent (25%) of the total amount due to the business entity.
K. 
Sections 622.525 to 622.550 shall not be construed to deny any procedural mechanisms or legal defenses included in a Federal work authorization program.
L. 
Any business entity subject to a complaint and subsequent enforcement under Sections 622.525 to 622.540, or any employee of such a business entity, may challenge the enforcement of this Section with respect to such entity or employee in the County Municipal Court.
M. 
If the County Municipal Court finds that any complaint made against that business entity is frivolous in nature or finds no probable cause to believe that there has been a violation, the court shall dismiss the case against the business entity. For purposes of this Subsection, "frivolous" shall mean a complaint not shown by clear and convincing evidence to be valid. Any person who submits a frivolous complaint shall be reported to the Attorney General of the State of Missouri so that the Attorney General is aware of the frivolous complaint as he fulfills his duties pursuant to Section 285.535, RSMo. If the court finds that a complaint is frivolous or that there is not probable cause to believe there has been a violation, the County Counselor shall issue a public report to the complainant and the alleged violator stating with particularity its reasons for dismissal of the complaint. Upon such issuance, the complaint and all materials relating to the complaint shall be a public record as defined in Chapter 610, RSMo.
N. 
The determination of whether a worker is an unauthorized alien shall be made by the Federal Government. A determination of such status of an individual by the Federal Government shall create a rebuttable presumption as to that individual's status in any judicial proceedings brought under this Section or Section 622.530.
O. 
The County Municipal Court may take judicial notice of any verification of an individual's status previously provided by the Federal Government and may request the Federal Government to provide automated or testimonial verification.
[Ord. No. 09-035 §1, 4-1-2009]
The Department of Finance shall maintain a database that documents any business entity whose permit, license or exemption has been suspended or County contract has been terminated.
[Ord. No. 09-035 §1, 4-1-2009]
Should the Federal Government discontinue or fail to authorize or implement any Federal work authorization program, the County shall review Sections 622.525 to 622.555 for the purpose of determining whether the Sections are no longer applicable and should be repealed.