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GovLaw – September 2016 Edition
From the Law Offices of Garan Lucow Miller, P.C.
From the Co-Editors
John J. Gillooly & Jami E. Leach
Garan Lucow Miller, P.C. 1155 Brewery Park Blvd, Detroit, Michigan 48207 313.446.1530
By Frances G. Murphy
The Michigan Court of Appeals recently issued an opinion holding that a provision of the Grand Rapids noise ordinance was unconstitutionally vague. In People v Gasper, released for publication on March 8, 2016 (Docket No. 324150), the Court of Appeals held that the following provision of the Grand Rapids noise ordinance was unconstitutionally vague because it provided virtually no guidance to a citizen in determining whether his or her conduct was prohibited under the noise ordinance:
(3) No person shall use any premises or suffer any premises under his or her care or control to be used which shall destroy the peace and tranquility of the surrounding neighborhood.
Several criminal cases were instituted against individuals associated with Tip Top Deluxe Bar & Grill (“Tip Top”) in Grand Rapids, Michigan. In all cases, the City of Grand Rapids alleged noise violations against the various individuals. On appeal, the cases were combined to address the issue of whether the above noise ordinance provision (Section 9.63(3)) was unconstitutionally vague, as asserted by the defendants. The Court of Appeals, in reciting the procedural history of the case, noted that at a hearing on a motion to dismiss at the district court level, Grand Rapids police officers testified that they responded to noise complaints on various dates in 2012 and 2013 while live music was playing and issued citations for violations of Section 9.63(3). On cross-examination, the officers admitted that they did not record the decibel level of the noise, and that the departmental policy was to strictly enforce noise violations against Tip Top. The officers testified that they understood a violation of Section 9.63(3) to occur if the noise could be heard from a “public way” (i.e., the street) regardless of the actual decibel level. The officers and one complainant testified that they believed the noise from Tip Top destroyed the “peace and tranquility of the surrounding neighborhood,” in violation of Section 9.63(3).
The district court determined that there was a question of fact for the jury regarding whether the bar’s music on the nights in question had destroyed the peace and tranquility of the surrounding neighborhood. The district court also concluded that Section 9.63(3) was unconstitutionally vague because reasonable minds could differ regarding what destroys the peace and tranquility of a neighborhood, and there was no objective way for police to make that determination. The district court found that the owners and employees of Tip Top had no way of knowing how loud its music could be. Further, the police, in enforcing Section 9.63(3) assessed whether the music could be heard from the street; however, Section 9.63(3) contained no language to support the conclusion that a violation occurred when music could be heard from the street. Accordingly, the district court dismissed the cases against the defendants.
The City of Grand Rapids appealed to the circuit court, arguing that Section 9.63(3) was not unconstitutionally vague because a reasonable person would know the meaning of the word “destroy.” In response, the defendants argued that the district court had correctly determined that the provision at issue was unconstitutionally vague because it did not provide adequate notice of what conduct was prohibited and allowed police officers broad latitude in enforcing Section 9.63(3) based upon their subjective determination that the peace and tranquility of the neighborhood had been destroyed. The defendants referred to other Grand Rapids noise ordinances, which provided specific decibel limits for certain zones and certain times of day. The defendants pointed out that a citizen could believe that he or she was in compliance with the law by not producing noise over the specified decibel level, only to be cited in an officer’s discretion for violation of Section 9.63(3).
The circuit court reversed the district court’s Order in part and remanded the defendants cases for trial finding that Section 9.63(3) was not unconstitutionally vague. The court agreed with the district court that there was an issue of fact regarding whether the peace and tranquility of the neighborhood had been destroyed.
The defendants eventually filed an application for leave to appeal the circuit court’s ruling. The Court of Appeals held that the circuit court erred in reversing the district court in finding Section 9.63(3) constitutional. The court noted that there are three ways in which an act may be found unconstitutionally vague: “(1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being over broad and impinging on First Amendment freedoms.” People v Lino, 447 Mich 567, 575-576, 527 NW2d 434 (1994). The Court of Appeals held that Section 9.63(3) was unconstitutionally vague for the first two reasons; that is, the ordinance failed to provide sufficient notice of what conduct is prescribed and encouraged arbitrary and discriminatory enforcement. The Court of Appeals held that a person could be cited for violating Section 9.63(3) regardless of compliance with other sections of the noise ordinance. The court concluded that the existence of a maximum decibel limit under a different section of the noise ordinance (e.g., Section 9.63(11)) did not aid the citizen in determining whether his or her conduct violated Section 9.63(3) and thus did not place any constraints on enforcing officers’ discretion. The court held, therefore, that the circuit court erred in determining that Section 9.63(3) was not unconstitutionally vague, and remanded the case for reinstatement for the dismissal of the defendants’ criminal prosecutions.
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