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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE CITY OF GRAND RAPIDS,

Plaintiff-Appellee, FOR PUBLICATION March 8, 2016
9:00 a.m.

v No. 324150
Kent Circuit Court JOHN F GASPER, LC No. 14-004093-AR

Defendant-Appellant.

PEOPLE OF THE CITY OF GRAND RAPIDS,

Plaintiff-Appellee,

v No. 324152
Kent Circuit Court THEODORE HUGH SMITH, LC No. 14-004096-AR

Defendant-Appellant.

PEOPLE OF THE CITY OF GRAND RAPIDS,

Plaintiff-Appellee,

v No. 328165
Kent Circuit Court FRANKLIN DEAN LEHNEN, JR., LC No. 15-001823-AR

Defendant-Appellant.

Before: M ETER , P.J., and B OONSTRA and R IORDAN , JJ.

B OONSTRA
, J.-2- These consolidated appeals by leave granted 1 arise from the alleged violations of a Grand Rapids noise ordinance. Defendants Gasper and Smith appeal fro m an order of the circuit court reversing the district court’s order dismissing their cases on the basis that § 9.63(3) of the City of Grand Rapids Noise Ordinance w as unconstitutionally vague. Def endant Lehnen appeals the
order of the circuit c ourt reversing the district court’s rulin g concerning jury i nstructions in his criminal prosecution for violation of § 9.63(3). We reverse th e circuit court order regarding Gasper and Smith, and remand for di smissal of the criminal pros ecutions against all defendants.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

These cases arise from the muni cipal prosecutions of several i ndividuals associated with the Tip Top Deluxe Bar and Grille (“Tip Top”) in Grand Rapids, Michigan, for the alleged violation of § 9.63(3) of the City of Grand Rapids Noise Ordina nce, which provides:

(3) No person shall use any premises or suffer any premises und er his or her care or control to be used which shall destroy the peace and tranqui lity of the surrounding neighborhood.

Defendant Gasper is an employee of Tip Top; Smith and Lehnen ar e co-owners. Defendants and another employee of Tip Top, Jacqueline Martin, 2 were charged with violations of § 9.63(3) in
connection with events occu rring on various da tes in 2012 and 2 013.

Gasper, Smith, and Martin moved in the district court to dismi ss the charges against them. The court held a hearing on the motions on April 22, 201 4. At the hearing, Grand Rapids police officers testified that they had responded to noise comp laints on the nights in question (when live music was playing) and issued citations for violatio ns of § 9.63(3). The officers admitted on cross-examination that they did not record the deci bel level of the noise, and that the departmental policy was to strictly enforce noise violations fr om Tip Top. The officers testified that they understood a viola tion of § 9.63(3) to occur if noise could be heard from a “public way” (i.e., the street) regardless of actual decibel level. The off icers as well as one complainant all testified to their belief that the noise from Tip Top “destroy[ ed] the peace and tranquility of the surrounding neighborhood.”

1 People of Grand Rapids v Gasper , unpublished order of the Court of Appeals, entered March 12, 2015 (Docket No. 324150); People of Grand Rapids v Smith , unpublished order of the Court of Appeals, entered March 12, 2015 (Docket No. 324152); People of Grand Rapids v Lehnen, Jr. , unpublished order of the Court of Appeals, entered October 15 , 2015 (Docket No. 328165).

2 Martin also filed a claim of appeal that was originally consol idated with the instant cases. However, Martin eventually receiv ed a directed verdict of acqui ttal in her district court trial for violation of the ordinance. This Court subsequently dismissed her appeal as moot. People of Grand Rapids v Martin , unpublished order of the Court of Appeals, entered May 15, 20 15 (Docket No. 324151).-3- Although the district court deter mined that there was a questi on of fact for the jury regarding whether the bar’s music on the nights in question had actually destroyed the peace and tranquility of the surrounding neighborhood, it also concluded that § 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 objec tive way for police to make that determination. Consequently, the owners and employees of Tip T op Bar had no way of knowing how loud its music could be. Further, while the police, in enf orcing § 9.63(3), had assessed whether the music could be heard from the street, § 9.63(3) con tained no language to support the
conclusion that a violation occurred when and because music cou ld be heard from the street.

The district court dismissed the cases against Gasper, Martin, and Smith. The record
does not reflect that Defendant L ehnen moved the district court for the dismissal of his case.

The City Attorney of Grand Rapids appealed the district court’ s order of dismissal to the circuit court, arguing that § 9.63( 3) was not unconstitutionall y vague because a reasonable person would know the meaning of the word “destroy.” Defendant s argued that the district court had correctly determined that § 9.63(3) was unconstitutionally vague, because it did not provide adequate notice of what conduct was prohibited, and allowed pol ice officers broad latitude in enforcing § 9.63(3) based on their subjective determination tha t the peace and tranquility of a neighborhood had been destroyed. Defendants referred the circu it court to other Grand Rapids noise ordinances, which provided specific decibel limits for ce rtain zones and certain times of day, and argued 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 ci ted in an officer’s discretion for violating § 9.63(3).

The circuit court reversed the district court’s order in part and remanded Gasper’s, Martin’s, and Smith’s cases for trial, finding that § 9.63(3) w as not unconstitutionally vague.
The circuit court reasoned tha t § 9.63(3), when read in conjunc tion with other portions of the statute, specifically § 9.63(11), provided notice to residents of maximum sound levels during the day and night, and how those levels would be measured, and stat ed:

When read in its entirety, Sec tion 9.63 delineates clear standa rds for establishing a per se violation under Sec. 9.63(11) and also allows enforcemen t when distinctly and loudly audible noise is made upon a public way or in close proximity thereto as well as when noise levels are believed to destroy the peace and tranquility of the surrounding neighborhood. See Sec. 9.63(1) and (3);

. . . In light of the objective outside parameters established in subsection (11), the police are not permitted “to wield apparently unlimited discret ionary powers in choosing those persons in violation of the ordinance” if they c hoose to charge an alleged offender under the subjective standards of either Subse ction (1) or (3). Additionally, the owners and empl oyees have notice of what maxi mum sound pressure levels are permitted during daytime and nighttime hour s; how the levels will be measured; and that the performance standards will be ap plied at the
boundaries of the lot. When the police choose to cite a proper ty owner or employee under subsection (3), as correctly noted by [the distr ict court], a jury-4- question is presented regarding whether the peace and tranquili ty of the neighborhood has been destroyed.

The trial court affirmed the district court’s ruling that a que stion of fact existed regarding whether defendants had destroyed the peace and tranquility of t he surrounding neighborhood on any of the nights in question.

Gasper, Martin, and Smith filed applications for leave to appe al to this Court. However, their trials were not stayed pending these appeals. In advance of Martin’s trial, the district court ruled, over the City’s objection, that the jury instruction reg arding the elements of a violation of § 9.63(3) would include a dictionary definition of the term “de stroy,” an element requiring that decibel readings above certain lev els were taken, and an elemen t requiring that those decibel levels were taken at the boundary line of the property. The Ci ty Attorney sought leave to appeal this jury instruction to the cir cuit court, but the court denie d the application.

Martin’s trial went forward before this Court’s decision on he r application for leave to appeal, and the district court granted her a directed verdict o f acquittal. This Court thus dismissed her appeal as moot.

Lehnen’s case also proceeded to trial. The same issue with th e jury instructions arose,
and the district court ruled that it would give the same set of instructions as it had given in
Martin’s case. The district court stated that it believed this instruction comported with the circuit court’s ruling in Gasper’s, Smith’s, and Martin’s cases, i.e., that § 9.63(3) must be read in conjunction with § 9.63(11), which set forth violations based o n decibel readings. The City Attorney filed another application for leave to appeal the jury instruction ruling to the circuit court. This time, the circuit court granted the application an d reversed the district court’s ruling, ordering that references to the d efinition of “destroy” and dec ibel readings must be stricken from the instructions, because decibel readings were not an element of a violation of § 9.63(3).

Lehnen filed an application in t his Court for leave to appeal the circuit court’s ruling on the jury instruction issue, whic h was granted and consolidated with Gasper’s and Smith’s appeals as described above. On June 22, 2015, the district court grant ed a motion to stay all cases involving violations of § 9.63(3) reported at Tip Top Bar pendi ng the outcome of these consolidated appeals, thus stay ing defendants’ criminal proceed ings pending our resolution of their appeals.

II. STANDARD OF REVIEW

This Court reviews de novo the constitutionality of a municipa l ordinance. Plymouth Twp v Hancock , 236 Mich App 197, 199; 600 NW2d 380 (1999), lv den 463 Mich 9 08 (2000). “Further, because ordinances are treated as statutes for purpos e of interpretation and review, [this Court] also review[s] de novo the interpretation and applicatio n of a municipal ordinance.” Bonner v Brighton , 495 Mich 209, 221-222; 848 NW2d 380 (2014). “[T]he rules gov erning statutory interpretation apply with equal force to a municipal ordinance[.]” Id . at 222. Ordinances are presumed to be constitutional, “and will be so c onstrued unless the party challenging the statute clearly establishes its unconstitutiona lity.” Hancock , 236 Mich App at 199. Further, we may apply a na rrowing construction to an ordi nance if doing so would render it-5- constitutional without harming the intent of the legislative bo dy. See People v F P Books & News, Inc (On Remand)

, 210 Mich App 205, 209; 533 NW2d 362 (1995).

III. CONSTITUTIONALITY OF § 9.63(3)

Defendants argue that the circu it court erred in reversing the district court and finding § 9.63(3) constitutional. We agree.

A constitutional challenge base d on vagueness “is brought unde r the Due Process Clause
of the Fourteenth Amendment of t he United States Constitution.” People v Lino , 447 Mich 567, 575 n 2; 527 NW2d 434 (1994). As the United States Supreme Cou rt has observed,

It is a basic principle of due process that an enactment is voi d for vagueness if its prohibitions are not clearly defined. Vague laws offend severa l important values. First, because we assume that man is free to steer between lawf ul and unlawful conduct, we insist that laws give the person of ordinary intell igence a reasonable opportunity to know what is prohibited, so that he may act acco rdingly. Vague laws may trap the innocent by not providing fair warning. Seco nd, if arbitrary and discriminatory enforcement is to be prevented, laws must pr ovide explicit standards for those who apply th em. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attend ant dangers of arbitrary and d iscriminatory application. Third, but related , where a vague statute “abut[s ] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhib it the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far
wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” [ Grayned v City of Rockford , 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972) (internal citations omitted).]

Thus, there are three ways in which an enactment may be found u nconstitutionally vague: “(1) failure to provide fair notice of what conduct is prohibited, ( 2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impingin g on First Amendment
Freedoms.” Lino , 447 Mich at 575-576, quoting People v Howell , 396 Mich 16, 20-21; 238 NW2d 148 (1976). Defendants argue that § 9.63(3) is unconstitu tionally vague for the first two reasons; that is, the ordinance fails to provide sufficient not ice of what conduct is proscribed and encourages arbitrary and di scriminatory enforcement.

In finding § 9.63(3) constitutional, the circuit court looked to § 9.63(11) of the ordinance, reasoning that the standards set forth in that subsection provi ded “objective outside parameters” by which citizens could determine what conduct was proscribed u nder § 9.63(3) and which prevented law enforcement officers from arbitrarily enforcing t he ordinance. However, the court acknowledged that a person coul d be cited for violating section (3) regardless of compliance with section (11): “Section 9.63 delin eates clear standards for est ablishing a per se violation under Sec. 9.63(11) and also allows enforcement . . . when noise levels are believed to des troy the peace and tranquility of the surrounding neighborhood.” We con clude, consistent with that acknowledgement, that the existe nce of maximum decibel limits i n § 9.63(11) does not aid a citizen in determining whether his or her conduct violates § 9. 63(3), nor does it place any-6- constraints on enforcing officer s’ discretion. We therefore ho ld that the circuit court erred in determining that the language of § 9.63(11) saved § 9.63(3) fro m vagueness. 3

Further, the ordinance in ques tion resembles other ordinances held by the United States Supreme Court to be unconstituti onally vague, such as an ordina nce that prohibited “annoying” passerby, Coates v Cincinnati , 402 US 611; 91 S Ct 1686; 29 L Ed 2d 214 (1971), and an ordinance requiring the production of “credible and reliable” i dentification to police officers,
Kolender v Lawson , 461 US 352; 103 S Ct 1855; 75 L Ed 2d 903 (1983). Like the o rdinances in those cases, § 9.63(3) provides virtually no guidance to a citi zen in determining whether his or her conduct is prohibited; as ack nowledged by the circuit court , even compliance with the decibel limits of § 9.63(11) does not protect a citizen from ci tation for the violation of § 9.63(3). And on the other side of the coin, i t vests the enforcing offic er with almost complete discretion to
determine whether the ordi nance has been violated. Kolender , 461 US at 358.

The ordinance also resembles the statute at issue in People v Boomer , 250 Mich App 534, 536; 655 NW2d 255 (2002), which provided that it was a misdemea nor for any person to “use any indecent, immoral, obscene, vulgar, or insulting language i n the presence or hearing of any woman or child[.]” This Court determined that the statute esse ntially required a person who spoke in the presence of women or children to “guess what a law enforcement officer might consider too indecent, immoral, or vulgar . . . .” Id

. at 541. Here, a person making noise in a neighborhood is similarly required to guess whether law enforce ment would consider his or her conduct as destroying the peace and tranquility of the neighbor hood. Simply put, conduct that “destroys” the peace and tranquility of some would not affect o thers to such an extent. There is simply no standard for determining what “destroys” the peace an d tranquility of a neighborhood, which compels “men of common intelligence” to guess as to what conduct is proscribed by § 9.63(3). Coates , 402 US at 614; Kolender , 461 US at 358; People v Gagnon , 129 Mich App 678; 341 NW2d 867 (1983). Moreover, because § 9.63(3) fails to provide explicit standards for determining what “destroys the peace and tranquility of the sur rounding neighborhood,” law enforcement officers and finders of fact are necessarily vested with “virtually complete
discretion” to determine whet her a violation of § 9.63(3) has o ccurred. Kolender , 461 US at 358.

We also find this case distinguishable from cases involving ch allenges to disturbing the peace statutes. Although this Court has held that a reasonable person is sufficiently aware of what conduct constitutes a “disturbance” of the peace, Lansing v Hartsuff , 213 Mich App 338; 539 NW2d 781 (1995), Hancock , 236 Mich App 197, the ordinance at issue does not proscribe conduct that merely disturbs or disrupts the peace and tranquility, but rather that which destroys the peace and tranquility. Thus , a person of ordinary intellig ence would still have to guess whether his or her conduct was lawful, as conduct that one pers on might consider to totally

3 In fact, the City Attorney als o disagreed that the requirement s of § 9.63(11) had any bearing on prosecutions under § 9.63(3). To the contrary, she argued that § 9.63(11) was “a completely different subsection of the noise ordinance,” and that determin ing under which section to prosecute was simply a matter of “prosecutorial discretion.”-7- destroy their peace and tranquility might merely disrupt the peace and tranquility for a another person. Accord Boomer , 250 Mich App at 541. 4

Finally, we note that there is no narrowing construction of § 9.63(3) that would render it
constitutional. FP Books & News Inc (On Remand) , 210 Mich App at 209. Although the district court attempted, through its jur y instructions and in an attemp t to comply with the circuit court’s ruling, to read into § 9.63(3) a requirement that a violation o f § 9.63(11) have occurred, such a reading effects a substantial revision of the ordinance and ess entially amounts to rendering § 9.63(3) nugatory or surplusage—i.e., if a violation of § 9.63 (3) can only be accomplished through a violation of § 9.63(11), and both violations are puni shable as criminal misdemeanors, as indeed the parties seem to a gree is the case, § 9.63(3) thus becomes mere surplusage.

However, § 9.63(3) is readily susceptible to severance from th e remainder of the Grand Rapids Noise Ordinance. Deletion of § 9.63(3) would not render invalid or unreasonable the remainder of the ordinance, and no additional language or const ruction would be necessary. FP Books & News Inc (On Remand) , 210 Mich App at 210. Nor would Grand Rapids be left
without a mechanism to curtail ex cessive noise from defendants’ bar; indeed, the City Attorney acknowledged that she had sent o fficers to the location (althou gh perhaps not on these occasions) to take decibel readings, and that it was a matter of prosecuto rial discretion whether to prosecute under § 9.63(3) rather than § 9.63(11).

We therefore reverse the circuit court’s order to the extent i t reversed the district court’s order finding § 9.63(3) unconstitutionally vague, and remand fo r reinstatement of the district court’s order of dismissal with regard to defendants Gasper and Smith, and to dismiss the pending criminal prosecution agai nst defendant Lehnen. Having determined that § 9.63(3) is unconstitutional, we need not address Lehnen’s arguments concer ning the jury instructions in his

case.

Reversed and remanded for dismissal of defendants’ criminal pr osecutions. We do not retain jurisdiction.

/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Michael J. Riordan

4 We note also Justice C ORRIGAN ’s dissent from our Supreme Court’s decision to deny leave to appeal in Plymouth Twp v Hancock , 463 Mich 908, 910; 618 NW2d 585 (2000) (C ORRIGAN
, J., dissenting), where she observed t hat “courts of other jurisdict ions have disagreed on whether use of a reasonable person standard in a noise ordinance is suffici ent to give a person of ordinary intelligence fair notice the conduct is forbidden.” Id . We conclude that the application of a reasonable person standard to § 9.63(3) would not save the ordi nance from vagueness, but we express no opinion on its use in other noise ordinance cases in volving different statutory language.