                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE CITY OF GRAND RAPIDS,                  FOR PUBLICATION
                                                     March 8, 2016
               Plaintiff-Appellee,                   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: METER, P.J., and BOONSTRA and RIORDAN, JJ.

BOONSTRA, J.




                                          -1-
        These consolidated appeals by leave granted1 arise from the alleged violations of a Grand
Rapids noise ordinance. Defendants Gasper and Smith appeal from 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 was unconstitutionally vague. Defendant Lehnen appeals the
order of the circuit court reversing the district court’s ruling concerning jury instructions in his
criminal prosecution for violation of § 9.63(3). We reverse the circuit court order regarding
Gasper and Smith, and remand for dismissal of the criminal prosecutions against all defendants.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        These cases arise from the municipal prosecutions of several individuals 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 Ordinance, which provides:

       (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.

Defendant Gasper is an employee of Tip Top; Smith and Lehnen are co-owners. Defendants and
another employee of Tip Top, Jacqueline Martin,2 were charged with violations of § 9.63(3) in
connection with events occurring on various dates in 2012 and 2013.

         Gasper, Smith, and Martin moved in the district court to dismiss the charges against
them. The court held a hearing on the motions on April 22, 2014. At the hearing, Grand Rapids
police officers testified that they had responded to noise complaints on the nights in question
(when live music was playing) and issued citations for violations of § 9.63(3). The officers
admitted on cross-examination that they did not record the decibel level of the noise, and that the
departmental policy was to strictly enforce noise violations from Tip Top. The officers testified
that they understood a violation 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 officers 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 consolidated with the instant cases.
However, Martin eventually received a directed verdict of acquittal 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, 2015
(Docket No. 324151).


                                                 -2-
        Although 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 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 objective way for police to make that
determination. Consequently, the owners and employees of Tip Top Bar had no way of knowing
how loud its music could be. Further, while the police, in enforcing § 9.63(3), had assessed
whether the music could be heard from the street, § 9.63(3) contained no language to support the
conclusion that a violation occurred when and because music could be heard from the street.

       The district court dismissed the cases against Gasper, Martin, and Smith. The record
does not reflect that Defendant Lehnen 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 unconstitutionally vague because a reasonable
person would know the meaning of the word “destroy.” Defendants 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 police officers broad latitude in
enforcing § 9.63(3) based on their subjective determination that the peace and tranquility of a
neighborhood had been destroyed. Defendants referred the circuit court to other Grand Rapids
noise ordinances, which provided specific decibel limits for certain 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 cited 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) was not unconstitutionally vague.
The circuit court reasoned that § 9.63(3), when read in conjunction 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 stated:

       When read in its entirety, Section 9.63 delineates clear standards for establishing a
       per se violation under Sec. 9.63(11) and also allows enforcement 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 discretionary powers in
       choosing those persons in violation of the ordinance” if they choose to charge an
       alleged offender under the subjective standards of either Subsection (1) or (3).
       Additionally, the owners and employees have notice of what maximum sound
       pressure levels are permitted during daytime and nighttime hours; how the levels
       will be measured; and that the performance standards will be applied at the
       boundaries of the lot. When the police choose to cite a property owner or
       employee under subsection (3), as correctly noted by [the district court], a jury


                                                -3-
       question is presented regarding whether the peace and tranquility of the
       neighborhood has been destroyed.

The trial court affirmed the district court’s ruling that a question of fact existed regarding
whether defendants had destroyed the peace and tranquility of the surrounding neighborhood on
any of the nights in question.

         Gasper, Martin, and Smith filed applications for leave to appeal 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 regarding the elements of a violation of
§ 9.63(3) would include a dictionary definition of the term “destroy,” an element requiring that
decibel readings above certain levels were taken, and an element requiring that those decibel
levels were taken at the boundary line of the property. The City Attorney sought leave to appeal
this jury instruction to the circuit court, but the court denied the application.

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

        Lehnen’s case also proceeded to trial. The same issue with the 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 on 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 and reversed the district court’s ruling,
ordering that references to the definition of “destroy” and decibel 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 this Court for leave to appeal the circuit court’s ruling on
the jury instruction issue, which was granted and consolidated with Gasper’s and Smith’s appeals
as described above. On June 22, 2015, the district court granted a motion to stay all cases
involving violations of § 9.63(3) reported at Tip Top Bar pending the outcome of these
consolidated appeals, thus staying defendants’ criminal proceedings pending our resolution of
their appeals.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo the constitutionality of a municipal ordinance. Plymouth
Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999), lv den 463 Mich 908 (2000).
“Further, because ordinances are treated as statutes for purpose of interpretation and review, [this
Court] also review[s] de novo the interpretation and application of a municipal ordinance.”
Bonner v Brighton, 495 Mich 209, 221-222; 848 NW2d 380 (2014). “[T]he rules governing
statutory interpretation apply with equal force to a municipal ordinance[.]” Id. at 222.
Ordinances are presumed to be constitutional, “and will be so construed unless the party
challenging the statute clearly establishes its unconstitutionality.” Hancock, 236 Mich App at
199. Further, we may apply a narrowing construction to an ordinance if doing so would render it

                                                -4-
constitutional without harming the intent of the legislative body. 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 circuit court erred in reversing the district court and finding
§ 9.63(3) constitutional. We agree.

        A constitutional challenge based on vagueness “is brought under the Due Process Clause
of the Fourteenth Amendment of the United States Constitution.” People v Lino, 447 Mich 567,
575 n 2; 527 NW2d 434 (1994). As the United States Supreme Court has observed,

       It is a basic principle of due process that an enactment is void for vagueness if its
       prohibitions are not clearly defined. Vague laws offend several important values.
       First, because we assume that man is free to steer between lawful and unlawful
       conduct, we insist that laws give the person of ordinary intelligence a reasonable
       opportunity to know what is prohibited, so that he may act accordingly. Vague
       laws may trap the innocent by not providing fair warning. Second, if arbitrary
       and discriminatory enforcement is to be prevented, laws must provide explicit
       standards for those who apply them. A vague law impermissibly delegates basic
       policy matters to policemen, judges, and juries for resolution on an ad hoc and
       subjective basis, with the attendant dangers of arbitrary and discriminatory
       application. Third, but related, where a vague statute “abut[s] upon sensitive
       areas of basic First Amendment freedoms,” it “operates to inhibit 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 unconstitutionally vague: “(1)
failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and
discriminatory enforcement, or (3) being overbroad and impinging 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 unconstitutionally vague for the first two
reasons; that is, the ordinance fails to provide sufficient notice of what conduct is proscribed and
encourages arbitrary and discriminatory 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 provided “objective outside parameters”
by which citizens could determine what conduct was proscribed under § 9.63(3) and which
prevented law enforcement officers from arbitrarily enforcing the ordinance. However, the court
acknowledged that a person could be cited for violating section (3) regardless of compliance with
section (11): “Section 9.63 delineates clear standards for establishing a per se violation under
Sec. 9.63(11) and also allows enforcement . . . when noise levels are believed to destroy the
peace and tranquility of the surrounding neighborhood.” We conclude, consistent with that
acknowledgement, that the existence of maximum decibel limits in § 9.63(11) does not aid a
citizen in determining whether his or her conduct violates § 9.63(3), nor does it place any

                                                -5-
constraints on enforcing officers’ discretion. We therefore hold that the circuit court erred in
determining that the language of § 9.63(11) saved § 9.63(3) from vagueness.3

       Further, the ordinance in question resembles other ordinances held by the United States
Supreme Court to be unconstitutionally vague, such as an ordinance 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” identification to police officers,
Kolender v Lawson, 461 US 352; 103 S Ct 1855; 75 L Ed 2d 903 (1983). Like the ordinances in
those cases, § 9.63(3) provides virtually no guidance to a citizen in determining whether his or
her conduct is prohibited; as acknowledged by the circuit court, even compliance with the
decibel limits of § 9.63(11) does not protect a citizen from citation for the violation of § 9.63(3).
And on the other side of the coin, it vests the enforcing officer with almost complete discretion to
determine whether the ordinance 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 misdemeanor for any person to “use
any indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of any
woman or child[.]” This Court determined that the statute essentially 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 enforcement would consider his or her
conduct as destroying the peace and tranquility of the neighborhood. Simply put, conduct that
“destroys” the peace and tranquility of some would not affect others to such an extent. There is
simply no standard for determining what “destroys” the peace and 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 surrounding neighborhood,” law
enforcement officers and finders of fact are necessarily vested with “virtually complete
discretion” to determine whether a violation of § 9.63(3) has occurred. Kolender, 461 US at 358.

       We also find this case distinguishable from cases involving challenges 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 intelligence would still have to guess
whether his or her conduct was lawful, as conduct that one person might consider to totally




3
 In fact, the City Attorney also disagreed that the requirements 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 determining under which section to
prosecute was simply a matter of “prosecutorial discretion.”


                                                -6-
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 jury instructions and in an attempt to comply with the circuit court’s
ruling, to read into § 9.63(3) a requirement that a violation of § 9.63(11) have occurred, such a
reading effects a substantial revision of the ordinance and essentially 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 punishable as criminal misdemeanors,
as indeed the parties seem to agree is the case, § 9.63(3) thus becomes mere surplusage.

        However, § 9.63(3) is readily susceptible to severance from the 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 construction 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 excessive noise from defendants’ bar; indeed, the City Attorney
acknowledged that she had sent officers to the location (although perhaps not on these occasions)
to take decibel readings, and that it was a matter of prosecutorial discretion whether to prosecute
under § 9.63(3) rather than § 9.63(11).

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

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



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


4
  We note also Justice CORRIGAN’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) (CORRIGAN, J.,
dissenting), where she observed that “courts of other jurisdictions have disagreed on whether use
of a reasonable person standard in a noise ordinance is sufficient 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 ordinance from vagueness, but we
express no opinion on its use in other noise ordinance cases involving different statutory
language.


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