A Grand Rapids ordinance that prohibits the use of a premises “which shall destroy the peace and tranquility of the surrounding neighborhood” is unconstitutionally vague, the Michigan Court of Appeals has ruled in a published opinion.
The appeals court, in People of the City of Grand Rapids v Gasper (Docket No. 324150), distinguished this case from other disturbing the peace situations, and said: “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 [the ordinance].”
The defendants in the case owned and worked for the Tip Top Deluxe Bar and Grille. They were accused of violating § 9.63(3) of the City of Grand Rapids Noise Ordinance, which says: “(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.”
The defendants sought to have the charges dismissed. Police officers testified they had responded to various noise complaints at Tip Top, and had issued citations for violating § 9.63(3). Officers also indicated they did not record the decibel levels, and that departmental policy was to strictly enforce noise violations at Tip Top.
The Grand Rapids district court ruled that § 9.63(3) was unconstitutionally vague because reasonable minds could differ about what destroys the peace and tranquility of a neighborhood, and there was no objective way for law enforcement to make such a determination.
On appeal, the Kent County Circuit Court reversed, finding that § 9.63(3), when read in conjunction with other parts of the noise ordinance, and § 9.63(11) in particular, provided notice of the maximum sound levels during the day and night, and how those levels would be measured.
The Court of Appeals agreed with the district court, and concluded the noise ordinance was unconstitutionally vague.
In particular, the appeals court pointed out the circuit 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.’”
Therefore, consistent with this acknowledgement, the Court of Appeals said the existence of maximum decibel limits in § 9.63(11) did not help citizens determine whether their conduct violated § 9.63(3), nor did it place any constraints on enforcing police 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,” the appeals court ruled.
The Court of Appeals further explained there was too much “guesswork” involved in enforcing the noise ordinance.
According to the appeals court, the ordinance provided “virtually no guidance” in determining whether conduct is prohibited. The panel also pointed out that compliance with the decibel limits in § 9.63(11) still did not protect an individual from being cited for violating § 9.63(3).
“And on the other side of the coin,” the Court of Appeals said, “it vests the enforcing officer with almost complete discretion to determine whether the ordinance has been violated.”
Persons making noise were basically required to guess whether police would consider the noise level as disturbing the neighborhood’s peace and tranquility, the Court of Appeals said. “Simply put, conduct that ‘destroys’ the peace and tranquility of some would not affect others to such an extent,” the court said. “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).”
As a result, law enforcement and fact-finders were unconstitutionally vested with “’virtually complete discretion” to determine whether a violation of § 9.63(3) has occurred,” the Court of Appeals concluded.