Cunningham v. State, 23478

• Decision Date: 21 June 1993
• Docket Number: No. 23478,23478
• Citation: 109 Nev. 569,855 P.2d 125
• Parties: Alan G. CUNNINGHAM, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 125

855 P.2d 125

109 Nev. 569

Alan G. CUNNINGHAM, Appellant, v. The STATE of Nevada, Respondent.

No. 23478.

Supreme Court of Nevada.

June 21, 1993.

Woodburn & Wedge and James W. Erbeck, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., Gerald J. Gardner, Deputy Dist. Atty., Eric G. Jorgensen, Deputy Dist. Atty., Clark County, for respondent.

OPINION

SPRINGER, Justice:

Appellant Alan Cunningham stands convicted of a violation of provisions of Chapter 599B, Nevada Revised Statutes, entitled "Solicitation by Telephone." Cunningham complains that the statute is vague and that he cannot understand its meaning. We agree that the statute is vague and conclude that because it does not give fair notice of prohibited conduct, it is violative of the Due Process Clause, Article 1, section 8 of the Nevada Constitution.

A statute which forbids the doing of an act in terms so vague that people of common intelligence must necessarily guess as to its meaning violates the first essential of due process, the notion of fair notice or warning. Eaves v. Board of Clark County Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980). Chapter 599B is so vague that it does not provide a constitutional basis for criminal prosecution.

The chapter does not contain the customary purpose clause, and there is no statement of legislative intent; but we take it that the legislature was concerned about the widespread use of telephone solicitors to initiate the sales of goods, real property, services and investment opportunities. Telephone banks and "boiler rooms" used in the practice of what has come to be known as "telemarketing" have become a matter of public and governmental concern because of associated problems of unethical business practices and, in some instances, outright fraud.

The way in which NRS Chapter 599B addresses these telemarketing problems is to declare it to be "unlawful for any person to act as a seller or salesman in this state without a license...." NRS 599B.080. Thou shalt not be a "seller" or a "salesman" without a license. This is Cunningham's crime, that he acted "as a seller in this state without a license."

"Seller" and "salesman" are common terms with common meanings. A seller is one who sells; a salesman is a male seller. That an unlicensed seller or salesman should be declared by the legislature to be a criminal seems a little bit off-center to begin with; however, if we read on, we find that the legislature was referring to a special kind of seller, namely, a person who "causes or attempts to cause a telephone solicitation." NRS 599B.010(6) (emphasis added). In sum, then, it is "unlawful" for any person to be a "seller" or a "salesman" without a license; and, apparently this prohibition applies only to a seller or salesman who "causes" a "telephone solicitation." The statute does not define what a telephone solicitation is, so we take the word "solicit" in its common meaning, "to try to obtain by asking." Webster's Seventh New Collegiate Dictionary 83 (1963). When we read this language it becomes immediately apparent that if any of us were to call up a neighbor to try and sell the old lawnmower, we would in doing this, (1) "act as a seller" and (2) "cause a telephone solicitation." ¹ This is the way Cunningham reads the statute; and this is the way we read it. It is probably safe to assume that this is not the kind of transaction that the legislature had in mind when it declared all unlicensed "sellers" or "salesmen" to be felons; still, the statute says what it says.

When we examine comparable statutes in other states we find that telephonic solicitations are rather narrowly and specifically defined so that one neighbor is not prohibited from telephoning another neighbor and trying to sell a lawnmower ...