Kalita v. City of Detroit

• Decision Date: 27 January 1975
• Docket Number: Docket No. 17790,No. 1,1
• Citation: 57 Mich.App. 696,226 N.W.2d 699
• Parties: Thomas KALITA et al., Plaintiffs-Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 699

226 N.W.2d 699

57 Mich.App. 696

Thomas KALITA et al., Plaintiffs-Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation, et al Defendants-Appellees.

Docket No. 17790.

Court of Appeals of Michigan, Division No. 1.

Jan. 27, 1975.

Released for Publication March 19, 1975.

Bruce L. Randall, Southfield, for plaintiffs-appellants.

Willaim P. Doran, Asst. Corp. Counsel, Detroit, for defendants-appellees.

Before BASHARA, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

DANHOF, Judge.

Plaintiffs are owners or operators of adult bookstores located in the City of Detroit. They were cited for violating a municipal ordinance, § 39--1--50 of the Code of the City of Detroit, which regulates the distribution of 'sex inciting devices or contrivances', and other related products. Plaintiffs thereupon brought an action seeking a declaratory judgment that the ordinance is unconstitutional, and a permanent injunction enjoining its enforcement. Arguments were heard, briefs were filed, and the trial court issued a written opinion upholding the ordinance as constitutional and denying injunctive relief. Plaintiffs appeal from this decision and order; we affirm.

Plaintiffs argue that the language of the ordinance is unconstitutionally vague because it fails to accurately describe the conduct which is forbidden by the ordinance, and consequently it does not give reasonable notice of the prohibited conduct and it encourages discriminatory and arbitrary enforcement. In a related issue, plaintiffs contend that the ordinance is overbroad, so that under its nebulous standards innocent conduct is made criminal. These defects, according to plaintiffs' argument, deny due process in violation of the Michigan and Federal constitutions. Const.1963, art. 1, § 17; U.S.Const., Am. XIV.

That part of the challenged ordinance, § 39--1--50 of the Detroit city code provides:

'It shall be unlawful for any person other than a druggist operating a bona fide drugstore equipped with a prescription department and actually engaged in the business of compounding prescriptions and complying with the state pharmacy laws, or a physician duly licensed to practice in the state, to sell, offer for sale, distribute or give away any appliance, drug or medicinal preparation intended or having special utility for the prevention of conception or venereal diseases, or any contraceptive devices or any prophylactic rubber goods or any other articles for the prevention of venereal diseases and infections or any sex inciting device or contrivance in the city; except, that the foregoing provisions shall not apply to wholesale druggists, jobbers or manufacturers who sell to retail drugstores for resale; and provided further, that all such articles, appliances, drugs or medicinal preparations described in this section shall when sold, offered for sale, given away or distributed in accordance with the provisions of this section, conspicuously bear the identification of the manufacturers thereon or on the retail container thereof.'

A penal ordinance must provide sufficient notice of its elements to forewarn as to the kind of conduct which is made criminal, and it must establish objective standards by which guilt may be determined. The ordinance must adequately differentiate between conduct which is harmful and which is made a prohibited activity on the one hand, and essentially innocent conduct on the other hand. An ordinance which fails to satisfy these requirements is vague, overbroad, and constitutionally defective. See People v. Adams, 34 Mich.App. 546, 558--559, 192 N.W.2d 19 (1971), modified as People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973).

In the context of the case presently before this Court, the test under both of these constitutional doctrines is fundamentally the same. A penal ordinance must be so clear that any ordinary person can tell what he may or may not do thereunder; that is, the terms of the ordinance cannot be so indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), People v. Thompson, 259 Mich. 109, 242 N.W. 857 (1932), People v. Wiegand, 369 Mich. 204, 119 N.W.2d 545 (1963).

The question then becomes, is the language of the ordinance specific enough to meet the constitutional test? More precisely, does the use of the phrase 'sex inciting device or contrivance' adequately inform persons of ordinary intelligence as to what behavior is prohibited, and in so doing, does it sufficiently delineate those activities which are made illegal so as to preclude its application to harmless behavior? We conclude that it does.

The limitations inherent in the use of language prevent absolute certainty in the drafting of statutes. Words cannot be expected to convey mathematically precise meanings. Therefore, the terms found in a statute and ordinance must be examined with a reasonable eye. 'It would be little short of judicial nonsense to hold that the state in defining offenses must use such simple or exact terms that they cannot possibly be misunderstood or distorted into uncertainty. If the language used conveys the intended meaning with reasonable certainty it is sufficient.' People v. Thompson, Supra, 259 Mich. 117, 242 N.W. 857. This Court discussed a constitutional challenge similar to the argument advanced here in Dearborn Heights v. Bellock, 17 Mich.App. 163, 167, 169 N.W.2d 347, 349 (1969), in which it was said:

'The requisite of definiteness demands no more than a reasonable degree of certainty. Boyce Motor Lines, Inc. v. United States, Supra (342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952)). As stated in 21 Am.Jur.2d, Criminal Law, § 17:

"The requisite certainty may sometimes be supplied by materials outside the statutory definition of the offense. Thus, in the case of a statute that deals with offenses difficult to define, the entire text of the statute or the subject dealt with may furnish an adequate standard of definiteness."

The ordinance with which we are presently concerned is primarily designed to regulate the distribution of contraceptive products and devices in general, and prophylactic rubber goods specifically. In addition to the listed and described items, any 'sex inciting device or contrivance' is logically included as a manufactured item, usually made of rubber, which is used by some in connection with sexual activity and which is likely to have a tendency to encourage such activity. The phrase, therefore, derives added certitude from its inclusion among the other products.

A greater degree of exactitude in the terminology and in the definitions used in the present ordinance cannot be expected. No effort to precisely describe in detail the devices and contrivances regulated by the ordinance could possibly be complete in view of the almost limitless imagination and degeneracy evidenced by the record in this case. Furthermore, since the activity involved is of an indelicate nature, failure to graphically outline the conduct regulated by the ordinance does not cause the ordinance to be unconstitutionally vague or overbroad. People v. Green, 14 Mich.App. 250, 165 N.W.2d 270 (1968), lv. den., 381 Mich. 815 (1969), People v. Dexter, 6 Mich.App. 247, 148 N.W.2d 915 (1967), and cases cited therein.

Proprietors of adult bookstores and related business enterprises, including the plaintiffs in the present case, are undoubtedly intimately familiar with the products referred to in the ordinance. Thus, 'we do not here find a problem of failure of communication between the enacting legislative body and the members of the public whose behavior is sought to be controlled'. Detroit v. Detroit Edison Co., 16 Mich.App. 423, 428, 168 N.W.2d 320, 323 (1969).

The Supreme Court of Wisconsin in State v. Arnold, 217 Wis. 340, 258 N.W. 843 (1935), passed upon the constitutionality of a statute which defined and regulated 'indecent articles'. The Court refuted the argument made by ...