State ex rel. Williams v. City Court of Tucson

• Decision Date: 09 April 1974
• Docket Number: CA-CIV,No. 2,2
• Citation: 21 Ariz.App. 489,520 P.2d 1166
• Parties: STATE of Arizona ex rel. Herbert E. WILLIAMS, Tucson City Attorney, Appellant, v. CITY COURT OF TUCSON, Pima County, Arizona; William Druke, magistrate thereof; and Jesse Bernard COHEN, the Real Party in Interest, Appellees. 1513.
• Court: Arizona Court of Appeals

Page 1166

520 P.2d 1166

21 Ariz.App. 489

STATE of Arizona ex rel. Herbert E. WILLIAMS, Tucson City Attorney, Appellant, v. CITY COURT OF TUCSON, Pima County, Arizona; William Druke, magistrate thereof; and Jesse Bernard COHEN, the Real Party in Interest, Appellees.

No. 2 CA-CIV 1513.

Court of Appeals of Arizona, Division 2.

April 9, 1974.

James Webb, Tucson City Atty., Herbert E. Williams, Former City Atty., William E. Hildebrandt, Asst. City Atty., Tucson, for appellant

Risner, Wolf & Raven, by Roger C. Wolf, Tucson, for appellees.

OPINION

HATHAWAY, Chief Judge.

Appellee Cohen was charged in City Court with a violation of the following ordinance:

'Sec. 11--33. Loitering.

A person is guilty of loitering when he: (1) Loiters, remains or wanders about in a public place for the purpose of begging . . ..'

The city magistrate sustained the appellee's attack on the constitutionality of the subject ordinance, ruling that it suffered from vagueness and overbreadth, and dismissed the complaint. This ruling was upheld by the superior court in a special action instituted by appellant, hence this appeal.

The court's findings below that this ordinance fails to give a person of ordinary intelligence fair notice of what conduct is proscribed are unjustified in our opinion. The ordinance contains two elements: (1) the act of loitering; and (2) having the purpose of begging.

The word 'loiter' (as well as the words 'remain' or 'wander') must be construed in the context of the rest of the statute and is not per se unconstitutionally vague. State v. Kimball, 503 P.2d 176 (Haw.1972). The United States Supreme Court in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965) upheld a 'loitering' ordinance when it had been construed to apply to specific conduct:

'The Alabama Court of Appeals has thus authoritatively ruled that § 1142 applies only when a person who stands, loiters, or walks on a street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on. It is our duty, of course, to accept this state judicial construction of the ordinance. (citations omitted) As so construed we cannot say that the ordinance is unconstitutional though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.' (382 U.S. at 91, 86 S.Ct. at 214, 15 L.Ed.2d at 180).

In State v. Starr, 57 Ariz. 270, 113 P.2d 356 (1941), our Supreme Court found that the word 'loiter' was not unconstitutionally vague, and upheld a statute proscribing loitering on the grounds of a public school or within 300 feet thereof, noting:

'Webster's dictionary defines 'loiter' 'To be slow in moving; delay; linger; saunter; lag behind.' The word 'loiter' does not signify anything bad or criminal except when given that significance in a criminal ordinance or statute.' (57 Ariz. 272, 113 P.2d 357).

In State ex rel. De Concini v. Gatewood, 10 Ariz.App. 274, 458 P.2d 368 (1969), we upheld an ordinance making it illegal to loiter in a bar or tavern during certain hours. A statute prohibiting loitering without more would be invalid as vague. Loitering alone is not prohibited here, but loitering 'for the purpose of begging.' When 'loitering' is joined with a second specific element, courts have uniformly found that such legislation sufficiently informs a person of common understanding as to what is forbidden. A series of New York cases (many collected in the annotation at 25 A.L.R.3d 836, 842 (1969)) illustrates this view. The author of the annotation summarizes these cases as follows:

'The thrust of the New York cases appears to be that legislation merely punishing 'loitering' is unconstitutionally vague, but that where the term 'to loiter' or 'loitering' is used in connection with or to describe another prohibited act, such legislation is valid.' 25 A.L.R.3d at 842.

Thus, New York courts have upheld a statute making it a misdemeanor to loiter in the common areas of a building For the purpose of unlawfully using or possessing any narcotic durg. People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202, 48 A.L.R.3d 1264 (1969); People v. L., 66 Misc.2d 191, 320 N.Y.S.2d 456 (1971); Burmeister v. New York Police Department, 275 F.Supp. 690 (S.D.N.Y. 1967). In People v. Willmott, 67 Misc.2d 709, 324 N.Y.S.2d 616 (1971), the court upheld the validity of a statute which prohibited loitering 'in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature.' In People v. Diaz, 4 N.Y.2d 469, 176 N.Y.S.2d 313, 151 N.E.2d 871 (1958), the New York Court of Appeals held an ordinance which prohibited mere loitering to be unconstitutionally vague. The court noted that while the term 'loiter' or 'loitering' has acquired a common and accepted meaning 'it does not follow that by itself, and without more, such term is enough to inform a citizen of its criminal implications . . ..' (176 N.Y.S.2d at 315, 151 N.E.2d at 872). However the court carefully distinguished the ordinance before it from others as follows:

'Whenever a conviction for loitering has been upheld, it is because the statute uses the term 'loiter' or 'loitering' to point up the prohibited act, either actual or threatened. For instance, under the Penal Law loitering is deemed 'disorderly conduct' whenever 'Any person * * * with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned * * * Congregates with others on a public street and refuses to move on * * * Frequents or loiters about any public place soliciting men' (Penal Law, § 722, subds. 3, 8). When a statute is so framed, the term 'loiter' or 'loitering' takes on significance as a prohibited act, in the violation of which a crime is deemed committed (cf. People v. Hussock, 6 Misc.2d 182, 23 N.Y.S.2d 520, certiorari denied 312 U.S. 659, 61 S.Ct. 733, 85 L.Ed. 1107) and convictions had thereunder have been upheld (cf. People v. Galpern, 259 N.Y 279, 181 N.E. 572, 83 A.L.R. 785; People v. Gaskin, 306 N.Y. 837, 118 N.E.2d 903).'

In Wright v. Munro, 144 Cal.App.2d 843, 301 P.2d 997 (1956), the court examined the constitutionality of section 25657 of the California Business and Professions Code which is highly similar to the ordinance under consideration:

'It is unlawful:

(b) In any place of business where alcoholic beverages are sold to be consumed upon the premises, to employ or knowingly permit anyone to Loiter in or about said premises For the purpose of begging or soliciting any patron or customer of, or visitor in, such premises to purchase any alcoholic beverages for the one begging or soliciting.' (Emphasis added)

The court had no trouble upholding the statute against a contention that it was unconstitutionally vague and found the word 'loiter' to be 'clear and certain'. (301 P.2d at 1000).

In People v. Weger, 251 Cal.App.2d 584, 59 Cal.Rptr. 661 (1967) cert. den. sub nom. California v. Weger, 389 U.S. 1047, 88 S.Ct. 774, 19 L.Ed.2d 840 (1968) (Douglas, J., dissenting), the California Court of Appeals refected a contention that the following statute (Penal Code § 647(e)) ¹ is vague:

'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:

(e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.'

Six years later, the same court in reconsidering the constitutionality of this same statute in light of intervening United States Supreme Court decisions, found the statute to be constitutionally sound. People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973). The reasoning in People v. Weger, supra, 59 Cal.Rptr. at 667, supprots the position that an enactment is not necessarily unconstitutionally vague when it proscribes loitering so long as there are additional elements to the offense which go beyond mere loitering:

'As now written, section 647, subdivision (e), does not make loitering and wandering upon the streets or from place to place without apparent reason or business without more a punishable offense. As there used the words do not connote unlawful activity. (Citation omitted) They do no more than describe the person who may be asked by a peace officer to identify himself and to account for his presence in the prescribed circumstances. As so used the words 'loiter' and 'wander' are not so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application. (Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989.' (footnote omitted)

In State v. Armstrong, 282 Minn. 39, 162 N.W.2d 357 (1968), the Supreme Court of Minnesota considered the validity of an ordinance forbidding any person to loiter with intent to solicit for purposes of prostitution or any other acts prohibited by law. In upholding the statute, the court reasoned as follows (162 N.W.2d at 360):

'The offense defined by each of the two ordinances consists of two essential elements: (1) The act of lurking or loitering and (2) a proved intent to commit an unlawful act. Whatever the arguable ambiguity or generality as to the element of 'lurking' or 'loitering,' there is none whatever as to the element of intent. The element of intent gives a meaning to the element of lurking or loitering and is a rational basis for proscribing such acts as harmful conduct. Both elements of the offense must, of course, be proved. The overt act of lurking or loitering, standing alone, is not made punishable by the provisions of the ordinances under which defendant...