State v. Bloss

• Decision Date: 17 June 1980
• Docket Number: No. 6932,6932
• Citation: 613 P.2d 354,62 Haw. 147
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Floyd BLOSS, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 354

613 P.2d 354

62 Haw. 147

STATE of Hawaii, Plaintiff-Appellant, v. Floyd BLOSS, Defendant-Appellee.

No. 6932.

Supreme Court of Hawai'i.

June 17, 1980.

Syllabus by the Court

1. A statute is void for vagueness if it fails to provide an explicit standard of enforcement, which in practice leaves the definition of its terms to law enforcement officers and leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.

2. The general rule of law concerning the concept of severability is that if any part of a statute is held invalid, and if the remainder is complete in itself and is capable of being executed in accordance with the apparent legislative intent, then the remainder must be upheld as constitutional.

3. The Equal Protection Clause does not prohibit the State from passing laws which treat classes of people differently, but only from treating classes differently when the basis of the discrimination does not bear a rational relationship to a legitimate statutory objective.

4. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.

5. The party assailing a classification as violative of the State and Federal constitutions generally has the burden of showing with convincing clarity that the classification is not rationally related to the object of the legislation.

6. Equal protection of the law requires that lawmakers must treat like things in a like manner.

7. Whether a given classification is reasonable or unreasonable must be determined from the facts of the particular case. Where there is no reasonable basis for the legislative classification, it will be stricken down as being arbitrary.

Arthur E. Ross, Deputy Pros. Atty., Honolulu (Ann M. Misura, Deputy Pros. Atty., Honolulu, on the briefs), for plaintiff-appellant.

Evan R. Shirley, Honolulu (Marguerite B. Simson, Honolulu, with him on the brief, Shirley & Jordan, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., OGATA, MENOR and LUM, JJ., and KOBAYASHI, Retired Justice, assigned by reason of vacancy.

LUM, Justice.

This case involves the constitutionality of a State law prohibiting minors from playing or loitering near pinball machines. Defendant was arrested on November 7, 1977 and was charged with violating Section 445-43, Hawaii Revised Statutes, by allowing four minors, unaccompanied by parents, guardians or duly authorized adults, to loiter about or to play "pinball" games as defined in HRS § 445-41. Before trial, defendant filed a motion to dismiss. The district court, finding the statute unconstitutional due to vagueness of the term "to loiter about," granted the motion. The State appealed. We affirm the lower court's ruling that the statute is unconstitutional, holding that HRS § 445-43 is unconstitutional because it is vague and because it no longer bears a rational relationship to the harm sought to be avoided.

FACTS

Defendant is the owner and manager of Fare Play Amusement, located in Waikiki. The coin-operated amusement games within defendant's establishment consist of pinball machines, "foosball" games, ¹ and electronic video ² games. Video games and pinball machines are placed alongside each other. "Foosball" and pinball games come within the definition of HRS § 445-41, but video games do not.

Defendant's establishment charges an admission fee of one dollar ($1.00) which entitles the customer to six tokens. Each token operates any game in the house. Three of the juveniles were arrested for playing pinball machines; the fourth was arrested for loitering.

ISSUES

The issues in this appeal are (1) whether the term "to loiter about" in HRS § 445-43 is unconstitutionally vague and (2) whether the entire statute violates the equal protection guaranty of the United States and Hawaii State constitutions ³ in that it no longer bears a rational relationship to the object sought to be obtained by the legislation.

PERTINENT STATUTES

HRS § 445-43 provides that:

It shall be unlawful for any person operating or in charge of the operation of any ball or marble game, as defined in section 445-41, or any dart or similar game for which a fee is charged for playing, to permit any person under the age of eighteen years unaccompanied by either a parent or guardian, or an adult person duly authorized by a parent or guardian to accompany such child, to loiter about or to play such game, and such person shall be fined not more than $100 or imprisoned not more than thirty days, or both.

HRS § 445-41 provides that:

No person shall operate or permit to be operated on any premises under his control, for profit any machine or device used as a game or sport in which balls or marbles are projected against obstacles governing their course toward or away from various slots or receptacles, without first having obtained from the treasurer of the county an annual license therefor, for which shall be charged, and collected as a county realization, the sum of $5 for each machine or device.

I. VAGUENESS OF THE LOITERING PROVISION

This court has recognized that a statute is void for vagueness if it fails to provide an explicit standard of enforcement, which in practice leaves the definition of its terms to law enforcement officers Appellant's major contention in this case is that the term "to loiter about" sets forth a clearly ascertainable standard of conduct and thus does not violate the due process clauses of the United States and Hawaii State constitutions. ⁴ We do not agree.

and "leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." State v. Kaneakua, 61 Haw. 136, 597 P.2d 590 (1979); State v. Huelsman, 60 Haw. 308, 588 P.2d 394 (1978); State v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972); State v. Grahovac, 52 Haw. 527, 480 P.2d 148 (1971).

As early as Territory v. Anduha, 31 Haw. 459, 48 F.2d 171 (9th Cir. 1931), a statute that made it a misdemeanor for any person to "habitually loaf, loiter, and/or idle upon any public street or highway or in any public place" was held unconstitutional.

In several more recent rulings this court has held loitering and vagrancy-type statutes to be unconstitutionally vague and overbroad. In State v. Abellano, 50 Haw. 384, 441 P.2d 333 (1968), a statute prohibiting presence at a cockfight exhibition was held unconstitutionally vague. The court pointed out a line of cases declaring "that a penal statute must state with reasonable clarity the acts it proscribes." Id. at 385, 441 P.2d at 334.

Within the last ten years this reasoning from Abellano was reiterated in three other decisions. In State v. Shigematsu, 52 Haw. 604, 483 P.2d 997 (1971), we held that a statute proscribing presence at a "barricaded place" as defined by the statute in question was too vague and overbroad to satisfy the constitutional requirements of due process. In State v. Grahovac, supra, we also held unconstitutionally vague and overbroad a statutory sanction against wandering about the streets at late or unusual hours of the night without any visible or lawful business. And in In re John Doe, 54 Haw. 647, 513 P.2d 1385 (1973), we held that Honolulu's curfew ordinance prohibiting loitering by juveniles at night was violative of due process standards. We stated: "The term 'loitering' is simply too vague and imprecise because it fails to give proper notice as to what conduct constitutes unlawful activity and, in addition, its broad sweep has the effect of inhibiting otherwise lawful conduct." Id. at 651, 513 P.2d at 1388.

These decisions support our conclusion that "loitering," as used in the statute before us, is unconstitutionally vague. Other courts treating similar enactments have reached the same conclusion. ⁵

The State has cited cases where loitering statutes have been upheld in other jurisdictions. State v. Armstrong, 282 Minn. 39, 162 N.W.2d 357 (1968), concerned the constitutionality of two city ordinances which made it a misdemeanor to "loiter" or to "lurk" with the intent to solicit for purposes of prostitution or any other unlawful act. The Supreme Court of Minnesota found that the ordinances were not so vague and indefinite as to offend constitutional due process. However, the court based its opinion on the fact that the offenses defined by each of the two ordinances consisted of two essential elements: (1) the act of lurking or loitering and (2) a proved intent to commit an unlawful act. In order to obtain a conviction it was necessary to prove both elements of the offense, and the Minnesota Court found that the element of unlawful intent clarified the element of lurking or loitering, thus providing a rational basis for proscribing such acts.

Likewise, in Wright v. Munro, 144 Cal.App.2d 843, 301 P.2d 997 (1956), a California court upheld a statute prohibiting loitering with the purpose of soliciting alcoholic beverages. As in Armstrong, the statute in Wright required in addition to loitering a specific intent to do something else.

Unlike the statutes in question in Wright and Armstrong, HRS § 445-43 contains no Nor is the operator told by the statute the kind of behavior the police will use to distinguish the loiterer from the passerby. Juveniles may legally be on the operator's premises. Once admitted to the premises, an unaccompanied minor has the freedom to move about the public areas of the premises, except that he or she cannot watch a pinball game while standing within an uncertain distance of a pinball machine. The statute fails to define the point at which a minor's activity becomes loitering. For example, if a minor is in the company of an adult, the operator cannot be charged with a violation of HRS § 445-43. When the adult moves five feet away from the minor, is the minor now loitering or must the adult be ten or...