State v. Ellis

• Decision Date: 22 October 1991
• Docket Number: No. C0-90-2512,C0-90-2512
• Citation: 476 N.W.2d 662
• Parties: STATE of Minnesota, Respondent, v. Andrew ELLIS, Appellant.
• Court: Minnesota Court of Appeals

Page 662

476 N.W.2d 662

STATE of Minnesota, Respondent, v. Andrew ELLIS, Appellant.

No. C0-90-2512.

Court of Appeals of Minnesota.

Oct. 22, 1991.

Review Denied Dec. 13, 1991.

Syllabus by the Court

1. Minneapolis, Minn., Code of Ordinances Secs. 244.500 and 244.530, which require property owners to keep their dwellings in "a professional state of maintenance and repair" and in a condition that does not show "evidence of long neglect," are not unconstitutionally vague either facially or as applied to appellant's conduct.

2. Minneapolis, Minn., Code of Ordinances Sec. 87.90(f) makes it a crime to fail to comply with a written order from the Director of Inspections under the Minneapolis Housing Maintenance Code.

3. Combining several order violations in a misdemeanor charge did not violate appellant's right to a fair trial.

4. The evidence was sufficient to support appellant's conviction.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Robert Alfton, City Atty., and Steven M. Tallen, Holmes & Graven, Sp. Asst. City Atty., Minneapolis, for respondent.

Robert J. Zohlmann, Minneapolis, for appellant.

Considered and decided by HUSPENI, P.J., and PETERSON, and AMUNDSON, JJ.

OPINION

AMUNDSON, Judge.

Appellant claims Minneapolis, Minn., Code of Ordinances Sec. 244.500 (1982) and Sec. 244.530 (1985), are unconstitutionally vague on their face and as applied. He also contends Minneapolis, Minn.Code of Ordinances Sec. 87.90(f) (1978) does not make it a crime to fail to comply with a written order under the Minneapolis Housing Maintenance Code. Further, he argues he was denied a fair trial and the evidence was insufficient to support his conviction. We affirm.

FACTS

Appellant Andrew Ellis was employed by the City of Minneapolis Inspections Department as an inspector from 1969 until 1990. During that time he owned investment rental properties located in Minneapolis. In 1976 the Department of Inspections started annual inspections of rental properties owned by department employees. In May 1989 Ellis' properties were inspected by Woody Dixon and Michael Osmonson. After the inspection, the Department issued Ellis 97 written orders to repair or properly maintain his properties. Many of the problems were repaired or the warnings were abated by department policy. In September 1989 the properties were reinspected and Ellis was warned to make remaining repairs.

A reinspection in October 1989, however, revealed several unrepaired items. Consequently, the Department issued misdemeanor citations on each of Ellis' seven properties, charging him with failing to comply with written repair orders. Minneapolis, Minn., Code of Ordinances Sec. 87.90(f). These properties were labeled A-G at the trial. The state's complaint included several housing code violations for each of the properties.

Following a trial, the jury returned guilty verdicts on two complaints, one relating to violations on property A and one relating to violations on property B. Ellis moved for judgment of acquittal on both properties, which the trial court denied. After evaluating each inspection violation, however, the trial court granted Ellis' motion for a new trial on property B. It found the evidence sufficient to support conviction for each violation of property A. Ellis appeals his conviction.

ISSUES

1. Are Minneapolis, Minn., Code of Ordinances Secs. 244.500 and 244.530 unconstitutionally vague either facially or as applied to appellant's conduct?

2. Does Minneapolis, Minn., Code of Ordinances Sec. 87.90(f) make it a crime to fail to comply with a written order from the Director of Inspections under the Minneapolis Housing Maintenance Code?

3. Did appellant receive a fair trial when the state combined several order violations into a single misdemeanor charge?

4. Was the evidence sufficient to support appellant's conviction on property A?

ANALYSIS

I.

Ellis argues two provisions of the Minneapolis Code are unconstitutionally vague. The Code provides:

All exterior surfaces shall be of a material manufactured or processed specifically for use in such a weather-exposed location, including redwood and other naturally suitable materials, and every exterior wall, chimney, foundation and roof shall be reasonably weathertight, watertight and rodentproof; and shall be kept in a professional state of maintenance and repair. Exterior walls shall be maintained and kept free from dilapidation by cracks, tears or breaks or from deteriorated plaster, stucco, brick, wood or other material that is extensive and gives evidence of long neglect.

Minneapolis, Minn., Code of Ordinances Sec. 244.500 (emphasis added). The Code also provides:

Every window, exterior door and basement hatchway shall be reasonably weathertight, watertight and rodentproof; and shall be kept in a professional state of maintenance and repair.

Minneapolis, Minn., Code of Ordinances Sec. 244.530 (emphasis added).

Ellis contends the phrases "professional state of maintenance and repair" and "extensive and gives evidence of long neglect" are unconstitutionally vague on their face and as applied to him. We disagree.

Ordinances are presumed valid and are not to be found unconstitutional unless they are shown to violate the constitution beyond a reasonable doubt. City of Richfield v. Local No. 1215, Int'l Ass'n of Fire Fighters, 276 N.W.2d 42, 45 (Minn.1979). The burden of proof is on the person attacking the validity of the ordinance. State v. Perry, 269 Minn. 204, 206, 130 N.W.2d 343, 345 (1964). Vagueness challenges to ordinances that do not involve the first amendment, must be examined in light of the facts in the case at hand. State v. Becker, 351 N.W.2d 923, 925 (Minn.1984). The ordinances are unconstitutionally vague as applied to Ellis' conduct if they fail to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discretionary enforcement." State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985) (quoting Kolender v. Lawson, 461 U.S. 352, 353, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)). Because the ordinances in question do not reach constitutionally protected conduct, unless the ordinance is vague as applied to Ellis' actual conduct, the vagueness challenge fails. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)

We hold the phrases "professional state of maintenance and repair" and "extensive and gives evidence of long neglect" are not unconstitutionally vague as applied to Ellis' conduct. Ellis claims that because these phrases are subject to interpretation by housing authority employees, they are overly vague. All language is subject to interpretation. Municipalities cannot be required to legislate so precisely that there is never any disagreement over the meaning of terms. Such a requirement would provide an excuse for citizens who do not wish to obey the law.

Equally important, the 1989 written repair orders Ellis received described what conditions of his rental properties violated the ordinances. Thus he could reasonably determine what conduct was prohibited and what the city's ordinances required him to do. Moreover, the term "professional state of maintenance and repair" is defined in the Minneapolis Code. Minneapolis, Minn., Code of Ordinances Sec. 244.40 (1983) (maintenance and repair shall be done in a "reasonably skilled manner".) Accordingly, the two ordinances meet the standard required by due process.

This case is distinguishable from State v. Reha, 474 N.W.2d 360 (Minn.App.1991), pet. for rev. granted (Minn. Oct. 7, 1991). In Reha the term "clean and sanitary condition," as found in Minneapolis, Minn., Code of Ordinances Sec. 244.690 (1985), was determined to be unconstitutionally vague. Id. at 363. This case, however, does not involve residential housekeeping, which this court noted in Reha, requires more precision to regulate than commercial or retail maintenance. Id. at 364 (citing Aloha, Inc. v. Liquor Control Com'n. 191 Ill.App.3d 523, 526-27, 138 Ill.Dec. 886, 889, 548 N.E.2d 116, 119 (1989) (use of "clean and sanitary" in regulating liquor establishments was not unduly vague). Further, unlike the ordinance in Reha, section 244.40 defines the phrase in question, which we believe prevents its arbitrary and discriminatory enforcement.

II.

Ellis also contends that there was no authority to charge him with a crime under section 87.90(f) of the Building Code for violations of the Housing Maintenance Code. We disagree. Minneapolis, Minn.Code of Ordinances Sec. 87.90(f) provides:

The director of inspections and his regularly authorized assistants are hereby given authority to order and compel compliance with the regulations and provisions of the building code, or any other law or ordinance the enforcement of which comes within the authority of the director of inspections and to order any condition remedied in such manner as to secure compliance. The foregoing authority shall be in addition to any other provisions of this Code of Ordinances. * * * Failure to comply with such written order of the director of inspections or his...