State, City of Minneapolis v. Reha

483 N.W.2d 688, 1992 Minn. LEXIS 122, 1992 WL 81058

• Court: Supreme Court of Minnesota
• Decided: April 24, 1992
• Docket: CX-90-2372
• Status: Published

Opinions

OPINION

YETKA, Justice.

This case involves the constitutionality of Minneapolis, Minn., Code of Ordinances § 244.690 (1990). That section provides:

Every occupant of a dwelling or dwelling unit shall keep in a clean and sanitary condition that part of the dwelling unit, and premises thereof which that person occupies or controls.

Id. In September 1990, a jury convicted Theora Reha for “failure to clean a dwelling” under the ordinance. In October 1990, the trial court sentenced Ms. Reha to 35 days in jail or a $700 fine. The sentence was stayed pending the exhaustion of Ms. Reha’s appeals. The court of appeals reversed the conviction, holding that the ordinance’s “clean and sanitary condition” language was unconstitutionally vague as applied to Ms. Reha’s conduct. State v. Reha, N.W.2d 360 (Minn.App.1991). We now reverse the court of appeals’ decision and reinstate Ms. Reha’s conviction.

In November 1989, the Minneapolis Health Department received an anonymous complaint about “a lot of clutter” inside respondent’s house in south Minneapolis. Upon arrival at the residence, Minneapolis Environmental Health Inspector Rebecca Wyrick discovered “severe clutter” in the yard and “some maintenance problems.” Inspector Wyrick testified that there was “clutter up to four feet” on the front porch so that the front door could not be opened. The back porch and yard also contained boxes, clothing, and “more clutter.” Inspector Wyrick asked respondent for permission to inspect the house’s interior; respondent refused and told Inspector Wy-rick to “get off the property.”

On December 1, 1989, Inspector Wyrick returned to respondent’s home with a search warrant. Inspector Wyrick was accompanied by a police officer, her supervisor in the health department, and a housing department supervisor. Following the inspection, Inspector Wyrick issued respondent the following cleaning and pest control order:

You are hereby notified to complete the following orders at 4519 Blaisdell Avenue on or before December 7, 1989 to correct the conditions which are in violation of City of Minneapolis ordinances. We ask your cooperation so that legal action will not be necessary.

1. Remove clutter from entire dwelling to make all means of egress accessa-ble. 244.960.¹

2. Remove clutter from entire dwelling to remove vermin harborage. 244.-690.

3. Rid entire premises of cockroaches. Use a professional licensed pest control operator. 244.600.²

Is/ R. Wyrick

Inspector Wyrick also issued Ms. Reha a Notice of Condemnation, declaring her house “unfit for human habitation and dangerous to life and health because of ‘severe clutter [and] vermin infestation.’ ” The notice required respondent either to clean up or vacate the premises.

Inspector Wyrick made several attempts to re-inspect the interior of the premises after the initial inspection on December 1, 1989. Respondent refused Inspector Wy-rick entry on each of these attempts. Inspector Wyrick replaced condemnation placards on both the front and back of respondent’s house each time she attempted to re-inspect the house. At the time of trial, Inspector Wyrick had replacarded respondent’s house with condemnation notices nine separate times.

On January 29, 1990, Inspector Wyrick issued the respondent a ticket for her failure to comply with the cleaning order of December 1. When the respondent failed to comply with the ticket by vacating the premises, the health department turned the matter over to the Minneapolis City Attorney’s Office. On March 12, 1990, the city filed a complaint against the respondent, charging her with violating section 244.690 by “fail[ing] to keep in a clean and sanitary condition that part of the dwelling unit and premises thereof which she occupied or controlled.”

At trial, the state presented twelve photographs taken during the December 1, 1989, inspection. Many of the photos show rooms where clothing is piled several feet high, partially blocking doors and windows. In some of the photos, plaster walls appear crumbling and dirty. Another depicted an unflushed and dirty toilet, surrounded by stained clothing and rubbish. Another showed an apple cider bottle on a stairway that, according to Inspector Wyrick, contained what smelled and looked like urine. Finally, two photos show clothing and boxes piled on the back porch and in the back yard.

The state also called David Nordmeyer, supervisor of the environmental control section of the Minneapolis Health Department. He was one of the people who had accompanied Inspector Wyrick on the December 1, 1989 inspection. His observations at that time were “typical of what we had seen in past involvement with Ms. Reha, trash, rubbish, garbage piled at various heights throughout the house, evidence of vermin, and a house that’s not kept in a sanitary condition nor maintained structurally.” Nordmeyer also testified that the clothing he saw on December 1,1989, “was infested with vermin of various kinds * * *. If by being dirty you mean did it have roach droppings on it, the clothing that I was looking at had that appearance. Not necessarily every piece, but overall.” Finally, the following exchange took place:

Q. What is your understanding of the meaning of clean and sanitary conditions?

A. That we can see the floor and there are not vermin present. That seems to be the standard of the community.

Q. How are you aware that that’s the standard of the community?

A. Because I believe most people live where they see the floor and don’t have vermin in their homes.

On the second day of trial, respondent testified in her own behalf. On direct examination, respondent was shown the photographs taken during the December 1, 1989 inspection. She was asked to explain what was depicted in each photograph. She claimed that all the clothing in the photographs was clean or in the process of being cleaned. The crumbling sheetrock was explained as one of many ongoing renovations in the house. Empty pop bottles were used as “little miniature greenhouses.” According to respondent, the apple cider bottle on the stairway indeed contained apple cider, not urine.

The last witness was Michelle Reha, respondent's 19-year-old daughter who was living with respondent at the time of the inspection. Michelle’s testimony mirrored that of her mother regarding each of the photographs. According to Michelle, all the clothing was clean and in the process of being packed away for needy relatives in Iowa. Similarly, the empty pop bottles were used for “plants and stuff” and “wouldn’t have been dirty, I don’t think.” One of the pictures showed the bathroom “being remodeled,” which explained the crumbling plaster and makeshift wall.

The jury weighed this evidence and returned a verdict convicting respondent of violating section 244.690. Respondent challenges the validity of her conviction by arguing that section 244.690 is unconstitutionally vague.

The void-for-vagueness doctrine requires that a legislative enactment define a criminal offense with sufficient definiteness and certainty that “ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); see also State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). However, the vagueness doctrine is based in fairness and is not designed to “convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972); see also Grayned v. City of Rockford, 408 U.S. 104, 110 n. 15, 92 S.Ct. 2294, 2300 n. 15, 33 L.Ed.2d 222 (1972) (“It will always be true that the fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be a nice question’.” (citation omitted)). Finally, “[condemned to the use of words, [the court] can never expect mathematical certainty from our language.” Grayned, 408 U.S. at 110, 92 S.Ct. at 2300. An ordinance that is flexible and reasonably broad will be upheld if it is clear what the ordinance, as a whole, prohibits. Id.

In this case, Ms. Reha challenges the Minneapolis ordinance as applied to her conduct for its failure to provide fair warning of what conduct is prohibited and “to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement’.” Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974) (citations omitted). Ms. Reha lacks standing to bring a facial challenge to the ordinance for two reasons: First, the ordinance does not reach constitutionally protected conduct. Kolender, 461 U.S. at 358-59 n. 8, 103 S.Ct. at 1859 n. 8. In addition, “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (emphasis added). In our view, at least some of the testimony about the December 1, 1989 inspection, as weighed by the jury, described conduct which is “clearly proscribed” under the statute; thus, Ms. Reha lacks standing for a facial challenge.

Accordingly, to prevail on her unconstitutional-as-applied claim, Ms. Reha needs to show that the statute was impermissibly vague as applied to her own behavior. The void-for-vagueness doctrine does not allow “one who has received fair warning of the criminality of his own conduct from the statute in question * * * to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.” Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974).

In light of the facts of the case at hand, we think the ordinance withstands constitutional scrutiny. In addressing the constitutionality of the ordinance as applied to Ms. Reha’s conduct, the court of appeals should have considered whether Ms. Reha actually received “fair warning of the criminality” of her conduct from the statute and whether the state actually enforced the ordinance against her in an arbitrary and discriminatory manner. We conclude that Ms. Reha received fair warning of what the ordinance prohibits and that the city did not apply the ordinance in an arbitrary or discriminatory manner in this case.

In defining the degree of certainty and definiteness required of a statute, we have required that “ordinary people [be able to] understand what conduct is prohibited.” Newstrom, 371 N.W.2d at 528. Further, “where a statute imposes criminal penalties, a higher standard of certainty of meaning is required.” Id. (citing Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8). Moreover, we consider the nature of the enactment (e.g., regulation of individuals versus businesses) in evaluating the degree of certainty required. Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193.³ The most important factor in determining the degree of certainty required, however, is whether the law “threatens to inhibit the exercise of constitutionally protected rights.” Id. at 499, 102 S.Ct. at 1193. In this case, we believe the ordinance meets the fair-warning requirements of certainty. No one alleges, nor do we believe, that the ordinance threatens constitutionally protected rights. In addition, we think that most reasonable people could agree on an acceptable standard of “clean and sanitary” in the context of a housing code ordinance.

We also think that the “fair-warning” prong of the vagueness analysis was met in this case by the notice provisions built into the Minneapolis Code of Ordinances. In enforcing the “clean and sanitary” language of section 244.690, the city applies specific subsections of the ordinance dealing with rubbish and garbage,⁴ vermin and pest control,⁵ and other provisions detailing fire or health dangers.⁶ Furthermore, the city prosecutes violations of the code as a last resort. A prosecution occurs only after an individual fails to comply with the other enforcement provisions in the code.

For example, section 244.150 ensures that written notice be given where an inspector “determines that there has been a violation, or that there are reasonable grounds to believe that there has been a violation,” of the housing, health, or fire codes. The inspector’s judgment cannot be viewed in a vacuum. A notice of a violation or “reasonable grounds to believe that there has been a violation” must be considered notice of something in the absence of any showing that the enforcement is arbitrary, discriminatory, or harassing. When an individual receives notice of an alleged violation, he or she is given a reasonable amount of time to comply with the required repair or cleanup. Here, Ms. Reha was given several notices, both orally and in writing, which detailed specific violations of the code. In addition, Ms. Reha had more than “reasonable time” to comply with the orders: Nearly 2 months elapsed between the time of the inspection and the ticket; another month elapsed before the complaint was filed.

Finally, the potential for arbitrary and discriminatory enforcement is a legitimate concern with respect to any law. However, no evidence was introduced in this case to indicate whether the city enforced the ordinance in an arbitrary or discriminatory manner. See Village of Hoffman Estates, 455 U.S. at 503, 102 S.Ct. at 1195 (if the language of an ordinance is sufficiently clear, “the speculative danger of arbitrary enforcement does not render the ordinance void for vagueness”). It is uncontroverted that the city gave notice of the alleged violations and time to remedy them. There was no showing that the health department singled out Ms. Reha — the inspection followed an anonymous complaint. Only after Ms. Reha failed to comply with the cleaning order and ticket did the city prosecute her. Ms. Reha herself never alleged that the ordinance was actually enforced in an arbitrary or discriminatory manner. Thus, “ ‘[although it is possible that specific future applications ... may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise.’ ” Village of Hoffman Estates, 455 U.S. at 504, 102 S.Ct. at 1196 (quoting Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966)).

In sum, the most explicit enforcement guidelines are required where a statute or ordinance threatens constitutionally protected rights. Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193. Here, the ordinance does not threaten constitutional rights or contain any other broad invitation to discriminatory enforcement. See id. In addition, the notice provisions in the code provide fair warning to an individual who wishes to avoid prosecution for an alleged violation. Specific sections of the ordinance cannot be viewed in isolation. The code must be read as a whole and considered in light of both its intent and its application by the city. The policy considerations underlying that intent and application mandate our result in this case. In a heavily populated urban area, the rights of those living around Ms. Reha — her neighbors — must be respected. The city has a legitimate interest in keeping the filth, debris, and trash of one property from invading another where there is a likelihood that vermin infestation threatens the entire neighborhood. Finally, Ms. Reha’s conduct in this case is unreasonable to others in the same sense that, in the words of Justice Holmes, one may not “falsely shout[] fire in a theater.” Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 68 L.Ed. 470 (1919).

Therefore, we hold that the ordinance is constitutional as applied to Ms. Reha’s conduct. The ordinance, when read in conjunction with the entire code, provides fair warning of what conditions are unclean or unsanitary, and there is no evidence that the statute was applied in an arbitrary or discriminatory fashion.

The court of appeals’ decision is reversed.

1 . Section 244.960 provides in pertinent part:

Every habitable unit shall have a safe unobstructed means of egress. * * *

******

(j) Any required means of egress exposed to the elements shall be kept clear of rubbish * * *.

2 . Section 244.600 provides:

Every owner of a dwelling containing two (2) or more dwelling units shall be responsible for the extermination of insects, rodents, vermin, or other pests on the premises. Whenever infestation exists in two (2) or more of the dwelling units in any dwelling * * * extermination thereof shall be the responsibility of the owner. The director of inspections may order the extermination done by a person licensed to do such work * * * when in the director’s opinion the infestation is widespread and severe.

3 . For example, economic regulation is subject to a “less strict vagueness test because its subject matter is more often narrow, and because businesses * * * can be expected to consult relevant legislation in advance of action.” Village of Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193.

4 .Sections 244.700 (rubbish), 244.710 (garbage).

5 . Sections 244.600 (pest control by owners), 244.730 (pest control by occupants).

6 . E.g., sections 244.350 (rubbish storage), 244.-400-460 (light, heating and ventilation requirements), 244.890-1010 (fire protection).