STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS CHARTER TOWNSHIP OF YPSILANTI, Plaintiff-Appellee, UNPUBLISHED December 27, 2002 v No Washtenaw Circuit Court TED MILLER and 3 D MERCHANDISE LC No CZ BROKERS, INC, Defendant-Appellant. Before: Whitbeck, C.J., and Zahra and Murray, JJ. PER CURIAM. Defendants Ted Miller and 3 D Merchandise Brokers, Inc. appeal as of right the trial court s order granting plaintiff Ypsilanti Charter Township s (Township) request for an injunction barring defendants from operating a secondhand dealer s business without a license. Because we, like the circuit court, find that the ordinance at issue is constitutional, we affirm. We decide this case without oral argument pursuant to MCR 7.214(E). I. Material Facts and Procedural History The material facts in this case are not in dispute. Approximately twelve years ago, the Township adopted an ordinance regulating pawn shops and secondhand dealer businesses. At the time, state law only regulated secondhand dealers who operated within cities and villages, see MCL et seq. and MCL et seq., and therefore secondhand dealers operating within townships were unregulated. The ordinance dealing with secondhand dealers is set forth in Article 3, Divisions 1 3 of the Ypsilanti Charter Township code. From 1990 to 1995 defendant Ted Miller applied for and received a secondhand dealer license from the Ypsilanti Township board. In 1997, however, Miller failed to apply for a secondhand dealers license. Between 1997 and February 2000, discussions were held between the Township and defendant regarding the renewal of his license. After unsuccessful negotiations, the Township filed suit seeking to enjoin the operation of defendant s unlicensed secondhand broker dealership. After considering the briefs and arguments of the parties, the circuit court granted the Township s request for an injunction which barred defendant s from operating a secondhand dealer s business within the township without a license. The court reasoned that the definition of -1-

2 a secondhand dealer set forth in Ordinance was not so vague that it violated defendant s right to due process of law. Defendant s appeal that decision to this Court, and we now affirm. II. Analysis The only issue on appeal is whether Ypsilanti Township Ordinance s definition of secondhand dealer is so vague that it offends the requirements of due process of law set forth in the Michigan and Federal Constitutions. 1 We review this issue de novo, as it presents a question of law. Saginaw Co v John Sexton Corp, 232 Mich App 202, 222; 591 NW2d 52 (1998). The ordinance at issue, 22-81, defines a secondhand dealer as follows: Secondhand dealer or junk dealer means any person, corporation, or member of a co-partnership or firm whose principal business is that of purchasing, storing, selling, exchanging and receiving secondhand personal property of any kind or description (emphasis added). 2 Defendant s contention before the circuit court and again on appeal is that the phrase principal business is too vague to allow businesses within the township to determine whether they would be subject to the licensing requirements of the ordinance. We begin by recognizing that all statutes and ordinances are given a strong presumption of constitutionality. Taylor Commons v Taylor, 249 Mich App 619, 625; 644 NW2d 773 (2002). Accordingly, courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent. Wysocki v Felt, 248 Mich App 346, 355; 639 NW2d 572 (2002), citing Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104 (1997). As we held in Wysocki, supra at 355, [t]he court will not go out of its way to test the operation of a law under every conceivable set of circumstances. The court can only determine the validity of an act in the light of the facts before it. Constitutional questions are not to be dealt with in the abstract. Id., citing General Motors Corp v Attorney General, 294 Mich 558, 568; 293 NW2d 751 (1940). See also Council of Organizations and Others for Education About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997). These same rules govern the review of the constitutionality of an ordinance, Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999), and it is defendant s burden to establish that the ordinance is clearly unconstitutional. Gora v Ferndale, 456 Mich 704, ; 576 NW2d 14 (1998). 1 The federal due process clause is contained in US Const., Am XIV, while Michigan s is set forth in Const. 1963, art. 1, 17. The void for vagueness doctrine is derived from the constitutional guarantee that the State may not deprive a person of life, liberty, or property without due process of law. State Treasurer v Wilson (On Remand), 150 Mich App 78, 80; 388 NW2d 312 (1986). 2 This ordinance definition is substantially similar to that found in state law, and both definitions utilize the principal business phrase. See MCL

3 In Dep t of State Compliance and Rules Div v Michigan Education Ass n NEAA, 251 Mich App 110, 116; 650 NW2d 120 (2002), we set forth the three ways in which to challenge an ordinance on the basis that it is unconstitutionally vague : A statute may qualify as void for vagueness if (1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it give the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. We also pointed out that in determining whether a statute is void for vagueness, a court should examine the entire text of the statute and give the words of the statute their ordinary meanings. Dep t of State Compliance and Rules Div, supra at 116, citing People v Piper, 223 Mich App 642, 645; 567 NW2d 483 (1997) and In re Forfeiture of 791 North Main, 175 Mich App 107, 111; 437 NW2d 332 (1989). In line with this principle, it is critical for courts to remember that when considering whether an ordinance is void for vagueness, we do not set aside common sense, nor is the [township board] required to define every concept in minute detail. Rather, the statutory language need only be reasonably precise. Dep t of State Compliance and Rules Div, supra at As one respected federal jurist noted, [a]lthough the Fourteenth Amendment requires adequate notice of unlawful acts, it does not require that the language of a legislative enactment be mathematically precise. Michigan Wolfdog Ass n, Inc v St Clair Co, 122 F Supp 2d 794, 802 (ED Mich, 2000) (Gadola, J.). Accord Miller v California, 413 US 15, 28; 93 S Ct 2607; 37 L Ed 2d 419 (1973) (absolute godlike precision not required by the Constitution). As previously noted, defendants vagueness challenge focuses on only one of the three possible ways an ordinance can be determined vague, that the ordinance does not provide fair notice of the conduct or persons it regulates. Thus, defendant s challenge to the ordinance does not include the assertion that the ordinance impinges upon First Amendment freedoms. This is an important facet of this case since it is well settled that [w]hen a defendant s vagueness challenge does not implicate First Amendment freedoms, the constitutionality of the statute in question must be examined... without concern for the hypothetical rights of others. People v Knapp, 244 Mich App 361, 374 n 4; 624 NW2d 227 (2001), quoting People v Vronoka, 228 Mich App 649, 652; 579 NW2d 138 (1998). Thus, the proper inquiry is not whether the statute may be susceptible to impermissible interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in this case. Id. Defendant s only argument is that the ordinance s phrase principal business is impermissibly vague because there could be numerous hypothetical scenarios under which many businesses that ordinarily would not be considered secondhand dealers could fall under the definition because they sell new and used goods. We disagree. Initially we note that defendant s argument is inconsistent with the applicable standard of review. As we noted earlier in this opinion, we do not strike down legislation as unconstitutional if it could be deemed unconstitutional under any possible scenario. Wysocki, supra. See also In Re Trejo Minors, 462 Mich 341, 354; 612 NW2d 407 (2000). Indeed, the opposite is true. Only if there is no possible reasonable construction which would render the legislation constitutional must we strike it down. Council of Organizations and Others for Education and Parochiaid, supra. So, the fact that defendant has offered several interesting hypotheticals as to the possible application of the phrase principal business does not require striking down the ordinance on vagueness grounds, especially when no First Amendment rights are at stake. Knapp, supra; Vronoka, supra. -3-

4 We also note that defendant s hypotheticals ignore the factual situation presented to the trial court. Before the trial court it was undisputed that plaintiff had interpreted principal business to mean that more than fifty percent of the revenue from the particular business was generated from the sale of secondhand personal property. That is why defendant had applied for a secondhand dealer license for five consecutive years and there was no evidence to dispute that that is precisely how the Township had always interpreted the ordinance. In addition, uncontested affidavits submitted by the Township showed that approximately 70% of defendant s current business is generated from secondhand sales. Application of the phrase principal business to mean more than fifty percent of the revenue generated from a particular business is, as the trial court noted, quite reasonable and consistent with a common understanding of that phrase. More importantly, the undisputed evidence before the trial court revealed that as applied to defendant in this case, the ordinance was not vague. Knapp, supra. Like the trial court, we have found no reported Michigan cases applying the identical phrase set forth under Michigan s secondhand dealer statute, MCL The trial court correctly noted, however, that there are decisions throughout the country that have rejected vagueness challenges to statutory phrases quite similar to that utilized by the Township in this ordinance 3. For example, in 511 Detroit Street Inc v Kelley, 807 F2d 1293 (CA 6, 1986) the plaintiff challenged a provision within Michigan s anti-obscenity law which provided that a person would be guilty of obscenity in the first degree if dissemination of obscene material was a predominate and regular part of a person s business at a particular establishment, and if obscene materials were a principal or substantial part of the stock and trade of that establishment. Id. at The district court held part of the statute unconstitutionally vague and enjoined its enforcement. On appeal, the United States Court of Appeals for the Sixth Circuit reversed, holding that the statute s use of such phrases as predominate, regular, principal, substantial and stock and trade are phrases which are understood by ordinary people and which are utilized throughout the civil and criminal statutes and case law and therefore are not impermissibly vague. Id. at Further, although the court noted that the plaintiff in that case had come up with interesting hypotheticals as to the possible application of the terms within the statute, the court noted that the fact that there are cases near the margin where it is difficult to draw the line does not make a statute unconstitutional. Id. Likewise, in United States v Clinical Leasing Service, Inc, 925 F2d 120 (CA 5, 1991), the defendant challenged a controlled substance statute which required that physicians file a separate registration at each principal place of business. Defendant challenged the phrase each principal place of business as being unconstitutionally vague. Clinical Leasing Service, Inc, supra at 122. The district court rejected defendant s argument, upholding the statute in full. The Fifth Circuit affirmed, noting that although the phrase may engender some limited amount of confusion, because the word principal is plainly understood by a reasonable person, it is not impermissibly vague. Id. at 123. Likewise, in Joseph E Seagram and Sons Inc v Hostetter, 384 US 35, 48-49; 86 S Ct 1254; 16 L Ed2d 336 (1966), rev d on other grounds, 491 US 324; 109 S Ct 2491; 105 L Ed2d 275 (1989), the Supreme Court rejected a claim that the terms principal or 3 Interestingly, despite having the burden of proving that the ordinance is clearly unconstitutional, defendant has not cited to a single case that holds this or a similar phrase to be unconstitutionally vague. -4-

5 substantial with respect to businesses falling within the definition of a related person under a liquor law were constitutionally invalid. We agree with the reasoning of these decisions. We also note, as did the trial court, that the phrase principal business is utilized not only in the state statute governing the licensing of secondhand dealers, MCL , but is found throughout the Michigan Compiled Laws. See, e.g., MCL f (definition of venture capital firm); MCL (corporate property situs); MCL (suit to recover fees due or venue provision under pure foods and standards provision); MCL (purchases of unrelated business items by or through their employer under Unlawful Trades Act); MCL (financial planning services definitions under the Debt Management Act); MCL (exemptions under the Uniform Securities Act); MCL (conservator for alien or foreigner under the insurance code); MCL (foreign attorneys definition). The fact that the phrase principal business is utilized in each of the foregoing statutory provisions does not mean that the phrase is immune from constitutional invalidity. However, it is at least a reason why we conclude that that phrase is one that is commonly understood by an ordinary person and, therefore, does give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Grayned v Rockford, 498 US 104, ; 92 S Ct 2294; 33 L Ed2d 222 (1972). See also 511 Detroit Street, Inc, supra at 1296 ( the terms of the statute are found throughout the law and are within the understanding of ordinary people ). We do not believe that this ordinance is so vague that it may trap the innocent by not providing fair warning. Id. III. Conclusion In light of the foregoing, we affirm the circuit court s opinion and order concluding that ordinance is not unconstitutionally vague. Affirmed. /s/ Brian K. Zahra /s/ Christopher M. Murray -5-

6 STATE OF MICHIGAN COURT OF APPEALS CHARTER TOWNSHIP OF YPSILANTI, Plaintiff-Appellee, UNPUBLISHED December 27, 2002 v No Washtenaw Circuit Court TED MILLER and 3 D MERCHANDISE LC No CZ BROKERS, INC, Defendants-Appellants. Before: Whitbeck, C.J., and Zahra and Murray, JJ. WHITBECK, C.J. (dissenting). I respectfully dissent from the majority s conclusion that Ypsilanti Charter Township s ordinance governing secondhand dealer is constitutionally sound, rather than vague on its face. I. Basic Facts And Procedural History The township enacted an ordinance regulating pawnbrokers, as well as junk and secondhand dealers. 1 The primary mechanism for regulating these dealers is the licensing provision in 22-96, which states: It shall be unlawful for any person, corporation, or member of a copartnership or firm to engage in the business of a pawnbroker, secondhand dealer or junk dealer, whether as an owner, employee or otherwise, within the boundaries of the township without first obtaining a license therefor issued in accord with the provisions of this article. [2] Further, the ordinance bars a person, corporation, or member of a copartnership or firm from operat[ing] upon an expired or transferred pawnbroker, secondhand dealer or junk dealer s license. 3 1 Ypsilanti Charter Township Ordinances, art III. 2 Ypsilanti Charter Township Ordinances, art III, div 2, (emphasis added). 3 Id. at (a). -1-

7 The ordinance defines pawnbrokers, secondhand dealers, and junk dealers, stating: Pawnbroker means any person corporation or member of a copartnership or firm who loans money on deposit or pledge of personal property, or other valuable thing, other than securities or printed evidence of indebtedness, or who deals in the purchasing of personal property or other valuable thing on condition of selling the same back again at a stipulated price. Secondhand dealer or junk dealer means any person, corporation, or member of a copartnership or firm whose principal business is that of purchasing, storing, selling, exchanging and receiving secondhand personal property of any kind or description. [4] The ordinance also creates the license application 5 and revocation 6 processes, prescribes the necessary contents of the application, 7 authorizes a background investigation for the applicant, 8 and mandates a one-year term for the license. 9 Further, the ordinance includes a variety of conditions related to the way the licensee conducts business, such as recordkeeping 10 and fingerprinting. 11 The ordinance makes any violation a misdemeanor subject to a $500 fine, imprisonment for as many as ninety days, or both. 12 Overall, this ordinance is substantially similar to MCL et seq., the statute regulating secondhand and junk dealers in cities and villages, but not townships, which also defines a secondhand dealer or junk dealer on the basis of the dealer s principal business. 13 Miller owns 3 D Merchandise Brokers, Inc., which is located in the township and sells both new and used items. On November 5, 1990, April 15, 1993, November 30, 1993, November 30, 1994, and December 8, 1995, Miller applied for secondhand dealer s licenses. On the respective applications, he described the services he would provide as retail new & used merchandise, second hand dealer, retail trade new and used merchandise, second hand dealer, and new & used merchandise retail. 14 In each instance, the township issued him a license or renewed his existing license. The 1999 and the Ameritech telephone book listed 3 D in the yellow pages under the heading Second Hand Stores. In a small 4 Ypsilanti Charter Township Ordinances, art III, div 1, (emphasis in the original). 5 Ypsilanti Charter Township Ordinances, art III, div 2, 22-97, Id. at Id. at Id. at Id. at Ypsilanti Charter Township Ordinances, art III, div 3, Id. at Id. at MCL ; see also MCL Capitalization altered. -2-

8 advertisement above its telephone number, 3 D included text that said, We buy & sell closeouts, salvage & discontinued merchandise and anything of value. 15 For unknown reasons, the township did not issue licenses for a number of years after According to the township, Miller did not apply for a new license in In 1999, the township clerk reportedly sent Miller a letter informing him that he had to apply to have his secondhand dealer s license renewed. Miller allegedly responded that he no longer needed a license. A letter from a deputy sheriff for Washtenaw County explained that Miller believed that second hand personal property that has not yet been unpacked or used, purchased from a private individual, should be considered new merchandise, the same as new merchandise purchased from a manufacturer or wholesale distributor. Thus, the parties reached an impasse, with Miller maintaining that he did not need a secondhand dealer s license and the township insisting that he apply for just such a license. On September 21, 2000, the township filed a verified complaint for a preliminary, permanent injunction and order to show cause against defendants for operating a second hand dealer s business without a license. 16 The complaint included an affidavit from Washtenaw County Sheriff s Deputy Tim Anuszkiewicz, who alleged in pertinent part: 5. For the past eight months, I have inspected, on average 2-3 times per week, 3D Merchandise Brokers Inc. s personal property offered for sale to the general public. 6. Based upon my observations, the majority of the business transacted at 3D Merchandise Brokers Inc. pertains to purchasing, storing, selling, exchanging and receiving second hand personal property. 7. Based on my observations, I estimate between [sic] 70% of the merchandise offered for sale is used personal property. 8. My estimate is based upon the value of the personal property offered for sale, not the quantity of items of personal property offered for sale. At the show cause hearing, the township argued that 3 D was principally a secondhand business because it presented itself to the public as a secondhand business, its records showed that 3 D purchased secondhand goods from the public on a daily basis, Anuszkiewicz estimated that a majority of 3 D s business was in secondhand goods, and Miller had been previously licensed as a secondhand dealer for this business. The township proposed interpreting the term principal business in the definition of a secondhand dealer to mean activity in excess of 50 percent. Defendants, however, emphasized that there were many different ways to measure someone s principal business, including the number of items sold, the wholesale value of items, and the retail value of items. Defendants argued that the ordinance was unconstitutionally vague because it did not give reasonable notice to those individuals and businesses it affected 15 Capitalization altered. 16 Capitalization altered. -3-

9 that they were subject to regulation. Defendants also argued that their goods were not used, but that 3 D was akin to a hardware store that sold goods that had not been used but also did not have individual packaging. Defendants added that they believed that the township was selectively enforcing the ordinance because it did not require used car dealers and businesses that dismantled cars for parts to resell to obtain a secondhand dealer s license. The trial court subsequently issued a written opinion and order. After reciting the history of the case and the parties arguments, the trial court looked to the analogous statutory scheme, MCL et seq., noting that there was no case law interpreting the term principal business as used in MCL The trial court then reviewed a number of cases from foreign jurisdictions, all of which held that principal business or similar terms were not too vague to pass constitutional muster when defining the individuals and entities to the regulations governed. The trial court also noted that the term principal business is used without definition in other Michigan statutes. Accordingly, the trial court reasoned, [t]he generally accepted, common sense meaning of the phrase [principal business] and widespread use in our statutes is that a majority, or 51% of the business conducted determines whether the applicable statute will apply. The trial court went on to explain that the township has estimated that 70% of the value of defendant s property constitutes used goods offered for sale. Neither party has submitted evidence that any method other than valuation of the property offered for sale is used by the township to determine whether defendant meets the definition of a secondhand dealer. It appears that this is the standard used by the township to enforce the ordinance. Defendant was previously licensed as a secondhand dealer and has many years[ ] experience in the business of secondhand sales. No documentation is submitted. nor does defendant argue, that in [the] years he applied for a secondhand dealer license, some other method of valuation was used. Defendant had sufficient notice of which businesses are subject to the ordinance, and the ordinance is not unconstitutionally vague. Accordingly, the trial court granted the township an injunction barring defendants from operat[ing] a second hand dealer s business without a license. Defendants now argue that the trial court erred when it concluded that the ordinance was not vague. II. Standard Of Review Whether an ordinance is constitutional presents a question of law, which this Court reviews de novo. 17 III. Due Process Attorneys often refer colloquially to the void-for-vagueness doctrine. In actuality, a party alleging that a law is constitutionally invalid because it is vague challenges the law on due 17 Saginaw Co v John Sexton Corp, 232 Mich App 202, 222; 591 NW2d 52 (1998). -4-

10 process grounds. 18 A law is unconstitutional because it is vague if (1) it does not provide fair notice of prohibited conduct, (2) it encourages enforcement that is arbitrary or discriminatory, or (3) it is so broad it restricts First Amendment rights. 19 The constitutional touchstone for this ordinance, which makes violations a crime, is whether it defines 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 discriminatory enforcement. 20 On appeal, defendants only argue that this ordinance fails to give adequate notice of the prohibited conduct. The ordinance is crystal clear in defining the criminal act defendants are alleged to have committed: engag[ing] in the business of a... secondhand dealer... within the boundaries of the township without first obtaining a license therefor issued in accord with the provisions of this article. 21 Whether a person or entity has obtained such a license is an objective and verifiable fact, and not at all vague. Defendants did not have this sort of license at the time the township instituted this action. The problem with the ordinance, as defendants claim, is that it defines who is subject to this licensing requirement for secondhand dealers and the penalties imposed for not having a license when necessary on the basis of the term principal business. Without further explanation of that term, no one can know whether the value of the secondhand items, the number of the secondhand items, the percentage of business income derived from dealing in those items, the percentage of time spent dealing in those items, or other factors are relevant to determining what constitutes a principal business in secondhand dealing. For instance, under the language in the ordinance, no one can be certain whether a person with a full-time job in the service industry may, nevertheless, need a license to sell secondhand goods at a weekend flea market in the township. No one can tell whether a person who sells many inexpensive secondhand items would be able to avoid the need to obtain a license by selling a single, expensive, new item for an amount in excess of the profit from the secondhand items. Nor is it possible to know from the text of the ordinance whether to aggregate all items sold at multiple businesses owned or operated by the same dealer in order to determine whether the dealer s principal business is in secondhand goods. My concerns are not an abstract test of how the ordinance might operate under every conceivable set of circumstances, 22 but a recognition that Miller s description of the nature of 3 D s business which he claimed had changed from previous years directly conflicts with the township s definition of what constitutes a principal business in secondhand goods. 18 State Treasurer v Wilson (On Remand), 150 Mich App 78, 80; 388 NW2d 312 (1986); see US Const Am XIV; Const 1963, art 1, City of Lansing v Hartsuff, 213 Mich App 338, 343; 539 NW2d 781 (1995), quoting People v Lino, 447 Mich 567, ; 527 NW2d 434 (1994). 20 Lino, supra at , quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). 21 Ypsilanti Charter Township Ordinances, art III, div 2, Wysocki v Felt, 248 Mich App 346, 355; 639 NW2d 572 (2002). -5-

11 There is no published case law construing this ordinance or the analogous statute to provide this Court with any guidance. The dictionary provides little help. According to the dictionary, the ordinary meaning of the word principal is first or highest in rank, importance, value, etc.; chief, foremost. 23 Among the most relevant definitions of the word business are an occupation, profession, or trade and the purchase and sale of goods in an attempt to make a profit. 24 Read with each other and in the ordinance s context, these two words can be interpreted to mean that any person, corporation, or member of a copartnership or firm whose chief occupation is purchasing, storing, selling, exchanging and receiving secondhand personal property of any kind or description to make a profit is subject to the ordinance. However, this says nothing more about the nature of the conduct that requires a license than the term principal business. With ambiguous text and without help from the dictionary, the rules of interpretation allow courts to examine the purpose of the ordinance in order to see whether that helps clarify the meaning of principal business. 25 Viewed as a whole, the primary purpose of the ordinance appears to be to prevent trafficking in stolen goods under the guise of a legitimate secondhandgoods business. 26 Consider, for instance, that the ordinance requires the license applicant to submit to a background check, 27 provide significant identifying information, 28 including a complete set of fingerprints, 29 the applicant s [b]usiness, occupation, or employment in the three years preceding the application, 30 and [a]ll criminal convictions other than traffic violations and the reasons therefor. 31 The ordinance then charges the sheriff with recommending whether to grant the license to the applicant in light of the applicant s criminal history, and other factors. 32 These requirements all attempt to ensure that honest people, not criminals, deal in secondhand goods. The ordinance strives to ensure that the secondhand dealers only conduct business with honest individuals by requiring the dealer to keep detailed records regarding the seller, in addition to taking at least one fingerprint or thumbprint from the seller, which is then transmitted to a law enforcement agency. 33 Finally, the ordinance provides a mechanism for ensuring the secondhand goods are not stolen by allowing the detailed records 23 Random House Webster s College Dictionary (1997), p Id. at See Marquis v Hartford Accident & Indemnity, 444 Mich 638, 644; 513 NW2d 799 (1994). 26 To be clear, nothing in the record remotely suggests that Miller and 3 D deal in stolen goods. 27 Ypsilanti Charter Township Ordinances, art III, div 2, 22-98(a). 28 Id. at Id. at 22-99(9). 30 Id. at 22-99(10). 31 Id. at 22-99(11). 32 Id. at Ypsilanti Charter Township Ordinances, art III, div 3, ,

12 of the transactions and items to be inspected at any time and by requiring the licensee to share information with law enforcement agencies. 34 The interpretation of the ordinance that the trial court and township applied revolved around the value of the secondhand property sold at 3 D as a percentage of the value of all the property sold at 3 D. This interpretation, while concise and easy to apply, bears little relationship to the ordinance s goal of preventing trafficking in stolen goods, which may have little monetary value, and thus is a less obvious interpretation. Under this interpretation, as long as Miller kept the value of his transactions in secondhand goods just below fifty percent of the value of his total transactions, he could deal in a large number of secondhand goods at 3 D without a secondhand dealer s license, and without keeping the records and reporting the information the ordinance requires. Conversely, if Miller were to sell one very valuable antique at 3 D, but otherwise sell only new goods of less value, he would likely have to obtain a secondhand dealer s license. More importantly, a statute, and by analogy an ordinance, is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words. 35 Note that this statement of the law concerning vagueness refers to those sources that help ordinary people understand the meaning of an ordinance, and thereby avoid prohibited conduct. 36 Definitions of an ordinance espoused by municipal employees that do not track judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words simply cannot make an ordinance constitutionally sound. Rather, this sort of internal definition may very well lead to selective and arbitrary enforcement of an ordinance. Under the facts of this case, I fail to see how Miller could have anticipated that the township would have adopted this particular definition even if he had been a licensee in the past. I do not mean to suggest that the value of goods is always an inappropriate means of determining whether someone s principal business is in secondhand goods or that it would be improper for the ordinance to prescribe more than one way to measure whether someone s principal business is in secondhand goods. Nor do I intend to imply that the term principal business is ambiguous in other contexts. The majority has identified a number of other statutes that use the term principal business precisely because, in those very different contexts, there are so few variables that could affect the term s meaning or because the statutes at issue provided additional clues regarding its meaning. Rather, my point is that, on its face, this ordinance is insufficiently clear to inform an ordinary person, corporation, or member of a copartnership or firm that the township looked to the value of secondhand goods or any other specific factors 34 Id. at People v Noble, 238 Mich App 647, 652; 608 NW2d 123 (1999). 36 See People v Boomer, 250 Mich App 534, 539; NW2d (2002), quoting Grayned v City of Rockford, 408 US 104, ; 92 S Ct 2294; 33 L Ed 2d 222 (1972) ( [Because] we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ). -7-

13 when determining whether a secondhand dealer s license was necessary. Thus, I believe that the ordinance, as written and applied to Miller and 3 D, is unconstitutionally vague. /s/ William C. Whitbeck -8-