State v. BlossState v. Bloss
- Reporters:
- , ,
- Before:
- Lum
OPINION OF THE COURT BY
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
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
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
PERTINENT STATUTES
It shall be unlawful for any person operating or in charge of the operation of any ball or marble game, as defined insection 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.
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.
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 from4 bellano 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 bever ages. 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,
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
The State also argues that, under State v. Kimball, supra, the term “loiter” must be construed in the context of the rest of the statute. However, in Kimball the court noted that the appellant made a claim but failed to provide any argument that the word “loiter” was vague. Id. at 87 n. 2, 503 P.2d at 179 n. 2. In contrast, in the case at bar, appellee has provided ample argument to support his claim that the phrase “to loiter about” is unconstitutionally vague.
In summary, we cannot say that the term “to loiter about” in
II. SEVERABILITY
Upon finding the term “to loiter about” unconstitutional, the district court invalidated the entire statute. The State contends that the lower court erred in failing to sever the term “to loiter about” from
The general rule of law concerning the concept of severa-bility 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. Territory v. Tam, 36 Haw. 32 (1942); Territory v. Apa, 28 Haw. 222 (1925).
It is not necessary, however, to deal with the issue of severability because we find that the entire statute is violative of equal protection guarantees in that it no longer bears a rational relationship to the harm sought to be avoided.
III. EQUAL PROTECTION
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.
Jefferson v. Hackney,
406 U.S. 535
(1972); Reed v. Reed,
404 U.S. 71, 75-76
(1971); Nelson v. Miwa,
56 Haw. 601, 604, 546 P.2d 1005, 1008 (1976);
State v. Cotton,
55 Haw. 148, 150, 516 P.2d 715, 717 (1973);
State v. Johnston,
51 Haw. 195, 203, 456 P.2d 805
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.
Corporation Commission v. Lowe,
281 U.S. 431 (1930);
Nelson v. Miwa, supra; Hasegawa v. Maui Pineapple Co.,
52 Haw. 327, 475 P.2d 679 (1970);
State v. Johnston, supra.
We must ascertain, therefore, whether appellee has demonstrated with requisite clarity that
We recently stated that “the fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it. ’’
HGEA v. County of Maui,
59 Haw. 65, 80-81, 576 P.2d 1029, 1039 (1978). In order to determine whether there is a rational basis for the classification created by
(1) Harmful Influences
The legislature did not enumerate the “harmful influences” referred to in its passage of
But pinball machines as they exist today are considerably different from those then existing and were contemplated by the passage of
For example, in
People v. Palazzolo,
62 Mich. App. 140, 233 N. W.2d 216 (1975), the Court of Appeals of Michigan held that the
Modern pinball machines involve skill to a much greater extent because of the addition of “flippers. ” Flippers are bars operated by a pushbutton which can be used to flip the ball upwards, back into the playing field, thus keeping the ball in play longer and enabling the player to attain a higher score. Thus the difference between the old-style and modern pinball machines is apparent. Attaining a high score in the old-style flipperless game depended almost completely on chance. A modern pinball machine, however, armed with one or more pairs of flippers, allows for a much greater variance in scores, depending on the player’s skill in manipulating the flippers.”
Id., at 143-44, 233 N.W.2d at 218.
Similarly, in Cossack v. City of Los Angeles, 11 Cal.3d 726, 523 P.2d 260, 114 Cal. Rptr. 460 (1974), the Supreme Court of California held that the ordinance in question pertained only to games of chance and did not prohibit pinball games as they exist today. The court stated that prohibiting pinball or marble games of skill could not have been the objective of the 1939 ordinance, since such games of skill did not come into existence until almost ten years later in 1948, with the development of flippers in pinball machines.
Both the
Cossack
and
Palazzolo
courts held that the addition of .flippers to pinball machines, which occurred since passage of the ordinances in question, has so enhanced the skill aspect of the game that the ordinance drafters who prohibited gambling devices in 1935 or 1941 would not have intended to prohibit modern pinball machines.
7
In light of these holdings, it is evident that
(2) Lunch Money
The legislative history focuses on “preventing] children from spending their lunch money” as the second purpose articulated by the legislature in support of
There is no reasonable distinction or substantial difference between these various amusement games of skill. To prohibit the play of pinball machines but not prohibit the play of non-pinball machines may still achieve the legislative purpose of protecting minors from spending lunch money, but it also has the effect of singling out an activity which is not inherently different from those which are legally permissible.
Equal protection of the law requires that lawmakers must treat like things in a like manner.
Reed v. Reed, supra; People v. Palazzolo, supra; Nelson v. Miwa, supra; State v. Johnston, supra.
And while we recognize that the legislature may select one phase of a given problem
CONCLUSION
Modern pinball machines do not belong in a statute drafted to regulate the effect of old-style pinball and slot machines, games where skill played no part and chance alone governed the players’ scores. Modern pinball machines are indistinguishable from other skill-related amusement games which minors are allowed to play. Therefore, while
Notes
Foosball games are simulated soccer-type games in which a ball is projected against obstacles toward or away from several slots or receptacles.
In video games an image is displayed on a television screen displaying a playing field and an imitation pinball in the form of a dotted light. The course of the ball on the screen is controlled by a computer program.
14th amendment, U. S.- Constitution and art. I, § 5, Hawaii Constitution.
See note 3 supra.
Baker v. Bindner, 274 F.Supp. 658 (W.D. Ky. 1967); People v. Diaz, 4 N.Y.2d 469, 151 N.E.2d 871, 176 N.Y.S.2d 313 (1958); City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30(1908).
The operation of these early pinball machines is described‘in the case of Oatman v. Port Huron Chief of Police, 310 Mich. 57, 58, 16 N. W.2d 665 (1944), and in King, The Rise and Decline of Coin-Machine Gambling, 55 The Journal of Criminal Law, Criminology and Police Science 199 (1964).
See also Progress Vending v. Dept. of Liquor Control. 59 Ohio App. 2d 266, 394 N.E.2d 324 (1978), which held that modern pinball machines did not involve a scheme of chance in violation of the ordinance in question, designed to prohibit gambling.
See note 7 supra.