State v. Zowail.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-JUN-2020
08:07 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
MOHAMMAD A. ZOWAIL,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1DCC-XX-XXXXXXX)
JUNE 15, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
On November 18, 2017, Mohammad A. Zowail set up a table
at the edge of the sidewalk along Kalâkaua Avenue in Waikîkî to
showcase his art for sale and perform a painting demonstration.
As he worked, a sizeable crowd formed to watch, and some
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pedestrians had to detour around the spectators. After observing
Zowail, police charged him with violating Revised Ordinances of
Honolulu (ROH) § 29-5.1 (1990) for “engag[ing] in business. . .
on any public sidewalk where [his] operation tend[ed] to, or
[did] impede or inconvenience the public or any person[.]”1 The
District Court of the First Circuit (district court) convicted
Zowail, finding that the size of the crowd meant that his
operation tended to impede or inconvenience the public.
This case requires us to determine whether “operation”
in ROH § 29-5.1 encompasses bystanders who have stopped to watch
a performance, but are otherwise unconnected to the business
operation. Zowail argues that the district court erred by
including the spectators as part of his operation because “it
would be manifestly unjust to hold Zowail penally responsible for
1
ROH § 29-5.1 provides:
(a) It is unlawful for any solicitor or canvasser to
engage in business on any public street,
sidewalk or mall where such person’s operation
tends to, or does impede or inconvenience the
public or any person in the lawful use of such
street, sidewalk or mall.
(b) “Solicitor or canvasser,” as used in this
article, means any person, traveling by foot, or
any other type of conveyance, or by wagon,
automobile, motor truck, taking or attempting to
take orders for sale of goods, wares,
merchandise or other personal property for
future delivery, or for services to be furnished
or performed in the future, whether or not such
person carries or exhibits any samples or
collects advance payments on sales. The term
shall also include any person who, for oneself
or for another hires, leases, uses or occupies
any building, structure, tent, room, shop,
vehicle or any other place for the sole purpose
of exhibiting samples and taking orders for
future delivery.
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the actions of other persons that were beyond his control.” He
further claims that if “operation” in ROH § 29-5.1(a) includes
spectators, the statute would be unconstitutionally vague because
the ordinance gives no guidance as to when the size of a crowd
crosses the threshold to become a violation of ROH § 29-5.1. We
agree.
Accordingly, we hold that “operation” in ROH § 29-5.1
means the area in which a defendant conducts their business, such
as the immediate perimeter around a table for goods or a
demarcated performance area. Thus, a defendant’s “operation”
does not include spectators over which a defendant has no
control. As evidence did not show that Zowail’s operation -
excluding spectators - impeded or inconvenienced any person,
Zowail’s conviction was not supported by substantial evidence.
We also note that Zowail’s charge was deficient for
failure to allege mens rea: “A charge that fails to charge a
requisite state of mind cannot be construed reasonably to state
an offense[.]” State v. Apollonio, 130 Hawai#i 353, 359, 311
P.3d 676, 682 (2013) (holding oral charge defective for failure
to specify mens rea for speeding offense). However, we need not
vacate Zowail’s conviction on this basis. Because Zowail’s
“operation” did not violate ROH § 29-5.1, his conviction must be
reversed and a judgment of acquittal entered.
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II. BACKGROUND
A. The Charge
Zowail received a “complaint and summons” form charging
him with having committed the offense of “Use of Sidewalks” in
violation of ROH § 29-5.1 and instructing him to appear in court.
The State formally arraigned Zowail immediately before
trial commenced. In reading the charge, the State advised Zowail
using the language of ROH § 29-5.1 almost verbatim:
On or about November 18, 2017, in the City and
County of Honolulu, State of Hawai#i, Mohamad Ali
Zowail, did unlawfully as a solicitor or canvasser
engage[] in business on any public street, sidewalk or
mall where such person’s operation tends to or does
impede or inconvenience a public [sic] or any person
in the lawful use of such street, sidewalk or mall.
“Solicitor” or “canvasser,” as used in this
article, means any person traveling by foot or any
other type of conveyance or by wagon, automobile,
motor truck, taking or attempting to take orders for
the sale of goods, wares, merchandise or other
personal property for future delivery, or for services
to be furnished or performed in the future whether or
not such person carries or exhibits any samples or
collects advance payments on sales.
The term shall also include any person for who,
[sic] for oneself or for another, hires, leases, uses
or occupies any building, structure, tent, room, shop,
vehicle, or other place for the sole purpose of
exhibiting samples and taking orders for future
delivery.
When asked, Zowail affirmed that he understood the
charge that was read, and he pled not guilty. He did not object
to the charge as insufficient.
B. Factual Background
The following testimony was adduced during the bench
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trial.2
On November 18, 2017, around 7:00 p.m., Officer Aaron
Luther and Sergeant Zane Hamrick were “working a plainclothes
operation to specifically focus on peddling and other sidewalk
infractions in the Waikiki district.” They came across Zowail,
who was the only performer on the sidewalk that night.
Officer Luther and Sergeant Hamrick observed Zowail for
five or ten minutes while he was conducting an “art performance,”
spray painting a canvas and explaining to the crowd what he was
doing. Although they did not witness any sales take place, both
officers agreed that Zowail was offering his paintings for sale
for $75.00 and that he told the crowd they could take paintings
home in cardboard tubes to protect them.3
Zowail testified that he was 23 years old, in school
getting a psychology degree, and hoping to work up to a Ph.D. He
explained, “I just have a passion for art and this is a new
generation of art. I was showing people what I do. . . . It’s
basically an art show done within like ten minutes, all with
spray paint.” He told the court that he was exercising his First
Amendment right to perform on the public sidewalk.
There was no dispute over the layout of Zowail’s area
of operation. Zowail had a table set up on the sidewalk outside
2
The Honorable Florence Nakakuni presided.
3
Zowail disputed this testimony, testifying that he was not selling
his paintings and that his paintings were too large to fit into the tube he
was using to paint with.
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the T Galleria on Kalâkaua Avenue. On the table, Officer Luther
testified that Zowail had “spray paint cans and art supplies,
canvases, pens and [other things] of that nature.” On the ground
in front of the table, Zowail put down a black cloth so that
paint did not get onto the sidewalk, and left a box for people to
put money in. Zowail testified that the table was two feet by
four feet and that his display was approximately two or three
feet wide in total. As the table was set up on the street-edge
of the sidewalk, facing the storefronts, there was room for
pedestrians to walk past or for a crowd to gather around.
However, Zowail did not designate where the crowd could start or
end. Officer Luther and Sergeant Hamrick did not contradict
Zowail’s testimony about the size of his display - in fact, a
photograph of the display submitted by the State corroborated
Zowail’s estimate of his operation’s size.
The State’s case that Zowail’s operation inconvenienced
the public hinged on the size of the crowd that formed to watch
Zowail’s performance, and the officers’ estimate of the number of
bystanders differed significantly from Zowail’s account.
Zowail testified that the size of the crowd fluctuated,
but he estimated there were only ten to fifteen people around him
at any given time: “[P]eople make a circle around me, if you’re
behind ten people, you’re unable to see it because the height of
my waist. So you won’t be able to see if you’re standing behind
those ten people.” He estimated that the biggest crowd around
him was twenty people. He believed that other people on the
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sidewalk were not specifically watching his performance, but
passing by.
On the other hand, Officer Luther testified that there
were “easily 50” people gathered, standing “[e]asily four rows”
deep. However, on cross-examination Officer Luther conceded that
the photographs the State entered into evidence did not show
nearly that many people - for example, he counted fifteen people
in Photograph 1 and fourteen people in Photograph 2. Officer
Luther also agreed with defense counsel that from the photos, it
looked like there was about a foot of clearance between the edge
of the crowd on the sidewalk and the storefronts facing Kalâkaua,
including space for a woman who was walking past with a stroller.
Sergeant Hamrick estimated that the crowd included “75-
plus people” and testified that there was no space on the
sidewalk for anyone to walk past. On direct examination, he told
the court that the crowd was “packed solid . . . [l]ike a pack of
sardines. You had to walk around to get through.” On cross-
examination, Sergeant Hamrick testified that photographs showed
significantly more people than Officer Luther had counted. For
example, he testified that Photograph 1 depicted fifty people –
although he counted only sixteen people, he believed that the
others were standing behind them - and he similarly testified
that Photograph 2 depicted thirty-five or forty people.
While Officer Luther and Sergeant Hamrick gave
differing estimates of how much space was left on the sidewalk
around the crowd, they both agreed that some pedestrians had to
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step around it. Officer Luther testified that “[t]he opening to
the Galleria is a large open doorway area and several people
actually had to enter into that area to get around the crowd as
opposed to just going down the sidewalk.” He saw about three
people with strollers and “at least one male in a wheelchair”
have to go around the crowd by entering and then exiting the
Galleria. There was not enough space for a stroller or a
wheelchair to go through the crowd. Moreover, Officer Luther
explained that even if there were a foot or two of space on the
sidewalk, it was not enough: “Through my personal experience, if
there’s a large crowd, I’m not going to barge my [way] through
it, try to squeeze in tight. Even if there was a foot or two of
space, I would still feel more comfortable walking around as
opposed to going through a crowd.”
Officer Luther also observed that the area where Zowail
was performing was more crowded than other areas in Waikîkî
because people were watching the performance. He noted that
“where a lot of the other performers set up it’s usually on a
corner so [pedestrians] can walk around in either direction.
Where the defendant was set up was directly in front of the [T
Galleria] so the only way to go is on the sidewalk. There is no
other way around.”
Sergeant Hamrick similarly testified that the crowd
“blocked the whole sidewalk from where Mr. Zowail was speaking
all the way into the entrance of the T Galleria itself. And then
spread out on either side of the sidewalk.” He explained that
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“there’s a line in the tile that separates the private property
[of the Galleria] from the City sidewalk,” and some people “were
going over that line and physically onto the T Gallery property
and coming back onto the sidewalk after they got around the
crowd.”4 “[I]t wasn’t a free-flowing pedestrian sidewalk.”
After the close of evidence, the district court found
Zowail guilty of violating ROH § 29-5.1. The court found the
testimony of Officer Luther and Sergeant Hamrick credible and
noted that both officers agreed that a large crowd gathered to
watch Zowail perform. Further, the court found it significant
that Sergeant Hamrick testified “it was not a free-flowing
pedestrian sidewalk,” noting “that’s important anywhere but also
especially in Waikiki.” While the court recognized that the size
of the crowd was a “good thing from [Zowail’s] point of view,”
ultimately it found that “the size of that crowd did tend to or
did impede or inconvenience the public or any person on the day
in question.”
Zowail appealed his conviction to the Intermediate
Court of Appeals (ICA).
C. ICA Proceedings
The parties’ briefs before the ICA were similar to
their arguments on certiorari. Zowail contended that substantial
4
Sergeant Hamrick did not explain how he knew that the line
signified the transition between public and private property. However, Zowail
did not object to his testimony. On cross-examination, Sergeant Hamrick
conceded that the “line” separating the sidewalk from T Galleria property was
not visible in any of the photographs. Sergeant Hamrick also conceded that he
didn’t know if people were detouring into T Galleria to avoid the crowd or to
view the display inside the Galleria.
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evidence did not support his conviction, and he challenged the
State’s proof as to each element of the offense. As relevant
here, Zowail contended that the State did not prove that Zowail’s
“operation” impeded or inconvenienced the public: “[T]he
observers who had gathered around Zowail’s table were not part of
his ‘operation.’ Indeed, it would be manifestly unjust to hold
Zowail penally responsible for the actions of other persons that
were beyond his control.”
Zowail pointed out that he did not have seating or an
area for the crowd to gather and that the gathered people were
“simply interested observers.” He equated his table and
demonstration to a window display in a store: “[T]he store’s
‘operation’ does not extend to [passersbys who stop to look at
the display], even if they subsequently enter the store to buy a
product.” Thus, “[t]he court should only have considered the
perimeter around Zowail’s table and items in determining whether
Zowail’s ‘operation’ impeded or inconvenienced the public or a
person in the use of the sidewalk.” Since Zowail’s table was
positioned at the end of the sidewalk and there was room to walk
around it, he contended that the State did not prove his business
operation inconvenienced or impeded the public.
Moreover, Zowail argued that if “business” and
“operation” in ROH 29-5.1 included anyone who passed by, it would
be unconstitutionally vague:
What would distinguish between a person who was
passing by on the sidewalk and a member of the ‘crowd’
who was attributed to the business? . . . Under the
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court’s interpretation any person in the area at any
point in time, no matter how transient or momentary
their stop was part of the ‘crowd’ and thereby part of
Zowail’s operation of his supposed business.
In its answering brief, the State argued “Defendant’s
assertion [that substantial evidence did not support his
conviction] is without the support of the evidence in the record
and the precedent in this jurisdiction.” The State noted that
the court must view the evidence in the light most favorable to
the prosecution and that the district court’s findings should
“not be disturbed unless clearly erroneous.” However, the State
did not specifically address Zowail’s arguments that the district
court should not have considered the crowd to be part of Zowail’s
“business operation.” Rather, the State catalogued all the
instances in which Officer Luther and Sergeant Hamrick testified
that Zowail was selling his paintings and that a sizeable crowd
had formed to watch his performance, emphasizing that the
district court found both officers to be credible.
The ICA affirmed Zowail’s conviction in a summary
disposition order (SDO), holding that substantial evidence
supported his conviction. Notably, the ICA held that
“[n]otwithstanding contrary evidence, inter alia, that at times
the crowd was smaller and the public was not fully impeded in its
use of the sidewalk, viewing the evidence in the light most
favorable to the prosecution, we conclude that there was
sufficient evidence that Zowail’s operation tended to, or did,
impede or inconvenience the public or any person in the lawful
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use of a public sidewalk[.]” The ICA did not address Zowail’s
argument that the spectators should not be considered part of
Zowail’s “operation” when determining whether the operation
impeded the public.
III. STANDARDS OF REVIEW
A. Statutory Interpretation
“[T]he interpretation of a statute . . . is a question
of law reviewable de novo.” State v. Cabrera, 90 Hawai#i 359,
365, 978 P.2d 797, 803 (1999) (quoting State v. Arceo, 84 Hawai#i
1, 10, 928 P.2d 843, 852 (1996)).
B. Sufficiency of the Evidence
[E]vidence adduced in the trial court must be
considered in the strongest light for the prosecution
when the appellate court passes on the legal
sufficiency of such evidence to support a conviction;
the same standard applies whether the case was before
a judge or jury. The test on appeal is not whether
guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Richie, 88 Haw.19, 33, 960 P.2d 1227, 1241 (1998)
(quoting State v. Quitog, 85 Hawai#i 128, 145, 938 P.2d 559, 576
(1997)).
“Substantial evidence” means “credible evidence which
is of sufficient quality and probative value to enable a person
of reasonable caution to support a conclusion.” Id. (quoting
State v. Eastman, 81 Hawai#i 131, 135, 913 P.2d 57, 61 (1996)).
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IV. DISCUSSION
A. The Term “Operation” in ROH § 29-5.1 Means the Area in Which
the Defendant Conducts Business and Does Not Include
Spectators or Bystanders
A defendant only violates ROH § 29-5.1(a) if their
“operation” inconveniences any person. Zowail argues that
“operation” should not encompass every person who paused to watch
his performance, but should be interpreted to include only the
defendant’s business area, including “the perimeter around the
four feet long by two feet wide table that [Zowail] used for his
performance, the donation box and the [black cloth] he used to
keep paint from getting on the sidewalk.” He further asserts
that if “operation” included all spectators, ROH § 29-5.1 would
be unconstitutionally vague. We agree.
“When construing a statute, our foremost obligation is
to ascertain and give effect to the intention of the legislature,
which is to be obtained primarily from the language contained in
the statute itself. And we must read statutory language in the
context of the entire statute and construe it in a manner
consistent with its purpose.” Cabrera, 90 Hawai#i at 365, 978
P.2d at 803 (quoting Gray v. Admin. Dir. Of the Court, 84 Hawai#i
138, 148, 931 P.2d 580, 590 (1997)). “[W]here possible, we will
read a penal statute in such a manner as to preserve its
constitutionality.” Richie, 88 Hawai#i at 31, 960 P.2d at 1239(quoting State v. Bates, 84 Hawai#i 211, 220, 933 P.2d 48, 57
(1997)).
ROH § 29-5.1 provides:
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(a) It is unlawful for any solicitor or canvasser to
engage in business on any public street,
sidewalk or mall where such person’s operation
tends to, or does impede or inconvenience the
public or any person in the lawful use of such
street, sidewalk or mall.
(b) “Solicitor or canvasser,” as used in this
article, means any person, traveling by foot, or
any other type of conveyance, or by wagon,
automobile, motor truck, taking or attempting to
take orders for sale of goods, wares,
merchandise or other personal property for
future delivery, or for services to be furnished
or performed in the future, whether or not such
person carries or exhibits any samples or
collects advance payments on sale. The term
shall also include any person who, for oneself
or for another hires, leases, uses or occupies
any building, structure, tent, room, shop,
vehicle or any other place for the sole purpose
of exhibiting samples and taking orders for
future delivery.
(Emphasis added.)
1. The plain meaning of “operation” in ROH § 29-5.1 does
not include spectators
“[T]he fundamental starting point for statutory
interpretation is the language of the statute itself.” State v.
Bayly, 118 Hawai#i 1, 6, 185 P.3d 186, 191 (2008). Webster’s
Third New International Dictionary provides an instructive
definition of “operation”:
[O]perations pl : . . . b: the whole process of
planning for and operating a business or other
organized unit
c: a phase of a
business or of business activity
Operation, Webster’s Third New International Dictionary, 1967
ed.); Frame v. City of Arlington, 657 F.3d 215, 227 (5th Cir.
2011) (“Webster’s Dictionary broadly defines ‘operations’ as ‘the
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whole process of planning for and operating a business or other
organized unit,’ and defines ‘operation’ as a doing or performing
especially of action.’” (alteration omitted)).
This definition seemingly refers to the internal
functioning of a business, which is how other courts, in
different contexts, have interpreted the term “business
operations.” See Frame, 657 F.3d at 227 (holding building and
altering public sidewalks among “all the operations” of a public
entity); Stadium Chrysler Jeep, L.L.C. v. DaimlerChrysler Motors
Co., LLC, 324 F. Supp. 2d 587, 596 (D.N.J. 2004) (“[T]he natural
language definition of ‘business operations’ means the actual
performance or process of work as it relates to a company’s
business, commerce, trade or industry.”); Francis v. Armstrong
Coal Reserves, Inc., No. 4:11-CV-00077-M, 2012 WL 5949466, at *5
(W.D. Ky. Nov. 28, 2012) (defining “business operations” as “all
of the company’s actions that relate to the planning for and
operation of a business”). Similarly, lay definitions for
“business operations” describe the term as an internal process
for running a business: “Activities involved in the day to day
functions of the business conducted for the purpose of generating
profits.” Business Operation, BusinessDictionary,
http://perma.cc/39GH-CRJQ.
Thus, consonant with the term’s definition and use in
other contexts, “operation” in ROH § 29-5.1(a) means “the whole
internal process of operating a business” - in other words, it
refers to the area in which the defendant conducts their
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business, such as a table for goods or a designated performance
area. Bystanders or spectators, like customers, are not part of
the internal operation of a business. Accordingly, the plain
meaning of “operation” does not include people passing by who may
stop to watch a performance.5
2. ROH § 29-5.1 should be interpreted narrowly
Even if “operation” were ambiguous and other
constructions of the term could encompass bystanders, ROH § 29-
5.1 cannot be read to support Zowail’s conviction in light of
other tools of statutory interpretation. See Bayly, 118 Hawai#i
at 7, 185 P.3d at 192 (turning to canons of statutory
construction to interpret ambiguous statute).6 “Where possible,
5
ROH § 29-5.1 imposes liability if a solicitor engages in business
“where such person’s operation tends to, or does” impede or inconvenience any
person. The phrase “tends to” could expand the meaning of “operation,” so
that any operation – like a performance – that attracts spectators “tends to”
impede or inconvenience any person. However, if “tends to” were read in this
manner, ROH § 29-5.1 would effectively ban performances in any public “street,
sidewalk or mall” because any performance in such a space would “tend to”
attract spectators and “inconvenience any person.” See ROH § 29-5.1. This
would unconstitutionally impede free expression by prohibiting speech without
“leav[ing] open ample alternative channels of communication.” State v. Bloss,
64 Haw. 148, 163, 637 P.2d 1117, 1128 (1981). Accordingly, we do not adopt
such an interpretation of ROH § 29-5.1.
6
While we can often interpret statutes in light of their purpose
and legislative history, see Ruggiero, 114 Hawai #i at 231, 160 P.3d at 707, in
this instance, the legislative history of ROH § 29-5.1 does not provide
clarity. The current language of ROH § 29-5.1 (“Use of Streets and Sidewalks
by Solicitors and Canvassers”) has remained largely the same since it was
first enacted by the Honolulu City Council in 1954. See ROH § 13-23.1 (1957);
ROH § 13-23.1 (1961); ROH § 26-5.1 (1973). The provision was originally
codified in the “General Welfare” section of the city ordinances, between
articles regulating termite-infested lumber and the operation of skating rinks
and moving picture shows. See ROH § 13-23.1 (1957). The minutes of city
council meetings at the Honolulu city clerk’s office do not contain any
debates or reports that shed light on the city council’s purpose in enacting
the statute.
Today, “Use of Streets and Sidewalks by Solicitors and Canvassers”
is codified as part of chapter 29, which governs streets, sidewalks, malls and
(continued...)
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we will read a penal statute in such a manner as to preserve its
constitutionality. To accord a constitutional interpretation of
a provision of broad or apparent unrestricted scope, courts will
strive to focus the scope of the provision to a narrow and more
restricted construction.” Id. at 7-8, 185 P.3d at 192-93(quoting Bates, 84 Hawai#i at 220, 933 P.2d at 57). Here, as
Zowail argues, if “operation” includes any persons who stop to
watch a performance, ROH § 29-5.1 may be unconstitutionally
vague.
“We have consistently recognized that due process of
law requires that a penal statute or ordinance state with
reasonable clarity the act it proscribes and must also prescribe
fixed standards for adjudging guilt when that person stands
accused.” State v. Bloss, 64 Haw. 148, 163, 637 P.2d 1117, 1128
(1981) (holding Honolulu ordinance governing handbilling in
Waikîkî unconstitutional and void for vagueness).
Vague laws contravene the ‘first essential of due
process of law’ that statutes must give people ‘of
common intelligence’ fair notice of what the law
demands of them. . . . [Further, vague] statutes
threaten to hand responsibility for defining crimes to
relatively unaccountable police, prosecutors, and
judges, eroding the people's ability to oversee the
creation of the laws they are expected to abide.
6
(...continued)
other public places. Its purpose is straightforward: “The intent and purpose
of this chapter is to promote the public welfare by regulating the use of all
public sidewalks and malls.” ROH § 29-1.2 (1990). Notably, however, “Use of
Streets and Sidewalks by Solicitors and Canvassers” was not intended to
prohibit all soliciting or canvassing on public sidewalks. When it was
enacted in 1954, the ROH also regulated – and still regulates – commerce in
public places by requiring a license for “peddling” and imposing restrictions
on lei sellers. See ROH § 29-2.1, 6.2.
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United States v. Davis, 139 S. Ct. 2319, 2325 (2019).
Moreover, we have recognized that vagueness presents a
special danger in the First Amendment context:
[A] vague statute affects basic First Amendment
freedoms where the exercise of those freedoms would be
inhibited unless the boundaries of forbidden conduct
are clearly marked.
We recognize that vagueness is a relative
concept. Thus, when First Amendment rights are not
implicated, a lesser degree of specificity in a
statute is acceptable. However, where the First
Amendment is implicated, a greater degree of
specificity is necessary to avoid inhibiting speech
and the free dissemination of information.
Bloss, 64 Haw. at 164, 637 P.2d at 1129 (citing State v. Manzo,
58 Haw. 440, 455, 573 P.2d 945, 955 (1977)) (internal citations
omitted).
A vague ordinance “impermissibly delegate[s] policy
matters to the subjective and ad hoc decision making of police
officers on the beat, judges, and juries and may result in
capricious or discriminatory action.” Id. at 163–64, 637 P.2d at
1128 (quoting Manzo, 58 Haw. at 455, 573 P.2d at 955); see also
State v. Alangcas, 134 Hawai#i 515, 534, 345 P.3d 181, 200 (2015)
(“[A] challenged statute is examined as to whether it is
internally inconsistent and incomprehensible to a person of
ordinary intelligence or invites delegation of basic policy
matters to police for resolution on an ad hoc and subjective
basis.”).
ROH § 29-5.1(a) contains several undefined terms that
sweep quite broadly, criminalizing any “operation” on a public
sidewalk that “tends to” “inconvenience . . . any person.” If
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violation of the ordinance depends on the number of people who
stop to look at a defendant’s display – which a defendant has
little control over – then ROH § 29-5.1 fails to provide the
constitutionally required “fixed standards for adjudging guilt.”
Bloss, 64 Haw. at 163, 637 P.2d at 1128; see also State v.
Beltran, 116 Hawai#i 146, 154, 172 P.3d 458, 466 (2007) (holding
Honolulu camping ordinance unconstitutionally vague because,
inter alia, “the standard requires the actor to view his or her
conduct as a third person would, rather than informing the actor
as to how to avoid violating the regulation,” inviting ad hoc,
subjective decision making by police officers).
In Bloss, we held ROH § 26-6.2,7 which prohibited
commercial handbilling in Waikîkî, unconstitutional and void for
vagueness because it “fails to provide explicit standards for
determining guilt.”8 64 Haw. at 163, 165, 637 P.2d at 1128,
7
ROH § 26-6.2 provided in relevant part:
(b) . . . [I]t shall be unlawful for any person to sell or offer
for sale, solicit orders for, or invite attention to or
promote in any manner whatsoever, directly or indirectly,
goods, wares, [etc.], or to carry on or conduct any
commercial promotional scheme, advertising program or
similar activity in the following areas:
. . .
(7) Waikiki peninsula-upon the public streets, alleys,
sidewalks, malls, parks, beaches or other public
places in Waikiki. . . .
Bloss, 64 Haw. at 167, 637 P.2d at 1119–20.
Notably, in 1981 when Bloss was decided, ROH § 26-6.2 was codified
immediately after “Unlawful To Use Public Streets And Sidewalks For Certain
Business Purposes,” which at that time was codified at ROH § 26-5.1 (1978).
8
We also held that the regulation “impermissibly regulates
protected commercial speech which violates the First Amendment of the United
States Constitution, and Article I, Section 3 of the Hawaii State
(continued...)
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1130.
For statutes that regulate forms of expression – even
commercial speech is protected by the First Amendment, id. at
157, 637 P.2d at 1125 – vague language not only risks that the
statute will not provide fair notice, but also presents “the
danger of tolerating, in the area of First Amendment freedoms,
the existence of a penal statute susceptible of sweeping and
improper application.” Id. at 164, 637 P.2d at 1129 (quoting
NAACP v. Button, 371 U.S. 415, 432–33 (1963)). “Because First
Amendment freedoms need breathing space to survive, government
may regulate in the area only with narrow specificity.” Id.Accordingly, statutes that regulate expressive conduct must
“provide explicit standards for determining guilt.” Id. at 165,
637 P.2d at 1130 (emphasis added). In other words, an ordinance
must not be so vague that “judges, juries or police officers
[can] create their own standards”: “[T]he boundaries of forbidden
conduct [must be] clearly marked” because whether conduct
constitutes a violation should not be a subjective judgment. Id.
at 163–64, 637 P.2d at 1128–29. In a similar context, we have
held that a Honolulu city ordinance prohibiting “presence” at
certain events void for vagueness because “[u]nless the activity
at which presence is unlawful is in a narrowly confined place,
determination of what constitutes presence at the activity can be
resolved only on the basis of policy.” State v. Abellano, 50
8
(...continued)
Constitution.” 64 Haw. at 162, 637 P.2d at 1128.
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Haw. 384, 385, 441 P.2d 333, 334–35 (1968).
Here, neither ROH § 29-5.1 nor any other provision of
Section 29 defines “operation,” “tends to,” “impede” or
“inconvenience.” Moreover, the statute explicitly sanctions any
solicitor who inconveniences even a single person. The broad
language of ROH § 29-5.1 leaves enforcement to the discretion of
police officers, which is impermissible because it “may result in
capricious or discriminatory action.” Id. at 164, 637 P.2d at
1128.
If “operation” in ROH § 29-5.1 includes any person who
stops to watch a performance even for a short period of time, the
ordinance fails to provide an “explicit standard” to define at
what point the number of spectators crosses the threshold into a
violation or how long a spectator must watch a performance to
become part of the business operation. Moreover, a person could
set up a performance entirely on private property, but if the
crowd that gathers spills onto public property, and the
spectators are deemed part of the performer’s “operation,” then
the performer could violate ROH § 29-5.1 without ever stepping
onto public property. Whether the number of spectators
“inconvenienced” any person would depend on the subjective
opinion of a police officer.
Thus, the breadth of ROH § 29-5.1 leaves ample room for
ad hoc decision making, as the record in this case demonstrates.
For example, Officer Luther suggested that any crowd could
present an inconvenience under ROH § 29-5.1: “Through my personal
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experience, if there’s a large crowd, I’m not going to barge my
[way] through it, try to squeeze in tight. Even if there was a
foot or two of space, I would still feel more comfortable walking
around as opposed to going through a crowd.” The State seemingly
considered any person near Zowail’s performance to be Zowail’s
responsibility – questioning Zowail on cross-examination about
the number of people in his “near vicinity” and on his “side of
the sidewalk within 20 feet.”9 In closing, the State argued, “it
was likely a moving crowd, a fluid crowd, [but] there was a large
enough crowd to inconvenience the public.” Similarly, the ICA
recognized that “at times the crowd was smaller and the public
was not fully impeded in its use of the sidewalk,” but it upheld
Zowail’s conviction because “there was sufficient evidence that
Zowail’s operation tended to or did, impede or inconvenience the
public or any person.” Further the district court decided the
fact that Zowail was performing in Waikîkî, as opposed to
elsewhere in Honolulu, was a significant factor:
[Sergeant Hamrick] described the crowd [as] it was not
a free-flowing pedestrian sidewalk. And that’s
important anywhere but also especially in
Waikiki. . . . [O]bviously Mr. Zowail is a good
performer and people enjoy watching that, but these
officers were on duty in Waikiki to make sure that the
sidewalks were safe for pedestrians.
In short, the record in this case shows a variety of
interpretations as to what constituted the violation of ROH § 29-
9
Zowail did not know the answer to the State’s question. He
estimated about 20 people were watching his performance, but testified that
during his performance he was “doing [his] art” and didn’t know how many
people were nearby.
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5.1 – yet none of these interpretations used an “explicit
standard” to determine when a group of spectators becomes too
large or when a passerby becomes part of a business operation.
Moreover, once the number of spectators turns an operation into a
violation of ROH § 29-5.1(a), “the ordinance does not
sufficiently specify what those within its reach must do in order
to comply.” Hynes v. Mayor & Council of Borough of Oradell, 425
U.S. 610, 621 (1976) (holding ordinance regulating door-to-door
solicitation and canvassing unconstitutionally vague). Thus, if
the size of the crowd determines whether a defendant violates ROH
§ 29-5.1, the ordinance would be unconstitutionally vague.
Finally, “[u]nder the rule of lenity, the statute must
be strictly construed against the government and in favor of the
accused.” Bayly, 118 Hawai#i at 15, 185 P.3d at 200 (quoting
State v. Shimabukuro, 100 Hawai#i 324, 327, 60 P.3d 274, 277
(2002)). Thus, the rule of lenity also counsels in favor of a
narrow interpretation of ROH § 29-5.1 and the term “operation.”
For these reasons, even if the term “operation” is
ambiguous, we must construe the term narrowly to include only
those things over which the defendant has control and which can
be objectively determined: the physical trappings of a
defendant’s business operation, such as a table for goods or a
demarcated performance area.10
10
Other statutes and ordinances ensure that Honolulu sidewalks
remain “free-flowing.” For example, Hawai #i Revised Statutes (HRS) § 852-1
requires persons to leave “ingress to or egress from any public or private
(continued...)
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3. Zowail’s operation did not violate ROH § 29-5.1
The next question, then, is whether substantial
evidence supports the conclusion that Zowail’s operation – the
table and its immediate surroundings – tended to or did impede or
inconvenience the public. We conclude it does not.
There was no evidence that Zowail’s table or any of the
physical apparatus associated with his operation actually
inconvenienced members of the public. The State’s photographs
showed a narrow table set up at the edge of the sidewalk. Zowail
testified that the table was two-feet wide, and that his entire
set-up was no more than three-feet wide. The officers did not
contradict Zowail’s testimony.
During closing arguments, the State focused solely on
the size of the crowd, arguing that Zowail violated ROH § 29-5.1
because “a large crowd gather[ed] behind the defendant’s
performance,” and “both officers testified as to how packed the
area was. . . . Sergeant Hamrick testified that the area was so
packed that it was a can of sardines.” Further, the State
“submit[ed] that it was likely a moving crowd, a fluid crowd,
[but] there was a large enough crowd to inconvenience the public
[and] [t]here was testimony that the crowd was facing Mr.
10
(...continued)
place,” and makes it a crime to refuse to move after police ask them to “leave
a free passageway for persons and vehicles[.]” Similarly, Zowail’s conduct in
this case may have been unlawful under ROH § 29-6.2 (1990), which prohibits
“peddling” – defined as “the sale or offer for sale, the renting or offer for
rent, or the display for sale or rent of any goods, wares, merchandise,
foodstuffs, or other kinds of property or services, . . . [as well as] the
solicitation of orders,” ROH § 29-1.1 – without a peddler’s license.
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Zowail.” Similarly, the district court’s finding that Zowail
impeded or inconvenienced the public was based solely on the size
of the crowd that formed: “[T]he size of that crowd did tend to
or did impede or inconvenience the public[.]”
Nothing in evidence suggested that Zowail’s table or
the supplies in front of his table impeded or inconvenienced
anyone. Thus, substantial evidence does not support the
conclusion that Zowail’s operation impeded or inconvenienced the
public or any person, and Zowail’s conviction must be reversed.11
B. The Charge Against Zowail was Deficient for Failing to
Allege a State of Mind
Although we reverse Zowail’s conviction because he did
not violate ROH § 29-5.1, we also take this opportunity to offer
guidance about charging a violation of a municipal ordinance. “A
charge that fails to charge a requisite state of mind cannot be
construed reasonably to state an offense and thus the charge is
dismissed without prejudice because it violates due process.”
State v. Apollonio, 130 Hawai#i 353, 359, 311 P.3d 676, 682
(2013). Here, neither the written complaint and summons Zowail
received, nor the State’s oral charge stated the requisite state
of mind for ROH § 29-5.1. Accordingly, the charge was
insufficient.
ROH § 29-5.1 does not expressly include a state of mind
element: “It is unlawful for any solicitor or canvasser to engage
11
Because we vacate Zowail’s conviction on this basis, we decline to
reach the other issues he raises on appeal.
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in business on any public street, sidewalk or mall where such
person’s operation tends to, or does impede or inconvenience the
public or any person in the lawful use of such street, sidewalk
or mall.” However, ROH § 29-5.1 should not be read in a vacuum -
offenses defined by municipal ordinances must be construed with
reference to the general principles of liability established in
the Hawai#i Penal Code (HPC), just like offenses defined by other
statutes and regulations. See Hawai#i Revised Statutes (HRS)
§ 702-102(3) (2014) (“The provisions of chapters 701 through 706
of the Code are applicable to offenses defined by other statutes,
unless the Code otherwise provides.”); State v. Carvalho, 58 Haw.
314, 315, 568 P.2d 507, 508 (1977) (applying mens rea requirement
in HRS § 702-204 to the Honolulu Traffic Code).
HRS § 702-204 provides that a state of mind is required
for most offenses, even if it is not specified by statute:
Except as provided in section 702-212,[ 12] a person is
12
ROH § 29-5.1 does not fall under the exceptions in HRS § 702-212.
HRS § 702-212 establishes two types of offenses to which the mens rea
requirement in HRS § 702-204 does not apply: (1) “[a]n offense which
constitutes a violation,” or (2) a crime for which “a legislative purpose to
impose absolute liability for such offense or with respect to any element
thereof plainly appears. ”First, ROH § 29-5.1 does not describe a violation
because it is punishable by up to 30 days imprisonment. ROH § 29-5.2; compare
HRS § 701-107(5)(“An offense defined by . . . any other statute of this State
constitutes a violation [1] if it is so designated in . . . the law defining
the offense or [2] if no other sentence than a fine, or fine and forfeiture or
other civil penalty, is authorized upon conviction.”) with HRS § 701-107(4)
(“A crime is a petty misdemeanor if. . . it is defined by a statute other than
[the HPC] that provides that persons convicted thereof may be sentenced to
imprisonment for a term not to exceed thirty days.”). Second, a legislative
intent to make ROH § 29-5.1 a strict liability offense does not “plainly
appear.” See State v. Armitage, 132 Hawai #i 36, 319 P.3d 1044 (2014)(holding
that a legislative intent to impose absolute liability did not “plainly
appear” in a regulation because a conviction imposes the possibility of
imprisonment, the statute did not expressly provide for strict liability, and
(continued...)
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not guilty of an offense unless the person acted
intentionally, knowingly, recklessly, or negligently,
as the law specifies, with respect to each element of
the offense. When the state of mind required to
establish an element of an offense is not specified by
the law, that element is established if, with respect
thereto, a person acts intentionally, knowingly, or
recklessly.
Thus, even though ROH § 29-5.1 does not specify a
required state of mind, under HRS § 702-204, a defendant must, at
a minimum, have acted recklessly in order to be guilty of
violating the ordinance.
Here, the complaint and summons Zowail received did not
describe the offense, and the State’s oral charge did not include
a state of mind element. However, failure to allege a state of
mind makes even an oral charge fatally defective. State v.
Elliott, 77 Hawai#i 309, 311, 884 P.2d 372, 374 (1994)
(“[W]hether an accusation is in the nature of an oral charge,
information, indictment, or complaint, [] the omission of an
essential element of the crime charged is a defect in substance
rather than of form.” (quoting State v. Jendrusch, 58 Haw. 279,
281, 567 P.2d 1242, 1244 (1977))). Accordingly, we remind courts
and parties that even a charge alleging the violation of a
municipal ordinance must comply with HRS § 702-204 and, where
necessary, advise a defendant of the requisite state of mind.13
12
(...continued)
the legislative history was silent on the issue).
13
Ordinarily, the remedy for a defective charge is dismissal without
prejudice. Armitage, 132 Hawai#i at 51, 319 P.3d at 1059. However, that
remedy is unnecessary here because, for the reasons discussed above, Zowail
(continued...)
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V. CONCLUSION
For the foregoing reasons, we hold that “operation” in
ROH § 29-5.1 means the area in which a defendant conducts their
business, and does not include spectators who stop to observe a
defendant’s business operation. Thus, notwithstanding the
deficiency of the charge, Zowail did not violate ROH § 29-5.1.
Accordingly, we vacate the November 12, 2019 judgment of the ICA,
reverse Zowail’s conviction, and remand this case to the district
court for the entry of a judgment of acquittal.
Jon N. Ikenaga /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
13
(...continued)
did not violate ROH § 29-5.1.
28