Street Performers Aren't Responsible for the Crowd

State v. Zowail (HSC June 15, 2020)

Background. Mohammad Zowail was charged with engaging in a business on a public sidewalk in violation of Revised Ordinances of Honolulu (ROH) § 29-5.1. A trial, the prosecution presented evidence from the police. Plainclothes officers were partrolling on foot in Waikiki. At around 7:00 p.m. on a night in November 2017, the officers saw Zowail for five to ten minutes conducting an “art performance.” He was spray painting on a canvas and explaining to a crowd that had gathered what he was doing. He was not selling the artwork, but offered to sell paintings for $75. Zowail testified. He said he was 23 years old and getting a psychology degree. He was hoping to earn a Ph.D. he testified that he has 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 said he was exercising his First amendment right to perform on the public sidewalk. Evidence of his layout was undisputed. It consisted of a table on the sidewalk outside a gallery on Kalakaua Avenue. On the table were spray paint cans and art supplies, canvases, and pens. On the ground in front of the table was a black cloth to prevent paint from getting on the sidewalk and a box for people to put money in. The table was two or three feet wide and set up running parallel to the street to allow people to walk past him or for a crowd to gather. The police estimated that a crowd of around 50 people gathered around him. The crowd, according to one officer, was like “a pack of sardines. You had to walk around to get through.” The district court with the Hon. Florence Nakakuni presiding, found him guilty as charged. Zowail appealed to the ICA, which affirmed.

The City Ordinance Outlaws Public Performances? “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.” ROH § 29-5.1(a). A “solicitor or canvasser” includes any person “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[.]” ROH § 29-5.1(b).

While “the 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), the HSC noted that the term “operation” in the ordinance is undefined. It therefore turned to Webster’s dictionary and a federal appeals court case. See Frame v. City of Arlington, 657 F.3d 215, 227 (5th Cir. 2011). The HSC adopted the word “operation” to mean the “whole internal process of operating a business.” That would refer to the area where the defendant conducts business—like the table for goods and services. This does not include the crowd that gathers around the table.

Ambiguous Terms must be Construed in Accordance with the Constitution. Even if the term “operation” is ambiguous, the HSC held that it must be interpreted strictly and narrowly in order “to preserve its constitutionality.” State v. Bayly, 118 Hawai'i at 708, 185 P.3d at 192-193. Reading the term “operation” to include those who stop to watch Zowail’s performance could infringe upon Zowail’s constitutional rights. Moreover, the HSC has “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.3d 1117, 1128 (1981).

Vague Laws Violate Due Process. “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. . . . [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.” United States v. Davis, __ U. S. __, 139 S.Ct. 2319, 2325 (2019). The HSC also commented that vague laws “impermissibly delegate 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.” State v. Bloss, 64 Haw. at 163-164, 637 P.2d at 1128.

Here, the HSC held that criminalizing any “operation” tending to inconvenience any person is unconstitutionally vague and infringes on constitutional rights. Therefore, it must be interpreted narrowly and the word is confined to “the physical trappings of a defendant’s business operation, such as a table for goods or a demarcated performance area.”

Moreover, the evidence adduced at trial showed the HSC that Zowail’s conduct did not violate the ordinance. It ordered that the conviction be vacated with the instructions to enter a judgment of acquittal.

The Complaint was Deficient Too, by the way. The HSC also noted that the complaint against Zowail was defective. “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). The charge against Zowail did not include the requisite state of mind for ROH § 29-5.1. At minimum, the defendant must have acted recklessly to be found guilty.


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