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Theodore Smith Theodore Smith MIBIZ FILE PHOTO: Ryan Pavlovich

Appeals court finds GR noise ordinance unconstitutionally vague in case against bar

BY Sunday, March 13, 2016 11:17am

GRAND RAPIDS — A statute in Grand Rapids’ noise ordinance that the city used to prosecute the owners of the Tip Top Deluxe Bar & Grille was unconstitutionally vague, according to a ruling issued last week by the Michigan Court of Appeals.

The court ruled that the ordinance, which stated that no person could “destroy the peace and tranquility of the surrounding neighborhood,” failed to provide “explicit standards” for what constituted a violation, thereby giving law enforcement “virtually complete discretion” over whether a violation had occurred.

“Simply put, conduct that ‘destroys’ the peace and tranquility of some would not affect others to such an extent,” the three-judge panel stated in its March 8 ruling.

The Court of Appeals ordered the lower courts to dismiss the criminal misdemeanor cases against Tip Top co-owners Theodore Smith and Franklin Lehnen and employee John Gaspar.

Another employee, Jacqueline Martin, was charged with a similar violation and later acquitted during a trial.

“We’re very happy with the state Court of Appeals decision,” Smith told MiBiz. “We think it’s the correct decision. Hopefully, the city accepts and we can move forward. It’s just been very frustrating the entire time it’s been going on.”

The city attorney’s office continues to review the court’s decision and formulate a response, spokesperson Steve Guitar said in an email. He declined to comment on whether the city would pursue the case further, as well as whether the city would make changes to the ordinance.

The case stemmed from noise complaints on nights the Tip Top hosted live music in 2012 and 2013. In its case, the prosecution argued that because the music could be heard from the street, the bar was in violation of the ordinance.

Tip Top is located at 760 Butterworth St. SW in a mixed residential and commercial neighborhood.

However, the section of the ordinance did not contain any decibel level threshold for what constituted a violation and was up to individual interpretation.

The Court of Appeals said the law was unconstitutional because it “provides virtually no guidance to a citizen in determining whether his or her conduct is prohibited” and “vests the enforcing officer with almost complete discretion to determine whether the ordinance has been violated.”

Smith said the bar has continued to host live music while the case was before the courts.

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