Opinion
Docket No. 11110.
Decided January 25, 1972.
Appeal from Kent, John H. Vander Wal, J. Submitted Division 3 January 7, 1972, at Grand Rapids. (Docket No. 11110.) Decided January 25, 1972.
Kenneth Stanaback was convicted of violating the Village of Kentwood's Building Code. Defendant appealed to the circuit court. Affirmed. Defendant appeals by leave granted. Reversed.
Vander Veen, Freihofer Cook (by Bruce A. Barnhart), for plaintiff Village of Kentwood.
McDonald, Anderson Swets, for defendant.
Defendant owns an unfenced swimming pool. Section 429.82 of the Kentwood Building Code provides:
"Swimming Pool Safety Devices. Every person owning land on which there is situated a swimming pool, fish pond or other body of water which constitutes an obvious hazard and contains twelve (12) inches or more of water in depth at any point, shall erect and maintain thereon an adequate enclosure either surrounding the property or pool area, sufficient to make such body of water inaccessible to small children." (Emphasis supplied.)
Refusing to enclose his pool, defendant was charged and subsequently convicted of violating the ordinance. The question upon which we are asked to pass is whether the ordinance requires enclosures for all swimming pools or only for those which constitute an "obvious hazard".
The defendant moved to quash the complaint on the ground that the complaint did not charge that the defendant's swimming pool was an obvious hazard. The trial judge denied the motion.
The plaintiff contends that the clause "which constitutes an obvious hazard" modifies only "or other body of water".
The defendant maintains that the clause "which constitutes an obvious hazard" modifies "swimming pool, fish pond or other body of water".
As stated in People v. Goulding, 275 Mich. 353, 359 (1936): "Criminal statutes must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal."
In People v. Lockhart, 242 Mich. 491, 494 (1928), the Court said:
"It is also the duty of this Court, having due regard for other rules of construction, to construe the penal provisions of statutes in a manner most favorable to the accused.
"`If the statute contains a patent ambiguity, and admits of two reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred.' 25 RCL p 1084."
In our opinion the ordinance is ambiguous and should be interpreted as contended by the defendant. The trial judge should have quashed the complaint.
Reversed.