In the past, we have considered whether a noise ordinance was unconstitutional because it violated these separation of powers principles. In City of Lincoln Center v. Farmway Co-Op, Inc. , 298 Kan. 540, 546, 316 P.3d 707 (2013), we considered the City's ordinance that criminalized the making of " ‘any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.’ " We held this language "fails the second prong of the vagueness inquiry" because it failed to " ‘convey sufficient clarity to those who apply the ordinance standards to protect against arbitrary and discriminatory enforcement.’ "

Our court uses a two-prong inquiry to determine if a statute or ordinance is unconstitutionally vague. City of Lincoln Center v. Farmway Co-Op, Inc. , 298 Kan. 540, 545, 316 P.3d 707 (2013). First, the court determines whether the statute or ordinance conveys a sufficiently definite warning and fair notice of the prohibited conduct in light of common understanding and practice.

Courts use a two-prong inquiry to determine if a statute is unconstitutionally vague. City of Lincoln Center v. Farmway Co–Op, Inc. , 298 Kan. 540, 545, 316 P.3d 707 (2013). First, courts determine whether the statute conveys a sufficiently definite warning and fair notice of the prohibited conduct in light of common understanding and practice.

The court must presume that the ordinance is constitutional, resolve all doubts in favor of validity, and uphold the ordinance if there is any reasonable way to construe it as constitutional; before striking the ordinance, the court must conclude that it clearly appears to be unconstitutional.” City of Lincoln Center v. Farmway Co–Op, Inc., 298 Kan. 540, Syl. ¶ 1, 316 P.3d 707 (2013).To conduct our analysis, we must first decide whether Clark raises a facial or as-applied challenge to the ordinance.

Other Kansas cases, however, have characterized ordinance violations as criminal. For example, in City of Lincoln Center v. Farmway Co –O p, Inc., 298 Kan. 540, 549, 316 P.3d 707 (2013), plaintiff asserted that a municipal ordinance was unconstitutionally vague. Based on the language of the ordinance—“it is unlawful for any person to”—the Court found that it was criminal and applied a higher standard of certainty to the vagueness analysis.

(citing Smith v. Goguen, 415 U.S. 566 , 574-75, 94 S. Ct. 1242 , 39 L. Ed. 2d 605 [1974]). And in analyzing tiiis second prong for vagueness, we are further mindful that ‘[t]he standards of certainty in [a statute] punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.’ Steffes, 284 Kan. at 389.” City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540 , 545-46, 316 P.3d 707 (2013). *279

Violation of either aspect of these predictability requirements is grounds for invalidating a statute. City of Lincoln Center v. Farmway Co–Op, Inc., 298 Kan. 540, 545, 316 P.3d 707 (2013). Thus, the test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement.

Courts use a two-prong inquiry to determine if a statute is unconstitutionally vague. City of Lincoln Center v. Farmway Co-Op, Inc. , 298 Kan. 540, 545, 316 P.3d 707 (2013) ; White v. Shipman , 54 Kan. App. 2d 84, 94-95, 396 P.3d 1250 (2017). First, courts determine whether the statute conveys a sufficiently definite warning and fair notice of the prohibited conduct in light of common understanding and practice.

First, the statute should give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015); City of Lincoln Center v. Farmway Co-Op, Inc., 298 Kan. 540, 545-46, 316 P.3d 707 (2013); Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444 (2011). Second, the statute should provide explicit standards for enforcing it so enforcement is not arbitrary and discriminatory.

A violation of either one of these requirements is grounds for invalidating a statute. City of Lincoln Center v. Farmway Co–Op, Inc., 298 Kan. 540, 545, 316 P.3d 707 (2013).Therefore, the two-step test used to determine whether a criminal statute is so vague as to be unconstitutional involves the following analysis: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement.