This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Adam Steele,



Filed January 9, 2007

Klaphake, Judge


Beltrami County District Court

File No. T1-05-2179


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Jeanine R. Brand, Assistant Bemidji City Attorney, City Hall, 317 Fourth Street N.W., Bemidji, MN  56601 (for respondent)


Adam Steele, P.O. Box 1535, Bemidji, MN  56619 (pro se appellant)


            Considered and decided by Worke, Presiding Judge, Klaphake, Judge, and
Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Adam Steele challenges his conviction under a Bemidji city ordinance for unlawful storage of an appliance and household furnishings in his yard, asserting that the ordinance is unconstitutional because (1) it is a violation of the state’s police power; (2) it is vague; and (3) it is discriminatorily enforced.

            Because we conclude that the ordinance does not offend principles of due process or equal protection, we affirm.


            We review the constitutionality of an ordinance de novo, as a question of law.  Thul v. State, 657 N.W.2d 611, 616 (Minn. App. 2003), review denied (Minn. May 28, 2003).  “Where no fundamental right or suspect class is involved, a statute [or municipal ordinance] is presumed to be constitutional, and the burden is on the challenger to prove constitutional violation beyond a reasonable doubt.”  State v. Hyland, 431 N.W.2d 868, 871 (Minn. App. 1988) (quotation omitted).  

1.         Due Process

            A statute or ordinance that constitutes an unreasonable exercise of municipal police powers violates the due process clause.  Id. at 872.  An ordinance is unreasonable if it has no substantial relationship to “public health, safety, morals, or general welfare.”  Id. (quotation omitted).  If the “reasonableness of an ordinance is debatable, courts will not interfere with the legislative discretion.”  Id. (quotation omitted). There must be at least a reasonable relationship between the ordinance and the promotion of health, safety, public morals, or general welfare.  Naegele Outdoor Adver. Co. v. Village of Minnetonka, 281 Minn. 492, 499, 162 N.W.2d 206, 212 (1968); N. States Power Co. v. City of Oakdale, 588 N.W.2d 534, 542 (Minn. App. 1999).  The ordinance need only be supported by “any set of facts either known or that could reasonably be assumed.”  Thul, 657 N.W.2d at 617.   

            Generally, we will not deem an ordinance based solely on aesthetic considerations to have a legitimate government purpose, but we will uphold an ordinance based in part on aesthetic considerations in addition to other legitimate purposes.  Naegele Outdoor Adver., 281 Minn. at 499, 162 N.W.2d at 212. 

            Here, the ordinance at issue provides that

[i]t is unlawful to park or store any unlicensed, unregistered or inoperable motor vehicle, household furnishings or appliances, or parts or components thereof, on any property, public or private, unless housed within a lawfully erected building.  Any violation of this Section is declared to be a nuisance upon seven days written notice to the owner of the property on which such item or items are situated as shown by the records in the office of the County Auditor or the Department of Public Safety[.]


Bemidji, Minn., Code of Ordinance § 10.33 (2001).  The district court acknowledged that Section 10.33 could include aesthetic considerations but also noted that the ordinance related to health and safety:  “[o]ld appliances and dilapidated furniture left in the open constitute attractive nuisances that could lead to child injury . . . [or] provide an ideal nesting and breeding ground for rodents.”  The fact that no injury has occurred does not invalidate the general legislative purpose of the ordinance.  The district court did not err by finding the ordinance a legitimate exercise of municipal police power that did not violate due process.

2.         Vagueness

            A criminal ordinance must define an offense with sufficient definiteness that an ordinary person can understand what conduct is prohibited.  Hyland, 431 N.W.2d at 871.  If no First Amendment issues are involved, we examine the ordinance in light of appellant’s own behavior, not a hypothetical situation.  Id. 

            Although appellant argues that the adjectives “inoperable,” “unregistered,” and “unlicensed” could be applied to the nominal phrase “household furnishings or appliances,” as well as the phrase “motor vehicle,” this is a strained interpretation of the ordinance.   Appellant has the burden of persuading the court that a person of ordinary intelligence would be unable to discern what conduct is forbidden; his approach requires a tortuous reading of a fairly straightforward ordinance.  A person of ordinary intelligence making a practical reading of the ordinance would be put on notice that junked automobiles, appliances, and household furnishings cannot be left in the yard.  The district court did not err by concluding that this ordinance is not vague.

3.         Discriminatory Enforcement

            Discriminatory enforcement of a statute or ordinance violates the Equal Protection Clause of the Fourteenth Amendment.  Id. at 872.  To prove discriminatory enforcement,

[a] defendant bears the heavy burden of establishing at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.


State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984) (quotation omitted).  The defendant has the burden of proving the claim of discriminatory enforcement by a clear preponderance of the evidence.  Id. at 38.

            Although appellant provided the district court with pictures of other homes in Bemidji that appeared to be in violation of the ordinance, the record is silent as to whether the other homeowners were charged.  Further, appellant fails to allege any impermissible government purpose for singling him out for discriminatory prosecution.  Because appellant bore the burden of establishing at least a prima facie case and failed to do so, the district court did not err by concluding that appellant had not been subject to discriminatory enforcement.

            We therefore affirm appellant’s conviction.[1]

[1]          The state has raised a challenge to the district court’s grant of a stay of adjudication, in lieu of sentencing appellant.  A stay of adjudication is deemed to be a pretrial order.  State v. Lee, 706 N.W.2d 491, 494 (Minn. 2005).  The state may appeal a pretrial order in accordance with the procedure set forth in Minn. R. Crim. P. 28.04, subd. 2.  Such an appeal must be made within five days after the defendant or the clerk of court notifies the state of entry of the order, or within five days after the prosecuting attorney is notified in court on the record of such an order, whichever is first.  Minn. R. Crim. P. 28.04, subd. 2(8).  The prosecuting attorney must file a notice of appeal with the clerk of the court of appeals.  Minn. R. Crim. P. 28.04, subd. 2(2).  The prosecuting attorney did not comply with that procedure.  Because it has been untimely raised, we decline to address this issue.