Clarity over Cocktails: North Dakota Supreme Court Refines the Vagueness Test for Non-Criminal Municipal Ordinances Governing Alcohol Service

Introduction

In Liquid Hospitality, LLC d/b/a Windbreak Saloon v. Board of City Commissioners of the City of Fargo, 2025 ND 136, the North Dakota Supreme Court reversed a district-court judgment that had invalidated Fargo Municipal Code (“F.M.C.”) § 25-1509.2 on void-for-vagueness grounds. The ordinance prohibits the sale or service of alcohol to intoxicated or impaired persons and imposes only administrative sanctions (fines and brief license suspensions). The Court’s opinion—written by Chief Justice Jensen and joined unanimously—clarifies:

How courts should analyze vagueness challenges to non-criminal, economic-regulation ordinances.
The quantum of evidence necessary for a municipal board to avoid being labelled “arbitrary, capricious or unreasonable.”

The dispute arose after a heavily intoxicated Windbreak patron was overserved, ejected, and subsequently crashed her car. The Fargo Police Department issued a citation, and both the Liquor Control Board and the Fargo City Commission found the Windbreak in violation of § 25-1509.2, assessing a \$500 penalty. On appeal, the district court—sua sponte—questioned the ordinance’s constitutionality and struck it down as facially vague. The Supreme Court restored the ordinance and the administrative sanction.

Summary of the Judgment

1. The Supreme Court held that F.M.C. § 25-1509.2 is not unconstitutionally vague. Because the ordinance imposes civil/administrative penalties and regulates a licensed commercial activity, it is subject to a “less stringent” vagueness standard.
2. The ordinary meaning of “intoxicated or impaired” coupled with the ordinance’s illustrative list of observable behaviors supplies adequate notice and sufficient enforcement guidelines.
3. The Fargo City Commission’s finding that the Windbreak violated the ordinance was supported by substantial evidence and was neither arbitrary nor capricious.
4. The district court erred by elevating the vagueness standard and by initiating a facial constitutional inquiry not raised by either party.

Analysis

Precedents Cited

City of Belfield v. Kilkenny, 2007 ND 44 — Distinguished between vagueness analyses for criminal vs. non-criminal statutes, emphasizing “minimal guidelines” for economic regulations.
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) — United States Supreme Court case establishing that economic regulations are judged under a relaxed vagueness test.
State v. Moses, 2022 ND 208 — Recited the two-prong North Dakota vagueness formulation: (1) standards for enforcers; and (2) fair warning to ordinary persons.
City of Fargo v. Roehrich, 2021 ND 145 — Reaffirmed that vague laws offend due process by failing to supply notice and encouraging arbitrary enforcement.
Kolender v. Lawson, 461 U.S. 352 (1983) and Grayned v. City of Rockford, 408 U.S. 104 (1972) — Classical Supreme Court articulations of vagueness doctrine, quoted for framework.

Legal Reasoning

The Court’s doctrinal pivot lies in classifying § 25-1509.2 as a civil administrative measure within the sphere of economic regulation. This classification carries three consequences:

Lower Certainty Threshold — Because only money penalties and short license suspensions are at stake, the ordinance need not attain the precision demanded of criminal statutes.
Businesses Can Research Compliance — Licensed alcohol vendors, by the nature of their trade, are expected to consult governing ordinances and adjust practices accordingly.
Absence of Fundamental-Rights Implication — The ordinance does not curtail speech, association, or other rights that would trigger stricter scrutiny.

Against that backdrop, the Court evaluated the text: “No licensee … shall sell … alcoholic beverages to … any person who is or has become intoxicated or impaired.” The ordinance then expands the concept of “obvious intoxication” with a non-exclusive list of nine observable indicators—from loss of balance to slurred speech—further cabining administrative discretion. The Court concluded that an ordinary licensee could reasonably gauge compliance and that police officers have objective signposts.

On the merits of the City Commission’s decision, Justice Jensen emphasized the extensive video evidence and officer testimony: staggering, resting head on stage, passing out, needing assistance walking. These facts satisfied the “obviously intoxicated” standard (a fortiori satisfying plain “intoxicated”).

Impact

The decision reshapes North Dakota administrative-law litigation in several ways:

Vagueness Framework Clarified — Litigants challenging non-criminal municipal ordinances must now confront the Court’s explicit adoption of the Hoffman Estates sliding-scale approach.
Facial vs. As-Applied Challenges — The opinion distinguishes and limits facial void-for-vagueness doctrine, suggesting courts may deny facial attacks where narrower, as-applied relief is adequate.
Judicial Restraint Reminder — Justice Tufte’s concurrence warns district courts against raising constitutional issues sua sponte, reinforcing the adversarial model.
Liquor-Control Enforcement Bolstered — Fargo (and sister municipalities) can continue using similar “obvious intoxication” ordinances without fear of wholesale invalidation, provided evidentiary records reflect observable impairment.
Administrative Boards’ Latitude — When boards compile video and officer testimony mirroring the ordinance’s enumerated indicators, their findings will likely survive appellate review.

Complex Concepts Simplified

Void for Vagueness: A constitutional doctrine that prohibits laws so unclear that (a) people cannot tell what behavior will violate the law or (b) enforcement authorities receive unlimited discretion.
Facial vs. As-Applied Challenge: A facial challenge attacks a law’s validity in all its applications. An as-applied challenge argues the law is unconstitutional only in the specific circumstances involving the challenger.
Arbitrary, Capricious, or Unreasonable: A deferential standard reviewing whether a governmental body acted on logic and evidence rather than whim or bias.
Economic Regulation: Laws governing commercial or business activities; courts generally grant legislatures wider leeway under due-process analysis.
“Less Stringent Vagueness Test”: A court’s willingness to uphold a regulation that is sufficiently—though not perfectly—clear when (i) it is civil, (ii) affects businesses, and (iii) does not impede fundamental rights.

Conclusion

Liquid Hospitality v. Fargo affirms municipal authority to police alcohol service through flexible yet intelligible standards. By anchoring vagueness doctrine to penalty severity and regulatory context, the North Dakota Supreme Court supplies a durable template for evaluating civil ordinances statewide. The ruling simultaneously counsels trial judges to wield constitutional scrutiny with restraint and assures licensees that “observable impairment” ordinances remain enforceable so long as municipalities offer objective behavioral markers and compile a solid evidentiary record. Going forward, lawyers mounting vagueness challenges to economic regulations must confront a steeper climb, and municipal boards—armed with crisp procedural records—will enjoy increased judicial deference.