Traylor challenges two of his conditions of community custody:
Do not possess or consume alcohol and do not frequent establishments where alcohol is the chief commodity for sale.
Traylor argues that the term “chief commodity for sale” is unconstitutionally vague because a reasonable person can neither quantify what constitutes a “chief commodity” nor describe a standard necessary to avoid arbitrary enforcement. We disagree.
The dictionary definition of “chief” is “marked by greatest importance, significance, influence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 387 (2002). It is a synonym of “principal,” “main,” and “leading.” Id. The dictionary definition of “commodity” is “an economic good.” Id. at 458. An establishment where alcohol is the chief commodity sold is an establishment where alcohol is the main or most important good for sale. It connotes an establishment whose primary purpose is the sale of alcohol.
Traylor’s arguments fall into two broad categories. First, he argues that the condition’s ambiguity is highlighted by the fact that it is unclear if he is prohibited from entering sports venues, stores that sell liquor but are not liquor stores, or a given restaurant. An ordinary person would not perceive selling alcohol to be the main or most important aspect of a sports venue, a theatre, or another similar entertainment venue. The chief commodity of those establishments is entertainment, and Traylor is not prohibited from attending a sporting event at a sports venue or a show at a theatre. He is, however, prohibited from entering a beer garden or bar area within those venues. Likewise, despite the privatization of liquor sales, an ordinary person would not perceive liquor to be the chief commodity at grocery stores, convenience stores, or gas stations, even though they may sell a significant quantity of alcohol. Traylor’s complaint that it is unclear whether he could enter a given restaurant is similarly unpersuasive. Alcohol is the chief commodity of a tavern or a lounge or bar area of a restaurant. He is prohibited from being present there, but would not be prohibited from the separate food service area of a restaurant. Some uncertainty is inherent in any condition. For example, even if the condition specified in detail that he was banned from any facility holding specific types of liquor licenses, he would have to make an inquiry about the license of the establishment to be certain. Again, we note that a “condition `is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited conduct.'” Valencia, 169 Wn.2d at 793 (quoting State v. Sanchez Valencia, 148 Wn. App. 302, 320, 198 P.3d 1065 (2009), reversed by, 169 Wn.2d 782)).
Second, Traylor argues that there are a variety of tests that could be used to determine whether alcohol is the chief commodity of a given establishment. Failure to designate one of those tests or some other more concrete test, he argues, prevents him from ascertaining which establishments he is prohibited from entering and creates a potential for arbitrary enforcement. He argues that an establishment’s “chief commodity” could be measured, for instance, as a percentage of income that comes from alcohol sales or from the gross quantity of alcoholic units sold. Thus, Traylor claims he may violate the condition if he enters an establishments whose sales receipts show that 25 percent of its sales are alcohol related, or a store that sells more alcohol than any other “commodity class.”
While including such a parameter might exclude other imagined means to determine a violation, it would provide little real guidance. Those conditions would fail the vagueness test, because sales data is not widely available. It would not be possible for an ordinary person to tell what conduct is proscribed without a specific inquiry of the establishment. Further, the information would vary over time. It could mean that presence one day was a violation and another it was not, and the condition would have to include a temporal element as well as a quantity element to be accurately interpreted. That additional requirement would make it even more difficult for an ordinary person to tell what conduct is proscribed. Such parameters are not necessary for an ordinary person to understand when alcohol is an establishment’s chief commodity.
The vagueness doctrine is aimed at preventing the delegation of “basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). This condition adequately addresses that concern. Its ordinary meaning provides both sufficient guidance for an ordinary person to understand what conduct is proscribed and ascertainable standards of guilt.
