Can a city change its ordinance interpretation without notice? South Salt Lake City v. Terkelson Explained

The Utah Court of Appeals in South Salt Lake City v. Terkelson addressed a fundamental due process question: whether a municipality can alter its interpretation of an ordinance and enforce that change without providing fair notice to those subject to the law.

Background and Facts

South Salt Lake City conducted an undercover operation at adult entertainment clubs to verify compliance with its sexually oriented business ordinance. Rather than using existing video monitoring, officers participated in private sessions, instigated contact with the defendants, then cited them for allowing the contact. The defendants argued they had previously been told by city representatives that their conduct was permissible under the ordinance’s restrictions, which prohibited touching “while performing.” They claimed the city had agreed that touching was allowed when employees were not dancing, patrons didn’t touch genitalia, and parties remained on opposite sides of a partition.

Key Legal Issues

The central issue was whether defendants’ due process rights were violated when the city allegedly changed its interpretation of the ordinance without notice. The trial court excluded evidence of the city’s prior interpretation and communications with the clubs, rejecting defendants’ constitutional challenge based on Bouie v. Columbia.

Court’s Analysis and Holding

The court reversed, finding the trial court incorrectly limited the scope of Bouie. The fair notice principle applies beyond judicial reinterpretations to include administrative or executive changes in ordinance interpretation. Citing United States v. Pennsylvania Industrial Chemical Corp. and Cox v. Louisiana, the court emphasized that due process requires fair notice regardless of whether the interpretive change comes from courts or government agencies. The court noted that determining due process violations requires fact-intensive analysis considering the authority of persons providing guidance, whether the government actively misled citizens, and the reasonableness of any reliance.

Practice Implications

This decision reinforces that municipal ordinance enforcement must comply with due process fair notice requirements. When challenging changed interpretations, practitioners should gather evidence of prior official communications, the authority of city representatives, and clients’ reasonable reliance. The court’s remand instructions provide a roadmap for developing the factual record necessary to support such challenges.