The opinion
RICHARDSON, J.,
concurring.
I concur in the main with the lead opinion’s analysis and disposition. I do not think defendant has presented the overbreadth issue and, under the circumstances of this case, the issue should not be addressed. I emphasize, however, that appellate courts enjoy flexibility in determining whether to reach or decline to reach Oregon constitutional questions which have not been presented or properly presented. The cases discussed by the lead opinion and the dissent make it clear that there is no immutable rule of preservation or non-preservation. I also write separately to note that, if we could or should reach the issue, I do not agree with the dissent’s conclusion that the city’s legislation is overbroad. The dissent juxtaposes section 14.24.160 of the code, which does not provide for “variances” or other exceptions, against sections *742 18.12.010 et seq, which contain essentially the same regulations of amplified sound but provide for exemptions and variances. Defendant did not apply for a variance under section 18.14.020. The dissent regards that fact as irrelevant, because defendant was prosecuted under section 14.24.160 rather than under Title 18.
In my view, exactly the opposite conclusion follows. The proper approach is to read the provisions in pari materia. When they are so read, any overbreadth in section 14.24.160 is cured by the variance and exemption procedures that Title 18 establishes. Given the fact that their substantive regulations are materially identical, it is untenable to assume, as the dissent appears to do, that a person who seeks and obtains a variance under section 18.14.020 would or could be prosecuted under section 14.24.160.
The dissent’s basis for concluding that the city’s 50-foot limit is unconstitutional is that it is a “flat prohibition” which “takes no account of the time and place of the speech on the public right-of-way, the anticipated size and proximity of the audience, or other pertinent circumstances.” 93 Or App at 749. The dissent hypothesizes presidential candidates, and presumably others, who might require amplification to reach an audience that extends beyond the 50-foot range. However, I reiterate that the exemptions and variances available under Title 18 are sufficient to meet such situations.
The dissent’s use of the term “flat prohibition” is deceptive. The 50-foot radius is a place and manner limitation, not a prohibition, and there is no reason why the city should not be able to impose it as a general rule. See Kovacs v. Cooper, 336 US 77 , 69 S Ct 448 , 93 L Ed 513 (1949). 1
The dissent’s overbreadth analysis is substantially eroded by City of Portland v. Tidyman, 306 Or 174 , 759 P2d 242 (1988). As the passage from that opinion quoted by the majority demonstrates, the city has broad constitutional latitude in fashioning a content-neutral regulation of the time, *743 place and manner of expression. The dissent faults the city’s 50-foot rule for not accommodating all variations of time, place and audience size that might arise. Tidyman suggests that it is a permissible legislative choice to design time, place and manner regulations for the very purpose of preventing the types of variations that the dissent believes that the city must allow. In any event, the dissent does not explain why the reach of the 50-foot rule is overbroad, except to say that some persons may want to project their voices or other sounds over greater distances.
Even without the exemption and variance provisions of Title 18, it would seem a large leap to say that a time, place and manner regulation is unreasonable — or, by analytical parity, overbroad — simply because the legislative body could have chosen different regulations.
It is not correct that the city’s regulation does not “take account” of the time and place of amplified speech. The regulation simply creates no exception, based on time, for speech which occurs in certain places and is conducted in a certain manner. The dissent does not persuade me that that is not a valid legislative decision. I do not understand the discussion of “administrative proceedings” in Tidyman to have any bearing on regulations of the kind in question, which are not predicated on the supposed effects of communication with a particular content, but which apply to amplified sound of all kinds.
Warren and Deits, JJ., join in this concurring opinion.
The dissent’s invocation of the “public forum” doctrine, and its emphasis on the purported constitutional significance of where defendant was engaging in his noise-producing activity, are misplaced. The regulatory objective of the ordinance is where the noise goes, not where it originates. Nothing in the public forum doctrine supports the dissent’s view that noise that creates a disturbance on private property is impervious to regulation on the basis that it is generated on an adjacent public sidewalk.