Petition for Writ of Certiorari — City of Virginia Beach, Virginia v. Tanner (No. 09-314)
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No. 9 -3 14 SEP 1.0 2009
Jn The OFFICE OF THE CLERK
Supreme Court of the Wer States
slesaleh ie
CITY OF VIRGINIA BEACH,
Petitioner,
BRADLEY S. TANNER, et al.,
Respondents.
°
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF VIRGINIA
¢
PETITION FOR WRIT OF CERTIORARI
¢
Christopher S. Boynton
Counsel of Record
Mark Stiles
OFFICE OF THE CITY ATTORNEY
Municipal Center, Building One
2401 Courthouse Drive
Virginia Beach, Virginia 23456
(757) 385-4531
Counsel for Petitioner Dated: September 10, 2009
THE LEX GROUP®® @ 1750 K Street N.W. @ Suite 475 @ Washington, DC 20006
(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 @ www.thelexgruup.com
QUESTION PRESENTED
Is a noise ordinance which _proscribes
“unreasonably loud, disturbing and unnecessary
noise” — applying a reasonable person standard
impermissibly vague under the Due Process Clause
of the United States Constitution?
LIST OF PARTIES TO THE PROCEEDING
Petitioner:
City of Virginia Beach
Respondents:
Bradley S. Tanner
Eric Alexander Williams
BAE Ventures, Inc. t/a The Peppermint Beach Club
1
RULE 29.6 STATEMENT
The City of Virginia Beach is not a publicly
held corporation and does not have a parent or
publicly held company owning 10% or more of the
corporation's stock.
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................:eceeee es kere
LIST OF PARTIES TO THE PROCEEDING............ il
RULE 29.6 STATEMENT. ......:sccccccccsccsrseeseesees Renee ili
Fe CI Ce EE ncn scnicnenncnesonsnncccsassnvigseosccesn lV
Sas APE FAs BORE RAMEE vs iccivccceusdcacecnnnecacanacnonres V1ll
CPOE MRI oes ciseercaitcacacccscssckanasscssapsupasscnensonte l
IT cio vin Giihiessiwasatdsianiecenscacsetanoasundgudersaees 1
STATEMENT OF JURISDICTION .....0... ee. 3
CONSTITUTIONAL AND
ES BEC E BY ING sess te pssccrecersssiesonssssessvessens 3
FETAL REEIE USE BOARS CAP essnscanssneccocnccssancvsncserseses 6
A. Proceedings in the Circuit Court.......... 6
B. Proceedings in the Supreme
COMME GE HI ons civics sivcneehesessosccsvsseses 8
REASONS FOR GRANTING CERTIORARI........... 10
I. The Virginia Supreme Court’s Opinion
Conflicts with this Court’s Due Process
Jurisprudence and Misinterprets and
Misapplies the Law Regarding the
Reasonable Person Standard.....................000. 10
A. This Court has held that the
reasonable person standard in a
criminal law provides sufficient
standards to satisfy the Due
Pe RIOD ici kes eshte 10
B. The “reasonable person”
standard permeates this Court’s
MII 55570 niccnackcckicbigutemeieeuien LZ
C. This Court has held that the
words “loud” and “disturbing” are
not vague in the context of other
IS SII ives kcsdriexatscmcnreecka 15
II. Federal Courts of Appeal and State
Supreme Courts Have Upheld Noise
Ordinances Similar to the One Struck
Down by the Supreme Court of Virginia....... 18
A. PS CII oi 0k vas dacssSescendesastecamanes 18
B. State Cases ..........c.c00... susickenesianseentemnaaae 20
Vi
IIIf. The Decision Below is Grounded on
Authority Which does not Support the
Conclusion the Supreme Court of
oo en ceuarageenacsean’ 27
CONCLUSION... set ao
APPENDIX
Opinion of
The Supreme Court of Virginia
entered April 17, ZOOB............cc..cccce la
Final Order of
The Circuit Court of
The City of Virginia Beach
entered April 21, 2O0B.........cccsecccscrss l3a
Letter Opinion of
The Circuit Court of
The City of Virginia Beach
entered April 8, 2008.....................065. l7a
Order of
The Circuit Court of
The City of Virginia Beach
entered September 7, 2007 ............... 23a
Letter Opinion of
The Second Judicial Circuit of
The Circuit Court of
The City of Virginia Beach
entered August 13, 2007 ............ aacaaal
Order of
The Supreme Court of Virginia
Re: Denying Rehearing
entered June 12, 2009 ...... a ...o0a
Defendant's Demurer
filed September 27, 2007.................. la
Defendant's Demurer
Re I I co iccccecndvcscvascenns ..38a
Plaintiffs’ First Amended Complaint for
Declaratory and Injunctive Relief
filed September 6, 2007....... 47a
Plaintiffs’ Complaint for
Declaratory Injunctive Relief
SS pS ane
Ordinance § 23-47 “Loud, Disturbing
and Unnecessary Noise”
ARERR NOLEN ter SA AR ER A 70a
Vill
TABLE OF AUTHORITIES
Page(s)
CASES
Ashcroft v. ACLU,
ED SF es CD oc vecccn nia cascdvonsvesncebsenssovsainns 13
Cameron v. Johnson,
ee CFs ME OC BED on cucccéscessonsdcssscess ey ye
City of Beaufort v. Baker,
432 S.E.2d 470 (S.C. 1993) .20
City of Madison v. Baumann,
470 N. W .2G ZE6 CWB. LOB]) .ncccccscecvcecsseseccscses 20
Coates v. City of Cincinnati,
GO Ue Ge Cae EE) sc cevnesesccoviecastszesounctauns 12, 17
Kanes v. State,
569 A.2d 604 (Md. 1990)...... . 2)
Harley v. State,
789 P.2d 374 (Alaska App. 1990)................... 21
Florida v. Royer,
460 U.S. 491 (1988)...... ese’ cease iicawniiueaanaleaane
Grayned v. City of Rockford,
408 U.S. 104 (1972) : passim
Harlem Yacht Club v.
New York City Environmental Control Bd.,
40 A.D.3d 331 (N.Y. 2007) 22
Harlow v. Fitzgerald,
457 U.S. 800 (1982) whe
Howard Opera House Associates
Urban Outfitters, Inc.,
322 F.3d 125 (2d Cir. 2003) 18
Kovacs v. Cooper,
336 U.S. 77 (1949) 11,15, 16, 17
Lutz v. City Of Indianapolis,
820 N.E.2d 766 (Ind. App. 2005) 22
Nichols y. City of Gulfport,
589 S0.Z2d 1ZSEO (LOO) ........cccccccscccesses DO"SE, SE
Perk v. Vector Resources Group, Ltd.,
253 Va. 310, 485 S.E.2d 140 (1997) 9
People v. Lord,
796 N.Y.S.2d 511 (N.Y. 2005) .. 23
People v. New York Trap Rock Corp.,
442 N.Y.2d 1222 (N.Y. 1982).... 29
Reeves v. McConn,
631 F.2d 377 (5th Cir. 1980) 19
Smith v. United States,
431 U.S. 291 (1977).. 13
State v. Dorso,
446 N.E.2d 449 (Ohio 1983) 23
State v. Friedman,
697 A.2d 947 (N.J. 1997).. | ssesee dl
State v. Garren,
451 S.E.2d 315 (N.C. 1994) 28
State v. Holcombe,
187 S.W.3d 496 (Tex. Crim. App. 2006) 24
State v. Johnson,
542 P.2d 808 (Ariz. 1975).. 25
Tanner v. The City of Virginia Beach,
277 Va. 432, 674 S.E.2d 848 (2009) |
Thelen v. State,
526 S.E.2d 60 (Ga. 2000) eseeree dl, 20, 29
Thompson v. Skate America, In:
261 Va. 121, 540 S.E.2d 723 (2001).............6, 9
Thornburgh yv. Abbott,
490 U.S. 401 (1989) 14
Town of Baldwin v. Carter,
794 A.2d 62 (Me. 2002) .... _ 25
Township of Plymouth v. Hancock,
600 N.W.2d 380 (Mich. 1999)... " 26
Turner v. Safely,
482 U.S. 78 (1987) 13,14
US. v. Drayton
536 U.S. 194 (2002) l4
CONSTITUTIONAL PROVISIONS
l). S. CONST. amend. | Ls
U.S. CONST. amend. I\ 14
U.S. CONST. amend. \ 3, 4
U.S. CONST. amend. AI\ |
U.S. CONST. amend. AIV § 1 i
STATUTE
28 U.S.C. § 1257(a) 3
RULE
REGULATION
Virginia Beach City Code § 23-47 1,4
PETITION FOR WRIT OF CERTIORARI
Mark D. Stiles, City Attorney for the City of
Virginia Beach, on behalf of the City of Virginia
Beach (“the City”), respectfully petitions this Court
for a Writ of Certiorari to review the judgment of the
Supreme Court of Virginia in this case.
OPINIONS BELOW
The Circuit Court of Virginia Beach, Virginia
denied facial and “as-applicd” challenges to the
Virginia Beach Noise Ordinance by letter opinions
dated August 13, 2007 and April 8, 2008,
respectively. These opinions are reprinted at App.
26a,! and App. 17a. The Supreme Court of Virginia’s
Opinion reversing the circuit court is reported as
Tanner v. The City of Virginia Beach, 277 Va. 432,
674 S.#.2d 848 (2009), and is reprinted at App. la
The Supreme Court of Virginia denied The City of
Virginia Beach’s Petition for Rehearing on June 12,
2009. (App. 30a).
INTRODUCTION
The Supreme Court of Virginia struck down
as unconstitutional the entire Virginia Beach Noise
Ordinance, City Code § 23-47 (“the Ordinance”). The
Ordinance prohibits “unreasonably loud, disturbing
and unnecessary noise in the city or any noise of
such character, intensity and duration as to be
' References to the Appendix contained in the Petition for Writ
of Certiorari will be denoted “(App. _)
2
detrimental to the life or health of persons of
reasonable sensitivity or to disturb or annoy the
quiet, comfort or repose of reasonable persons.”
(App. 70a). The Ordinance incorporates a
“reasonable person” standard that law enforcement
officers must apply before issuing a citation for
violating the Ordinance. (App. 70a).
The Virginia Supreme Court found that the
Ordinance is impermissibly vague under the Due
Process Clause of the United States Constitution
because it does not contain “ascertainable
standards.” (App. 9a). Rather, the court reasoned,
“the determinations required by the ordinance can
only be made by police officers on a subjective basis.”
(App. lla). In so finding, the court concluded that
the words “loud, disturbing and unnecessary,” as
used in this Ordinance, “are inherently vague
because they require persons of average intelligence
to guess at the meaning of those words.” (App. 10a).
This Court has already held that the
adjectives “loud” and “disturbing’—when read in
context—pass constitutional muster in a vagueness
challenge. Thus, the Virginia court’s opinion
conflicts with jurisprudence from this Court. And,
the Virginia court’s opinion is a marked departure
from the existing case law from both federal and
state courts that have reviewed similar noise
ordinances. More importantly, though, this case
raises the jurisprudentially significant question
whether inclusion of the established and familiar
“reasonable person” standard in a noise ordinance
satisfies constitutional due process requirements, or
whether noise ordinances must contain
mathematically precise standards such as decibel
ranges or distance parameters in order to survive
constitutional scrutiny.
These reasons compel this Court’s review
under Rule 10 of the Rules of the Supreme Court of
the United States.
STATEMENT OF JURISDICTION
The Supreme Court of Virginia issued its
decision on April 17, 2009, and denied Petitioner’s
request for Rehearing on June 12, 2009. This Court
has jurisdiction pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS
1. The Fifth Amendment to the United States
Constitution provides:
No person shall be held to answer for a
capital, or otherwise infamous crime,
unless on presentment or indictment of
a Grand Jury, except in cases arising in
the land or naval forces, or in the
Militia, when in actual service in time
of War or public danger; nor shall any
person be subject for the same offense
to be twice put in jeopardy of life or
limb; nor shall be compelled in any
criminal case to be a witness against
himself, nor be deprived of life, liberty,
or property, without due process of law;
nor shall private property be taken for
public use, without just compensation.
U.S. Const. amend. V.
2.
The Fourteenth Amendment to the United
States Constitution provides, in pertinent part:
Section 1. All persons born or
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
state wherein they reside. No state
shall make or enforce any law which
shall abridge the _ privileges’ or
immunities of citizens of the United
States; nor shall any state deprive any
person of l:fe, liberty, or property,
without due process of law; nor deny to
any person within its jurisdiction the
equal protection of the laws.
U.S. Const. amend. XIV, § 1.
3.
Virginia Beach City Code § 23-47 states:
It shall be unlawful for any person to
create, or allow to be created any
unreasonably loud, disturbing and
unnecessary noise in the city or any
noise of such character, intensity and
duration as to be detrimental to the life
or health of persons of reasonable
sensitivity or to disturb or annoy the
quiet, comfort or repose of reasonable
persons. The following acts, among
others, are declared to be loud,
disturbing and unnecessary noise in
violation of this section, but such
enumeration shall not be deemed to be
exclusive:
(1) The playing of any television
set, radio, tape player, phonograph or
any musical instrument in such a
manner or with such volume as to
annoy or disturb the quiet, comfort or
repose of reasonable persons.
(2) The keeping of any animal!
which, by causing frequent or long-
continued noise, shall disturb the quiet,
comfort or repose of the neighborhood to
such an extent as to constitute a
nuisance.
(3) The creation of any excessive
noise on any street adjacent to any
school, institution of learning or court,
while the same is in session, or adjacent
to any building used as a place of public
worship, while being so used or
adjacent to any _ hospital, which
unreasonably interferes with the
workings of such school, institution or
court or the services being conducted in
such place of public worship or which
disturbs or unduly annoys patients in
such hospital.
(4) The shouting and crying of
peddlers, hawkers and vendors which
disturbs the peace and quiet of the
neighborhood.
(5) The use of any drum,
loudspeaker or other instrument or
device for the purpose of attracting
attention, by creation of noise, to any
performance, show or sale or display of
merchandise.
STATEMENT OF THE CASE
A. Proceedings in the Circuit Court
On June 22, 2007, Bradley S. Tanner, Eric
Alexander Williams, and BAE Ventures, Inc. t/a the
Peppermint Beach Club (hereinafter, “Tanner,”
“Williams,” or collectively “the Peppermint,”) filed a
Complaint in the Circuit Court of the City of
Virginia Beach, Virginia seeking declaratory and
injunctive relief against the enforcement of the
Ordinance. (App. 59a).
The City filed a demurrer? contending that the
Ordinance was facially valid. (App. 38a). In a letter
opinion dated August 13, 2007, the circuit court
sustained the demurrer in part, holding that the
Ordinance was facially valid. The circuit court relied
upon a prior circuit court opinion which had found
2 A demurrer tests the legal sufficiency of a pleading.
Thompson v. Skate America, Inc., 261 Va. 121, 128, 540 S E.2d
123, 126 (2001). Therefore, the circuit court did not consider
evidence in ruling on the Peppermint’s facial. challenge.
that the Ordinance was “not facially vague or
overbroad and does not, as written, violate any due
process” rights under the Virginia Constitution.
(App. 28a-29a). The circuit court dismissed the
facial challenge, (App. 23a), and subsequently denied
the Peppermint’s motion to reconsider this ruling.
(App. 14a, 19a).
Following a hearing on July 11, 2007, the
circuit court denied the Peppermint’s request for
preliminary injunction, largely on grounds that the
Peppermint could not “show a likelihood of success
on the merits.” (App. 28a).
By Order entered nunc pro tunc September 7,
2007, the circuit court overruled the City’s demurrer
as to the “as apphed” challenge. (App. 23a-25a). A
trial on the “as-applied” claim, as well as the
selective enforcement claim, was held on February
26, 2008.
The Peppermint is a nightclub located in the
1800 block of Atlantic Avenue. (App. la, 47a). City
police officers have repeatedly warned the
Peppermint’s owners, Tanner and Williams, that the
music emanating from the interior of their
establishment was unreasonably loud. (App. 2a,
48a). Failing to heed these warnings, on several
occasions Tanner and Williams received Class 4
misdemeanor citations for unreasonably loud,
disturbing and unnecessary noise, in violation of the
Ordinance. (App. 2a-3a, 48a).
In a letter opinion dated April 8, 2008, the
circuit court denied the Peppermint’s “as-applied”
challenge. (App. 20a-22a). With regard to the facial
challenge, the circuit court again noted that it had
dismissed this claim on a demurrer, and held that it
would not reverse its earlier ruling. (App. 19a).
Although the original Complaint purported to
challenge the constitutionality of the Ordinance
pursuant to the Constitution of Virginia, in its letter
opinion issued on April 8, 2008, the trial court
addressed the issue of constitutionality pursuant to
the United States Constitution. Specifically, the
trial court based its analysis upon the Equal
Protection Clause contained in the United States
Constitution and the case law regarding same. (App.
20a).
The circuit court entered a final order on April
21, 2008. (App. 13a).
B. Proceedings in the Supreme
Court of Virginia
The Peppermint appealed to the Supreme
Court of Virginia, arguing that (1) the circuit court
erred in denying the facial challenge, (2) the
ordinance is facially unconstitutional, (3) “as-
applied” the ordinance is unconstitutional, and (4)
the circuit court erred in denying relief given the
specific finding of uneven enforcement. The
Supreme Court of Virginia awarded the Peppermint
a writ on October 30, 2008.
On April 17, 2009, the Supreme Court of
Virginia issued an opinion reversing the circuit
court. It found that the Ordinance as written
violated the Due Process Clause.* (App. Qa).
Specifically, the court determined that the
Ordinance fails to give “fair notice” -- as required by
the Due Process Clause -- because the words “loud,
disturbing and unnecessary” are inherently vague.4
The Supreme Court of Virginia declined to address
the per-se violations contained in the Ordinance, and
did not reach the “as applied” selective enforcement
claim.
The court refused the City’s Petition for
Rehearing. (App. 30a).
> As the Supreme Court of Virginia was reviewing the facial
validity claim on the trial court’s resolution of the City’s
demurrer, it was limited to review of the Complaint. E.g.,
Thompson v. Skate America, Inc., 261 Va. 121, 124, 540 S.E.2d
123, 124 (2001) (“Our review is governed by the well-settled
principle that when we consider the trial court's sustaining of a
demurrer ‘we look solely at [the plaintiffs] allegations in his
motion for judgment to determine whether he stated a cause of
action.) (quoting Perk v. Vector Resources Group, Ltd., 253
Va. 310, 312, 485 S.E.2d 140, 142 (1997)).
4 Although the court did not expressly articulate whether its
holding was based upon federal or state principles, the court
relied primarily upon jurisprudence from this Court
interpreting the United States Constitution.
10
REASONS FOR GRANTING CERTIORARI
I. The Virginia Supreme Court’s
Opinion Conflicts with this Court’s
Due Process Jurisprudence and
Misinterprets and Misapplies the
Law Regarding the Reasonable
Person Standard.
The Supreme Court of Virginia’s ruling that
the Ordinance is vague under the Due Process
Clause and thus unconstitutional, conflicts with this
Court's prior holdings that the words “loud” and
“disturbing” in a criminal statute—when read in a
limited context—withstand a vagueness challenge
under the Due Process Clause. The Virginia Court's
opinion also conflicts with this Court’s established
reliance on the “reasonable person standard” in
criminal cases. Finally, its opinion departs from the
jurisprudence from federal courts and other state
supreme courts addressing the issue whether the
“reasonable person” standard saves an otherwise
unconstitutional noise or similar ordinance.
A. This Court has held that the
reasonable person standard
in _a criminal law provides
sufficient standards to satisfy
the Due Process Clause.
The Supreme Court of Virginia erred in
finding that the Ordinance did “not contain
ascertainable standards.” (App. 9a). The Virginia
court found the “reasonable person” standard
contained in the Ordinance to be constitutionally
11
deficient, requiring instead a standard that sets
forth “what noise levels are prohibited.” (App. lla).
Because the City’s Ordinance contains an objective,
ascertainable standard by which a noise violation is
measured — the “reasonable person” standard — it
satisfies the Due Process Clause.
The Due Process Clause is not as demanding
as the Supreme Court of Virginia found. Contrary to
the Virginia court’s holding, the Due Process Clause
does not require municipalities to adopt bright-line
rules or mathematical formulas in penal laws. See
Grayned v. City of Rockford, 408 U.S. 104, 110
(1972) (“Condemned to the use of words, we can
never expect mathematical certainty from our
language.”) Rather, an ordinance may allow for
flexibility and reasonable breadth, and need not be
drafted with meticulous specificity so long as it is
clear what the ordinance as a whole prohibits. See
generally Grayned, 408 U.S. 104; Kovacs v. Cooper,
336 U.S. 77, 79 (1949); Cameron v. Johnson, 390
U.S. 611, 616 (1968).
The Due Process Clause does not require a
noise ordinance to define impermissible noise levels
in decibel ranges or other mathematical parameters.
Grayned, 408 U.S. at 112 (upholding a _ noise
ordinance even though “the prohibited quantum of
disturbance is not’ specified” and it lacked
mathematical precision). Here, prohibited
disturbances are easily measured by their impact on
the familiar “reasonable man.” Id. Thus, the
Virginia court’s insistence on legislatively drafted
noise levels impermissibly rewrites this Court’s Due
Process law.
12
Equally important, the Virginia Supreme
Court’s rejection of the “reasonable person” standard
as a reasonably certain and definite standard for
determining proscribed conduct under the Due
Process Clause stands in stark contrast to this
Court's jurisprudence. In Cameron, the petitioner
argued that the addition of “unreasonably” to a
criminal picketing statute made the _ statute
impermissibly vague. 390 U.S. at 616. However,
this Court held that the word “unreasonably” “is a
widely used and well understood word and clearly so
when juxtaposed with obstruct and interfere.
[T]he statute clearly and precisely delineates its
reach in words of common understanding.” Id.
Similarly, this Court has held that so long as
an ordinance’s construction contains an
“ascertainable standard” such as “the sensitivity of a
hypothetical reasonable man,” the ordinance is not
unconstitutionally vague. See Coates v. City of
Cincinnati, 402 U.S. 611, 613-614 (1971) (emphasis
added). Where this Court ascribes sufficient clarity
to the “reasonable person” standard to survive a
vagueness challenge under the Due Process Clause
—even when used to define specific criminal
conduct—an opinion from the Virginia Supreme
Court cannot have the opposite result.
B. The “reasonable person”
standard permeates _ this
Court’s jurisprudence.
The reasonable person standard permeates
this Court’s jurisprudence. In the context of federal
prosecution for mailing obscene materials, this Court
13
held that two prongs of a three prong test to
determine whether the material is obscene are
issues of fact for the jury to determine applying
contemporary community standards. See Smith v.
United States, 431 U.S. 291, 301 (1977) (discussing
the first and second prongs, appeal to prurient
interest and patent offensiveness). This Court then
carefully crafted the third prong, stating “[t]he First
Amendment protects works which, taken as a whole,
have serious literary, artistic, political, or scientific
value, regardless of whether the government or a
majority of the people approve of the ideas these
works represent.” Id. Thus, for the third prong the
relevant question is “whether a reasonable person
would find ... value in the material, taken as a
whole.” Ashcroft v. ACLU, 535 U.S 564, 579 (2002)
(emphasis added).
In the context of Section 1983 claims against
government employees, this Court has held that the
defense of “qualified immunity” requires courts to
enter judgment in favor of a government employee
unless the employee's conduct violates “clearly
established statutory or constitutional rights of
which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(emphasis added).
In addressing the interplay between prison
regulations and the First Amendment, this Court
“adopted a standard of review that focuses on the
reasonableness of prison regulations: the relevant
inquiry is whether the actions of prison officials were
reasonably related to legitimate penological
interests.” Turner v. Safely, 482 U.S. 78, 89 (1987)
(emphasis added). In other words, in order to
survive a constitutional challenge, a_ prison
regulation that burdens fundamental rights must be
“reasonably related” to legitimate penological
objectives. Id. This Court reasoned that “such a
standard is necessary if prison administrators
and not the courts, [are] to make the difficult
judgments concerning institutional operations.”
Thornburgh v. Abbott, 490 U.S. 401, 409 (1989)
(internal citations omitted). This Court also noted
that this standard is not “toothless.” Id. at 414.
And in the context of Fourth Amendment
seizures, the law is well settled that “law
enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures
merely by approaching individuals on the street or in
other public places and putting questions to them if
they are willing to listen.” U.S. v. Drayton, 536 U.S.
194, 200-201, 122 (2002) (citing Florida v. Royer, 460
U.S. 491, 497 (1983)). Instead, if a reasonable
person would feel free to terminate the encounter,
then he or she has not been seized. Id. (emphasis
added).
In a myriad of criminal law settings, this
Court recognizes that the “reasonable person”
standard is ascertainable and readily evident to the
Common man,
C. This Court _has held that the
words | “loud” __ and
“disturbing” are not vague in
the context of other noise
ordinances.
The Supreme Court of Virginia found the
words “loud, disturbing and unnecessary” to be
unconstitutionally vague. (App. 10a). This holding
departs from scttled, controlling law.
In Kovacs, this Court addressed whether the
terms “raucous and “loud” were so vague as to be
unenforceable. 336 U.S. at 79 In rejecting the
vagueness claim, Justice Reed opined
The contention that the section is so
vague, obscure and indefinite as to be
unenforceable merits only a _ passing
reference. The objection centers around
the use of words “loud and raucous.”
While these are abstract words, they
have through daily use acquired a
content that conveys to an interested
person a sufficiently accurate concept of
what is forbidden
ld Thus, the words “ioud” and “raucous” were not
unconstitutionally vague
Like the ordinance in Kovacs, the City's
Ordinance prohibits “loud” noises, but only those
that are unreasonably loud The Ordinance is
therefore narrower than the one upheld in Kovacs,
16
and gives fair notice of the proscribed conduct as
required by the Due Process Clause.
Although the Virginia Supreme Court found
that the words “unreasonably loud and disturbing”
are vague and allow for’ subjective police
enforcement, this Court has concluded that the use
of the word “loud” and other “abstract words” which
“have through daily use acquired a content that
conveys to any interested person a_ sufficiently
accurate concept of what is forbidden,” is sufficient
to save a statute from a vagueness challenge under
the Due Process Clause. Kovacs, 336 U.S. at 79.
Similarly, in Grayned, this Court held that an
ordinance prohibiting noise that “disturbs or tends to
disturb” was not impermissibly vague under the
Constitution. 408 U.S. at 109. This Court rejected a
vagueness challenge under the Due Process Clause,
writing that
[c]londemned to the use of words, we can
never expect mathematical certainty
from our language. The words of the
Rockford ordinance are marked by
flexibility and reasonable breadth,
rather than meticulous specificity, but
we think it is clear what the ordinance
as a whole prohibits.
Id. at 108.
The Grayned Court noted that “although the
prohibited quantum of disturbance is not specified in
the ordinance, it is apparent from the statute's
17
announced purpose that the measure is whether
normal school activity has been or is about to be
disrupted.” Id. at 112. The “particular context’—
i.e., the statute when read in its entirety-—gives “fair
notice to those to whom (the ordinance) is directed.”
Id.
Like the statute in Grayned, the Ordinance
prohibits noise which disturbs, but limits what
constitutes a criminal offense to only “unreasonably
loud, disturbing and unnecessary noise” and noise of
such character as “to disturb or annoy the quiet,
comfort, or repose of reasonable persons.”
Additionally, the reasonable person standard, and
the per se violations contained in the body of the
Ordinance, provide the context for the words
“unreasonably loud, disturbing and unnecessary” to
sufficiently warn what conduct it prohibits.
Finally, unlike the ordinance upheld in
Kovacs, the City’s Ordinance places an additional
restriction on what constitutes a criminal noise
violation—i.e., that the noise must be loud,
disturbing, and unnecessary to a reasonable person.
As discussed, this Court has identificd the:
“reasonable person” standard as providing an
ascertainable standard, enabling a person of
common intelligence to identify what conduct the
statute prohibits. See generally Coates, 402 U.S. at
614. Taken together, where the reasonable person
standard as well as the specific words “loud” and
“disturbing” have all been found by this Court to be
sufficiently definite to defeat a vagueness challenge
under the Due Process Clause, the Virginia Supreme
18
Court's opinion unquestionably conflicts with
jurisprudence from this Court.
II. Federal Courts of Appeal and State
Supreme Courts Have Upheld
Noise Ordinances Similar to the
One Struck Down by the Supreme
Court of Virginia.
Several noise ordinances similar to the City’s
Ordinance have survived constitutional scrutiny.
While many courts have acknowledged that the
challenged ordinances contain abstract or imprecise
adjectives, those courts have also held that, when
read in the context of a statute containing the
reasonable person standard, those ordinances
nonetheless survive a vagueness challenge. Thus,
although none of these cases is binding on this
Court, they underscore the dangerous. conflict
created by the Supreme Court of Virginia’s decision,
as the following summary demonstrates.
A, Federal Cases
Howard Opera House _ Associates v. Urban
Outfitters, Inc., 322 F.3d 125, 128 (2d Cir. 2003)
(“The argument’ _ that the
Burlngton noise ordinance is
unconstitutionally vague is effectively
precluded by our decision in Pro-Choice
Network v. Schenck, 67 F.3d 359 (2d
Cir.1994), where we held that an
injunction prohibiting ‘excessively loud
sound that ‘injures, disturbs, or
endangers the health or safety’ of
19
others is sufficiently clear to withstand
a vagueness challenge. Here, we have
an ordinance that prohibits ‘loud or
unreasonable noise,’ with
‘unreasonable’ noise defined as that
which ‘disturbs, injures or endangers
the peace or health of another or ..
endangers the health, safety or welfare
of the community... . [Wle find that
the differences between the Schenck
injunction and the Burlington noise
ordinance are minor at best, and hold
that the portion of the Burlington noise
ordinance here applied passes
constitutional muster.”) (internal
citations omitted);
Reeves v. McConn, 631 F.2d 377, 386 (5th Cir. 1980)
(“The Supreme Court has
approved the use of the word
‘unreasonably’ in similar statutes that
are otherwise precise and narrowly
drawn. The Court has also approved
the terms ‘loud’ and ‘raucous’ as
standards of prohibited sound
amplification. Though these words are
abstract, ‘they have through daily use
acquired a content that conveys to any
interested person a sufficiently accurate
concept of what is forbidden. We
approve the words ‘jarring’ and
‘nuisance’ on the same grounds, even
though they fall short of providing
“mathematical certainty. ‘Flexibility
20
and reasonable breadth, rather than
meticulous specificity, is acceptable in
this area.”) (internal citations omitted);
B. State Cases
City of Beaufort v. Baker, 432 S.E.2d 470, 474 (S.C.
1993)
(“In similar fashion, we here
apply normal meanings to words of
common understanding and conclude
that speech that is so unreasonably
Joud as to unreasonably intrude on the
privacy of a captive audience may be
punished. We hold that the words ‘loud
and unseemly, so construed, give
sufficient notice of what conduct is
penalized. ‘Unseemly’ modifies ‘loud’
and means ‘unreasonably loud in the
circumstances. That is clear enough.
The objective ‘reasonable’ test is used in
many areas of the law as an
appropriate determinant of liability and
thus a guide to conduct.”)(internal
citations omitted);
City of Madison v. Baumann, 470 N.W.2d 296, 302
(Wis. 1991)
(“[T]he word, reasonably, saves
the ordinance from the infirmity of
vagueness The reasonable-person
standard is one that has been relied
upon in all branches of the law for
Zi
generations. .. . The reasonable
person is a reasonable person in the
circumstances. ... In the instant case,
the circumstances are adequately
spelled out. They are simply what a
reasonable person would conclude
would disturb the peace and quiet of the
vicinity. The test for a possible violator
is simply the time honored and time
validated reasonable person test, 1.e.,
what effect will my conduct [] have
upon persons in the vicinity under the
circumstances.’);
Eanes v. State, 569 A.2d 604, 616 (Md. 1990)
(“In similar fashion, we _ here
apply normal meanings to words of
common understanding and conclude
that speech that is so unreasonably
loud as to unreasonably intrude on the
privacy of a captive audience may be
punished. We hold that the words loud
and unseemly, so construed, give
sufficient notice of what conduct is
penalized. Unseemly modifies loud and
means unreasonably loud in_ the
circumstances. That is clear enough.
The objective reasonable test is used in
many areas of the law as an
appropriate determinant of liability and
thus a guide to conduct.”);
Earley v. State, 789 P.2d 374, 376 (Alaska App.
1990)
22
(“A statute is not vague merely because a fact
finder must determine questions of reasonableness.
Having examined AS 11.61.110(a) and (b), we are
satisfied that the statute gives reasonable notice of
the conduct it prohibits and that the phrase
unreasonably loud noise as_ defined is_ not
unconstitutionally vague.”);
Harlem Yacht Club v. New York City Environmental!
Control Bd., 40 A.D.3d 331, 332, (N.Y. 2007)
(“Nor is the ordinance, which
bans ‘unreasonable noise, defined as
‘any excessive or unusually loud sound
that disturbs the peace, comfort or
repose of a reasonable person of normal
sensitivities, injures or endangers the
health or safety of a reasonable person
of normal sensitivities or which causes
injury to plant or animal life, or damage
to property or business’ (Administrative
Code § 24-203[62]), impermissibly
vague.”);
Lutz v. City Of Indianapolis, 820 N.E.2d 766, 769
(Ind. App. 2005)
(“The myriad of noises that the
Ordinance in the instant case prohibits
is exactly the reason that it is
unconstitutionally vague. Indiana’s
disorderly conduct statute is narrowly
tailored to prohibit ‘unreasonable’ noise
made only after an individual has been
warned about his conduct. The
23
Ordinance in the instant case, however,
does not include an objective test;
instead, Lutz correctly notes that it
prohibits any noise that is ‘loud,’
‘unnecessary, or ‘unusual, or that
annoys or disturbs others.”);
People v. Lord, 796 N.Y.S.2d 511, 511 - 512 (N.Y.
2005)
(‘It is well settled that an
ordinance may penalize ‘unreasonable’
noise under circumstances as defined in
the ordinance at issue and_ that
‘unreasonableness’ is an_ objective
standard of evaluation. There is no
constitutional requirement that a
decibel meter or other such device be
used to determine whether a noise level
will be considered illegal. By employing
a reasonableness standard, which can
be interpreted on the basis of common
life experience, the ordinance provides
greater comprehensible notice of
prohibited behavior and better
implements the legislative intent
behind such an ordinance.”) (internal
quotations and citations omitted);
State v. Dorso, 446 N.E.2d 449, 452 (Ohio 1983)
(“[WJe construe the Cincinnati
ordinance at issue to prohibit the
playing of music, amplification of
sound, etc., in a manner which could be
24
anticipated to offend the reasonable
person, t.e., the individual of common
sensibilities. Specifically, we find the
ordinance to proscribe the transmission
of sounds which disrupt the reasonable
conduct of basic human activities, e.g.,
conversation or sleep. Our construction
of the ordinance does not permit the
imposition of criminal liability upon a
party whose conduct disturbs only the
hypersensitive. Thus, the standard
hereby adopted vitiates the claimed
vagueness of the ordinance.”);
State v. Friedman, 697 A.2d 947, 950 (N.J. 1997)
(“Neither the Law Division Judge
nor the Municipal Court Judge
considered the reasonableness of the
Friedmans’ conduct in determining
whether their dog’s barking violated the
anti-noise ordinance. A purely
subjective standard of behavior was
utilized to determine whether the dog’s
barking constituted a disturbance of the
peace; such a standard is
unconstitutionally vague.”);
State v. Holcombe, 187 S.W.3d 496, 499 —500 (Tex.
Crim. App. 2006)
(“We agree with the State that
the Bedford noise ordinance contains
objective criteria for determining what
conduct is prohibited and therefore does
25
not permit arbitrary enforcement. The
ordinance clearly establishes an
objective reasonable-person standard by
referring to neighboring persons of
ordinary sensibilities and banning noise
that unreasonably’ disturb[s] | or
interfere[s] with the peace, comfort and
repose of such persons. These words
describe noise of the type or volume
that a reasonable person would not
tolerate under the _ circumstances.”)
(internal quotations omitted);
State v. Johnson, 542 P.2d 808, 810 (Ariz. 1975)
(“In order to determine whether
the noise made by appellant was loud
and unusual, it must be evaluated in
terms of a reasonable man standard.
Our inquiry must determine whether
the noise would disturb a person of
ordinary sensitivities; that is, the
language or conduct is to be adjudged to
be disorderly, not merely because it
offends some supersensitive or
hypercritical individual, but because it
is, by its nature, of a sort that is a
substantial interference with (our old
friend) the reasonable man.”) (internal
quotations omitted);
Town of Baldwin v. Carter, 794 A.2d 62, 68 (Me.
2002)
26
(‘We interpret the Town's
ordinance in this case to mean that
continuous or repeated dog barking that
is unnecessary is actionable only if it is
unreasonable. . .. Reasonableness is 4
well defined concept under the common
law. Reasonable compliance is not an
unconstitutionally vague concept. If it
were, most tort. law doctrines and a host
of other legal standards would be
invalid-the reasonable person, beyond
reasonable doubt, reasonable good faith
efforts, etc.”) (internal citations and
quotations omitted);
Township of Plymouth v. Hancock, 600 N.W.2d 380,
382-83 (Mich. 1999)
(“The people argue the use of the
reasonable person standard in the
ordinance saves the ordinance from
being impermissibly vague. We agree.
The ordinance plainly states that the
type of conduct that is prohibited is that
which tends ‘to unreasonably annoy or
disturb the quiet, comfort and repose of
persons in the vicinity. (Emphasis
added.) .. . .We believe the reasonable
person standard serves to provide fair
notice of the type of conduct prohibited,
as well as preventing abuses in
application of the ordinance. The
reasonable person standard assures
that ‘the person of ordinary intelligence
[has] a reasonable opportunity to know
27
what is prohibited, so that he may act
accordingly.’”) (internal citations
omitted).
Given the conflict created by the decision of
the Supreme Court of Virginia regarding the
constitutionality of noise ordinances under the Due
Process Clause, and in particular, those which
contain a limiting and objective reasonable person
standard, this Court’s guidance is necessary to
clarify this important issue. Specifically, the City
respectfully submits that this Court should find that
a noise ordinance prohibiting any “unreasonably
loud, disturbing and unnecessary noise” — as
measured under the familiar “reasonable person
standard” — does not violate the Due Process Clause
of the United States Constitution.
Ill. The Decision Below is Grounded on
Authority Which does not Support
the Conclusion the Supreme Court
of Virginia Reached.
In holding that the Ordinance’s use of the
“reasonable person” standard does not save it from a
vagueness challenge under the Due Process Clause,
the Virginia Supreme Court relies on Thelen v.
State, 526 S.E.2d 60, 62 (Ga. 2000). In Thelen, the
Georgia Supreme Court held that a noise ordinance
prohibiting “any ... unnecessary or unusual sound or
noise which ... annoys ... others in the county” failed
to provide the requisite clear notice of the prohibited
conduct. Id. Specifically, the court held that “(t]he
adjectives unnecessary and unusual modifying the
noun noises are inherently vague and elastic and
28
require men of common intelligence to guess at their
meaning. The same may be said of the verb annoys.”
Id. (internal citations and quotations omitted).
Thus, the court found the ordinance to be
unconstitutional.
The noise ordinance in Thelen did not have a
“reasonable person” standard by which the
prohibited conduct could be measured. Rather, the
ordinance resorted to “others in the county” to
determine what noise was prohibited. The Thelen
court found the ordinance unconstitutional because,
in order to comply with or enforce the ordinance, an
individual would be required to apply a “completely
subjective standard.” Id.
As further proof that the absence of an
objective “reasonable person” standard doomed the
Georgia ordinance, the Thelen court compares its
holding with that set forth in State v. Garren, 451
S.E.2d 315, 318-319 (N.C. 1994). In Garren, the
Court of Appeals of North Carolina upheld a portion
of the noise ordinance at issue because the ordinance
included the “objective” standard of “reasonable
persons of ordinary sensibilities.” Id. In other
words, implicit in Thelen’s holding is that a
“reasonable person standard” could have saved the
ordinance from being declared vague and thus
unconstitutional. Because the noise ordinance in
Thelen lacked the objective, reasonable person
standard found in the City’s Ordinance, the Supreme
Court of Virginia’s reliance on Thelen is misplaced.
Similarly, the Supreme Court of Virginia
holding is not supported by Nichols _v. City of
PAS)
~*
Gulfport, 589 So.2d 1280 (1991), because the
Gulfport ordinance did not employ a “reasonable
person” standard. In Nichols, the Supreme Court of
Mississippi held that an ordinance which prohibited
“unnecessary or unusual noises ... which either
annoys, injures or endangers the comfort, repose,
health or safety of others ...” was unconstitutionally
vague. Because the ordinance in Nichols makes no
reference to a reasonable person standard, the
Supreme Court of Virginia’s reliance on Nichols is
misplaced.
Nor does the decision in People v. New York
Trap Rock Corp., 442 N.Y.2d 1222, 1224 (N.Y. 1982),
support the Virginia courts decision that a
“reasonable person” standard is impermissibly vague
in a noise ordinance. In that case, the Court of
Appeals of New York held that a noise ordinance
stating, “[njo person shall make ... any
unnecessary noise” including, among other things,
“any excessive or unusually loud sound or any sound
which either annoys, disturbs, injures or endangers
the comfort, repose, health, peace or safety of a
person.” As in Thelen and Nichols, the ordinance in
New_York Trap Rock did not contain a reasonable
person standard, nor did the court address the
question whether such a standard would cure the
vagueness of the statute.
The Supreme Court of Virginia also relied
heavily on this Court’s decision in Grayned, although
the Grayned Court actually found that the Rockford
noise ordinance was not impermissibly vague, and
survived constitutional scrutiny. It is particularly
difficult to reconcile the Virginia court’s opinion with
30
Grayned, which found the following noise ordinance
sufficiently definite to satisfy the requirements of
the Due Process Clause: “any noise or diversion
which disturbs or tends to disturb the peace or good
order of such school session or class.” In short,
Grayned, like the other cases on which the Virginia
court justified its conclusion, neither compels nor
particularly supports the result. To the contrary,
under this Court’s Due Process jurisprudence, the
City’s Ordinance is constitutional.
31
CONCLUSION
This Petition for Writ of Certiorari presents
an important question of federal constitutional law.
This Court should grant certiorari to address and
clarify the constitutional vagueness’ standards
applicable to noise ordinances which explicitly
include a “reasonable person” standard. And, this
Court should grant certiorari to reverse the Supreme
Court of Virginia’s erroneous interpretation and
application of both this Court’s jurisprudence and
the Due Process Clause.
Respectfully submitted,
/s/ Christopher S. Boynton
Counsel of Record
OFFICE OF THE Ciry ATTORNEY
Municipal Center, Building One
2401 Courthouse Drive
Virginia Beach, Virginia 23456
(757) 385-4531
Counsel for the Petitioner
September 10, 2009
APPENDIX
la
[ENTERED APRIL 17, 2009]
PRESENT: All the Justices
BRADLEY S. TANNER, ET AL.
Vv. Record No. 080998
CITY OF VIRGINIA BEACH
OPINION BY
JUSTICE BARBARA MILANO KEENAN
April 17, 2009
FROM THE CIRCUIT COURT OF THE CITY OF
VIRGINIA BEACH
A. Joseph Canada, Jr., Judge
{In this appeal, we consider whether the circuit
court erred in rejecting a constitutional challenge to
a municipal noise control ordinance.
Bradley S. Tanner and Eric A. Williams
(collectively, the owners) own and operate BAE
Ventures, Inc., t/a The Peppermint Beach Club (the
club), a licensed restaurant and entertainment
venue located in the 1800 block of Atlantic Avenue in
the City of Virginia Beach (City). The club is located
in a part of the City commonly referred to as the
“oceanfront,” which includes restaurants, bars,
hotels, and outdoor entertainment venues.
The club, which is on the ground floor of the
Howard Johnson Hotel, hosts disc jockeys and
occasional “live” entertainment groups that play
2a
” «ec
various types of music including “hip-hop,” “punk
rock,” “emo,” and “indie” music. The owners
repeatedly have been warned by City police officers
about music sound levels, and have. received
citations for violations of Virginia Beach City Code §
23-47 (the ordinance). The ordinance states:
It shall be unlawful for any person to
create, or allow to be created any
unreasonably loud, disturbing and
unnecessary noise in the city or any
noise of such character, intensity and
duration as to be detrimental to the life
or health of persons of reasonable
sensitivity or to disturb or annoy the
quiet, comfort or repose of reasonable
persons. The following acts, among
others, are declared to be loud,
disturbing and unnecessary noise in
violation of this’ section, but such
enumeration shall not be deemed to be
exclusive:
(1) The playing of any television
set, radio, tape player, phonograph or
any musical instrument in such a
manner or with such volume as to
annoy or disturb the quiet, comfort or
repose of reasonable persons.
(2) The keeping of any animal
which, by causing frequent or long-
continued noise, shall disturb the quiet,
comfort or repose of the neighborhood to
such an extent as to constitute a
nuisance.
3a
(3) The creation of any excessive
noise on any street adjacent to any
school, institution of learning or court,
while the same is in session, or adjacent
to any building used as a place of public
worship, while being so used or
adjacent to any _ hospital, which
unreasonably interferes with the
workings of such school, institution or
court or the services being conducted in
such place of public worship or which
disturbs or unduly annoys patients in
such hospital.
(4) The shouting and crying of
peddlers, hawkers and vendors which
disturbs the peace and quiet of the
neighborhood.
(5) The use of any drum,
loudspeaker or other instrument or
device for the purpose of attracting
attention, by creation of noise, to any
performance, show or sale or display of
merchandise.
Virginia Beach City Code § 23-47. Any violation of
the ordinance constitutes a class 4 misdemeanor. Id.
In June 2007, the owners filed a complaint
seeking a declaratory judgment that the ordinance is
unconstitutional on its face because it is vague, and
that it is unconstitutional as applied to the club. The
owners alleged that the ordinance is vague because
it fails to provide citizens with “fair notice” regarding
what conduct is unlawful, and because the ordinance
language invites selective prosecution by granting
4a
law enforcement officials the “unfettered individual
discretion” to make enforcement decisions. The
owners separately alleged that City police officers
have applied and enforced the ordinance against the
owners “in a subjective and selective manner.”
In response to the owners’ complaint, the City
filed a demurrer, which the circuit court sustained in
part based on its previous determination that the
ordinance was constitutional on its face. Relying on
that prior decision, the circuit court held, among
other things, that the ordinance is not vague, and
dismissed the owners’ facial constitutional challenge
with prejudice.
The case proceeded to trial on the issue of the
City’s application of the ordinance to the sound
levels generated by the club’s music. Certain City
police officers testified that the City used two
enforcement standards in evaluating noise
emanating from oceanfront business establishments.
The first standard used was the “reasonable person”
standard provided for by the ordinance. The second
standard employed was an “across the _ street”
assessment established by Police Captain Anthony
F. Zucaro.
Addressing the “reasonable person” standard,
Captain Zucaro testified that police officers
determine whether noise is “unreasonably loud,
disturbing and unnecessary” by employing the
officers’ “{b]ackground, experience, knowledge of the
dynamics of the moment, listening, [and]
witnessing.” Officers Albert L. Mills, Christopher D.
D’Orio, and Steven J. Kennedy testified that officers
5a
usually exercise their discretion whether to issue a
citation for violation of the ordinance. These officers
generally conceded that “reasonableness” is a
standard that depends on an individual officer’s
assessment and on environmental factors such as
the weather, the volume of ambient noise, and the
time of day.
In 2007, Zucaro issued a letter that was
distributed to oceanfront business owners in an
effort to achieve voluntary compliance with the
ordinance. The letter informed the business owners
that police officers would take enforcement action if
“(t]he intensity of the noise emanating from an
establishment is at such a level it can be definitively
linked to that particular establishment from across
the street or a distance equal to that measurement
despite the presence of other ambient noise levels.”
Several police officers testified regarding
incidents in which noise emanating from the club
resulted in the issuance of citations to the owners.
Relying on this and other evidence, the circuit court
determined that the evidence “unequivocally
establishe[d] that the enforcement of the noise
ordinance is selective and uneven.” However, the
circuit court held that because the owners failed to
prove that this selective enforcement was motivated
by a discriminatory purpose, the club’s constitutional
challenge to the City’s application of the ordinance
failed. The owners appealed from the circuit court's
judgment.
On appeal, the owners first argue that the
circuit court erred in_ rejecting their facial
6a
constitutional challenge to the ordinance. They
contend that the ordinance is vague and, thus, is
unconstitutional on its face because business owners
must engage in guesswork to determine whether
certain sound levels violate the ordinance. The
owners further assert that several terms in the
ordinance, including the terms “unnecessary,” “loud,”
“disturbing,” “character,” and “intensity,” are purely
subjective and do not establish clear standards that
permit uniform enforcement.
In response, the City argues that the
ordinance clearly articulates an _ objective,
“reasonable person” standard that is well established
and is sufficiently definite to permit persons to
conform their conduct to the law. The City concedes
that the terms of the ordinance are _ not
quantitatively precise, but argues that such a level
of precision is not required to survive a vagueness
challenge. The City contends that only a flexible
standard such as the one prescribed by the
ordinance can fairly define criminal conduct related
to the “wide swath of settings and circumstances”
involved when assessing noise levels.
The City further argues that the term
“unnecessary” does not render the ordinance vague
because the ordinance requires that noise be
unreasonably loud, disturbing, and unnecessary
before a criminal citation can issue. The City
contends that instead of rendering the ordinance
vague, the term “unnecessary” narrows the category
of noise that constitutes a criminal violation and
provides added protection to potential offenders.
However, the City further maintains that if this
7a
Court disagrees, it should sever any offending
language rather than invalidate the entire
ordinance. We disagree with the City’s arguments.
Our review of the ordinance begins with the
principle that that duly enacted laws are presumed
to be constitutional. Marshall v. Northern Virginia
Transp. Auth., 275 Va. 419, 427, 264 Va. 656, 665,
571 S.E.2d 122, 126 (2002); 657 S.E.2d 71, 75 (2008);
In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272
(2003); Yamaha Motor Corp., U.S.A. v. QuillianFinn
v. Virginia Retirement System, 259 Va. 144, 153, 524
S.E.2d 125, 130 (2000). We are required to resolve
any reasonable doubt concerning the
constitutionality of a law in favor of its validity. In re
Phillips, 256 Va. at 85-86, 574 S.E.2d at 272; Finn,
259 Va. at 1538, 524 S.E.2d at 130; Walton v.
Commonwealth, 255 Va. 422, 427, 497 S.E.2d 869,
872 (1998). Thus, if a statute or ordinance can be
construed reasonably in a manner that will render
its terms definite and_ sufficient, such an
interpretation is required. See INS v. St. Cyr, 533
U.S. 289, 299-300 (2001); United States v. Harriss,
347 U.S. 612, 618 (1954); Pedersen v. City of
Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98
(1979).
In this context, we consider the constitutional
principles applicable to a vagueness challenge
involving a penal statute or ordinance. The
constitutional prohibition against vagueness derives
from the requirement of fair notice embodied in the
Due Process Clause. See United States v. Williams,
553 U.S. __, _ _, 128 S.Ct. 1830, 1845 (2008); City
of Chicago v. Morales, 527 U.S. 41, 56 (1999);
8a
Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). The doctrine requires that a statute or
ordinance be sufficiently precise and definite to give
fair warning to an actor that contemplated conduct
is criminal. See Kolender v. Lawson, 461 U.S. 352,
357 (1983); Grayned, 408 U.S. at 108. Thus, the
language of a law is unconstitutionally vaguc if
persons of “common intelligence must necessarily
guess at [the] meaning [of the language] and differ
as to its application.” Connally v._ General
Construction Co., 269 U.S. 385, 391 (1926); accord
Coates v. City of Cincinnati, 402 U.S. 611, 614
(1971); Cameron v. Johnson, 390 U.S. 611, 616
(1968).
The constitutional prohibition against
vagueness also protects citizens from the arbitrary
and discriminatory enforcement of laws. A vague law
invites such disparate treatment by impermissibly
delegating policy considerations “to policemen,
judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” Grayned,
408 U.S. at 108-09; see Kolender, 461 U.S. at 357-61.
Because legislative bodies are “[clondemned to
the use of words,” courts cannot’ require
“mathematical certainty” in the drafting of
legislation. Grayned, 408 U.S. at 110. For this
reason, an ordinance that lacks’ meticulous
specificity nevertheless may survive a vagueness
challenge if the ordinance as a whole makes clear
what is prohibited. See _id.; Esteban v. Central
Missouri State College, 415 F.2d 1077, 1088 (8th Cir.
1969).
9a
A different concern arises, however, when a
vague statute implicates citizens’ rights under the
First Amendment. In such circumstances, vague
language in a statute or ordinance may cause
citizens to avoid constitutionally permissible conduct
based on a fear that they may be violating an
unclear law. Thus, a vague statute may inhibit the
exercise of constitutionally protected activities.
Grayned, 408 U.S. at 108-09.
In applying these principles, we first
acknowledge that the regulation of noise by a locality
creates special problems regarding the drafting and
enforcement of legislation. See Nichols v. City of
Gulfport, 589 So. 2d 1280, 1283 (Miss. 1991); People
v. New York Trap Rock Corp., 442 N.E.2d 1222, 1226
(N.Y. 1982). These problems arise from the nature of
sound, which invites the use of broadly stated
definitions and prohibitions. Nichols, 589 So. 2d at
1283; Trap Rock, 442 N.E.2d at 1226.
The ordinance before us_ prohibits § any
“unreasonably loud, disturbing and unnecessary
noise,” noise of “such character, intensity and
duration as to be detrimental to the life or health of
persons of reasonable sensitivity,” or noise that
“disturb[s] or annoy[s] the quiet, comfort or repose of
reasonable persons.” The ordinance also describes
various acts that constitute per se violations.
We conclude that these provisions fail to give
“fair notice” to citizens as required by the Due
Process Clause, because the provisions do not
contain ascertainable standards. See Thelen v. State,
526 S.E.2d 60, 62 (Ga. 2000); Nichols, 589 So. 2d at
10a
1284. Instead, the reach of these general descriptive
terms depends in each case on the _ subjective
tolerances, perceptions, and sensibilities of the
listener.
Noise that one person may consider “loud,
disturbing and unnecessary” may not disturb the
sensibilities of another listener. As employed in this
context, such adjectives are inherently vague
because they require persons of average intelligence
to guess at the meaning of those words. See Thelen,
526 S.E.2d at 62; Lutz v. City of Indianapolis, 820
N.E.2d 766, 769 (Ind. Ct. App. 2005); Nichols, 589
So. 2d at 1283.
The references in the ordinance to “reasonable
persons,” and to persons of “reasonable sensitivity,”
do not provide a degree of definiteness sufficient to
save the ordinance from the present vagueness
challenge. Such terms, considered in their context,
delegate to a _ police officer the subjective
determination whether persons whom the police
officer considers to be of reasonable sensitivity would
find the noise detrimental to their life or health.
Likewise, these terms leave to a police officer the
determination whether persons the police officer
considers to be reasonable would be disturbed or
annoyed in their comfort or repose by the particular
noise at issue.
Determinations of this nature invite arbitrary
enforcement. Police officers likely will have differing
perceptions regarding what levels of sound exceed
the described tolerance levels and sensitivities of
reasonable persons. Because these determinations
lla
required by the ordinance can only be made by police
officers on a subjective basis, we hold that the
language of the ordinance is impermissibly vague.
See Grayned, 408 U.S. at 108-09; U.S. Labor Party v.
Pomerleau, 557 F.2d 410, 412 (4th Cir. 1977);
Thelen, 526 S.E.2d at 62. The imposition of criminal
penalties for the violation of an ordinance cannot
rest on the use of subjective standards, nor may an
ordinance consign a person to penal consequences
without first providing sufficiently definite notice of
prohibited activities. See Thelen, 526 S.E.2d at 62;
Nichols, 589 So. 2d at 1284.
We find no merit in the City’s argument that
its use of the term “reasonable persons” nevertheless
rescues the ordinance from the present vagueness
challenge because the criminal law employs a
“reasonable person” standard in various other types
of determinations. Such comparisons are inapposite.
Here, the City attempts to satisfy the notice
requirement of the Due Process Clause by using a
standard that does not notify or warn citizens in
clear and definite terms what noise levels are
prohibited. In contrast, the use of a “reasonable
person” standard elsewhere in the criminal law does
not attempt to provide notice to citizens regarding
the reach of a criminal statute or ordinance, but sets
a standard for a court to use in determining police
compliance with certain constitutional and other
legal requirements. See, e.y., Brendlin v. California,
551 U.S. 249, __, 127 S.Ct. 2400, 2405-06 (2007)
(“seizure” within meaning of Fourth Amendment
occurs when reasonable person would not feel free to
leave); Buhrman v. Commonwealth, 275 Va. 501,
505, 659 S.E.2d 325, 327 (2008) (probable cause
12a
exists when facts and circumstances of which police
officer has “reasonably trustworthy information...
warrant a person of reasonable caution to believe
that an offense has been or is being committed”)
(quoting Taylor v. Commonwealth, 222 Va. 816, 820,
284 S.E.2d 833, 836 (1981)).
In concluding that the ordinance is vague, we
do not directly address the list of per se violations
contained in the ordinance. Each of these per se
violations is defined as constituting “loud, disturbing
and unnecessary noise” and, thus, cannot be
evaluated separately from those vague terms.
Finally, we hold that we are unable to sever
from the ordinance the unconstitutional language
that we have identified and give its remaining
language a definite and permissible construction.
Instead, the vague language adjudged
unconstitutional in this opinion affects the content of
the entire ordinance.’
For these reasons, we will reverse the circuit
court’s judgment and will enter final judgment for
the owners declaring that the entire ordinance is
unconstitutional because it is vague.
Reversed and final judgment.
In view of our holding that the ordinance is vague, we
do not reach the owners’ remaining contentions alleging that
the ordinance is overbroad and has been enforced selectively by
City police.
1l3a
[ENTERED APRIL 21, 2008]
VIRGINIA: IN THE CIRCUIT COURT OF THE CITY
OF VIRGINIA BEACH
BRADLEY S. TANNER
ERIC ALEXANDER WILLIAMS
and BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB,
Plaintiffs,
V. Case No. CLO07-3754
THE CITY OF VIRGINIA BEACH,
Defendant.
FINAL ORDER
THIS MATTER came to be heard on the 16%
day of February, 2008, upon the First Amended
Complaint filed by the plaintiffs, and evidence and
argument were received and considered by the court,
in addition to evidence, testimony and materials
previously received by the court and already in the
record; thereafter, the parties filed additional
materials with the court, and, thereafter, the court
issued a letter opinion dated April 8, 2008;
WHEREAS, after consideration of the evidence,
exhibits, arguments and materials submitted to the
court; and
l4a
WHEREAS, for the reasons stated in this
court’s April 8, 2008 opinion, which is incorporated
herein by reference;
It is ADJUDGED, ORDERED and DECREED
that the plaintiffs’ facial and “as applied”
constitutional challenges to City of Virginia Beach
Ordinance §23-47 are denied, to which plaintiffs’
objections and exceptions are duly noted as set forth
below. Accordingly, the subject litigation is dismissed,
with prejudice.
It is so ORDERED.
ENTER:
/s/
The Honorable A. Joseph Canada, Jr.
4-21-08
CERTIFIED TO BE A TRUE COPY
OF RECORD IN MY CUSTODY
TINA. E. SINNEN, CLERK
CIRCUIT COURT, VIRGINIA BEACH, VA
BY/s/
DEPUTY CLERK
I ask for this:
ae
Christopher S. Boynton
Senior City Attorney
Counsel for the City of Virginia Beach
15a
Seen and respectfully objected to for the reasons
argued to the court and set forth in the pleadings,
memoranda, letters and legal authority previously
submitted. Additionally, plaintiffs note these
particular objections: (1) facially and according to the
evidence submitted on the “as applied” challenge, the
subject ordinance violates due _ process, equal
protection and free speech/expression principles
guarantced by the Virginia Constitution; (2) the
court's latter opinion/ruling (“the opinion”
mischaracterizes the nature of the leave to amend
that was granted with respect to the First Amended
Complaint (i.e., the leave to amend was general in
nature, and not limited to the “as applied” challenge);
(3) the opinion fails to address and rule on the
vagueness and free speech/expression challenges
brought by the plaintiffs; (4) the opinion fails to
address and resolve the conflicting facts set forth in
the record, especially the conflicting (and often self-
contradicting) testimony offered by Virginia Beach
police officers; (5) the opinion fails to recognize and
give sufficient weight to the unrebutted evidence of
the plaintiffs and the concessions and admissions of
the police and defense witnesses; (6) the opinion
makes the erroneous ruling that there is _ no
constitutional violation presented where the police
possess “unfettered discretion” in law enforcement
and/or where it is established factually that “the
ordinance is enforced inconsistently and selectively.”
a eS
Kevin E. Martingayle
Counsel for Plaintiffs Bradley S. Tanner,
Eric Alexander Williams and
BAE Ventures, Inc. t/a
l6a
The Peppermint Beach Club
Bradley S. Tanner, Eric Alexander Williams and BAE
Ventures, Inc. t/a The Peppermint Beach Club v. The
City of Virginia Beach, Case No.: CLO7-3754
lla
[ENTERED APRIL 8, 2008]
COMMONWEALTH OF VIRGINIA
EDWARD W. HANSON, JR.
THOMAS S. SHADRICK
FREDERICK B. LOWE
A. BONWILL SHOCKLEY
H. THOMAS PADRICK, JR.
A. JOSEPH CANADA, JR.
PATRICIA L. WEST
STEPHEN C. MAHAN
WILLIAM R. O’BRIEN
CIRCUIT COURT
CITY OF VIRGINIA BEACH
JUDICIAL CENTER, BLDG. 1
2425 NIMMO PARKWAY
VIRGINIA BEACH, VA 23456
(757) 385-4501
www.vbgov.com/courts
SECOND JUDICIAL CIRCUIT
Direct Dial: 757-385-4262
April 8, 2008
Kevin E. Martingayle, Esq.
Stallings & Bischoff, P.C.
P.O. Box 1687
Virginia Beach, VA 23451-4160.
Christopher S. Boynton, Esq.
Office of the City Attorney
18a
2401 Courthouse Dr.
Virginia Beach, VA 23456-9004
Re: Tanner, et al. v: City of Virginia Beach
Docket No.: CL0O7-3754
Dear Counsel:
Plaintiffs, Bradley Tanner, Eric Alexander
Williams, and BAE Ventures, Inc., trading as the
Peppermint Beach Club (hereinafter “the
Peppermint’), filed suit against Defendant, the City
of Virginia Beach (hereinafter “the City’). Tanner
and Williams own and operate the Peppermint, a
restaurant and entertainment venue located at 1801
Atlantic Avenue in Virginia Beach. Plaintiffs seek to
declare unconstitutional Virginia Beach Ordinance §
23-47. Section 23-47 is a class four (4) misdemeanor
noise ordinance. The plaintiffs allege that over the
past year, they have been repeatedly charged with
violations of the noise ordinance. They allege that
the ordinance is facially unconstitutional because it
is overly vague.
The plaintiffs also claim that the ordinance is
unconstitutional as applied by the Virginia Beach
Police Department. The plaintiffs allege that law
enforcement officials possess unfettered discretion in
deciding whether to charge individuals’ with
violations of the ordinance. The plaintiffs allege that
officers have testified that a decision to charge a
violation of the ordinance is a matter of opinion and
admit that violations have routinely been alleged
without any underlying citizen complaints at all. The
plaintiffs indicate that the police, citizens, and
Virginia Beach judges have been unable to identify
19a
and utilize any consistent standards with regard to
this noise ordinance, and the result has been utter
chaos.
On September 7, 2007, this Court denied the
plaintiffs motion for a temporary. injunction.
Furthermore, this Court sustained the City’s
Demurrer to Plaintiffs’ Complaint as to the facial
validity of the City’s Noise Ordinance, and dismissed
that claim with prejudice. This Court granted
Plaintiffs leave to amend their Complaint, limited to
their “as-applied” challenge.
On February 28, 2008, a hearing was held in
order for the Court to hear additional testimony and
evidence as to the as-applied challenge. This matter
was taken under advisement at the conclusion of the
hearing. The Court has now reached a final decision
in this matter.
Plaintiffs’ Facial Challenge to
Virginia Beach City Code S 23-47
The plaintiffs once again set forth their
argument as to why this Court should declare the
Virginia Beach Noise Ordinance facially
unconstitutional. The Court acknowledges that the
plaintiffs are fully within their rights to proffer such
argument, despite the previous dismissal of this
claim. However, the petitioners fail to persuade this
Court to reverse its earlier ruling. Therefore, the
Court denies the plaintiffs’ facial challenge based
upon the reasons set forth in the Court’s letter
opinion dated August 13, 2007.
20a
Plaintiffs’ As-Applied Challenge to § 23-47
The “qual Protection Clause of the 14th
Amendment provides that no state shall “deny to
any person the... Equal Protection of the laws.” U.S.
Const. Amend. XIV, § 1. The application of the Equal
Protection Clause prevents a state from prosecuting
individuals for certain crimes based upon “an
unjustifiable standard such as race, religion, or other
arbitrary classification.” Branche v. Commonwealth,
25 Va. App. 480, 486 (1997) (quoting City of Clebume
v. Clebume Living Center, 473 U.S. 432, 439 (1985)).
However, unequal application of the law, absent
such discriminatory purpose, does not trigger an
equal protection violation. Sims v. Cunningham, 203
Va. 347, 352 (1962).
In Sims v. Cunningham, the Virginia
Supreme Court addressed selective enforcement of
the law in regards to a habitual offender statute. /d.
at 349. Sims received an additional ten year jail
sentence due to his status as a repeat offender. Id.
Sims asserted in his habeas corpus petition that the
applicable statute, as applied, denied him the equal
protection of the laws. Jd. at 351. Specifically, Sims
pointed out that the Commonwealth failed to
sentence other individuals who qualified as habitual
offenders under the statute. Jd.
The Court indicated that the Commonwealth
adopted a deliberate policy to invoke the provisions
of the statute only against Virginia offenders. Jd. at
352. However, the Court found that Sims failed to
meet his burden to show clear, intentional, or
purposeful discrimination. For, “the unlawful
2la
administration by State officers of a State statute
fair on its face, resulting in its unequal application
to those who are entitled to be treated alike, is not a
denial of equal protection unless there is shown to be
present in it an element of intentional or purposeful
discrimination.” /d. (quoting Snowden v. Hughes,
321 U.S. 1, 8 (1944) (emph. added).
The testimony in this case unequivocally
establishes that the enforcement of the noise
ordinance is selective and uneven. The _ police
generally adhere to an “across the street” rule to
measure the noise emanating from an
establishment. However, the acceptable level of noise
differs based on the ambient noise of the
surrounding area. Virginia Beach police officers
possess wide discretion in determining whether
music violates the ordinance, and the ordinance is
not enforced the same throughout the city. Until
recently, a third party complaint was not even
required before the issuance of a citation.
The “across the street” rule is also relaxed,
and possibly abandoned, in regards to outdoor
entertainment Testimony established that music
from the outdoor stages at the Virginia Beach
oceanfront, especially the Hilton Hotel on 3lst
Street, is louder then the music emanating from the
Peppermint Lounge or other oceanfront clubs. The
sity is unable to point to any specific complaints
from citizens due to noise emanating from the
Peppermint Lounge. In contrast, one witness
testified that he complained to the city over one-
hundred times about outdoor music levels.
In order to prove their claim, the plaintiffs
must present clear evidence to rebut the
presumption that a state did not violate his equal
protection rights. See Branche, supra at 486. The
plaintiffs must “show both... a [resultant] criminal
effect and that [the discriminatory effect] was
motivated by a discriminatory purpose.” Jd. (quoting
Wayte v. United States, 470 U.S. 598, 608 (1985).
The plaintiffs fail to meet this burden.
The plaintiffs succeed in demonstrating that
other persons’ similarly’ situated were not
prosecuted. However, the plaintiffs fail to address
any unjustifiable standard by which the _ police
department enforces this ordinance. See e.g. Boyd uv.
County of Henrico, 42 Va. App. 495, 522 (2004) (a
selective prosecution claim requires a showing that
the charges were brought for reasons forbidden by
the Constitution). The fact that the police may
possess “unfettered discretion” in enforcement does
not raise this constitutional issue. Nor does the fact
that the ordinance is enforced inconsistently and
selectively. See Malibu Auto Parts v. Comm., 218 Va.
467 (holding that territorial uniformity in
prosecution is not a constitutional pre-requisite).
For these reasons, the plaintiffs’ as-applied
challenge to § 23-47 is denied.
Very truly vours,
Is/ os
A. Joseph Canada, Jr
AJC,jr:dls
~
[ENTERED SEPTEMBER 7, 2007]
VIRGINIA: IN THE CIRCUIT COURT OF THE
CITY OF VIRGINIA BEACH
BRADLEY S. TANNER,
ERIC ALEXANDER WILLIAMS
and
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB,
Plaintiffs,
Vv. Case No. CL07-3754
CITY OF VIRGINIA BEACH,
Defendant.
ORDER
On the 11" day of July, 2007, came the
parties, by counsel, upon the Complaint and Motion
for a temporary injunction filed by Plaintiffs and the
Demurrer filed by the Defendant, City of Virginia
Beach. An ore tenus hearing was held on the
temporary injunction motion, and counsel for the
parties argued the matter. The parties, by counsel,
again came before the Court on September 7, 2007
upon the Defendant’s motion for entry of order, upon
the Plaintiffs’ Motion for Reconsideration, and upon
the Plaintiffs’ Motion for Leave to Amend
24a
Upon consideration of Virginia Beach City
Code Section 23-47, the pleadings, motions, and
memoranda, applicable law, testimony and evidence,
and the arguments of counsel, the Court hereby
OVERRULES Plaintiffs’ Motion for a temporary
injunction.
Further, upon consideration of Virginia Beach
City Code Section 23-47, the pleadings, motions, and
memoranda, applicable law, and the arguments of
counsel, the Court hereby SUSTAINS the City’s
Demurrer as to the facial validity of Virginia Beach
City Code § 23-47, and OVERRULES the City’s
Demurrer as to the as-applied challenge to § 23-47.
The Court further GRANTS Plaintiffs leave to
amend, and deems the First Amended Complaint
FILED. The Court further ORDERS that the as-
applied challenge be set for an evidentiary hearing.
This order is without prejudice to the City’s right to
file and have heard a Demurrer or other responsive
pleading to the First Amended Complaint, which
shall be filed on or before September 28, 2007. The
Court DISMISSES, WITH PREJUDICE,
Plaintiffs’ Facial Challenge to Virginia Beach City
Code § 23-47; however this is not a final order and
no portion of this order shall be construed as or
become final until all claims and counts asserted in
this action are dispositively resolved by the Court.
It is so ordered.
Entered, nunc pro tunc, this 7% day of
September, 2007.
/s/ 7 ee
Hon. A. Joseph Canada, Jr., Judge
I ask for this, save and except for the Court’s
overruling the City’s Demurrer as to the as-applied
challenge, to which the City objects tor the reasons
set forth in the pleadings, motions, and memoranda
and at the hearings:
/s/ mae
Christopher S. Boynton, Senior City Attorney
Counsel for the City of Virginia Beach
Seen and Objected to for the Reasons Set Forth
In the Pleadings, Motions and Memoranda, and at
the Hearings, and in accordance with all arguments
and authority presented to the Court:
Is/
Kevin E. Martingayle, Esquire
Counsel for Plaintiffs
CERTIFIED TO BE A TRUE COPY
OF RECORD IN MY CUSTODY
TINA E. SINNEN, CLERK
CIRCUIT COURT, VIRGINIA BEACH, VA
BY /s/
DEPUTY CLERK
26a
[ENTERED AUGUST 13, 2007]
COMMONWEALTH OF VIRGINIA
EDWARD W. HANSON, JR.
THOMAS S. SHADRICK
FREDERICK B. LOWE
A. BONWILL SHOCKLEY
H. THOMAS PADRICK, JR.
A. JOSEPH CANADA, JR.
PATRICIA L. WEST
STEPHEN C. MAHAN
WILLIAM R. O’BRIEN
CIRCUIT COURT
CITY OF VIRGINIA BEACH
JUDICIAL CENTER, BLDG. 1
2425 NIMMO PARKWAY
VIRGINIA BEACH, VA 23456
(757) 385-4501
www.vbgov.com/courts
SECOND JUDICIAL CIRCUIT
Direct Dial: 757-385-4262
August 13, 2007
Christopher S. Boynton, Esq.
Office of the City Attorney
2401 Courthouse Dr.
Virginia Beach, VA 23456-9004
Kevin E. Martingayle, Esq.
Stallings & Bischoff, P.C.
24a
P.O. Box 1687
Virginia Beach, VA 23451-4160
Re: Bradley S. Tanner, Eric Alexander
Williams and BAE Ventures, Inc.
v. The City of Virginia Beach
Docket No.: CL 07-3754
Dear Counsel:
I have received your briefs and rule as follows:
INJUNCTION
In order to obtain the issuance of a
temporary/preliminary injunction, the moving party
must show:
; There must be no adequate remedy at
law;
z. An injunction would be an effective and
enforceable means of redressing the
problem;
2. The likelihood of irreparable harm to
the Plaintiff and the harm to the
Defendant if an injunction is granted.
If the balance of the hardships test
results in a finding that the harm to the
plaintiff greatly outweighs that to the
defendant, then this is enough to
permit issuance of the injunction;
4. If the harm to the plaintiff does not
greatly outweigh the harm to _ the
defendant, then the plaintiff has the
burden of proving that it is likely to
succeed on the merits.
28a
5. Finally, the court. must consider
whether issuance of an _ injunction
would serve the public interest.
Plaintiffs seek a temporary injunction to
enjoin the City of Virginia Beach from enforcing the
noise ordinance while this suit is pending. It is
unclear whether Plaintiffs are trying to enjoin the
enforcement of the ordinance against anyone, or just
against themselves. Either way, it is not an
appropriate remedy at this stage in the proceeding.
Plaintiffs do not show sufficient irreparable harm if
the ordinance is allowed to be enforced. On the
other hand, the City will suffer a great deal of harm
if they are prohibited from enforcing one of its laws.
Furthermore, Plaintiffs are unable to show a
likelihood of success on the merits at this point,
given the prior case law that leans heavily in favor of
the City. Lastly, it would not serve the public
interest to place restraints on the City’s ability to
regulate the behavior of its citizens and
establishments. Plaintiffs’ request for a temporary
injunction is overruled.
DEMURRER
Judge Lowe previously ruled on the issue of
whether § 23-47 is facially unconstitutional. IN the
case of Feeney v. City of Virginia Beach (CHO3-
3636), Judge Lowe sustained the City’s demurrer
regarding the facial validity of the statute. His order
States:
Upon consideration of the language
employed in Virginia Beach City Code
29a
section 23-47 and the case law relating
to similar ordinances, the Court finds
as a matter of law that Virginia Beach
City Code section 23-47 is not facially
vague or overbroad and does not, as
written, violate any due process or
equal protection rights guaranteed by
the Virginia Constitution. Likewise,
the Court finds that the ordinance on
its face meets an _ objective and
reasonable standard and that section
23-47, to the extent it is enforced
consistent with its terms, does not
violate any right to freedom of express
guaranteed by the Virginia
Constitution.
As this issue has previously been ruled upon,
the demurrer is sustained and the matter is
dismissed. Mr. Boynton is to prepare and circulate
an order consistent with this ruling.
Sincerely,
[sf ae
A. Joseph Canada, dr.
AJC, jr:dls
30a
[ENTERED JUNE 12, 2009]
In the Supreme Court of Virginia held at the
Supreme Court Building tin the City of Richmond on
Friday the 12th day of June, 2009.
Bradley S. Tanner, et al., Appellants,
against Record No. 080998
Circuit Court No. CLO7-3754
City of Virginia Beach, Appellee.
Upon a Petition for Rehearing
On consideration of the petition of the
appellee to set aside the judgment rendered herein
on the 17th day of April, 2009 and grant a rehearing
thereof, the prayer of the said petition is denied.
A, Copy,
Teste:
Patricia L. Harrington, Clerk
By: original order signed by a deputy
clerk of the Supreme Court of
Virginia at the direction of the
Court
Deputy Clerk
3la
[FILED SEPTEMBER 27, 2007]
VIRGINIA: IN THE CIRCUIT COURT OF THE
CITY OF VIRGINIA BEACH
BRADLEY S. TANNER,
ERIC ALEXANDER WILLIAMS
and
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB,
Plaintiffs,
Vv. Case No. CL07-3754
CITY OF VIRGINIA BEACH,
Defendant.
DEMURRER
COMES NOW the City of Virginia Beach
("City"), by counsel, and files its Demurrer to
Plaintiffs’ First Amended Complaint, on _ the
following grounds:
1. Plaintiffs contend the City’s Noise
Ordinance (Virginia Beach City Code § 23-47) is
unconstitutional under the Virginia Constitution,
both on its face and as applied. Plaintiffs seek
declaratory and _ injunctive relief from its
enforcement.
Zs Following an _ extensive temporary
injunction hearing on July 11, 2007 — during which
32a
Plaintiffs called almost a dozen witnesses — the
Court denied the temporary injunction.
a. The Court sustained the City’s
Demurrer to Plaintiffs’ Complaint as to the facial
validity of the City’s Noise Ordinance, and dismissed
that claim.
4. The Court granted Plaintiffs leave to
amend their Complaint, limited to their “as-applied”
challenge. This Demurrer is in response to the “as
applied” challenge as asserted in Plaintiffs First
Amended Complaint. No response is required to the
facial challenge contained in the First Amended
Complaint, since that claim was dismissed with
prejudice by the Court’s September 7, 2007 ruling
and Order.
5. Plaintiffs’ “as applhed” challenge is
found primarily at paragraphs 5 and 6 of the First
Amended Complaint.
6. Plaintiffs assert in paragraph 5 that
“...as applied’, the ordinance has been utilized tn a
subjective and ‘selective manner, in violation of
rights guaranteed by the Virginia Constitution”
a Plaintiffs assert in paragraph 6 that
“fals applied and enforced, the subject ordinance is
unlawful and violates the Virginia Constitution
because law enforcement officials in Virginia Beach
exercise unfettered individual discretion in deciding
whether to charge individuals with noise ordinance
violations...” They further contend that some City
police officers have stated the decision to charge a
33a
violation is a matter of opinion, and that sometimes
charges are made without private citizen complaints.
8. The remainder of the Complaint
chronicles several Virginia Beach general district
and circuit court prosecutions under the City Noise
Ordinance that had a variety of outcomes with a
variety of judges based upon a variety of operative
facts. While some judges have declined to convict
certain defendants, and some have offered dicta from
the bench about how the ordinance would be better
enforced, no judge to date has found the City Noise
Ordinance unconstitutional, either facially or as-
applied. Rather, several have patently refused to
find the ordinance unconstitutional even where they
have declined to convict a defendant under the facts
of the case at hand.
9. The allegations contained in the First
Amended Complaint, even when taken as true for
purposes of Demurrer, and combined with any fair
inferences or implications, simply do not assert that
Plaintiffs are engaged in protected conduct or speech
when they are cited for “unreasonably loud,
disturbing and unnecessary’ noise and are having
their constitutional rights infringed upon by the
enforcement of this content-neutral ordinance.
10. Where an ordinance is a_content-
neutral regulation of conduct that does not unduly
burden any protected speech, Plaintiffs cannot claim
they were targeted for constitutionally suspect
reasons. Boyd v. Henrico, 42 Va. App. 495, 522
(2004). As the Virginia Court of Appeals wrote in
that case:
34a
“Appellants’ as-applied selective
enforcement claim fails for the same
reason their content-based attack fails:
The dancers have no First Amendment
right to wear pasties and G-strings
rather than the lingerie-like tops and
bottoms required by the Henrico
ordinance. Because the ordinance
involves a content-neutral regulation of
conduct that does not unduly burden
any protected erotic speech, appellants
cannot claim they were being targeted
for constitutionally suspect reasons. Put
another way, appellants cannot show
that Henrico prosecuted them “because
of’ their expression of constitutionally
protected speech.”
Id. (internal citation omitted). Just as the
appellants in the Boyd case had no constitutionally
protected right to wear pasties and G-strings,
Plaintiffs in this action have no constitutional right
to play unreasonably loud, disturbing and
unnecessary music that can be heard across or down
the street from their indoor establishment.
ll. Plaintiffs’ First Amended Complaint
wholly fails to state a claim that the City has applied
or enforced the Noise Ordinance in a manner that
unlawfully infringes upon any _ constitutionally
protected free speech rights.
i2. Moreover, as the Virginia Court of
Appeals has observed: “Although actual selective
enforcement of a statute might give rise to an equal
35a
protection challenge,... the statute itself will not be
struck down ‘unless its clarity has been ‘designedly
avoided so as to allow the net to be cast at large.”
Tjan v. Commonwealth, 46 Va. App. 698, 710 (2005)
(internal citations omitted).
13. Here, the only remedy Plaintiffs seek is
for the ordinance to be struck down. This remedy is
plainly not available to Plaintiffs based upon their
allegations in the First Amended Complaint.
14. Moreover, while Plaintiffs allegations at
paragraph 19 challenge facially the City Noise
Ordinance, stating “this type of blanket prohibition
violates free speech, due process and _ cqual
protection rights guaranteed by the Virginia
constitution,” their facial challenge was previously
dismissed and further, Plaintiffs have not alleged
either that they are members of a protected class or
that their equal protection rights have been violated.
15. Finally, plaintiffs scek injunctive relicf
and asserts in paragraph 21 that “Plaintiffs are
sustaining ongoing, irreparable harm and their
constitutional rights are being violated.” The only
“facts” alleged in support of this conclusory
allegation of irreparable harm are found in
paragraph 4 of the First Amended Complaint.
16. In that paragraph, Plaintiffs allege:
they “have been charged, repeatedly, with violations’
of the ordinance; “they have also been threatened
with arrest and detention in jail even though the
subject ordinance is a Class 4 misdemeanor
punishable by nothing more than a fine;” it is “very
36a
unsettling, disturbing, and upsetting to them;” it has
significantly impaired their ability to conduct
business;” enforcement of the ordinance in the past
month is at “the point of being intolerable.”
17. Nothing in these allegations remotely
constitutes irreparable harm, and in fact, Plaintiffs
concede that all harms alleged are of either a
financial or minor emotional nature. Plaintiffs
further concede that nobody has been arrested under
the Ordinance since, as Plaintiffs’ correctly point out,
a Noise Ordinance violation is a Class 4
misdemeanor subject only to fines.
18. Because Plaintiffs have failed to state
sufficient facts to assert a claim that the City’s Noise
Ordinance is unconstitutional as applied to them, or
that they are suffering irreparable harm and are
without an adequate remedy at law, the Demurrer
should be sustained and the case dismissed.
WHEREFORE, for the foregoing reasons, the
City respectfully requests that its Demurrer be
granted and the First Amended Complaint be
dismissed with prejudice.
CITY OF VIRGINIA BEACH
By: /s/
Of Counsel
37a
Mark D. Stiles (VSB No. 30683)
Deputy City Attorney
Christopher S. Boynton (VSB No. 38501)
Senior City Attorney
Office of the City Attorney
2401 Courthouse Drive, Building 1
Virginia Beach, VA 23456
(757) 385-4531- Telephone
(757) 385-5687- Facsimile
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the
foregoing Demurrer was faxed and mailed to. Kevin
E. Martingayle, Esquire, Stallings & Bischoff, P.C.,
2101 Parks Avenue, Suite 801, Virginia Beach,
Virginia 23451 this 27** day of September, 2007.
/s/
Christopher S. Boynton
38a
[FILED JULY 6, 2007]
VIRGINIA: IN THE CIRCUIT COURT OF THE
CITY OF VIRGINIA BEACH
BRADLEY S. TANNER,
ERIC ALEXANDER WILLIAMS
and
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB,
Plaintiffs,
Vv. Case No. CLO7-3754
CITY OF VIRGINIA BEACH,
Defendant.
DEMURRER
COMES NOW the City of Virginia Beach
(“City”), by counsel, and demurs to the Complaint for
Declaratory Injunctive Relief [sic] (‘Complaint”),
filed herein by the Plaintiffs on the following
grounds:
l. Plaintiffs Complaint challenges the
constitutionality of the City’s Noise Ordinance
(codified at Virginia Beach City Code § 23-47), and
seeks declaratory and injunctive relief from its
enforcement.
2. Paragraph 5 of the Complaint asserts
that “[o]m its face, the subject noise ordinance 1s
39a
legally defective and _ violates the Virginia
Constitution because it is overly vague, contains no
standards or criteria for enforcement, and fails to
provide citizens with ‘fair notice’ of what specific
conduct is unlawful.”
3. The City’s Noise Ordinance is attached
and incorporated into the Complaint and therefore
may be considered for purposes of this Demurrer.
4. The rules of statutory construction
require the Court to interpret the ordinance
according to its terms and give all words employed
therein their commonly accepted meanings.
5. The ordinance, by its terms, provides an
objective and reasonable standard. It prohibits “any
unreasonably loud, disturbing and unnecessary
noise.” It simply requires that Plaintiffs, like all
establishments, play any music they may choose to
play inside at such volume and under such
conditions and at such times so as to _ not
unreasonably disturb those persons who choose not.
to be patrons of the Plaintiffs’ establishment.
6 In a prior case filed by attorney for
Plaintiffs challenging this exact same ordinance,
Christopher Ieeney et al v. City of Virginia Beach,
Chancery No. CH03-3636, the Honorable Frederick
B. Lowe of this Court sustained the City’s demurrer
and entered an Order explicitly upholding the
constitutionality of the City’s Noise Ordinance (copy
attached as Exhibit 1). In that Order, Judge Lowe
wrote:
40a
Upon consideration of the language
employed in Virginia Beach City Code
Section 23-47 and the case law relating
to similar ordinances, the Court finds
as a matter of law that Virginia Beach
City Code Section 23-47 is not facially
vague or overbroad, and does not, as
written, violate any due process or
equal protection rights guaranteed by
the Virginia Constitution. Likewise,
the Court finds that the ordimance on
its face meets an objective and
reasonable standard and that Section
23-47, to the extent it is enforced
consistent with its terms, does not
violate any right to freedom of
expression guaranteed by the Virginia
Constitution.” (emphasis added)
‘# The Virginia Supreme Court has also
previously considered the City’s Noise Ordinance
and found it to be constitutional. In City of Virginia
Beach v. Murphy, 239 Va. 353, 389 S.E.2d 462
(1990), the Supreme Court reversed Judge Austin
Owen, who had found the City’s Noise Ordinance
unconstitutional after the defendant was prosecuted
for loud music emanating from her restaurant (copy
attached as Exhibit 2). In that case, the legal issue
was not vagueness or overbreadth, but rather
whether the illegal conduct constituted a private
nuisance or a public nuisance. Importantly, in
ruling that the conduct punishable under the City’s
Noise Ordinance was a public nuisance and that the
ordinance was constitutional, the Court wrote that
“the right not to be subjected to ‘unreasonably loud,
4la
disturbing and unnecessary noise’ as provided in
Virginia Beach Code § 23-47, is ‘common to all
members of the general public...’ and not particular
to individuals in the enjoyment of their property.”
Id. at 356, 464.
8. When the City’s Noise Ordinance is
enforced consistent with its terms, the Ordinance
sufficiently identifies and defines the conduct it
prohibits and, as a matter of law, is. not
unconstitutionally vague or overbroad.
9. Paragraph 6 of the Complaint asserts
that “as applied and enforced, the subject ordinance
is unlawful and violates the Virginia Constitution
because law enforcement officials in Virginia Beach
exercise unfettered individual discretion in deciding
whether to charge individuals with noise ordinance
violations.”
10. The allegations in Paragraph 6 of the
Complaint, even when combined with the few factual
allegations contained in the Complaint (specifically
that the decision to charge a violation is “...purely a
matter of opinion...” and that violations are “...often
alleged without any underlying citizen
complaints...”) fails to state a claim that the City has
applied or enforced the Noise Ordinance in an
unlawful or unconstitutional manner.
11. Nowhere in the City’s Noise Ordinance
is its required that there be an underlying citizen
complaint. Therefore, charging a violation in the
absence of a complaining witness (other than a police
officer) constitutes enforcement of the ordinance
42a
consistent with its terms.
12. Moreover, the Virginia Supreme Court,
in Murphy, wrote that “the distinction between a
public and a private nuisance does not depend solely
upon the number of people who are actually affected,
as the trial court held.” The Court continued:
“As one jurisdiction has noted: If the
annoyance is one that is common to the
public generally, then it is a public
nuisance... The test is not the number
of persons annoyed, but the possibility
of annoyance to the public by _ the
invasion of its rights. A public nuisance
is one that injures the citizens generally
who may be so circumstanced as to
come within its influence.”
Id. at 356, 463 (quoting Couture v. Bd. Of
Educ. of Town of Plainfield, 6 Conn.App. 309,
315, 505 A.2d 432, 4385 (1986) (internal
citation omitted)) (emphasis added).
13. Clearly, the Virgina Supreme
Court, in sustaining this Ordinance once
previously, contemplated that a _ violation
could occur, be prosecuted and a conviction be
obtained, all in the absence of a citizen
complaint.
14. Moreover, the assertion that an
officer’s decision to charge a violation of the
Ordinance is “purely a matter of opinion” is
simply not accurate. While officers
43a
necessarily employ some level of discretion in
making a decision to charge a person with a
Noise Ordinance violation, they employ that
same level of discretion every day in deciding
whether to write a speeding ticket, to charge a
person for public intoxication, or to issue a
ticket for failing to come to a complete stop at
a road sign or signal.
15. The Noise Ordinance’ under
which an officer initiates a charge requires, on
its face, that the officer make a determination
that the noise is “unreasonably loud,
disturbing and unnecessary” and/or is
sufficient to “annoy or disturb the quiet,
comfort or repose of reasonable persons.” This
standard has already been ruled by this Court
to be an “objective and reasonable standard.”
The officer cannot make the charge unless he
determines that probable cause exists to
conclude that the defendant has violated this
objective and reasonable standard.
16. If an officer's conclusion that the
ordinance has been violated — which was
made based upon his or her in-person
observations — does not convince the trier of
fact, beyond a reasonable doubt, that the
reasonable person standard has been violated,
then the defendant is properly found not
guilty.
17. Each charge must rise and fall on
its own individual facts, but the decision to
charge is not without an objective and
44a
reasonable standard.
18. At paragraph 14, Plaintiffs allege
that “the police are habitually’ bringing
charges that cannot be proved in court.”
However, in 7 of the 8 instances cited in
Plaintiffs’ Complaint (paragraphs 10-13), the
Virginia Beach General District Court found
the evidence sufficient and convicted the
defendant, only to have the Circuit Court later
try the case de novo, and dismiss the charge.
In the eighth instance, the officer failed to
appear. Therefore, Plaintiffs’ own Complaint
admits that these cases can and are often
proved beyond a reasonable doubt to a judge
under the existing Ordinance.
19. ‘Finally, plaintiff seeks injunctive
relief and asserts in paragraph 17 that
“Plaintiffs are sustaining ongoing, irreparable
harm and their constitutional rights are being
violated.” The only “facts” alleged in support
of this conclusory allegation of irreparable
harm are found in paragraphs 4 and 14 of the
Complaint.
20. In those paragraphs, Plaintiffs
allege: they “have been charged, repeatedly,
with violations” of the ordinance; “they have
also been threatened with arrest and
detention in jail even though the subject
ordinance is a Class 4 misdemeanor
punishable by nothing more than a fine;” it is
“very unsettling, disturbing, and upsetting to
them;” it has significantly impaired their
45a
ability to conduct business;” enforcement of
the ordinance in the past month is at “the
point of being intolerable;” and (in paragraph
14) that prosecutions under the ordinance are
being done at “great expense, both financial
and emotional, to the defendants, and in a
manner which wastes judicial resources.”
20. Nothing in these allegations
remotely constitutes irreparable harm, and in
fact, Plaintiffs concede that all harms alleged
are of either a financial or minor emotional
nature. Plaintiffs further concede that nobody
has been arrested under the Ordinance since,
as Plaintiffs’ correctly point out, a Noise
Ordinance violation is a Class 4 misdemeanor
subject only to fines.
21. Because Plaintiffs have failed to
state a claim, as a matter of law, that the
City’s Noise Ordinance is unconstitutionally
vague or overbroad on its face, or that it is
unlawful or violative of the Virginia
Constitution as applied, the Demurrer should
be sustained and the case _ dismissed.
Moreover, Plaintiffs’ have wholly failed to
state sufficient facts to allow a court to find
irreparable harm or issue an injunction.
22. Finally, Plaintiffs essentially ask
the Court to substitute its judgment for that of
the legislative body as to how best to regulate
excessive noise. This request violates the
separation of powers doctrine and should be
rejected as a matter of law.
46a
WHEREFORE, for the foregoing reasons, the
City respectfully requests that its Demurrer be
granted and the Complaint for Declaratory
Injunctive Relief be dismissed with prejudice.
CITY OF VIRGINIA BEACH
By: /s/
Of Counsel
Mark D. Stiles (VSB No. 30683)
Deputy City Attorney
Christopher S. Boynton (VSB No. 34731)
Senior City Attorney
Office of the City Attorney
2401 Courthouse Drive, Building 1
Virginia Beach, VA 23456
(757) 385-4531- Telephone
(757) 385-5687- Facsimile
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the
foregoing Demurrer was faxed and mailed to Kevin
E. Martingayle, Esquire, Stallings & Bischoff, P.C.,
2101 Parks Avenue, Suite 801, Virginia Beach,
Virginia 23451 this 6 day of July, 2007.
/s/
Christopher S. Boy nton
AZ7a
[FILED SEPTEMBER 6, 2007]
VIRGINIA: IN THE CIRCUIT COURT FOR THE
CITY OF VIRGINIA BEACH
BRADLEY S. TANNER,
ERIC ALEXANDER WILLIAMS and
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB,
Plaintiffs,
Vv. Case No. CL07-3754
THE CITY OF VIRGINIA BEACH,
Defendant.
FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF
NOW COME your plaintiffs, Bradley S.
Tanner (hereinafter “Tanner’), Eric Alexander
Willams (hereinafter “Williams’) and BAE
Ventures, Inc. t/a The Peppermint Beach Club
(hereinafter “The Peppermint”), by counsel, and in
support of their complaint, state as follows:
i. Tanner is a resident of the City of
Suffolk and Williams is a resident of the City of
Virginia Beach.
2. The Peppermint is a _ Virginia
corporation operating as a- restaurant and
entertainment venue located at 1801 Atlantic
48a
Avenue in the City of Virginia Beach.
3. The City of Virginia Beach (hereinafter
“the City”) is a municipal corporation created and in
existence pursuant to applicable provisions of the
Code of Virginia. Among other functions, the City
operates a police department. Additionally, the City
has created and passed into law certain ordinances,
including one which is the subject of this complaint,
§ 23-47.
4. Tanner and Williams are owners and
operators of The Peppermint. Over the past year or
more, they have been charged, repeatedly, with
violations of City ordinance §23-47, always because
of music volume. In addition to the times when they
have been issued summonses, they have also been
threatened with arrest and detention in jail, even
though the subject ordinance is a Class 4
misdemeanor punishable by nothing more than a
fine. Obviously, this has been very unsettling,
disturbing and upsetting to them, and it has
significantly impaired their ability to conduct
business at The Peppermint, and has damaged the
ability of The Peppermint to conduct business and
satisfy its customers. Enforcement of the ordinance
has been stepped up significantly in recent months
to the point of being intolerable.
5. On its face, the subject noise ordinance
is legally defective and violates the Virginia
Constitution because it is overly vague, contains no
standards or criteria for enforcement, and fails to
provide citizens with “fair notice” of what specific
conduct is unlawful. Moreover, this ordinance
A9a
violates free speech and _ expression rights
guaranteed by the Virginia Constitution. Facially,
the noise ordinance invites selective prosecution and,
“as applied”, the ordinance has been utilized in a
subjective and selective manner, in violation of
rights guaranteed by the Virginia Constitution.
6. As applied and enforced, the subject
ordinance is unlawful and violates the Virginia
Constitution because law enforcement officials in
Virginia Beach exercise unfettered individual
discretion in deciding whether to charge individuals
with noise ordinance violations. Over the years, City
police officers have testified in numerous attempts at
prosecution of the ordinance that the decision to
charge a violation of the ordinance is purely a matter
of opinion, and have further admitted that violations
have routine)., been alleged without any underlying
citizen complaints at all. Accordingly, potential
violators of the noise ordinance are left guessing as
to whether or not their conduct is “criminal”, and
numerous witnesses have testified that they are
unable to tell when they are acting in a manner that
violates the noise ordinance. Witnesses have also
testified that from their perspective, they are not
acting in a manner which violates the ordinance.
Notwithstanding, these witnesses have endured
criminal charges. with unpredictable and
inconsistent results being reached in the courtroom
when their cases have been tried. Currently, the
police, citizens and Virginia Beach judges have been
unable to identify and utilize any consistent
standards with regard to the noise ordinance, and
the result has been utter chaos.
5Oa
ti Special rules of statutory construction
apply to penal statutes, which are strictly construed
against the government and may not be extended by
implication. Stevenson v, City of Falls Church, 243
Va 3 434, 486 (1992). Lack of sufficient
“definiteness” and “clear and unequivocal tests to
ascertain guilt” will lead to penal statutes being
invalidated. Goldstein v. Commonwealth, 200 Va.
25,27-28 (1958) (obscenity statute struck down). If “a
person could not receive fair notice of the relevant
law by reading [the] penal ordinance”, it is
unenforceable. Rollins v. Gordonsville, 216 Va 25, 26
(1975). “We have often held that a penal statute
must be definite and certain to be valid, and it
denies due process of law if it is vague .or
ambiguous.” Sharp v. Commonwealth, 213 Va. 269,
271 (1972) (internal citations omitted). “The
Constitution does not permit the legislature to set a
net large enough to catch all possible offenders, and
leave it to the courts to step inside and say who
should be rightfully detained, and who should be set
at large.” Chicago v. Morales, 527 U.S. 41, 60 (1999)
(internal citations omitted) (invalidating an anti-
loitering ordinance). See also Booth _v.
Commonwealth, 197 Va. 177 (1955) (declaring the
term “improper person” to be unconstitutionally
vague and indefinite in the context of an alcohol
interdiction order); Squire v. Pace, 380 F. Supp. 269,
(W.D. Va. 1974), affd. 516 F. 2d 240 (4" Cir. 1975),
cert, demied 423 U.S. 840 (1975) (granting habeas
corpus and striking down on both free speech and
vagueness grounds a Virginia “disorderly conduct”
statute). As these cases and others make perfectly
clear, the requirement of certainty in penal statutes
and ordinances is fundamental to American
5la
jurisprudence. See Papachristouv. City of
Jacksonville, 405 U.S. 156 (1972) (vagrancy
ordinance ruled void for vagueness); Coleman v. City
of Richmond, 5 Va. App. 459 (1988) reh’g. denied, 6
Va. App. 296 (1988) (invalidating Richmond
ordinance prohibiting loitering in a public place
under circumstances manifesting the purpose of
engaging in prostitution).
8. In the specific context of noise
ordinances, cases from many jurisdictions around
the United States constitute strong and persuasive
authority in support of plaintiffs’ arguments that the
standardless Virginia Beach noise ordinance is
invalid because it violates free speech, equal
protection and due process rights guaranteed by the
Virginia Constitution. See, e.g., U.S. Labor Party v.
Pomerleau, 557 F. 2d 410 (4 Cir. 1977): People v.
New York Trap Rock Corp., 57 N.Y. 2d 371, 456
N.Y.S. 2d 711 (N.Y. 1982); Jim Crockett Promotion,
Inc._v. City of Charlotte, 706 F.2d 486 (C.A.4 (NC)
1983); Fratiello v. Mancuso, 653 F. Supp. 775 (R.1.
1987): Lanaford v. City of Omaha, 755 F. Supp. 1460
{Neb. 1989): Vae..Woo.Kimy..City of New York, 774 F.
Supp. 164 (S.D. N.Y.1991); Nichols vu. City of
Gulfport, 589 So. 2d 1280 (Miss. 1991); Asauith_v.
City of Beaufort, 911 F. Supp. 974 (S.C. 1995);
Duores v. Citu of Newport. RJ., 978 F. Supp. 429 (D.
R.I. 1997); Lionhart v. Foster, 100 F. Supp. 2d 383
(E.D, La. 1999): Thelen v. State, 526 S.E. 2d 60 (Ga
2000); Deeganv. Citu of Ithaca, 444 F.3d 135 (2 Cir.
2006). Copies of these cases have all been filed with
the Court previously. In each of these cases, the
subject noise ordinance was at feast .as specific as
the Virginia Beach noise ordinance, and in some
52a
cases much more specific, and yet in each instance,
the ordinance failed to pass muster and was deemed
to violate constitutional rights.
9. The Virginia Beach courts have been
the site of a great deal of prior litigation involving
the Virginia Beach noise ordinance. The subject
dispute involves music emanating from a restaurant
located at 1801 Atlantic Avenue. Notably, the
restaurant is on the ground floor of a hotel, and the
owners/operators of The Peppermint have had no
citizen or hotel complaints concerning the music
volume at the restaurant. Nevertheless, the police
continue to allege violations and have even
threatened arrest.
10. In 2003, other individuals associated
with the predecessor restaurant at this same
location mounted a challenged to the subject
ordinance in Feenev. et. al. v. City of Virginia Beach,
CHO3-3636. The case proceeded before’ the
Honorable Frederick B. Lowe on the initial question
of whether the ordinance is facially defective. Judge
Lowe found that it was not, but left for future
determination the issue of whether it was being
applied selectively and unconstitutionally. However,
before any further determinations could be made,
the case was non-suited because the City and
Virginia Department of Alcoholic Beverage Control
effectively drove the restaurant out of business.
However, less than one month after Judge Lowe
entered an order in Feeney. he presided over
Co nwealth v. Joh ard Lewis, CRO3-2866-
00, CRO3-2996-00; CRO3-2996-01; CRO3-4413-00 and
CRO3-4751 (5 charges/incidents consolidated for
53a
trial). The case involved music volume at a
restaurant located diagonally across the street from
where The Peppermint is now, and it was tried on
July 15, 2004. All of the charges against the
defendant were dismissed on a motion to strike. A
copy of the transcript from that proceeding was
supplied previously, and the testimony of the police
officers in that case demonstrate the problems with
the ordinance and the way in which it is enforced,
ll. On October 14, 2004, the Honorable
Stephen C. Mahan presided over Commonwealth v.
Joshua Erik Price, CR04-3117. A copy of the
transcript from that proceeding was supplied
previously. In this case involving musig volume at
another oceanfront area restaurant, the prosecution
was utterly unable to articulate any type of objective
standard or test. Judge Mahan dismissed the charge
on a motion to strike.
12. On January 19, 2006, the Honorable
Patricia L. West presided over Commonwealth v.
Anthony Smith, CR05-4748. A copy of the transcript
of that proceeding was supplied previously. In this
case involving music at an establishment in the 2100
block of Atlantic Avenue, the prosecution was unable
to present any evidence that articulated a clear
standard or which would otherwise provide for “clear
notice” to the public. Judge West received briefs on
the constitutional issues, but, ultimately, declined to
reach the constitutional questions and _ simply
dismissed the charge on the basis of insufficient
evidence.
‘3. On September 12, 2005, Andrew C.
Edwards, an owner of “Chicho’s” (a restaurant
located at 2112 Atlantic Avenue) went before the
General District Court for an alleged noise ordinance
violation in case GC0O5-13176. Like the others, this
case involved music volume. The charging officer
failed to show up for court and the case was
dismissed. A copy of the disposition from that case
was supplied previously.
14. On July 9, 2007, Tanner was tried in
Virginia Beach General District Court on two alleged
noise violations in case nos. GC07-9605 and GC0O7-
4711. The Honorable Calvin R. Depew, Jr.
dismissed the charge in case no. GCO7-9605, but
convicted in case no. GCO7-4711 (with the conviction
appealed and currently pending in Virginia Beach
Circuit Court). The transcript of those proceedings
was filed previously and further demonstrates the
confusion and unpredictability associated with noise
ordinance enforcement and legal proceedings.
15. On August 28, 2007, The Honorable W.
Edward Hudgins, Jr. presided over two noise
ordinance cases. In GC0O7-10231, a charge was
dismissed against Matthew Potter. A copy of the
transcript of that case is attached hereto as Exhibit
A. In GC07-9642, Judge Hudgins convicted Tanner
(who has appealed to the Virginia Beach Circuit
Court, with that case pending). A copy of the
transcript of that case is attached hereto as Exhibit
B. In both instances, the charging officers did not
allege that any person complained or was disturbed
by the music which led to issuance of a summons.
In Tanner’s case, Officer W. Ahern testified that the
55a
standard used was whether he could “hear the noise
clearly from one establishment from across the
street.” (TR 8). Notably, this testimony from Officer
Ahern indicates that the standard he and his fellow
officers have been using is the exact same standard
that Judge Lowe advised was unacceptable in
Commonwealth v. John Leonard Lewis, referenced
in 1J10 herein above. In other words, in the
aftermath of Judge Lowe's ruling in the Lewis case
three years ago, the Virginia Beach Police
Department appears to have institutionalized the
precise enforcement methodology that a Virginia
Beach Circuit Court judge advised was unacceptable
and improper.
16. On September 5, 2007, Carlos Cooke
(case no. GCO7-8455) and Matthew Potter (case no.
GCO07-8551) were before the Virginia Beach General
District Court on alleged violations of the noise
ordinance. That morning, Kathy D. Rountree
appeared on behalf of the city attorney’s office and
agreed that due to Officer D’Orio’s anticipated
testimony, the charges should be dismissed. A copy
of the case printouts/are attached hereto as Exhibits
C and D.
‘7. These case transcripts and dispositions
highlight the problem that confronts citizens in
general, and _ operators of oceanfront area
restaurants in particular. The police are habitually
and repeatedly bringing charges that often cannot be
proved in court. This is being done at great expense,
both financial and emotional, to the individuals
charged with criminal violations, and in a manner
which wastes judicial resources. In the instances
56a
where judges have deemed the evidence ‘to be
sufficient for the finding of guilt, the reasoning has
been vague and confusing, with no guidance
provided to these defendants or anyone else to
enable them to know how to determine the legality
or illegality of their conduct on a “go-forward basis’.
18. For years the City has known that its
ordinance is defective, and yet it has made no
changes. By contrast, numerous other localities have
enacted ordinances which use decibel levels. The
ability to measure sound levels has been in existence
for decades, yet Virginia’s largest city refuses to
enact a modern, measurable ordinance. However,
back in 1995, the City of Virginia Beach reached a
“Noise Restrictions Agreement” with the operator of
the Virginia Beach Amphitheater. A copy of that
agreement was filed with the Court previously. This
agreement demonstrates that the City knows how to
measure sound.
19. Additionally, certain aspects of §23-47
constitute blanket prohibitions against certain types
of sound or noise, including, but not limited to §23-
47(a)(5). This type of blanket prohibition violates
free speech, due process and equal protection rights
guaranteed by the Virginia constitution.
20. Despite knowing how to measure sound
and create an ordinance with objective standards,
and despite losing a great number of cases in the
courtroom where the City has attempted to enforce
its standardless ordinance over a period spanning
years, the City has steadfastly and stubbornly
refused to enact any changes. Evidently, if there is to
57a
be any meaningful change, it is going to have to start
with a ruling from this court.
Si. Plaintiffs are sustaining ongoing,
irreparable harm, and their constitutional rights are
being violated. Accordingly, declaratory and
injunctive relief is required to remedy the situation.
WHEREFORE, for the foregoing reasons, your
plaintiffs, Bradley S. Tanner, Eric Alexander
Wiliams and BAE Ventures, Inc., t/a The
Peppermint Beach Club, respectfully request that
this Honorable Court declare that Virginia Beach
Ordinance § 23-47 is violative of the Virginia
Constitution, both facially and as applied, and is
therefore void and unenforceable. Moreover,
plaintiffs request that this Court enjoin the City of
Virginia Beach, temporarily and permanently, from
enforcing its noise ordinance (§ 23-47), and plaintiffs
request such other and further relief as deemed
appropriate under the circumstances, including, but
not limited to, an award of attorneys’ fees and costs.
BRADLEY 8S. TANNER,
ERIC ALEXANDER WILLIAMS,
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB
/s/
Of Counsel
Kevin E. Martingayle, Esquire
STALLINGS & BISCHOFF, P.C.
2101 Parks Avenue, Suite 801
Post Office Box 1687
y8a
Virginia Beach, VA 23451
(757) 422-4700 (telephone)
(757) 428-6982 (facsimile)
CERTIFICATE
I hereby certify that a copy of the foregoing
was sent via facsimile and first class mail this 6
day of September, 2007, to Christopher S. Boynton,
Senior City Attorney, Office of the City Attorney,
Municipal Center; Building 1, Room 260, 2401
Courthouse Drive, Virginia Beach, Virginia 23456.
—— :
Kevin E. Martingayle
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[FILED JUNE 22, 2007]
VIRGINIA: IN THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
BRADLEY S. TANNER,
ERIC ALEXANDER WILLIAMS
and
BAE VENTURES, INC., t/a
THE PEPPTERMINT BEACH CLUB,
Plaintiffs,
v. Case No.
THE CITY OF VIRGINIA BEACH
Defendant.
Serve: Leslie L. Lilley,
City Attorney
Office of the City Attorney
Municipai Center,
Building 1, Room 260
2401 Courthouse Drive
Virginia Beach,
Virginia 23456
COMPLAINT FOR DECLARATORY
INJUNCTIVE RELIEF
NOW COME your plaintiffs, Bradley
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S. Tanner (hereinafter “Tanner’), Eric
Alexander Williams (hereinafter
“Williams”) and BAE Ventures, Inc. t/a The
Peppermint Beach Club (hereinafter “The
Peppermint’), after having been duly
sworn, and in support of their complaint,
state as follows:
3. Tanner is a resident of the
City of Suffolk and Williams is a resident of
the City of Virginia Beach.
2. The Peppermint is a Virginia
corporation operating as a restaurant and
entertainment venue located at 1801
Atlantic Avenue in the City of Virginia
Beach.
3. The City of Virginia Beach
(hereinafter “the City”) 1s a municipal
corporation created and in_- existence
pursuant to applicable provisions of the
Code of Virginia. Among other functions,
the City operates a police department.
Additionally, the City has created and
passed into law certain’ ordinances,
including one which is the subject of this
complaint, § 23-47 (copy attached).
4. Tanner and Wilhams_ are
owners and operators of The Peppermint.
Over the past year or more, they have been
charged, repeatedly, with violations of City
ordinance § 23-47, always because of music
volume. In addition to the times when they
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have been issued summonses, they have
also been threatened with arrest and
detention in jail, even though the subject
ordinance is a Class 4 misdemeanor
punishable by nothing more than a fine.
Obviously, this has been very unsettling,
disturbing and upsetting to them, and it
has significantly impaired their ability to
conduct business at The Peppermint, and
has damaged the ability of The Peppermint
to conduct business and _ satisfy its
customers. Enforcement of the ordinance
has been stepped up significantly in the
past month to the point of being intolerable.
5. On its face, the subject noise
ordinance is legally defective and violates
the Virginia Constitution because it is
overly vague, contains no standards or
criteria for enforcement, and fails to provide
citizens with “fair notice” of what specific
conduct is unlawful.
6. Moreover, as applied and
enforced, the subject ordinance is unlawful
and violates the Virginia Constitution
because law enforcement officials in
Virginia Beach exercise unfettered
individual discretion in deciding whether to
charge individuals with noise ordinance
violations. Over the years, City police
officers have testified in numerous attempts
at prosecution of the ordinance that the
decision to charge a_ violation of the
ordinance is purely a matter of opinion, and
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have further admitted that violations are
often alleged without any underlying citizen
complaints at all.
if Special rules of statutory
construction apply to penal statutes, which
are strictly construed against the
government anc may not be extended by
implication. Stevenson _v. City of Falls
Church, 243 Va. 434, 486 (1992). Lack of
sufficient “definiteness” and “clear and
unequivocal tests to ascertain guilt” will
lead to penal statutes being invalidated.
Goldstein v. Commonwealth, 200 Va. 25, 27-
28 (1958) (obscenity statute struck down). If
“a person could not receive fair notice of the
relevant law by reading [the] penal
ordinance’, it is unenforceable. Rollins ov.
Gordonsville, 216 Va. 25, 26 (1975). “We
have often held that a penal statute must
be definite and certain to be valid, and it
denies due process of law if it 1s vague or
ambiguous.” Sharp v. Commonwealth, 213
Va. 269, 271 (1972) (internal citations
omitted). “The Constitution does not permit
the legislature to set a net large enough to
catch all possible offenders, and leave it to
the courts to step inside and say who should
be rightfully detained, and who should be
set at large.” Chicago _v. Morales, 527 U.S.
41, 60 (1999) (internal citations omitted)
(invalidating an anti-loitering ordinance).
See also Booth v. Commonwealth, 197 Va.
177 (1955) (declaring the term “improper
person” to be unconstitutionally vague and
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indefinite in the context of an alcohol
interdiction order); Squire v. Pace, 380 F.
Supp. 269, (W.D. Va. 1974), affd. 516 F. 2d
240 (4th Cir. 1975), cert, denied 423 U.S.
840 (1975) (granting habeas corpus and
striking down on both free speech and
vagueness grounds a Virginia “disorderly
conduct” statute). As these cases and others
make perfectly clear, the requirement of
certainty in penal statutes and ordinances
is fundamental to American jurisprudence.
See Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) (vagrancy ordinance
ruled void for vagueness); Coleman v. City
of Richmond, 5 Va. App. 459 (1988) reh’g.
denied, 6 Va. App. 296 (1988) (invalidating
Richmond ordinance prohibiting loitering in
a public place under circumstances
manifesting the purpose of engaging in
prostitution).
8. In the specific context of noise
ordinances, cases from many jurisdictions
around the United States constitute strong
and persuasive authority in support of
plaintiffs’ arguments that the standardless
Virginia Beach noise ordinance is_ invalid.
See, e.g., U.S. Labor Party v. Pomerleau,
557 F. 2d 410 (4th Cir. 1977); Thelen ov.
State, 526 S.E. 2d 60 (Ga. 2000); Lionhart v.
Foster, 100 F. Supp. 2d 383 (E.D. La.1999);
Dupres_v. City of Newport. RJ., 978 F.
Supp. 429 (D. R.I. 1997); Nichols v. City of
Gulfport, 589 So. 2d 1280 (Miss. 1991); Dae
Woo Kirn v. City of New York, 774 F. Supp.
64a
164 (S.D. N.Y.1991); People v. New York
Trap Rock Corp., 57 N.Y. 2d 371, 456 N.Y.S.
2d 711 (N.Y. 1982). Copies of these cases
are attached hereto. In each of these cases,
the subject noise ordinance was at least as
specific as the Virginia Beach noise
ordinance, and in some cases much more
specific, and yet in each instance, the
ordinance failed to pass muster and was
deemed to violate constitutional rights.
9. This court has been the site of
a great deal of prior litigation involving the
Virginia Beach noise ordinance. The subject
dispute involves music emanating from a
restaurant located at 1801 Atlantic Avenue.
Notably, the restaurant is on the ground
floor of a hotel, and the owners/operators of
The Peppermint have had no citizen or
hotel complaints concerning the music
volume at the restaurant. Nevertheless, the
police continue to allege violations and
threaten arrest.
10. In 2003, other individuals associated
with the predecessor restaurant at this
same location mounted a challenged to the
subject ordinance in Feenev. et. al. v. City
of Virginia Beach, CHO3-3636. ‘The case
proceeded before the Honorable Frederick
B. Lowe on the initial question of whether
the ordinance is facially defective. Judge
Lowe found that it was not, but left for
future determination the issue of whether 1t
was being applied __ selectively and
Hoda
unconstitutionally. However, before any
further determinations could be made, the
case was non-suited because the City and
Virginia Department of Alcoholic Beverage
Control effectively drove the restaurant out
of business. However, less than one month
after Judge Lowe entered an order in
John Leonard Lewis, CRO3-2866-00, CRO?
2996-00 CRO3-2996-01; CRO3-4413-00 and
CRO3-4751 (5 charges/incidents
consolidated for trial). The case involved
music volume at a restaurant located
diagonally across the street from where The
Peppermint is now, and it was tried on July
15, 2004. All of the charges against the
defendant were dismissed on a motion to
strike. A copy of the transcript is attached
hereto as Exhibit “A”, and the testimony of
the police officers in that case demonstrate
the problems in the ordinance and the way
in which it is enforced
Ll On October 14, 2004, the
Honorable Stephen C. Mahan presided over
Commonwealth v. Joshua Erik Price, CRO4
3117. A copy of the transcript is attached
hereto as Exhibit “B”. In this case involving
music volume at another oceanfront area
restaurant, the prosecution was. utterly
unable to articulate any type of objective
standard or test. Judge Mahan dismissed
the charge on a motion to strike
12 On January 19. 2006 the
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Honorable Patricia L. West presided over
Commonwealth v. Anthony Smith, CRO5.
4748. A copy of the transcript is attached
hereto as Exhibit “C” In this case involving
music at an establishment in the 2100 block
of Atlantic Avenue, the prosecution was
unable to present any evidence that
articulated a clear standard or which would
otherwise provide for “clear notice” to the
public. Judge West received briefs on the
constitutional issues, but, ultimately,
declined to reach the constitutional
questions and simply dismissed the charge
on the basis of insufficient evidence.
13. On September 12. 2005,
Andrew C. Edwards, an owner of Chicho’s
(a restaurant located at 2112 Atlantic
Avenue) went before the General District
Court for an alleged noise ordinance,
violation in case GCO5-13176. Like the
others, this case involved music volume.
The charging officer failed to show up for
court and the case was dismissed. A copy of
the disposition is attached hereto as Exhibit
“—_.
14. These case transcripts and
dispositions highlight the problem that
confronts citizens in general, and operators
of oceanfront area restaurants in particular.
The police are habitually and repeatedly
bringing charges that cannot be proved in
court. This is being done at great expense,
both financial and emotional, to the
b/a
defendants, and in a manner which wastes
judicial resources
L5. For years the City has known
that its ordinance is defective, and yet it
has made no changes. By contrast, other
localities have enacted ordinances which
use decibel levels. The ability to measure
sound levels has been in existence for
decades yet Virginia's largest city refuses to
enact a modern, measurable ordinance.
However, back in 1995, the City of Virginia
Beach reached a “Noise ’_ Restrictions
Agreement” with the operator of the
Virginia Beach Amphitheater A copy of
that agreement, which includes decibel
levels, is attached hereto as Exhibit “I”
This demonstrates that the City knows how
to measure sound
16. Despite knowing how § to
measure sound and create an ordinance
with objective standards, and despite losing
case after case in the courtroom where the
City has attempted to _ enforce its
standardless ordinance over a_ period
spanning years, the City has steadfastly
and stubbornly refused to enact any
changes. Evidently, if there is to be any
meaningful change, it is going to have to
start with a ruling from this court
Ef, Plaintiffs are sustaining
ongoing, irreparable harm, and_ their
constitutional rights are being violated
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Accordingly, declaratory and _ injunctive
relief is required to remedy the situation.
WHEREFORE, for the foregoing
reasons, your plaintiffs, Bradley S. Tanner,
Eric Alexander Williams and BAE
Ventures, Inc., t/a The Peppermint Beach
Club, respectfully request that’ this
Honorable Court declare that Virginia
Beach Ordinance §23-47 is violative of the
Virginia Constitution, both facially and as
applied, and is’ therefore void and
unenforceable. Moreover, plaintiffs request
that this Court enjoin the City of Virginia
Beach, temporarily and permanently, from
enforcing its noise ordinance (§23-47), and
plaintiffs request such other and further
rehef as deemed appropriate under the
circumstances, including, but not hmited to,
an award of attorneys’ fees and costs.
BRADLEY 8S. TANNER
ERIC ALEXANDER WILLIAMS and
BAE VENTURES, INC. t/a
THE PEPPERMINT BEACH CLUB
3y /s/
Kevin E. Martingayle, of counsel
/s/ _— ; —
Bradley S. ‘l'anner
/s/
Eric Alexander Williams
BAE Ventures, Inc. t/a
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The Peppermint Beach Club
By /s/
It’s duly authorized agent
STATE OF VIRGINIA,
CITY OF VIRGINIA BEACH,
Subscribed and sworn to before me
this 22nd day of June, 2007, by Bradley S.
Tanner, Eric Alexander Wilhams and
Bradley S. Tanner, duly authorized agent
for BAE Ventures, Inc., t/a The Peppermint
Beach Club.
/s/
Notary Public
My commission expires: 9-30-09
Kevin E. Martingayle, Esquire
STALLINGS & BISCHOFF, P.C.
2101 Parks Avenue, Suite 801
Post Office Box 1687
Virginia Beach, VA 23451
(757) 422-4700 (telephonc)
(757) 428-6982 (facsimile)
OFFICIAL SEAL
NANCY F. WHITFIELD
NOTARY PUBLIC
COMMONWEALTH OF VIRGINIA
Comm. Expires: September 30, 2009
70a
[UNDATED]
Sec. 23-47. Loud, disturbing and unnecessary
noise.
(a)
It shall be unlawful for any person to create,
or allow to be created any unreasonably loud,
disturbing and unnecessary noise in the city
or any noise of such character, intensity and
duration as to be detrimental to the life or
health of persons of reasonable sensitivity or
to disturb or annoy the quiet, comfort or
repose of reasonable persons. The following
acts, among others, are declared to be loud,
disturbing and unnecessary noise in violation
of this section, but such enumeration shall not
be deemed to be exclusive:
(1) The playing of any television set, radio,
tape player, phonograph or any musical
instrument in such a manner or with
such volume as to annoy or disturb the
quiet, comfort or repose of reasonable
persons.
(2) The keeping of any animal which, by
causing frequent or long-continued
noise, shall disturb the quiet, comfort or
repose of the neighborhood to such an
extent as to constitute a nuisance.*
*Cross references: Barking dogs, § 5-10.
(3) The creation of an excessive noise on
any street adjacent to any school, institution
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of learning or court, while the same is in
session, or adjacent to any building used as a
place of public worship, while being so used or
adjacent to any hospital, which unreasonably
interferes with the workings of such school,
institution or court or the services being
conducted in such place of public worship or
which disturbs or unduly annoys patients in
such hospital.
(4) The shouting or crying of peddlers,
hawkers and vendors which disturbs the
peach and quiet of the neighborhood.
(5) The use of any drum, loudspeaker or
other instrument or device for the purpose of
attracting attention, by creation of noise, to
any performance, show or sale or display of
merchandise.
(b) Any person who violates the provisions of this
section shall be guilty of a class 4 misdemeanor.
(Code 1965, § 23-32; Ord. No. 1326, 9-13-82; Ord No.
1563, 10-28-85; Ord. No. 1827, 2-6-89)
Cross references: Muffling devices for
motor boats, § 6-109; noise created by persons
aboard boat or other water craft, § 6-110; use of bells
by street vendors to attract customers, § 13-54;
reduction of noise from vehicle load, § 21-211;
unreasonable noise from operation of motorcycles, §
21-444; unnecessary noise by commercial solicitors, §
26-17; portions of streets as quiet zones, § 33-17.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.