# Petition for Writ of Certiorari — City of Virginia Beach, Virginia v. Tanner (No. 09-314) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0990%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 ## Text aa a 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 59a [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 60a 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 6la 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 attem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0990%3A1. Public record. Not legal advice.