PRESENT: All the Justices
BRADLEY S. TANNER, ET AL.
v. Record No. 080998 OPINION BY
JUSTICE BARBARA MILANO KEENAN
April 17, 2009
CITY OF VIRGINIA BEACH
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 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.
(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.
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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 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
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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 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
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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 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.
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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 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,
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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. Quillian,
264 Va. 656, 665, 571 S.E.2d 122, 126 (2002); Finn 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
153, 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); 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
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Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned, 408 U.S.
at 108. Thus, the language of a law is unconstitutionally vague
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 “[c]ondemned 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).
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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.
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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 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
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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 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
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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.g., 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 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
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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.
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