Jim Crockett Promotion, Inc. v. City of Charlotte

• Decision Date: 04 May 1983
• Docket Number: No. 82-1554,82-1554
• Citation: 706 F.2d 486
• Parties: JIM CROCKETT PROMOTION, INC., a North Carolina corporation, and Charlotte Sports Promotions, Inc., a North Carolina corporation, Appellees, v. The CITY OF CHARLOTTE, a municipal corporation; O. Wendell White, as City Manager of the City of Charlotte, and Mack M. Vines, as Chief of Police of the City of Charlotte, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 486

706 F.2d 486

19 ERC 1242

JIM CROCKETT PROMOTION, INC., a North Carolina corporation and Charlotte Sports Promotions, Inc., a North Carolina corporation, Appellees, v. The CITY OF CHARLOTTE, a municipal corporation; O. Wendell White, as City Manager of the City of Charlotte and Mack M. Vines, as Chief of Police of the City of Charlotte, Appellants.

No. 82-1554.

United States Court of Appeals Fourth Circuit.

Argued March 8, 1983.

Decided May 4, 1983.

Durant W. Escott, Charlotte, N.C., Office of The City Atty., for appellant.

Richard D. Boner, Lexington, N.C. (John A. Mraz, Mraz, Michael & Boner, P.A., Charlotte, N.C.), for appellees.

Before RUSSELL, WIDENER and CHAPMAN, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is an appeal from a grant of a preliminary injunction against the enforcement of certain specific sections of the Charlotte, (North Carolina) Noise Ordinance. ¹ In so doing, the District Court found two sections (Secs. 13-53.1 and 13-52) of the Ordinance facially unconstitutional for vagueness and a third (Sec. 13-55.1) unconstitutional because it "place[d] an unconstitutional burden upon the defendant to prove freedom from guilt." The defendant City of Charlotte and its individual officers have appealed. We affirm in part and reverse in part, 538 F.Supp. 1197.

I

The plaintiffs are the owners and the operators of a private "general purpose sports and entertainment stadium" located in the City of Charlotte, where "professional baseball games ... attended by members of the public" have been customarily held and where "blue grass and other types of musical concerts" have been performed. In connection with all these events, the plaintiffs have long made use of sound-amplifying equipment in order "to provide information to the persons in attendance at the [baseball] games" and to magnify the sound of the musical concerts.

In 1980, the Council of the City of Charlotte, enacted a noise ordinance which, among other things, regulated the use of sound-amplifying equipment in private parks. This ordinance, the plaintiffs allege, violates the equal protection, due process and free speech provisions of the First, Fifth and Fourteenth Amendments to the Constitution of the United States and, if such ordinance is enforced, the plaintiffs allege they will suffer irreparable injury since they will be unable to continue to lease their park for sporting or musical events. To prevent this injury, they sought a declaratory judgment and both preliminary and permanent injunctive relief.

The power of the defendant, City of Charlotte, under State law to adopt a noise ordinance is conferred by Sec. 160A-184, N.C.G.S. The City first exercised that power in 1946, with the adoption of a general prohibitory ordinance, which forbade "any unreasonably loud, disturbing, or unnecessary noise in the city." Various amendments and additions were thereafter made. In 1978, however, the Congress enacted the Quiet Communities Act of 1978, 42 U.S.C. Sec. 4913. Under this Act, the Environmental Protection Agency was directed, among other things, to provide assistance to State and local governments in the "preparation of model State or local legislation for noise control." Sec. 4913(f), 42 U.S.C. Obedient to that mandate, the Agency, in conjunction with the National Institute of Municipal Officers, prepared a Model Community Noise Control Ordinance. This Model contained "definitive performance standards," and, with an increase "in reliable monitoring equipment ..., coupled with [these] definitive standards..., should result in ordinances which [were] more easily enforceable than many have been in the past." In the Model, the term "sound" was generally used rather than the older term "noise" since, with the new measurement equipment, and with "objective criteria" for prohibited "sound" "proof of an additional subjective element [was] unnecessary." The EPA [Environmental Protection Agency] in the Model did not attempt to set forth specific sound levels since, in its opinion "there is no single number that can be chosen for each provision that would be appropriate for all types of communities." The EPA did attach as an appendix to the Model a graph depicting the decibel standards for various forms of sound adopted by the various communities of the nation which at the time had adopted anti-noise ordinances. The Model recognized, though, "that certain acts [might] be prohibited by more than one provision" of the Model.

The Charlotte Council, after consultation with the EPA, adopted in 1980 the amended noise ordinance which is the subject of this proceeding. This Ordinance followed broadly the Model Ordinance drafted by that Agency in conjunction with the National Institute of Municipal Officers. In this new Ordinance, the Council retained the general prohibition included in the original 1946 ordinance against any "unreasonably loud, disturbing or unnecessary noise in the city." Section 13.52. It added a substantial number of additional provisions, the only one of which is involved in this appeal is Section 13-53.1 regulating the "use of sound-amplifying equipment." In this latter Section, sound volume caused by amplifying equipment was prohibited beyond certain levels, measured in decibels, in particular areas at specified hours of the day. Sound volume, under this Section was to be "determined by the use of a sound level meter whose characteristics and frequency weightings are specified in ANSI standards," as set forth in "American National Standards Institute, Publication ANSI, S1.4-1971" Section 13-53.1(1)(b) and (c). The Section provided an exception or relief provision under which if the sound level did not exceed the stated limits for more than "ten (10) per cent of the time in any measurement period," such amplification would not be considered a violation of the Section. Section 13-53.1(1)(f). Finally, the Ordinance included a presumption provision applicable to any prohibitions in the Ordinance. Section 13-55.1. This presumption was as follows:

"The complaints of three (3) or more persons, each of whom resides in a different home from the other complaining person or persons, or the complaint of one (1) or more persons, when combined with the complaint of a police officer, a noise control officer, or an animal control officer shall be prima facie evidence that such sound is a loud, annoying, frightening, disturbing, unreasonably loud or unnecessary noise."

The District Court found that, so much of 13-52 of the Ordinance as prohibited "unnecessary" noise, and such part of the sound-amplifying Section as granted exemption where the sound volume did not exceed a certain percentage of "sound level" in "any measurement period," was unconstitutionally vague, and that the presumption section violated due process. It granted, either directly or implicitly, injunctive relief against the enforcement of these Sections. ² The plaintiffs had raised other grounds which they contended rendered the Ordinance, either in whole or in part, unconstitutional but the District Court did not rule on them nor do we.

II

We have no difficulty in affirming the District Court in its holding that the term "unnecessary" in the general prohibitory language of the Ordinance is unconstitutionally vague. But the mere finding that the term "unnecessary" in this section of the Ordinance is unconstitutionally vague is an insufficient basis for invalidating the other provisions of this general prohibitory section, particularly since the other terms define the prohibited conduct in terms which have been found invulnerable from attack for vagueness. ³ This is so, because, as stated by the Supreme Court in United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968), quoting from Champlin Refining Co. v. Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932), "[t]he unconstitutionality of a part of an Act does not necessarily defeat ... the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.' " The only circumstance in which this rule is not to be applied is where "the invalid provisions are deemed so essential, and are so interwoven with others, that it cannot reasonably be presumed that the legislature intended the statute to operate otherwise than as a whole." Moore v. Fowinkle, 512 F.2d 629, 632 (6th Cir.1975). Such circumstance is not present here. The several classes of proscribed conduct in the challenged section are stated not as dependent terms but as separate and distinct types of proscribed conduct. This is obvious in the use of "or" in the identification of the separate types of conduct which were prohibited by the section. Consequently, the excision of "unnecessary" from section 13-52 does not prevent the remainder of such section from "being fully operative as law," embracing as valid the conduct identified in the other terms of that section. See, Griffin v. State Board of Education, 296 F.Supp. 1178 at 1182 (E.D.Va. 3-judge ct.); cf. McCorkle v. United States, 559 F.2d 1258, 1260 (4th Cir.) cert. denied, 434 U.S. 1011, 98 S.Ct. 724, 54 L.Ed.2d 755 (1978).

It follows that, while we affirm the District Court's finding that the term "unnecessary" was unconstitutionally vague, we invalidate the injunction granted by the District Court so far as it may be construed as authorizing an injunction against the enforcement of that part of Section 13-52 of the Ordinance which prohibits "unreasonably loud, disturbing .. noise."

III

Secondly, the District Court found unconstitutional the "presumption" language of section 13-55-1 of the Ordinance. This section declares that the "complaint" of three residents of separate homes or apartments, combined with the "complaint" of a police officer,...