81 Hawai'i 156, State v. Ewing

• Citation: 914 P.2d 549
• Decision Date: 01 April 1996
• Docket Number: No. 17416,17416
• Parties: 81 Hawai'i 156 STATE of Hawai'i, Plaintiff-Appellee, v. Tari M. EWING, Defendant-Appellant.
• Court: Court of Appeals of Hawai'i

Page 549

914 P.2d 549

81 Hawai'i 156

STATE of Hawai'i, Plaintiff-Appellee, v. Tari M. EWING, Defendant-Appellant.

No. 17416.

Intermediate Court of Appeals of Hawai'i.

April 1, 1996.

Syllabus by the Court

1. Under Hawai'i Revised Statutes (HRS) § 342F-20 (1993), any county may adopt ordinances for the purpose of noise control so long as the ordinances are not inconsistent with HRS chapter 342F or not governed by any rule adopted by the Department of Health (DOH). The ordinance involved here, Revised Ordinances of Honolulu (ROH) § 41-31.1 (1995), prohibits the use of a device for reproducing sound in or on any public property or any motor vehicle on a public way if the sound produced is audible at a distance of thirty feet from the device.

2. A municipal ordinance may be preempted if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.

3. Nothing in HRS chapter 342F indicates that its provisions would preempt the regulation of machines or devices for reproducing sound encompassed under ROH § 41-31.1.

4. Pursuant to HRS § 342-42 (1985), the predecessor to HRS § 342F-31 (1993), DOH adopted administrative rules known as "Title 11, Administrative Rules, Department of Health, Chapter 42, Vehicular Noise Control for O'ahu." These rules establish maximum sound levels that vehicles shall be allowed to emit when used on trafficways on the island of O'ahu.

5. We hold that neither HRS chapter 342F nor the rules promulgated pursuant to HRS § 342-42 for "vehicular noise" extend to sounds reproduced by an automobile's stereophonic system and regulated under ROH § 41-31.1.

6. The ordinance here is specific and clear. The terms used are susceptible of ordinary understanding. The application of the ordinance would not be subject to arbitrary enforcement or application by the police or by a judicial trier of fact. The statute is not overbroad in the sense that it exceeds the police power granted to the State. We hold that there was substantial evidence to support a conviction for prohibited noise under the ordinance.

Appeal from District Court of the First Circuit, City and County of Honolulu (Case No. TR10 OF 8/11/93).

Thomas Ewing, on the brief, Mililani, for defendant-appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

On August 11, 1993, Defendant-Appellant Tari M. Ewing (Defendant) was orally charged with Prohibited Noise in violation of the Revised Ordinances of Honolulu (ROH) § 41-31.1 (1995), ¹ commonly known as the "Boom Box Law." Following a bench trial, the trial court found Defendant guilty as charged, and judgment was entered on August 11, 1993. We affirm.

The following evidence was adduced. On May 23, 1993 at around 4:30 p.m., Officer Edwin Letarte (Officer Letarte) of the Honolulu Police Department was on duty in a supermarket parking lot located "at the intersection of Kailua Road and Hahane Street, ² ... monitoring traffic." Officer Letarte "heard music from a distance" and determined that it was coming from a blue "Honda," traveling "in [the] Kaneohe direction, approximately forty feet away." The music became louder as the car approached Officer Letarte. The officer observed that "the passenger's side window was down[,]" and the volume of the music was lowered when the occupants in the vehicle saw him, but the sound of the music never ceased. Officer Letarte testified that the blue car was "the only vehicle" in his "line of sight from the time when [he] first observed the vehicle" to the time when he "determined that the music was coming from the vehicle." When it stopped at a red light "at the intersection of Kailua and Hahane," the officer approached the car and informed the occupants of the reason he had stopped them. According to Officer Letarte, Defendant was the driver of the "Honda," and a female passenger was in the front seat.

On cross-examination, the officer maintained that although there were other vehicles behind Defendant, he "could tell that the music was coming from that car just by seeing it." The officer also stated that both the passenger and Defendant asked questions regarding how he had determined the volume level of the music and the distance to be over thirty feet. They also asked Officer Letarte to "give [them] a break." The officer confirmed that the first time he heard the music was when the car was "about forty feet away," and "the closest point" the car came to him was "about fifteen feet." The officer did not use any measuring device to determine the volume level of the music and did not use any instrument to measure his distance from the car.

The defense called the passenger, Victoria Marino (Marino). Marino recalled that she "first saw" the officer when she and Defendant were "about twelve to fifteen feet away" from him. She stated that although she was in the first car stopped at the red light, "[t]here were about three or four" other vehicles behind them playing "lots of music." Marino claimed that the officer was "very rude" and "very intimidating." She denied "turning down" the volume of the music, and explained that she was actually changing "the tape" in the vehicle's stereophonic system (hereinafter "stereo"). Marino testified that she changed tapes from a "reggae" ³ music tape to another kind of dance music tape which was "louder."

Defendant testified that the officer was ten to fifteen feet away from her car, not forty feet as he claimed. She maintained that she and Marino were able to carry on a conversation in the car and did not lower the volume of the music when they saw the officer. According to Defendant, music from vehicles behind them was "overpowering [their] music." She asserted that when she called the officer's attention to the other vehicles, the officer told her that "it was [their vehicle]" because "[they] were [in] the first car in line." She denied asking Officer Letarte to "give [her] a break."

After the parties rested, the court found Defendant guilty.

I.

Defendant argues that ROH § 41-31.1 is invalid because it conflicts with the state statute, Hawai'i Revised Statutes (HRS) chapter 342F (1993) and rules promulgated thereunder. HRS chapter 342F regulates "noise pollution" and provides for permit procedures, monitoring and enforcement of regulations, inspection of sites, investigation of complaints, establishment of research, educational and training programs and penalties for violations. Hse.Stand.Comm.Rep. No. 1267, in 1989 House Journal, at 1310. In that connection, the chapter states that the director of the Department of Health may establish rules for the "control of vehicular noise[.]"

§ 342F-31 Rules; specific. The director may establish by rule:

(1) The control of vehicular noise; and

(2) Other specific areas for control of excessive noise, thereby allowing for varying conditions.

Penalties for the violation of such vehicular noise control rules are set forth in HRS § 342F-9. ⁴

However, under HRS § 342F-20, any county may adopt ordinances for the purpose of noise control so long as the ordinances are not inconsistent with HRS chapter 342F or not governed by any rule adopted by the Department of Health (DOH).

§ 342F-20 Effect of laws, ordinances, and rules.

(a) All laws, ordinances, and rules inconsistent with this chapter shall be void and of no effect.

(b) Any county may adopt ordinances and rules governing any matter relating to excessive noise control which is not governed by a rule of the department [of health] adopted pursuant to this chapter; provided that any county ordinance or rule relating to excessive noise control shall be void and of no effect as to any matter regulated by a rule of the department upon the adoption thereof.

Thus, the statutory language of HRS § 342F-20 clearly authorizes any county to adopt ordinances and rules relating to excessive noise control that are not in conflict with HRS chapter 342F or rules adopted by DOH pursuant to that statute.

The ordinance involved here, ROH § 41-31.1, prohibits the use of a device for reproducing sound in or on any public property or any motor vehicle on a public way if the sound produced is audible at a distance of thirty feet from the device:

(a) It shall be unlawful for any person or persons to play, use, operate, or permit to be played, used or operated, any radio, tape recorder, cassette player, or other machine or device for reproducing sound, if it is located in or on any of the following:

(1) Any public property, including any public street, highway, building, sidewalk, park or thoroughfare; or

(2) Any motor vehicle on a public street, highway, or public space; and if the sound generated is audible at a distance of 30 feet from the device producing the sound.

(b) Possession by a person or persons of any of the machines or devices enumerated in subsection (a) shall be prima facie evidence that person operates, or

those persons operate, the machine or device.

(Emphases added.) ROH § 41-31.3 (1995) sets forth the penalty to be assessed against persons found in violation of ROH § 41-31.1. ⁵

A.

The "test to determine whether an ordinance conflicts with a statute is whether it prohibits what the statute permits or permits what the statute prohibits." Waikiki Resort Hotel v. City & County of Honolulu, 63 Haw. 222, 241, 624 P.2d 1353, 1366 (1981) (citations omitted). In Richardson v. City & County of Honolulu, 76 Hawai'i 46, 868 P.2d 1193, reconsideration denied, 76 Hawai'i 247, 871 P.2d 795 (1994), ⁶ the Hawai'i Supreme Court discussed the preemption of a municipal ordinance by a state statute pursuant to HRS § 46-1.5(13) (1993) ⁷ and adopted the following "comprehensive statutory scheme" test:

[A] municipal ordinance may be...