951 N.E.2d 493 (Ohio Mun. 2011), 2010 CRB 35500, City of Cleveland v. Watts

Docket Nº:2010 CRB 35500.
Citation:951 N.E.2d 493, 164 Ohio Misc.2d 25, 2011-Ohio-3606
Opinion Judge:GROVES, Judge.
Party Name:CITY OF CLEVELAND, v. WATTS.
Attorney:Lorraine Coyne, Assistant Prosecuting Attorney, for plaintiff. Clark D. Rice, Cleveland, for defendant.
Case Date:February 24, 2011
Court:Municipal Court of Ohio
 
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Page 493

951 N.E.2d 493 (Ohio Mun. 2011)

164 Ohio Misc.2d 25, 2011-Ohio-3606

CITY OF CLEVELAND,

v.

WATTS.

No. 2010 CRB 35500.

Cleveland Municipal Court, Ohio.

February 24, 2011

Page 494

[Copyrighted Material Omitted]

Page 495

Lorraine Coyne, Assistant Prosecuting Attorney, for plaintiff.

Clark D. Rice, Cleveland, for defendant.

GROVES, Judge.

[164 Ohio Misc.2d 27] {¶ 1} Defendant, Andrew Watts, is the manager of the Velvet Dog. The Velvet Dog is a restaurant and night club in the Warehouse District. It has a rooftop deck where music is played in the summer and fall seasons. The Warehouse District is a mixed zoning area for both businesses and residential housing. On September 5, 2010, at approximately 1:30 a.m., defendant was cited for violation of Cleveland Codified Ordinance (" CCO" ) 683.01(a), Playing of Sound Devices Prohibited, which reads:

(a) No person shall play any radio, music player, television, audio system or musical instrument in such a manner or at such volume as to annoy or disturb the quiet, comfort or repose of neighboring inhabitants or at a volume which is plainly audible to persons other than those who are in the room in which such device or instrument is played and who are voluntary listeners hereto.

{¶ 2} Two weeks prior to the issuance of the citation, Cleveland Police Commander Calvin Williams talked to defendant about the music level at the Velvet Dog. Before, Commander Williams had not issued any citations for noise violations to the Velvet Dog. The police commander advised defendant that the music was too loud. The commander and defendant went to the music booth. They had the disc jockey turn the volume to 50 percent. Both the commander and defendant agreed that the 50 percent level was an acceptable volume. On September 5, 2010, the commander could hear the music emanating from the Velvet Dog on the entire street. Consequently, defendant was issued a noise-violation citation. On October 5, 2010, defendant filed a motion to dismiss the complaint against him. Defendant argues that (1) CCO 683.01(a) is unconstitutional as it is void for vagueness, (2) the music at a dance club in an entertainment district is constitutionally protected free speech, and (3) inconsistent application of the ordinance against defendant was unfairly prejudicial.

{¶ 3} First, defendant alleges that CCO 683.01(a) is unconstitutional for being vague. CCO 683.01 sets forth two prohibited levels when playing sound devises. First, a person is prohibited from playing music at a level that annoys or disturbs the quiet, comfort, or repose of neighboring habitants. The second prohibited level is playing music that is plainly audible to persons other than [164 Ohio Misc.2d 28] those who are in the room where the device or instrument is played and who are voluntary listeners thereto. Defendant has challenged the constitutionality of only the first prong, which prohibits playing music at a level that disturbs others. Defendant has not challenged the second prong. The constitutionality of a statute may be decided only when the issue is raised by either party or the record establishes a legal basis for summarily declaring the statute unconstitutional by the trial court.1 Because defendant failed to challenge the prohibition against playing music at a level that can be heard outside the room it is being played, this court will not review that prohibition. Hereinafter, reference to

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CCO 683.01(a) shall be to the first part of the ordinance only.

{¶ 4} Constitutional questions should not be decided until the necessity for a decision arises on the record before the court.2 Defendant has challenged the constitutionality of CCO 683.01(a) for being void for vagueness. It is a settled rule that the presumption is in favor of the validity of the law, in determining whether an act of the legislature is or is not in conflict with the United States or state constitutions.3 Given this presumption, it is difficult to declare a statute unconstitutional. 4 Before a court may declare an enactment of the legislative branch unconstitutional, it must appear beyond a reasonable doubt that the legislation and unconstitutional provisions are clearly incompatible.5

{¶ 5} A void-for-vagueness challenge is premised on the Fourteenth Amendment to the United States Constitution due process requirement that a law must specify the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.6

[164 Ohio Misc.2d 29] {¶ 6} The ordinance in question prohibits music levels that annoy or disturb the quiet, comfort, or repose of neighboring inhabitants. The United States Court of Appeals for the Sixth District reviewed the constitutionality of CCO 683.01(a) in Gaughan v. Cleveland, 7 and CCO 683.01(a) was upheld as constitutional.8 Federal court decisions are not binding upon a state court, but they are instructive 9 and persuasive 10 and can be an aid.11 Additionally, decisions from the Federal Court of Appeals are entitled to due consideration and respect.12 In short, Gaughan cannot be disregarded and must be considered seriously.

{¶ 7} In Gaughan, the court adopted the standard of review for interpreting a state statute...

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