Keck v. Com. ex rel. Golden, 1998-CA-000318-DG.

Decision Date19 March 1999
Docket NumberNo. 1998-CA-000318-DG.,1998-CA-000318-DG.
Citation998 S.W.2d 13
CourtKentucky Court of Appeals
PartiesCarl Amos KECK, Appellant, v. COMMONWEALTH of Kentucky, By and Through John H. GOLDEN, Bell County Attorney; A.B. Chandler III, Attorney General; and City of Middlesborough,<SMALL><SUP>1</SUP></SMALL> Kentucky, Appellees.

Bill Hayes, Eric Hayes, Middlesboro, KY, for Appellant.

Robert V. Costanzo, Middlesboro City Attorney, Middlesboro, KY, John Golden, Bell County Attorney, Pineville, KY, for Appellees.

Before GARDNER, HUDDLESTON, and JOHNSON, Judges.

OPINION

JOHNSON, Judge.

Carl A. Keck (Keck) has appealed from the judgment of the Bell Circuit Court entered on January 13, 1998, which reversed the determination of the Bell District Court that the ordinance Keck was charged with violating was unconstitutional. We reverse.

On March 31, 1997, the City of Middlesboro passed Ordinance 91.10, entitled "An Ordinance Providing for Abatement of Nuisances and Noise Control in City of Middlesborough, Ky." (hereinafter, the "noise control ordinance"), which reads in pertinent part as follows:

It shall be unlawful for any person, firm, or corporation to create or assist in creating any unreasonable loud and disturbing noise in the city. Noise of such character, intensity, and duration as to be detrimental to the public health, welfare, and peace is prohibited.

The following acts, among others, are declared to be loud and disturbing noises in violation of this section, but this enumeration shall not be deemed to be exclusive:

. . . .

(4) The use of any automobile, motorcycle, trucks of any size, or any vehicle so out of repair, so loaded, or in a manner as to create loud grating, grinding, rattling, or other noise, particularly through residential areas during daylight hours, and most particularly throughout the nighttime hours.

No vehicle used for commercial hauling shall operate between the hours of dusk to daylight if noise so generated by such vehicles shall be operated in a section zoned residential if such operation creates noise or pollution that disturbs the quiet, peace and repose of the neighborhoods.

On April 7, 1997, at 5:04 a.m., Keck, a truck driver who was proceeding to his terminal located in Arthur, Tennessee, was issued a citation by an officer of the Middlesboro Police Department for violating the noise control ordinance. Keck was driving a truck loaded with coal on Kentucky Route 74, within the city limits of Middlesboro. There is no dispute that while Route 74 goes through a residential section of Middlesboro, it is, and has been for many years, designated as a "truck route."2

Keck moved to dismiss the action against him and alleged that enforcement of the noise control ordinance was preempted by various federal statutes and by the Commerce Clause of the United States Constitution, Article 1, § 8. Keck further argued that the noise control ordinance offended the void-for-vagueness doctrine. The Bell District Court Judge, the Hon. James L. Bowling, Jr., recused himself and the matter was assigned to a special judge.3 In their joint brief, the Commonwealth of Kentucky and the City of Middlesboro (the appellees), relied upon New Hampshire Motor Transport Association v. Town of Plaistow, 67 F.3d 326 (1 st Cir.1995) (cert. denied, 517 U.S. 1120, 116 S.Ct. 1352, 134 L.Ed.2d 521 (1996)), in making their argument that the noise control ordinance did not offend any federal statutes or the Commerce Clause. On November 5, 1997, the district court dismissed the charge against Keck. In a short opinion that did not contain any legal authority, the district court determined that the noise control ordinance was unconstitutional, and thereby, unenforceable as follows:

[T]he question presented, reduced to its simplest form, is whether the City of Middlesboro can restrict by ordinance what would otherwise be the lawful use of the streets and roads within its jurisdiction by trucks which are not violating any existing state or federal statute or regulation. It is an attempt to limit the noise and disturbance caused by said trucks during the hours when people are enjoying the peace and serenity of their home environment. While this is an admirable goal, and much to be wished for by those of us[] who live in earshot of busy highways, it is not permissable [sic] unless tied to a clearly identifiable risk to public health or safety. The prosecution has attempted to make the fumes and emissions of these trucks a health issue to which the city can tie its ordinance, but federal courts have not extended this argument to such issues. This Court is not insensative [sic] to the problem the City is attempting to address. In my home jurisdiction the trucks carry logs instead of coal but are just as noisy in and around town. However, an ordinance restricting their travel during certain hours would not be constitutional here and is not in Middlesboro.

The Court finds that the ordinance under which [Keck] is charged is unconstitutional as the City of Middlesboro can not [sic] place such a restriction on commerce or otherwise forbid the lawful operation of any motorvehicle [sic] on public roads absent a showing of an articuable [sic] risk to the health and safety of its citizens which has not been shown here.

The appellees appealed to the Bell Circuit Court. In its opinion, which also did not contain any legal authority, the Bell Circuit Court reversed and set aside the judgment of the Bell District Court. The circuit court determined that "the overall purpose of the ordinance when considered as a whole clearly intended to address a problem of public safety." The circuit court, in finding no constitutional impediment to the enforcement of the ordinance, further reasoned as follows:

Such noise of the type and character, and intensity as referred to in the ordinance is clearly a condition that affects the public health, public comfort and welfare, the peaceful use of the property of the public. There is hardly an aggravation of a person's senses as sharp as noise created by the type of vehicular traffic referred to in the ordinance.

The ordinance seeks to control such activities during the time that the great majority of citizens are trying to rest and sleep.

The Court finds there's no vagueness about what the ordinance seeks to do, that is to control the traffic of this type and nature.

A city ordinance of the size of Middlesboro, Kentucky designed to protect public health and safety of all of its citizens, against all violators is clearly not preempted by Federal Law.

On April 15, 1998, this Court granted Keck's motion for discretionary review specifically for the purpose of reviewing the issues of the constitutionality of the ordinance and the doctrine of preemption.4 Because we agree with the determination reached by the Bell District Court, we reverse the decision of the Bell Circuit Court.

Keck first argues that the noise control ordinance is preempted by the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 31111, et seq. This statute was originally enacted by Congress "[i]n order to eliminate problems caused by inconsistent state regulation of highway use." A.B.F. Freight System, Inc. v. Suthard, 681 F.Supp. 334, 337 (E.D.Va.1988). See also New York State Motor Truck Association, Inc. v. City of New York, 654 F.Supp. 1521, 1524 (S.D.N.Y.1987), (STAA enacted "in response to congressional concern over conflicting state laws regarding the use of the national highway system by some commercial trucks"). The STAA contains two express preemption provisions — one preempting state limitation on the size of vehicles that can use the interstate system and the other which prohibits the states from imposing restrictions on those vehicles in obtaining "reasonable access" to the federal network of highways. It is the second preemption provision, as amended by the Tandem Truck Safety Act of 1984 (TTSA), that is applicable in this case. This provision reads as follows:

(a) Prohibition on denying access. A State may not enact or enforce a law denying to a commercial motor vehicle subject to this subchapter or subchapter I of this chapter reasonable access between —

(1) the Dwight D. Eisenhower System of Interstate and Defense Highways ... and other qualifying Federal-aid Primary System highways designated by the Secretary of Transportation; and

(2) terminals, facilities for food, fuel, repairs, and rest, and points of loading and unloading for household goods carriers, motor carriers of passengers, or any truck tractor-semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in section 31111(c) of this title.

(b) Exception. This section does not prevent a State or local government from imposing reasonable restrictions, based on safety considerations, on a truck tractor-semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in section 31111(c) of this title.

49 U.S.C. § 31114.

The proper analysis, as we see it, is whether or not the...

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    ...Corp., 950 S.W.2d 816, 820 (Ky.1997). "Congressional intent is the touchstone of all preemption analysis." Keck v. Com. ex rel. Golden, 998 S.W.2d 13, 15 fn. 4 (Ky.App.1999). The congressional purpose to preempt a state remedy may be determined in either of two ways. The first is whether th......
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    ...833 F.2d 430 (2d Cir.1987); Consolidated Freightways Corp. of Delaware, 647 F.Supp. at 1483-84; see also Keck v. Commonwealth ex rel. Golden, 998 S.W.2d 13, 16-18 (Ky.Ct.App.1999). The First Circuit, however, is the only circuit court to have fully addressed this issue, and we agree with it......
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