Moore v. City of Montgomery, CR-96-2378

• Decision Date: 20 March 1998
• Docket Number: CR-96-2378
• Citation: 720 So.2d 1030
• Parties: Eddie Lee MOORE v. CITY OF MONTGOMERY.
• Court: Alabama Court of Criminal Appeals

Page 1030

720 So.2d 1030

Eddie Lee MOORE v. CITY OF MONTGOMERY.

CR-96-2378.

Court of Criminal Appeals of Alabama.

March 20, 1998.

Rehearing Denied May 8, 1998.

Certiorari Denied Aug. 21, 1998

Alabama Supreme Court 1971458.

Thomas Goggans, Montgomery; James A. Tucker, Montgomery; and Shannon Holliday, Montgomery, for appellant.

N. Gunter Guy, Jr., and Marc Alan Starrett, Montgomery, for appellee.

BASCHAB, Judge.

The appellant, Eddie Lee Moore, pled guilty to a charge of operating his car radio at a level that was plainly audible at a distance of five feet, a violation of § 27-6(a), Montgomery Municipal Code. He was fined $100 and was ordered to pay court costs.

The appellant moved to dismiss the charges against him, arguing that the Montgomery noise ordinance is unconstitutionally vague and overbroad. The trial court denied the motion. The appellant reserved the right to appeal this issue, and this appeal followed.

The Montgomery noise ordinance provides:

"Scope: It shall be unlawful for any person to make, continue, or cause to be made or continued any loud or excessive noise which unreasonably interferes with the comfort, health, or safety of others within the jurisdiction of the city.

"In addition to the general prohibition set out above, the following specific acts are declared to be in violation of this article:

"Section 27-6.

"(a) It is hereby declared a nuisance and shall be unlawful to operate or play any radio, musical instrument, or similar device, whether from a motor vehicle or by a pedestrian, in such a manner as to be plainly audible to any person other than the player or operator of the device at a distance of five feet (5') in the case of a motor vehicle or ten feet (10') in the case of a pedestrian.

"(b) It is hereby declared a nuisance and shall be unlawful to operate or play any radio, television, phonograph, musical instrument, or similar device which produces or reproduces sound, whether from a business or a residence, in such a manner as to be plainly audible at a distance of fifty (50') feet to any person in a commercial, residential, multi-family dwelling, or public place.

"(c) Violation of this section shall be a violation and punishable by a fine not to exceed five hundred dollars ($500.00).

"(d) Nothing in this section shall be construed to prohibit special performances by a band or orchestra in a hall, building, or in the open air after proper permits have been obtained from the Chief of Police.

"(e) Nothing in this section shall be construed to prohibit the ringing of bells or chimes by churches within the city.

"(f) Nothing in this section shall be construed to prohibit any noises or sounds produced by radios, sirens, or other equipment attached to, or being operated by, any police, fire, rescue, or other emergency vehicles or personnel.

"(g) Nothing in this section shall be construed to prohibit the conducting of live remote broadcasts by duly licensed radio stations upon business premises, at the request of the owner of the business. Said live remote broadcasts shall be limited to daylight hours only.

"(h) Each violation shall be a separate offense."

It is well established that noise ordinances address a matter that is "well within [a] city's police power." Moore v. City of Gulf Shores, 542 So.2d 322, 323 (Ala.Cr.App.1988). However, a statute that is unduly vague, unreasonable, or overbroad violates an individual's right to due process. Id.

First, the appellant argues that § 27.6(a) of the Montgomery noise ordinance is unconstitutionally vague. "To withstand a challenge of vagueness, a statute must: 1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and, 2) provide explicit standards to those who apply the laws." Culbreath v. State, 667 So.2d 156, 158 (Ala.Cr.App.1995) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

The distance standards in the Montgomery noise ordinance define what constitutes a violation of the ordinance with sufficient detail to put a person of ordinary intelligence on notice of what conduct is prohibited. The appellant argues that the ordinance is vague because it does not distinguish what part of the music (such as bass, treble, or lyrics) must be plainly audible. Clearly, the statute prohibits any sound coming from a device that is plainly audible at the proscribed distance. The appellant also argues that the ordinance is vague because it does not specify whether the noise must be plainly audible to someone of exceptional, average, or poor hearing. However, the statute specifically provides that a violation occurs if the music is plainly audible to any person.

Furthermore, the distance standards also provide explicit guidelines to those charged with enforcing the ordinance. If a law enforcement officer can hear sounds from a musical device at the proscribed distance, then the ordinance has been violated.

Based on the foregoing, we conclude that § 27.6(a) of the Montgomery Municipal Code is not...