People v. Toback

• Decision Date: 17 December 1996
• Citation: 170 Misc.2d 1011,652 N.Y.S.2d 946
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Jack TOBACK, Defendant.
• Court: New York City Court

Page 946

652 N.Y.S.2d 946

170 Misc.2d 1011

The PEOPLE of the State of New York, Plaintiff, v. Jack TOBACK, Defendant.

City Court of Long Beach, Nassau County.

Dec. 17, 1996.

Migliore & Infranco, P.C., Commack (Rudolph F.X. Migliore, of counsel), and Clifton Budd & DeMaria, L.L.P., New York City (Kevin J. McGill, of counsel), for defendant.

Joel K. Asarch, Corporation Counsel of Long Beach (Corey E. Klein, of counsel), for plaintiff.

ROY TEPPER, Judge.

Defendant is charged with sixteen (16) violations of Chapter 16 of the City of Long Beach Code of Ordinances (Noise Code). Defendant has moved for dismissal of the informations/complaints pursuant to CPL Sections 170.30(1)(a) and 170.35(1)(c) upon the grounds that the statute is unconstitutional on its face and in its application. Defendant also moves for dismissal pursuant to CPL 170.40 in the interests of justice. The motion is decided as follows.

The Noise Code prohibits, among other things, the use of amplified sound in both Ocean Beach Park and residential areas at a level greater than 65 decibels, unless otherwise exempted by Section 11 of the code. Section 11 exempts various forms of noise from the Noise Code, including "noise generated by municipally sponsored concerts and events designed to promote the health, safety or welfare of the citizens of Long Beach." It was in the interests of protecting its citizens from excessive noise that the City of Long Beach enacted the Noise Code.

Constitutional Challenges

There is a strong presumption that a statute duly enacted is valid. McKinney's Cons.Laws of N.Y., Book 1, Statutes § 150, at 311; People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 488, 253 N.E.2d 202, 206 (1969). While this presumption is rebuttable, unconstitutionality must be demonstrated, beyond a reasonable doubt, and only as a last resort should courts strike down legislation on the ground of unconstitutionality. Lighthouse Shores, Inc. v. Town of Islip, 41 N.Y.2d 7, 11, 390 N.Y.S.2d 827, 830, 359 N.E.2d 337, 340 (1976); Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539. Thus, as to reasonableness, defendant in order to succeed has the burden of showing that "no reasonable basis at all" existed for the challenged portions of the ordinance. Lighthouse Shores, Inc., supra, at 12, 390 N.Y.S.2d 827, 359 N.E.2d 337; I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822.

1. Time, Place, or Manner Restrictions

The Supreme Court has made it clear that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech. The Court has provided a three-pronged test which a government regulation must meet when restricting First Amendment protected speech in a public forum. In order for a regulation to be a valid time, place, or manner restriction of protected speech the regulation must be: (1) content neutral; (2) narrowly tailored; and (3) leave open alternative channels. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068-69, 82 L.Ed.2d 221 (1984).

The principal inquiry in determining content neutrality, in speech cases, generally, and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of a disagreement with the message it conveys. Community for Creative Non-Violence, supra, at 295, 104 S.Ct. at 3069-70. The Noise Code places a limitation on the loudness of the speech and in no way distinguishes its content. As a means to achieve its legitimate goal of noise abatement, the City enacted a plan that is content neutral. "[A] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Carew-Reid v. Metropolitan Transportation Authority, 903 F.2d 914, 916 (1990); Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). A decibel meter, by definition, is content neutral. It merely measures the volume of noise, not content. Furthermore, by codifying and articulating specific decibel levels and the locations from where to take these measurements, the noise ordinance in no way allows for arbitrary or discriminatory enforcement. Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (1983). Likewise, "the fact that an exception is made to allow [municipality] sponsored events to take place in an otherwise problematic location and at a higher volume does not indicate the regulation is content-based." Turley v. New York City Police Department, 93 Civ. 8748, 1996 WL 93726, 1996 U.S.Dist. LEXIS 2582 (Southern Dist. of N.Y., Decided March 5, 1996, Schwartz, J.).

While a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate interests, it need not be the least restrictive or least intrusive means of doing so. Rock Against Racism, supra, at 798, 109 S.Ct. at 2757-58. Rather, the requirement of narrow tailoring is satisfied "so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906-07, 86 L.Ed.2d 536 (1985). The harm the City of Long Beach wants to eliminate is merely the intrusiveness of loud noise, not the message of the defendant.

There is no question that the regulation of activity, especially the regulation of sound and noise, in public areas is an important function of city government. Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 453-54, 93 L.Ed. 513 (1949); see also Turley, supra. The object of the decibel level limit in Ocean Beach Park is to maintain peace and order and promote public safety. The City of Long Beach has a substantial interest in protecting its citizens from noise.

The defendant argues that the 65 decibel limit in Ocean Beach Park burdens more speech than necessary. But, arguments for alternative regulatory methods, such as a higher decibel level, are nothing more than a disagreement with the legislature as to acceptable levels of noise:

"the validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or the degree to which those interests should be promoted. Rock Against Racism, supra, 491 U.S. at 800, 109 S.Ct. at 2758.

The Legislature's determination that 65 decibels is a valid and reasonable level that welcomes free speech, without interfering with the rights of others, is a valid exercise of its legislative responsibility.

The final requirement for the time, place, or manner restriction of protected speech is that the restriction leave open ample alternative channels of communication. Clearly, in the case at bar, alternative channels exist to transmit the defendant's message. The Noise Code permits expressive activity in Ocean Beach Park provided that such activity maintains a reasonable decibel level. "That the city's limitations on volume may reduce to some degree the potential audience for [defendant's] speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate." Rock Against Racism, supra, at 802-803, 109 S.Ct. at 2760; see City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803, 104 S.Ct. 2118, 2127-28, 80 L.Ed.2d 772 (1984). Therefore, this Court finds the Noise Code is a valid time, place, or manner restriction.

2. Vagueness

In order to establish that a law is vague within the Due Process Clause, one "must demonstrate that the law is impermissibly vague in all of...