State ex rel. City of Providence v. Auger

• Decision Date: 06 June 2012
• Docket Number: No. 2010–169–C.A.,2010–169–C.A.
• Citation: 44 A.3d 1218
• Parties: STATE ex rel. CITY OF PROVIDENCE v. Troy AUGER.
• Court: Rhode Island Supreme Court

44 A.3d 1218

STATE ex rel. CITY OF PROVIDENCE

v.Troy AUGER.

No. 2010–169–C.A.

Supreme Court of Rhode Island.

June 6, 2012.

Megan K. Maciasz, Esq., for Plaintiff.

Andrew Horowitz, Esq., for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

On February 23, 2010, a justice of the Superior Court found Troy Auger guilty of having violated Article III, § 16–93 of the Code of Ordinances of the City of Providence. On appeal to this Court, the defendant has set forth the following contentions: (1) that § 16–93 is preempted as a matter of law—both because it allegedly is in direct conflict with state statutes regulating noise and also because it allegedly invades a regulatory field that is completely occupied by the state; (2) that § 16–93 of the Providence Code of Ordinances is unconstitutional because it is impermissibly vague; and (3) that § 16–93 is unconstitutional because it is overly broad.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

ASection 16–93 of the Providence Code of Ordinances

Section 16–93 of the Providence Code of Ordinances is the provision that defendant is challenging in this case. It is entitled “Radios, television sets, and similar devices.” The body of that ordinance reads as follows:

“It shall be unlawful for any person within any residential zone of the city to use or operate any radio receiving set, musical instrument, phonograph, television set, or other machine or device for the producing or reproducing of sound in such a manner as to disturb the peace, quiet and comfort of neighborhood residents or of any reasonable person of normal sensitivity residing in the area. The operation of any such set, instrument, phonograph, machine or device so as to exceed fifty (50) dBA between the hours of 8:00 p.m. and 7:00 a.m. or so as to exceed fifty-five (55) dBA between the hours of 7:00 a.m. and 8:00 p.m. measured at the property line of the building, structure or vehicle in which it is located, or at any hour when the same is audible to a person of reasonably sensitive hearing at a distance of two hundred (200) feet from its source, shall be prima facie evidence of a violation of this section.” Section 16–93.¹

BThe Defendant's Alleged Violation and His Motion to Dismiss

On February 6, 2009, defendant filed in the Providence Municipal Court a claim of appeal to the Superior Court with respect to a ruling that had been made by the Municipal Court on January 21, 2009. In that ruling, a judge of the Municipal Court had found that defendant was guilty of a charge filed by the City of Providence, which charge alleged that defendant had violated § 16–93 as a result of the emanation of “loud music from [his] veh[icle].” The fine that was assessed for that violation was $200.

Thereafter, defendant filed in the Superior Court a motion to dismiss the alleged charge on the grounds that the ordinance was void and unenforceable as a matter of law. Specifically, defendant contended that the ordinance was unconstitutionally vague and overbroad, thereby violating both article 1, section 21 of the Rhode Island Constitution² and the First Amendmentto the United States Constitution; ³ defendant also averred that the ordinance was preempted by state statutory law.

On July 14, 2009, a hearing was held in the Superior Court on the motion to dismiss. After hearing the arguments of the parties, the hearing justice declined to dismiss the charge on the ground of preemption. The hearing justice based his rejection of the preemption argument on (1) article 13 of the Rhode Island Constitution ⁴ and (2) the hearing justice's conclusion that the ordinance was not inconsistent with state law and “that there is at least some ability under [the] General Laws * * * for cities and towns to regulate noise.”

With respect to defendant's constitutional arguments, the hearing justice opined that the ordinance was “particularly well drafted.” The hearing justice made particular note of the fact that the ordinance contains “specific components with regard to decibel levels at 200 feet.” Accordingly, the hearing justice denied the motion to dismiss.

CThe Trial

On February 9, 2010, a de novo trial was held in the Superior Court. At the outset, the trial justice noted on the record that the above-referenced motion to dismiss had been denied by a justice of the Superior Court; he further stated that “the issues raised in that motion to dismiss ha[d] become law of the case and [that he] need not reconsider those issues as part of [his] determinations * * *.”

At the de novo trial, the City of Providence called as a witness Providence Patrolman James Barros. He testified that, on Saturday May 25, 2008, at approximately 10:12 p.m., he was parked in a parking lot, which he described as being “adjacent to” Chalkstone Avenue and Aldine Street in Providence; he stated that he was in a marked patrol vehicle with the windows open. He testified that, at that point in time, he began to hear “a sound of extremely loud music approaching [his] location.” Patrolman Barros stated that he then realized that the music was coming from a moving vehicle; he further stated that he “sensed the music was too loud for the neighborhood considering the time and the location.” The patrolman testified that he pulled out from the parking lot and stopped the vehicle. Patrolman Barros then made an in-court identification of defendant as having been the driver of the vehicle. The patrolman further testified that, on the evening in question, he presented defendant with a ticket relating to his alleged violation of the noise ordinance.

Patrolman Barros testified that, on a subsequent date, he returned to the place where the alleged violation had occurred and photographed the location “from [his] vantage point.” The patrolman stated that he also measured the distance from the location where he had been parked on May 25 to the telephone poles where on that date he had observed defendant's vehicle and heard the sounds that were emanating from that vehicle. He stated that the distance from his vantage point to that telephone pole was 227 feet (227 feet being a greater distance than the ordinance's 200–foot criterion).

The City of Providence also called as a witness Kerry Anderson, the building official for the City of Providence Department of Inspections and Standards. The building official testified that the area in which the stop took place was primarily zoned R–1 and R–2—both of which zones are designated for residential development. The building official further stated that the area in which the stop took place was also partially zoned C–1; areas with that zoning designation are “intended for neighborhood commercial/residential areas that primarily serve local neighborhood needs for convenience retail, services[,] and professional office establishments.”

The defendant did not present any witnesses or other evidence on his behalf at the Superior Court trial; instead, he again moved to dismiss the case. In his motion to dismiss, defendant argued that there was a question as to “whether the [c]ity ha[d] established its proof that the alleged violation took place within a residential zone of the city.” The defendant further contended that the city had not presented any testimony to the effect that Patrolman Barros is a person of “reasonably sensitive hearing.” ⁵ In addition, defendant challenged the measurements and distance calculations that had been presented to the court. The defendant then proceeded to argue that, if the city failed to make out a prima facie case of a violation of the ordinance at issue, then “what you're left with is the broad elements” of the ordinance, which elements he summarized to be whether “the volume [being such] that it disturbed the peace, quiet and comfort of neighborhood residents.”

On February 23, 2010, the trial justice rendered his decision. He again noted that, with respect to the initial motion to dismiss (heard on July 14, 2009), he was “bound by [the] determination [of that motion to dismiss] under the doctrine of law of the case.” The trial justice stated that, as a result, he would not revisit the issues that had been raised in that initial motion to dismiss. The trial justice then held that the city had made out a prima facie violation of the ordinance in view of the fact (1) that he found that the patrolman had heard the noise at a distance of 227 feet and (2) that he “did not observe that Officer Barros' hearing was more sensitive than a reasonable person's hearing.” Accordingly, the trial justice stated that it was not necessary for him to make findings with respect to the remainder of the ordinance— i.e., whether the noise was sufficient “to disturb the peace, quiet and comfort of neighborhood residents or of any reasonable person of normal sensitivity residing in the area.” See § 16–93. Given his finding of a prima facie violation of the ordinance, the trial justice affirmed the conviction and the fine of $200.

The defendant filed a timely notice of appeal to this Court.⁶ On appeal, defendantcontends (1) that § 16–93 of the Providence Code of Ordinances is preempted as a matter of law by certain state statutes; (2) that the Providence ordinance is impermissibly vague; and (3) that the ordinance is overly broad.

IIStandard of Review

Because a municipal ordinance is at the center of this case, we note that “[w]hen interpreting an ordinance, we employ the same rules of construction that we apply when interpreting statutes.” Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I.2006); see also Pierce v. Providence Retirement Board, 15 A.3d 957, 963 (R.I.2011); Murphy v. Zoning Board of Review of South Kingstown, 959 A.2d 535, 541 (R.I.2008). And, it is a fundamental principle that this Court reviews questions of statutory interpretation in a de novo manner. See Nunes v. Meadowbrook...