Tanner v. City of Virginia Beach, Record No. 080998.
| Decision Date | 17 April 2009 |
| Docket Number | Record No. 080998. |
| Citation | 674 S.E.2d 848 |
| Parties | Bradley S. TANNER, et al. v. CITY OF VIRGINIA BEACH. |
| Court | Virginia Supreme Court |
Amici Curiae: Local Government Attorneys of Virginia, Inc.; The Virginia Municipal League (Andrew R. McRoberts; Joseph L. Howard, Jr.; Mark K. Flynn, on brief), in support of appellee.
Present: All the Justices.
In this appeal, we consider whether the circuit court erred in rejecting a constitutional challenge to a municipal noise control ordinance.
Bradley S. Tanner and Eric A. Williams (collectively, the owners) own and operate BAE Ventures, Inc., t/a The Peppermint Beach Club (the club), a licensed restaurant and entertainment venue located in the 1800 block of Atlantic Avenue in the City of Virginia Beach (City). The club is located in a part of the City commonly referred to as the "oceanfront," which includes restaurants, bars, hotels, and outdoor entertainment venues.
The club, which is on the ground floor of the Howard Johnson Hotel, hosts disc jockeys and occasional "live" entertainment groups that play various types of music including "hip-hop," "punk rock," "emo," and "indie" music. The owners repeatedly have been warned by City police officers about music sound levels, and have received citations for violations of Virginia Beach City Code § 23-47 (the ordinance). The ordinance states:
It shall be unlawful for any person to create, or allow to be created any unreasonably loud, disturbing and unnecessary noise in the city or any noise of such character, intensity and duration as to be detrimental to the life or health of persons of reasonable sensitivity or to disturb or annoy the quiet, comfort or repose of reasonable persons. The following acts, among others, are declared to be loud, disturbing and unnecessary noise in violation of this section, but such enumeration shall not be deemed to be exclusive:
(1) The playing of any television set, radio, tape player, phonograph or any musical instrument in such a manner or with such volume as to annoy or disturb the quiet, comfort or repose of reasonable persons.
(2) The keeping of any animal which, by causing frequent or long-continued noise, shall disturb the quiet, comfort or repose of the neighborhood to such an extent as to constitute a nuisance.
(3) The creation of any excessive noise on any street adjacent to any school, institution of learning or court, while the same is in session, or adjacent to any building used as a place of public worship, while being so used or adjacent to any hospital, which unreasonably interferes with the workings of such school, institution or court or the services being conducted in such place of public worship or which disturbs or unduly annoys patients in such hospital.
(4) The shouting and crying of peddlers, hawkers and vendors which disturbs the peace and quiet of the neighborhood.
(5) The use of any drum, loudspeaker or other instrument or device for the purpose of attracting attention, by creation of noise, to any performance, show or sale or display of merchandise.
Virginia Beach City Code § 23-47. Any violation of the ordinance constitutes a class 4 misdemeanor. Id.
In June 2007, the owners filed a complaint seeking a declaratory judgment that the ordinance is unconstitutional on its face because it is vague, and that it is unconstitutional as applied to the club. The owners alleged that the ordinance is vague because it fails to provide citizens with "fair notice" regarding what conduct is unlawful, and because the ordinance language invites selective prosecution by granting law enforcement officials the "unfettered individual discretion" to make enforcement decisions. The owners separately alleged that City police officers have applied and enforced the ordinance against the owners "in a subjective and selective manner."
In response to the owners' complaint, the City filed a demurrer, which the circuit court sustained in part based on its previous determination that the ordinance was constitutional on its face. Relying on that prior decision, the circuit court held, among other things, that the ordinance is not vague, and dismissed the owners' facial constitutional challenge with prejudice.
The case proceeded to trial on the issue of the City's application of the ordinance to the sound levels generated by the club's music. Certain City police officers testified that the City used two enforcement standards in evaluating noise emanating from oceanfront business establishments. The first standard used was the "reasonable person" standard provided for by the ordinance. The second standard employed was an "across the street" assessment established by Police Captain Anthony F. Zucaro.
Addressing the "reasonable person" standard, Captain Zucaro testified that police officers determine whether noise is "unreasonably loud, disturbing and unnecessary" by employing the officers' "[b]ackground, experience, knowledge of the dynamics of the moment, listening, [and] witnessing." Officers Albert L. Mills, Christopher D. D'Orio, and Steven J. Kennedy testified that officers usually exercise their discretion whether to issue a citation for violation of the ordinance. These officers generally conceded that "reasonableness" is a standard that depends on an individual officer's assessment and on environmental factors such as the weather, the volume of ambient noise, and the time of day.
In 2007, Zucaro issued a letter that was distributed to oceanfront business owners in an effort to achieve voluntary compliance with the ordinance. The letter informed the business owners that police officers would take enforcement action if "[t]he intensity of the noise emanating from an establishment is at such a level it can be definitively linked to that particular establishment from across the street or a distance equal to that measurement despite the presence of other ambient noise levels."
Several police officers testified regarding incidents in which noise emanating from the club resulted in the issuance of citations to the owners. Relying on this and other evidence, the circuit court determined that the evidence "unequivocally establishe[d] that the enforcement of the noise ordinance is selective and uneven." However, the circuit court held that because the owners failed to prove that this selective enforcement was motivated by a discriminatory purpose, the club's constitutional challenge to the City's application of the ordinance failed. The owners appealed from the circuit court's judgment.
On appeal, the owners first argue that the circuit court erred in rejecting their facial constitutional challenge to the ordinance. They contend that the ordinance is vague and, thus, is unconstitutional on its face because business owners must engage in guesswork to determine whether certain sound levels violate the ordinance. The owners further assert that several terms in the ordinance, including the terms "unnecessary," "loud," "disturbing," "character," and "intensity," are purely subjective and do not establish clear standards that permit uniform enforcement.
In response, the City argues that the ordinance clearly articulates an objective, "reasonable person" standard that is well established and is sufficiently definite to permit persons to conform their conduct to the law. The City concedes that the terms of the ordinance are not quantitatively precise, but argues that such a level of precision is not required to survive a vagueness challenge. The City contends that only a flexible standard such as the one prescribed by the ordinance can fairly define criminal conduct related to the "wide swath of settings and circumstances" involved when assessing noise levels.
The City further argues that the term "unnecessary" does not render the ordinance vague because the ordinance requires that noise be unreasonably loud, disturbing, and unnecessary before a criminal citation can issue. The City contends that instead of rendering the ordinance vague, the term "unnecessary" narrows the category of noise that constitutes a criminal violation and provides added protection to potential offenders. However, the City further maintains that if this Court disagrees, it should sever any offending language rather than invalidate the entire ordinance. We disagree with the City's arguments.
Our review of the ordinance begins with the principle that that duly enacted laws are presumed to be constitutional. Marshall v. Northern Virginia Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008); In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003); Yamaha Motor Corp., U.S.A. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2002); Finn v. Virginia Retirement System, 259 Va. 144, 153, 524 S.E.2d 125, 130 (2000). We are required to resolve any reasonable doubt concerning the constitutionality of a law in favor of its validity. In re Phillips, 265 Va. at 85-86, 574 S.E.2d at 272; Finn, 259 Va. at 153, 524 S.E.2d at 130; Walton v. Commonwealth, 255 Va. 422, 427, 497 S.E.2d 869, 872 (1998). Thus, if a statute or ordinance can be construed reasonably in a manner that will render its terms definite and sufficient, such an interpretation is required. See INS v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Pedersen v. City of Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979).
In this context, we consider the constitutional principles...
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