Tanner v. City of Va. Beach

• Decision Date: 17 April 2009
• Citation: 674 S.E.2d 848,277 Va. 432
• Court: Virginia Supreme Court

277 Va. 432

674 S.E.2d 848

BRADLEY S. TANNER, ET AL. v. CITY OF VIRGINIA BEACH

Record No. 080998

SUPREME COURT OF VIRGINIA

April 17, 2009, Decided

OPINION BY JUSTICE BARBARA MILANO KEENAN.

[277 Va. 435] [674 S.E.2d 850] OPINION BY JUSTICE BARBARA MILANO KEENAN

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

[277 Va. 436] (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 [674 S.E.2d 851] 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 [277 Va. 437] 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...