Tanner v. City of Virginia Beach

Citations: 674 S.E.2d 848; 277 Va. 432; 2009 Va. LEXIS 55Docket: 080998

Court: Supreme Court of Virginia; April 17, 2009; Virginia; State Supreme Court

Original Court Document: View Document

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The case involves an appeal concerning a municipal noise control ordinance in Virginia Beach, specifically the constitutionality of Virginia Beach City Code, § 23-47. Bradley S. Tanner and Eric A. Williams, owners of The Peppermint Beach Club, challenged the ordinance after receiving multiple warnings and citations for music sound levels at their establishment, which features various live entertainment. The ordinance prohibits unreasonably loud noise that disturbs the peace, with specific examples provided, and violations are classified as class 4 misdemeanors.

In June 2007, the owners filed a complaint asserting that the ordinance is unconstitutional due to vagueness, arguing it does not give citizens fair notice of unlawful conduct and allows for arbitrary enforcement by law enforcement officials. They further claimed that the ordinance was enforced against them in a selective manner. The City responded with a demurrer, which the circuit court partially upheld, finding the ordinance constitutional on its face and dismissing the owners’ facial challenge with prejudice. The case then proceeded to trial, focusing on how the ordinance was applied to the sound levels from the club.

City police officers testified about the enforcement of noise ordinances for oceanfront businesses, utilizing two evaluation standards: the 'reasonable person' standard from the ordinance and a distance-based assessment established by Police Captain Anthony F. Zucaro. Under the 'reasonable person' standard, officers assess noise based on their experience and situational factors, such as ambient noise and time of day. Officers Mills, D’Orio, and Kennedy indicated that enforcing the ordinance often involves subjective discretion. In 2007, Zucaro sent a letter to business owners clarifying that enforcement would occur if noise could be linked to a business from across the street, regardless of other ambient sounds. The circuit court found that the enforcement of the noise ordinance was selective and uneven but ruled against the club owners’ constitutional challenge, as they failed to demonstrate discriminatory intent behind this enforcement.

On appeal, the owners contended that the ordinance was unconstitutionally vague, requiring them to guess whether their noise levels violated the law. They criticized subjective terms in the ordinance like 'unnecessary,' 'loud,' and 'disturbing,' arguing these lack clear standards for uniform enforcement. The City countered that the ordinance provides a clear 'reasonable person' standard and that some flexibility is necessary to account for varied circumstances in noise assessment. The City argued that the term 'unnecessary' actually narrows the definition of criminal noise and offers protection to offenders. The City also suggested that if any parts of the ordinance were deemed vague, only those sections should be severed rather than invalidating the entire ordinance. The reviewing court begins with the presumption of the constitutionality of duly enacted laws.

In Marshall v. Northern Virginia Transportation Authority, the court emphasizes the principle that any reasonable doubt regarding a law's constitutionality should be resolved in favor of its validity. If a statute can be interpreted in a way that clarifies its terms, such interpretation is necessary. The court addresses the constitutional concerns of vagueness, which require laws to provide fair notice of what conduct is criminal, as mandated by the Due Process Clause. A law is deemed unconstitutionally vague if individuals of common intelligence must guess its meaning or application, leading to arbitrary enforcement. While laws cannot achieve mathematical precision, they must still clearly articulate prohibited conduct. The text highlights that vague laws can deter individuals from exercising their First Amendment rights due to fear of violating unclear regulations. Noise regulation poses unique challenges in legislation drafting and enforcement due to the subjective nature of sound. The ordinance in question prohibits "unreasonably loud, disturbing and unnecessary noise," as well as noise detrimental to the health of sensitive individuals or that disturbs the peace of reasonable persons.

The ordinance's provisions defining per se violations fail to meet the 'fair notice' requirement of the Due Process Clause due to the lack of clear, ascertainable standards. The vague terminology, such as 'loud, disturbing and unnecessary,' is subjective and dependent on individual perceptions, leading to arbitrary enforcement by police officers. The references to 'reasonable persons' do not adequately clarify the standards for determining noise violations, allowing for inconsistent interpretations. As a result, the ordinance cannot impose criminal penalties based on such subjective criteria, as it does not provide citizens with clear warnings regarding prohibited noise levels. The court finds that the vague language permeates the entire ordinance, rendering it unconstitutional. Consequently, the circuit court's judgment is reversed, and final judgment is entered declaring the ordinance unconstitutional. The court does not address the additional claims of overbreadth and selective enforcement raised by the owners.