PRESENT: All the Justices
BRADLEY S. TANNER, ET AL.
v. Record No. 080998 OPINION BY
JUSTICE BARBARA MILANO KEENAN
April 17, 2009
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge
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
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
(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
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
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
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
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
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,
, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2002); 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. QuillianFinn 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, 256 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
(2001); United States v. Harriss, 347 U.S. 612, 618 (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
applicable to a vagueness challenge involving a penal statute or ordinance. The
constitutional prohibition against vagueness derives from the requirement of
fair notice embodied in the Due Process Clause. See United States v. Williams,
553 U.S. ___, ___, 128 S.Ct. 1830, 1845 (2008); City of Chicago v. Morales,
527 U.S. 41, 56 (1999); Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). The doctrine requires that a statute or ordinance be sufficiently
precise and definite to give fair warning to an actor that contemplated conduct
is criminal. See
Kolender v. Lawson, 461 U.S. 352, 357
(1983); Grayned, 408 U.S. at 108. Thus, the language of a law is
unconstitutionally vague if persons of "common intelligence must
necessarily guess at [the] meaning [of the language] and differ as to its
application." Connally v. General Construction Co., 269 U.S. 385,
391 (1926); accord Coates v. City of Cincinnati, 402 U.S. 611, 614
(1971); Cameron v. Johnson, 390 U.S. 611, 616 (1968).
The constitutional prohibition against vagueness also protects
citizens from the arbitrary and discriminatory enforcement of laws. A vague law
invites such disparate treatment by impermissibly delegating policy
considerations "to policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application." Grayned, 408 U.S. at 108-09; see
Kolender, 461 U.S. at 357-61.
Because legislative bodies are "[c]ondemned to the use of
words," courts cannot require "mathematical certainty" in the
drafting of legislation. Grayned, 408 U.S. at 110. For this reason, an
ordinance that lacks meticulous specificity nevertheless may survive a vagueness
challenge if the ordinance as a whole makes clear what is prohibited. See id.;
Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir.
A different concern arises, however, when a vague statute
implicates citizens’ rights under the First Amendment. In such circumstances,
vague language in a statute or ordinance may cause citizens to avoid
constitutionally permissible conduct based on a fear that they may be violating
an unclear law. Thus, a vague statute may inhibit the exercise of
constitutionally protected activities. Grayned, 408 U.S. at 108-09.
In applying these principles, we first acknowledge that the
regulation of noise by a locality creates special problems regarding the
drafting and enforcement of legislation. See Nichols v. City of Gulfport,
589 So. 2d 1280, 1283 (Miss. 1991); People v. New York Trap Rock Corp.,
442 N.E.2d 1222, 1226 (N.Y. 1982). These problems arise from the nature of
sound, which invites the use of broadly stated definitions and prohibitions. Nichols,
589 So. 2d at 1283; Trap Rock, 442 N.E.2d at 1226.
The ordinance before us prohibits any "unreasonably loud,
disturbing and unnecessary noise," noise of "such character, intensity
and duration as to be detrimental to the life or health of persons of reasonable
sensitivity," or noise that "disturb[s] or annoy[s] the quiet, comfort
or repose of reasonable persons." The ordinance also describes various acts
that constitute per se violations.
We conclude that these provisions fail to give "fair
notice" to citizens as required by the Due Process Clause, because the
provisions do not contain ascertainable standards. See Thelen v. State,
526 S.E.2d 60, 62 (Ga. 2000); Nichols, 589 So. 2d at 1284. Instead, the
reach of these general descriptive terms depends in each case on the subjective
tolerances, perceptions, and sensibilities of the listener.
Noise that one person may consider "loud, disturbing and
unnecessary" may not disturb the sensibilities of another listener. As
employed in this context, such adjectives are inherently vague because they
require persons of average intelligence to guess at the meaning of those words. See
Thelen, 526 S.E.2d at 62; Lutz v. City of Indianapolis, 820 N.E.2d
766, 769 (Ind. Ct. App. 2005); Nichols, 589 So. 2d at 1283.
The references in the ordinance to "reasonable
persons," and to persons of "reasonable sensitivity," do not
provide a degree of definiteness sufficient to save the ordinance from the
present vagueness challenge. Such terms, considered in their context, delegate
to a police officer the subjective determination whether persons whom the police
officer considers to be of reasonable sensitivity would find the noise
detrimental to their life or health. Likewise, these terms leave to a police
officer the determination whether persons the police
officer considers to be reasonable would be disturbed or annoyed
in their comfort or repose by the particular noise at issue.
Determinations of this nature invite arbitrary enforcement.
Police officers likely will have differing perceptions regarding what levels of
sound exceed the described tolerance levels and sensitivities of reasonable
persons. Because these determinations required by the ordinance can only be made
by police officers on a subjective basis, we hold that the language of the
ordinance is impermissibly vague. See Grayned, 408 U.S. at 108-09; U.S.
Labor Party v. Pomerleau, 557 F.2d 410, 412 (4th Cir. 1977); Thelen,
526 S.E.2d at 62. The imposition of criminal penalties for the violation of an
ordinance cannot rest on the use of subjective standards, nor may an ordinance
consign a person to penal consequences without first providing sufficiently
definite notice of prohibited activities. See Thelen, 526 S.E.2d at 62; Nichols,
589 So. 2d at 1284.
We find no merit in the City’s argument that its use of the
term "reasonable persons" nevertheless rescues the ordinance from the
present vagueness challenge because the criminal law employs a "reasonable
person" standard in various other types of determinations. Such comparisons
are inapposite. Here, the City attempts to satisfy the notice requirement of the
Due Process Clause by using a standard that does not notify or warn citizens in
clear and definite terms what noise levels are
prohibited. In contrast, the use of a "reasonable
person" standard elsewhere in the criminal law does not attempt to provide
notice to citizens regarding the reach of a criminal statute or ordinance, but
sets a standard for a court to use in determining police compliance with certain
constitutional and other legal requirements. See, e.g., Brendlin
v. California, 551 U.S. 249, ___, 127 S.Ct. 2400, 2405-06 (2007)
("seizure" within meaning of Fourth Amendment occurs when reasonable
person would not feel free to leave); Buhrman v. Commonwealth, 275 Va.
501, 505, 659 S.E.2d 325, 327 (2008) (probable cause exists when facts and
circumstances of which police officer has "reasonably trustworthy
information . . . warrant a person of reasonable caution to believe that an
offense has been or is being committed") (quoting Taylor v. Commonwealth,
222 Va. 816, 820, 284 S.E.2d 833, 836 (1981)).
In concluding that the ordinance is vague, we do not directly
address the list of per se violations contained in the ordinance. Each of these
per se violations is defined as constituting "loud, disturbing and
unnecessary noise" and, thus, cannot be evaluated separately from those
Finally, we hold that we are unable to sever from the ordinance
the unconstitutional language that we have identified and give its remaining
language a definite and permissible construction. Instead, the vague language
unconstitutional in this opinion affects the content of the
For these reasons, we will reverse the circuit court’s
judgment and will enter final judgment for the owners declaring that the entire
ordinance is unconstitutional because it is vague.
Reversed and final judgment.
∗ In view of our holding that the
ordinance is vague, we do not reach the owners’ remaining contentions alleging
that the ordinance is overbroad and has been enforced selectively by City
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