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I’ve been hurt… And I appeal

To me, the Peppermint Beach Club of Virginia Beach is forever linked to the sounds of Bill Deal and the Rhondels, who revved up tunes by the Tams (such as “I’ve Been Hurt”) and helped popularize the term “beach music” in the sixties.

Nowadays the club features “hip-hop,” “punk rock,” “emo,” and “indie” music.  I know this because Justice Barbara Milano Keenan writes about it for the Supreme Court of Virginia today, giving a win to the nightspot that was repeatedly fined because the aforesaid music was judged too loud.

Virginia Beach’s noise ordinance was unconstitutionally vague, the court rules.  “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.”

The victory for noisy nightclubs surely will last only as long as it takes city leaders to pass an ordinance based on sound pressure level readings.

By Peter Vieth

3 comments

  1. According to the opinion, this was a declaratory judgment action. Since when can a citizen prospectively challenge the future enforcement of a statute by declaratory judgment? Didn’t the Afzall case make it clear that the Commonwealth (or in this case, one of it localities) is immune from such suits?

  2. For what its worth, the facts include a statement about past enforcement: “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).”

  3. Yes, it had been enforced in the past and they could have brought the Constitutional challenge in the prosecution of those offenses. But unless they can show a pattern of discriminatory enforcement (I suppose likely in this case), they don’t have standing to bring a challenge to prospective enforcement (as they could not show likelihood of a particularized harm) and even if they did, Afzall says that the Commonwealth (or one of its localities) is immune from Dec. Jud. actions becuase the court’s lack jurisdiction to impose prospective judgments on the state. Va. Beach needs to think about raising this on rehearing (and maybe hiring some attorneys who actaully think about little hings like standing and sovereign immunity).

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