Virginia Lawyers Weekly

The Supreme Court of Virginia has struck the noise ordinance in Virginia Beach as unconstitutional in a closely watched case involving a club on the Oceanfront.

The Peppermint Beach Club, a nightspot that features a variety of music – hip-hop, heavy metal and emo – challenged the city’s ordinance, but it lost at the circuit court level. The club won a unanimous reversal April 17 in Tanner v. City of Virginia Beach (VLW 009-6-044).

The high court said Virginia localities must look to something other than the sensibilities of a “reasonable” person to regulate noise and rejected that language in the Beach ordinance as “vague.”

That ruling will require many local governments to rethink and rework their noise ordinances, according to Deputy Virginia Beach City Attorney Christopher S. Boynton.

Those localities were following Tanner closely because they have similar ordinances, Boynton said.

“I think it’s a significant case that’s gong to affect a lot of Virginia counties,” said Andrew R. McRoberts, the Goochland county attorney and the principal draftsman of an amicus brief filed on behalf of Virginia Municipal League and Local Government Attorneys of Virginia Inc.

Noise ordinances are “very difficult to write and they’re very difficult to enforce,” McRoberts said.

He noted that Kevin E. Martingayle, the attorney for the plaintiffs in Tanner, warned that “catchall” phrases in noise ordinances create problems even when they have more objective standards, such as decibel levels.

“If you listen to some of those folks, there’s no way to draft an ordinance,” McRoberts said.

The problems notwithstanding, “We’ll certainly come up with an ordinance that will pass constitutional muster,” Boynton said, although it will be difficult to draft one that will work uniformly in a locality as diverse as Virginia Beach.

The sprawling city has tourist-oriented areas such as its Oceanfront, a business district, traditional suburbs and even rural areas.

It also sponsors fireworks displays, concerts and other outdoor activities of its own. And then there’s the “sound of freedom,” as residents call the ear-splitting roar of jets from the Oceana Naval Air Station, which is inside the city limits barely two miles from the Oceanfront.

It was the effort to control noise at The Peppermint Beach Club in the 1800 block of Atlantic Avenue on the Oceanfront that brought the issue to the Supreme Court.

Martingayle, the attorney for the club’s owners, alleged that police “were down there every day harassing The Peppermint,” to the point of threatening to arrest an owner unless he turned down the noise – even though the maximum penalty for violating the ordinance is a $250 fine.

What the owners viewed as harassment occurred despite the absence of complaints by patrons, neighbors or guests of the hotel where the club is located.

Martingayle contends that it was the type of music, “hip-hop” played by a disc jockey or occasionally by a live band, rather than its volume that generated the attention of law enforcement.

He finally filed a declaratory judgment action in June 2007, a month after a police captain sent a letter to Oceanfront business owners that they faced prosecution if an officer could “definitively link” noise to an establishment “from across the street or a distance equal to that measurement despite the presence of other ambient noise levels.”

Martingayle contended that the ordinance was unconstitutionally vague because it failed to provide fair notice of what conduct was unlawful and because enforcement was left to the “unfettered individual discretion” of police.

The ordinance was based largely on reasonableness with little in the way of objective criteria to further define the concept, such as a measurable noise level, Martingayle contended.

He alleged that the ordinance was unconstitutional on its face and as applied by the selective enforcement of police officers.
Virginia Beach Circuit Judge A. Joseph Canada found that Martingayle “unequivocally establishe[d] that the enforcement of the noise ordinance is selective and uneven.”

But he ruled in favor of the city because the club owners failed to prove that the selective enforcement was motivated by a discriminatory purpose.

Writing for a unanimous court, Justice Barbara Milano Keenan found the ordinance was facially unconstitutional and did not reach the issue of selective enforcement.

Although Keenan did not rely on the selective enforcement Canada found in striking down the ordinance, Martingayle and Boynton agreed that the finding might well have strengthened the argument for facial invalidity.

Keenan acknowledged the difficulty of regulating noise because of “the nature of sound, which invites the use of broadly stated definitions and prohibitions.”

But the definitions in the ordinance “fail to give ‘fair notice’ to citizens as required by the Due Process Clause, because the provisions do not contain ascertainable standards. Instead, the reach of these general descriptive terms depends in each case on the subjective tolerances, perceptions, and sensibilities of the listener.

“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,” she concluded.

Although Keenan did not address the point in her opinion, Martingayle emphasized in his brief and at oral argument that many localities in the state have more objective ordinances that often start with decibel measurements and make distinctions between time of day and zoning districts.

Moreover, Virginia Beach had established by contract with the management of Verizon Wireless Virginia Beach Amphitheater the decibel levels, time restrictions and neighborhood consultation that gave everyone fair notice of what was expected, Martingayle argued.

He said those arguments undercut the predictions of dire consequences from overturning the ordinance presented by the city and by McRoberts.

Ordinances from other localities and court cases going back more than 30 years show that objective standards for controlling noise are not hard, expensive or new, Martingayle said.

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