Opinion
No. COA05-1397.
Filed December 5, 2006.
Nuisance — noise ordinance — constitutionality — prior restraints on free speech
The trial court erred by concluding that a county noise ordinance was not void, and defendants' convictions are vacated, because: (1) even though the ordinance prohibits sound amplification only at certain levels and at certain times and was thus not unconstitutionally overbroad, the ordinance improperly left exemption from the ordinance in the sole unguided and unregulated discretion of the county commissioners; (2) the county was allowed to issue special event permits in its discretion with no articulated standards, acting as an arbitrary prior restraint on free speech; (3) although defendants appeal from their criminal convictions for violating the ordinance and not from the denial of their request for a special use permit, when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license; and (4) once a defendant faces prosecution under an ordinance, he is entitled to defend himself by raising the constitutionality of the ordinance.
Judge TYSON concurring in part and dissenting in part.
Appeal by defendants from judgments entered 13 January 2005 by Judge Thomas D. Haigwood in the Superior Court in Beaufort County. Heard in the Court of Appeals 15 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General Barry H. Block, for the State. Jeffrey S. Miller, for defendant-appellants.
A jury convicted defendant Cynthia Perez on twelve counts of violating the Beaufort County noise ordinance, and defendant Desperados, Inc., of violating the same statute on four occasions. All violations occurred between 10 May 2003 and 15 February 2004. The court sentenced Perez to thirty days in prison, suspended, supervised probation for twenty-four months, a fine of $500 and a split sentence of seven days in custody on one of the counts, and thirty days in prison, suspended, supervised probation for twenty-four months, and a fine of $500 on each of the other ten counts. Desperados received a $500 fine for each of the charges against it. Defendants appeal. As discussed below, we vacate these convictions.
The evidence tended to show the following: Perez is president of corporate defendant Desperados, Inc., which operates a nightclub in Beaufort County. The club, known as Desperados, plays music on many Friday nights and all Saturday nights, often showcasing live bands. C.L. Summerlin, who owns a trailer park and residence approximately 200 to 300 yards from the club, was the source of almost all of the complaints about excessive noise from the club. Several tenants of the trailer park testified that noise from the club had disturbed them, but other park residents testified that they had never heard any noise coming from Desperados. Deputy sheriff Keith Owens and other officers testified that they had measured sound levels at the club and issued citations when the levels violated the county noise ordinance.
Defendants first argue that the ordinance is void because it is overbroad. We do not agree.
On 7 April 2003, the Beaufort County Commissioners adopted a noise ordinance, which in pertinent part prohibits sound amplification, defined as:
Operate or allow operation of any sound amplification equipment so as to create sound levels exceeding 55 DBA or 65 dBC between 9:00 a.m. and 9:00 p.m. or exceeding 50 DBA or 60 dBC between 9:00 p.m. and 9:00 a.m., as measured anywhere outside of the boundary line pf the person or persons making, permitting or causing such noise. The foregoing limitations on the operation of sound amplification equipment shall not apply to special event permit issued by the County of Beaufort, the operation of horns, sirens, or other emergency warning devices actually being used in emergency circumstances, [sic]
The parties stipulated that Perez sought a special event permit from the county commission but was denied. The record reflects nothing about the grounds for the denial.
As this Court has noted:
Noise ordinances present a great deal of problems in drafting and enforcing them because "the nature of sound makes resort to broadly stated definitions and prohibitions not only common but difficult to avoid." People v. New York Trap Rock Corp., 57 N.Y.2d 371, 442 N.E.2d 1222, 1226, 456 N.Y.S.2d 711 (N.Y. 1982). A court may forbid enforcement of a noise statute or ordinance for over-breadth where it "reaches more broadly than is reasonably necessary to protect legitimate state interests" "at the expense of First Amendment freedoms." Reeves v. McConn, 631 F.2d 377, 383 (1980), reh'g denied, 638 F.2d 762 (5th Cir. 1981).
State v. Garren, 117 N.C. App. 393, 395-6, 451 S.E.2d 315, 317 (1994). This Court went on to quote Reeves:
When the city fears disruption, it may prohibit conduct that actually causes, or imminently threatens to cause, material and substantial disruption of the community or invasion of the rights of others. Or the city may reasonably prohibit kinds or degrees of sound amplification that are clearly incompatible with the normal activity of certain locations at certain times. But the city may not broadly prohibit reasonably amplified speech merely because of an undifferentiated fear that disruption might sometimes result. When First Amendment freedoms are involved, the city may protect its legitimate interests only with precision.
Reeves, 631 F.2d at 388. "Music, be it singing, from the radio, played on a phonograph, etc., falls within these protected freedoms." Garren, 117 N.C. App. At 396, 451 S.E.2d at 317. In Garren, we held over-broad a noise ordinance that sought "to ban any singing, yelling, or the playing of any radio, amplifier, musical instrument, phonograph, loudspeakers, or other device producing sound regardless of their level of sound or actual impact on a person." Id. The State argues first that the sound here was not music, but simply noise; the record reflects otherwise and we reject this contention. Here, by contrast with Garren, the ordinance is much narrower, prohibiting sound amplification only at certain levels and at certain times, and thus the ordinance is not over-broad.
Defendants also argue that while sound amplification may be regulated, the ordinance here improperly leaves exemption from the ordinance in the sole unguided and unregulated discretion of the county commissioners. Defendants contend that this ordinance is unconstitutional because it allows the "the County" to issue special event permits in its discretion with no articulated standards, acting as an arbitrary prior restraint on free speech. We agree.
In Saia v. New York, 334 U.S. 558, 92 L. Ed. 1574 (1948), the United States Supreme Court considered the constitutionality of an ordinance that forbade "the use of sound amplification devices except with permission of the Chief of Police." Id. at 558, 92 L. Ed. at 1576. The plaintiff, a minister, was first granted a permit to use a loudspeaker in a public park, but later denied an additional permit after complaints by citizens. Id. at 559, 92 L. Ed. at 1577. The Court in Saia held the ordinance unconstitutional on its face because:
To use a loud-speaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion. The statute is not narrowly drawn to regulate the hours or places of use of loudspeakers, or the volume of sound (the decibels) to which they must be adjusted.
Id. at 560, 92 L. Ed. at 1577. This Court has recently summarized the law regarding prior restraints on free speech:
"A licensing [scheme] placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757, 100 L. Ed. 2d 771, 782, 108 S. Ct. 2138 (1988). "Unbridled discretion naturally exists when a licensing scheme does not impose adequate standards to guide the licensor's discretion." [ Chesapeake B M v. Harford County, 58 F.3d 1005, 1009 (4th Cir. 1995).] There is a significant distinction between "exercising discretion by passing judgment on the content of any protected speech" and "reviewing the general qualifications of each license applicant"; the latter is "a ministerial action that is not presumptively invalid." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 107 L. Ed. 2d 603, 621, 110 S. Ct. 596 (1990) (plurality opinion). In addition, a licensing scheme must not only require a timely decision by the licensing authority but also must "assure a prompt final judicial decision to immunize the deterrent effect of an interim and possibly erroneous denial of a license." Freedman v. Maryland, 380 U.S. 51, 58-59, 13 L. Ed. 2d 649, 654-55, 85 S. Ct. 734 (1965).
Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 616-17, 592 S.E.2d 205, 214 (2004). Both parties cite State v. Wiggins in support of their positions, specifically the following language, discussing a statute that passed constitutional muster:
It is universal in its application. Anyone who does that which is prohibited by the statute is subject to its penalty. It does not confer upon an administrative official the authority to issue, in his discretion, permits to disturb public schools and, therefore, does not invite or permit that type of administrative discrimination against the disseminators of unpopular ideas which was condemned in Saia. . . .
State v. Wiggins, 272 N.C. 147, 158, 158 S.E.2d 37, 45 (1967).
Here, as discussed above, the ordinance is narrowly drawn, but constitutionally flawed in that it allows the County to exercise its discretion to issue a complete exemption in the form of a special events permit, while prescribing no standards for the exercise of that discretion. The record and briefs reveal nothing about the process by which the commissioners grant or deny special events permits, and thus we cannot say that the decision is made without unbridled discretion. This ordinance presents the same problem as the ordinance in Saia, and as discussed in Wiggins, supra, by conferring authority on public officials to issue permits in their unguided discretion. As such, the paragraph of the ordinance establishing prohibitions and exemptions is an impermissible prior restraint, which violates the First Amendment of the United States Constitution. Because the paragraph of the ordinance under which these defendants were convicted is unconstitutional, it cannot be the basis for their convictions, which we hereby vacate.
The dissent suggests that defendants cannot appeal the constitutionality of the ordinance due to the unbridled discretion granted in the special use permit process because defendants appeal from their criminal convictions for violating the ordinance rather than from the denial of their request for a special use permit. This conclusion is at odds with United States Supreme Court case law. "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756-57, 100 L. Ed. 2d 771, 782, 108 S. Ct. 2138 (1988). In addition, once a defendant faces prosecution pursuant to an ordinance, he is entitled to defend himself by raising the constitutionality of that ordinance, as explained by the Court in a case examining the constitutionality of an anti-picketing ordinance:
The cases when interpreted in the light of their facts indicate that the rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations. Rather it derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor against which John Milton directed his assault by his `Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it.
Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736, 741-42 (1940) (internal citation omitted) (emphasis supplied). Similarly, in Lovell v. Griffin, the Court concluded that since the ordinance at issue was "void on its face, it was not necessary for appellant to seek a permit under it. . . . [but she] was entitled to contest its validity in answer to the [criminal] charge against her." 303 U.S. 444, 452-53, 82 L. Ed. 949, 954 (1938).
Because of this conclusion, we need not address defendants' other assignments of error.
Vacated.
Judge WYNN concurs.
Judge TYSON concurs in part, dissents in part by separate opinion.