State v. Cornwell , 149 Ohio App. 3d 212 ( 2002 )

{¶ 43} I must respectfully dissent from the majority opinion herein. On June 2, 2000, appellant was cited for violating Youngstown Municipal Ordinance 539.07(b), the city's "loud music" ordinance. Appellant moved to dismiss the charge on constitutional grounds. The trial court denied the motion. On September 25, 2000, appellant entered a plea of no contest and the court found him guilty. Since this was appellant's fourth conviction for violating the ordinance, the court sentenced him to 60 days in jail and a fine of $600. The court stayed appellant's sentence pending this appeal. Appellant filed his notice of appeal on October 17, 2000.

{¶ 44} Appellant alleges a single assignment of error but makes three separate arguments in support. His assignment of error states:

{¶ 45} "The trial court erred by entering judgment against appellant since Section 539.07 of the Youngstown Municipal Ordinance is unconstitutional pursuant to the First, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution."

{¶ 46} Youngstown Municipal Ordinance 539.07(b)(1), under which appellant was convicted, states:

{¶ 47} "No person shall play any radio, music player or an audio system in a motor vehicle at such volume as to disturb the quiet, comfort or repose of other persons or at a volume which is plainly audible to persons other than the occupants of said vehicle."¹

{¶ 48} All legislative enactments enjoy a presumption of constitutionality. State v. Anderson (1991), 57 Ohio St.3d 168, 171, Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377. Furthermore, courts must apply all presumptions and pertinent rules of construction to uphold, if at all possible, a statute or ordinance alleged to be unconstitutional. State v. Sinito (1975), 43 Ohio St.2d 98, 101.

{¶ 49} Appellant's first argument in support of his claim that the ordinance is unconstitutional states:

{¶ 50} "Section 539.07 of the Youngstown City Code is void for vagueness in that it does not sufficiently describe conduct so the defendant cannot objectively determine what action violates the ordinance's provision."

{¶ 51} Appellant argues that the ordinance in question is unconstitutionally vague. Specifically he asserts that the language "plainly audible" is capable of creating substantial confusion. Appellant quotes the definitions of "plainly" and "audible" from the American Heritage Dictionary. It defines the terms as "easily understood; clearly evident; uncomplicated; straightforward" and "capable of being heard" respectively. Appellant argues that construing the ordinance in terms of these definitions, would lead one to believe that the ordinance prohibits all noise that is "plainly audible" including sirens from emergency vehicles. Appellant also argues that the ordinance provides the police with unfettered discretion in choosing whom to cite under the ordinance since it does not specifically describe the conduct prohibited.

{¶ 52} The United States Supreme Court has stated that "``* * * the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" State v. Tanner (1984), 15 Ohio St.3d 1, 3, quoting Kolender v. Lawson (1983),461 U.S. 352, 357. Tanner adopted a tripartite analysis to determine if a statute or ordinance is void for vagueness. Under the analysis, a court must consider whether the ordinance: (1) provides fair warning to the ordinary citizen so he may comport his behavior with the dictates of the ordinance; (2) precludes arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and (3) ensures that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited. Id., citing Grayned v. City of Rockford (1972), 408 U.S. 104, 108-109.

{¶ 53} An ordinance is not necessarily void for vagueness merely because it could have been worded more precisely. State v. Dorso (1983),4 Ohio St.3d 60, 61. The Constitution does not mandate a burdensome specificity. Id. at 62. As the United States Supreme Court observed in Rose v. Locke (1975), 423 U.S. 48, 49-50, the "prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ``[i]n most English words and phrases there lurk uncertainties.' Robinson v. United States [1945],324 U.S. 282, 286."

{¶ 54} A statute or ordinance need not define every word it uses. Dorso, 4 Ohio St.3d at 62. Terms that are undefined by the statute or ordinance are to be given their common, everyday meaning. Id. Webster's II New Riverside Dictionary defines "plain" as "clearly evident: easily understood." It defines "audible" as "capable of being heard."

{¶ 55} Applying the above standards and definitions to the ordinance at issue, it is apparent that the ordinance does not meet the test set out in Tanner. As to the first part of the analysis, the ordinance does not provide fair warning to ordinary citizens as to what volume on their car stereo constitutes criminal behavior. The common definitions of "plainly" and "audible" suggest that something is "plainly audible" if it is easily heard. This definition is wholly subjective. The ordinance makes no attempt to define the term "plainly audible." It contains no requirements for distance, nor any other type of standard by which noise is to be measured. Furthermore, the ordinance fails to give guidance on such details as whether words must be discernable or whether mere bass reverberations are enough. Given the language of the ordinance, a person in his or her car cannot determine what volume of music is permissible under the ordinance.

{¶ 56} Regarding the second part of the analysis, the ordinance gives officials too much authority and too few constraints. Appellant's assertion is correct that the ordinance gives police unfettered discretion to choose whom to cite. Whether an officer can clearly hear a motor vehicle's audio system outside of the vehicle turns on whom the particular officer is. What one officer considers "plainly audible" another officer may not even notice. Such discretion encourages discriminatory enforcement. Nothing in the ordinance provides officers with guidance in discerning what volume is "plainly audible." The officers would greatly benefit from a distance requirement or decibel level to determine violations of the ordinance.

{¶ 57} As to the final part of the analysis, the ordinance unreasonably inhibits fundamental, protected freedoms. The ordinance gives officers the authority to cite individuals for playing audio systems in their motor vehicles at a volume that is "plainly audible." Since "plainly audible" is unclear as to what it prohibits, it is possible that citizens will be cited for engaging in protected speech activities.

{¶ 58} Given the above reasoning, the ordinance is unconstitutionally vague. For the reasons stated above, the decision of the trial court should be reversed and appellant's conviction vacated.

{¶ 59} Based on the foregoing, I respectfully dissent.

¹ {¶ a} The ordinance was amended on February 7, 2001. Section (b) now reads:

{¶ b} "(1) No person operating or occupying a motor vehicle upon any public road, street, highway or private property shall operate or permit the operation of any sound amplification system from within the vehicle so as to disturb the quiet, comfort or repose of other persons, or at a volume that is plainly audible from outside of the vehicle.

{¶ c} "(2) ``Sound amplification system' means any radio, tape player, compact disc, loudspeaker, speaker or other electronic device used for the amplification of musical instruments or other sounds.

{¶ d} "(3) ``Plainly audible' means any sound produced by a sound amplification system from within the vehicle that can clearly be heard outside the vehicle at a distance of fifty feet or more. Measurement standards shall be by the auditory senses, based upon direct line of sight. Words or phrases need not be discernable and bass reverberations are included. The motor vehicle may be parked, stopped, standing or moving.

{¶ e} "(4) Warning and/or emergency devices used to call police or signal hazardous conditions, or other sound systems that are used in compliance with proper authorization by the City are exempted from this section."