Julia Souter v. County of Warren ( 2011 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Powell, Alston and Senior Judge Annunziata
    Argued at Alexandria, Virginia
    JULIA SOUTER
    MEMORANDUM OPINION * BY
    v.     Record No. 0120-10-4                                      JUDGE CLEO E. POWELL
    FEBRUARY 1, 2011
    COUNTY OF WARREN
    FROM THE CIRCUIT COURT OF WARREN COUNTY
    Dennis L. Hupp, Judge
    Kathleen M. Griffin, Senior Assistant Public Defender (Office of
    the Public Defender, on brief), for appellant.
    No brief or argument for appellee.
    Julia Souter (“Souter”) was convicted of violating former Warren County Code
    § 123-2(H) (“the noise ordinance”). 1 On appeal, Souter argues that the noise ordinance was
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    On September 21, 2010, in response to the Supreme Court of Virginia’s decision in
    Tanner v. City of Virginia Beach, 
    277 Va. 432
    , 
    674 S.E.2d 848
     (2009), the Warren County
    Board of Supervisors amended Chapter 123 of its code to add definitions, define prohibited
    noise, amend the specific acts that are noise disturbances, set maximum sound pressure levels for
    different zoning districts, amend list of exemptions and language for abatement and injunctive
    relief, and allow both civil and criminal penalties. See http://www.warrencountyva.net (from the
    “Government” pull down menu, follow “Board of Supervisors” hyperlink. Then follow, the
    “BOS Meeting Minutes” hyperlink and select the “September 21, 2010: BOS Minutes”
    hyperlink, then see pages 14-25). Former § 123-1 (loud or disturbing noise prohibited) is now
    § 123-2 (prohibited noise generally). It now reads
    It shall be a violation of this chapter for any person, without
    compelling reason, to make noise that by reason of its volume,
    pitch, duration or repetition, considering the time of day, is likely
    to disturb the rest of any person of any ordinary sensibilities or
    interfere with such person’s lawful and peaceful enjoyment of
    property owned or rented by him.
    unconstitutional because its language is vague and failed to give adequate notice to citizens of
    average intelligence as to what conduct is prohibited and encouraged arbitrary and
    discriminatory selective enforcement of the ordinance. She also argues that the evidence was
    insufficient to prove that the dogs on her property were responsible for the barking heard by the
    neighbors. For the reasons that follow, we agree that the noise ordinance was unconstitutional
    because it was vague and we reverse Souter’s conviction.
    I. BACKGROUND
    On June 6, 2008, Margaret J. Christian, one of Souter’s neighbors, swore out a complaint
    alleging that between May 25 and June 6, Souter allowed her dogs to bark in an “excessive
    manner” during the “early morning – midday – [and] evening.” Christian described the barking
    as “very loud – very upsetting.” Souter was tried and convicted in general district court on July
    22, 2008 of violating Warren County ordinance § 123-2(H): “unlawfully possess dogs by which
    frequent or habitual howling, yelping, barking or otherwise make such noises plainly audible
    across property boundaries.” Souter appealed this conviction to the circuit court.
    In her de novo appeal to the circuit court, Souter argued pretrial, inter alia, that the noise
    ordinance was unconstitutional because it was vague and overly broad. Specifically, she asserted
    that the noise ordinance did not specify sound levels that violated the law or the time periods
    Warren Co. Code § 123-2(A) (adopted September 21, 2010). The chapter still enumerates
    certain acts that are per se violations, including pet noise:
    Allowing an animal to create howling, barking, whining, meowing,
    squawking or other such noises which are plainly audible across a
    property boundary or through partitions common to two residences
    within a building and that take place continuously or repeatedly
    (i) during a period of at least 15 minutes in duration between
    7:00 a.m. and 10:00 p.m. or (ii) during a period of at least 10
    minutes in duration between 10:00 p.m. and 7:00 a.m. . . . .
    Warren Co. Code § 123-3(H) (adopted September 21, 2010).
    -2-
    during which certain sound levels violated the law. 2 The trial court held that the ordinance, as
    applied to Souter, was not overly broad or vague. At Souter’s trial, several neighbors testified
    about the frequency with which her dogs barked and the effect that this barking had on their
    lives. The evidence also proved that Souter had been previously warned about the barking by a
    sheriff’s deputy. Based on that, the trial court convicted Souter. This appeal follows.
    II. ANALYSIS
    We must begin our review of an ordinance with the principle that
    duly enacted laws are presumed to be constitutional. We are
    required to resolve any reasonable doubt concerning the
    constitutionality of a law in favor of its validity. 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.
    Tanner v. City of Virginia Beach, 
    277 Va. 432
    , 438-39, 
    674 S.E.2d 848
    , 852 (2009) (citations
    omitted). “Additionally, ‘it is a cardinal principle of law that penal statutes [and ordinances] are
    to be construed strictly against the [Commonwealth] . . . . Such a statute cannot be extended by
    implication, or be made to include cases which are not within the letter and spirit of the statute.’”
    Shreve v. Commonwealth, 
    44 Va. App. 541
    , 547, 
    605 S.E.2d 780
    , 783 (2004) (quoting Wade v.
    Commonwealth, 
    202 Va. 117
    , 122, 
    116 S.E.2d 99
    , 103 (1960)).
    [A] statute or ordinance [must] be sufficiently precise and definite
    to give fair warning to an actor that contemplated conduct is
    criminal. 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).
    Tanner, 277 Va. at 439, 
    674 S.E.2d at 852
     (citations omitted).
    2
    Counsel noted that other sections of the ordinance contained limiting language as to
    time periods that narrowed those provisions of the ordinance.
    -3-
    In Tanner, two nightclub proprietors brought suit challenging the constitutionality of
    Virginia Beach’s noise control ordinance. In pertinent part, that ordinance provided:
    “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.”
    Tanner, 277 Va. at 435-36, 
    674 S.E.2d at 850
     (quoting Virginia Beach City Code § 23-47). The
    Supreme Court of Virginia concluded that the terms “unreasonably loud, disturbing, and
    unnecessary” were unconstitutionally vague. Id. at 440, 
    674 S.E.2d at 853
    . Furthermore, the
    Court concluded that “[t]he 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.” 
    Id.
     Because the Court concluded that the ordinance was
    vague, it did not address the separate per se violations individually. 
    Id.
     at 441-42 n. *, 
    674 S.E.2d at
    854 n. *. Specifically, the Court stated, “[e]ach of these per se violations is defined as
    constituting ‘loud, disturbing and unnecessary noise’ and, thus, cannot be evaluated separately
    from those vague terms.” Id. at 441, 671 S.E.2d at 854 (quoting Virginia Beach City Code
    § 23-47).
    The facts in this case differ from Tanner in that in Tanner, the Supreme Court addressed
    one self-contained ordinance while here we construe two related ordinances. This difference
    -4-
    does not affect the analysis, however. “[W]henever ‘a given controversy involves a number of
    related [ordinances], they should be read and construed together in order to give full meaning,
    force, and effect to each.’” Boynton v. Kilgore, 
    271 Va. 220
    , 229, 
    623 S.E.2d 922
    , 927 (2006)
    (quoting Ainslie v. Inman, 
    265 Va. 347
    , 353, 
    577 S.E.2d 246
    , 249 (2003)). “A cardinal rule of
    statutory interpretation is that ‘[w]hen one [ordinance] addresses a subject in a general manner
    and another addresses a part of the same subject in a more specific manner, the two [ordinances]
    should be harmonized, if possible, and when they conflict, the more specific [ordinance]
    prevails.’” Lynchburg Div. of Soc. Servs. v. Cook, 
    276 Va. 465
    , 481, 
    666 S.E.2d 361
    , 369
    (2008) (quoting Alliance to Save the Mattaponi v. Commonwealth, 
    270 Va. 423
    , 439-40, 
    621 S.E.2d 78
    , 87 (2005)). Here, former § 123-1 addressed noise violations in a general manner and
    § 123-2 enumerated specific acts that were per se violations. Thus, they were not in conflict and
    must be read together.
    As §§ 123-1 and 123-2 must be read together, Tanner controls the disposition of Souter’s
    appeal. Warren County’s primary noise ordinance stated
    [i]t shall be unlawful for any person to create, assist in creating,
    permit, continue or permit the continuance of any unreasonably
    loud or disturbing sound of such character, intensity, volume,
    carrying power or duration as to disturb the comfort, repose, health
    or safety or [sic] any individual unless the sound is made in an
    activity conducted for the protection or preservation of the health,
    safety or life of some person. For the purposes of this chapter,
    “disturbing” is defined as an actual or imminent interference to
    peace or good order or a noise which endangers or injures the
    health or safety of humans or animals or which annoys or disturbs
    a reasonable person of normal sensibilities.
    Warren Co. Code § 123-1. Code § 123-2 enumerated individual per se violations. Souter was
    convicted of violating Code § 123-2(H), which stated that no person shall “own, keep and have
    in his possession or harbor any dog, other animals or bird(s), which by frequent or habitual
    -5-
    howling, yelping, barking or otherwise make such noises as are plainly audible across property
    boundaries or through partitions common to two persons within a building.”
    Like the unconstitutionally vague ordinance at issue in Tanner, the Warren County
    ordinances prohibited any “unreasonably loud or disturbing sound of such character, intensity,
    volume, carrying power or duration as to disturb the comfort, repose, health or safety [of] any
    individual.” Warren Co. Code § 123-1. As the Supreme Court held in Tanner, when used in this
    context, such adjectives are inherently vague because they require persons of average
    intelligence to guess at the meaning of these words. Tanner, 277 Va. at 440, 
    674 S.E.2d at
    853
    (citing Thelen v. State, 
    526 S.E.2d 60
    , 62 (Ga. 2000)). Here, as in Tanner, noise that one person
    may consider loud and disturbing may not disturb the sensibilities of another listener. As such,
    these phrases “do not provide a degree of definiteness sufficient to save the ordinance[s] from
    the present vagueness challenge.” 
    Id.
    Finally, as in Tanner, although the Warren County ordinance contained a list of per se
    violations, we need not address the list because each of these per se violations is defined as
    constituting, “unreasonably loud or disturbing sound” and thus cannot be evaluated separately
    from those vague terms. Also, as previously stated, because the two provisions are not in
    conflict they must be read together. Moreover, like the ordinance in Tanner, the unconstitutional
    language cannot be severed to give the remaining per se provisions a definite and permissible
    construction because the vague language affects the content of the entire ordinance. Id. at 442,
    
    674 S.E.2d at 854
    . As such, the entire ordinance is unconstitutionally vague.
    -6-
    III. CONCLUSION
    For the foregoing reasons, we reverse Souter’s conviction for violating Warren County
    Code § 123-2(H) as then enacted. Because we hold that the noise ordinance was
    unconstitutional, we decline to address Souter’s argument that the evidence is insufficient.
    Reversed.
    -7-
    Alston, J. concurring.
    I agree with the general principles of statutory interpretation outlined by the majority and
    concur in the result, because I believe we are bound by the ratio decidendi of Tanner v. City of
    Virginia Beach, 
    277 Va. 432
    , 
    674 S.E.2d 848
     (2009). However, in my humble opinion, when
    Warren County Code § 123-1 is read together with Warren County Code § 123-2(H), the entire
    ordinance withstands constitutional muster.
    As the majority correctly states, related ordinances must be “‘read and construed together
    in order to give full meaning, force, and effect to each.’” Boynton v. Kilgore, 
    271 Va. 220
    , 229,
    
    623 S.E.2d 922
    , 927 (2006) (quoting Ainslie v. Inman, 
    265 Va. 347
    , 353, 
    577 S.E.2d 246
    , 249
    (2003)). Additionally, “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.” Tanner, 277
    Va. at 438-39, 
    674 S.E.2d at
    852 (citing INS v. St. Cyr, 
    533 U.S. 289
    , 299-300 (2001); United
    States v. Harriss, 
    347 U.S. 612
    , 618 (1954); Pederson v. City of Richmond, 
    219 Va. 1061
    , 1065,
    
    254 S.E.2d 95
    , 98 (1979)). Given these principles, I struggle with an analytical resolution that
    suggests that when a legislative body articulates per se violations of offensive behavior generally
    described in an introductory paragraph of an ordinance, the descriptions of the per se violations
    cannot be read together with the introductory language in such a way that alerts individuals of
    prohibited behavior. Considering the introductory language together with the per se violation
    language gives appropriate deference to the “principle that duly enacted laws are presumed to be
    constitutional,” id. at 438, 
    674 S.E.2d at
    852 (citing Marshall v. N. Va. Transp. Auth., 
    275 Va. 419
    , 427, 
    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. Quillian, 
    264 Va. 656
    , 665, 
    571 S.E.2d 122
    , 126 (2002); Finn v.
    Va. Ret. Sys., 
    259 Va. 144
    , 153, 
    524 S.E.2d 125
    , 130 (2000)), and to this Court’s duty to
    “resolve any reasonable doubt concerning the constitutionality of a law in favor of its validity, 
    id.
    -8-
    (citing In re Phillips, 
    265 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)).
    Like the ordinance in Tanner, the ordinance in the instant case contains introductory
    language, which is found in Warren County Code § 123-1, and enumerated per se violations,
    which are found in Warren County Code § 123-2. When Warren County Code §§ 123-1 and
    123-2(H) are read together, the provisions are “sufficiently precise and definite to give fair
    warning to any actor that contemplated conduct is criminal.” Id. at 439, 
    674 S.E.2d at
    852
    (citing Kolender v. Lawson, 
    461 U.S. 352
    , 357 (1983); Grayned v. City of Rockford, 
    408 U.S. 104
    , 108 (1972)). “Because legislative bodies are ‘[c]ondemned to the use of words,’ courts
    cannot require ‘mathematical certainty’ in the drafting of legislation.” 
    Id.
     (quoting Grayned, 
    408 U.S. at 110
    ). 3 Accordingly, “an ordinance that lacks meticulous specificity nevertheless may
    survive a vagueness challenge if the ordinance as a whole makes clear what is prohibited.” 
    Id.
    (citing Grayned, 
    408 U.S. at 110
    ; Esteban v. Centr. Missouri State Coll., 
    415 F.2d 1077
    , 1088
    (8th Cir. 1969)).
    Thus, a legislative scheme’s language “must give fair warning to an actor that
    contemplated conduct is criminal,” 
    id.
     (citing Kolender, 
    461 U.S. at 357
    ; Grayned, 
    408 U.S. at 108
    ), and “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,’” 
    id.
    3
    This assessment makes practical sense as it would be nearly impossible for any
    legislative body to proscribe conduct involving obnoxious animals unless some sort of numerical
    definition were placed in the legislative scheme or the “preamble language” outlining the
    purpose of a law was not provided. Moreover, to be enforceable, such a law would require a
    timer to be used to measure the duration of the noise and a counter to quantify the frequency of
    the noise. In addition, this timer and counter requirement would need to be specifically defined
    in the scheme. Obviously, the problem with this approach is that no legislative body could
    provide an exhaustive list of circumstances of proscribed conduct.
    -9-
    (quoting Connally v. Gen. Constr. Co., 
    269 U.S. 385
    , 391 (1926)). I would find that Warren
    County Code § 123-1 is aspirational in nature and simply provides preamble or introductory
    language proscribing “any unreasonably loud or disturbing sound” and that Warren County Code
    § 123-2(H) articulates examples of such noises in a manner sufficient to alert any actor to the
    specific conduct that is prohibited. It prohibits “own[ing], keep[ing] and hav[ing] in his
    possession or harbor[ing] any dog, other animal or bird(s), which by frequent or habitual
    howling, yelping, barking or otherwise make such noises as are plainly audible across property
    boundaries . . . .” Warren County Code § 123-2(H).
    The term “frequent or habitual,” as used in the Warren County Code, places any person
    of common intelligence on reasonable notice of what type of conduct is proscribed. Tanner held
    that the prohibition of “‘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,’ [and] noise that ‘disturb[s] or annoy[s] the quiet, comfort or repose of reasonable
    persons,’” which was found in the ordinance’s introductory paragraph, Tanner, 277 Va. at 440,
    
    674 S.E.2d at 853
    , was unconstitutional because it did not contain ascertainable standards, 
    id.
    (citing Thelen v. State, 
    526 S.E.2d 60
    , 62 (Ga. 2000); Nichols v. City of Gulfport, 
    589 So. 2d. 1280
    , 1283 (Miss. 1991)). The overriding concern of the Supreme Court in Tanner appears to be
    the lack of definition regarding decibel levels and volume, in addition to the arbitrary nature of
    the prosecution therein. 4 In the instant case, if Warren County Code §§ 123-1 and 123-2(H) are
    4
    The Tanner Court said as much when it held:
    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.
    - 10 -
    read together, the focus of the noise ordinance is on the frequency of the noise and the rate of
    re-occurrence of the charged conduct. In my view, a person of common intelligence would
    understand that the repeated and constant nature of the conduct herein could be subject to
    prosecution.
    Notwithstanding the foregoing analysis, my obligation to adhere to the principles of stare
    decisis dictates that Warren County Code §§ 123-1 and 123-2(H) may not be read together, and
    as such, I join in the result of the majority.
    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.
    277 Va. at 440, 
    674 S.E.2d at 853
    .
    - 11 -