The URL can be used to link to this page

Home My WebLink AboutNoise Ordinances 2009 MARTIN D. FINNEGAN TOWN ATTORi~EY · martin.fmnegan@town.southold.ny.us JENNIFER ANDALORO ASSISTANT TOWN ATTORNEY jennifer.andaloro@town.southold.ny.us LORI M. HULSE ASSISTANT TOWN ATTORNEY lori.hulse@town.southold.ny.us SCOTT A. RUSSELL Supervisor Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTHOLD RECEIVED From: Date: Subject: MEMORANDUM Members of the Town Board JUN 4 2009 So.~oi~ Town ~1o:I{ Jennifer Andal0ro, Esq., Assistant Town Attorney June 3, 2009 Noise Ordinances In response to the Town Board's request for information on noise ordinances and the legal parameters, the following guidelines apply: 1. In order to pass muster under the First Amendment, the ordinance must be "content neutral" and narrowly tailored to prevent a specific harm (i.e., intrusiveness of loud noise), as opposed to the content of the message. In' ~Toback_, 170 Misc.2d 1011 (1996), the City of Long Beach noise ordinance, which prohibited the use of amplified sound in a local recreational facility and residential areas at a level greater than 65 decibels, was upheld as content neutral even though the ordinance had an incidental effect on some speakers or messages. The Court strongly endorsed the use of the decibel meter as a method for measuring noise and the Court made the strong statement - "A decibel meter, by definition, is content neutral" because the ordinance set forth specific levels and locations from where to take the measurements. Such a noise ordinance does not allow for arbitrary or discriminatory enforcement. A copy of the Toback case and Long Beach Noise Ordinance is attached 2. A noise ordinance that prohibits all sound amplification in certain areas in a "loud, annoying or offensive manner such that noise from the device interferes with conversation or with the comfort, repose, health or safety of others within any building or at a distance of 25 feet or greater" has been invalidated by the courts as too broadly written. See, Dee,qan v. City of Ithaca, 444 F.3d 135 (2nd Cir. 2006). The Court noted that "a noise regulation that prohibits 'most normal human activity,' including a spirited conversation between two people, is not narrowly tailored to serve their City's interest in maintaining a reasonable level of sound, at least in a public forum like the restricted areas set forth in the ordinance." A copy of the Deegan case is attached hereto. The case cites directly to the language of the Code. 3. With respect to laws that criminalize unreasonable noise, the Suffolk County District Court in People v. Pfluger, 6 Misc.3d 1011 (Dist. Ct. 2004) found the Town of Huntington noise law unconstitutional because the "unreasonable" standard was so vague that it violated the due process clause of the 14th Amendment. A copy of the case and text of the law that was invalidated are attached. 4~ Finally, in People v. Bakolas, 59 N.Y.2d 51 (1983), the Court of Appeals upheld the constitutionality of State Penal Law 240.20(2) which prohibits making "unreasonable noise" with the "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." A copy of the Penal Law is attached hereto. The Court reasoned that statute was not unconstitutionally vague because the added requirement of intent or reckless disregard sufficiently narrowed the definition of unreasonable noise. On the other hand, in People v. Donato, 179 Misc.2d 192 (City Ct. of New Rochelle, 1998), the Court struck down as unconstitutional a city noise law that prohibited "unnecessary animal noise" as unconstitutionally vague because it did not contain the element of intent or reckless disregard that is set forth in Penal Code 240.20. In consideration of the above, should the .Town determine to enact a noise ordinance, the use of a decibel standard would eliminate most risks of judicial invalidation. Any other standard such as unnecessary/unreasonable noise will most likely be invalidated by a Court unless it is clarified by some objective measure such as time or number of persons. JA/Ik Enclosures ~ cc: Ms. Elizabeth A. Neville, Town Clerk (w/encls.) Matin D. Finnegan, Esq., Town Attorney (w/encls.) 170 Misc.2d 1011 170 Mis¢.2d 1011 (Cite as: 170 Mlse.2d 1011, 652 N.Y.S.2d 946) Page 1 The People of the State of New York, Plaintiff, Jack Toback, Defendant. City Court of Long Beach, December17,1996 CITE TITLE AS: People v Toback HEADNOTES Constitutional Law--Validity of 'Statute--City Ordi- nance Prohibiting Sound Greater than 65 Decibels-- Restrictions on Free Speech in Public Forum (~) A city noise code which prohibits, inter alia, the nsc of amplified sound at a level greater than 65 decibels is not unconstitutional as a restriction on First Amendment protected speech in a public forum since it is content neutral, narrowly tailored and leaves open alternative channels of communication. A dec'el meter, by definition, is content neutral. By codifying and artiealating specific decibel levels and the locations fi.om where to take these measurements, the code prevents arbitrary or discriminatory en- forcement. The exeep~on for mgnicipally sponsored events held hi an othenvise problematic location and at a higher volume is not content based. The narrow tailoring requirement is satisfied in that the city seeks to eliminate the intrusiveness of loud noise, not the message. The regulation of sound and noise in public areas is an important function of city government. Furthermore, the Legislature's determination that 65 decibels~is a valid and reasonable level that welcomes flee speech, without interfering with the rights of others, is a valid exercise of its legislative responsi- bility. Constitutional Law--Validity of Statute--City Ordi- nance Prohibiting Sound Greater than 65 Decibels-- Vagueness 2(2) A city noise code which prohibits, inter alia, the nsc of amplified sound at a level greater than 65 decibels is not unconstitutional as vague, since the decibel level limitation is clear and precise and the code details the specific permissible volume of sound that may be generated by amplifying equipment al very specific geographic points and at designa~..d hours. Constitutional Law--Validity of Statute--City Ordi- nance Prohibiting Sound Greater than 65 Decibels-- Overbreadth (~ A city noise code which prohibits, inter alia, the Use of amplified sound at a level greater than 65 decibels is not unconstitutional for overbreadth since a statute is not deemed facially invalid unless its de- terrent effect on legitimate expression is both real and substantial and the deterrent effect of the code is nei- flier real nor substantial; the purpose of the code is the regulation of noise, not suppression of protected speech. Constitutional Law--Validity of Statute--City Ordi- nance Prohibiting Sound Greater than 65 Decibels-- EqnaLProtection of Laws (~) A city noise code which prohibits, inter alia, the use of amplified sound at a level gream' thnn 65 decibels and exempts government sponsored events from the decibel ceiling does not deprive a person .of equal protection under the law~ since the code is not. based on the actual content of the music or message. All speakers are permitted to speak hi the designated areas, as long as they maintain a volume of 65 deci- bels or less hi accordance with the stamte.*1012 TOTAL CLIENT SERVICE LIBRARY REFER- ENCES Am Jut 2d, Constitutional Law, ~ 212, 409, 417, 459, 460, 507; Municipal Corporations, Counties, and Other Political Subdivisions, §§ 361-367, 438, 470. NY Jur 2d, Constitutional Law, §§ 213, 221-223, 233, 259-264; Counties, Towns, and Municipal Cor- porations, §§ 275, 277-280; Environmental Rights and Remedies, §§ 197, 198. ANNOTATION REFERENCES Constitutionality of federal, state, or local untinoise laws and regulations. 36 L Ed 2d 1042. APPEARANCES OF C~UNSEL © 2009 Thomson Reuters/West. No Claim to Orig. US Gev. Works. 170 Misc, 2d 1011 170 Misc.2d 1011 (Cite as: 170 Mlsc.2d 1011, 652 N.Y.S.2fl 946) Page 2 Migliore & lnfranco, P. C, Commack (Rudolph F. X Migliore of counsel), and Clifton Budd & DeMaria, L. L. P.. New York City (Kevin J. McGill of counsel), for defendant. Joel K. Asarch, Corporation Counsel of Long Beach (Corey E. Klein of counsel), for plain- tiff. OPINION OF THE COURT Roy Tepper, J. Defendant is charged with 16 violations of chapter 16 of the City of Long Beach Code of Ordinances (Noise Code). Defendant has moved for dismissal of the informations/complaints pursuant to CPL 170.30 (1) (a) and 170.35 (1} (e) upon the-grounds that the statute is unconstitutional On its face and .in its appli- cation. Defendant also moves for dismissal pursuant m CPL 170.40 in the interests of justice. The motion is decided as follows. The Noise Code prohibits, among other things, the use of amplified sound, in'both Ocean Beach Park and residential areas at a level greater than 65 decibels, unless otherwise exempted by section 11 of the Code. Section 11 exempts various forms of noise from the Noise Code, including "noise generated by municipally sponsored concerts and events designed to promote the bealtl~ safety or welfare of the citizens of Long Beach". [t was in the interests of protec0ng its citizens from excessive noise that the City of Long Be~ch enacted the Noise Code. CONSTITUTIONAL CHALLENGES There is a strong presumption that a statute duly en- acted is valid. (McKinrfeg's Cons Laws of NY, Book 1, Statutes § 150; '1013 People v Pagnotta, 25 NY2d 333. 337 [1969].1 While this presumption is rebut- table, unconstitutionality must be demonstrated, be- yond a reasonable doubt, and only as a last resort should courts s~ike down legislation on the ground of unconstitutionality. (L#dtthouse Shores v Town o[ Islip, 41 NY2d 7, 11 [1976]; Matter of Van Berkel v Power; 16 NY2d 37.1Thus, as to reasonableness, de- [endant in order to succeed has the burden of show- ing that" 'no reasonable basis at all' ' existed for the challenged portions of the ordinance. (Lighthouse Shores v Town o£Islip, suora, at 12; LL.F.Y Co. v Temporar~ State Hoas. Rent Commn, 10 NY2d 263, 269.} 1. TIME, PLACE, OR MANNER RESTRICTIONS The Supreme Court has made it clear that even in a public forum the Government may impose reasonable restrictions on the time, place, or manner of protected speech. The Court has provided a three-pronged test which a government regulation must meet when re- stricting First Amendment protected speech in a pub- lic forum. In order for a regulation to be a valid time, place, or manner restriction of protected speech the regulation must be: (1) content neutral; (2) n _a[rowly tailored; and O) leave open alternative channels. (Clark v Community for Creative Non-Violence, 468 US 288. 293 [1984].) I(D The principal inquiry in determining content neu- trality, in speech cases, generally, and in time, place, or manner cases in particular, is whether the Gov- ernment has adopted a regulation of speech because of a disagreement with the message it conveys. (Clark v Community fo~: Creative Non-Violence, su- pra, at 295.) The Noise Code places a limitation on the .loudness of the speech and in no way distin- guisbes its content. As a means to achieve its legiti- mate goal of noise abatement, the City enacted a plan that is content neutral. "'[A] regulation that serves proposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.' ' (~arew- Reid v Metropolitan Transp. Auth., 903 F2d 914. 916 [1990]; Ward v Rock Against Racism. 491 US ~781 [1989].) A decibel meter, by definition, is contom neutral. It merely measures the volume of noise, not content. Furthermore, by codifying and articulating spe~cific decibel levels and the locations from where to take these measmements, the noise ordimince in no way allows for arbitrary or discriminato~ enforce- ment. (Crockett Promotion v City of Charlotte, 706 F2d 486, 493 [1983].} Likewise, "the fact that an exception is made to allow [mtmicipality] sponsored '1014 events to take place in an otherwise problem- atic location and at a higher volume does not indicate the regulation is content-based." (Turley v New York City Police Dept., 1996 US Dist LEXIS 2582, '14 [SD NY, Mar. 5, 1996, Schwartz, J.].) While a regulation of the time, place, or manner of protected speech must be narrowly tailored u> serve the Government's legitimate interests, it need not be the least restrictive or least inmtsive means of doing so. ~?ard v Rock Against Racism, supra, at 798.) © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 170 Mise.2d I011 170 Misc.2d 1011 (Cite as: 170 Mise.2d 1011, 652 N.Y.S.2d 946) P~e3 Rather, the requirement-of narrow tailoring Is satis- fied "so long as the ... regulation promoms a substan- rial government interest that would be achieved less effectively absent the regulation." (United States v Albertini, 472 US 675, 689 [1985].) The harm the City of Long Beach wants to eliminate is merely the intrusiveness of loud noise, not th~ message of the defendant. There is no question that the regulation of activity, especially the regulation of sound and nmse, in public areas is an.important fimction of city government. (Kovacs v Cooper, 336 US 77, 87 ]1949];see also, Turley v New York City Police Dept., supra.)The object of the decibel level limit in Ocean Beach Park xs to maintain peace and order and promote public safety. The City of Long Beach has a substantial in- terest in protecting its citizens from noise. The defendant argues that the 65-decibel limit in Ocean Beach park burdens mom speech than neces- sary. But, arguments for alteraative regulatory meth- ods, such as a higher decibel level, are nothing more than a disagreement with the Legislature as to ac- ceptable l~vels Of npise: "'[qbe validity of [t/me, place, or manner] ~'egulations does not.,tum on a judge's agreement with the responsthle decisionmaker concerning the most appropriate method for.promot- ing significant government interests' or the degree to which those interests should be promoted." (Ward v Rock Aeainst Racism, supra, at 800.) The Legisla- ture's detemdnation that 65 decitels is a valid and reasonable level that welcomes free speech, without interfering with the rights of others, is a valid exer- cise of its'legislative responsibility. The final requirement for the time, place, or manner restriction of protected speech is that the restriction leave open ample alternative channels of communica- tion. Clearly, in the case at bar, alternative channels exist to transmit the defendanfs message. The Noise Code permits expressive activity in Ocean Beach' Park provided that such activity maintahas a reason- able decibel level. 'q'hat the city's limitations on vol- ume may reduceto*1015 some degree the potential audience for [defendant's] speech is of no conse- quence, for them has been no showing that the re- maining avenues of communication are inadequate." (Ward v Rock Against Racism, supra, at 809; see. Ci~ Council v Taxvayers for Vincent, 466 US 789, 803 [1984].) Therefore, this court finds the Noise Code is a valid time, place, or manner restriction. 2. VAGUEI4ESS {~) In order to establish thata law ~s vague within the Due Prceess Clause, one "must demonstrate that the law is impermissibly vague in all of its applications" (ttoffman Estates v Flipside, Hoffman Estates, 455 US 489, 497 ]1982]), and must "prove that the en- actment is vague ' "not in the sense that it requires a person to 'conform his conduct to an imprecise but comprehensible normatiYe standard; but rather in the sense that no standard of condnot is specified at allY" "(Supra, at 495, n 7.) The Noise Code is not vague. The decibel level limitation is alefir and precise. "It tells one and all the specific permissible volume of sound that may be generated by amplifying- equipment at very specific geographic points and at designated hours." (Crockett Promotion v City o£ Charlotte, 706 F2d, supra, at 493.) 30.) The Su~x~nne Court has cautioned that invalida- tion of State laws for facial overbreadth is a i'emedy that should be applied "spa[iagly and only as a last re~ort." (Broadrick v Oklahoma, 413 US 601, 613 [1973].) A statute should not be deemed facially in- valid unless its deterrent effect on legitimate expres- sion is both real and substantial. (See. Broadrick v Oklahoma, supra; Emnoznik v City of Jacksonville, 422 US 205 [1975].) The deterrent effect of the Noise Code is neither real nor substantial. The purpose of the 'Noise Code is the regulation of noise and in no way is directed at the suppression of protected speech. (See. Forsvth County v Nationalist Move- ment, 505 US 123, 129-130 [1992].) 4. EQUAL PROTECTION 4(3.) Defendant also submits that the Noise Code de- nies him equal protection of the laws. The defendant argues that the City of Long Beach by way of the Noise Code is permitting speech for some but prohib- iling it for others. (CareF v Brown, 447 US 455 [1980].) The Noise Code's exemption of governmeht '1016 sponsored events from the decibel ceiling is not based on the aetnal content of the music or mas- sage. (Turley v New York City Police Dept., 1996 US Dist LEXIS 2582, supra.)All speakers are permitted to speak on the boardwalk, as long as they maintain a © 2009 Thomson Reuters/West. No Claim to Orig. US Gev. Works. 170 Misc.2d 1011 170 Misc.2d 1011 (Cite as: 170 Misc.2d 1011, 652 N,Y.S.2d 946) Page 4 volume of 65 decibels or less, in accordance with the statute. DISMISS IN THE INTEREST OF JUSTICE The propose of a motion to dismiss in the interest of justice is to allow justice to prevail over the strict letter of the law so as to prevent a miscarriage ofjus- rice. (See, People v'Stcrn, 83 Misc 2d 935.)In enter- taming such a motion, the court must scrutinize the merits of defendant's application and weigh the re- spective interests of the defendant, the complainant, and the community at large. (See, People v Clayton, 41 AD2d 204.)Tbe burden of setting forth factors sufficiently compelling to justify dismissal under CPL 170.40 rests squarely upon the defendant. The defendant merely mentions in his notice of motion that the information should be dismissed and refem to CPL 170.40, but never articulates any reasons why this should be granted. Therefore, the motion is de- hind. CONCLUSION It is the decision of this court that chapter 16 of the City of Long Beach Code of Ordinances is constitu- tional. Accordingly, defendant's motion to disnnss is denied in all respects.*1017 Copr. (c) 2009, Secretary of State, State of New York N.Y.City Ct. 1996. PEOPLE v TOBACK 170 Misc.2d 1011 END OF DOCUMENT - © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. ARTICLE I. IN GENERAL ARTICLE I. IN GENERAL Page 1 of 4 Sec. 16-1. Short title. Thi= ~hup[=r =hu|~ be known an¢ may be cited as the "City of Long Beach Noise Control Ordinance." (Ord. No. 1850/96, § 1,5~21-96) Sec. 16-2, Declaration of policy. It is hereby declared to be the public policy of the city to reduce the ambient noise level in the cfty, so as to preserve, protect end prOmote the public health, safety and welfare, and the peace and quiet of the inhabitants of the city, prevent injury to human, plant and animal life and p'roperty, foster the convenience and comfort of its inhabitants, and facilitate the enjoyment of the natural attractions of the city. It is the public policy of the city that every person is entitled to ambient noise levels that are not detrimental to life, health and enjoyment of his or her property. It is hereby declared that the making, creation or maintenance of excessive or unreasonable noises within the city affects and is a menace to public health, comfort, convenience. ,safety, welfare and the prosperity of the peop!e of the city. The provisions and prohibitions hereinafter contained and enacted are for the above-mentioned purpose. (Ord. No. 1850/96~ § 1, 5-21-96) Sec. 16-3. Interpretation. This chapter shall be liberally construed so as to effectuate the purposes described in this chapter. Nothing herein shall abridge the powers and responsibilities of any police department or taw herein shall be construed to enforcement-agency to enforce the provisions of this chapter. Nothing ~ abridge the emergency powers of any health department or the right of such department to engage in any necessary or proper activities. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-4. Definitions and wOrd usage. (a) All terminology defined herein which relates to the nature of sound and the mechanical detection and recording of sound is in conformance with the terminology of the American National Standards Institute (ANSI) or its successor body. (b) As used In this chapter, the following terms shall have the meanings indicated: Ambient noise: The all-encompassing noise associated with a given environment, being usually a composite'of sounds from many sources. A-weighted sound level: The sound pressure level in decibels as measured on a sound level meter using the A-weighted network. The level so read is designated "dBA". Commercial area: A group of commercial facilities and the abutting public right-of-way and public spaces. Commercial facility: Any premises, property, or facility involving traffic in goods or furnishings of http://library6.municode.com/default-tesffDocView/10434/1/140/141 5/29/2009 ARTICLE I. IN GENERAL Page 2 of z[ services for sale or profit, including but not limited to: a. Dining and/or drinking establishments; b. Banking and other financial institutions; c. Establishments for providing retail services; d. Establishments for providing wholesale services; e. Establishments for recreation and entertainment; f. Office buildings; g. Transportation; h. Warehouses; i. Hotels and/or motels. Community service facility: Any nonresidential facility used to provide services to the public, including but not limited to: a. Club meeting halls, offices and facilities; b. Organization'offices and facilities; c. Facilities for the support and practice of religion; d. Private and parochial schools. Construction: Any activity necessary or incidental to the erection, demolition, assembling, altering, installing or equipping of buildings, poblic or pdvate highways, roads, premises parks, utility lanes or other property, including but not limited to related activities such as land clearing, grading, earthmoving, excavating, blasting, filling and landscaping, but not including agriculture. Continuous sound: Any sound that is not impulse sound. dBA: The al~breviation designating the unit of sound level as measured by a sound level meter using the A-weighting, also known as "DBA". Decibel: The practical unit of measurement for sound pressure level; the number of decibels of a measured sound is equal to twenty (20) times the logarithm to the base ten (10) of the ratio of the sound pressure of the measured sound to the sound pressure of a standard sound (20 micropascals); abbreviated "dB." Demolition: Any dismantling, intentional destruction, or removal of buildings or structures. Emergency: Any occurrence or circumstances involving actual or imminent physical or property damage which demands immediate action. Emergency warning device: Any sound signal device that is to warn of an emergency. Emergency work: Any work or action necessary to deliver essential services including, but not limited to, repairing water, gas, electricity, telephone, sewer facilities, or public transportation facilities, removing fallen trees on public rights-of-way, dredging of waterways or abating life-threatening conditions. Extraneous sound: A sound which is neither part of the neighborhood residual sound nor comes from the source under investigation. Frequency: The number of sound pressure oscillations per second, expressed in hertz; abbreviated "Hz." Impulse sound: Sound characterized by either a single pressure peak or a single burst [multiple pressure peaks) having a duration of less than one second. http://library6.municode.com/default-test?DocView/10434/1 / 140/141 5/29/2009 ARTICLE I. IN GENERAL Page 3 of 4 Industrial facility: Any activity and its related premises, property, facilities, or equipment involving the fabrication, manufacture, or production of durable or nondurable goods. Noise: Any sounds of such level and duration as to be or tend to be injurious to human health or welfare, or which would unreasonably interfere with the enjoyment of life or property throughout the city. Noise disturbance: Any sound which (1) endangers or injures the safety or health of humans or animals, or (2) annoys or disturbs a reasonable person of normal sensitivities, or (3) endangers or injures personal or real property: Ocean Beach Park: As defined by section 18-13 of this Code. Peak sound pressure levek The maximum absolute value of the instantaneous sound pressure level during a specified time interval. Parks: As defined by sections 18-88(bl and 18-100 of this Code. Person: Any individual, association, partnership, corporation or other entity and includes any officer, employee, department or agency of the' above. Public right-of-way: Any street, avenue,- boulevard, road, highway~ sidewalk, alley, or boardwalk, that.is leaseci, owned or controlled by a governmental entity, no matter how designated. Public service facility: Any facility and its related premises, property, or equipment used to provide govemmental services to the public including, but not limited to: a. Maintenance centers; b. Offices and buildings of agencies or instrumentalities of government; c. Schools. Public service industrial facility: Any facility and its related premises, property, or equipment used to provide industrial governmental services to the public including, but not limited to: a. Waste collection centers; b. Waste recycling centers; c. Water and sewage facilities. Public space: Any real property or structures thereon that are owned, leased, or controlled by a governmental entity. Real property line: Either (a) the imaginary line including its vertical extension that separates one parcel of real property from another, or (b) the vertical and horizontal boundaries of a dwelling unit that is one in a multi-dwelling-unit building. Residential area: A group of residential properties and the abutting public rights-of-way and Public spaces. Residentialproperty: Property used for human habitation. Sound: An oscillation in pressure, particle displacement, particle velocity or other physical parameter, ~n a medium with internal forces that causes cempress~on and rarefaction of that medium. The description of sound may include and characteristic of such soune including duration, intensity and frequency. Sound level: The weighted sound pressure level obtained by the use of a sound level meter and frequency weighting network, such as A, B, or C as specified in American National Standards Institute specifications for sound level meters (ANSI). If the frequency weighting employed is not indicated, the A-weighting shall apply. Sound level meter: Any instrument including a microphone, amplifier, an output meter, and http://library6.municodc, com/dcfault-test/DocView/10434/1/140/141 5/29/2009 ARTICLE [. IN GENERAL Page 4 of 4 frequency weighting networks for the measurement of noise and sound levels in a specific manner and which complies with standards established by the Amedcan National Standards Institute (ANSI) specifications for sound level meters. Sound pressure level: The level of a sound measured in dB units with a sound level meter which has,a uniform ("fiat") response over the band of frequencies measured, Sound reproduction device: Any device that is designed to be used or is actually used for the production or reproduction of sound, including but not limited to any amplified musical instrument, radio, televisions, tape recorder, phonograph, loudspeaker, public-address system or any other sound- ampli~ing device. Sound source: Any person, animat, device, oPeration, process, activity, or phenomenon which emits or causes sound. Transient sound: A sound whose level does not remain constant dudng measurement. Unreasonable noise: Any .sound which is defined' in sections 16-6, 16-7 or 16-8 as unreasonable. Vibration: An oscillator~ motion of solid bodies of deierminiStic or random natures described by displacement, velocity or accel.eration with respect to a given reference point. (Ord. No. 1850/96, § 1, 5-21-96) http://library6.municode.com/default-test/DocView/10434/1 / 140/141 5/29/2009 ARTICLE II. PROHIBITED ACTS Page 1 of 3 ARTICLE II. PROHIBITED ACTS Sec. 16-5. Unreasonable noise prohibited. No person shall make, cause, allow, or permit to be made any unreasonable noise within the geographical boundaries of the city or within those areas over which the city has jurisdiction, including the waters and beaches adjacen~ to, abutting or bordering the city. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-6. Specific acts considered to be unreasonable noise. Any of the following acts and causes thereof.which either annoy, disturb, injure or endanger the comfort, repose, health, peace or safety of a reasonable person of normal sensibilities are declared to be in violation of this chapter and to constitute unreasonable noise: A.* No person shall operate or use or cause to be operated any loud speaker, public- address system or. similar amplification device betweenthe hours of 11:00 p.m: and 8:00 a.m., except when used in connection with a public emergency by officers of the police department, fire department or of any municipal entity. B, Using or operating any sound reproduction device for commercial or business advertising purposes or for the purposes of attracting attention to any performance, show or sale or display of merchandise in connection with any commercial operation in front or outside any building, place or prem;ses, or through any aperture of such building, place or premises, abutting On or adjacent to any public right-of-way, or ~n or upon any vehicle operated, standing or being in or on any public right-of-way, or from any stand, platform or other structure, or from any a;rplane or other device used for flying over the city, or on a boat on the waters within the jurisdiction of the city or anywhere on any public right--of-way. Nothing in this subsection is intended to prohibit sound emanating from sporting,public entertainment or other public events where such devices are used, C, No animal or bird owner shall permit any animal to cause annoyance, alarm, or noise disturbance for more than fifteen (15) minutes at any time of the day or night, by repeated barking, whining, screeching, howling, braying or other like sounds which can be heard beyond the boundary of the owner's property. D. The shouting, yelling, calling, or hooting at any time or place so as to annoy or disturb the quiet, comfort and repose of a reasonable person of normal sensibilities. E. The shouting, yelling, crying or hooting of peddlers, hawkers and vendors. F. No persop shall cause or permit the creation of any noise by means of any device or otherwise on any sidewalk, street or public place adjacent to any school, court, house of worship or public library while such facility is in use or adjacent to any hospital or nursing home at any time, so that such sound disrupts the normal activities conducted at such facilities or disturbs or annoys persons making use of such facilities. G. No person shall engage in, cause or permit the loading, unloading, opening, closing or other handling of boxes, crates, containers, building materials or' similar objects between the hours of 8:00 p.m. and 7:00 a.m. the following day in such a manner as to cause unreasonable noise across a residential real property boundary. H. No person shall cause or permit to be caused the sounding of any horn or other http ://library6 .municode. com/default-test/DocView/10434/1 / 140/142 5/29/2009 ARTICLE II. PROHIBITED ACTS Page 2 of 3 auditory signaling device on or in any motor vehicle except to serve as a waming of danger. No person shall operate or permit to be operated any tools or equipment used ~n construction, drilling, excavations or demolition work, between the hours of 8:00 p.m. and 8:00 a.m. the following day or any time on Sunday or legal holidays prior to noon, except the provisions of this section shall not apply to emergency work. J. No person shall cause or permit the operation of any device, vehicle, construction equipment or lawn maintenance equipment, including but not limited to any diesel engine, internal combustion engine or turbine engine, without a properly functioning muffler, in good working order and in constant operation regardless of sound level produced. K. Any excessive or unusually loud sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable person of ngrmal sensibilities. (Ord. No. 1850/96, § I 5-21-96) Sec. 16-7. Maximum permissible continuous sound levels. In addition to those specific prohibitions set forth in section 16-6 hereof, the following general prohibitions regarding continuous sound levels shall apply in determining unreasonable noise: A. No person shall make, cause, allow, or permit the operation of any source of sound on a particular category of property or any public space or nght-of-way in such a manner as to create a sound level that exceeds the particular continuous sound level limits set forth in table 16-1 below when measured at or within the real property line of the receiving properly except as provided in subsections I2) and (3). B. When measuring noise within a dwelling unit of a multi-dwelling-unit building, all exterior doors and windows shall be closed and the measurements shall be taken in the center of the room. C. When measuring on Ocean Beach Park noise shall De measured at the center of the boardwalk at a point directly perpendicular to the source. (Ord. No. 1850/96, § 1, 5-21-96) Table 16-1. Maximum Permissible Continuous Sound Levels by Receiving Property Category, in dBA TABLE INSET: Commercial Industrial Sound Another Dwelling- or Public Ocean or Public Source Within a Service or Beach Property Multidwelling Unit Residential Community Service Park or Industrial Category Building Service Facility Parks Facility (Tam- (Tam- 10pm) (10pm- 1Opm) (10pm- (Alltimes) (Alltimes) (6am- 7am) 7am) 11pm) Any location within a http://library6.mufflcode.com/default-test/DocView/10434/1/140/142 5/29/2009 .ARTICLE II. PROHIBITED ACTS Page 3 of 3 multi- dwelling 50 45 65 50 70 75 65 unit building Residential {Or public spaces or rights-of- 65 50 70 75 65 way) Commercial or public serv!ce or community 65 50 70 75 65 service facility Industrial or public service industrial 65 50 70 75 65 facility. Sec, 16-8. Maximum permissible impulsive sound levels. In addition to those specific prohibitions set forth in section 16-6 hereof, the following general prohibitions shall apply regarding impulsive sound levels in determining unreasonable noise: No person shall make, cause, allow or permit the operation of any impulsive source of sound within any and all property in the city which has a peak sound pressure level in excess of eighty (80) dBA. If an impulsive sound is the result of the normal operation of an industrial or commercial facility and occurs more frequently than four (4) times in any hour the levels set.forth in Table 16-1 shall apply. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-9. Motor vehicles. A. Motor vehicle sound levels limits and equipment shall be in compliance with provisions of any state law including but not limited to Sections 386 and 375 Of the New York State Vehicle and Traffic Law. B. No person shall operate a vehicle in such a manner as to cause unreasonable noise by spinning or squealing the tires of such vehicle. C. No person shall allow noise from an automobile alarm in excess of five (5) minutes after it has been activated. (Ord. No. 1850/,96, § 1, 5-21-96) Sec. 16-10. Vessels and boats. A. Vessel and boat sound level limits and equipment shall be in compliance with provisions of any state law including but not limited to Section 44 of the New York state Navigation Law. B. No person shall operate or permit to be operated any vessel, boat, jet ski or similar machinery in any canal, channel, ocean or tidal waterway at any time, at any speed and at any manner whatsoever, as to exceed a sound level of sixty-five (65) dB(A) at the nearest shoreline or at fifty (50) feet, whichever distance is less. (Ord. No. 1850/96, § I 5-21-96) http://libraty6.muffmode.com/default-testIDocView/10434/1/140/142 5/29/2009 ARTICLE III. EXCEPTIONS Page I of 1 ARTICLE III. EXCEPTIONS Sec. 16-11. Exceptions. Regardless of the decibel limits, the provisions of this chapter shall not apply to: A. Sound and vibration emitted for the purpose of alerting people in an emergency. B. Sound and vibration emitted in the performance of correcting an emergency. C. Sounds created by chumh bells or chimes, when a part of a religious observance or service, provided such activity does not occur between 10 p.m. and 7 a .m. D. Sounds created by any government agency by the use of public warning devices. E. Noise from domestic power tools, lawn mower~, leaf blowers and agricultural equipment when operated with a muffler' between the hours of 8:00 a.m. and 8:00 p.m. on weekdays and 9:00 a.m. and 8:00 p.m. on weekends and legal holidays, provided they produce less than 'seventy-five (75) dBA at or within any real property line of a residential property. F. Noise from snow blowers, snow throwers, and snow plows when operated with a muffler for the purpose of snow removal G. Noise from an exterior burglar alarm of any building or motor vehicle provided such burglar alarm shall terminate its operation ~Nithin five (5) minutes after it has been activated. H. Noise from construction activity provided all motorized equipment used in such activity is equipped, where applicable, with functioning mufflers, except as provided in section 16-6. I. Noise generated by municipality sponsored concerts and events designed to promote the health, safety or welfare of the citizens of Long Beach. (Ord. No. 1850/96, § 1, 5-21-96; Ord. No. 1911/99, § 1, 3-16-99) http://library6.murficode.com/default-test/DocView/10434/I/140/143 5/29/2009 · ARTICLE IV. POWER, DUTIES AND QUALIFICATIONS Page 1 of I ARTICLE IV. POWER, DUTIES AND QUALIFICATIONS Sec. 16-12. Enforcement and administration. The noise control requirements established by this chapter shall be administered and enforced jointly by the Long Beach police department, Long Beach building department, Long Beach department of public works and such other employees and/or officials authorized by the City Manager. Violation of any provision of this chapter shall be cause for a summons to be issued. (Ord. No. 1850/96, § I 5-21-96) Sec. 16-13. Qualifications. Persons shall be considered qualified to' make' noise measurements and to enforce all portions of this chapter, who have satisfactorily completed the community noise enforcement course offered by the Department of Environmental Sciences of Cook College, Rutgers, the State University, and the required recertification course every two (2) years or any other accredited course selected by the city manager. (Ord. No. 1850/96, § I 5-21-96) http://library6.municode.com/default-test/DocView/10434/1/140/144 5/29/2009 · ARTICLE V. PENALTIES Page 1 of 1 ARTICLE V. PENALTIES Sec. 16-14. Penalties. Any person who violated any provision of this chapter shall be deemed guilty of an offense and, upon conv~ction thereof, shall be subject to penalties in the following manner: (1) Upon a first conviction, by a fine not less than fifty dollars ($50.00) and not more than two-hundred fifty dollars ($250.00) or by imprisonment for a period not to exceed seven (7) days or by both such fine and imprisonment. (2) Upon a second conviction, by a fine not less than one hundred dollars ($100.00) and not more than one thousand dollars I$1,000.00) or by imprisonment for a period not to exc.eed ten ('10) days or by both such fine and imprisonment. (3) Upon a third or subsequent conviction, by a fine not less than two hundred fifty dollars ($250.00) and not more than three thousand dollars .($3,000.00) or by imprisonment for a period not to exceed fifteen ('15) days or by both such fine and imprisonment. (4) If the violation is of a continuing nature, each day dudng which it occurs shall constitute an additional, separate and distinct offense. (Ord. No. '1850/96, § 1; 5-21-96) http://library6.municode.com/default_tesffDocView/10434/1 / 140/145 5/29/2009 . -ARTICLE VI. VARIANCES Page 1 of 2 ARTICLE VI. VARIANCES Sec. 16-15. Application for special variance. The city council shall have the authority to grant special variances for limited times and purposes of this chapter. Any person seeking a special variance pursuant to this section shall file an application with the council. The application shall consist of a letter signed by the applicant and shall contain a legal form of verification. Such letter shall Contain information which demonstrates that bringing the source of sound or activity for which the variance ~s sought into compliance with this chapter would constitute an unreasonable hardship of the applicant, on the community or on other persons. In addition, the following information shall be provided: A. The plans, specifications and any other information pertinent to the source of'sound and vibration B. The characteristics of the sound and vibration emitted by the source, including but not limited to the sound levels, the presence of impulse sounds or discrete (pure) tones, the day(s) and hours during which such vibration and sOund is generated. C. The noise abatement and control methods used to restrict the emissions of the sound and vibration. D. A time schedule for the installation of noise abatement and control devices, technology and procedures or process modifications that will be followed to restrict the emissions of sounds and vibrations. E. The name and address of the applicant and the applicant's agent, if any, and whether the applicant is the owner, lessee, licensee, etc, of the premises. If the applicant is not the owner, the application must contain the written consent of the owner. F. The names and addresses of all owners of contiguous land within five hundred (500) feet of the premises. The applicant in like manner shall give notice of the application ~)y certified mail return receipt requested to all property owners surrounding the sound source site within a radius of five hundred (500) feet from the borders of said site. G. A filing fee of twenty-five dollars ($25..00). (Ord. No. 1850/96, § 1, 5~21-96) Sec. 16-16. Public hearing and decision. Upon prior reasonable public notice published in the official newspaper of the City of Long Beach and upon a public notice board designated for that purpose by the city clerk in the city office of the general vicinity thereof for a minimum of ten (10) days, the city council shall hold a public hearing on the special variance application. The council, uoon reviewing all input from the public hearing and obtaining any additional data or information as deemed necessary, shall then pass upon the application by resolution. The decision shal~ be transmitted to the city clerk, who will advise the applicant of such decision by transmitting a copy of the special vadance application to the applicant, with the decision and conditions, if any, imposed by the city council attached. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-17. Applicant to obtain other necessary permits. http://library6,municode,com/default-testlDocView/10434/1/140/146 5/29/2009 . -ARTICLE VI. VARIANCES Page 2 of 2 This chapter does not preclude the necessity of the applicant to obtain the approval or permit required by any other agency before proceeding with the action approved under the approved special variance. No action may be initiated by the applicant until such time that other permits, as may be required, are issued (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-18. Variance to.be available for inspection. The applicant or his agent shall have' readily available the approved special vanance at the location or site for which the vanance has been issued and shall show same to any agent of the city whenever requested. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-19. Activity open to inspection. Activity conducted under the special variance shall be open to inspection at any time by any agent of the city. (Ord. No. 1850/96, § 1, 5-21-96) Sec. 16-20. Powers and duties of the city council. A. In determining whether to grant or deny the application, the council shall balance the hardship to the applicant, the community and other persons of not granting the variance against the adverse impact on the health, safety and welfare of persons affected, the adverse impact on the property affected and any other adverse impacts of granting the special variance. B. In connection with this section'the council shall cause the taking of sound level readings ~n the event that there shall be any dispute as to the sound levels prevailing or to prevail at the sound source site. C. The council shall have the power to impose restrictions, conditions and the recording of covenants upon any sound source site including time limits on permitted activity in the event that it shall grant any variance hereunder. (Ord. No. 1850/96, § I 5-21-96) Sec. 16-21. Severability. If any provision of this chapter is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction the remaining provisions of the chapter shall not be invalidated. (Ord. No. 1850/96, § 1, 5-21-96) http://library6.municode, com/default-test/DocView/10434/1/140/146 5/29/2009 Wef i[avv. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) P~cl United States Court of Appeals, Second Circuit. Kevin DEEGAN, Plaintiff-Appellant, CITY OF ITHACA, Mariette. Geldenhuys, in Her Official Capacity as City Attorney of the City of Ithaca, and Richard Basile, in His Official Capacity as Chief of Police of the City of Ithaca, Defendants- Appellees, Docket No. 04-4708 CV. Argued: July 11, 2005. Decided: April 6, 2006. Background: Preacher brought § 1983 action chal- lenging constitutionality of city's noise regulati~as. The United States District Court for the Northern District of New York, Norman A. Mordue,. J., 2004 WL 1784347, entered summary judgment for city. Preacher appealed. Holdings: The Court of Appeals, Hall, Circuit Judge, held that: LD public pedestrian mall was public forum; ~ regulations, as applied to prohibit any sound that could be heard 25 feet fi.om its source, violated flee speech guarantees; 3~) regulations failed m provide preacher with fair notice of conduct they proscribed, and thus violated his due process rights; and 4L~ regulations were not enfomed selectively against preacher, so as to violate his equal protection rights. Reversed and remanded. West Headnotes Municipal Corporations 268 ~[~:~>121 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 268IV{B} Ordinances and By-Laws in Gen- eral 268k121 lc Proceedings m Determine Va- lidity of Ordinaoces. Most Cited Cases ' A challenge m the constitutional validity of a local ordinance presents a question of law. 121 Constitutional Law 92 9~2 Constitutional Law 92XVIII Freedom of Speech, Expressmn, and Press 92XNIII(G) Property and Events 92XVIII(G)2 Government Property and Events 92k1758 lc Public Squares, Plazas, and Greens. Most Cited Cases (Formerly 92100.1(4)) Public pedestrian mall located in city's downtown was public forum for purposes of flee speech chal- lenge to noise ordinance, where Plaque in mall stated that it was "public gathering place, Commercial cen- tc~' and community focal point," and mall was used routinely for wide array of community, educational, performing, and other expressive events and activi- ties. U.S.C.A. Const. Amend. 1. [31 Constitutional Law 92 ~:::~1737 92 Constitutional Law 92XVIiI Freedom of Speech, Expression, and Press ~2XVIII(G) Property and Events 92XVIII(G)2 Government Property · Events 92k1736 Traditional Public Forum in General 92k1737 lc In General. Most Cited Cases (Formerly 92k90.1 (4)) Speech finds its greatesl prote~lion in tradifionsl pub- lic fora. U.S.C.A. Const. Amend. 1. 141 Constitutional Law 92 ~:::~1512 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII{A) In General 92XVIIl(A)l In General 92k1511 Content-Neutral Regulations © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 2 or Restrictions · 92k1512 lc In General. Most Cited Cases_ (Formerly 921490(3)) Constitutional Law 92 ~:z:~1514 ~ Constitutional Law 92XViIl Freedom of Speech, Expression, and Press 92XVIlI(A) In General 92XVIII(A)l In General 92k1511 Content-Nenual Regulations or Restrictions .92k1514 lc Narrow Tailoring Re- quiremem; Relationship to Governmental Interest. Most Cited Cases (Formerly 92k90(3)) Constitutional Law 92 ~z::~1515 92 Constitutional Law 92XVH1 Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)I In General 92k1511 Content-Neutral Regulations or Restrictions 92k1515 lc Existence of Other Channels of Expression. Most Cited Cases (Formerly 92100(3)) To withstand a constitutional challenge under inter- mediate scrutiny, government restrictions on speech must be: (1) content neutral, in that they target some quality other than substantive expression; (2) nar- rowly tailored ~ serve a significant governmental ~nterest; and I3) permit alternative channels for ex- pression. U.S.C.A. Const. Amend. 1. 151 Constitutional Law 92 92 Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIII(A) In General 92XVIII(A)I Ia General 92k1504 lc Exercise of Police Power: Relationship to Governmental Interest or Public Wel- fare. Most Cited Cases (Formerly 92k90(3)) In a free speech challenge, the entity that enaemd a challenged regulation has the burden to demonstrate that the interest served justifies the restriction im- posed. U.S.C.A, Const. Amend. ] Constitutional Law 92 ~:::~1840 92_ Constitutional Law 92XVIII Freedom of Speech, Expression, and Press 92XVIIl(J) Noise and Sound Amplification 92k1840 lc In General. Most Cited Cases (Formerly 92k90.1(1)) Determimng whether a city's noise regulations accord with' free speech gnarantees involves a fact specific and situation specific inquiry. U.S.C.A. Const. Amend. 1. [71 Constitutional Law 92 ~::~1840 92 Constitutional Law 92XVIII Freedom ol~ Speech, Expresston, and Press 92XVlIi(J) Noise and Sound Amplification 92kl 840 lc In General. Most Cited Cases (Formerly 92k90.1 (4)) Municipal Corporations 268 ~:::~596 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and F~xereise of Power 268k596'lc Public Peace and Order. Most Cited Cases City's noise regulations, as applied to prohibit any sound that could be heard 25 feet from its source in downtown pedestrian mall. were nol narrowly tai- lored to serve city's legitimate interest in preventing unreasonably injurious, annoymg, or disturbing sound, in that such interpretation prohibited not only protected speech, bu! also activities that mall was meant to facilitate. U.S.C.A. Const. Amend. 1. [81 Constitutional Law 92 ~;zz~1509 92 Constitutional Law 92XVIII Freedom of Speech, Expresston, and Press 92XVIII(A) In General © 2009 Thomson Reuters/Wesc No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 3 92XVIIl(A}I In General 92k1508 Time, Place, or Manner Re- strictions 92k1509 k. In General. Most Cited Cases (Formerly 92k90(3)) The "narrowly tailored" standard for a flee speech challenge does hot tolerate a time, place, or manner regulation that may burden substantiaily more speech than necessary to achieve its goal, nor does it require that the least restrictive alternative available be ustd. U.S.C.A. Const. Amend. I. [9[ Federal Courts 170B 170B Federal Courts 170BVHI Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review 170BVIII{D)I Issues and Questions in Lower Court 170Bk611 lc Necessity of Presentation in General. Most Cited Cases Generally, the Court of Appeals considers addressing arguments raised for the first time on appeal as im- prUdent, even though there is no jurisdictional bar to doing so. 110[ Federal Courts 170B ~;:~613 170B Federal Courts 170BVIII Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of G-rounds of Review 170BVIII(D)I Issues and Questions in Lower Court 170Bk612 Nature or Subject-Matter of Issues or Questions 170Bk613 lc Constitutional Ques- tions. Most Cited Cases Although equitable factors do not weigh heavily in favor of discretionary review of belated argument, which could have been raised to district court, Court of Appeals would exercise its discretion to rexqcw merits of due process challenge to city's noise ordi- nance, s'mea question presented was purely legal and required no further development of record. U.S.C.A. Const. Amcnd. 14. [11 [ Constitutional Law 92 ~=:~4085 9~2 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions ~2XXVII(G)3 Property in General 92k4085 lc Nuisances and Nuisance Abatement. Most Cited Cases (Formerly 92k251.4) Municipal Corporafion~ 268 ~:~594(2) 268 Municipal Corporations 268X Police Power and Regulations 268X{A) Delegation, Extent, and Exemise of Power 268k594 Ordinances and Regulations m General 268k594(2) k. Form and Sufficiency in General. Most Cited Cases City's noise regulations failed to provide preacher with fair notice of conduct they proscribed, and thus violated his due process rights, inasmuch as nothing in regulations indicated that city would apply them as bright line proscriptions of any sound that could be heard at distance of 25 feet anywhere, at uny time. U.S.C.A. Const. Amend. 14. 1121 Constitutional Law 92 ~;~3782 9_.2 Constitutional Law 92XXVI Equal Protection 92XXVI(F) Criminal Law 92k3782 k. Selective Enforcement in Gen- eral. Most Cited Cases (Formerly 921{211(3)) Municipal Corporations 268 ~D::~596 268 Municipal Corporations 268X Police Power and Regulations 268X{A) Delegation, Extent, and Exemise of Power 268k596 k. Public Peace end. Order. Most Cited Cases City nmse regulations were not enfomed selectively against preacher, so as to viola~ his equal protection tights, even if singers exceeding maximum nozse level were not disturbed by police, where there was no indication that complaints were received about © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 4 persons nther than preacher, and there was no indica- tion whether singers had permit for sound amplifica- tion. U.S.C.A. Const. Amend. 14. 1131 Constitutional Law 92 ~[~'3045 92 Comfitutional Law 92XXVI Equal Protection 92XXVI(A) In General 92XXVI(A)5 Scope of Docaine in General _92k3045 k. Enforcement, Application, or Administration in General. Most Cited Cases (Formerly 92k211(3)) Constitutional Law 92 ~=~3055 9~2 Constitutional Law 92XXVI Equal Protection 97XXVI(A) In General 92XXVI(A)6 Levels of Scrutiny 92k3052 Rational Basis Standard; Rea- sonableness 92k3055 lc Similarly Situated Per- sons; Like Circumstances. Most Cited Cases (Formerly 92k213.1 (2)) To prove a seleffive enforcement claim under the Equal Protection Clause, a plaintiff must demonstrate that laws were not applied to him as they were ap- plied to similarly situated individuals, and that the difference was intentional and unreasonable. U.S.C.A. Const. Amend. 14. '137 Natlmn W. Kelhim, Alliance Defense Fund, Memphis, Tennessee, for Plaintiff-Appellant. Timothy J. Perry, Sugarman Law Firm, Syracuse, New York, for Defendants-Appellees. Before: WESLEY and HALL, Circuit Judges, SCULLIN. District Judge?* FN* The Hon. Frederick J. Scullin, Jr., Chief Judge of the United States District Court for the Northern District of New York, sitting by designation. HALL, Circuit Judge. Plaintiff-Appellant Kevin Deegan commenced this action, pursuant to 42 U.S.C. §§ 1983 & 1988, seek- mg damages as well as declaratory and injunctive relief against the City of Ithaca, New York, the City Attorney Martittte Geldenhuys, and the Chief of Po- lice Richard Basile (collectively, "Defendants"). Deegan alleged that his First and Fourteenth Amendment rights were violated when he was pre- vented, under the purported authority of mumcipal noise ordinances, from preaching in Ithaca Com- mons. Following disoovery, the District Court enter- mined cross motions for summary judgment and Solved the ease on a record consistini~ of facts stipu- lated by the parties and the testimony of Deegun's noise expert. The District Court granted Defendants' motion and dismissed the complaint. We 'find that the challenged noise ordinances, ns in- terpreted, construed, and enforced by Defendants againat Deegan cannot withstand constitutional scm- tiny: Therefore, we remand the case to the District Court with instructions to enter judgment in favor of Deegan and award him appropriate relief. BACKGROUND Plaintiff Kevin Deegan, a resident of West Seneca, New York, believes that he has a duty as a Christian to preach, and he has carried out that tenet of his faith for more than twenty years by speaking in raised voice to passers-by-in public areas such as parks, malls, streets and sidewalks. In Decgan's view, that method of communication enables him to reach as many people as possible and stimulate dialogue about his religious beliefs. With that purpose, Decgan and three, of his colleagues visited Ithaca Commons o11 October 9, 1999. Ithaca Commons is a two block, "T" shaped public pedestrian mall located in downtown Ithaca with waikways, benches, a playground, storefronl busi- nesses, restaurants, several pavilions, and a water fountain with nearby seating. In addition to attracting patrons to the many businesses located on the Com- mons, the area serves as a general gathering place and a popular "hang out" for students from nearby colleges. Musicians and other enterlainers perform regularly in the Commons, which is also the site of numerous community events, such as the Downtown Ithaca Chili Cookoff and Winterfest, Ithaca Festival Craft Show, M & T Bank Summer Concert Series, and the Apple Harvest Festival, which draw thou- sands of visitors and feature exhibitions, concerts, poetry readings, and dance, among other things. It © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 FBd 135) Page 5 has also been a forum for demonstrations and protests highlighted by speeches, music performances, marches, and open discussion concerning a variety of' issues '138 including nuclear weapons, environ- mental protection, animal rights, gay and lesbian rights, and campaign finance reform. Shortly after Deegan and his colleagues positioned themselves in the middle of the '~T" and began preaching,. Deegan was approached by an Ithaca po- lice officer who was responding ~ a noise complaint lodged by an employee of a ne~irby business; no one else complained about Deegan's preaching. The offi- cer did not interview the complainant or other wit- nesses; rather, upon hearing Deegan and his compan- ions, the officer advised him that their speech vio- la~l ~e ithaca noise ordinance because it could be heard from 25 feet away in the Ithaca Commons ~ and further advised him tb keep the volume of his speech lower. Wbea Deegan asked whether he could relocate to a s~eet comer outside of the Commons, the officer informed him that the ordinance applies anywhere in the city. At Deegan's request, the officer left to get a copy of the ordinance. While the officer was away, Deegan heard a singing group 200 feet from his location and heard peopl6 talk/rig who were more than 25 feet from him; they were left undisturbed and there is nothing inthe re- cord regarding complaints about other people. Al- though Deegan attempted to speak more soffiy, when the officer returned ten minutes after departing, he t61d Deegan that even the lower volume violated the ordinance. The officer provided Deegan with a copy of the Ithaca noise ordinance. After reviewing the statute, Deegan voiced disagreement that its provi- sions required him W speak so low as not to be heard 25 feet away, but the officer informed him that he had to keep his voice at that level or ['ace arrest. The officer described Deegan as delivering his speech "persistently and continuously" and speaking at the "top of his lungs." Deegen chose not to communicate his message by speaking in a volume that carried no more than 25 feet or by circulating brochures, and he did not seek a permit to use amplified sound. Con- cluding that he could not comman~cate effectively and also comply with the ordinance, Deegan left Ithaca en October 9, 1999, never to return to preach because his subsequent request for penmssion to speak in a voice that is audible at a distance of more than 25 feet was denied by Defendants. Section 240-4 of the City of Ithaca Municipal Code provides in relevant part: § 240-4. Unreasonable noise prohibited. A. No person shall intentionally cause public incon- venience, annoyance or alarm or recklessly create a risk thereof by making unreasonable noise or by causing unreasonable noise w be made. B. For the propose of implementing and enforcing the standard set forth in Subsection A of this section, "unreasonable noise" shall mean any sound created or caused to be created by any person which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of the public or which causes injury to animal life or damages to property or business. Factors to be considered in determining whether unreasonable noise exists in s given situation include but are not limited to any or all of the following:' (1) The intensity of the noise. (2) Whether the nature of the noise is usual or un- usual. (3) Whether the origin of the noise is associated with nature or human-made activity. (4) The intensity of the background noise, if any. '139 (5) The proximity of the noise to sleeping facili- ties. (6) The nature and the zoning district of the area within which the noise emanates and of the area within 500 feet of the source of the sound. (7) The time of the day or night the noise occurs. (8) The time duration of the nmse. (9) Whether the sound source is temporary. (10) Whether the noise is continuous or impulsive. (11) The v6lume of the noise. 2009 Thomson Reuters/West. No Claim to Orig: US Gov. Works. 444 F.3d 135 444 F.3d 135 ¢Cite as: 444 F.3d 135) Page 6 (12) The existence of complaints concerning the noise from persons living or working in different places or pmunses who are affected by the noise. Municipal Code of the City of Ithaca, New York § 240-4 (the "Noise Ordinance"). Joint Stipulation * 34. Ithaca Commons also has an ordinance regulating amplified sound, which provides in relevant part as follows: § 157-18. Amplified sound, A. Except by special permit ... no person shall oper- ate or cause to be operated on Ithaca Commons any boom box, tape recorder, radio or other device for electronic sound amplification in a loud, annoying or offensive manner such that noise from the de- vice 'interferes with conversation or with the com- fort, ~pose, health or safety of others within any building 6r at a distance of 25 feet or greater. Municipal Code of the City of Ithaca, New York § 157-1g (the "Sound' Amplification Rule"). Joint Stipulation ¶ 35. There is nothing in the Joint Stipela- tion to suggest that Deegan was provided with a copy of Section 157-18 on October 9, 1999. With respect m the enforcement of the two noise ordinances, the parties stipulated that Defendants prohibit any noise that can be heard 25 feet away. Id. at ¶ 36. Deegan commenced this civil rights action on Octo- bm- 6, 2000. He asserted a single cause of action un- der the First and Fourteenth Amendments alleging violations of his rights to freedoms of association and assemblyl free exercise of religion and equal protec- tion. Following discovery, the District Court denied the parties' cross motions for summary judgment. Thereafter, the parties stipulated that the foregoing facts and the testimony of Deegan's noise expert would constitute the entire trial record upon which the District Court'would dispose of the case. Dee,gan v. Ciiv of Ithaca, No. 5:00-CV-1531, 2004 Wl. 1784347, *3 (N.D.N.Y. Aug. 10, 2004). The District Judge qualified Thomas S. Katra as an expert in noise and noise measurement and adopted Katrals factual findings as follows: [T]ha Court finds that Katra made his measurements in February at the same place and time of day as the October 9. 1999 incident in issue; that 56 deci- bels was the maximum noise level at which a per- son could speak and still be in compliance with the ordinance 50 percent of the time; that this decibel level is lower than that generated by the clicking of high-heeled boots, conversations between two or three people, a shop door opening and closing, a small child playing on a playground and a cellular telephone; that most normal human activity would be clearly audible at a distance of 25 feet; and that a spirited conversation between two people would be clearly audible at a distance of 25 feet. The Court further finds that there is no evidence regard- ing how many people were in "close proximity" (six to eight fee0 of plaintiff while he was preach- ing; that Katra did not measure the d~cibel level of plaintiffs preaching; that the duration'q40 of a loud sound is an important factor in whether it is annoying or alarming; and that factom such as an- noyance and alarm cannot be scientifically meas- ured. Id. at *4. The District Court did not adopt Katra's opinions and expressly rejected the opinion that un- der the conditions at Ithaca Commons, Deegan's" 'mode of communication, that being preaching, [can- not] comply with the 25-foot restriction.' "Id. at *3. Noting that the parties stipulated to define "preach- ing'' as" 'speech that can be heard beyond twenty- five feet,' "the District Court reasoned that "proof that plaintiff cannot 'preach~ is not proof that he can- not reasonably make his message heard." Id. at *4. The Dis~ict Court. found no evidence m support a conclusion that Deegan's speech must be heard fi'om more than 25 feet away in order to communicate his religious message. Id. at *6. The District' Court also expressly rejected Katrals opinion that the subject ordinance is incompatible with Ithaca Commons, finding the opinion unsupported, unexplained and irrelevant because" 'compatibility' was not an issue here." Id. at *4, The District Court determined that Deegan failed to carry his burden to establish that the noise ordinance %5olate[d] the First Amendment requirements of content-neutrality, narrow tailoring or alternative channels of communication" and that he did no! demonstrate that "the ordinance was selectively en- forced against him in violation of the Equal Protec- tion [C]lause." Id. at *7. Accordingly, the District Court entered judgment in favor of the defendants, © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) P~e7 and Decgan appealed. DISCUSSION As written, the City of Ithaca Noise Ordinance end the Ithaca Commons Amplified Sound Rule do not necessarily raise constimOonal concern The Noise Ordinance identifies twelve nonexclnsive factors to be considered in determining whether noise is "un- reasonable." None of the factors is weighted. The Amplified Sound Rule prohibits, in the absence of a special permit, amplification "in a loud, annoying or offensive manner such that noise from the device interferes with conversation or with the comfor[ re- pose, health or safety of others within any building or at a distance of 25 feet'or greater." With regard to application of the ordinances, the parties stipulated as follows: The City of Ithaca, City Attorney for City of Ithaca [sic], end the City of Ithaca police department, in- tcn-pret, construe, and enforce the City of Ithaca and Ithaca Commons noise ordinances, specifically sections 240-4 and 157-18, to prohibit any noise that can be heard 25 feet away. This prohibition applies to any type of noise, including speech, whether the noise is amplified or nnamplified and whether in Ithaca Commons or in the city. Joint Stipulation ¶ 36. In other words, as applied by the City and its enforcement authorities, the statutory considerations for determining whether noise ts ex- cessive or unreasonable are displaced by a bright line role restricting eny noise-anywhere in the city at any time of the day or night-if it "can be heard 25 feet away." Id. (emphasis added). The ot/dinances do n~t on their face suggest such an application. Applied as they are, however, the ordinences cannot survave constitutional review, On appeal, Defendants argue repeatedly that noise regulations require consideration of the twelve fac- tors set forth in Section 240-4 in the context of the location in which the noise is generated. Although such a multi-factor reasonableness determination certainly is indicated by the statotory*141 text, De- fendents cannot escape their stipulated representation thai the standard does not, in practice, g~ide their interpretation, construction, and enforcement of the regulations. Accordingly, the undisputed fact to which we apply the relevant constitutional standard is that noise that is audible at a distance of 25 feet is illegal in the City oflthaca. A. Standard of review ILL] As noted above, the material facts in this case are not in dispute. We analyze the District Court's appli- cation of the law to those facts de novo. See Mobil Shipping and Transp. Co. v. Wonsild Liquid Carriers, Ltd., 190 F.3d 64, 67 (2d Cir. 1999}. A challenge to the constitutional validity of a local ordinance pre- sents a ql~estion of law. See Ramos v Town o/' Vernon, 353 F.3d 171,174 (2d Cir.2003}. B. First Amendment considerations "[I]n Anglo-American history, at least, government suppression of speech has so commonly been di- rected precisely at religious speech that a free-speech clause without religion would be Hamlet without the- prince." Capitol Square Review and Advisorl~ Bd. v. Pinette,. 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995}. Deegan's religious speech is fully protected by the First Amendment, applicable to the states through the Fourteenth Amendment, and Defendants do no! assert otherwise. See id.; U.S. CONST. amends. I and XIV. As we recently reiter- ated, "The government's authority to regulate speech or expressive conduct on property that has tradition- ally been open to the public for such activity~ such as public streets end parks, is sharply circumacffeed." Hobbs u CountF of Westchester, 397. F.3d 133, 148 (2dCir. 2005) (citatiOns omitted). 1. Forum analysis [21 Defendants argue that Ithaca Commons "is not a public forum in 'the literal or hue sense of that term" end the proximity of residences should be considered when evaluating restrictions on speech. The record, however, clearly establishes that the Commons is a classic public forum, as the term has developed in First Amendmant jurispruden¢e, because it is the type of area traditionally available for public expression end the free exchange of ideas. See Hotel Employees & Restaurant Employees Union v. City of New York Dep't of Parks and Recreation, 311 F.3d 534, 544 (2d Cir. 2002}. The Ithaca Commons Rules expressly provide that the purpose of the enactment is "to pro- mote the general ',yelfare end public use of the area." Municipal Code of the City of Ithaca § 157-2. A © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) P~e8 plaque in the Commons, which the parties describe as "commemorating and stating the purpose for Ithaca Commons," proclaims that the area ~s "dedicated m the citizens of Ithaca as a public gathering place, commemial center and community focal point." Significantly, the Commons is used routinely for a wide array of community, educational, performing and other expressive events and activities. See Hotel Employees Union, 311 F.3d at 547 (noting that the primary factor in determining whether property is a public form is its use). This quality makes Ithaca Commons the type of area that has been described as a '"prototypical" or "quintessential" public forum. See, e.g. Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 377, 117 S.Ct. 855,137 L.Ed.2d 1 (1997) (public sidewalk~ that are associ- ated with ~ exercise of expressive activities are the "prototypical' example of a traditional public forum"); Perr~ 'Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L. Ed.2d 794 (1983) (noting*142 that streets and parks "have im- memorially been held in mast for the use of the pub- lic, and, time out of mind, have been used for pur- poses of assembly, communicating thoughts between citizens, and discussing public questions") (internal quotation marks and citation omitted). 2. Regulating expression in a public forum [3114] ?Speech finds its greatest protection in Wadi- tional public fora" like Ithaca Commons. See Make The Road By Walking, Inc. v. Turner, 378 F.3d. 133, 142 (2d Cir. 2004). "Even in a public forum, [how- ever,] the government may impose reasonable resh'ic- tions on the time, place, or manner of protected speech," and the Supreme Court has articulated a three part test to determine whether such restrictions interfere with rights guaranteed by the First Amend- ment. Ward v. 2(ock Against Racgs'm, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 I1989). To withstand constitutional scrutiny, government resmc- tions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for ex- pression. Id. This standard is commonly referred to as intermediate scrutiny. See, e.g., Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006] (not- ing that "we apply 'intermediate scrutiny' to regula- tions of expressive activity that are not based on con- tent"). [5][6] "In a First Amendment challenge, the govern- ment bears the burden of showing that its restriction of speech is justified under the traditional 'narrowly tailored' test." United States v. Doe, 968 F.2d 86, 90 [D.C.Cir. 19921. The entity that enacted a challenged regulation has the burden m demonstxate that the in- rarest served justifies the restriction imposed. See Eastern Connecticut Citizens Action Group v. Pow- ers, 723 F.2d t050, 1052 {2d Cir. 19831. The District Court erred when it assigned the burden to Deegan. See Deegan, 2004 WL 1784347 at *6. Determining whether Ithaca's noise regnlations accord with the Constitution involves a fact specific and situation specific raquiry. Grayned v. City o£ Rockford, 408 U.S. 10.4, 116-17, 92 S,Ct. 2294, 33 L.Ed.2d 222 (1972). In that regard, [t]he nature of a place, "the pattern of its normal ac- tivifias, dictate the kinds of regulations of time, place, and manner that are reasonable." Although a silent vigil may not unduly interfere with a public libraxy, making a speech in the reading room al- most entlalnly would. That same 'speech should be perfectly appropriate in a park. The crucial ques- tion is whether the manner of expression is basi- cally incompatible with the normal activity of a particular place at a particular time. Id. at 116, 92 S.Ct. 2294 (citations omitted). 3. Balancing the City's legitimate interests with Deegan ~s constitutional rights The parties agree that the subject noise ordinances restaSct the volume of speech and not its content. The baffle lines in this case are thus drawn around Ward's second and third considerations. [7][8] The City has articulated its objective in regu- lating noise in the following statement: The purpose of this chapter is to preserve the public health, peace, welfare and good order by suppress- mg the making, creation or maintenance of exces- sive, unnecessary, unnatttral or unusually loud noises which are prolonged, unusual and unnatural in their time, place and use and which are dca'i- mental to the environment. It is also '143 the pur- © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 9 pose of this chapter to allow all residents of the City to coexist harmoniously in a manner which is mutually respectful of the interests, rights and obli- gations of all persons. City of Ithaca Municipal Code § 240-2. Ithaca has legitimate interest'in keeping sound fi.om reaching a level that is unreasonably "injurious or annoying or disturbing" in furtherance of what the parties describe as the City's concern for "the comfort, repose, health and safety of anyone within its geographical limits." See ~arcnv-Reid v. MEtropolitan Transp. ,4uth., 903 F.2d 9t4, .917 (2d Cir. 1990) (''The elimination of excasstve noise is a substantial and laudable goal?'). To withstand intermediate scrutiny in this case, the ~ontunt-neutral means of furthering the City's interest m protecting its citizens fi.om unreasonable noise must avoid unnecessary intrusion on Deegan's dom of expression. See Ward at 788-89, 109 S.Ct. 2746. The "narrowly tailored" standard does not tol- erate a time, place, or manner regulation that may burden substantially more speech than necessary achieve its goal, nor does it require that the least re- strictive alternative available be used. Id. By targeting noise that is "unreasonable," Ithaca's noise regulations evince an intent to reach noise that exceeds what is usual and customary m a particular setting. The stipulated facts reflect that in addition to being a commercial center, the Commons is used regularly for festivals, performing events, exhibi- tions, political demonstrations, and recreational ac- tivities. These are not quiet pursuits that require a quiet atmosphere. Defendants interpret "unreasonable noise" as sound that "can be heard" 25 feet fi.om its source. Construed in this broad manner, thc regulatory prescriptions of the Noise Ordinance and the Sound Amplification Rule embrace not only Deegan's protected speech, but the sounds that typify the Commons and the ac- fixities it is meam to facilitate. For example, the ex- pert's factual findings, adopted by the District Court, show that the decibel level of speech tha! would comply with the 25 foot rule was often lower than the decibel level generated by the foot steps of a person in high heeled boots, conversation among several people, the Opening and closing of a door, the sounds of a small child playing on the playground, or the ring of a cell phone. Deegan, 2004 WL 1784347, at *3_. These facts so vividly illustrate that the regula- tions as applied restrict considerably more than is necessary to eliminate excessive noise that we need hardly say more. Quite simply, a noise regulation that prohibits "most normal human activity," including a spirited conversation by only two people, is not .nar- rowly tailored to serve the City's interest in maintain- ing a reasonable level of sound, at least in a public forum like the Commons. Our conclusion is consistent with those of other courts assossmg thc constitutional validity of similar noise ordinances under the second prong of the Ward test. The D.C. Circuit ruled that a federal national parks regulation prohibiting sounds from "audio de- vices" generating a higher than prescribed ~decibel level was not a pomaissible time, place, and manner restriction. Doe,. 968 F.2d at 86. The Doe plaintiff, who participated in a political protest in Lafayette Park in Washington D.C., received several warnings and' subsequently was arresteat by the park police because her dram beating exceeded a noise level of 60 decibels at 50 feet. Id. at 87 (citing 36 C.F.R. 2.12{a)(1)(i) (1991)). Recognizing the government's interest in maintaining a mmquil atmosphere in na- tional parks located in wilderness settings, the D.C. (~ireuit distinguished the level of quiet that '144 could be legitimately justified in a public forum like Lafayette Park, which is a "primary assembly point for First Amendmem activity aimed at influencing national policy" and is "exposed to every form Of urban commotion." Id. 88-89. On a record that dem- oastrated that background music, a loud conversa- tion, and even the electric generators operating m Lafayette Park on the day of the plaintiffs arrest would exceed the regulatory standard, the court con- eluded that the restriction was not" 'narrowly tai- lored to promote the government's interest in main- taimng an appropriate level of sound volume in a traditional public forum park during a permitted demonsl~ation.' Id. at 90-91~ see also Reeves v. .McConn, 631 F.2d 377, 388 i. Sth Cir. 1980) (striking down paris of Houston's amplified sound restriction as not sufficiently precise to protect only the city's legitimate interest in prohibiting donduct that (i) leads to "material and substantial disruption oft. be commu- nity or invasions of the rights of others" or (ii) is "clearly incompatible with the normal activity of car- rain locations and certain times"); United State4'.La- bor Part~ v Pomerleau~ 557 F.2d-410, 413 (4th Cir. 1977) (finding unconstitutional a Baltimore noise ordinance that "curtails the amplification of political expression solely because the number of decibels, as © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 10 measured within a few feet of the speaker, exceeds the permissible sound level"); Lilly v. City of Salida, 192 Y.Supp.2d 1191, 1194 (D.Col.2002) (rule ban- ning amplified sound that is audible within 25 feet of propgrty line constitutes complete ban on use of am- plification for any speech and as such is not a reason- able time, place or manner restriction, nor is it nar- rowly tailored to protect against excess noise). Similarly, Defendants cannot justify their even stricter regulation of Decgan's speech in the Com- mons, which is a public forum bustling with the sounds of recreation, celebration, commerce, demon- sttation, rallies, music, poetry, speeches, and other expressive undertakings. Nor does the record demon- strate that Deegan's preaching is mcompatible with these activities. Taking into account the "nature and purposes of the [Commons], along with its ambient characteristics," Doe, 968 F.2~I at 91, we hold that the City of Ithaca Municipal Code Sections 240-4 and 157-18, as interpreted and applied by Defendant, unreasonably burden protected speech and therefore cannot withstand Deegan's constitutional challenge. Because we fred that the challenged ordinances as applied by the Defendants are not nmxowly tailored to serve their objectives, we do not reach the third prong of the Ward test, which requires that content- neutral restrictions permit adequate alternative chan- nels for expression. See Ward, 491 U.S. at 791, ]09 S.Ct. 2746. C. Fourteenth Amendment considerations 1. Fair notice [9][10] In an argument not raised priOr to this appeal, Deegen asserts that he did not have sufficient notice of the conduct that was prohibited by Ithaca's noise regulatious.-Generally, We consider addressing argu~ ments raised for the first time on appeal as impru- dent, even though there is no jurisdictional bar to doing so. See, e.g., Sniado v. ~ank ~tustria AG, 378 F.3d 210, 213 (2d Cir.2004). Although "[e]qultable factors do not weigh heavily in favor of disecetionary review of a belated argument" like Deegan's. which could have been raised to the District Court, we will exercise our discretion to review its merits because the question presented "is purely legal and requires no further deve!opment of the record."ld. '145 "The Due Process Ctause requires that laws be cra~ed with sufficient clarity to ~give the person of ordinary intelligence a reasonable oppommity to know what is prohibited,' and to 'provide explicit standards for those who apply them.' "General Me- dia Commc'ns v. Cohen, 131 F.3d 273, 286 {2d Cir. 1997) (quoting Grayned, 408 U.S. at 108, 92 S.Ct. 2294]. As we have previously observed, the~ue process concern is "whether the statute, either stand- mg alone or as construed., made it reasonably clear at the relevant time that the defendant's conduct was criminal.'" United States v. Roberts, 363 F.3d 118, 123 (2d Cir.2004) (citation omitted). [11 ] Neither the Noise Ordinance nor the Amplified Sound Rule expressly prohibit any noise that can be heard 25 feet away. The Noise Ordinance prohibits 'hnueesonable noise," which is.defined as "any sound ... which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of the public or which causes injury to animal life or dam- ages to property or business" based on analysis of twelve factors addressing the particular circumstance presented. We have upheld similarly worded noise restrictions as sufficiently clear to g~ithstand vague- ness challenges. See, e.g., Howard Opera House v. Urban Outfitters, 322 F.3d 125, 128 f2d Cir.2003) {due process notice requirement satisfied in statute prohibiting "loud or unreasonable noise" defined as that which "distufos, injures or endangers the peace or health of another or ._ endangers the health, safety or welfare of the community") (internal quotation marks and citation omitted); Pro-Choice Network v. Schotck, ~7 F.3d 359, 373 {2d Cir. 1994) (statute de- fining "excessively loud sound" as one that "injures, disturbs, or endangers ... health or safety" is not ~mpennissibly vague). Although those decisions would foreclose a due process challenge to the articu- lation of "unreasonable noise" in the Noise Ordi- nance itself, it is clear fi.om the Defendants' stipula- tions that the statute is enforced based on a single factor not mentioned in the statute. Similarly, Ithaca's Amplified Sound Rul~ does not ban noise that "can be heard 25 feet away." Rather, in the absence of a permit, the statute prohibits "am- plification in a loud, annoying or offensive manner such that noise fi.om the device interferes with the conversation or with the comfort, repose, health or safety of others within any building or at a distance of 25 feet Or greater." City of Ithaca Municipal Code © 2009 Thomson Reuters/West. No C1aim to Orig. US Gov. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) PRell § 157-18 (emphasis added). Nothing in either ordi- nunce indicates that they are to be applied as bright line proscriptions of uny sound that cun be heard at a distance of 25 feet from its source, anywhere, at any time. The Ninth Circuit addressed similar circumstances in Chalmers v. City bf Los .4ngeles, 762 F.2d 753 (9th Cir. 1985], where a vendor was harassed und threat- ened with arrest under the authority of two apparently conflicting vending ordinances despite assurances from city officials who she consulted prior to engag- ing in the sale of t-shirts from a push cart. Affirming judgment in favor of the vendor, the Ninth Circuit observed that the vendor had done all that could be reasonably expected m understand the vending regu- lations, even seelcing clarification and advice from city officials. Id. at. 758. In concluding that the ordi- nances did not" 'afford[ ] fair warning of what was proscribed,' "the Ninth Circuit explained, "We do not hold that the ordinunce scheme itself was neces- sarily a violation of due process. Rather, the due process violation occurred in the manner in which this inconsistent scheme was implemented and en- forced.'' Id. at 758. '146 The reasoning of Chalmers applies here. The Ithaca noise regulations indicate that a number of factors are relevant to determining whether a viola- tion has occurred, but they do not give fair notice that speaking in a voice that can be heard at a distance of 25 feet. without more, constitutes "unreasonable noise." Nevertheless, the City has stipulated that rea- sonableness is detehnined solely on that basis. Like the vending ordinunces in Chalmers, the ordinances at issue in this case do not necessarily violate due process. Rather, it is Defendants' unpredictable con- stmction und application of the ordinance that de- prived Deegan of his fight to understand what con- duct violated the law. The manner in which the Ithaca noise ordinances are enforced makes them constitu- tionally infirm. Defendants posit that the 25 foot guideline set forth in the Sound Amphfication Rule "implicitly applies to excessive unamplified noise as well" and also that the Sound Amplification Rule is enforced in conjunc- tion with the Noise Ordinance reasonableness factors. Neither ordinance refers to the other, but even read together, they do not give notice that "any type of noise, including speech, whether the noise is ampli- fled or unamplified and whether in the Ithaca Com- mons or in the city" is prohibited if "it cun be heard 25 feet away." In that regard, Ithaca's apphcation of its ordinances fails to do what the Constitution re- quires. 2. Equal protection [12][13] The D/strict Court properly denied Deegan's equal protection claim, in which he asserted that he was singled out because the Ithaca noise restrictions are broad und vague. Cf., In re Primus, 436 U.S. 412, 432, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978'} (noting that "broad prophylactic rules in the area of free pression are suspect"). To prove a selective enforce- menl claim, a plahatiff must demonstrate that laws were not applied to him as they were applied to simi- larly situated individuals and that the difference was intentional and unreasonable. Village of Willowbrook u Olech, 528 U.S. ~62, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000} {per curlam); Harlen Assocs. ~ Inc., Kill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001`}. The parties stipulated that while Deegun was in Ithaca Commons on October 9, 1999, although he heard people talking who were beyopd 25 feet bom him and heard a singing group from a distance of approximately 200 feet, everyone other than Deegun and his companions were left undisturbed. These facts in the record, however, do not establish that Deegan was similarly situated to the people hi claimed to hear. For example, the parties' stipulation expressly states that there is no record of complaints about anyone but Deegun; similarly, there is'nothing to indicate whether the singers may have had a permit under the Sound Amplification Rule. Because on the stipulated facts Deegan cannot establish un essential element of his claim that the noise regulations were enforced selectively against him, he cannot prevail on an equal protection theory. CONCLUSION Having determined that Sections 240-4 und 157-18 of the City of Ithaca Municipal Code, as constxued, ap- plied, and enforced by Defendants violated Deegun's First Amendment rights und failed to provide him fair notice of the conduct they proscribe, we conclude that the District Court erred by entering judgment in favor of Defendants and that Deegun is entitled to © 2009 Thomson Reuters/West. No Claim to Orig. US Gev. Works. 444 F.3d 135 444 F.3d 135 (Cite as: 444 F.3d 135) Page 12 judgment as a matter of law. Accordingly. we reverse the judgmem issued by the District Court and remand the case for entry of judgment in favor of Deegan and '147 for a determination and award of the appropri- ate relief. C.A.2 (N.Y.),2006 Deegan v. City of Ithaca 444 F.3d 135 END OF DOCUMENT © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Wdst[aw, 6 Misc.3d t01 I(A) 6 Misc.3d 101 I(A) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 6 Mise.3d 1011(A), 800 N.Y.S.2d 354) P~el This opinion is uncorrected and will not be published in the printed Official Reports. ' THE PEOPLE OF THE STATE OF NEW YORK JACKIE PFLUGER, Defendant HUTO 969-04 District Court of Suffolk County, Third District Decided on December 28, 2004 CITE TITLE AS: People v Pfluger ABSTRACT Constitutional Law Validity of Statute Anti-Noise Ordinance People v Pfluger (Jacl~e], 2004 NY Slip Op 51770(U). Constitutional Law-Validity of Statute- Anti-Noise Ordinance. (Suffolk Dist Ct, Dee. 28, 2004, Hackeling, J.) OPINION OF THE COURT C. Stephen Hackeling, J. DECISION AFTER. TRIAL The People of the State of New York (hereinafter "the People"), via five citizen informations involving three separate dates have accused the defendant Jackie P. Fluger of violating Sec. 141-2 of the Hunt- ington Town Code. A trial of the matter was conducted on December 8, 2004, wherein the Court considered the testimony of witnesses and reviewed documentary exhibits. The Court makes the following Findings of Fact and Conclusions of Law in finding the defendant "Not Guilty" of the alleged offenses. Undisputed Facts The undisputed relevant facts are as follows: 1. The defendant, Jackie Pfluger, is the owner of 12 Marirod Court, Northpor[ New York 2. The defendant resides with her twelve (12) year old son who possesses a yellow moturized "dirt 15ike" 3. The defendant allows her son to ride his dirt bike only upon her real property, both on the drive~vay and around the yard path. 4. The defendant shares an approximate 330 foot boundary with her neighbor, Thomas Laanrdo, which runs near the defendant's driveway.*2 5. Mr. Lasm-do and John Chandler, another neighbor, are the complainants in these proceedings, with each having filed multiple citizen acdnsatory infonnatons dated September 16, 2004, alleging that on August 24, 2004, August 26, 2004 and August 28, 2004, that "the defendant, as owner of... 12 Marirod Court,...allowed an all terrain vehicle to be ddvun...for an extended period of time, creating a volume of noise, considered loud and disturbing to the neighbor" [the complainant]. 6. Mr. Laanrdo has called the police to complain about the "di~ bike" use on 12-15 occasions. No summons were ever issued by the Police. 7. Mr. Lama'do and the defendant have a long history of neighbor animosity and disputed issues including but not limited to 34 incidents involving either the subject "dirt bike" or another motorized vehicle. Disputed Issues of Fact A. The defendant generally disputed the dates and times of the alleged noise ordinance violations on August 24, 26 and 28 and offers what could be de- scribed as alibi evidence indicating her son was in either Riverhead, New York or summer camp when the alleged offenses occurred. However, the defen- dant does admit that her son utilizes the subject "dirt bike" an her property at least 3-4 times per week for approximately 20-30 minute intervals. © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 6 Misc.3d 101 I(A) 6 Misc.3d 101 I(A) (Table, Text in WESTLA~0,'Unreported Disposition (Cite as: 6 Mise.3d 1011(A), 800 N.Y.S.2d 354) The Court finds beyond a reasonable doubt, that the defendant's son did utilize the subject "dirt bike" for at least a twenty minute period on Tuesday August 24, 2004 and on Saturday August 28, 2004. HUTO 971-04 alleges an offense on Thursday August 26, 2004, and is dismissed as the record does not estab- lish an offense occurred on that day. B. Whether the "dirt bike" contains a muffler/silencer?. The record clearly establishes that the "dirt bike" does maintain an operating muf- tier/silencer devise. [FN 1] C. Whether the noise emanating fi.om the subject "dirt bike" is equivalent m a chain-saw being oper- ated at full throttle? The Court concludes the "dirt bike" makes noise equivalent to the noise created by a chain-saw. [ FN 2] FN No.1 The Court makes this formal finding solely to hmit the subsequent decision as the citizen com- plainant did not concede this fact in his testimony, though the People stipulated after resting their case that they were nol proceeding under the Provisions of Sec. 141-3 {F)*3 2 The Court acknowledges that such a finding is ir- relevant unless it is assumed that the operation of a chain saw would violate Sec. 141. The logic for the finding will be discussed, supra. The Lhw Section 141-1 of the Huntington Town Code provides as follows: ~141-1. Findings [Amended 6-20-2000 by L.L. No. 14-2000] It is found and declared that the mating and creation of unreasonably loud, disturbing or unusual noises within the limits of the Town of Hunting is a condi- tion which has existed for some time, and the extent P~e2 and volume of such noises is increasing. The making, creation or maintenance of such unreasonably loud, unnatural or unusual noises which are prolonged, unusual or unnatui'al in their time place and use affect and are a detriment to the peace, welfare, com- fort, safety, convenience, good order and prosperity of the residents of the Town of Huntington §141-2. Prohibition. [Amended 9-28-1988 by Ord. No. 88-CE-8] It shall be unlawful for any person, firm or corpora- tion to make, continue or cause of allow to be made or continued unreasonable noise within the Town of Huntington. Emphasis added. § 141-2.1. Definitions. [Added 9~28-1988 by Ord. No. 88-CE-8] For the purposes of this chapter, the following terms shall have the meanings indicated: LrNREAS ONABLE NOISE: A Any noise of a type or volume that a reasonable person of normal sensitivities would not tolerate at the time, place and under the circumstances that noise is made. Emphasis added. B In addition m the definition contained ia Subsection A, any noise enumerated in §141-3 is hereby declared to constitute unreasonable noise and in violation of this chapter. §141-3. Unreasonable noises enumerated. [Amended 9-14-1971 by Ord. No. 71-CE-16; 2-2-1979 by Ord. No. 79-CE-2; 9-28-1988 by Ord. No. 88-CE-8, 12- 17-1996 by L.L. No. 12-1996; 6:2-1998 by L.L. No. 27-1998:6-20-2000 by L.L No. 14-20001 The following acts, among others, are declared to be loud, disturbing and unreasonable *4 nmses in viola- tion of this chapter, but said enumeration shall not be deemed to be exclusive, namely: A. Radios, phonographs and televisions sets. The using, operating or penmtting to be played, used or operated of any televisiun or radio receiving set. mu- sical instxument, phonograph or other machine or © 2009 T?mson Reuters/West. No Claim to Orig. US Gov. Works. 6 Misc.3d 1011(A) 6 Misc.3d 1011(A) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 6 Mise.3d 1011(A), 800 N.Y.S.2d 354) device for producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants or, at any time, of louder volume than is necessary for convenient hearing of the person or persons who are in the room, vehicle, chamber or area in which such machine or device is operated and who are voluntmy listeners thereto. The operation of any such sot, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audi- ble at a distance of fifty (50) feet fi.om the building, su-uctore~ vehicle or area in which it is located shall be pr/ma facie evidence of a violation of this ~section. B. Horns and signaling devices. The sounding of any horn or signaling device on any automobile, motor- cycle, streetcar or other vehicle on any s~reet or pub- lic place of the Town of Huntington except as a dan- ger warning; the creation by means of any such sig- naling device of any unreasonable loud or harsh sound; the sounding of any such device for an unrea- sonable period of time; the use of anY signaling de- vice except the one operated by hand or electricity; the use of any horn, whistle or other device operated by engine or exhaust; and the use of any such signal- Lng device when ~'affic is for any reason held up. C. Yelling and shouting. Yelling, shouting, hooting, whistling or singing on any public sheet, sidewalk, business premises open to the public, office or any public property, when intentionally done to create a risk of public annoyance, alarm or inconvenience. D. Animals and birds. The keeping of anY one (1) or more animals or birds whose nome, by virtue of loudness, duration, fi-equancy or intensity, causes public inconvenience, annoyance or alarm; or creates unreasonable noise. (1) Any animal or bird nmse occurring between 10:00 p.m. and 8)00 a.m., and plainly audible at a distance fifty (50) feet fi.om the place of origination of the noise, shall be prima facie evidence of a viola- tion of this chaptor. E. Steam whistles. The blowing of any locomotiv~ steam whistle or steam whistle attached to any sta- tionary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger or upon request of proper town authorities. P~e3 F. Exhausts; The discharge into the open air of the exhaust of any steam engine, stationary internal- combustion engine, motorboat or motor vehicle ex- cept through a muffler or other device which will effectively prevem loud or explosive noises there- fi.om.*5 G. Defect in vehicle or load. The use of any automo- bile. motorcycle or vehicle os out of repair, so loaded or in such a manner as m create loud and grating, grinding, rattling or other unreasonable noise. H. Pile drivers and hammers. The operation between the hours 6f 10:00 p.m. and 7:00 a.m. of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended by loud or unusual noise. I. Loading and unloading. The creation of loud and unreasonable noise in connection with the loading or unloading of any vehicle, boat, barge or train or the opening and destruction of bales, boxes, crates and J. Construction ar repairing of buildings. The erection (including excavating), demolition, alteration or re- pair of any building other than between the hours of 7:00 a.m. and 6:00 p.m. on weekdays, except in case of emergency m tlae interest of public health and safety, and then only with a permit from the Director of the Department of Engineering, Building and Housing, which permit may be granted for a period not to exceed three (3) days or less while the emer- gency continues and which permit may be mmewed for periods of three (3) days or less while the emer- gency continues. If the Building Inspector should determine that the public health and safety will not be impaired by the erection, demolition, alteration or repair of any building or the excavation of s~eets and highways between the hours of 6:00 p.m. and 7:011 a.m., and if he shall further determine that loss or inconvenience would result to any party in interest, he may grant permission for such work to be done between the hours of 6:00 p.m. and 7:00 a.m. upon application being made at the time the permit for the work is awarded or during the progress of the work. K. Schools, courts, religious institutions, hospitals. The creation of any unreasonable noise of any street © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 6 Misc.3d 101 I(A) 6 Misc.3d 1011(A) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 6 Misc.3d 1011(A), 800 N.Y.S.2d 354) adjacent to any school, institution of learning, reli- gions institution or court while the same is in use, or adjacent to any hospital, which unreasonably inter- fetes with the workings of such institution or which distm'bs or unduly annoys patients in the hospital, provided that conspicuous signs are displayed in such streets indicating that the same is s school, hospital or L. Hawkers, peddlers. The shouting and crying of peddlers, hawkers and vendors which disturbs the pence and quiet of the neighborhood. · M. Drams, The nsc of any drum or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show or sale. N. Transportation of metal rails, pillars and columns. The mmspo~tation of rails, pillars or columns of iron, steel or other material over and along' streets and other public *6 places upon carts,.drays, cars, tracks or m any other manner, so loaded as to canse loud noises or as to disturb the peace and quiet of such streets or other public places. O. Blowers, The operation of any noiso-crenting blower or power faa or any intemal-combnstion en- gine the operation of which canses noise due to the explosion of operating gases or fluids, unless the noise fi.om such blower of fan is muffledand such engine is equipped with a muffler device sufficient to deaden the nbise. In no event shall any noise from such blower exceed seventy (70) (A-scale) decibel. Notwithstanding the provisions hereof, the operation of any motorized leaf blower device on a weekday prior to 8:00 a.m. or after 7:00 p.m. or on a Saturday, Sunday or legal holiday prior to 9:00 a.m. or after 5:00 p.m. shall be deemed an unreasonable noise. P. Loudspeakers. The operation of any loudspeakers or speaker systems or any device for the production or reproduction of sound, m a manner that creates public annoyance, alarm or inconvenience or unrea- sonable noise. Issue Presented At trial the defendant raised a "due process" constitu- tional challenged to the Town's noise statute asserting that Section 141 is so "vague" that it violates the 14th Page 4 Amendment of the United States Constitution which provides ,"nor shall any state deprive any person of life, liberty, or property, without due process of law". Both the United States Supreme Court and The New York Court of Appenls have written extensively on the issue of "vague"anti-noise ordinances. Indeed, the "First" essential for due process of law requires that government decrees (statutes) not be vague. See, Connall¥ v. General Construction Co., 269 U.S. 385 (1926). In citing to a plethora of its prior decisions the U.S. Supreme Court opined: It is a basic principle of due process, that an enact- ment is void for vagueness if its prohibitions are not clearly Aefm~l. Vague laws offend several important values. First. because we assume that man is free to steer between lawful and unlawful conduc~, we insist that laws give the person of ordinary intelli- gence a reasonable opponuuity to know what is prohibited, so that he may act accordingly. Vague laws may uap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Uncemin meanings in- evitably lead citizens to "steer far wider of the © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 6 Misc.3d 1011(A) 6 Misc.3d 1011{A) {Table, Text in WESTLAW), Unreported Disposition (Cite as: 6 Misc.3d 1011(A), 800 N.Y.S.2d 354) unlawful zone"...than if the boundaries of the forbid- den areas were clearly *7 marked. Gmvnor v. City of Rockford, 408 U.S. 104 (1970} In acknowledging the "special problems" inherent in seeking to regulate noise; the New York Court of Appeals has distinguished between narrowly tailored limited context statues and broad "catch all" statutes 'which are inherently imprecise and therefore ~,ague. See, People v. New York Trap Rock Corp., 57 NY2d 371 (1982). "Reasonable person" noise ordinances will pass constitutional muster as long as they do not attempt to govern every possible situation by providing no contextual nfirrow- ing construction. People v. Bakolas, 462 NYS2d 844 ([983). Reasonably definite meaning arises from a described context which specifies some objective requirement. See, People v. Frie, 646 NYS 2nd 961 (Dist. Ct. Suffolk Co. 1996) citing to People v. New York Trap Rock Corp.. 57 NY2d 371 (1982) and People v. Byron. 17 NY2d 64 (1966)~ People v. Ba- kolas, 59 NY2d 51 (1983). See also, People v. Kle~ bet, 641 NYS2d 488 ( Muttontown Vii C. Nassau Co. 1.996). The Town of Hunting~on's noise ordinance, contains both an omnibus "catch all" section ( Sec. 141) and a specific contextually defined list of sixteen types of noises which are narrowly described ( See's. 142 & 143 ). ~ the presentation of its case, the People acknowledged that they are proceeding under only the general reasonable man "catch all" component of Huntington's noise ordinance as its prima facie evi- dence'did not establish any of the 143 specific noise categories. [ FN 31 The Town argues that its catch all language passes constitutional rewew with the further clarification that a noise is illegal if "a reasonable man of normal sensibilities would not tolerate it un- der similar circumsmnces"~ The People argue that this Court's Appellate Tribunal constitutionally upheld a neighboring Town's Noise Ordinance which contained a "reasonable person of normal sensibilities' standard. See, People v. O'Con- nel, 781 NYS2d 400 ( 9th & 10th Appellate Term 20041. Therein the Appellate Term found such a rea- Page 5 souable man statute is sustainable if the legislative body places it in a "context" with some "objective standard" wherein an individual of ordinary intelli- gence will'not have to guess the meaning of the stat- ute. Unfortunately, Huntington's catch all statute con- tains neither a context or a single objective standard. The O'Counel precedent involved a q animal noise" context with the two objective standards being a 15 minute interval and noise distm'bance across a resi- dential boundary line. Likewise, the "reasonable man" precedent proffered by the People all involve both legislative context and objective standards. See, People v. Frie, cite, supra (dog, time barking), People v. Bakolas, cite, supra {public noise annoyance in- volving traffic); Peonle v. Hollstegle, 129 Misc2d 580 (Ocean Beach Village Ct. 1985) (sound repro- duction devise/residential area). The Court notes that the Town has gone to com~ mendable lengths to add context and standards in the 1998 and 2000 amendments to its Noise Ordinance in creating its sixteen specific violation categories. It is obvious that these amendments were an effort to move away from the "reasonable man" standard which was found constitutionally lacking for vague- ness reasons. As ably stated by defendant's counsel in his opening remarks, such a standard by itself is in- herently flawed if the Court accepts as true the uni- versally stated axiom that "reasonable *8 men can differ". As this~ Cou~ agrees, it must conclude that the catch all component of Sec. 141 violates the 14th Amendment of the United States Constitution, though it finds that the sixteen specific context provisions are sustainable. The Town of Huntingtonhas the legislative power to regulate and even to prohibit activities such as "dirt bike" or "chalnsaw" operation.[ FBI 4] Presently 'these activities must be found to be lawful as the Town has chosen not to prohibit them. To adopt the People's position that the dirt bike is as bad as a chainsaw and is per se objectionable to a "reasonable man" is illogical. It would be an mspermissible over- reach to construe an unrelated statute to indirectly serve as an absolute prohibition of these activities. It is for the leg~slativ, e body and not a neighbor to make this public policy decision. © 2009 Thomson Reuters/West No Claim to Orig. US Gev. Works. Huntington Law that was found unconstitutional read as follows: § 141-2.1. Definitions: For the purposes of this chapter, the following terms shall of the meanings indicated: UNREASONABLE NOISE: A. Any noise of a type or volume that a reasonable person of normal sensitivities would not tolerate at the time, place and under the circumstances that noise is made. B. In addition to the definition contained in Subsection A, any noise enumerated i.n § 141-3 is hereby declared to constitute unreasonable noise and in violation of this chapter. § 141-3. Unreasonable noises enumerated, The following acts, among others, are declared to be loud, disturbing and unreasonable noises in violation of this chapter, but said enumeration shall not be deemed to be exclusive, namely: Radios, phonographs and televisions sets. The using, operating or permitting to be played, used or operated of any television or radio receiving set, musical instrument, phonograph or other machine or device for producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants or, at any.time, of louder volume than is necessary for convenient hearing of the person or persons who are in the room, vehicle, chamber or area in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure, vehicle or area in which it is located shall be pram facie evidence ora violation of this section. Horns and signaling devices. The sounding of any hom or signaling device on any automobile, motorcycle, streetcar or other vehicle on any street or public place of the Town of Huntington except as a danger warning; the creation by means of any such signaling device of any unreasonable loud or harsh sound; the sounding of any such device for an unreasonable period of time; the use of any signaling device except that one operated by hand or electricity; the use of any hom, whistle or other device operated by engine or exhaust; and the use of any such signaling device when traffic is for any reason held up. Fo Yelling and shouting. Yelling, shouting, hooting, whistling or singing in any public street, sidewalk, business premises open to the public, office or any public property, when intentionally done to create a risk of public annoyance, alarm or inconvenience. Animals and birds. The keeping of any one (1) or more animals or birds whose nois~, by virtue of loudness, duration, frequency or intensity, causes public inconvenience, annoyance or alarm; or creates unreasonable noise. Steam whistles. The blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger or upon request of proper town authorities. Exhausts. The discharge into the open air of the exhaust of any steam engine, stationary internal-combustion engine, motorboat or motor vehicle except through a muffler or other device which will effectively prevent loud or explosive noises therefrom. Defect in vehicle or load. The use of any automobile, motorcycle or vehicle as out of repair, so loaded or in such a manner as to create, loud and grating, grinding, rattling or other unreasonable noise. Pile drivers and hammers. The operation between the hours of 1'0:00 p.m. and 7:00 a.m. of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended by loud or unusual noise. Loading and unloading. The creation of loud and unreasonable noise in connection with the loading and unloading of any vehicle, boat, barge or train or the opening and destruction of bales, boxes, crates and containers. Conslruction or repairing of buildings. The erection (including excavating), demolition, alteration or any repair of any building other than between the hours of 7:00 a.m. and 6:00. p.m. on weekdays, except in case of emergency in the interest of public health and safety, and then only with a permit from the Director of the Department of Engineering, Building, and Housing, which permit may be granted .for a period not to exceed three (3) days or less while the emergency continues. If the Building Inspector should determine that the public health and safety will not be impaired by the erection, demolition, alteration or repair of any building or the excavation of streets and highways between the hours of 6:00 p.m. and 7:00 a.m. upon application being made at the time the permit'for the work is awarded or during the progress of the work. Lo K. Schools, courts, reli~ous institutions, hospitals. The creation of any unreasonable noise of any street adjacent to any school, institution of learning, religious institution or court while the same is in use, or adjacent to any hospital, which unreasonably interferes with the workings of such institution or which disturbs or unduly annoys patients in the hospital, provided that conspicuous signs are displayed in such streets indicating that the same is a school, hospital or court street. Hawkers, peddlers. The shouting and crying of peddlers, hawkers and vendors which disturbs the peace and quiet of the neighborhood. Drams. The Use of any dram or other instrument or device for the propose of attracting attention by creation of noise to any performance, show or sale. Transportation. of metal rails, pillars and columns. The transportation of rails, pillars or columns of iron, steel or other material over and along streets and other public places upon carts, drays, cars, trucks or in any other manner, so loaded as to cause loud noises or as to disturb the peace and quiet of such streets or other public places: Blowers. The operation of any noise-creating blower or power fan or any internal-combustion engine the operation of which causes noise due to the explosion of operating gases or fluids, unless the noise from such blower of fan is muffled and such engine is equipped with a muffler device sufficient to deaden the norse. In no event shall any noise from such blower exceed seventy (70) (A-scale) decibel. Notwithstanding the provisions hereof, the operation of any motorized leaf blower device on a weekday prior tO 8:00 a.m. or after 7:00 p.m. or on a Saturday, Sunday or legal holiday prior to 9:00 a.m. or~ after 5:00 p.m. shall be deemed an unreasonable noise. Loudspeakers. The operation of any loudspeakers or speaker systems or any device for the production or reproduction of sound, in a manner that creates public annoyance, alarm or inconvenience or unreasonable noise. § 240.15 Note 2 N.Y.2d 1017, 281 N.Y.S.2d 1015, 228 N.E.2d 908, appeal dismissed, certiorari denied 88 S.Ct. 824, 390 U.S. 29, 19 L.Ed.2d 808, rehearing denied 88 S.Ct. 1057, 390 U.S. 976, 19 L.Ed.2d 1198. rehearing denied 88 S.Ct. 1061, 390 U.S. 976, 19 L~Ed.2d 1198, rebearing'denied 90 S.CL 1832, 398 U.S. 944, 26 L.Ed.2d 282, rehearing denied 90 S.Ct. 1833, 398 U.S. 944, 26 gEd.2d 282. Constitutional Law ~, 1862; Insurrection And Sedition Counts dealing with advocacy of crimi- nal anarchy were insufficient in absence of allegations of intent to accomphsh overthrow o[ governmeng by force and violence or clear and present danger that advocated overthrow might be attempted or accomplished. People v. Ferguson, 1968, 55 Misc.2d 823, 286 N.Y.S.2d 924. Insurrection And Sedition ~' 2 ~. Publications Where a paper called ~be Revolution- ary Age, purporting to be the official or- gan of the Lait Wing Socialists who de- sire to bring about the communistic s~,te by revolution and violence, published by defendant, contained an article,or mani- festo which advocated at great length and with mui:h force the overthrow of the organized government of New York and the United States, not by constitutional means 'but by revolution, force and vio- lence and by mass strikes in which the proletariat (unskilled laborers without property or capital engaged in the lower grades of work) should usurp and take pessesston of the functions of organized government and overthrow and destroy it PUBLIC ORDER, RIGHT TO PRIVA~'~, Title N and substitute in the place thereof a tern. porary dictatorship of the proletariat to be foliowad by the full and free social and individual autonomy of the communistic order, such publication was not the advo- cacy of a mere change in the government, or a new government~ brought about by constitutional or legiti- mate means, but was an attempt to incite the overthrow of ali organized govern- ment by-revolution and other criminal ,me~,, ,, and therefore the defendant by publishing such manifesto violated this Penal Law 1909 § 161 [now this section] and was guilty of criminal anarchy. Peo~ pie v. Gitlow, 1922, 234 N.Y. 132, 136 N.E. 317, remittitur amended 234 N.Y. 539, 138 N.E. 438, error granted 43 S.CL 163, 260 U.S. 703, 67 LEd. 472, affirmed 45 S.Ct. 625, 268 U.S. 652, 69 L.Ed. 1138. Penal Law 1909 § 164 [now this sec- lion] seemed to be aimed at those gnil~ of the publication of the book or article contemplated thereby, and it cle. arly din not include those who merely had pos~es: sion of the' b~k with intent to s~li and show the same. People v. Brainard (1 Dept. 1920) 192 A.D. 816, 183 452, 4. Marsism It seems Llmt the socialistic principles propounded by Karl Marx were broad enough to fall within the condemnation of Penal Law 1909 § 160 [now this sec- tion]. In re Lithuanian Workers' Litera. ture Soc. (2 Dept. 1921) 196 A~D. 262, 187 N.Y.S. 612. § 240.20 Disorderly conduct A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or ' - 3. In a public place, he uses ~bUSive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 26 OFF 5. 6. 'refW 7. act ~ D~ St/ adde L.19; 58; I 2; L. Su 1470 pena tive~ )FFENSES AGAINST PUBLIC ORDER § 240.20 a-t. 240 5. He obstructs ,vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and efuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offe,n~ive condition by any tct which serves no legitimate purpose. Disorderly conduct is a violation. L. I965, ~ .1030,) Hl~toflead and Statutory Notes Sub~s: I to 3. Peaial Law 1909 § 722, ~ided"L. 1923, c. 642, § 1; amended ,1924, ~. 476; L. 1931. c. 793; L. 1932, c. ;8;' L. 1935, c. 921; L. 1936, c. 896. ~ 1, :; L1952, c. 640. Subd. 4. Penal Law 1909 ~ 1321, L470. 2ff71: Said § 1321 derived from § 2071 derived [rom Penal Code I881 § 274. Subd. 5. Penal Law 1909 § 723, add- ed L. 1923, c. 642, § 1. Subd. 6. Penal Law 1909 ~ 722, 2093. For history of said § 722, se~ deft- ration note for subds. 1 to 3 above. Said § 2093 was from Penal Code 1881 § 454. Subd. 7. Penal Law 1909 § 722. For ?enal C0d~.1881 § 60. Said § 1470. de- history of said § 722. see derivation note dyed Ib6in Penal Code 188t § 448. Said for subds. 1 to 3 above. Practice Commentary by William C. Donnino The "disorderly conduct" statute v~as "designed to proscribe only that type of cotxduct which has a real tendency to prov°ke pu~llc disorder." Staff Notes of the Commission pn Revision of ~e,,Pen.~ Law. Proposed New York Penal Law. McKinney's ~p~ Pamph. (1964), P 388. The proscribed conduct must be ~o~panied by the stated culpable mental state of "intent to cause public, inconvenience, annoyance or alarm, or recklessly creating a risk thereo~" [Penal Law § 240.20]. Th~ Court of Appeals has empliasized that "the disruptive. beha~ior proscribed by our disorderly ,conduct statute be of p~.rather than individual dimension. People v. Munafo 50 1~.~.~ 326, 331,428 N.Y.S.2d 924, 406 N.E.2d 780 ~1980). The clem- aim was to reserve the disorderly conduct statute for situa- tions that carried beyond the concern of individual disputants to a~point where Lbey had become a potential or immediate public problem~ In deciding whether an act carries pt~blic ramifica- tions, courts are constrained to assess the nature and number of ~ attracted, taking into account the surrounding circum- .~, including of ,,course, the time and the place of the ~e under scrutiny. Id. ~ Ir~ ~lunafo, the defendant protested an attempt by the State ~ Authority to erect a large transmission line on an apprnp- ri/~l right of way which cut a wide swath across a section of the 27