Friday, February 26, 2010

City Council Quiets Need for Noise Ordinance, Which Could Silence Richmond

By: Mark Craig

Listen to the audio version of the story here

After a decision in April by the Virginia Supreme Court ruled that the phrase 'loud and disturbing' in a Virginia Beach noise ordinance was unconstitutional, the citizens of Richmond asked for an enforceable ordinance. To the praise of most and the dismay of some, a new ordinance was passed Monday by Richmond’s City Council.

From noisy booze-o-ramas in the Fan to malignant Church Hill dog barking, residents had a lot to complain about with little to be done.

After the ruling in April, the noise ordinance in Richmond was, for the most part, unenforceable.

“You can't enforce an unconstitutional law and between April of last year and Monday night it was impossible to enforce certain aspects of Richmond noise Ordinances," said Co-Sponsor of the ordinance and Second District Councilman, Charles Samuels.

He said after the Mayor’s office and Richmond Police dragged their feet in developing a more sound ordinance, the City Council took it upon themselves to fix the constitutionality of the previous noise legislation in Richmond.

The council researched how other jurisdictions around the state and country approached similar legislation to achieve a sensible objective standard for law that would “satisfy the supreme courts requirements”.

“The Supreme Court had ruled that the phrase 'loud and disturbing' could mean different things to different people. I think the difference is basically that 'loud and disturbing' could mean different things to different people, but 'plainly audible' mean just that; it is capable of being heard by the naked ear."

Local criminal defense lawyer, Steve Benjamin, questioned the constitutionality of the legislation prior to its passing and said that no one could be convicted under the proposed ordinance.

“This ordinance will be challenged. No one can be convicted under this because the ordinance sweeps so impermissibly broadly."

He said without a concrete system for what is, or is not, 'plainly audible' the officers enforcing the ordinance have the power to determine whether or not there’s a violation which, considering the violation is a Class 2 Misdemeanor, can pose serious problems.

“You write legislation to enact laws that everyone can follow, will follow, and that can be uniformly enforced. You don't write laws so that the police can decide who they want to target, and against whom they want to enforce the law.”

Benjamin said the council’s decision to turn down the implementation of instrument to determine a violation over budget concerns was lazy.

“We went on the Internet to see how much it costs to buy an instrument capable of determining decibel levels, and we found something that Wal-Mart was selling for 20 bucks. That is a ridiculous response. These devices can't possibly be so prohibitively expensive that the answer is, 'we'll just sound proof all of Richmond.' Cost is a standard retort when somebody gets lazy and wants to do something unconstitutional. I just don't think it holds up.”

Although, a Chinese decimeter from Wal-Mart sounds like a cheap solution to what some call police’s “unfettered individual discretion”, according to Samuels it’s not that simple, or legal for that matter.

“I think that's a good point provided that they would meet the requirements necessary for introduction as evidence in a court of law. However, just like preliminary breath tests are not admissible in a D.U.I., there's no guarantee that the cheap decimeters would, in fact, be able to be introduced in the court of law”

He said that before the average fine for a violation was around 25 dollars and, with an average of 8,000 complaints over the last two years with 200 convictions, most neighborhood discrepancies were cooled by simply asking the source to take care of the problem or turn down the noise

So, just because your neighbors are playing their Paula Poundstone DVD at a level audible through the brick wall that separates your townhouse from theirs doesn’t mean you can get them for $1,000 and 6-months in jail.

“I think a lot of people got worried about this. But, at the end of the day I think nothing really changed in this ordinance except for the revision to make it constitutional.”

According to Benjamin, a civil fine would be a more efficient and less burdening punishment.

“A more rational approach would be to simply impose a civil fine sort of thing, so that we’re not talking about jail time, we’re not talking about a criminal record. So, it becomes something that can be regulated with much greater ease.”

A group will be available to discuss revisions to this ordinance to make it better, if necessary, said Samuels.

“I believe that this ordinance meets the requirements as laid out in Tanner for constitutionality. That doesn’t mean that this is the end of the road. Like I said, we’re working to make sure that we have a good group of folks together from both sides of this equation to make sure that going forward, we create a noise ordinance that will truly stand the test of time."

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