ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEPHEN GERALD GRAY SHELESE WOODS
Indianapolis, Indiana Office of Corporation Counsel
IN THE COURT OF APPEALS OF INDIANA
CARSON LUTZ, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-0404-CV-198 ) THE CITY OF INDIANAPOLIS, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49F12-0311-OV-003760
January 18, 2005
OPINION - FOR PUBLICATION
(2) Radios and phonographs. Playing, using or operating, or permitting to
be played, used or operated, any radio or television receiving set, musical instrument,
phonograph, calliope or other machine or device for producing or reproducing sound in
such a manner as to disturb the peace, quiet and comfort of the
neighboring inhabitants, or at any time with louder volume than is necessary for
convenient hearing for the person or persons who are in the room, vehicle
or chamber in which such machine or device is operated, and who are
voluntary listeners thereto, except when a permit therefor for some special occasion is
granted. 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 or vehicle in which it is located shall be prima
facie evidence of a violation of this subsection.
Indianapolis, Ind., Rev. Code of the Consol. City and County § 391-302(a)(2).
Lutz contends the Ordinance is unconstitutionally vague because it prohibits any unusual or unnecessary noise, or any noise that annoys others within the city. The City counters that in Price v. State, 622 N.E.2d 954 (Ind. 1993), our supreme court upheld the constitutionality of a similar statute, Indianas disorderly conduct statute, against a vagueness challenge. That statute provides in pertinent part, A person who recklessly, knowingly, or intentionally . . . makes unreasonable noise and continues to do so after being asked to stop . . . commits disorderly conduct, a Class B misdemeanor. Ind. Code § 35-45-1-3(2). Thus, the City argues that because Indianas disorderly conduct statute refers only to unreasonable noise, but its Ordinance prohibits a myriad of noises, including loud, unnecessary, or unusual noise, or any noise that annoys others, then the Ordinance is even clearer than the disorderly conduct statute and should survive Lutz vagueness challenge.
We disagree. In Price, a bystander was arrested for disorderly conduct after yelling loud profanities at a police officer who was attempting to arrest someone. Our supreme court held the statute was not unconstitutionally vague for two reasons: (1) the statute employed a reasonableness test, which provided an intelligible enforcement guideline for police officers and prosecutors, and discouraged arbitrary and discriminatory enforcement; and (2) because the statute was violated only after an individual was first asked to stop the unreasonable noise, such a warning requirement provided a special protection for those individuals who might not realize that their noise was unreasonable. Thus, the statute provided fair notice to a person of ordinary intelligence that his contemplated conduct was forbidden. Price, 622 N.E.2d at 967.
The myriad of noises that the Ordinance in the instant case prohibits is exactly the reason that it is unconstitutionally vague. Indianas disorderly conduct statute is narrowly tailored to prohibit unreasonable noise made only after an individual has been warned about his conduct. The Ordinance in the instant case, however, does not include an objective test; instead, Lutz correctly notes that it prohibits any noise that is loud, unnecessary, or unusual, or that annoys or disturbs others. When addressing whether there was sufficient evidence in Price to support the bystanders conviction for disorderly conduct, our supreme court stated,
While actual discomfort to persons of ordinary sensibilities will often be the grist of tortious conduct, there need not be proof of physical damage to individuals or property. Instead, it is sufficient that an individual's comfortable enjoyment of his privacy is interfered with, even though not a penny's value of injury was done. Moreover, noise made during normal sleeping hours may be a nuisance, while the same or even greater noise during the day would not. Nonetheless, the law does not deal in trifles and mere annoyance or inconvenience is not sufficient.
Price, 622 N.E.2d at 964 (citations omitted and emphasis added). Furthermore, the Ordinance does not require that an individual be warned about his conduct first. Such language does not enable individuals of ordinary intelligence to adequately comprehend what conduct the Ordinance is prohibiting.
We find support for our holding in other jurisdictions. In United Pentecostal Church v. Steendam, 214 N.W.2d 866 (Mich. Ct. App. 1974), the Michigan Court of Appeals considered the constitutionality of an anti-noise ordinance whose language was identical to Section (a) of the Ordinance in the instant case. In striking down the ordinance for being unconstitutionally vague and overbroad, the Michigan Court of Appeals concluded that the language fails to establish sufficient ascertainable standards of conduct. The terms unnecessary and annoy require men of common intelligence to guess at its meaning. Id. at 867.
In People v. New York Trap Rock Corp., 442 N.E.2d 1222 (N.Y. 1982), the Court of Appeals of New York considered the constitutionality of an anti-noise ordinance that prohibited unnecessary noise, which was defined as any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person. Id. at 1224. In holding that the ordinance was unconstitutionally vague, the court stated that the disjunctive definition of unnecessary noise as any excessive or unusually loud sound or any sound which . . . annoys . . . a person impermissibly would support a conviction on any sound which annoys another person . . . . Id. at 1226-27 (emphasis in original). See also Phillips v. Borough of Folcroft, Pennsylvania, 305 F. Supp. 766, 770-71 (E.D. Penn. 1969) (concluding that disorderly conduct ordinance that prohibited the making of loud and/or unnecessary noises was unconstitutionally vague because the term loud noise was too imprecise to withstand constitutional scrutiny and allowed police and other officials to exercise unfettered discretion in choosing who violated the ordinance).
Finally, in City of Columbus v. Becher, 184 N.E.2d 617 (Ohio Ct. App. 1961), affd, 180 N.E.2d 836 (Ohio 1962), the Ohio Court of Appeals considered the constitutionality of an ordinance that prohibited noise, made by animals, that resulted in an annoyance of the inhabitants of this city. In holding the ordinance was unconstitutionally vague, the court stated,
It leaves to the court or jury, in a legislative capacity, the fixing of the degree or amount of annoyance before the guilt of the accused is established. Annoyance is a relative term. It is not a word of fixed meaning in itself, [n]or is it made definite by any statutory or judicial definition. It is not modified by any words such as, unreasonable, continuous, or substantial.
Id. at 618. See also Gardner v. Ceci, 312 F. Supp. 516,
518 (E.D. Wis. 1970) (holding ordinance that proscribed conduct that tended to disturb
or annoy others was vague and overbroad).
In response, the City cites to numerous cases where an unlawful noise statute or ordinance survived a vagueness challenge. Yet each of the prohibitions considered in these cases employed a reasonableness test for determining what noise constituted a violation. See, e.g., Earley v. State, 789 P.2d 374, 376 (Alaska Ct. App. 1990) (upholding statute that prohibited making unreasonably loud noise); Eanes v. State, 569 A.2d 604, 616 (Md. 1990), cert. denied, 496 U.S. 938 (1990) (upholding statute that prohibited the making of loud and unseemly noises because the term unseemly was akin to unreasonable); Blanco v. State, 761 S.W.2d 38, 40-41 (Tex. 1988) (upholding prohibition against making unreasonable noise); City of Madison v. Baumann, 470 N.W.2d 296, 302 (Wis. 1991) (upholding ordinance that prohibited making any noise tending to unreasonably disturb the peace and quiet of persons in the vicinity thereof . . . .). As stated above, the Ordinance in the instant case does not include such a test.