Wednesday, February 22, 2012

Keep The Noise Down In Ohio

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio held today that a provision in the state’s disorderly conduct statute, R.C. 2917.11(A)(2), that prohibits “recklessly causing inconvenience, annoyance or alarm to another by ... making excessive noise” provides sufficient notice for a person of ordinary intelligence to understand what the law requires, and therefore is not unconstitutionally vague.

The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed a decision of the 9th District Court of Appeals.

The case involved a citation issued to Jason Carrick of Wayne County by sheriff’s deputies for a minor misdemeanor count of disorderly conduct. The citation was issued after an incident in which neighbors complained about loud music and particularly “booming” bass coming from a building owned by Carrick at which he was hosting a Halloween party. Carrick initially complied with the deputies’ request  that he reduce the volume of the music, but later increased the volume again after the officers departed.  After obtaining signed complaints from the neighbors, the deputies returned to Carrick’s property, cited him for violating the state disorderly conduct statute, and warned him that if they had to return again he would be arrested.

After receiving a third complaint at approximately 1:30 a.m., deputies returned to the property and placed Carrick under arrest. He was charged with and convicted of violating R.C. 2917.11(A)(2), the subsection of the disorderly conduct statute that addresses noise-related violations.

Carrick appealed, asserting that  his conviction should be vacated because R.C. 2917.11(A)(2) fails to describe the conduct it prohibits with enough specificity that a person of ordinary intelligence can know what the law requires, and the provision is therefore unconstitutionally vague and unenforceable.  The 9th District Court of Appeals affirmed the judgment of the trial court, but certified that its ruling was in conflict with a 1985 decision of the 4th District in which that court held that the challenged statutory language was not sufficiently specific, and was therefore void for vagueness.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court, Justice Cupp cited Columbus v. Kim, a 2008 decision in which the Supreme Court upheld as constitutional a Columbus city ordinance that banned keeping or harboring “any animal which howls, barks or emits audible sounds that are unreasonably loud or disturbing and which are of such character intensity and duration as to disturb the peace and quiet of the neighborhood ...”

In Kim, Justice Cupp wrote, “(W)e concluded that ‘Columbus City Code 2327.14 is not unconstitutionally vague, because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the ordinance prohibits. The ordinance incorporates an objective standard by prohibiting only those noises that are “unreasonably loud or disturbing.” The ordinance provides specific factors to be considered to gauge the level of the disturbance, namely, the “character, intensity and duration” of the disturbance. Further, we recognize that there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.’”

“We find the analysis in Kim to be applicable here. Contrary to the appellate court’s analysis in the conflict case ... and Carrick’s assertions in this case, the statute at issue here does provide adequate qualifying language to prevent the statute from being unconstitutionally vague.  R.C. 2917.11(A)(2) sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the statute prohibits. It incorporates an objective standard by prohibiting only noise that is ‘unreasonable.’ This objective standard undermines Carrick’s assertion that R.C. 2917.11(A)(2) permits hypersensitive persons to impose criminal liability on others.  Further, it enumerates specific factors – ‘inconvenience, annoyance, or alarm to another’ − with which to judge the level of the disturbance.”       
“Additionally, the statute requires a culpable mental state of recklessness. Therefore, in order to violate R.C. 2917.11(A)(2), a person must act ‘with heedless indifference to the consequences,’ in ‘perversely disregard[ing] a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.’” 

“The record contains sufficient evidence for the trier of fact to conclude that the loud bass music emanating from Carrick’s Halloween party was loud enough to constitute ‘unreasonable noise’ that ‘inconvenience[d], annoy[ed], or alarm[ed] ... another.’ ... More specifically, (the complaining neighbors) were inconvenienced and annoyed by the loud bass music. A person of ordinary intelligence would understand that R.C. 2917.11(A)(2) proscribes playing music at a late hour at such a volume that it keeps the neighbors from sleeping, causes windows to vibrate on a house a quarter mile away, and prompts numerous calls of complaint to authorities.  Moreover, prior to citing Carrick, law enforcement officers visited the property to advise Carrick that the music was so loud that it was generating complaints from his neighbors and they warned him to lower the volume. Carrick has failed to establish ‘beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.’”

“Accordingly, we conclude that R.C. 2971.11(A)(2) is neither unconstitutionally vague on its face nor as applied to Carrick. We answer the certified question in the negative and affirm the judgment of the court of appeals.”

Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

The court's opinion is linked here. (MIke Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/02/from-the-web-page-of-the-ohio-supreme-court-the-supreme-court-of-ohio-held-today-that-a-provision-in-the-states-disor.html

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