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Audibly Illegal?

Some lawyers say City Council's latest proposed noise ordinance is an affront to common sense.

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Honk if you want to go to jail.

A new noise ordinance under consideration by City Council is set to make Richmond soundproof. But some say the proposed law is unconstitutional, overly broad and downright punitive.

The proposed ordinance, for example, effectively outlaws any and all sounds after midnight. And honking a car horn? According the law's language, doing so could result in a class 2 misdemeanor. The ordinance was slated for a City Council vote on Monday, Feb. 22.

“This is probably the most ridiculous legislation I have ever seen,” local defense lawyer Steve Benjamin says. “You know what a class 2 misdemeanor is? It's six months in jail. Making noise that someone else can hear is now a jailable offense in Richmond.”

After seven months of work to revise the city's existing noise ordinance to comply with state law after a Virginia Supreme Court decision knocked down a similarly structured noise ordinance in Virginia Beach, Richmond's City Council in effect did little to remove language deemed unconstitutional, says C. Wayne Taylor, a local lawyer who's studied the new proposal.

Businesses and residences are treated much differently, says Taylor, recently retired from private practice. The law would remove all limits on noise from businesses between 7 a.m. and midnight, he says. “At the other extreme, [it] imposes severe limitations on some noises typical of a residential use.”

Late last year, Taylor began documenting what he calls the “appalling” changes contained in the proposed noise ordinance and sent the documentation to City Council members. He says he's gotten little response. (Taylor published the research on his blog at http://cwaynetaylor.wordpress.com). “If the public was aware of what is being adopted,” he says, “there might be considerable comment.”

Taylor and Benjamin say the law before council makes sweeping changes. Current law imposes general limitations on sound citywide, while the new ordinance would replace that approach with a list of banned and exempt noises — many everyday sounds. For example, the law makes it illegal to use a car horn for anything other than to prevent danger. Car alarms — one of the true irritations of urban living — are exempt from a citation.

“It essentially soundproofs all of the city of Richmond,” Benjamin says. Between 11 p.m. and 7 a.m., he says, “you cannot create any sound from a machine or a device that anyone else can hear, and that includes people in your own apartment. … You can't turn on your TV, you can't play music, anything. There's nothing constitutional about this. … This is so bad it prohibits even that level of sound that we accept and tolerate in society.”

In an April case involving a Virginia Beach noise ordinance, the Virginia Supreme Court ruled that definitions like “unreasonably loud” were too vague and unconstitutional, and therefore couldn't be enforced. Taylor says that Richmond's proposed ordinance continues to use the kind of unclear, even contradictory, language that the court struck down — terms such as “plainly audible.”

“Language of the type thrown out by the court is found in at least eight city code sections,” Taylor says. “Yet only two sections are being amended.”

The law's co-sponsor, 2nd District Councilman Charles Samuels, has taken the lead on the noise issue and says the proposed law is just fine. “The city attorney signed off on it and said it was constitutional,” he says, adding that it also passed muster with the police department. Samuels says he doesn't believe the law will be challenged in court and insists that there's been sizable constituent input into its crafting.

Councilman Bruce Tyler, the other co-sponsor, has a slightly different view. “It's an imperfect ordinance,” he acknowledges. “I'll be honest, we are going to have to come back and revisit it. But it's the best we can do right now.”

As for the charge that it fails to limit business-related noise in mixed-use areas, Tyler, who represents the 1st District, says that's to be expected: “Some businesses just make noise.”

The proposed ordinance relaxes some rules. It states that motor vehicles, including motorcycles, cannot be “plainly audible” from 350 feet. The current allowable distance is 200 feet.

Some of the changes being proposed may be because of budget considerations. Samuel's City Council liaison, Jan Girardi, says that many of the changes have been included largely so that the city will not have to buy costly decibel meters for police to enforce the current noise law.

It may save money, but Taylor maintains that the law would be impractical. “The way the ordinance is worded,” he says, “if I can hear my neighbor's heat pump running that is a violation.”

Benjamin says he was shocked when he read the proposal. “If our city is responsible for producing and passing legislation like this,” he says, “then everyone associated with it should be fired or replaced. It's that bad. This is as complete an assault on the incidents of liberty as I can imagine.”

What's more, Benjamin says the ordinance is unenforceable: “Citizens won't be able to comply with it and the police will be unable to uniformly enforce it.”

In its defense, Richmond is following the surrounding counties, which have passed or are considering revised noise laws of their own that would seem to be in violation of state law. “Chesterfield just adopted their noise ordinance and Henrico is in the process of adopting theirs,” Taylor says. “Richmond seems to have merely copied Chesterfield's effort.”

As for the phrase “plainly audible,” it soon may become the standard by which police will enforce strict new noise regulations in Richmond.

“Audible” is, according to Webster's Dictionary, something that is “loud enough to be heard.” So what is “plainly audible”?

A clear definition isn't included in the proposed new law to guide residents or police. But Councilman Samuels, himself a practicing attorney, says he knows what it is.  “‘Plainly audible' is something that is loud enough to be heard clearly,” he says.

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