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Commonwealth's Attorney Speaks Against City Noise Ordinance


Richmond Commonwealth's Attorney Michael Herring spoke Wednesday against the noise ordinance adopted by City Council in February, saying the law “is bad and needs to be stricken.”

Herring addressed his comments to Manchester General District Court Judge Robert A. Pustilnik during a hearing in a case prosecuting members of the rock band Little Master -- Timothy Morris, Michael Bourlotos and Leah Clancy -- and Rozalia Janicki. The latter lived in a house on West Clay Street when all four were cited April 4 for “creating loud music” and “loud noise from residence.”

Their alleged violations under the law are class 2 misdemeanors punishable by a $1,000 fine, six months in jail, or both.

Among other things, the law prohibits: “plainly audible” noise produced by a device that can be heard inside the dwelling of another person or 50 feet away from the sound-producing device, between 7 a.m. and 11 p.m.; any equipment-produced sound “plainly audible to any person other than the operator” between 11 p.m. and 7 a.m.; and any noise, no matter the source, “plainly audible” inside the dwelling of another person between midnight and 7 a.m.

During Wednesday's hearing, local lawyer Steve Benjamin, who represents the defendants pro bono, argued the noise ordinance unconstitutionally restricts free speech by exempting from regulation any noise produced by religious activity -- “religious services, religious events, or religious activities or expressions, including, but not limited to music, singing, bells, chimes, and organs which are a part of such service, event, activity, or expression,” according to the law.

Benjamin also charged that the ordinance was unconstitutionally broad, outlawing such examples as the early morning crying of children in the Fan that was audible in an adjacent house and early morning conversation by joggers.

“Who but a cretin would call the police?” Benjamin asked.

Defending the constitutionality of the noise law, Assistant City Attorney Greg Lukanuski argued that the law's religious exemption was not discriminatory but rather the city's way of “staying out of religious expression.” Referring to the religious exemption, he said: “Suppose it is wrong. We don't strike the whole ordinance. We strike that section.” Lukanuski also contended the ordinance was not overly broad and that the defendants didn't have standing to launch a constitutional challenge to it, which Benjamin denied.

In a rarely seen move, Herring, the prosecutor for the city, argued against the city ordinance. He told Pustilnik that he found the law's religious exemption “invalid and probably unconstitutional”; that he found the words “plainly audible” to be unconstitutional because “nobody understands what it means”; that if the judge found the ordinance lawful, that Herring would prosecute it “begrudgingly.”

Judge Pustilnik didn't issue a ruling, but asked both parties to submit briefs fleshing out arguments for and against the defendants' standing to bring suit. An admittedly “fascinated” Pustilnik also called another hearing but didn't name a date for it.

“I promise you I will not carry this case further just because I'm interested in hearing [more],” Pustilnik said.

Charles Samuels, the 2nd District councilman who drafted the noise ordinance, and who said in February that the law had been “carefully vetted,” did not answer Style Weekly's request for comment.

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