All Are Welk-omed In Virginia

Supreme Court justices in Virginia have declared Virginia Beach’s noise ordinance unconstitutional following a legal challenge by the owners of a club in the city.

After numerous police citations for violations of the ordinance, the owners of the Peppermint Beach Club filed a complaint on the basis that the law was unconstitutional, according to court documents.

For starters, the ordinance “fails to provide citizens with fair notice regarding what conduct is unlawful,” and “invites selective prosecution by granting law enforcement officials the unfettered individual discretion to make enforcement decisions,” the complaint alleged.

Attorney Kevin Martingayle, who represented the club in court, told the Daily Press that the owners filed because they felt they were being singled out by police for the genres of music the club hosted – often featuring hip-hop and punk rock shows.

“If they had been playing Lawrence Welk real loud, they never would have been given the first summons,” Martingayle said. “The chief gripe my clients had was they never had a complaint from anybody. They weren’t too loud for the customers, for neighboring businesses – just the police officers.”

The language in the ordinance led the justices to agree with the club’s complaint.

“Noise that one person may consider loud, disturbing and unnecessary may not disturb the sensibilities of another listener,” they wrote. “As employed in this context, such adjectives are inherently vague because they require persons of average intelligence to guess at the meaning of those words.”

Because the ordinance is likely to “invite arbitrary enforcement,” by officers with “differing perceptions regarding what levels of sound exceed the described tolerance levels,” the justices ruled it unconstitutionally vague.

The ruling could have broad ramifications in the region, as Martingayle told the Press he found other, similarly worded ordinances around the state.

“We looked at noise ordinances from all around Virginia,” Martingayle said. “It appears most do not have measurable standards, such as decibel levels. Even those that do seem to have some catchall language that makes them too vague.”