State v. Adams, 2004 Ohio 3199 (OH 6/14/2004)

Page 1

2004 Ohio 3199

State of Ohio, Plaintiff-Appellee, v. Lamar T. Adams, David J. Diehl, Mark K. Harris, Tremaine Greer, Terrence Howell, Lamont Walker, Defendants-Appellants.

Case No. 02 ca 171.

Case No. 02 CA 194.

Case No. 02 CA 201.

Case No. 02 CA 202.

Case No. 02 CA 203.

Case No. 02 CA 204.

Case No. 02 CA 205.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dated: June 14, 2004.

Criminal Appeals from the Youngstown Municipal Court of Mahoning County, Ohio Case Nos. 01TRD8903; 02TRD4444; 02CRB1826; 01TRD3992; 01TRD4422; 01TRD6621; 02TRD3101; 02TRD4342.

Affirmed.

Atty. Dionne M. Almasy, City Prosecutor, Atty. Anthony J. Farris, Chief Assistant Prosecutor, 26 South Phelps Street, Youngstown, Ohio 44503, for Plaintiff-Appellee.

Atty. John J. Dixon, Atty. Charles E. Curry, Legal Arts Centre, Suite 203, 101 Market Street, Youngstown, Ohio 44503, for Defendants-Appellants.

Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro.

OPINION

WAITE, P.J.

{¶1} Six defendants have filed appeals of seven separate convictions for violating Youngstown Municipal Ordinance ("Ord.") 539.07(b), which prohibits drivers from operating their car stereo systems at an excessive volume level. The ordinance is challenged on the grounds that it overly restricts constitutionally protected speech, that it is void for vagueness, and that it allows for excessive fines. All seven defendants rely on a single brief submitted in this appeal. This Court recently upheld the constitutionality of a previous version of Ord. 539.07(b) in State v. Cornwell, 149 Ohio App.3d 212, 2002-Ohio-5178, 776 N.E.2d 572. Nevertheless, the arguments presented in this appeal raise a number of issues that were not reviewed in Cornwell. Most of the citations issued to the Appellants contain notations of how far away the officers were standing from the offending vehicles. This would seem to indicate that the citations were issued based on the 50-foot audibility measurement now contained in the revised version of Ord. 539.07(b). Based on the analysis that follows, we conclude that the current amended version of Ord. 539.07(b), including the 50-foot audibility test, is not unconstitutionally vague or overbroad and does not provide for unconstitutionally excessive fines. We affirm the convictions and sentences in each of the seven consolidated appeals.

ASSIGNMENT OF ERROR

{¶2} Appellants' single assignment of error states:

{¶3} "The trial court erred in overruling defendants [sic] motion to suppress/dismiss and convicting defendants of violating youngstown city ordinance 539.07(b), excessive vehicular sound amplification devices prohibited because said ordinance unconstitutionally restricts free speech, provides for excessive fines and punishments, and provides no notice to a reasonable citizen that he/she may be violating the law."

OVERBREADTH

{¶4} Appellants allege that Ord. 539.07(b) discourages citizens from exercising constitutionally protected rights under the First Amendment. Ord. 539.07(b) states, in pertinent part:

{¶5} "(b) Excessive Vehicular Sound Amplification Devices Prohibited.

{¶6} "1. No person operating or occupying a motor vehicle upon any public road, street, highway or private property shall operate or permit the operation of any sound amplification system from within the vehicle so as to disturb the quiet, comfort or repose of other persons, or at a volume that is plainly audible from outside of the vehicle.

{¶7} "2. 'Sound amplification system' means any radio, tape player, compact disc, loudspeaker, speaker or other electronic device used for the amplification of musical instruments or other sounds.

{¶8} "3. 'Plainly Audible' means any sound produced by a sound amplification system from within the vehicle that can clearly be heard outside the vehicle at a distance of fifty (50) feet or more. Measurement standards shall be by the auditory senses, based upon direct line of sight. Words or phrases need not be discernable and bass reverberations are included. The motor vehicle may be parked, stopped, standing or moving."

{¶9} The ordinance clearly prohibits drivers from broadcasting any type of sound—including, for example, political expression—that can be clearly heard at least 50 feet from the vehicle. Appellants contend that this curtailment of protected speech, under the pretext of reducing excessive noise, may completely discourage many people from broadcasting any protected speech from their automobiles, whether it be music or political messages or any other type of protected speech. According to Appellants, the ordinance should be invalidated in its entirety because it is constitutionally overbroad.

{¶10} Any discussion of the alleged unconstitutionality of a statute or ordinance must begin with the premise that all legislative enactments bear a strong presumption of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552. The party challenging a statute must prove that it is unconstitutional beyond a reasonable doubt. Id.

{¶11} A statute or ordinance may be overbroad, "if in its reach it prohibits constitutionally protected conduct." Grayned v. Rockford (1972), 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222. The crucial question is whether the statute sweeps within its prohibitions a substantial amount of conduct that may not be punished under the First Amendment. Id. at 115, 92 S.Ct. 2294, 33 L.Ed.2d 222. The rationale of the overbreadth doctrine is that third parties not presently before the court may refrain from exercising their constitutionally protected rights for fear of criminal sanctions contained in an overly broad enactment. Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73.

{¶12} The overbreadth doctrine is an exception to the traditional rules of standing and allows a party to assert the First Amendment rights of those not before the court. Brockett v. Spokane Arcades, Inc. (1985), 472 U.S. 491, 503-504, 105 S.Ct. 2794, 86 L.Ed.2d 394. The overbreadth doctrine is only applied when First Amendment rights are at stake. Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 528, 709 N.E.2d 1148.

{¶13} When a court applies the overbreadth doctrine, the statute or ordinance in question is declared to be facially invalid. Junction 615, Inc. v. Ohio Liquor Control Comm. (1999), 135 Ohio App.3d 33, 41-42, 732 N.E.2d 1025. For this reason, it has been said that the overbreadth doctrine is "manifestly strong medicine" that is employed sparingly, and only as a last resort. Broadrick v. Oklahoma (1973), 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830.

{¶14} It must also be noted that when a statute primarily regulates conduct rather than speech, the, "overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615, 93 S.Ct. 2908, 37 L.Ed.2d 830. Ord. 539.07(b) is not primarily directed at the content of the broadcasted speech but at the volume of sound coming from automobile audio systems. The ordinance's prescription against loud noises is an attempt to control conduct, i.e., the use of the volume control on the car stereo, rather than an attempt to control the type of speech being broadcast. See State v. Dorso (1983), 4 Ohio St.3d 60, 64, 4 OBR 150, 446 N.E.2d 449; Cornwell, supra, 149 Ohio App.3d 312, 2002-Ohio-5178, 776 N.E.2d 572, at ¶29. Therefore, we would need to find substantial overbreadth in order to invalidate the ordinance. See also Houston v. Hill (1987), 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398.

{¶15} Appellants' overbreadth argument necessarily involves a discussion of the Free Speech Clauses of both the First Amendment to United States Constitution and Section 11, Article I of the Ohio Constitution. The Ohio Supreme Court has held that, "the free speech guarantees accorded by the Ohio Constitution are no broader than the First Amendment, and that the First Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio Constitution." Eastwood Mall, Inc. v. Slanco (1994), 68 Ohio St.3d 221, 222, 626 N.E.2d 59, citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 362-363, 588 N.E.2d 116. Therefore, Appellants' argument should be viewed primarily through case law dealing with the First Amendment to the United States Constitution, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (Emphasis added.)

{¶16} Although Ord. 539.07(b) prohibits all excessive noise from being broadcast from automobile stereo systems, certain aspects of the ordinance are specifically directed at controlling the volume of broadcasts containing music and speech. The words "musical instruments," "bass reverberations," "words," and "phrases," are mentioned in the ordinance as specific aspects of the prohibited noise. Obviously, "words" and "phrases" are protected under the First Amendment. Music is also protected speech: "[m]usic, as a form of expression and communication, is protected under the First Amendment [to the United States Constitution]." Ward v. Rock Against Racism (1989), 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661.

{¶17} Although there is no universally accepted formula for framing an overbreadth analysis, in the instant case it will be helpful to ask the following questions: (1) is there a legitimate governmental interest at stake; (2) is the governmental interest primarily aimed at regulating speech itself or is it meant to control non-speech conduct; (3) if the government is regulating speech, what are the specific First Amendment rights that are threatened; and (4) are those First Amendment rights...