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A circuit court erred in deeming a city noise ordinance as constitutional where the language of the ordinance was vague

Holding that the plaintiff-city's noise ordinance was unconstitutionally vague, the court reversed and remanded for dismissal of the citations against the defendants-bar owners and employee. Defendants were issued the citations on the ground that the music coming from their establishment was too loud. The district court dismissed the citations, holding that the ordinance was unconstitutionally vague because "reasonable minds could differ regarding what destroys the peace and tranquility of a neighborhood," and that there was "no objective way for police to make that determination." The circuit court reversed in part, finding the ordinance was not unconstitutionally vague because, when read in conjunction with other sections, it "provided notice to residents of maximum sound levels during the day and night," and how those levels would be measured. On appeal, the court agreed with defendants that the circuit court erred in finding the ordinance constitutional. It noted that "the existence of maximum decibel limits in § 9.63(11) does not aid a citizen in determining whether his or her conduct violates § 9.63(3), nor does it place any constraints on enforcing officers' discretion." The court compared the ordinance to similar ordinances that were struck down as vague, noting there is "no standard for determining what 'destroys' the peace and tranquility of a neighborhood, which compels 'men of common intelligence' to guess as to what conduct is proscribed by § 9.63(3)." Further, because the ordinance "fails to provide explicit standards for determining what 'destroys the peace and tranquility of the surrounding neighborhood,' law enforcement officers and finders of fact are necessarily vested with 'virtually complete discretion' to determine whether a violation of § 9.63(3) has occurred." The court also distinguished the case from cases involving challenges to disturbing the peace statutes, noting the ordinance "does not proscribe conduct that merely disturbs or disrupts the peace and tranquility, but rather that which destroys the peace and tranquility. Thus, a person of ordinary intelligence would still have to guess whether his or her conduct was" lawful. Finally, the court noted that there was "no narrowing construction of" the ordinance that would render it constitutional. "Although the district court attempted . . . to read into § 9.63(3) a requirement that a violation of § 9.63(11) have occurred, such a reading effects a substantial revision of the ordinance and essentially amounts to rendering § 9.63(3) nugatory or surplusage . . . ." 

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