Tag Archives: Noise Ordinance

Noise Ordinance Found Unconstitutional

Rachel DePompa – bio | email

Attorney Steven Benjamin has been leading the charge for months now, consistently lambasting the city’s new noise ordinance as “unconstitutional”. He gave countless interviews to media outlets and even took up a case for free to fight it. Sure enough, a judge agreed with him this week.

Richmond General District Chief Judge Robert Pustilnik declared the ordinance unconstitutional. He ruled it was  too broad and unfairly promotes religion.

The ordinance prohibits noise that can be heard 50 feet away after 11:00 at night. Violators face a class 2 misdemeanor and up to 6 months in jail. The ordinance allows for religious music, church bells and organs to be heard at anytime.

Steven Benjamin said after the hearing, “The city’s ordinance is completely unconstitutional on its face. It criminalizes noise that one makes within one’s own home and it advances religion and religious noise. The ordinance makes it impossible for people to know whether the sounds they make in their daily living are lawful sounds or not.”

Judge Pustilnik gave the city until December 14th to appeal his ruling to Circuit Court. If no appeal is made then Pustilnik will dismiss the charges against the four band members. Either way, it appears City Council will have to take up the issue again.  Assistant City Attorney Greg Lukanuski says the city will take its time deciding whether or not to appeal.

Steven Benjamin said, “I hope the city will make the responsible decision and not waste anymore time defending this ridiculous thing, and will instead go to work and give us the noise ordinance that we deserve.”

In a statement issued shortly after the ruling, Councilman Charles Samuels (who led the way for reforming the noise ordinance) said he was, ” disappointed by the outcome, but respects the judge’s decision.” Samuels went on to say, ” Much has been made of the issue with our city’s current noise law. After the Virginia Supreme Court’s Tanner decision nullified the “unreasonably loud” standard in 2009, I worked with the city attorney’s office to review what other options we had. Since April I have been meeting with a workgroup to craft a new noise ordinance which I hope to introduce in December or January of 2011. ”

Here’s a link to a blog with more information on the “Tanner Decision” from the fine folks at VA Lawyers Weekly.

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City’s Noise Ordinance Challenged

Rachel DePompa – bio | email

The city’s new noise ordinance went into effect February 22nd. Since that time, Richmond Police have handed out 105 citations to homeowners and motorists. Today, the law was supposed to face its first major challenge in court. The members of the band, “Little Master” were ticketed April 4th. Tim Morris, 29, bass player Leah Clancy, 28, and drummer Michael Bourlotos, 24, were playing at a house party on West  Clay Street. The home was rented by Rozalia Janicki, who was also cited. Their attorney, Steven Benjamin, says, “Police essentially forced their way into this home, where they had no permission to enter and without a search warrant.” He goes on to say that the police, “demanded identification, questioned everyone and over the protest of the owner, they searched every room of the that house.”

Benjamin is arguing that the city’s noise ordinance is too vague and violates first amendment rights. In court today, Nicholas Simopoulus with the city attorney’s office, said the ordinance is not unconstitutional and indicated the city plans to fight the challenge.

The ordinance was passed by the City Council under the guidance of the City Attorney. Under the ordinance, any noise after 11pm and before 7 am should only be heard by the person making the noise. Violators face up to a thousand dollar fine and 6 months in jail.

The band was charged five  months ago and the case has been delayed three times. Today, an assistant city attorney showed up and asked for a continuance. Judge Phillip Hairston was upset and said, “the Commonwealth’s Attorney’s office could have been more prepared,” but he faulted the City attorney’s office for not being ready. Legal arguments were supposed to have been filed months ago, but the city did not file anything. The judge said he would consider dismissing the charges against the band, but the members asked him not to.  Tim Morris told me outside the courtroom, “It’s important that we get a ruling from the judge, so that we all know in the future as, citizens, musicians and artists, what this ruling means to us as individuals and what it means to our city.”

Judge Hairston rescheduled the case for October 18th. He says he wants arguments from both sides and plans to make a ruling.

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