In a 7-0 decision, the Supreme Court of Ohio in State v. Carrick, Slip Opinion No. 2012-608 held that a provision in Ohio’s disorderly conduct statute (R.C. 2917.11(A)(2)) that prohibits “recklessly causing inconvenience, annoyance or alarm to another by making excessive noise” is not unconstitionally void for vagueness.
Many municipal ordinances as well as commercial leases contain clauses prohibiting “excessive” or “unreasonable” noise. Since, at first glance, a seemingly subjective standard would be too vague to enforce or too hard to prove, most of us do not turn down our music or muzzle our pets. After the Carrick case, we may need to be more sensitive.
The Carrick case involved a citation issued to Jason Carrick for violating the Ohio Disorderly Conduct Statute as a result of loud music, particularly “booming bass” emanating from Mr. Carrick’s home. Several neighbors, 100’-200’ away complained not only about loud music, after 11:00 P.M., but that the bass caused the windows on their homes to vibrate. After three warnings, Mr. Carrick was cited and convicted of disorderly conduct in violation of R.C. 2917.11 (A)(2). He appealed to the Ninth District Court of Appeals (Wayne County) on the grounds that the statute was unconstitionally void for vagueness. The Ninth District upheld the the Statute, so Mr. Carrick appealed to the Supreme Court of Ohio.
Citing other cases, the Supreme Court of Ohio in Carrick stated that a statute could be struck down as “unconstitutionally vague” if “an individual of ordinary intelligence would not understand what he/she is required to do under the law”. Put another way, Mr. Carrick would have had to prove, beyond a reasonable doubt “that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.”United States v. Harris, 347 U.S. 612, 617 (1954). The Court claimed Mr. Carrick had to have understood what was expected because the R.C. 2917.11(A)(2) contained an objective standard; only “excessive” noise was prohibited. This author is not so sure how reasonable it is to consider “excessiveness” or “unreasonableness” an objective standard, but the Court thought so, especially because the statute also enumerated “specific” factors (“inconvenience, annoyance or alarm”) with which to judge the level of the disturbance.
In attempting to “objectify” a somewhat subjective analysis, the Court in Carrick sought guidance from its earlier decision in Columbus v. Kim, 118 Ohio St. 3d 93, 2008-Ohio-1817. The Columbus v. Kim case involved a Columbus ordinance prohibiting residents from harboring “an animal who emits sounds that are unreasonably loud…and …of such character, intensity and duration as to disturb the peace and quiet of the neighborhood”. Finding the Kim case analogous, the Court in Carrick again reasoned that “unreasonably loud” constitutes an objective standard, and since there were specific factors to gauge the level of the disturbance (character, intensity and duration), the Columbus ordinance, like R.C. 2917.11(A)(2) would not be “void for vagueness”.
Neither R.C. 2917.11(A)(2), nor the Court in Carrick provides guidance as to how much inconvenience, annoyance or alarm constitutes “excessive noise”. Nor does the Columbus ordinance provide guidance as to how long and how intense animal noise must be to be “unreasonable”. Perhaps all we can take away from State v. Carrick is: 1) the Supreme Court of Ohio has a track record upholding noise ordinances; and 2) “playing music at a late hour at such a volume that it keeps the neighbors from sleeping, causes windows to vibrate on a house a
quarter mile away, and prompts numerous calls of complaint to authorities” will be enough for the Supreme Court of Ohio to know unreasonable/excessive noise when they hear it, just as United State Supreme Court Justice Potter Stewart knew pornography when he saw it. (See Jacobellis v. Ohio, 378 U.S. 184 (1964)).
