On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 03-094.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Holston, Jr.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Clarksburg Inn (Inn), appeals the January 30, 2004 order of the Superior Court, Law Division, Monmouth County entered after a trial de novo on the record of the September 29, 2003 trial before the Millstone Township Municipal Court, finding defendant guilty of two violations of Millstone Township Anti-Noise Ordinance No. 3-15 (Ordinance) on February 1, 2003 and June 20, 2003, respectively. Defendant does not challenge the factual conclusions reached by the Law Division. Instead, defendant seeks a reversal of the two guilty verdicts based on two grounds. The first claim is that the Ordinance is unconstitutional on its face because it is impermissibly vague and overbroad. Second, it is unconstitutional as applied, because the Ordinance was applied in a subjective manner without taking into account the reasonableness of defendant's conduct. We affirm.
Defendant makes the following arguments for our consideration on this appeal.
THE DEFENDANT'S CONVICTIONS BELOW SHOULD BE VACATED BECAUSE THE MILLSTONE ANTI-NOISE ORDINANCE IS IMPERMISSIBLY VAGUE, AND VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
A. An ordinance is unconstitutional and violates due process if persons of common intelligence must necessarily guess at its meaning and differ as to its application.
B. Millstone Ordinance No. 3-15 is unconstitutionally vague and unenforceable.
C. A constitutionally sound noise ordinance contains objective criteria for definitions and enforcement, such as sound decibel levels.
D. The Law Division's decision should be reversed because sufficient credible evidence present in the record does not exist to uphold its conclusion that the ordinance is constitutional.
THE MUNICIPAL COURT ERRED BY APPLYING THE ORDINANCE IN A SUBJECTIVE MANNER, AND NOT TAKING INTO ACCOUNT THE REASONABLENESS OF THE DEFENDANT'S CONDUCT.
On February 1, 2003, the Clarksburg Inn was issued Summons 2003-000701 on a complaint of excessive noise. On May 27, 2003, the case was listed for trial before Judge Gelson at the Millstone Township Municipal Court. Following a conference between the municipal prosecutor, defense counsel and witnesses, the Township agreed to defer prosecution for ninety days, and if there were no further complaints of noise violations, the summons would be dismissed. There was an agreement that the noise level from music would be lowered and monitored, that there would be no live bands or music on the deck, and that no noise would be audible from a distance of 100 feet away.
Defendant violated the terms of the agreement on June 20, 2003 and July 12, 2003. Summons 2003-000618 was issued for the June 20, 2003 violation and Summons 2003-000620 was issued for the July 12, 2003 violation.
On September 9, 2003, the matter was listed for trial before Judge Gelson. The judge proceeded on the summonses for the February 1 and June 20, 2003 violations. The court did not proceed with the July 12, 2003 violation.
The State's first witness, Roger Weltner, testified that he lived eighty-one feet from Clarksburg Inn on the same side of the street and that he had been enduring ongoing disturbances from loud music from the Inn, a bar/package store, since June 26, 2002. Weltner stated that on February 1, 2003, he was at home in his bedroom with the windows closed. He was disturbed by"very loud" music, which he could clearly hear from a live band playing at the Inn. He could not sleep. Weltner found it necessary to call the State Police three times that evening: first at 9:47 p.m., again at 11:02 p.m. and a third time at 11:45 p.m. The noise remained continually loud and disturbing throughout the evening. Finally, after a third call, the loud noise emanating from the Inn subsided.
Weltner testified that the second incident occurred when he arrived home from work at 4:00 p.m. on June 20, 2003. A disc jockey was playing music on the deck of the Inn. Weltner was disturbed by the sound level of the noise being generated from defendant's premises, which was"very loud" to the extent that he could actually discern the words being sung from that distance. Before he came home, his wife had called the Inn to complain about the noise. Weltner again called the State Police who responded, and the loud noise ended.
Roger Strickland, the State's second witness, testified to living 270 feet from defendant's premises on the opposite side of the street. On February 1, 2003 at approximately 9:00 p.m., he was inside his home with the windows closed watching television when he was disturbed by"clearly audible" loud noise and music coming from the Inn. The noise was so loud that it drowned out the sound of his television and caused his windows to vibrate. He testified that the noise was annoying and disturbing and persisted until after midnight.
Strickland further testified that on June 20, 2003 at approximately 4:00 p.m., he was again disturbed by loud noise and music coming from the Inn. The noise was clearly audible from 270 feet away but seemed to him like it was only ten feet away. The music was so loud that he could hear the lyrics. The noise disturbed Strickland's peace and quiet. Strickland was so annoyed that he contacted defendant's attorney to complain about the noise.
Dris Kowalic testified to living 500 to 600 feet from the Inn. During the winter months of 2003, he was disturbed by loud music coming from the Inn every weekend. His windows were closed, but he could still hear the music, loud bass, and people singing from that distance. The disturbance stopped for about two weeks after the May 27, 2003 municipal court proceeding but then continued to be loud on the ...