The N.C. Court of Appeals has overturned the conviction of a woman for violating Beaufort County’s noise ordinance.
The court found the ordinance unconstitutional Dec. 5 because it gave the county commission the authority to issue a discretionary exemption via a special-events permit without establishing standards for issuing the permit.
Cynthia Perez runs Desperados, a nightclub in Beaufort County. The bar features live bands on most Friday nights and all Saturday nights. Bands obviously make noise, and a neighbor who owns a trailer park objected, calling the sheriff’s department regularly. Both Perez and the Desperados were cited for violating the county’s noise ordinance on numerous occasions. Perez had applied for a special-events permit, which grants an exemption from noise limits, but the county refused to grant a permit.
A jury convicted Perez of 12 counts and the club of four counts. Perez was sentenced to a week in jail, two years of supervised probation, plus a $500 fine on each count. Desperados was fined $2,000.
Perez and the club challenged their convictions before the N.C. Court of Appeals.
“Defendants contend that this ordinance is unconstitutional because it allows ‘the County’ to issue special event permits in its discretion with no articulated standards, acting as an arbitrary prior restraint on free speech,” Judge Robin Hudson wrote for the appeals court. “We agree.”
Various federal courts, including the U.S. Supreme Court, have examined noise ordinances closely because of their potential impact on the First Amendment right to freedom of speech. In a 1948 case, Saia v. New York, the U.S. Supreme Court considered an ordinance that prohibited the use of sound amplification without approval from the chief of police.
A minister challenged the ordinance after being denied a permit after several citizens complained. The high court found the requirement for police approval to be unconstitutional, as it prescribed no standards for the issuing of a permit. Issuance was purely discretionary, and that exactly was the problem.
The N.C. Court of Appeals found that the exact same kind of problem existed in Beaufort County’s rules on special-event permits:
“Here, as discussed above, the ordinance is narrowly drawn, but constitutionally flawed in that it allows the County to exercise its discretion to issue a complete exemption in the form of a special events permit, while prescribing no standards for the exercise of that discretion. The record and briefs reveal nothing about the process by which the commissioners grant or deny special events permits, and thus we cannot say that the decision is made without unbridled discretion.
“This ordinance presents the same problem as the ordinance in Saia, and as discussed in Wiggins, supra, by conferring authority on public officials to issue permits in their unguided discretion. As such, the paragraph of the ordinance establishing prohibitions and exemptions is an impermissible prior restraint, which violates the First Amendment of the United States Constitution. Because the paragraph of the ordinance under which these defendants were convicted is unconstitutional, it cannot be the basis for their convictions, which we hereby vacate.”
Judge John Tyson dissented from the majority holding. He held that the issue was not properly before the court, as Perez had applied for a special-events permit only once and had not appealed when the permit was denied.
“Defendants failed to appeal from Beaufort County’s denial of their special event permit application, and waived any review of the application of the ordinance to their activities.”
N.C. Court of Appeals ruling are binding interpretations of state law unless overturned by the N.C. Supreme Court. Because of Tyson’s dissent, the state’s highest court must hear the case if the state further appeals. The N.C. Supreme Court is not required to issue its own opinion, but may instead adopt either the reasoning of either the majority or dissenting Court of Appeals opinion. If heard by the high court only six of the seven justices at most would participate; Judge Hudson was recently elected to the Supreme Court.
The case is State v. Desperado’s, Inc., (05-1397).
Michael Lowrey is an associate editor of Carolina Journal.