People v Pfluger

[*1] People v Pfluger 2004 NY Slip Op 51770(U) Decided on December 28, 2004 District Court Of Suffolk County, Third District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2004
District Court of Suffolk County, Third District

THE PEOPLE OF THE STATE OF N EW YORK

against

JACKIE PFLUGER, Defendant



HUTO 969-04

C. Stephen Hackeling, J.

DECISION AFTER TRIAL

The People of the State of New York (hereinafter "the People"), via five citizen informations involving three separate dates have accused the defendant Jackie P. Fluger of violating Sec. 141-2 of the Huntington Town Code. A trial of the matter was conducted on December 8, 2004, wherein the Court considered the testimony of witnesses and reviewed documentary exhibits. The Court makes the following Findings of Fact and Conclusions of Law in finding the defendant "Not Guilty" of the alleged offenses.

Undisputed Facts

The undisputed relevant facts are as follows: 1. The defendant, Jackie Pfluger, is the owner of 12 Marirod Court, Northport, New York.2. The defendant resides with her twelve (12) year old son who possesses a yellow motorized "dirt bike" 3. The defendant allows her son to ride his dirt bike only upon her real property, both on the driveway and around the yard path.4. The defendant shares an approximate 330 foot boundary with her neighbor, Thomas Lasurdo, which runs near the defendant's driveway.[*2]

5. Mr. Lasurdo and John Chandler, another neighbor, are the complainants in these proceedings, with each having filed multiple citizen accusatory informatons dated September 16, 2004, alleging that on August 24, 2004, August 26, 2004 and August 28, 2004, that "the defendant, as owner of... 12 Marirod Court,...allowed an all terrain vehicle to be driven...for an extended period of time, creating a volume of noise, considered loud and disturbing to the neighbor" [the complainant]. 6. Mr. Lasurdo has called the police to complain about the "dirt bike" use on 12-15 occasions. No summons were ever issued by the Police.7. Mr. Lasurdo and the defendant have a long history of neighbor animosity and disputed issues including but not limited to 34 incidents involving either the subject "dirt bike" or another motorized vehicle.

Disputed Issues of Fact

A.The defendant generally disputed the dates and times of the alleged noise ordinance violations on August 24, 26 and 28 and offers what could be described as alibi evidence indicating her son was in either Riverhead, New York or summer camp when the alleged offenses occurred. However, the defendant does admit that her son utilizes the subject "dirt bike" on her property at least 3-4 times per week for approximately 20-30 minute intervals. The Court finds beyond a reasonable doubt, that the defendant's son did utilize the subject "dirt bike" for at least a twenty minute period on Tuesday August 24, 2004 and on Saturday August 28, 2004. HUTO 971-04 alleges an offense on Thursday August 26, 2004, and is dismissed as the record does not establish an offense occurred on that day.

B.Whether the "dirt bike" contains a muffler/silencer?. The record clearly establishes that the "dirt bike" does maintain an operating muffler/silencer

devise. [ FN 1]

C.Whether the noise emanating from the subject "dirt bike" is equivalent to a chain-saw being operated at full throttle? The Court concludes the "dirt bike" makes noise equivalent to the noise created by a chain-saw. [ FN 2]

-

FN No.1 The Court makes this formal finding solely to limit the subsequent decision as the citizen complainant did not concede this fact in his testimony, though the People stipulated after resting their case that they were not proceeding under the

Provisions of Sec. 141-3 (F) [*3]

FN #

2 The Court acknowledges that such a finding is irrelevant unless it is assumed that the operation of a chain saw would violate Sec. 141. The logic for the finding will be discussed, supra .

The Law

Section 141-1 of the Huntington Town Code provides as follows:

§141-1. Findings [Amended 6-20-2000 by L.L. No. 14-2000]

It is found and declared that the making and creation of unreasonably loud, disturbing or unusual noises within the limits of the Town of Hunting is a condition which has existed for some time, and the extent and volume of such noises is increasing. The making, creation or maintenance of such unreasonably loud, unnatural or unusual noises which are prolonged, unusual or unnatural in their time, place and use affect and are a detriment to the peace, welfare, comfort, safety, convenience, good order and prosperity of the residents of the Town of Huntington..

§141-2. Prohibition. [Amended 9-28-1988 by Ord. No. 88-CE-8] It shall be unlawful for any person, firm or corporation to make, continue or cause of allow to be made or continued unreasonable noise within the Town of Huntington. Emphasis added.

§141-2.1. Definitions. [Added 9-28-1988 by Ord. No. 88-CE-8]

For the purposes of this chapter, the following terms shall have the meanings indicated:

UNREASONABLE NOISE:

A Any noise of a type or volume that a reasonable person of normal sensitivities would not tolerate at the time, place and under the circumstances that noise is made. Emphasis added.

B In addition to the definition contained in Subsection A, any noise enumerated in §141-3 is hereby declared to constitute unreasonable noise and in violation of this chapter.

§141-3. Unreasonable noises enumerated. [Amended 9-14-1971 by Ord. No. 71-CE-16; 2-2-1979 by Ord. No. 79-CE-2; 9-28-1988 by Ord. No. 88-CE-8, 12-17-1996 by L.L. No. 12-1996; 6-2-1998 by L.L. No. 27-1998; 6-20-2000 by L.L. No. 14-2000] The following acts, among others, are declared to be loud, disturbing and unreasonable [*4]noises in violation of this chapter, but said enumeration shall not be deemed to be exclusive, namely:A. Radios, phonographs and televisions sets. The using, operating or permitting to be played, used or operated of any television or radio receiving set, musical instrument, phonograph or other machine or device for producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants or, at any time, of louder volume than is necessary for convenient hearing of the person or persons who are in the room, vehicle, chamber or area in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of fifty (50) feet from the building, structure, vehicle or area in which it is located shall be prima facie evidence of a violation of this section.B. Horns and signaling devices. The sounding of any horn or signaling device on any automobile, motorcycle, streetcar or other vehicle on any street or public place of the Town of Huntington except as a danger warning; the creation by means of any such signaling device of any unreasonable loud or harsh sound; the sounding of any such device for an unreasonable period of time; the use of any signaling device except the one operated by hand or electricity; the use of any horn, whistle or other device operated by engine or exhaust; and the use of any such signaling device when traffic is for any reason held up.C. Yelling and shouting. Yelling, shouting, hooting, whistling or singing on any public street, sidewalk, business premises open to the public, office or any public property, when intentionally done to create a risk of public annoyance, alarm or inconvenience.D. Animals and birds. The keeping of any one (1) or more animals or birds whose noise, by virtue of loudness, duration, frequency or intensity, causes public inconvenience, annoyance or alarm; or creates unreasonable noise.(1) Any animal or bird noise occurring between 10:00 p.m. and 8)00 a.m., and plainly audible at a distance fifty (50) feet from the place of origination of the noise, shall be prima facie evidence of a violation of this chapter.E. Steam whistles. The blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger or upon request of proper town authorities.F. Exhausts. The discharge into the open air of the exhaust of any steam engine, stationary internal-combustion engine, motorboat or motor vehicle except through a muffler or other device which will effectively prevent loud or explosive noises therefrom.[*5]G. Defect in vehicle or load. The use of any automobile, motorcycle or vehicle os out of repair, so loaded or in such a manner as to create loud and grating, grinding, rattling or other unreasonable noise.H. Pile drivers and hammers. The operation between the hours of 10:00 p.m. and 7:00 a.m. of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended by loud or unusual noise.

I. Loading and unloading. The creation of loud and unreasonable noise in connection with the loading or unloading of any vehicle, boat, barge or train or the opening and destruction of bales, boxes, crates and containers. J. Construction or repairing of buildings. The erection (including excavating), demolition, alteration or repair of any building other than between the hours of 7:00 a.m. and 6:00 p.m. on weekdays, except in case of emergency in the interest of public health and safety, and then only with a permit from the Director of the Department of Engineering, Building and Housing, which permit may be granted for a period not to exceed three (3) days or less while the emergency continues and which permit may be renewed for periods of three (3) days or less while the emergency continues. If the Building Inspector should determine that the public health and safety will not be impaired by the erection, demolition, alteration or repair of any building or the excavation of streets and highways between the hours of 6:00 p.m. and 7:00 a.m., and if he shall further determine that loss or inconvenience would result to any party in interest, he may grant permission for such work to be done between the hours of 6:00 p.m. and 7:00 a.m. upon application being made at the time the permit for the work is awarded or during the progress of the work.K. Schools, courts, religious institutions, hospitals. The creation of any unreasonable noise of any street adjacent to any school, institution of learning, religious institution or court while the same is in use, or adjacent to any hospital, which unreasonably interferes with the workings of such institution or which disturbs or unduly annoys patients in the hospital, provided that conspicuous signs are displayed in such streets indicating that the same is a school, hospital or court street.L. Hawkers, peddlers. The shouting and crying of peddlers, hawkers and vendors which disturbs the peace and quiet of the neighborhood.M. Drums, The use of any drum or other instrument or device for the purpose of attracting attention by creation of noise to any performance, show or sale.N. Transportation of metal rails, pillars and columns. The transportation of rails, pillars or columns of iron, steel or other material over and along streets and other public [*6]places upon carts, drays, cars, trucks or in any other manner, so loaded as to cause loud noises or as to disturb the peace and quiet of such streets or other public places.O. Blowers, The operation of any noise-creating blower or power fan or any internal-combustion engine the operation of which causes noise due to the explosion of operating gases or fluids, unless the noise from such blower of fan is muffled and such engine is equipped with a muffler device sufficient to deaden the noise. In no event shall any noise from such blower exceed seventy (70) (A-scale) decibel. Notwithstanding the provisions hereof, the operation of any motorized leaf blower device on a weekday prior to 8:00 a.m. or after 7:00 p.m. or on a Saturday, Sunday or legal holiday prior to 9:00 a.m. or after 5:00 p.m. shall be deemed an unreasonable noise.P. Loudspeakers. The operation of any loudspeakers or speaker systems or any device for the production or reproduction of sound, in a manner that creates public annoyance, alarm or inconvenience or unreasonable noise.Issue Presented

At trial the defendant raised a "due process" constitutional challenged to the Town's noise statute asserting that Section 141 is so "vague" that it violates the 14th Amendment of the United States Constitution which provides ,"nor shall any state deprive any person of life, liberty, or property, without due process of law".

Both the United States Supreme Court and The New York Court of Appeals have written extensively on the issue of "vague"anti-noise ordinances. Indeed, the "First" essential for due process of law requires that government decrees (statutes) not be vague. See, Connally v. General Construction Co., 269 U.S. 385 (1926). In citing to a plethora of its prior decisions the U.S. Supreme Court opined:

It is a basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined. Vague laws

offend several important values. First, because we assume that

man is free to steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who apply them.

A vague law impermissibly delegates basic policy matters to

policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone"...than if the boundaries of the forbidden areas were clearly [*7]marked. Graynor v. City of Rockford, 408 U.S. 104 (1970)

In acknowledging the "special problems" inherent in seeking to regulate noise; the New York Court of Appeals has distinguished between narrowly tailored limited context statues and broad "catch all" statutes which are inherently imprecise and therefore vague. See, People v. New York Trap Rock Corp., 57 NY2d 371 (1982). "Reasonable person" noise ordinances will pass constitutional muster as long as they do not attempt to govern every

possible situation by providing no contextual narrowing construction. People v. Bakolas, 462 NYS2d 844 (1983). Reasonably definite meaning arises from a described context which specifies some objective requirement. See, People v. Frie, 646 NYS 2nd 961 (Dist. Ct. Suffolk Co. 1996) citing to People v. New York Trap Rock Corp., 57 NY2d 371 (1982) and People v. Byron, 17 NY2d 64 (1966), People v. Bakolas, 59 NY2d 51 (1983). See also, People v. Kleber,

641 NYS2d 488 ( Muttontown Vil. C. Nassau Co. 1996).

The Town of Huntington's noise ordinance, contains both an omnibus "catch all" section ( Sec.141) and a specific contextually defined list of sixteen types of noises which are narrowly described ( Sec's.142 & 143 ). After the presentation of its case, the People acknowledged that they are proceeding under only the general reasonable man "catch all" component of Huntington's noise ordinance as its prima facie evidence did not establish any of the 143 specific noise categories. [ FN 3] The Town argues that its catch all language passes constitutional review with the further clarification that a noise is illegal if "a reasonable man of normal sensibilities would not tolerate it under similar circumstances".

The People argue that this Court's Appellate Tribunal constitutionally upheld a neighboring Town's Noise Ordinance which contained a "reasonable person of normal sensibilities" standard. See, People v. O'Connel, 781 NYS2d 400 ( 9th & 10th Appellate Term 2004). Therein the Appellate Term found such a reasonable man statute is sustainable if the legislative body places it in a "context" with some "objective standard" wherein an individual of ordinary intelligence will not have to guess the meaning of the statute. Unfortunately, Huntington's catch all statute contains neither a context or a single objective standard. The O'Connel precedent involved a " animal noise" context with the two objective standards being a 15 minute interval and noise disturbance across a residential boundary line. Likewise, the "reasonable man" precedent proffered by the People all involve both legislative context and objective standards. See, People v. Frie, cite, supra (dog, time barking), People v. Bakolas, cite, supra (public noise annoyance involving traffic); People v. Hollstegle, 129 Misc2d 580 (Ocean Beach Village Ct. 1985) (sound reproduction devise/residential area).

The Court notes that the Town has gone to commendable lengths to add context and standards in the 1998 and 2000 amendments to its Noise Ordinance in creating its sixteen specific violation categories. It is obvious that these amendments were an effort to move away from the "reasonable man" standard which was found constitutionally lacking for vagueness reasons. As ably stated by defendant's counsel in his opening remarks, such a standard by itself is inherently flawed if the Court accepts as true the universally stated axiom that "reasonable [*8]men can differ". As this Court agrees, it must conclude that the catch all component of Sec. 141 violates the 14th Amendment of the United States Constitution, though it finds that the sixteen specific context provisions are sustainable.

The Town of Huntington has the legislative power to regulate and even to prohibit activities such as "dirt bike" or "chainsaw" operation.[ FN 4] Presently these activities must be found to be lawful as the Town has chosen not to prohibit them. To adopt the People's position that the dirt bike is as bad as a chainsaw and is per se objectionable to a "reasonable man" is illogical. It would be an impermissible overreach to construe an unrelated statute to indirectly serve as an absolute prohibition of these activities. It is for the legislative body and not a neighbor to make this public policy decision.

FN #

3 At the start of the trial, it appears that the People were not sure if the subject dirt bike maintained a muffler. The evidence overwhelmingly establishes it did.

FN #

4 The complainant's testimony asserted that the dirt bike was as loud as a chainsaw. Such a statement infers that utilization of a chainsaw would also violate this neighbor's sensitivities. Neither the defendant or the Court can reasonably fathom what other activities would violate this neighbor's "reasonable man test". The quarrelsome neighbor situation is the reason that the Court of Appeals has overruled individual man standards in favor of community standards. See generally, People v. Bakolas, cite, supra ..

DATED: HUNTINGTON, NY

DECEMBER 28, 2004

J.D.C.