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City of Wichita v. Smith8/22/2003
noise of the environment from all sources at the time and place of such sound level measurement. (Ord. No. 41-918 § 2)"
"7.41.030 Excessive noise levels.
"(a) A noise measured or registered as provided herein from any source not exempted by this chapter at a level which is equal to or in excess of the db(A) established for the time period and zones listed below or that exceeds the background level by five db(A), whichever is greater, is declared to be excessive, unusual, loud and unnecessary, for the purposes of Section 8.41.010 :
8:00 a.m. 10.00 p.m.
to next to next
Zone 10:00 p.m. 8:00 a.m.
Residential 55db(A) 50db(A)
Commercial 60db(A) 55db(A)
Light industrial 70db(A) 65db(A)
Industrial 80db(A) 75db(A)
Old Town district as set forth in subsection (b)
"Background noise means noise from all sources other than that under specific consideration, including traffic operating on public thoroughfares, and is established by measuring the noise level over a fifteen-minute period of time."
Smith argues that the specific measurement provisions would require the City to measure the noise being produced to see if it exceeded the regulatory limits, which was not done.
We believe Smith's argument fails. The ordinance states that "the following test measurements and requirements may be applied." (Emphasis added.) We read this language to mean much the same as the standards for determining whether a person is unlawfully driving under the influence of alcohol. Certain levels of alcohol in the blood, or noise in the city, are presumptively a violation of the law when measured in prescribed ways. However, there can be violations of either the drunk driving law or the noise ordinance without the measurements, if the factfinder determines the prohibited conduct occurred.
Smith also argues that the City's noise ordinance is unconstitutionally vague. We disagree.
Whether the ordinance is constitutional presents a question of law over which this court's review is unlimited. See City of Wichita v. Edwards, 23 Kan. App. 2d 962, 964, 939 P.2d 942 (1997).
The general principles and guidelines to be followed in considering the constitutionality of a statute or ordinance have been enumerated many times:
"The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt. The propriety, wisdom, necessity and expediency of legislation are exclusively matters for legislative determination." City of Wichita v. Lucero, 255 Kan. 437, 442, 874 P.2d 1144 (1994) (quoting Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74, 697 P.2d 1310 ).
Smith alleges the language in subsection (a) is so vague as to the conduct prohibited that it is unconstitutional and unenforceable, relying on the holding in Luna v. City of Ulysses, 28 Kan. App. 2d 413, 17 P.3d 940 (2000). Based on subsection (a), the complaint alleged that Smith " llow to be made or continued, loud noise . . . which . . . interfered with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area."
"The standard
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