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City of Wichita v. Smith8/22/2003
for determining whether a statute regulating business is unconstitutionally vague is a common-sense determination of fairness. If an ordinary person exercising common sense can understand and comply with the statute, it is constitutional. Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). In determining whether an ordinance is void for vagueness, two inquires are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. State v. Lackey, 232 Kan. 478, 480, 657 P.2d 40 (1983)." Busby, Inc. v. Kansas Dept. of Agriculture, 29 Kan. App. 2d 555, 562, 29 P.3d 441 (2001).
Luna was convicted of a violation of the loud noise ordinance of the City of Ulysses, which stated:
"'Section 1. Loud Noise Prohibited. It shall be unlawful for any person to make or cause or permit to be made upon any public or private property including public streets, alleys, thoroughfares or parks, any unnecessarily loud or excessive noise or sound which is physically or mentally annoying or disturbing to another person or persons or which disturbs the peace, quiet, or comfort of another person or persons.'" Luna, 28 Kan. App. 2d at 413-14.
Luna argued the ordinance lacked an objective standard from which to determine what was "loud," "excessive," "mentally annoying," and "disturbing." The Court of Appeals agreed with Luna and held:
"We conclude the loud noise ordinance of the City does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Loaded phrases and words in the ordinance 'unnecessarily loud,' 'excessive,' 'mentally annoying,' and 'disturbing' do not provide fair warning to an individual of prohibited conduct.
"The ordinance also provides that if the noise is disturbing to 'another person or persons,' then the individual responsible for the noise is in violation, regardless if the complainants have reasonable grounds to complain. As was true in Bryan, the absence of an objective standard subjects the defendant to the particular sensibilities of the complainant. The door is left open to arbitrary and discriminatory enforcement of noisy speech, thus, potentially ensnaring constitutionally protected speech." 28 Kan. App. 2d at 416.
Here, Smith argues the language from the city ordinance to describe the volume of the noise as "excessive, unnecessary, unusual or loud noise" is vague and fails to provide fair warning to an individual. Second, Smith argues the ordinance's reference to a complainant of "reasonable sensibilities" leaves the door open to arbitrary and discriminatory enforcement.
In State v. Bryan, 259 Kan. 143, 155, 910 P.2d 212 (1996), the court found a portion of the stalking statute (K.S.A. 1994 Supp. 21 3438) unconstitutional because it failed to apply any objective standard in defining the terms "alarms," "annoys," and "harasses." The court noted different persons have different sensibilities, and conduct which annoyed or alarmed one person might not annoy or alarm another. If the victim had extraordinary sensibilities, the defendant could be guilty of stalking even though a reasonable person in the same situation would not be alarmed, annoyed, or harassed by the defendant's conduct. 259 Kan. at 155.
The pertinent part of the Wichita ordinance utilizes the standard of "any person of reasonable sensibilities." The existence of the reasonable person standard in the ordinance is a distinguishing factor in this case from Luna. The City cites the decisions of the other jurisdictions which have upheld the consti
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