PRESENT: All the Justices

BRADLEY S. TANNER, ET AL. 

v. Record No. 080998 OPINION BY 

JUSTICE BARBARA MILANO KEENAN 

 April 17, 2009 

CITY OF VIRGINIA BEACH 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Joseph Canada, Jr., Judge 

 In this appeal, we consider whether the circuit court erred 

in rejecting a constitutional challenge to a municipal noise 

control ordinance. 

 Bradley S. Tanner and Eric A. Williams (collectively, the 

owners) own and operate BAE Ventures, Inc., t/a The Peppermint 

Beach Club (the club), a licensed restaurant and entertainment 

venue located in the 1800 block of Atlantic Avenue in the City 

of Virginia Beach (City). The club is located in a part of the 

City commonly referred to as the “oceanfront,” which includes 

restaurants, bars, hotels, and outdoor entertainment venues. 

 The club, which is on the ground floor of the Howard 

Johnson Hotel, hosts disc jockeys and occasional “live” 

entertainment groups that play various types of music including 

“hip-hop,” “punk rock,” “emo,” and “indie” music. The owners 

repeatedly have been warned by City police officers about music 

sound levels, and have received citations for violations of 
Virginia Beach City Code § 23-47 (the ordinance). The ordinance 

states: 

It shall be unlawful for any person to create, or 

allow to be created any unreasonably loud, 

disturbing and unnecessary noise in the city or 

any noise of such character, intensity and 

duration as to be detrimental to the life or 

health of persons of reasonable sensitivity or to 

disturb or annoy the quiet, comfort or repose of 

reasonable persons. The following acts, among 

others, are declared to be loud, disturbing and 

unnecessary noise in violation of this section, 

but such enumeration shall not be deemed to be 

exclusive: 

(1) The playing of any television set, 

radio, tape player, phonograph or any musical 

instrument in such a manner or with such volume 

as to annoy or disturb the quiet, comfort or 

repose of reasonable persons. 

(2) The keeping of any animal which, by 

causing frequent or long-continued noise, shall 

disturb the quiet, comfort or repose of the 

neighborhood to such an extent as to constitute a 

nuisance. 

(3) The creation of any excessive noise on 

any street adjacent to any school, institution of 

learning or court, while the same is in session, 

or adjacent to any building used as a place of 

public worship, while being so used or adjacent 

to any hospital, which unreasonably interferes 

with the workings of such school, institution or 

court or the services being conducted in such 

place of public worship or which disturbs or 

unduly annoys patients in such hospital. 

(4) The shouting and crying of peddlers, 

hawkers and vendors which disturbs the peace and 

quiet of the neighborhood. 

(5) The use of any drum, loudspeaker or 

other instrument or device for the purpose of 

attracting attention, by creation of noise, to 

any performance, show or sale or display of 

merchandise. 

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Virginia Beach City Code § 23-47. Any violation of the 

ordinance constitutes a class 4 misdemeanor. Id.

 In June 2007, the owners filed a complaint seeking a 

declaratory judgment that the ordinance is unconstitutional on 

its face because it is vague, and that it is unconstitutional as 

applied to the club. The owners alleged that the ordinance is 

vague because it fails to provide citizens with “fair notice” 

regarding what conduct is unlawful, and because the ordinance 

language invites selective prosecution by granting law 

enforcement officials the “unfettered individual discretion” to 

make enforcement decisions. The owners separately alleged that 

City police officers have applied and enforced the ordinance 

against the owners “in a subjective and selective manner.” 

 In response to the owners’ complaint, the City filed a 

demurrer, which the circuit court sustained in part based on its 

previous determination that the ordinance was constitutional on 

its face. Relying on that prior decision, the circuit court 

held, among other things, that the ordinance is not vague, and 

dismissed the owners’ facial constitutional challenge with 

prejudice. 

 The case proceeded to trial on the issue of the City’s 

application of the ordinance to the sound levels generated by 

the club’s music. Certain City police officers testified that 

the City used two enforcement standards in evaluating noise 

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emanating from oceanfront business establishments. The first 

standard used was the “reasonable person” standard provided for 

by the ordinance. The second standard employed was an “across 

the street” assessment established by Police Captain Anthony F. 

Zucaro. 

 Addressing the “reasonable person” standard, Captain Zucaro 

testified that police officers determine whether noise is 

“unreasonably loud, disturbing and unnecessary” by employing the 

officers’ “[b]ackground, experience, knowledge of the dynamics 

of the moment, listening, [and] witnessing.” Officers Albert L. 

Mills, Christopher D. D’Orio, and Steven J. Kennedy testified 

that officers usually exercise their discretion whether to issue 

a citation for violation of the ordinance. These officers 

generally conceded that “reasonableness” is a standard that 

depends on an individual officer’s assessment and on 

environmental factors such as the weather, the volume of ambient 

noise, and the time of day. 

 In 2007, Zucaro issued a letter that was distributed to 

oceanfront business owners in an effort to achieve voluntary 

compliance with the ordinance. The letter informed the business 

owners that police officers would take enforcement action if 

“[t]he intensity of the noise emanating from an establishment is 

at such a level it can be definitively linked to that particular 

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establishment from across the street or a distance equal to that 

measurement despite the presence of other ambient noise levels.” 

 Several police officers testified regarding incidents in 

which noise emanating from the club resulted in the issuance of 

citations to the owners. Relying on this and other evidence, 

the circuit court determined that the evidence “unequivocally 

establishe[d] that the enforcement of the noise ordinance is 

selective and uneven.” However, the circuit court held that 

because the owners failed to prove that this selective 

enforcement was motivated by a discriminatory purpose, the 

club’s constitutional challenge to the City’s application of the 

ordinance failed. The owners appealed from the circuit court’s 

judgment. 

 On appeal, the owners first argue that the circuit court 

erred in rejecting their facial constitutional challenge to the 

ordinance. They contend that the ordinance is vague and, thus, 

is unconstitutional on its face because business owners must 

engage in guesswork to determine whether certain sound levels 

violate the ordinance. The owners further assert that several 

terms in the ordinance, including the terms “unnecessary,” 

“loud,” “disturbing,” “character,” and “intensity,” are purely 

subjective and do not establish clear standards that permit 

uniform enforcement. 

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 In response, the City argues that the ordinance clearly 

articulates an objective, “reasonable person” standard that is 

well established and is sufficiently definite to permit persons 

to conform their conduct to the law. The City concedes that the 

terms of the ordinance are not quantitatively precise, but 

argues that such a level of precision is not required to survive 

a vagueness challenge. The City contends that only a flexible 

standard such as the one prescribed by the ordinance can fairly 

define criminal conduct related to the “wide swath of settings 

and circumstances” involved when assessing noise levels. 

 The City further argues that the term “unnecessary” does 

not render the ordinance vague because the ordinance requires 

that noise be unreasonably loud, disturbing, and unnecessary 

before a criminal citation can issue. The City contends that 

instead of rendering the ordinance vague, the term “unnecessary” 

narrows the category of noise that constitutes a criminal 

violation and provides added protection to potential offenders. 

However, the City further maintains that if this Court 

disagrees, it should sever any offending language rather than 

invalidate the entire ordinance. We disagree with the City’s 

arguments. 

 Our review of the ordinance begins with the principle that 

that duly enacted laws are presumed to be constitutional. 

Marshall v. Northern Virginia Transp. Auth., 275 Va. 419, 427, 

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657 S.E.2d 71, 75 (2008); In re Phillips, 265 Va. 81, 85, 574 

S.E.2d 270, 272 (2003); Yamaha Motor Corp., U.S.A. v. Quillian, 

264 Va. 656, 665, 571 S.E.2d 122, 126 (2002); Finn v. Virginia 

Retirement System, 259 Va. 144, 153, 524 S.E.2d 125, 130 (2000). 

We are required to resolve any reasonable doubt concerning the 

constitutionality of a law in favor of its validity. In re 

Phillips, 256 Va. at 85-86, 574 S.E.2d at 272; Finn, 259 Va. at 

153, 524 S.E.2d at 130; Walton v. Commonwealth, 255 Va. 422, 

427, 497 S.E.2d 869, 872 (1998). Thus, if a statute or 

ordinance can be construed reasonably in a manner that will 

render its terms definite and sufficient, such an interpretation 

is required. See INS v. St. Cyr, 533 U.S. 289, 299-300 (2001); 

United States v. Harriss, 347 U.S. 612, 618 (1954); Pedersen v. 

City of Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979). 

 In this context, we consider the constitutional principles 

applicable to a vagueness challenge involving a penal statute or 

ordinance. The constitutional prohibition against vagueness 

derives from the requirement of fair notice embodied in the Due 

Process Clause. See United States v. Williams, 553 U.S. ___, 

___, 128 S.Ct. 1830, 1845 (2008); City of Chicago v. Morales, 

527 U.S. 41, 56 (1999); Grayned v. City of Rockford, 408 U.S. 

104, 108 (1972). The doctrine requires that a statute or 

ordinance be sufficiently precise and definite to give fair 

warning to an actor that contemplated conduct is criminal. See

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Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned, 408 U.S. 

at 108. Thus, the language of a law is unconstitutionally vague 

if persons of “common intelligence must necessarily guess at 

[the] meaning [of the language] and differ as to its 

application.” Connally v. General Construction Co., 269 U.S. 

385, 391 (1926); accord Coates v. City of Cincinnati, 402 U.S. 

611, 614 (1971); Cameron v. Johnson, 390 U.S. 611, 616 (1968). 

The constitutional prohibition against vagueness also 

protects citizens from the arbitrary and discriminatory 

enforcement of laws. A vague law invites such disparate 

treatment by impermissibly delegating policy considerations “to 

policemen, judges, and juries for resolution on an ad hoc and 

subjective basis, with the attendant dangers of arbitrary and 

discriminatory application.” Grayned, 408 U.S. at 108-09; see

Kolender, 461 U.S. at 357-61. 

Because legislative bodies are “[c]ondemned to the use of 

words,” courts cannot require “mathematical certainty” in the 

drafting of legislation. Grayned, 408 U.S. at 110. For this 

reason, an ordinance that lacks meticulous specificity 

nevertheless may survive a vagueness challenge if the ordinance 

as a whole makes clear what is prohibited. See id.; Esteban v. 

Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 

1969). 

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A different concern arises, however, when a vague statute 

implicates citizens’ rights under the First Amendment. In such 

circumstances, vague language in a statute or ordinance may 

cause citizens to avoid constitutionally permissible conduct 

based on a fear that they may be violating an unclear law. 

Thus, a vague statute may inhibit the exercise of 

constitutionally protected activities. Grayned, 408 U.S. at 

108-09. 

In applying these principles, we first acknowledge that the 

regulation of noise by a locality creates special problems 

regarding the drafting and enforcement of legislation. See

Nichols v. City of Gulfport, 589 So. 2d 1280, 1283 (Miss. 1991); 

People v. New York Trap Rock Corp., 442 N.E.2d 1222, 1226 (N.Y. 

1982). These problems arise from the nature of sound, which 

invites the use of broadly stated definitions and prohibitions. 

Nichols, 589 So. 2d at 1283; Trap Rock, 442 N.E.2d at 1226. 

 The ordinance before us prohibits any “unreasonably loud, 

disturbing and unnecessary noise,” noise of “such character, 

intensity and duration as to be detrimental to the life or 

health of persons of reasonable sensitivity,” or noise that 

“disturb[s] or annoy[s] the quiet, comfort or repose of 

reasonable persons.” The ordinance also describes various acts 

that constitute per se violations. 

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 We conclude that these provisions fail to give “fair 

notice” to citizens as required by the Due Process Clause, 

because the provisions do not contain ascertainable standards. 

See Thelen v. State, 526 S.E.2d 60, 62 (Ga. 2000); Nichols, 589 

So. 2d at 1284. Instead, the reach of these general descriptive 

terms depends in each case on the subjective tolerances, 

perceptions, and sensibilities of the listener. 

Noise that one person may consider “loud, disturbing and 

unnecessary” may not disturb the sensibilities of another 

listener. As employed in this context, such adjectives are 

inherently vague because they require persons of average 

intelligence to guess at the meaning of those words. See

Thelen, 526 S.E.2d at 62; Lutz v. City of Indianapolis, 820 

N.E.2d 766, 769 (Ind. Ct. App. 2005); Nichols, 589 So. 2d at 

1283. 

The references in the ordinance to “reasonable persons,” 

and to persons of “reasonable sensitivity,” do not provide a 

degree of definiteness sufficient to save the ordinance from the 

present vagueness challenge. Such terms, considered in their 

context, delegate to a police officer the subjective 

determination whether persons whom the police officer considers 

to be of reasonable sensitivity would find the noise detrimental 

to their life or health. Likewise, these terms leave to a 

police officer the determination whether persons the police 

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officer considers to be reasonable would be disturbed or annoyed 

in their comfort or repose by the particular noise at issue. 

Determinations of this nature invite arbitrary enforcement. 

Police officers likely will have differing perceptions regarding 

what levels of sound exceed the described tolerance levels and 

sensitivities of reasonable persons. Because these 

determinations required by the ordinance can only be made by 

police officers on a subjective basis, we hold that the language 

of the ordinance is impermissibly vague. See Grayned, 408 U.S. 

at 108-09; U.S. Labor Party v. Pomerleau, 557 F.2d 410, 412 (4th 

Cir. 1977); Thelen, 526 S.E.2d at 62. The imposition of 

criminal penalties for the violation of an ordinance cannot rest 

on the use of subjective standards, nor may an ordinance consign 

a person to penal consequences without first providing 

sufficiently definite notice of prohibited activities. See

Thelen, 526 S.E.2d at 62; Nichols, 589 So. 2d at 1284. 

We find no merit in the City’s argument that its use of the 

term “reasonable persons” nevertheless rescues the ordinance 

from the present vagueness challenge because the criminal law 

employs a “reasonable person” standard in various other types of 

determinations. Such comparisons are inapposite. Here, the 

City attempts to satisfy the notice requirement of the Due 

Process Clause by using a standard that does not notify or warn 

citizens in clear and definite terms what noise levels are 

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prohibited. In contrast, the use of a “reasonable person” 

standard elsewhere in the criminal law does not attempt to 

provide notice to citizens regarding the reach of a criminal 

statute or ordinance, but sets a standard for a court to use in 

determining police compliance with certain constitutional and 

other legal requirements. See, e.g., Brendlin v. California, 

551 U.S. 249, ___, 127 S.Ct. 2400, 2405-06 (2007) (“seizure” 

within meaning of Fourth Amendment occurs when reasonable person 

would not feel free to leave); Buhrman v. Commonwealth, 275 Va. 

501, 505, 659 S.E.2d 325, 327 (2008) (probable cause exists when 

facts and circumstances of which police officer has “reasonably 

trustworthy information . . . warrant a person of reasonable 

caution to believe that an offense has been or is being 

committed”) (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 

284 S.E.2d 833, 836 (1981)). 

In concluding that the ordinance is vague, we do not 

directly address the list of per se violations contained in the 

ordinance. Each of these per se violations is defined as 

constituting “loud, disturbing and unnecessary noise” and, thus, 

cannot be evaluated separately from those vague terms. 

 Finally, we hold that we are unable to sever from the 

ordinance the unconstitutional language that we have identified 

and give its remaining language a definite and permissible 

construction. Instead, the vague language adjudged 

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unconstitutional in this opinion affects the content of the 

entire ordinance.∗

 For these reasons, we will reverse the circuit court’s 

judgment and will enter final judgment for the owners declaring 

that the entire ordinance is unconstitutional because it is 

vague. 

Reversed and final judgment.

 ∗

 In view of our holding that the ordinance is vague, we do 

not reach the owners’ remaining contentions alleging that the 

ordinance is overbroad and has been enforced selectively by City 

police. 

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