Charles D. Johnson v City of Richmond

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
CHARLES D. JOHNSON
MEMORANDUM OPINION* BY
v. 	Record No. 2558-99-2 	JUDGE ROBERT P. FRANK
OCTOBER 3, 2000
CITY OF RICHMOND
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Rebecca K. Glenberg (Richard W. Ferris;
American Civil Liberties Union of Virginia
Foundation, Inc., on brief), for appellant.
No brief or argument for appellee.1
Charles D. Johnson, appellant, was convicted in a bench trial
of violating Richmond Code § 18-2, which prohibits "unreasonably
loud, disturbing, and unnecessary noise." 	On appeal, he contends
the trial court erred in: 	1) convicting him under § 18-2, the
general noise ordinance, because a more specific city ordinance
allows amplified, non-commercial speech; 2) finding that § 18-2 is
not unconstitutionally vague on its face; and 3) finding that
§ 18-2 is not unconstitutionally vague as applied to his conduct.2
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1 The Court grants appellant's motion to strike appellee's
brief as it was not timely filed.
2 Appellant does not attack the ordinance as violating the
First Amendment.

For the following reasons, we agree and reverse appellant's
conviction.
I. 	BACKGROUND
Appellant, a "street preacher," preached adjacent to an
office building at 600 East Broad Street in Richmond. 	Appellant
used amplified music to accompany his preaching. 	He preached
almost daily between 1:00 p.m. and 5:30 p.m. 	On May 21, 1999, he
was positioned approximately ten feet from the front door of the
office building.
Susan Willis, who worked on the first floor of the building,
testified the amplification was so loud that it interfered with
her work.3 Willis went to her window, pulled back the curtains
and saw appellant preaching. 	The noise shook her window. 	She
called the police on several occasions. 	Appellant lowered the
volume when the police came and raised the volume when they left.
David Owens, the building manager, received complaints from
other tenants about the noise and asked appellant to lower the
volume. 	The trial court stated it could not allow, even a
preacher, to "rattle the windows in that building and disturb
everybody there," and found appellant guilty under Richmond Code
§ 18-2. 	The trial court did not address the constitutional
arguments raised by appellant.
3 The record does not reflect whether the offensive noise is
from amplified music, amplified human speech or both.
- 2 -

II. 	ANALYSIS
Appellant contends he cannot be punished under Richmond Code
§ 18-2, the general noise ordinance, which prohibits "unreasonably
loud, disturbing and unnecessary noise." 	Appellant maintains
Richmond Code § 18-2 does not apply to non-commercial, amplified
speech of the type in which he engaged. 	We agree.
Richmond Code § 18-17(b) is dispositive of this issue. 	It
states:
No person shall operate, or cause to be
operated, any sound-amplifying equipment for
commercial sound advertising purposes or for
any purposes connected with commercial
advertising or incident thereto in the City
so that the amplification of the human voice,
music or any other sound emitted therefrom
for such purposes is audible on or in any
street, alley, road, park, playground or any
other public way or place; provided, that the
use of sound-amplifying equipment where the
music or speech amplified pertains
exclusively to religious subjects or other
subjects of general educational interest to
the public shall be deemed to be a
noncommercial use of sound-amplifying
equipment and subject only to the regulations
prescribed by Section 18-18.
Richmond Code § 18-17.
Clearly, appellant's amplified speech exclusively pertained
to religious subjects. 	Therefore, his conduct must be examined in
reference to the elements of Richmond Code § 18-18, not Richmond
Code § 18-2.
Richmond Code § 18-18, entitled "Noncommercial Use,"
regulates the non-commercial use of sound amplifying equipment as
- 3 -

follows: 	1) only music and human speech may be amplified; 2)
between the hours of 10:00 a.m. and 11:00 p.m.; 3) the amplified
human speech or music cannot be slanderous, and 4) the volume of
sound cannot be audible "above the level of conversation speech at
a distance in excess of two hundred (200) feet from the property
on which the amplified sound originates." 	Richmond Code § 18-18.
The City neither alleged nor proved that appellant's
preaching took place outside the hours between 10:00 a.m. and
11:00 p.m., that it was slanderous, or that it was audible above
a normal conversation at a distance of two hundred feet or more.
We find, therefore, that appellant did not violate Richmond Code
§ 18-18, and we do not address the constitutionality of Richmond
Code § 18-2.
For these reasons, we reverse the conviction and dismiss
the summons.
Reversed and dismissed.
- 4 -