wtrA
Unitod States
Environmental Protection
Agency
EPA 550/9-80-427
STATS and LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
APRIL 1980
OFFICE OF NOISE ABATEMENT AND CONTROL
NOISE AND RADIATION ENFORCEMENT DIVISION
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C. 20460

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50272-101
REPORT DOCUMENTATION »• no. *
pA0E EPA 550/9-80-427
t. Recipient's Accession No.
PIP 9 4 0 I si o
4. Title end Subtitle
STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
5. Report Date ApRI[_ } ggg'
6.
7. Authors)
8. Performing Organization Rept. No,
9. Performing Organization Name and Address
10. Project/Task/Work Unit No.
11. Contr»ct!C) or Grant(G) No.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
TABLE OF CONTENTS
Preface	Page
I.	SUMMARY: LEGAL-ENFORCEMENT ISSUES IN COMMUNITY	-1-
NOISE CONTROL:
A.	Sources of State and Local Authority to Control -1-
Noise
B.	Noise Control Options	-3-
C.	Constitutional Issues	-11-
D.	Other Legal Issues	-27-
II.	ORDINANCE DRAFTER	-37-
A.	Fourth Amendment: Search & Seizure	-37-
B.	Severability Clause	-51-
C.	Incorporation by Reference	-54-
D.	Fifth Amendment: Due Process Vagueness	-66-
E.	First Amendment: Freedom of Speech	-74-
III.	PROSECUTOR	-83-
A.	Sound Level Meter/Radar: Evidence	-83-
B.	Involuntary Noise Test Fifth Amendment Self	-97-
Incr imination
C.	Prima Facia Evidence	-100-
D.	Sovereign Immunity	-103-
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
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PREFACE
Existing or proposed noise control programs
encounter a variety of problems at the local
level. An inventory of Soundings [a journal
of press coverage of noise control activities],
prepared for the U.S. Environmental Protection
Agency, Office of Noise Abatement and Control,
suggests a general classification in nine problem
areas. These nine problem areas ... relate to the
ordinance, enforcement and litigation. The most
common problems are associated with the ordinance,
ranging from vagueness which makes interpretation
and enforcement difficult, to restrictiveness, which
causes an undue burden on the offender.
"Environmental Noise Control Programs in the
United States", Clifford R. Bragdon, Sound and
Vibration, December 1977.
The legal memoranda included in this collection of
"Legal Memoranda for State and Local Noise Enforcement"
address some of the more prevalent enforcement issues which
have arisen in connection with State and local noise control
activities. This collection of legal memoranda is organized
according to the following two distinct phases of noise
control activities: ED ordinance drafting; and (2) prosecu-
tion. It is our hope that this collection of legal memoranda
will help State and local agencies avoid or solve noise
enforcement problems which have thwarted noise abatement
efforts in the past.
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The primary research for these memoranda was conducted
by the following law students: Carolyn Marsh, Nancy Finkbeiner,
Mary Berry, and Kevin Smith. Substantial organizational and
analytical assistance was provided by Kathy L. Summerlee and
John S. Winder, Jr. Organizational and editorial responsibility
for these memoranda is accepted by the undersigned.
Helen Keplinger
Attorney Advisor
Judith Katz
Attorney Advisor
State and Local Programs
Noise and Radiation Enforcement Division
U.S. EPA
April 21, 1980
iii
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OUTLINE OF SUMMARY
1• SOURCES OF STATE AND LOCAL AUTHORITY TO CONTROL NOISE
Page
II.	NOISE CONTROL OPTIONS	-3-
A.	Common Law Nuisance	-3-
B.	Statutory Nuisance	-6-
C.	Objective Noise Control Measures	-8-
III.	CONSTITUTIONAL ISSUES	-11-
A.	Federal preemption (Article VI - Supremacy Clause) -11-
1.	Aircraft Regulations	-12-
2.	Railroad Regulations	-15-
3.	Interstate Motor Carrier Regulations	-17-
4.	New Product Noise Standards '	-17-
B.	Commerce Clause (Article I, Section 8)	-19-
C.	Freedom of Speech (First Amendment)	-20-
D.	Vagueness (Fifth Amendment Due Process)	-22-
E.	Search and Seizure (Fourth Amendment)	-24-
F.	Equal Protection (Fourteenth Amendment)	-26-
IV.	OTHER LEGAL ISSUES	-27-
A.	Sovereign Immunity	-27-
B.	State Preemption	-33-
C.	Incorporation by Reference	-34-
D.	Severabilty	-35-
v Preceding page blank
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SUMMARY
LEGAL-ENFORCEMENT ISSUES IN COMMUNITY NOISS CONTROL
I. SOURCES OF STATE AND LOCAL AUTHORITY TO CONTROL NOISE
The states possess inherent power to regulate noise
under two basic sources of authority: police power and the
Tenth Amendment of the U.S. Constitution. The police power
of a State derives from a grant of power by the people "in a
given state to the state government to regulate the health
and welfare of citizens within its jurisdiction and to
provide for the public convenience and public good. This
power has traditionally belonged to the states and was-not
surrendered by them to the federal government upon adoption
of the Constitution. The only historic limitation upon
police power is that it must not be inconsistent, with
provisions of the State or Federal constitutions.
The Tenth Amendment of the United States Constitution,
which provides, "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people," grants an additional basis of authority for state
legislation. U.S. CONST. Amend X.
Individual State constitutions may provide additional
sources of state authority to regulate noise. Such
constitutional provisions may allow a state to provide for
the general welfare or protect the environment. For example,
The people shall have the right to
clean air and water, freedom from
excessive and unnecessary noise,
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and the natural, scenic, historic and
aesthetic qualities of their environment;
and the protection of the people in
their right to the conservation, develop-
ment and utilization of the agricultural,
mineral, forest, water, air and other
natural resources is hereby declared
to be a public purpose.
The general court shall have the power
to enact legislation necessary or
expedient to protect such rights.
MASS. CONST, art. 49 (1972).
States may, in turn, confer upon local governments the
authority to enact or enforce local programs and policies.
For example, a substantial majority of State constitutions
include home rule provisions which confer generous local
powers of legislative and administrative initiative.
Following are the two basic types of home rule provisions:
(1)	home rule flows directly from the constitution:
Municipalities shall have authority to
exercise all powers of local self-govern-
ment and to adopt and enforce within
their limits such local police, sanitary
and other similar regulations, as
are not in conf1ict with general law.
OHIO CONST, art. XVIII §3 (1912).
(2)	the State legislature is granted the power to grant
home rule to local governments:
. . . The legislative assembly shall
provide by law for the establishment
of home rule in cities and villages.
N.D. CONST, art. VI (1966).
Even in the absence of broad home rule authority,
local governments may have power to control noise through
authority granted in specific enabling legislation. Many
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States presently use this method to grant local authorities
power to enact and enforce noise provisions. For example:
Pursuant to this chapter, in order to
protect the health, safety and welfare
of its citizens, a city or county may
adopt and enforce noise ordinances or
noise standards otherwise permitted
by law.
OR. REV. STAT. §467.100 {1974).
II. NOISE CONTROL OPTIONS
A. Common Law Nuisance
The common law nuisance action has been the traditional
legal tool for noise control at the State and local level.
A nuisance is defined as "Annoyance; anything which . . .
essentially interferes with enjoyment of life or property."
Bolton v. Northwestern Oil Co., 161 S.E. 391, 393 (1931).
Nuisances are classified by courts as either public or
private nuisances. A public nuisance is one that is common
to the public generally. The test to determine whether a
public nuisance exists is not based on the number of persons
annoyed, but the possibility of annoyance to the public by
invasion of its rights. See, Baltzeger v. Carolina Midland
Ry. Co. , 32 S.E. 358 (1899). A private nuisance, conversely,
is an activity which interferes with the enjoyment of some
private right of a single individual or identifiable number
of persons. See, People v. Route 53 Drive-in, 358 N.E.2d
1298 (1976).
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To determine whether an activity constitutes a private
nuisance, the court conducts a balancing test — weighing
the value of the interfering activity with the rights and
interests of the persons being affected. Typical factors
which the court considers are the following: the character
of the neighborhood, Jedneak v. Minneapolis General Elec.
Co. , 212 Minn. 226 , 230 , 4 N.W.2d 326 , 3 27 , 328 , ( 1942); the
nature of the thing complained of, Hofstetter v. Myers,
Inc., 170 Kan. 564, 228 /p.2d 522 (1951); its proximity to
those complaining, Hasslinger v. Village of Hartland, 234
Wis. "201, 290 N.W. 647, (1940); the frequency and continuity
of its operation, Hofstetter / supra; the nature and extent
of the harm done, Schott v. Appleton Brewery Co., 205
S.W.2d 917 (Mo.App.19 47); whether or not there are any
means of preventing it, Godard v. Babson-Dow Mfg. Co., 313
Mass. 280, 47 N.E.2d 303, (1943); whether or not the operation
is conducted in the only feasible locality, Robinson v.
Westman, 224 Minn. 105, 29 N.W.2d 1 (1947); the importance
of the defendant's business to the community, Soukoup v.
Republic Steel Corp. 7 8 Ohio App. 87, 66 N.E.2d 334, (1946);
the amount of defendant's investment, City of San Antonio v.
Camp Warnecke, 267 S.W.2d 468, (Tex.Civ.App.1954); the
length of time his business has existed. Waschak v. Moffat,
173 Pa.Super. 209, 96 A.2d 163, (1953); reversed on other
grounds, 379 Pa.441.109 A.2d 310, (1953).
Prosser, Torts, Nuisance
§89 (4th Ed. 1971) .
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Excessive noise has been recognized as a common-law
nuisance. For example;
It is recognized in Michigan, as well as
in other jurisdictions, that under certain
circumstances noise may constitute
a nuisance and may be enjoined...To
render a noise a nuisance, it must be of
such a character as to be of actual
physical discomfort to persons of
ordinary sensibilities...[C]onsideration
should be given to such additional
factors as the character of the industry
complained of..., volume, time and duration
of the noise, and all the facts and cir-
cumstances of the case.
Smith v. Western Wayne County Conservation Ass'n,
158 N.W.2d 463, 468 (1968)
Traditional remedies for injured parties in nuisance
suits are temporary or permanent injunctions and/or monetary
damages. The determination of the appropriate remedy is
based on the facts of the case, and is within the discretion
of the court. For example, the Supreme Court of Connecticut
awarded $3,500 to a citizen in a private nuisance action
brought against neighbors who operated noisy air-conditioning
equipment during night time hours. The court also enjoined
the defendants from operating their equipment between the
hours of 10 p.m. and 8 a.m. until the sound levels met
permissible decibel levels. Nair v. Thaw, 242 A.2d 757, 759
(Conn. 1968).
One of the problems raised by the use of nuisance
suits for noise control is that many major noise problems
consist of several noise sources operating concurrently. In
such a s ituation, it is difficult to identify the appropriate
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defendant in a nuisance suit. Another difficulty in nuisance
suits is that most critical noise problems affect the public
generally, rather than specific individuals. For example,
mass transit noise affects the general community. This
makes it very difficult for the plaintiff to meet the burden
of proof which requires a showing of damage distinguishable
from that sustained by other members of the general public.
Alexander v. Wilkes-Barre Anthracite Coal Co., 98 A 794
(1916). If noise results in annoyance to the entire community,
class action suits on behalf of the public may be necessary
to prove that the noise is a nuisance. Class action suits,
however, present problems of joinder of parties, notification
requirements and excessive cost.
• •
Common law nuisance actions may be effective in communities
which have not adopted noise control regulations. Such
actions may also provide a remedy for individuals who are
affected by noise sources outside the scope of State or
local noise provisions.
B. Statutory Nuisance
Rather than relying solely on the common law, communities
may wish to legislate, broadly or narrowly, against noise
nuisances. For example, an ordinance may prohibit "excessive"
or "loud or raucous" noise. Such statutory nuisance provisions,
may be either the sole method of enforcement or part of a
comprehensive noise control statute or ordinance. Three
types of statutory nuisance provisions exist in noise
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statutes and ordinances. The most general type of provision
merely prohibits creation of a nuisance. For example;
... [A]ny person ... who shall own,
lease, conduct ... any of the above
enumerated acts ... is guilty of a
nuisance.
Mich Complied Laws 600.3801 (1963)
The second type of statutory nuisance provision
speci fically prohibits noises which inter fere with the
health and welfare of the public. For example:
It is hereby declared to be the public
policy of Fairfax County, in cooperation
with Federal, State and local government
and regional agencies, to promote an
environment for its citizens free from
noise that jeopardizes their health or
welfare or degrades the quality of life...
FAIRFAX, VIRGINIA CODE, Ch .16 A §16A.1 .2 ( 1975)
The third type of statutory nuisance provision prohibits
any noise disturbance. For example,
No person shall unreasonably make,
continue or cause to be made or continued
any noise disturbance.
Noise disturbance is defined as any
sound which (a) endangers or injures the
safety or health of humans or animals or
(b) annoys or disturbs a reasonable
person of normal sensitivities, or (c)
endangers or injures personal or real
property.
NIMLO/EPA Model Noise Ordinance, Art. VI.
§§6.1; 3.3.20 (1975)
Another type of statutory noise control statute is
a "disturbing the peace" provision. For example,
It shall be unlawful to knowingly and
wilfully cause or create excessive or
unnecessary noise by engaging in boisterous,
noisy and loud conduct while on a public
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street, sidewalk or parkway so as to
disturb the quiet, comfort and repose of
persons.
WEST PALM BEACH, FLA., CODE, Ch3 2A, §A-8 (1975)
State and local authority to enact and enforce disturbing
the peace provisions flows from the traditional police
power of the State to preserve the public peace and tranquility.
However, often it is difficult to restrict the production of
noises which are typical, common, or continuous as well as
those not calculated to create a disturbance. Moreover,
disturbing the peace provisions, like statutory nuisance
provisions, may be subject to Constitutional challenges on
the basis of the First, Fifth and Fourteenth Amendments.
C. Objective Noise Control Measures
Problems associated with nuisance actions may render
*
statutory controls more appropriate tools for effective
noise control. A State may amend its general laws to
control a particular noise problem within the State, For
example, in 1975 Wisconsin amended its general statutes to
include a snowmobile law requiring all snowmobiles manu-
factured and sold after 1972 not to exceed established
decibel levels. 1975 WIS. LAWS, Ch. 39. A State may also
enact general environmental management acts which establish
agencies responsible for the promulgation of noise control
regulations. New Mexico has used this approach in its
Environmental Improvement Act which specifically includes
noise control as one of the areas to be regulated by the
State's Environmental Improvement Agency. See, Ch. 277,
Laws of 1971, NMSA.
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Specific noise statutes and ordinances are legislative
responses to noise problems at the State and local level
which deal exclusively and comprehensively with noise and
are tailored to the specific needs of the jurisdiction.
These statutes and ordinances can be objective or subjective
in nature, depending upon whether sound violations are
defined in terms of quantitative or qualitative standards.
The objective nature of quant itiative standards arises
from the use of measures of noise magnitudes in terms of
decibel levels. These noise control regulations usually
prescribe maximum permissible decibel levels for a given
area or for specific noise sources. Some common types of
State and local quantitative noise regulations are:
-	product performance standards implemented
through licensing or certification procedures;
-	operational limitations, such as curfews;
-	movement limitations, e.g., restrictions on
truck traffic in noise sensitive areas such
as hospital zones; and
-	property 1ine limitations, e.g., a maximum
noise emission level at the property line
in a residential, commercial or industrial zone
The use of quantitative standards, in noise ordinances
involves unique enforcement considerations. For example,
decibel measurement requires special equipment and expertise.
Consequently, quantitative measurements require additional
enforcement costs for a community in purchasing equipment
and training. Moreover, decibel measurements alone do not
provide for variations in the frequency of the noise occur-
ance — a factor which greatly affects the annoyance level
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of a given noise. To compensate for frequency variations,
multiple readings of the noise source must be made, in-
creasing the time and expertise necessary for measurement.
The major benefits of quantitative measurements are
specificity and reliability, A community can designate
permissible decibel levels for given categories of land
use areas, products, uses and time of use. These decibel
levels may be drawn as narrowly as required. For example, a
community may designate broad land use classifications of
residential, commercial and industrial zones or may break
down land use categories into such narrow classifications as
public, institutional, agricultural, open space, multiple
dwelling, light commerical, business and heavy industrial
zones. The specificity of quantitative standards also
enables these ordinances to survive Constitutional challenges
on the basis of First Amendment Freedom of Speech and Fifth
Amendment Due Process Vagueness, (see discussion on First
and Fifth Amendments, following). In addition, reliability
of permanent records of noise incidents is greatly increased
with quantitative measurement. Recording the sound emitted
from a noise source provides concrete evidence to prove
violations of noise regulations, thus there is no dependence
upon subjective definitions and subjective testimony of
noise enforcement agents, police or witnesses to prove that
noise violations have occur red.
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III. CONSTITUTIONAL ISSUES
A. FEDERAL PREEMPTION (ARTICLE VI - SUPREMACY CLAUSE)
The Supremacy Clause of the United States Constitution
provides that;
This Constitution, and the Laws of the
„ United States which shall be made in
Pursuance thereof; ... shall be the
supreme Law of the Land; and the
Judges in every State shall be bound
,, thereby, any Thing in the Constitution
or Laws of any State to the Contrary
notwithstanding.
U.S. CONST, art. 6, §2.
The Supreme Court has recognized since 1824 that
frequently the States and the Federal government have
concurrent rights to regulate in a specific field, but that
when Congress has definitively spoken in a given area
inconsistent State legislation must give way. Gibbons v.
Ooden, 22 U.S. (9 Wheat.) 1, 6 L.Ed.2d 23 (1824). The
doctrine of Federal preemption, predicated on the Supremacy
Clause, provides that where there is a discernable conf1ict
between Federal law and State legislation, Federal law
prevails. However, Federal and State conflict is not always
clear-cut. There are many judicial tests which may be
applied to determine whether a Federal-State conflict
requiring a finding of Federal preemption exists; irreconcil-
able conflict, potential conflict, interference by State
regulation, occupation of the field by Federal government
and need for national uniformity in the field of regulation.
In applying these tests, courts view the existing Federal
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legislation in a given area, and determine what, if any,
State regulation is permissible.
Pursuant to its constitutional authority to regulate
interstate and foreign commerce under Article I, Section
8, Congress passed the Noise Control Act of 1972 (NCA).
Although the NCA states that "primary responsibility for
control of noise rests with the State and local governments,"
NCA, 42 USC §4901, the Act also specifically authorizes
primary Federal regulation of four major noise sources:
aircraft, interstate railroads, interstate motor carriers
and new products. This Federal noise control activity,
however, does not totally preclude related State and local
controls. Drafters of noise regulations should consider the
permissible extent of State and local regulation and federal
preemption in each of these four areas.
1. Aircraft Regulation
The NCA delegates primary authority to the Federal
Aviation Administration to adopt and enforce noise standards
for aircraft. Section 7(b) of the NCA amends the Federal
Aviation Act of 1958 in part as follows:
the FAA...shall prescribe ... and amend
such regulations as the FAA may find
necessary to provide for the
control and abatement of aircraft
noise and sonic boom, including the
application of such standards and
regulations in the issuance, amendment,
modification, suspension, or revocation
of any certificate authorized by
this title. 42 USC §4906.
Although there is no explicit preemption in section 7,
many courts have adopted the position that State and
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local governments have limited authority to control aircraft
noise. In City of Burbank v. Lockheed Air Terminal, 411 U.S.
624 (1972), a local ordinance imposing a curfew on jet
operations at a private airport was declared invalid as
infringing on a Federally preempted area;
Control of noise is of course
deep-seated in the police power of
the States. Yet the pervasive
control vested in EPA and FAA under
the 1972 Act seems to us to leave
no room for local curfews or other
local controls...
If we were to uphold the Burbank
ordinance and a significant number of
municipalities followed suit, it is
obvious that fractionalized control of
the timing of take-offs and landings
would severely limit the flexibility
of FAA in controlling air traffic
flow. City of Burbank at 639.
The author ity of State and local governments to control
noise as proprietors of public airports may. be less restricted.
Propr ietors are 1iab1e for aircraft noise damages Resulting
from operations of their airports under the Fifth Amendment
Due Process requirement that governmental bodies give just
compensation for property taken for public purposes. Griggs
v. Allegheny County, 369 U.S. 84 (1962). Further, the
Senate Report of the Noise Control Act suggests that public
operators of airports do have authority to control noise:
the Federal government is in no
position to require an airport to
accept service by noisier aircraft
and for that purpose to obtain
additional noise easements.
The proposed legislation is
not designated to do this and
will not prevent airport pro-
prietors from excluding any
aircraft on the basis of noise
considerations. Senate Report
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No. 1353, 90th Cong. 2d Sess. 6-7
(1968).
At least one U.S. District Court has recognized this
proprietary authority of local governments to control noise
at public airports. In National Aviation v. City of Hayward
Cal¦ , 418 P.Supp. 417 (N.D. Cal. 1976), the U.S. ...District
Court for the Northern District of California denied an air
freight company's attempt to enjoin a curfew, on all aircraft
which emitted more than 75dB, imposed at the municipally
owned Hayward Air Terminal in California. Squarely addressing
the issue of preemption under section 7, the court ruled
that the proprietor of a public airport can control what
types of aircraft may use the airport as well as decide
what restrictions will be imposed on airport users. National
Aviation at 421.
In a declaration of "Aviation Noise Abatement Policy,"
the Federal Aviation Administration summarized the respective
roles of Federal, State and local governments in aircraft
control as follows;
1.	The Federal government has pre-
empted the areas of airspace use and
management, air traffic control,
safety and the regulation of aircraft
noise at its source. The Federal
government also has substantial power to
influence airport development through
its administration of the Airport and
Airway Development Program.
2.	Other powers and authorities to
control airport noise rest with the
airport proprietor - including the
power to select an airport site, acquire
land, assure compatible land use, and
control airport design, scheduling
and operations - subject only to
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Constitutional prohibitions against
creation of an undue burden on inter-
state and foreign commerce, unj ust
discrimination, and interference
with exclusive federal regulatory-
responsibilities over safety and
airspace management.
3. State and local governments may
protect their citizens through land use
controls and other police power measures
not affecting aircraft operations. In
addition, to the extent they are airport
proprietors, they have the powers
described in paragraph 2.
Dept. of Transportation, FAA, "Aviation
Noise Abatement Policy", Nov. 18, 1976 -
p. 34
2• Railroad Regulation
Section 17 of the NCA delegates authority to EPA to
set noise emission standards for railroads engaged in
interstate commerce. To date, 4 January 1980, SPA has
promulgated standards for noise from: active retarders,
locomotive load cell test stands, car coupling, and switcher
locomotives (45 Fed. Reg. 1252 et seq.). These regulations
were required by Association of American Railroads v.
Costle, 56 2 F. 2d 1310, 1320 (2d.Cir. 1277 ) , in which the
U.S. Court of Appeals for the District of Columbia stated
that "We ... conclude that the EPA has interpreted its
statutory mandate too narrowly in regulating only locomo-
tives and rail cars, and no facilities at all." Pursuant to
this ruling, EPA is promulgating regulations to comprehensively
cover railroad facilities. The second portion of the
appropriate regulations are to take effect 15 January 1984.
Section 17 delegates the implementation and enforcement
authority for the control of noise to the Department of
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Transportation. Specifically, the NCA directs that DOT,
after consultation with EPA, shall promulgate regulations
to insure compliance with the standards promulgated by EPA.
Preemptive language concerning railroads is present
in section 17(c)(1):
...no State or political subdivision
thereof may adopt or enforce any standard
applicable to noise emissions resulting
from the operation of the same equipment
or facility of such carrier unless
such standard is identical to a standard
applicable to noise emissions resulting
'from such operation prescribed by any
regulation under this section. 42 U.S.C.
Sec. 4916.
However, this language does not preclude all State
and local noise regulation of railroad noise. State and
local jurisd ictions may adopt and enforce standards applicable
to noise emission resulting from operation of interstate
railroad if the standards are identical to those promulgated
by EPA. State and local jurisdictions may also control,
license, regulate or restrict the use, operation or movement
of railroads if the EPA determines that such restriction is
necessitated by special local conditions and is not in
conf1ict with Federal regulations. This is effected through
section 17(c) (2) of the Noise Control Act of 1972 which
authorizes the Administrator of the EPA to issue waivers
after consider ing special local conditions. State and local
governments may also adopt and enforce noise emission
standards where EPA has not regulated. One U.S. Distr ict
Court (Third Circuit) has interpreted the Supreme Court's
broad reading of section 17 in Association of American
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Railroad v. Costle (supra) to mean that noise emitted within
marshalling and switching yards is covered under federal
regulations. Consequently, local regulations which are not
identical to the full scope of Federal regulations are
preempted. Consolidated Rail Corporation v. City of Dover,
450 F.Supp. 966 {U.S. D.C. Delaware 1978). Although this
interpretation appears to widen the field of preemption by
the Federal government, the NCA states that State and local
governments can establish railroad regulations for those
areas not regulated by the EPA.
3.	Interstate Motor Carrier Regulations
Section 13 of the Noise Control Act provides procedures
nearly identical to those of Section 17 for promulgation and
adoption of regulations for interstate motor carriers. As
in railroad regulation, State and local governments can
adopt and enforce standards applicable to noise emission
resulting from operation of interstate motor carriers if the
standards are identical to those promulgated by EPA. State
and local jurisdictions may also apply for waivers from the
EPA for special local conditions. Where EPA has not regulated,
State and local governments may adopt and enforce noise
emission standards for interstate motor carriers.
4.	New Product Noise Standards
Section 6 of the Noise Control Act authorizes EPA to
establish noise emission standards for each product distributed
in commerce:
(a) which is identified ... in any report under section
5(b)(1) as major source of noise;
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(b)	for which in his (administrator's) judgement, noise emissior
standards are feasible, and
(c)	which falls in one of the following categories:
(i) Construction equipment .
(ii) Transportation equipment (including recreational
vehicles and related equipment)
(iii) Any motor or engine (including any equipment of
which an engine is an integral part) .
(iv) Electrical or electronic equipment.	1
To date, EPA has promulgated noise emission standards, some
of which are now effective, for air compressors, medium and
heavy trucks, solid waste compactors (garbage trucks),
railroads, hearing protectors, and buses. Labeling require-
ments for other new products will follow.
State and local governments retain multiple options
for control of noise from new products distributed in
commerce. For those products regulated by the EPA, State
and local governments can establish time-of-sale regulations
identical to the Federal standards. To implement such
regulations, State and local governments can use the standard
noise enforcement strategies used by EPAt for example
production verification (PV), and selective enforcement
auditing (SEA). Production verification is the testing by a
manufacturer (or EPA at the option of EPA) of early production
models to verify, prior to substantial marketing of a
product whether a manufacturer has the requisite noise
control technology in hand to produce complying products
across the entire product line. Manufacturers are required
to submit the PV test results to EPA prior to distribution
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of the products in commerce. Selective Enforcement Auditing
is the testing by a manufacturer or EPA, pursuant to an
administrative request, of a statistical sample of products
from a particular category or configuration to determine
whether the products conform to the noise standards. In
case of non-confirmity SEA provides the basis for further
enforcement actions, such as recall and cease-to-distribute
orders.
State and local governments can also adopt and enforce
in-use controls for new products regulated by EPA in the
form of licensing, regulation and restrictions. Strategies
for in-use controls include: time-of-sale warranties by
manufacturers that the product conforms to noise regulations,
prohibitions on the removal of any noise attenuating device
from a new product) prohibitions on the use of a new product
after such removal or tampering, requirements that manufacturers
affix labels to each product indicating its conformity
with EPA noise emission standards, and requirements that
manufacturers provide instructions for proper mainentance,
use and repair in order to minimize the degradation of the
noise reduction on features of the product.
B. COMMERCE CLAUSE (ARTICLE I, SECTION 8)
The Commerce Clause of the U.S. Constitution provides
that the "Congress shall have the power to...regulate Commerce
with foreign nations, and among the several States, and with
the Indian tribes;" U.S. CONST, art.l, §8. Because the
Federal government is given the authority to regulate
interstate commerce under this provision, State regulations
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must not impose a burden on interstate commerce which
disrupts the required uniformity of Federal regulation. To
determine whether an undue burden on interstate commerce
exists, courts perform a balancing test, comparing the
importance and character of the State activity, with its
effects on interstate commerce. This Constitutional issue
may arise in connection with noise control measures which
affect interstate motor carriers or interstate rail carriers.
Drafters of State noise control regulations should attempt
to minimize the impact on interstate commerce to help avoid
invalidation under the Commerce Clause.
C. FREEDOM OF SPEECH (FIRST AMENDMENT).
Drafters of State and local noise regulations must
consider the First Amendment right to freedom of speech, and
whether such regulations might be found to be an infr ingment.
For example, local ordinances prohibiting the use of sound
amplification devices unless city officials grant permission
have been held in violation of the First Amendment when no
standards are prescribed for the granting of such permits.
In Saia v. New York, 334 U.S. 558 (1947), the Supreme Court
recognized that such unlimited, unqualified discretion in
defining and enforcing ordinances constitutes a prior
restraint on the exercise of free speech. Ordinances which
establish enforcement standards which are too vague for
uniformity, and thus depend on the subjectivity of the
enforcing officer, may violate the First Amendment. For
example, in United States Labor Party v. Rochford, 416
F.Supp. 204, 205 (N.D. 111. 1975), an ordinance which
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prohibited making certain types of noise on a public way or
close enough to a public way so as to be "distinctly and
loudly audible upon such public way" was declared uncon-
stitutional. The court found the standard was too vague to
be enforced against speakers not on public ways since its
enforcement .might depend upon an officer's "hearing acute-
ness... temperament. . .frame of mind or opinion of the merits
of the.speech which is being" broadcast." U.S. Labor Party
at 205. The court ruled that when a city has no legitimate
interest in banning amplified messages which do not exceed
sound levels encountered daily in most communities, such
prohibitions constitute an unconstitutional prior restraint
on freedom of speech.
Ordinances placing reasonable and specific limitations
on the time and place of speech do not appear to violate the
First Amendment. In Kovacs v. Cooper, 336 U.S. 77 (1949),
the Supreme Court upheld an ordinance which prohibited any
"loudspeaker or instrument which emits loud and raucous
noises" from public streets. The Court ruled that the
ordinance did not violate petitioner's First Amendment
rights because messages could be broadcast from other
areas and by less noisy means. The Court emphasized that;
The unwilling listener is not like
the passerby who may be offered a
pamphlet in the street, but cannot
be made to take it. In his home
or on the street he is practically
helpless to escape this interference
with his privacy by loudspeakers except
through the protection of the
municipality. Kovacs at 86.
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Similarly, a noise ordinance which forbids deliberately
noisy or diversionary activity that disrupts or is about
to disrupt normal school activities at fixed times when
school is in session and at a sufficiently fixed place
adjacent to the school does not violate First Amendment
Freedom of Speech. Grayned v. City of Rockford, 408 U.S.
104, 106 (1972).
Basic guidelines for the drafter of noise control
ordinances may be derived from these cases dealing with
First Amendment freedom of speech. In general, a limit
placed by a State or locality on the time or place of speech
is constitutionally valid if the limit reasonably serves
some permissible State or local interest and has the least
possible restriction on freedom of speech. Regulations
requiring a permit to use a loudspeaker, or engage in other
noise-emitting activities, which allow discretion to deny
the permit based on the content of speech, may be invalidated
as prior restraints on freedom of speech. Similarly,
ordinances which do not prescribe standards of enforcement
but instead rely on the subjectivity of the enforcing
officer in defining and enforcing noise violations may be
unconstitutional under the First Amendment.
D. VAGUENESS (FIFTH AMENDMENT DUE PROCESS)
Vagueness in noise control regulations raises the issue
of Fifth Amendment due process. By interpretation, the
Fifth Amendment provision that "No person shall...be deprived
of life, liberty, or property without due process of law;..,"
U.S. CONST. Amend. V, requires that laws be sufficiently
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definite to put a reasonable person on notice of what
conduct is prohibited by a specific law. Noise ordinances
which have been challenged in this area usually identify the
prohibited noise by its general character or nature rather
than by decibel standards. For example, a local ordinance
providing that:
"it shall be unlawful for any person
to make, continue or cause to be
made loud, unnecessary or unusual
noise which annoys, disturbs, injures
or endangers the comfort, repose,
health, peace and safety of others
was held unconstitutionally vague in United Pentecostal
Church v. Steendam, 214 N.W.2d 866 (Mich App. 1974).
However, other courts have upheld similar language in
ordinances, without finding a vagueness problem. An
Ohio Court upheld an ordinance prohibiting exhaust dis-
charges "except through a muffler or other device which will
effectively prevent loud or explosive noise therefrom."
Dayton v. Zoller, 122 N.E.2d 28 {Ohio App. 1954}. The court
stated that the ordinance was not unconstitutionally vague
because the language defined the prohibited act with
sufficient specificity. State statutes using terms such as
"excessive and/or unusual noise" have also been upheld.
See, Smith v. Peterson, 280 P.-2d 522 (Cal. 1955).
The case law, therefore, has developed no definite
standards for Constitutional challenges based on Fifth
Amendment due process vagueness. Subjective standards
such as statutory nuisance provisions and disturbing
the peace provisions may be subject to a Constitutional
challenge of vagueness, whereas, objective standards for
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noise control, which are sufficiently specific to provide
notice, will survive constitutional challenge,
E. SEARCH AND SEIZURE (FOURTH AMENDMENT)
Enforcement procedures for noise regulations which
may require search or seizure must not violate
the Fourth Amendment, which provides:
The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated,
and no Warrants shall issue, but upon
probable cause..,
U.S. CONST, amend. IV
Generally a search warrant is required for a search or
seizure. Exceptions to the warrant requirement are narrowly
defined: consent to search, search incident to full-custody
arrest, exigent circumstances such as hot pursuit or plain
view. See, Coolidge v. New Hampshire, 403 U.S. 443, 455
(1970).
Administrative searches have been defined as involving
a routine inspection of a class of persons or businesses
in order to secure compliance with various regulations or
statutes. Because a large percentage of noise violations
are made by commercial and industrial facilities, the
noise enforcer must consider warrant requirements in admin-
istrative searches.
In Marshall v. Barlow's Inc. 436 U.S. 307 (1978), the
Supreme Court invalidated an Occupational Safety and Health
Administration warrantless inspection of an electrical and"
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plumbing business. Although section 8(a) of the Occupational
Safety and Health Act required an employer to allow inspectors
to enter the work premises without delay, the Supreme Court
maintained the general rule that warrantless searches 'are
generally unreasonable, and that this rule applies to
commercial establishments as well as to private residences.
Barlow at 312.
In Barlow, however, the Supreme Court observed that its
decision concerning OSHA inspect ions did not automatically
invalidate all warrantless inspection programs. The Court
outlined three exceptions to its holding. First, "pervasively
regulated" businesses and "closely regulated industries long
subject to close supervision and inspection," e.g., liquor
and firearms, present special circumstances in which a warrant-
less inspection search may be permissible. The Court stated,
Certain industries have such a
history of government oversight that
no reasonable expectation of privacy...
could exist for a proprietor over the
stock of such an enterprise. Barlow
at 313.
Second, other federal statutes dealing with judicial enforcement
when entry for inspection is refused are also outside the
scope of the Barlow ruling. The Barlow opinion is based on
the facts and law concerned with OSHA. Barlow- at 321. Finally,
the Court emphasized that other statutory schemes allowing
warrantless administrative searches may be constitutional. The
Court concluded,
...The reasonableness of the warrant-
less search, however, will depend
upon the specific enforcement needs
and privacy guarantees of each
statute. Barlows at 321.
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Therefore, while in some cases the court may rule
that a statutory noise control scheme for administrative
searches without a warrant is permissible, as a general
rule, search warrants are required. To avoid Fourth
Amendment problems, drafters of noise regulations may wish
to write into the noise ordinance that a search warrant
should be obtained in all cases where entry is sought,
unless a valid consent is given. Alternatively, procurement
of a warrant can be incorporated as part of the enforcing
officer's standard operating procedure.
P. EQUAL PROTECTION (FOURTEENTH AMENDMENT)
Noise regulations must comply with the Fourteenth
Amendment requirement that no State shall "deprive any
person of life, liberty, or property, without due process of
law; nor deny...the equal protection of the laws. U.S.
• •
CONST, amend XIV. Legislative classifications in an ordinance
must be reasonable, non-arbitrary and must establish
classifications having a fair and substantial relation to
reasonable legislative objectives so that all persons in
similar circumstances are treated alike. For example, an
ordinance requirement for limited hours of operation for
a business which created noise disturbances, has been upheld
under the Fourteenth Amendment Equal Protection Clause as a
valid exercise of police power and within the proper scope
of municipal authority. (Perkins Cake & Steak, Inc. v. City
of Eloomington, No. 740694 (D.C. Minn. 1978)).
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IV* OTHER LEGAL ISSUES
Drafters of State and local noise regulations should
be aware of the following additional legal issues which may
arise in the course of noise control activities:
A, Sovereign Immunity
under the common-law doctrine of sovereign immunity,
the government is immune from suit by its political sub-
divisions and its citizens, unless it has expressly consented
to be sued. The immunity of the domestic sovereign is based
on the historic principle that no court has the power to
command the King. Sovereign immunity applies to the Federal
and State governments and, to a limited extent, local
governments.
Because Federally owned and/or operated facilities
are potentially a major source of noise violations, the
enforcer must consider to what extent these facilities are
subject to prosecution for noise violations. Section 4(b)
of the Noise Control Act states that:
(b) Each department, agency, or instrumen-
tality of the executive, legislative,
and judicial branches of the Federal
Government -
(1)	having jurisdiction over any
property or facility, or
(2)	engaged in any activity resulting,
or which may result, in the emission of
noise, shall comply with Federal, State,
interstate, and local requirements res-
pecting control and abatement of environ-
mental noise to the same extent that any
person is subject to such requirements...
In Hancock v. Train, 426 U.S. 167 (1976), the Supreme
Court addressed the issue of compliance by Federal facilities
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under section 118 of the Clean Air Act. The Court ruled
that Federal facilities located in Kentucky were not obligated
to obtain an operating permit from the State although such a
permit was required under the Kentucky pollution control
plan. The Court held that section 118 of the Clean Air Act
mandates Federally owned- and or operated facilities to
comply with substantive requirements of State pollution
plans, but that compliance with administrative requirements
is not required. Because Section 4 of the Noise Control Act
is nearly identical to section 118 of the Clean Air Act and
has an analogous legislative history, judicial interpretation
of section 4 should conclude that under the Noise Control
Act federal facilities must comply with substantive require-
ments of state and local noise control provisions, but not
administrative requirements.
Courts have uniformly held that State governments and
their agencies can be protected by absolute sovereign
immunity. Therefore, a State government may be immune from
suits arising from violations of regulations it has enacted
as well as violations of local ordinances. A State, however,
may waive its immunity through express statutory or con-
stitutional provisions. These provisions must expressly
delineate the extent of waiver intended by the drafter. For
example, a State may waive its immunity from prosecution for
noise violations by including itself within the scope of a
noise statute. For example New Jersey's Code has stated;
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"Person" means any corporation, company
association, society, firm, partnership,
and joint stock company as well as
individuals and shall also include
the State and all its political sub-
divisions, any agencies or instru-
mentalities thereof.
N.J.3.A. 13: 1G-I(e)(1971)
Such provisions effectively waive a State1s immunity
from prosection under State statutes but it is questionable
whether they constitute sufficient waiver of State immunity
from enforcement of local noise ordinances. If the local
regulations are identical to the State noise provisions, a
court may either rule that the State waiver extends to all
noise regulations, both State and local, or rule that the
State did not intend to subject itself to prosecution by
each locality for noise violations. Particularly when a
local ordinance contains more stringent regulations than
does the State noise statute, a court may find that the
State has not consented to waive its immunity from local
regulations. Enforcers of local noise regulations should
review all relevant State Constitutional and statutory
material in an attempt to find an effective waiver of State
immunity. However, the validity and extent of these waivers
are ultimately subject to judicial determination,
h local government whether county or municipal, is more
amenable to suit than is the state. Because all sovereign
immunity is derived from the state, the state may determine
the extent of local sovereign immunity. 81 C.J.S. States
§229 et. seq. (1971). For example, a state may explicitly
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waive a local government's immunity by including it within
the definition of persons subject to regulatory enforcement.
See Md. Ann. Code art. 43, §828 (1974) , discussed infra.
Moreover, local governments may specifically provide that
their agencies shall comply with State noise regulations.
For example:
All municipal departments and agencies
shall comply with federal and state
laws and regulations and the provisions
and intent of this chapter respecting
the control and abatement of noise
to the same extent that any person
is subject of such laws and
regulations.
ANCHORAGE, ALASKA ORD Ch. 15 .70 .040(C){19785 .
However, because all local governmental immunity is derived
from the State, these provisions are more declarations
of local compliance rather than self-executing waivers of
sovereign immunity.
The local government on both the county and municipal
level is more amenable to suits by its own departments
and citizens than is the State. See 62 C.J.S. However,
there is no mechanical formula used by courts to determine
the extent to which a municipality must follow its own
ordinances. A small number of jurisdictions apply strict
sovereign immunity to the local government. Most courts use
a "governmental-proprietary function" test. See "Government
Immunity From Local Zoning Ordinances" 84 Harv L. Rev. 869
(1971). In this test, the court classifies the violating
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activity as either governmental, i.e., when a municipality
is acting pursuant to and in furtherance of obligations
imposed by the legislative mandate, or proprietary, i.e.,
when the act is permissive in nature and the municipality
has the power but not an obligation to perform the function.
If the activity is classified as governmental, there is no
mandatory compliance with the ordinance. If the activity is
classified as proprietary, the municipality must comply with
its ordinance. However, there is no uniformity in defining
given activities as governmental or proprietary. For
example, sewage treatment, garbage disposal and water
supply have been classified as both governmental and
proprietary in different jurisdictions.
There are numerous approaches used by courts to
determine whether one local government must comply with
another's ordinances and regulations. Some jurisdictions
use a "superior sovereign" test in which the higher level
government is not required to comply with ordinances
enacted by lower levels of government within the same
State, for example, a county is not required to comply with
a city's ordinance, See Tim v. City of Long Branch, 53A2d.
164 (N.J. 1947) . The "state agency" approach used by some
jurisdictions maintains that a county or other political
subdivision is not subject to a local ordinance because it
is acting as an arm of the State and is not protected
by sovereign immunity. See Hall v. City of Taft 302 P2d.
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574 {Cal. 1956). The governmental-proprietary function
approach classifies the violating activity as either govern-
mental or proprietary to determine if there is mandatory
compliance with another locality's ordinance. {see discussion,
above). Finally, some courts use a balancing approach in
which the violating activity and the function of enforcing
the local ordinance are compared. Factors commonly considered
in these balancing tests are: specific statutory authority
for the violating activity, scope of the ordinance, direct
conflict of functions, cost of compliance, and whether the
violating activity is a common-law nuisance. See Note, "The
Inapplicability of Municipal Zoning Ordinances To Governmental
Land Uses," 19 Syracuse L. Rev. 698 (1968).
Many local noise ordinances presently include other
localities within the scope of their provisions. For
example, the City of Fond Du Lac, Wisconsin defines "person"
as,
Any individual, association, partner-
ship, or corporation, includes officer,
employee, department, agency or
instrumentality of a State or any
political subdivision,
CITY OF FOND DO LAC, WIS. Ore. §17.03 (1976).
Although such provisions are not dispositive in subjecting
other governmental units to noise provisions where there has
been no waiver by the violating governmental body, these
provisions have persuasive value in the court's balancing of
the violating activity with the local ordinance, and in
requiring compliance with the local regulation.
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B. State Preemption
State governments may preempt local regulations which
conflict with State regulations. State constitutions may
expressly delineate the scope to which a State preempts
local action. For example,
Any city or town may by adoption,
amendment, or repeal of local ordinance
or by-laws, exercise any power or
function which the general court has
power to confer upon it, which is not
inconsistent with the Constitution or
laws enacted by the general court...
MASS. CONST. Art. 2 §6.
State statutes can also limit local regulation in a given
area. The Iowa Code, for example, specifies in detail
the type of motor traffic signs which must be adopted by
municipalities. See, IOWA CODE §15.71 M20
State courts have hel»d that local regulation of noise
pollution outside the scope of the locality's home rule
authority is preempted by the State. See, Pes Plains v.
Chicago and Northwestern Railway Co., 357 N.E,2d 433 (1976).
Additionally, some State courts have held that local environ
mental ordinances establishing more stringent permit require
ments than those established by the State environmental
protection laws are preempted by the State. See, Carlson
v. Village of Worth, 343 N.E.2d 493, 499 (111. 1975).
To help avoid invalidation of local regulation through
preemption, drafters of local noise regulations should
know the scope of relevant home-rule provisions as well as
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any constitutional or statutory provisions which explicitly
preempt local action in a given area.
c* Incorporation By Reference
A State or locality may adopt regulations and statutes
by incorporating them by reference. This drafting technique
reduces length and repetition in the new ordinance being
enacted. It is a well established principle that incorporation
by reference is permissible when the provisions being
incorporated are clearly in existence at the time of including
them in the new legislation, subject only to State Constitu-
tional and statutory limitations. However, incorporation by
reference of future statutes, standards, or procedures,
raises the issue of improper delegation of legislative
power, a Constitutional prohibition which is derived from
the doctrine of separation of power wherein Congress and
State legislatures hold all legislative authority. See 82
C.J.S. Statutes §70 et. sea. (1953). This issue is particularly
relevant to noise control statutes and ordinances which use
test procedures and definitions of the American National
Standards Institute (ANSI). Some courts have ruled that
allowing such non-governmental agencies to supply terms and
change standards constitutes unlawful delegation of power.
See, e.g., Colorado Polytechnic College v. Bd. for Community
Colleges and Occupational Education, 476 P.2d 38, 42 (1970).
There is some authority, however, for the adoption of such
future changes in standards under the rationale that the
non-governmental bodies merely "fill in the details" of
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State legislation and as such there is no unconstitutional
delegation of authority. See, Ex parte Gerino, 11 P. 166,
167 (1904)'.
Drafters of noise regulations can best avoid the
potential charge of unconstitutional delegation of authority
by incorporating only statutes and regulations which are
in existence at the time of drafting. If standards
established by professional bodies, such as ANSI, are used,
drafters should expressly state the scope and source of the
incorporated provisions. For example,
Test procedures...shall be in substantial
conformity with ANSI standard SI 4-1961
or IEC standard SI .11-1966...
CHICAGO, ILLINOIS ORDINANCE
S17-4.27 (1971).
D. _ Severability
To help avoid the possibility that an entire ordinance
will be invalidated as a result or a legal challenge to one
provision, drafters should include a severability clause. An
example of a severability clause follows:
If any provision of this ordinance is
held to be unconstitiutional or other-
wise invalidated by any court of competent
jurisdiction, the remaining provisions
of the ordinance shall not be invalidated.
NIMLO/EPA MODEL NOISE ORDINANCE sec. 11.
The common-law presumption is that when any provision
is declared unconstitutional, remaining provisions fall with
it. In Dorchy v. Kansas, 264 U.S. 286 (1924), however, the
Supreme Court established a two-prong test to determine when
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an act need not be invalidated in entirety: (1) Where
legal effect can be given to the unchallenged provisions
when standing alone and (2) where the legislative intent
appears to favor severabilty. The presence of a severability
clause in a noise control ordinance, although not dispositive
in itself of whether the remainder of an act will stand,
provides a rule of construction for the court which aids in
finding legislative intent in favor of severability.
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DRAFT
1/1/79
ORDINANCE DRAFTER
STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Fourth Amendment - Search and Seizure
ISSUE;	Are searches or seizures of persons or
property permissible in noise control
enforcement?
BRIEF ANSWER: The Fourth Amendment of the United States
Constitution permits reasonable searches
and seizures pursuant to consent or a proper
warrant. In both criminal and administrative
search and seizures, drafters and enforcers
of noise control provisions should consider
the requirements for consent and for search
warrants in order to avoid constitutional
challenges on the basis of the Fourth
Amendment.
DISCUSSION: In drafting State and local noise control
laws, consideration should be given to whether effective
enforcement may require searches or seizures of persons or
property. For example, enforcement officials may wish to
gain entry upon personal property to discover the source of
a possible noise violation. If such procedures are
contemplated, drafters of noise control provisions may
wish to provide guidelines for execution and administration
of searches and seizures. These procedures must be consistent
with the Fourth Amendment which provides:
The right of the people to be secure
in their persons, houses, papers and
effects against unreasonable searches
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and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing
the -place to be searched, and the
persons or things to be seized,
U.S. CONST, amend. IV.
Under the Fourth Amendment, a search warrant is generally
required in order to conduct searches and seizures if the
party to be searches has a reasonable expectation of privacy.
When such an expectation exists, a search or seizure without
a warrant, unless covered by an exception to warrant requirements,
is unconstitutional, and evidence thus obtained is inadmissible
at trial. See, Katz v. United States, 389 U.S. 347, (1967);
Mapp v. Ohio, 367 U.S. 643, 655 (1961). In Katz at 357, the
Supreme Court articulated the requirements of the Fourth
m
Amendment: "searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment - subject to only a
few specifically established and well-delineated exceptions."
Narrow exceptions to the warrant requirement have been
recognized, such as searches conducted incident to a full-
custody arrest, where there is valid consent to a warrantless
search, or where there are exigent circumstances present.
See, Coolidge v. New Hampshire, 403 U.S. 443, (1971).
In United States v. Robinson, 414 U.S. 218, (1973) the
Supreme Court upheld a warrantless search of an individual
who had been arrested for operating a motor vehicle after
revocation of his licence. To qualify as an exception to
the warrant requirement of search incident to arrest,
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United States v.' Robinson, 414 U.S. 218, (1973), the Supreme
Court upheld a warrantless search of an individual who had
been arrested for operating a motor vehicle after revocation
of his licence. To qualify as an exception to the warrant
requirement of search incident to arrest, however, the
search must not be too far removed from the time and place
of the arrest. See, e.g., U.S. v. Edwards, 415 U.S. 800
(1974) (search of arrested person's possessions at place
of detention was sufficiently related to arrest to qualify
under the incident to arrest search warrant exception).
A recent Supreme Court decision has resolved many of
the uncertainties regarding the constitutionality of the
random stopping of automobiles to spot check for drivers
licenses and registrations. Delaware v. Prouse 	 U.S. 	
99 S.Ct. 1391 (1979) . The Court's reasoning in Prouse can
be ablied-as well in the context of stops made for the
purpose of conducting a noise test. Prior to Prouse, there
'had been a conflict between jurisdictions regarding the
reasonableness of a stop for the purpose of checking drivers
licenses and registrations. Five jurisdictions had ruled
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that the Fourth Amendment prohibits this type of seizure"'"
while six jurisdictions had ruled that it does not.
In Prouse, a patrolman stopped an automobile as a
routine procedure to check the driver's license and regis-
tration, He had observed neither traffic or equipment
violations nor any suspicious activities. He was not acting
pursuant to any standards, guidelines or procedures pertaining
to document spot checks promulgated either by his deparment
or by the State's Attorney General. Prouse, 99 S.Ct. at
1394.
The trial court granted a motion to dismiss stating that
the stop was wholly capricious and violative of the Fourth
Amendment. This decision was upheld by the Delaware Supreme
Court and the United States Supreme Court granted certeroari.
The Court initially decided that stopping an automobile
and detaining its occupants constitutes a seizure within the
meaning of the Fourth Amendment even though the purpose of
* Commonwealth v. Swanger 543 Pa. 107, 307, A.2d 875
(1973)? United States v. Montgomery U.S. App. D.C., 561 F.2d
875 (1977); People v. Ignle 36 N.Y. 2d 413 330 N.E. 2d 34
(1975); State v. Ocho, 23 Ariz. App. 510, 534 F.3d 441
(1975);	rev'd on other grounds, 112 Ariz. 582, 544 P.2d 1097
(1976)	| United States v. Nicholas 445 F.2d 622 (8th Cir.
1971) .
2 State v. Holmberq, 194 Neb. 337, 231 N.W. 2d 672
(!975) ,* State v. Allen, 282 N.C. 503, 194 S.E. 2d 9 (1973) ?
Palmore v. United States, 290 A.2d 573, (D.C. App. 1972)
aff'd on jurisdictional ground only, 411 U.S. 389 (197 3) ;
Leonard v. State, 496 S.W. 2d 576 (Tex. Crim. App. 1973)?
United States v. Jenkins, 528 F.2d 713 (10th Cir. 1975);
Myricks v. United States, 370 F.2d 901 (5th Cir .) cert,
denied 386 U.S. 1015 ( 1967) .
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the stop is limited and the resulting detention is quite
brief. 99 S.Ct. at 1396, United States v. Martinez-Fuerte
428 U.S. 543, 556-58 (1976); United States v. Brignoni-Ponce,
432 U.S. 873, 878, (1975). Under the Fourth Amendment any
seizures based on the discretion of law enforcement personnel
must be based on a reasonableness standard in order "to
safeguard the privacy and security of the individual against
arbitrary invasion." Prouse, 99 S.Ct. at 1396, quoting
Marshall v. Barlows Inc. 436 U.S. 307, 312 (1978). The
reasonableness of a particular law enforcement practice is
judged by balancing its intrusion on the indiviudal's Fourth
Amendment interests against its promotion of legitimate
government interests. Normally reasonableness is determined
by utilizing some objective standard, whether this be
•probable cause or some less stringent test. See Terry v.
Ohio 392 U.S. 1 (1968) .
In Prouse, Delaware u-rged that a police officer's
discretion should be unfettered when he is deciding which
cars to spot check for licenses and registration. The
State maintained that these stops were reasonable because
its interest in securing the safety of drivers on its
roadways. Prouse, 99 S.Ct. at 1397. The Court had to
balance the reasonableness of the methods utilized by
Delaware to achieve this goal against the resulting intrusion
on the privacy and security of the individuals detained.
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The Court found these stops to be a physical and psycho-
logical intrusion on the occupants of the vehicle. They
were found to interfere with freedom of movement, to be
inconvenient, to consume time, and also to create substantial
anxiety. Prouse, at 1398. The court also found the contri-
bution to highway safety by the use of spot checks to be
minimal at best. They held that while unlicensed drivers
may be presumed to drive less safely than licensed drivers,
unlicensed drivers were only a small percentage of all
drivers, and there was only a slight chance that unlicensed
drivers would be found through spot checks. Therefore, the
Court determined that the marginal contribution to roadway
safety resulting from a system of discretionary spot checks
could not justify subjecting every occupant of every vehicle
on the road to a seizure, limited in magnitude compared to
other intrusions, but nonetheless constitutionally cognizable.
An officer must have an appropriate factual basis for
suspicion directed at a particular automobile or some other
substantial and objective standard or rule to govern the
exercise of discretion. Therefore, except in those situations
in which there is at least articulable and reasonable
suspicion that a motor ist is unlicensed or that an automobile
is not registered, or that either the vehicle or an occupant
is otherwise subject to seizure for violation of the law,
stopping an automobile and detaining the driver in order to
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check his drivers license and the registration of the
automobile are unreasonable under the Fourth Amendment,
Prouse at 1401.
The Court's decision did not prohibit all stops not
based on probable cause or reasonable suspicion. They
specifically indicated that States may develop methods for
spot checks that are less intrusive or that do not involve
the unlimited exercise of discretion. It was suggested that
all on-coming traffic at roadblock type stops could be
questioned, as these stops are not the product of unbridled
police discretion. Prouse, at 1401.
The Court has repeatedly held that the brevity of the
stop does not make it any less intrusive and does not
remove the Fourth Amendment requirement of reasonableness.
Therefore State and local governments should be prepared
to show that the stop of an automobile, in order to conduct
a noise test, is based on probable cause, reasonable suspicion,
or some other standard which meets the Fourth Amendment
requirement of reasonableness.
In view of the cases previously discussed, the use of
fixed checkpoints to stop and test automobiles for noise
level violations may be the best method for State and local
governments to adopt when they desire to conduct such tests
without meeting the Fourth Amendment requirement of probable
cause or reasonable suspicion.
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A warrant is not required where consent to the search
has been given. Schneckloth v. Bustamonte, 412 U.S. 218,
(1973). However, consent to a warrantless search must
be voluntary. Schneckloth at 225. Voluntariness is tested
by the totality of the circumstances surrounding the consent
for example, the age and intelligence of the consenting
party, the words and actions of the officer, coercion, if
any, and the setting of the consent are factors to consider
in determining whether the consent was truly voluntary.
Schneckloth at 226, Whether there was authority to give
consent must also be considered; for example, a person with
possessory rights to the area being searched generally has
authority to consent to a warrantless search. However, a
lower level employee may not have authority to give consent
to a warrantless search of a business. See, e.g., United
States v. Matlock, 415 U.S. 164, (1974) (common areas of
house); United States v. Lagow, 66 P. Supp 738, (S.D.N.Y.
1946) (average employee cannot consent to search of business
premises). Current EPA enforcement procedures state that
consent must be given either by the owner of the premises or
by the person in charge of the premises at the time of the
proposed inspection.
The Supreme Court has prescribed 1imited circumstances
which constitute another exception to the warranty require-
ment - that of "exigent circumstances". When the police are
in hot pur suit of a suspect, immediate search or seizure
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without a warrant is permissible. Warden v. Hayden, 387
U.S. 294, (1967). Similarly, a warrant is not required to
seize items found in "plain view" when officers are legitimately
on the premises for purposes other than seizure of the
item found. Hayden at 298. For example, police investigating
a disturbance of the peace complaint in a private residence
may seize contraband found in plain view. However, the plain
view exception must be based on a prior valid intrusion.
Administrative searches are a special category of
searches under the Fourth Amendment. In general, administr-
ative searches have been defined as involving "a routine
inspection of a class of persons or businesses in order to
secure compliance with various regulations or statutes."
Rothstein, M.A. and Rothstein, L.F., Administrative Searches
and Seizures; What Happened to Camara and See?, 5 0 WASH.
L.REV. 341, 384 (1975). Administrative searches may be
common in noise enforcement schemes. For example, regula-
tions may require that products meet prescribed noise
emission standards and provide for inspections to check
compliance. Therefore, drafters of noise regulations must
consider possible Fourth Amendment problems in such searches.
The Supreme Court recently considered the constitu-
tionality of warrantless administrative searches in Marshall
v. Barlow's Xnc., 436 U.S. 307 (1978). It held that section
8(a) of the Occupational Safety and Health Act of 1970 which
allowed warrantless inspections to search for violations of
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OSHA regulations violated the Fourth Amendment. The Court
stated the "The Warrant Clause of the Fourth Amendment
protects commercial buildings as well as private homes. To
hold otherwise would belie the origin of the Amendment, and
the American colonial experience." Barlow's Inc. at 311.
In Barlow, however, the Supreme Court placed limitations
upon the warrant requirements for administrative searches.
First, as in searches and seizures for criminal offenses,
a valid consent may dispense with the warrant requirements.
Barlow at 316. Second, certain "pervasively regulated
businesses" may be subject to warrantless inspections.
Included in this category are liquor and firearms industries.
See, Colonnade Catering Corp. v. United States, 397 U.S. 72,
77 (1970); United States v. Biswell, 406 U.S. 311, 316
(1972). The Court in Barlow rationalized this limited-	.
exception to the warrant requirement by stating that:
"Certain industries have such a history
of government oversight that no reason-
able expectation of privacy could exist
for a proprietor over the stock of such,
enterprise...when an entrepreneur embarks
upon such a business, he has voluntarily
chosen to subject himself to a full
arsenal of government regulation."
Barlow at 313.
A third limitation on the warrant requirement results
from the limited scope of the Barlow holding. The Barlow
Court specifically limited its holding to the warrantless
entry procedure of the Occupational Safety and Health Act.
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It suggested that there may be other statutory schemes for
warrantless searches which do not violate the Fourth Amendment
The reasonableness of a warrantless
search, however, will depend upon the
specific enforcement needs and privacy
guarantees of each statute. Some of the
statutes cited apply only to a single
industry, where regulations might
already be so pervasive that a Colonnade-
Biswell exception to the warrant require-
ment could apply. Some statutes already
envision resort to federal court enforce-
ment when entry is refused, employing
specific language in some cases and
general language in others. Barlow at 321.
On its face, therefore, the Barlow holding does not
invalidate all warrantless administrative searches. However,
the Environmental Protection Agency has accepted the Barlow
holding as binding on administrative searches conducted by
EPA under the Noise Control Act of 1972, and has revised its
noise emission regulations for medium and heavy trucks and
portable air compressors to comply with the Barlow holding:
Any entry without 24 hour prior written or
oral notification to the affected manufacturer
shall be authorized in writing by the Assistant
Administrator for Enforcement.
40 CFR 204.4(e)
A State or local noise control statute or ordinance which
provides for warrantless administrative searches may be
considered narrow enough to pass Constitutional scrutiny
by courts. However, because of the acknowledgement that
administrative searches generally require search warrants,
particularly on the federal level of noise control enforce-
ment, State and local schemes should require consent or
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search warrants as part of the operating procedure for
enforcement of noise control regulations in order to avoid
Constitutional challenges .under the Fourth Amendment.
The procedure of obtaining (ex parte) and executing
search warrants for administrative searches must also comply
with the Fourth Amendment. The standard of probable cause
necessary to obtain an administrative warrant is more
flexible than that required for criminal search warrants.
In Barlow, the Supreme Court articulated the probable cause
standard:
Probable cause in the criminal sense is
not required. For purposes of an
administrative search such as this,
probable cause justifying the issuance
of a warrant may be based not only
on specific evidence of an existing
violation but also on a showing that
"reasonable legislative or administrative
standards for conducting an...inspection
are satisfied with respect to a particular
[establishment.]" A warrant showing that
a specific business has been chosen for an
OSHA search on the basis of a general
administrative plan for the enforcement of
the Act derived from neutral sources...
would protect an employer's Fourth Amendment
rights.
Barlow at 320-321 quoting Camara v.
Municipal Court, 387 U.S. 523, 538 (1967).
The warrant obtained for administrative searches
must be particular in scope. See, Steele v. United States,
267 U.S. 498 (1925). For example, if products at a particular
retail outlet are the focus of an inspection, the warrant
must clearly state which outlet and which products are to be
inspected; if multiple facilities are the focus of inspection,
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a separate warrant must be obtained for each facility.
Unless a valid consent has been given to exceed the scope of
the warrant, searches beyond the areas prescribed in the
warrant and seizure of items not listed in the warrant
violate the Fourth Amendment unless they qualify under the
plain view exception. See, Coolidge v. New Hampshire, 403
U.S. 443, (1971).
The noise enforcement officer must present the warrant
upon entry to the place of inspection. Service may be made
upon any employee of the facility, for example, a guard,
although inspectors may be detained for a reasonable time
while the facility's attorney is reached.-
Refusing entry to enforcement officers or refusing to
turn over records or equipment prescribed by the warrant may
be sanctioned by criminal charges. The Court may cite the
facility with contempt of court for resistance or non-com-
pliance with the judicially authorized administrative search.
CONCLUSION; Noise control enforcement procedures must
comply with Fourth Amendment prohibitions on warrant-
less searches and seizures. Therefore, absent valid consent
or clearly defined exigent circumstances, enforcement
officers must obtain a warrant for searches of persons or
property. Under the Barlow ruling, as well as the. EPA
adoption of this ruling for federal inspections under the
Noise Control Act of 1972, consent or a search warrant is
required for administrative searches. Although some courts
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may rule that narrowly drawn statutory schemes for warrant-
less inspections are permissible, drafters of noise control
provisons should probably include statutory language requiring
consent or a warrant in all cases where entry is sought. In
this way drafters can help avoid invalidation of noise
control provisions on Fourth Amendment grounds.
In addition, in light of the Prouse decision which
invalidates random stop spot checks of automobiles based
purely on police discretion, the drafter of noise regulations
should consider the requirements of probable cause, and
suggest some reasonable standard upon which a spot check for
noise violation will be based.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Severability Clause
ISSUE;	Whether or not to include a severability
clause in a noise ordinance?
BRIEF ANSWER: It is advisable to include a severability
clause in a noise ordinance.
DISCUSSION: To help avoid the possibility that an entire
ordinance will be invalidated as the result of a successful
legal challenge to one provision, drafters should include a
severability clause. An example of such a clause is found
in the EPA Model Noise Control Ordinance, section 11.7 which
provides:
If any provision of this ordinance is held to be
unconstitutional or otherwise invalid by any court of
competent jurisdiction, the remaining provisions of the
ordinance shall not be invalidated.
Where there is no legislative declaration to the
contrary, "the [common law] presumption is that the legisla-
ture intends an act to be effective as an entirety ... and
if any provision be unconstitutional, the presumption is
that the remaining provisions fall with it." Carter v.
Carter Coal Co., 298 U.S. 238 , 312 (1936). This presumption,
in the context of a noise ordinance with diverse provisions,
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could lead to the invalidation of the entire ordinance
where a constitutional defect is found in a single section.
When a court does invalidate one provision of an
act, the common law presumption will not necessarily operate
to void an act in its entirety. A two-pronged test was
articulated by the Supreme Court in Dorchy v. Kansas, 264
U.S. 286 (1924) as a guide for determining what effect the
invalidation of one part of an act should have on the
remaining portions. The court stated that where one part
of an act is struck down, any other provision which is
"inherently unobjectionable, cannot be deemed separable
unless it appears both that, standing alone, legal effect
can be given to it and that the legislature intended the
provision to stand, in case others included in the act and
held bad should fall." 264 U.S. at 290 .^
Court evaluation of legislative intent, in fulfillment
of the second prong of the Dorchy test, makes the presence
of a severability clause important. The inclusion of a
For a state court application of the
two-pronge'd Dorchy test to a statute
containing a severability clause, see
County of Clark v. City of Las Vegas
550 P.2d 779 (Nev. 1976 5 .
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severability clause creates a presumption of divisibility,
reversing the common law presumption that the legislature
intends an act to be effective only as an entirety. Will jams
v. Standard Oil Co., 278 U.S. 235, 242 (1929). The effect
of the presumption created by a severability clause is that
it becomes the burden of the proponents of inseparability to
prove that the legislature intended the act to stand or fall
as an entirety. As stated by the Court in Williams, the
presumption clause, "must be overcome by considerations
which make evident the inseparability of its provisions or
the clear probability that the invalid part being eliminated
the legislature would not have been satisfied with what
remains." Williams at 242.
CONCLUSION: While a severability clause will.serve as
"an aid merely; not an inexorable command," the drafter's,
inclusion of such a clause, "provides a rule of construction
which may sometimes aid in determining [legislative] intent."
Dorchv supra at 290 (1924) .
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT; Incorporation by Reference
ISSUE:	May a State or local government, in enacting
a noise control statute or ordinance, incor-
porate by reference either statutes or non-
statutory information formulated by another
body?
BRIEF ANSWER; Where there is no State constitutional or
statutory limitation, a State or locality
generally may incorporate by reference
either statutory or non-statutory provisions
that are presently in existence. However, if
the incorporation is prospective, the provision
may be held void as an unlawful delegation
of legislative authority.
DISCUSSION; Drafters of State and local noise control
ordinances who wish to adopt provisions identical to existing
statutes or regulations may, unless constitutionally or
statutorily 1imited, incorporate such provisions by reference
to them in the new legislation. The benefits of this
legislative drafting technique are the avoidance of unnecessary
repetition of detail in the statute books, as well as the
reduction of length of the new ordinance, and reductions in
cost of publication and time required for legislative
analysis in the drafting stage. See, generally, 82 C.J.S.
Statutes §70 et seq. (1953).
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Examples of Incorporation by Reference
A State or locality may incorporate by reference
statutes and regulations which exist on the Federal level,
within the State's own statutes, or provisions of other
states or localities. See, e.g., Tuscon v. Stewart, 40 P.2d
72 (1935), 96 ALR 1492 j Comm'n of Conservation of Department
of Conservation of State v. Connor, 3 2 N.W.2d 9 07 (Mich.
1948). (Michigan legislature, in fixing fees and compensa-
tion of officers, could incorporate existing State statute
provisions on this issue). Incorporation by reference has
also been employed in existing noise control ordinances.
For example, Portland, Oregon adopted the following ordinance
to expand the scope of existing noise regulations:
Vehicles of 10,000 lbs. GCWR (Gross
Combined Weight Rating) or more, engaged
in interstate commerce as permitted by
Title 40, Code of Federal Regulations,
Part 202, EPA, the provisions which are
hereby incorporated by reference ...
PORTLAND, OREGON, ORDINACE. No. 141882,
§18 .10 .020(a)(i) (amending §15.28.290.)
(1976) .
A similar, more brief example is illustrated by the
Madison, New Jersey ordinance:
Article IX-A Rail Carriers Maximum Sound Levels
The provisions of the United States
Environmental Protection Agency Rail
Carriers Regulations promulgated January 14,
1976, Tile 40, Part 201, shall apply.
MADISON, N.J. NOISE CONTROL ORD.,
Ch. 217 art. IX-A (1977) .
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Arizona has incorporated by reference provisions of its
own State regulations by the following language:
Beginning with motor vehicle and motor
vehicle engines of the 1968 model
year, motor vehicles and motor vehicles
engines shall be equipped with emission
control devices that meet the standards
established by the State Board of
Health.
ARIZ. REV, STAT. §28.955(c) (1967)
State legislatures may expressly authorize incorporation
by reference in noise ordinances. The Connecticut Noise
Pollution Act, for example, provides that the Commissioner
may promulgate standards for ambient noise levels which "may
include, but need not be limited to, adoption by reference
of standards or regulations adopted by the Administrator of
the United States Environmental Protection Agency pursuant
to the Noi&e Control Act of 1972 or any amendment thereto."
CONN. PUB. ACTS No. 74-328, (1974).
It is a well-settled principle, however, that even in the
absence of such express statutory authorization, a statute
or ordinance may incorporate by reference, subject only to
the State and Federal limitations discussed below. Greene v.
Town of Lakeport, 239 P. 702, 704 (Calif. 1925) (Calif, ord.
No. 56, fixing compensation for officers of Township of Lake-
port, could incorporate fees as provided in State statutes.)
State Limitations on Incorporation by Reference
States may place constitutional and statutory limitations
upon incorporation by reference. See, 82 C.J.S. Statutes
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§70 et seq. (1953). Such State restraints vary in degree
from total prohibition to mere imposition of procedural
requirements. The New York Constitution provides, for
example, that if any existing statute or portions thereof
are incorporated into a new statute, the existing statutes
or portions must be inserted in full in the act. N.Y. CONT.
art III, §16 (1969). The Minnesota general statutes, by
contrast, permit incorporation by reference if the following
procedure is satisfied:
Any city or town, however organized,
may incorporate in an ordinance
by reference any statute of Minnesota,
any administrative rule or regulation
of any department of the State of
Minnesota affecting the municipality,
or any code... All requirements of
statutes and charters for the publica-
tion or posting of ordinances shall be
satisfied in .such case if the ordinance
incorporating" the statute, regulation,
ordinance or code is published or posted
in the required manner and if, prior to
such posting or publication, at least one
copy of the ordinance or code is marked as
the official copy and filed for use and
examination by the public in the office
of the municipal clerk or recorder...
MINN. STAT. ANN. §471.62 (West 1967)
Courts generally have strictly construed the con-
stitutional and statutory prohibitions against incorporation
by reference under the rationale that these provisions
constitute limitations upon the free exercise of legislative
power. See Landis Tp. v. Division of Tax Appeals of State
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Dept. of Taxation and Finance, 59 A.2d 258 (N.J. 1948), (New
Jersey constitutional limitation on incorporation by
reference held to extend only to right-s and duties imposed
by existing laws and not to enforcement thereof) . The
drafter of State and local noise "control provisions, however,
should be cognizant of any State limitations and procedural •
-requirements which exist in order to avoid invalidation of
the provisions on the basis of improper incorporation by
reference.
Federal Limitations on Incorporation by Reference
The United States Constitution does not explicitly
prohibit incorporation by reference. However, the con-
stitutional principle against delegation of legislative
power may restict the drafter's capacity to incorporate
provisions by reference. This principle is derived from
the constitutional doctrine of separation of powers wherein
Congress holds all legislative authority. U.S. CONST,
art I, §4. The Supreme Court recognized the Constitutional
limitation on Congress' power to delegate authority in
Panama Refinery Co. v. Ryan, 293 U.S. 388 (1935). In that
case, the Court interpreted the separation of power provi-
sions in conjunction with Article I, section 8, paragraph
18, of the Constitution (which gives Congress the power to
"make all laws which shall be necessary and proper for
carrying into Execution" its general powers,) as meaning
that "Congress.is not permitted to abdicate or transfer to
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others, the essential legislative functions with which it is
thus vested." Panama Refinery at 421,
The delegation doctrine also applies at the State
level. Although there are no specific prohibitions in State
constitutions against delegation of legislative authority,
it is a generally accepted principle that the delegation of
power by a legislative body which is invalid under the
Federal Constitution is similarly invalid under State
constitutions, Holgate Bros. Co. v. Bashore, 200 A. 672,
674 (1938).
Incorporation of Future Regulations
There is no improper delegation of legislative authority
when the provision being incorporated by reference is
already in existence. The issue of improper delegation
arises, however, when future laws, rules, regulations or
standards are incorporated by reference. Such incorporation
may be construed as the legislature permitting other bodies
to decide its laws in subsequent years. State v. Webber,
133 A. 738, 740 (1926). Legislation which has been in-
corporated by reference might be challenged when there is
uncertainty as to whether the incorporation includes future
provisions or amendments. The drafter of noise control
ordinances should make clear that only regulations which are
in effect at the date of the new legislation are subject to
incorporation by reference.
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The restrictions on incorporation by reference of
future standards and regulations are particularly relevant
to the drafter of noise control ordinances who wishes to
utilize standards, test procedures and definitions such as
those of the American National Standards Institute (ANSI).
Allowing such non-governmental agencies to promulgate
standards is not impermissible per se; it is only because
these agencies are able to change definitional terms and
standards that a question of improper delegation arises.
See Colorado Polytechnic College v. Bd. for Community
/
Colleges and Occupational Education, 476 P.2d 38, 42 (1970).
Statutes and ordinances which do not specify a given
edition or publication of the code from which provisions
are incorporated have been held to improperly delegate
legislative authority. For example, the Supreme Court of
Kansas found a provision of the Kansas Pire Prevention Act
which provided that "all electrical wiring shall be in
accordance with the National Electrical Code" to be an
improper delegation of authority. State v. Crawford, 177
P.360, 361 (1919). The Court based its invalidation of the
provision on the National Electric Association's ability to
revise the code every two years. The court stated that, "If
the Legislature desires to adopt a specific rule of the
National Electrical Code as the law, it should copy that
rule and give it a title and enacting clause and pass it
through the Senate and House of Representatives by a consti-
tutional majority." State v. Crawford at 361. Similarly,
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the Washington Supreme Court held that a State statute which
allowed the practice of medicine only to those who held
diplomas issued by medical schools accredited and approved
by the Association of American Medical Colleges, Hospitals
of the American Medical Association and Council of Medical
Education, and which allowed those bodies to define standards
of accreditation, improperly delegated legislative authority.
State v. Urquhart, 310 P.2d 261, 264 (1957). See also, Op.
Atty. Gen. Minn., 59a-9, July 18, 1967; Op. Atty. Gen.,
59-A-ll, January 22, 19 57; Op. Atty. Gen., 59-A-9, March 27,
1956. However, the Washington Supreme. Court in Urquhart
noted that if a specifc edition or set of standards is cited
in the new legislation, no improper delegation results.
Urquhart at 264.
There is some authority which supports the adoption
of future codes in new legislation under the rationale that
the administrative bodies merely "fill in the details" of
the State legislation and as such do not engage in uncon-
stitutional delegation of authority. Ex parte Gerino, 77 P.
166, 167 (1904) (California statute requiring applicants to
practice medicine to produce diploma of medical school
meeting standards prescribed by Association of American
Medical Colleges does not constitute improper delegation of
legislative authority). The standard employed by courts
adhering to this theory was articulated in Ex parte Laswell,
36 P.2d 678, 687 (1934), in which the California Supreme
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Court upheld a provision of the California Recovery Act
incorporating terms of the Code of Pair Competition of the
Cleaning and Dyeing Trade: "There must be an overlying law
which constitutes the primary standard. The function of the
delegated power must be to determine some fact, or the state
of things upon which the primary, standard law depends,"
The court substantiated its holding by stating that the
complexity and multiplicity of administrative affairs in
modern legislation requires the expertise and fact-finding
ability of quasi-legislative bodies which the legislature
itself does not posess. Laswell at 686. Under this "filling
in the details" theory, the incorporation of standards as
established by the National Electrical Code definition of
controlled substances, as set by the State Board of Pharmacy,
and standards of accreditation for college in accordance
with Regional Associations of Colleges and Secondary Schools,
have been upheld by courts. See, e.g., Independent Electricians
and Electrical Contractors' Association v. New Jersey Board
of Examiners of Electrical Contractors, 256 A.2d 33 (1969);
State v. King 257 N.W.2d 693 (1977); Colorado Polytechnic
College v. State 3d. for Community Colleges and Occupational
Ed. , 476 P.2d 38 ( 1970) .
The incorporation of provisions in noise control
ordinances in relation to definitions and test procedures
established by ANSI and other non-governmental bodies,
therefore, is subject to the current disagreement of
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authorities on this issue of delegation of legislative
power. Many noise ordinances currently in force, as well as
the NIMLO/EPA Model Community Noise Ordinance, incorporate
such dynamic standards as the ANSI standards. See, EPA
Model Community Noise Ordinance, sec. 3.1. Many ordinances
clearly incorporate future revisions of ANSI standards. For
example, the Montgomery County, Maryland noise control
ordinance provides:
...[T]he Director may approve for use
any meter conforming at least to the
requirements for Type II sound level
meters, as defined by ANSI SI. 4-1971
or the latest revisions thereof, using
the A- weighting network.
MONTGOMERY COUNTY, MD., CODE Ch 3lB-7(a) (1972)
The Fairfax County, Virginia noise ordinance provides
a similar example of incorporation of future standards in
it definition of octave banc analyzer;	.	,
An instrument to measure the octave
band composition of a sound by means of
a bandpass filter. It shall meet the
specifications of the American National
Standards Institute publications SI.
4-1961, SI.6-1967 and SI.11-1966, or
their successor publications.
FAIRFAX COUNTY CODE, Art II, Sec 16A.2.1(i)
(1976)
Chicago's noise control ordinance provides an example
in which a specific edition of an ANSI standard for a
property line measurement test is incorporated:
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Test procedures to determine whether
maximum noise levels emitted by property
uses along property lines and zoning
district boundaries meet the noise limits
stated in sections 17-4.12, 17-4.13 and
17-4.14 of this chapter shall be in
substantial conformity with ANSI Standard
SI.4-1961...and further standards as may be
propounded in the Code of Recommended
Practices of the Dept. of Environmental
Control.
CHICAGO, ILL. ORD., §17-4.27 (1971).
It would appear that drafters of noise control ordinances
may cite specific, existing ANSI provisions without risking
a challenge of improper delegation of authority. It is only
when State or local ordinance drafters incorporate future
ANSI modifications of standards and definitional terms
that danger of invalidation due to improper delegation
arises. If challenged, these provisions are subject to the
current division of the courts concerning their'validity:
they may be upheld as merely granting ANSI and similar
non-governmental agencies the authority to determine facts
or fill in details, or they may be struck down as improper
delegation of legislative author ity .
CONCLUSION: A State or locality may adopt regulations and
statutes by incorporating them by reference where no state
constitutional or statutory limitations exist. It is a
well-established principle that incorporation by reference
is permissible when the provisions adopted are clearly
in existence at the time of the incorporation into the
new legislation. The courts are divided over the issue
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of whether the use of standar ized procedures, regulations
and definitional terras as determined by a non-legislative
body, and which may change in the future, constitutes
unconstitutional delegation of legislative authority and
thus is invalid. Drafters of noise control ordinances can
help avoid delegation challenges by expressly stating the
scope and edition of the incorporated provisions.
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DRAFT
4/21/80
STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Fifth Amendment - Due Process Vagueness
ISSUE:	Whether noise control provisions, such as
those prohibiting "loud", "excessive" or
"unreasonable" noise, are unconstitutionally
vague under the Fifth Amendment?
BRIEF ANSWER: Case law is divided concerning whether
qualitative noise provisions violate the
due process clause of the Fifth Amendment.
Provisions are generally upheld as con-
stitutional if the terms used to define
violations are within common knowledge and
usage. To help minimize the number of
successful challenges of unconstitutionality
drafters of noise provisions should define
qualitative standards as precisely as possible,
or use quantitative measures to define noise
violations.
DISCUSSION: Many State and local agencies have adopted
quantitative standards to define noise violations. Some
common types of quantitative noise regulations include
product performance standards; operational limitations such
as curfews; traffic limitations in sensitive noise areas;
and property line limitations. These noise control provisions
usually prescribe maximum permissible decibel levels for a
"given area or for specific noise sources.*
*For example:
If the sound emanates from sources located
within a commercial or industrial zone, the
maximum permissible sound level is:
(a)	62 dB(A) at any point on the
property line
(b)	55 dB(A) at any point on a boundary
separating a commercial zone or industrial
20ne from a residential zone.
MONTGOMERY, ALA., CODE Section 31(B)(1973).
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Many State and local governments, however, use qualitative
standards which define noise violations in descriptive rather
than numerical terras. For example,
It shall be unlawful to knowingly and
wilfully cause or create excessive or
unnecessary noise by engaging in boisterous,
noisy and loud conduct while on a public
street...
WEST PALM BEACH, FLA. , CODE,
ch 32 A, Section A-8 (1975)
Use of such subjective provisions may raise challenges
of unconstitutional vagueness. Disincentives against the
use of vague terms in regulations are found in two provisions
of the U.S.. Constitution: the First Amendment protection of
the freedom of speech; and the Fifth Amendment guarantee of
due process of law.
The manner in which vagueness may infringe on free
speech is described more fully in a separate memorandum but
is noted here briefly INFRA p. 74. In a number of cases,
courts have held no ise control provisons using subjective
standards to be in conflict with the First Amendment. For
example, a provision prohibiting "noise from being made on
the public way as to be distinctly or loudly audible" was
held to be unconstitutional as constituting a prior restraint
on the First Amendment freedom of speech. United States
Labor Party v. Rochford, 416 F.Supp. 204 (N.D. 111. 1975).
The court ruled that the standard was too vague because
enforcement depended upon such subjective criteria
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as the officer's hearing acuity, frame of mind, or opinion
on the merits of speech, none of which are valid criteria.
U.S. Labor Party at 207. Qualitative noise provisions may
similarly be subject to constitutional challenges under the
Fifth Amendment.
The Fifth Amendment provides that no person shall
"be deprived-of life, liberty, or property, without due
process of law." U.S. CONST., amend V. By interpretation,
the Fifth Amendment due process clause requires that laws be
sufficiently definite to put a reasonable person on notice
of what conduct constitutes a violation of a given statute.
Herndon v. Howry, 301 U.S. 242 (1937). Because the Fifth
Amendment protection has been extended to the state level
through the Fourteenth Amendment, State and local governments
must comply with the Fifth Amendment due process requirements
in drafting and enforcing noise control regulations.
In Grayned v. City of Rockford, 408 U.S. 104 (1972)
the Supreme Court considered the following provision of the
Rockford, Illinois noise ordinance;
No person, while on public or private
grounds adjacent to any building in
which a school or any class thereof
is in session, shall willfully make or
assist in the making of any noise or
diversion which disturbs or tends to
disturb the peace or good order of such
school session or class thereof.
Grayned at 108.
Denying claims that this provision should be disallowed on
the basis of the First or Fifth Amendments, the Court cited
three reasons for the Fifth Amendment requirement that laws
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be sufficiently precise:
Vague laws may trap the innocent by
not providing fair warning. Second,
if arbitrary and discr iminary enforcement
is to be prevented, laws must provide
explicit standards for those who apply
them. Third, where a vague statute abut[s]
upon sensitive areas of basic First Amendment
fredoms, it operates to inhibit the exercise
of [those] freedoms. Grayned at 108, 109.
On the other hand, the following provision of the
Muskegon, Michigan noise ordinance in United Pentecostal v.
Steendam, 214 N.W.2d 866, 868 (Mich. App. 197 4) , was
held unconstitutionally vague.
It shall be unlawful for any person to
make, continue, or cause to be made or
continued any noise which either annoys,
disturbs, injures or endangers the
comfort, repose, health, peace or safety
of others, within the limits of the
city.
The Michigan Court of Appeals stated that the danger of
such vague language was the apparently unlimited discretionary
power involved in identifying persons who were violating the
ordinance. In considering the constitutionality of the
ordinance, however, the court recognized the importance of
noise control provisions;
In finding that the.. .anti-noise ordinance
is unconstitutionally vague, this Court
does not condone interference with the
peace and sanctity of one's home by loud
noise. This admonition applies to
constitutionally protected activities as
well as those unprotected. We are
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persuaded that a more clearly and
narrrowly drawn ordinance can achieve
the municipality's objectives while
insuring an ascertainable standard
of guilt for due process requirements.
United Pentecostal at 868.
In a recent case involving due process challenges
to noise control provisions. Reeves v. City of Houston,
No. H-78-961 (S.D.Tex. Aug. 1, 1978) a U.S. District
Court ruled that a Houston ordinance which stated:
The volume of sound amplified shall
be controlled so that it is not
unreasonably loud, raucous, jarring,
disturbing or a nuisance to persons
within the area of audibility.
Houston, Tex., Code §29-6(b)(6) (1978)
was unconstitutionally vague under the Fourteenth Amendment.
Relying on the standards of Grayned and United Pentecostal
Church v. Steendom, the court concluded that:
... the terms "unreasonably" and "nuisance"
are too imprecise and thus fail to give
fair notice to those potentially subject
to the Ordinance, allow government officials
to engage in arbitrary and discriminatory
enforcement, and create an inexact standard
for administrative or judicial review"
Reeves at 8.
On the other hand, similar noise control ordinance
provisions have been held constitutionally valid under the
Fifth Amendment. For example., a California Court of Appeals
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held that a provision of the California Vehicle Code which
provides that motor vehicles;
...shall at all times be equipped with
an adequate muffler in constant operation
and properly maintained to prevent any
excessive or unusual noise ....
met Fifth Amendment due process requirements. Smith v.
Peterson, 280 P.2d 522, 523 (Cal. App. 1955). The court
gave strong deference to the legislative function by stating
that "statutes must be upheld unless their unconstitutionality
clearly, positively and unmistakably appears". Smith at 525.
The court explained that muffler requirements similar to
that contained in the California Vehicle Code can be practically
enforced because "mufflers [have become] so uniformly
used to minimize the noise from their exhaust that what is
usual has become a matter of common knowledge, and anything
in excess of that is excessive and unusual, and usually
capable of ascertainment as such." Smith at 527, Here also
the California court described the "common usage" test as
follows:
It is not required that a statute...
have that degree of exactness which
inheres in a mathematical theorum...
The requirement of reasonable certainty
does not preclude the use of ordinary
terms to express ideas which find
adequate interpretation in common
usage and understanding.
Smith at 525.
In Dayton v. Zollar, 122 N.S.2d 28 (Ohio 1954) a similar
provision in the Dayton, Ohio motor vehicle code withstood
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a challenge of vagueness and denial of Fifth Amendment due
process. The Dayton motor vehicle regulation provided that
"it shall be unlawful for any person to make a loud, un-
necessary or unusual noise. Among those sources found to
produce "loud", "disturbing noises", were exhusts, defined
as:
the discharge into open air of exhaust
of any... motor vehicle except through a
muffler or any other device which will
effectively prevent loud or explosive
noises therefrom. Dayton at 29.
The Ohio Court of Appeals concluded that this provision was
framed with "sufficient specificity" to avoid a charge of
unconstitutionality on the ground of vagueness and uncer-
tainly . Dayton at 30.
CONCLUSION
There is little uniformity among courts concerning the
constitutionality of qualitative noise provisions under the
Fifth Amendment. Similar provisions, using such terms as
"excessive" or "unnecessary" noise have been both upheld and
invalidated by different courts. However, a number of
themes have developed in these cases. First, mathematical
exactness is not necessary; qualitative criteria, if
sufficiently definite, can be constitutionally valid.
Second, qualitative terms which have acquired a common
usage and understanding may be permissible under the Fifth
Amendment. The meaning of the term, therefore, acquires a
special understanding in relation to the particular noise
source which is being regulated. For example, "excessive"
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motorcycle noise and "unusually loud" noises emitted from
construction equipment may come within common understanding
without the use of prescribed decibel measurements. There-
fore, if subjective standards are sufficiently specific,
courts will generally not unduly restrict governmental bodies
by requiring exact, quantitative standards in ordinances.
By using qualitative standards of noise control, drafters of
noise control ordinances can advoid constitutional challenges
under the due process clause of the Fifth Amendment.
Subjective standards which are more likely to be constitu-
tionally impermissible, should be avoided by the drafter of
noise control ordinances.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT; First Amendment Freedom of Speech
ISSUE:
BRIEF ANSWER:
Are restrictions on excessive noise and/or time
and place restrictions on noise in violation of
the First Amendment protection of freedom of
speech?
Restrictions on the use of sound amplification
devices, nuisance provisions and quiet zone
provisions are three areas which potentially
may infringe upon the First Amendment freedom
of speech. To help avoid constitutional
challenges on this basis, drafters of noise
control regulations should be sure that the
provisions, are precisely drawn, establish
clear guidelines for enforcement and place
restrictions on speech which are reasonable
and directly related to the proper legislative
intent of protecting the public welfare.
DISCUSSION:
INTRODUCTION: The First Amendment of the United States
Constitution, which provides that "Congress shall make no
law. . .abridging the freedom of speech, '* seeks to guarantee
that all persons shall be protected from government in-
fringement upon the right to free speech and expression.
U.S. CONST, amend. I. This Constitutional prohibition
has been extended to the State and local governments
through the Fourteenth Amendment. Although this guarantee
of free speech is not absolute, it is one of the most
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fundamental and closely guarded rights under the Constitution,
Cox v. Louisiana, 379 U.S. 536 (1965).
The power to regulate and control noise sources within
a State or community is properly within the police power
of the State and local government. Saia y. New York, 334
U.S. 558 (1948). However, in exercising this police
power, State and local governments must not infringe upon
First Amendment rights. In order to harmonize these
potentially conflicting interests, courts balance the
need for proper protection of the public interest through
noise control with the need to protect the exercise of
free speech.
There are a number of cases in which noise control
ordinances have been found to be in conflict with the First
Amendment right of free speech. This typically has arisen
with provisions relating to restr ictions on the use of sound
amplifying equipment, general nuisance provisions and quiet
zone provisions such as restr ictions in hospital or school
zones. Such noise control regulations may be challenged as
unconstitutional on their face, or unconstitutional as
applied through enforcement in a particular case. Drafters
of noise control regulations should be aware of potential
First Amendment infringements in drafting and enforcing
these types of provisions.
Sound Amplification Devices
Noise ordinances which require permits for the use of
sound amplification devices may be subject to First
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Amendment challenges. For example, In Saia, a local ordinance
forbade the use of sound amplification devices except with
the permission of the Chief of Police. Saia, a Jehovah's
Witness, obtained a permit to use sound equipment for
delivering religious lectures in a public park. When the
permit expired, he reapplied for a permit but was refused-on
the basis of complaints received by the police. When he
continued to deliver his lectures, Saia was prosecuted for
violating the ordinance. The Supreme Court held that the
ordinance was unconstitutional on its face because it
contained no standard for granting permits. The complete
discretion given to the Chief of Police constituted a prior
restraint on the free exercise of speech. The Court
emphasized that;
There are no standards prescribed
for the exercise of his [police
chief's] discretion. The statute
is not narrowly drawn to regulate
the hours or places of use of loud-
speakers, or the volume of sound
(the decibels) to which they must be
adjusted... [A] more effective
previous restraint is difficult to
imagine... Saia at 560, 561.
Drafters of noise control regulations may help avoid
invalidation of provisions on the basis of unlimited discretion
constituting prior restraint on freedom of speech by out-
lining specific guidelines for granting or denying permit
applications. This method helps assure that the content of
speech is not being regulated through unfettered discretion
of public officials.
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A narrowly drawn statute which places reasonable
restrictions on the time and place of use of sound am-
plification devices should survive First Amendment scrutiny.
*n Kovacs v« Cooper, 336 U.S. 77, 78 (1949), the Supreme
Court upheld an ordinance forbidding the use of any "loud
speaker or instrument which emits loud and raucous noises"
on public streets. The defendant was convicted for violation
of the ordinance for delivering labor-dispute speeches
through an amplification device on a public street near
a municipal building. The Court held that the ordinance
did not violate the defendant's First Amendment rights
because the ordinance restricted use on public ways only
and the message could still be conveyed from other areas
or by other means. The Court stated that:
The unwilling listener is not like the
passer-by who may be offered a pamphlet
in the street but cannot be made to
take it. In his home or on the street
he is practically helpless to escape
this interference with his privacy by
loud speakers except through the
protection of the municipality.
Kovacs at 86, 87.
The application of time and place restrictions of the
use of sound amplification devices must be reasonable in
order to comply with the First Amendment. In United States
Labor Party v. Pomerleau, 557 F.2d 410, 412 (1977), the U.S.
Court of Appeals for the Fourth Circuit considered the
validity of the Baltimore, Maryland noise ordinance as
applied to U.S. Labor Party members who used amplifiers to
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conduct political rallies on the public streets of Baltimore.
The ordinance established maximum sound levels permissible
in residential, commercial, and industrial.zones. Each
level defined a specific number of decibels at any point
"on the property line of the use." The distance used
to enforce the ordinance against the U.S. Labor Party
varied greatly: between ,4 1/2 feet to 57 feet. The Court
ruled that the enforcement of the ordinance did not meet the
tests established by Saia and Kovacs which require an
ordinance to provide fair warning of prohibited conduct
and enforcement standards to citizens. Instead, the investi-
gators measured volume from points where they observed
pedestrians or from where they expected pedestrians to be in
order to enforce the ordinance. "Because a violation
depends on the subjective opinion of the investigator, the
speaker has no protection against arbitrary enforcement of
the ordinance". Pomerleau at 412. An additional basis for
the Court's reversal of the defendant's convictions was that
the ordinance curtailed the amplification of expression
solely because the level of decibels, as measured within a
few feet of the speaker, exceeded the permissible sound
level. The Court stated that "the City has no legitimate
interest in banning amplified political messages which do
not exceed the sounds encountered daily in the most tranquil
community." Pomerleau at 413.
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Drafters of noise regulations to control amplification
devices, therefore, should attempt to insur e that the time and
place restrictions placed on the use of these devices are
reasonably related to legitimate public interests and that
unlimited discretion is not given to public officials.
Nuisance Provisions
Nuisance provisions and disturbing the peace provisions
may violate the First Amendment freedom of speech when the
subjective standards are so vague that they constitute a
prior restraint on free speech. United States Labor Party v.
Rochford, 416 F.Supp 204, (N.D. 111. 1975). A
, provision in the Chicago noise ordinance which prohibited
"any noise of any kind" from being made "upon a public
way or in such close proximity to a public way as to be
distinctly or loudly audible on such a public way" was
struck down by the Supreme Court on the basis of being
overbroad and constituting a "vague/ discriminatory, and
unreasonable interference with plaintiff's right to free
speech." Rochford at 207, 208. The Court ruled thab the
standard was too vague and subjective because enforcement
could depend on the enforcement officer1s hearing acuteness,
frame of mind, or opinion on the merits of the speech,
none of which are constitutionally valid criteria.
The Supreme Court of California affirmed the position
that nuisance provisions must be sufficiently clear and
precise in order to be.constitutionally valid in In re
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Brown, 510 P.2d 1017 (1973), when it invalidated §415 of the
California Penal Code which provided:
Every person who maliciously and
willfully disturbs the peace or
quiet of any neighborhood or person
by loud or unusual noise, or by
tumultuous or offensive conduct...
is guilty of a misdemeanor.
In re Brown at 1019
The Court outlined the following instances in which loud and
disruptive noise can be restricted: (1) when there is
clear and present danger to imminent violence and (2) when
the purported communication is used as a guise to disrupt
lawful endeavors. Because §415 could restrict constitu-
tionally protected speech as well as that within the categories
outlined above, the court invalidated the provision.
Section 415. cannot, consistent with First Amendment rights,
be" applied to prohibit all loud speech which disturbs others
even if it was intended to do so. Brown at 1022.
To avoid invalidation on the basis of vagueness con-
stituting a prior restraint on free speech, objective noise
standards which specifically provide decibel levels can be
used. Subjective regulations in the form of nuisance or
disturbing the peace provisions should be narrowly drawn to
reduce the chances of invalidation of the ordinance on
constitutional grounds.
Quiet Zones
Quiet zone, or noise sensitive zone, provisions in noise
ordinances which restrict noise sources near hospitals,
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schools, nursing homes and other special institutions may
raise the issue of freedom of speech. The U.S. Supreme
Court has considered the constitutionality of the Rockford,
111. noise ordinance in Grayned v. City of Rockford, 408
U.S. 104 {1972}f which provides in part:
No person, while on public or private
grounds adjacent to any building in
which a school or any class thereof
is in session, shall willfully make
or assist in the making of any noise
or diversion which disturbs or tends
to disturb the peace or good order
of such school session or class thereof.
Grayned at 108.
The Court held that the ordinance was not unconstitutionally
overbroad as unduly interfering with First Amendment rights
since it was limited to hours when school was in session and
was restricted to deliberate disruptions of normal school
activities. The Court cited three reasons for requiring
that time and place restrictions on speech be sufficiently
precise:
Vague laws may trap the innocent by
not providing fair warning. Second,
if arbitiary and discriminatory enforcement
is to be prevented, laws must provide
explicit standards for those who apply
them. Third, where a vague statute abut[s]
upon sensitive areas of basic First Amendment
freedoms, it operates to inhibit the exercise
of [those] freedoms,
Grayned at 108, 109.
The Court also emphasized the need to balance the right
of free speech with the right of the municipality to protect
sens itive activities such as school activities.
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Another example of an apparently acceptable quiet zone
provision is the following section of the San Francisco
Municipal Code:
It shall be unlawful for any person to
create any unnecessary, excessive or
offensive noise on any street, sidewalk
or public place adjacent to any school,
institution of learning or church while
any of the same is in use, or adjacent
to any hospital at any time, provided
conspicuous signs are displayed in such
streets, sidewalks, or public place
indicating the presence of a school,
institution of learning, church or
hospital.
SAN FRANCISCO MUNICIPAL CODE
ORD. No. 274-72, §2903.
CONCLUSION
Communities must consider several factors in drafting
and enforcing noise control ordinances to reduce conflicts
with the First Amendment freedom of speech. First, where
Constitutionally protected speech is restricted, regulations
must be reasonable in time, place and manner so as not to
unduly limit freedom of expression. Second, noise regulations
must be written clearly and carefully so that persons may
be adequately aware of prohibited conduct and that law
enforcement officials can objectively determine what conduct
constitutes a violation. Finally, the scope of the ordinance
must be drawn narrowly so as to prevent infringement upon
activities which are protected by the First Amendment.
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DRAFT
4/21/80
PROSECUTOR
STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Sound Level Meter/Radar: Evidence
ISSUE:	The introduction in court of sound level
meter readings as evidence of a violation of
a noise ordinance.
BRIEF ANSWER: The admissability of sound level meter
readings may follow the historical development
of the admissability of radar speedmeter
readings. At least one State court has
recently identified problems in this area.
DISCUSSION: During the 1940s, increasing auto speeds and
resulting traffic injuries led to increased concern for
enforcement of highway speed limits. This concern, along
• »
with the uncertainties of opinion testimony as to vehicle
speed, led to the development and widespread use of the
radar speedmeter.1 Similarly, the continual increase of
motor vehicle noise levels and the related increase of motor
vehicle noise control regulations has led to the development
2
and use of the sound level meter (an electronic instrument
calibrated to read sound levels directly in decibels) for
motor vehicle noise enforcement.
The radar [an abbreviated form for "radio detection
and ranging™] speedmeter is essentially a high frequency
radio transmitter and receiver. It transmits a radio beam
down the road, then picks up its reflected beam on a receiver.
2
[The sound-level meter] has a microphone that converts
a sound-pressure variation in the air into an electrical
signal, an amplifier powered by a battery to raise the signal
level enough to operate an indicator needle, and an attenuator
to adjust the signal level within the range of the meter°s
scale. Raymond D. Berendt, et al., Quieting: A Practical
Guide to Noise Control (Washington, D.C. 1976). At 3,
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The sound-level meter used in noise enforcement
is similar to the radar speedmeter used in speed limit
enforcement. Therefore, a look at the historical development
of radar speedmeter readings as admissible evidence in court
may prove helpful in predicting the development of case law
involving the use of sound-level meter readings as evidence.
INTRODUCTION OF RADAR IN COURT; Radar appeared in the
courtroom as a means of traffic speed-limit enforcement
when State v. Moffitt, 100 A.2d 778 (1953), was brought
before the Delaware Superior Court. In this case, two
highway patrolmen offered into evidence electronic radar
speedmeter readings to prove the speed of the defendant's
car. According to the meter reading, the defendant was
driving 63 miles per hour in a 50 mile-per-hour zone. The
defendant objected on two grounds to the State's attempt to
introduce the speedmeter reading into evidence; (1) the
speedmeter had never been recognized as being a reliable
instrument to record speed of vehicles on the highway, and
(2) even if admitted, the speedmeter reading should not be
held to constitute conclusive evidence of the defendant's
speed. Moffitt at 779.
*n Moffitt, the State produced an expert witness who
testified as to the construction, operation and purpose,
margin of'error if properly functioning, and the ways and
means of testing the accuracy of the speedmeter. Based on
this testimony, and on the fact that the meter was the same
radar unit used to determine the speed of the defendant's
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car, the radar speedmetsr evidence was admitted into evidence
subject to the jury's determination as to its accuracy in
measuring the speed of the defendant's car. The court gave
the following instructions to the jury:
The mere fact that the test in the
present case was made by a person not
skilled in electronics is not of
sufficient import to render the Speed
Meter inadmissible in evidence . ..
In the present case, however,
before you can return a verdict of	5
guilty under this contention - that is,
a finding by reason only of the Speed
Meter - you must be satisfied beyond a
reasonably [sic] doubt that the Speed
Meter used in the present case was
functioning properly, was properly
operated at the time, and was in fact
an accurate recorder of speed; further,
that its accuracy had been properly
tested within a reasonable time from
the date of its use, January 6th, 1953.
Moffitt at 779.
In a subsequent case, a court in Monroe County, New
York, stated that evidence resulting from a radar speedmeter
would not be admitted unless an expert witness also testified.
People v. Torpey, 128 N.Y.S.2d 864 (1953). The court stated:
No expert testimony was offered on
the part of the People to establish the
fact that the so-called radar equipment
is a mechanism that correctly and
accurately records the speed of passing
automobiles. The use of radar is com-
paratively new as a means of bringing
about the arrest of violators of ordinances
pertaining to the speed of automobiles
and until such time as the courts
recognize radar equipment as a method
of accurately measuring the speed of
automobiles in those cases in which the
People rely solely upon the speed
indicator of the radar equipment, it
will be necessary to establish by expert
testimony the accuracy of radar for the
purpose of measuring speed. Torpey at 866.
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Courts in later cases began to hold that expert testimony-
was not essential to an excessive-speed conviction based
upon a radar reading. The expert testimony of Dr. John M.
Kopper, a research scientist in the Radiation Laboratory at
Johns Hopkins University, was used in New Jersey v. Dantonio,
31, 105 A.2d 918,• aff'd, 115 A.2d 35 (1954). However, the
court in Dantonio stated that radar speedmeter readings were
admissible evidence upon a showing that the speedmeter was
properly set up and tested by the police officers, without
any need for the independent expert testimony of an electrical
engineer as to its general nature and trustworthiness. See
also People v. Sachs, 147 N.Y.S.2d 801 (1955) . Advice to
enforcers of noise control ordinances today should suggest
that this is still good law, as applied to radar speedmeter
readings.
~
In People v. Nasella, 155 N.Y.S.2d 463 (1956), a
motorist had been charged with driving 48 miles per hour in
a 40 mile-per-hour speed zone. The defendant was issued a
citation on the basis of a radar "clocking," but the defendant
attacked the basic accuracy of radar, contending that to
receive it as a true and proven instrument for determining
speed would establish its recording as conclusive proof,
thus precluding any possible defense to the speeding charge.
Dr. Kopper (see Dantonio above) was called as the
expert witness for the State in Nasella. Dr. Kopper's
testimony emphasized the effectiveness and the competence of
radar in clocking speed. The court upheld the State's
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charges against the defendant and stated that the People had
proved a prima facie case and a case beyond a reasonable
doubt. 155 N.Y.S. 2d at 473. Speaking for the court the
City Magistrate stated:
Despite the stringency of the rule,
it seems to me that it is timely to take
judicial notice of the dependable
character and operation of radar in
detecting and recording the speed of
motor vehicles, and thereby to relieve
the People of the burden of adducing
expert testimony. Nasella at 471
Today, most jurisdictions seem to have followed the
New York and New Jersey precedent and have taken judicial
notice that radar is a reliable device for measuring speed
of a moving vehicle. Thus, the courts no longer require
expert testimony in each case as to the nature, function, or
scientific principles underlying radar. See Dietz v. State,
75 N.W.2d 95 (1956) .
However, in Florida v. Aquilera, 	 Fla. Supp.	
(19 79); No. 711-1015 (County Court Traffic Divis ion, Dade
County, Florida, May 7, 1979) ; 25 Cr. L. 2189 (1979) , the
court decided that based on the radar equipment now being
utilized by the police in Florida and the inadequate training
programs for operators of the equipment, the reliability of
radar could not be .accepted beyond a reasonable doubt in
these cases. In other words the reliability of radar
equipment would no longer be assumed.
The court held that the equipment can and should be
improved to the extent that an accurate identification of
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the target vehicle can be readily made under any conditions.
Training methods for operators of the equipment should also
be improved by requiring an intensive course of study in
both the classroom and the field and by requiring a written
examination for proof of the operator's qualifications.
This' exam should be conducted by an independent, highly
skilled radar operator rather than by a manufacturing agent
or his students.
The cour t, however , d id not hold that the sc ientif ic
principles underlying the use of radar are faulty. It
merely held, that, before the reliability of radar will be
accepted beyond a reasonable doubt the manufacturers of the
equipment and the State and local governmental entities in
Florida should work together to improve both the equipment
and the competency and qualifications of the operators of
the radar equipment.
This case has, at best, limited precedential value. The
decision was based on radar speed measuring equipment and
operator training methods utilized by the State of Florida
and should therefore be restricted to Florida as requiring
an improvement in these areas in that State. Other State
courts should not use this decision as a precedent in their
decisions without first examining the equipment and operator
training methods beging utilized in their particular State.
Most courts still take judicial notice of the general
accuracy of radar speed measuring devices provided that it
is proved that the particular speed meter is accurate, that-
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the operator was qualified and that the device was being
properly operated in the case being tried. See, State v.
Reading, 389 A.2d 512, (1978).
ESTABLISHED REQUIREMENTS FOR ADMISSIBILITY OF RADAR: The
accuracy of each radar device remains a factor which must
be proven by the prosecution. Admissibility of radar
readings is conditioned on a prima facie showing that the
radar set was functioning properly at the time of the
alleged excessive speed reading. The prosecutor must
show that the radar was tested for accuracy, that the
testing device was properly calibrated or checked, and
that the test of the radar was made proximate to the
time and place of traffic observations. St. Louis v~
Boecker, 370 S.W.2d 731 (Mo. App. 1963).
There are three basic methods of testing radar equipment
accuracy which have been presented to the courts: (1)
internal tests, (2) tuning fork tests, and (3) "run through"
(road tests) using a vehicle with a calibrated speedometer.
Internal tests are usually conducted by electronic
experts with specialized equipment and procedures to test
the crystal detector, the cavity output, the frequency
calibration, and the indicator calibration. The State of
New York offered into evidence internal test results in
establishing its case against a speeding driver in People v.
Charles, 180 N.Y.S.2d 635 (1958). . However, the evidence in
this case was rejected. The Court in Charles held that the
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test of accuracy must take place at the time the equipment
is being used. This type of test is not used very frequently.
A second type of radar accuracy test which has been
presented in court is the tuning fork test. Tuning forks
are calibrated for most speeds from 15 mph to 100 mph in
multiples of 5 mph. If a 60 mph fork is struck and placed
in front of the radar transmitter receiver, the reading
should be 60 mph on the meter scale of the instrument being
tested.
The run-through test, a third type of accuracy test,
involves running a vehicle with a calibrated speedometer
through "the trap" (influence zone) and comparing the
speedometer reading with the reading on the radar meter. If
the readings are the same with a plus or minus 1-2 miles-per-
hour tolerance, the meter is deemed to be accurate. Nasella,
at 464.
Evidence of the tuning fork test and the run-through
test are usually offered together to prove speed violations.
The Appellate Division of the Circuit Court of
Connect icut has held that the testimony of a police off icer
that he tested the radar device in question with tuning
forks and that he also ran a test car through the zone of
influence, was sufficient foundation for admitting the radar
graph showing the defendant's excessive speed. State v.
Lenzen, 189 A.2d 405 (1962). In the same jurisdiction, the
court held that the evidence of the accuracy test was
sufficient where a test was made with 40 and 60 mph tuning
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forks but without the 80 mph tuning fork and without a run
through test. State v. Carta, 194 A,2d 544 (1962), In
another case, however, a Missouri Court reversed a conviction
where the police officer testified that a tuning fork test
was the only test made on the radar unit and the accuracy of
the tuning fork used was not presented. St. Louis v.
Boecker, supra. The court in Boecker, also noted that the
tuning fork test was not made at the site of the defendant's
alleged offense nor was a "run-through" test made with
another vehicle going at a known speed.
The Springfield, Missouri, Court of Appeals noted that
the speedometer of an automobile is only "approximate" in
its accuracy and that some control is necessary to insure
reliability. State v. Graham, 322 S.W.2d 188, 197 (Mo. Ct.
9
App. 1959). The State in this case did not establish that
the speedometer of the patrol car used in the run-through
had been checked. However, the conviction was upheld
because it was later shown that the highway patrolman had
confirmed the run-through check with a tuning fork test.
To the contrary, a Court in Montgomery County, New York,
held that a test of the radar equipment for accuracy by a
vehicle's speedometer which itself had not been tested or,
if tested, with no proof of such test, did not qualify as
evidence of the accuracy of radar equipment. However, this
court held that the run-through test was admissible evidence
but was not sufficient without additional evidence to
sustain a conviction. The court added that the additional
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evidence requirement could have been satisfied if a tuning
fork test had been done and if such results had been presented
to the court. People v. Johnson, 196 N.Y.S. 2d 227 (1960).
It has also been held that the testimony of "qualified
observers", would meet the additional proof requirement.
People v. Fletcher, 216 N.Y.S.2d 34 (1961). Yet, the court
in Wilson v. State, 328 S.W,2d 311 (Tex-. 1959), reversed a
conviction for speeding where a police officer testified
that the radar unit clocked excessive speed readings and
that he had driven a vehicle through the zone of influence
at 60 mph as a test. However, the police officer offered no
evidence as to the accuracy of the radar during the test.
The court in this case said that the burden of proof was on
the police to show the accuracy of the radar equipment at
the scene and this the police had failed to do.
NOTICE: A number of jurisdictions also require that readily
visible signs be posted when radar is in use. For example,
in State v. Wibelt, 223 N.E.2d. 834 (Ohio 1967), the court
refused to uphold a speeding conviction of a motorist
against whom radar evidence had been offered because the
roadway signs warning "Speed Meter Ahead" were not illuminated
or reflectorized and there was no proof that the speed limit
sign was reflectorized. See also Commonwealth v. Brose, 194
A2d. 322 (Pa. 1963) for a similar result.
According to Royals v. Commonwealth, 96 S.E.2d. 812
(Va. 1957), one legislative purpose of this requirement is
to give fair warning that the law is being enforced with
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radar devices and thus to help avoid the success of the
entrapment defense.
ADDITIONAL DEFENSES: Entrapment, unconstitutionality and
apprehension of the wrong person have been asserted as
defenses to speeding charges based upon radar speedmeter
readings.
One defense sometimes asserted against the use of a
radar speedmeter to catch speeding violators is that it
constitutes a "speed trap" and thus, is an entr apment. A
Washington State Court in State v. Ryan, 293 P.2d 399
(Wash. 1956) held that the use of radar did not constitute a
speed trap since it did not involve timing of a vehicle
while traveling through a measured section of highway. In a
similar case, a California district court has held that the
only type of "speed trap" prohibited by California statute
is one combining #four character istics: (1) a particular
section of the highway; (2) measured as to distance; (3)
with boundaries marked, designated or otherwise determined;
and (4) the speed of the vehicle determined by computing the
time it takes the vehicle to travel a known distance. Since
the facts in this case did not include these four characteris-
tics, the court concluded no "speed trap", in re Beamer, 283
P.2d 356 (Cal. 1955) .
The defense of unconstitutionality was asserted by the
defendant (driver) in Dooley v. Commonwealth, 92 S.E.2d 348
(Va. 1956) . The statute under which the defendant was
prosecuted provided that the speed of motor vehicles may
be checked by the use of radio microwaves and other electrical
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devices {including radar). The defendant contended that
this statute as enforced violated his rights under the
Due Process Clause of the Fourteenth Amendment. The Virginia
Supreme Court of Appeals accepted the radar results as
prima facie evidence of the speed of defendant's motor
vehicle and concluded that the statute did not contravene
the Due Process Clause of the Fourteenth Amendment as
follows:
Defendant's contention that the
Act contravenes the due process clause
of the Constitution is, ... without merit.
The general rule is that the test of the
constitutionality of statutes making proof
of a certain fact prima facie or presump-
tive evidence of another fact is whether
there is a natural and rational evidentiary
relation between the fact proven and the
fact presumed. Where such evidentiary
relation exists and where the presumption
is found to be both reasonable and
rebuttable it does not violate the
' due process amendment..,.
That there is a natural and rational
evidentiary relation existing between
the results of a speed checked by
radiomicrowaves and the speed of the
motor vehicle checked by them can hardly
be denied. For many years the public
has become generally aware of the
widespread use of radiomicro waves or
other electrical devices in detecting
the speed of motor vehicles or other
moving objects; and while the intricacies
of such devices may not be fully under-
stood their general accuracy and effective-
ness are not seriously questioned.
State v. Dantonio, 115 A,2d 35, 39, 40.
Neither does the statute, as
contended by the defendant, shift the •
burden of proof. It merely creates a
rule of evidence and does not determine
the guilt of the accused. When the
radiomicrowave check of the speed of a
motor vehicle is proved to be in excess
of the legal rate of speed the burden of
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going forward with the evidence shifts
to the defendant. This neither shifts
the burden of ultimate proof nor does it
deprive the defendant of the presumption
of innocence. Barton v. Camden, 137 S.E.
465.. .
For the reasons stated, we hold
that §46-215.2, Acts of Assembly 1954,
Chapter 313, page 385, does not violate
the Fourteenth Amendment to the Constitution
of the United States, and that it is in
all respects a valid enactment. Dooley at
349-350.
A third defense to a speeding charge is3 that the wrong
car was stopped. This argument might be used effectively
where traffic was heavy at the time and more than one
vehicle was' in the "zone of influence" of the radar at the
time the defendant's vehicle was being clocked. One
potentially effective method of rebutting this argument is
the testimony of a well-trained, capable law enforcement
officer. 11 Am. Jur. Proof of Facts §23 (Supp. 1977).
The defendant in Commonwealth v. Bartley, 191 A.2d 673 (Pa.
1963) contended that since his car was in a line of five
cars each 200 to 300 feet apart, the officer could not be
positive which vehicle caused the radar to clock the
violation. A police officer testified that he knew the
exact spot where the radar beam first detected the object
and that he watched the defendant's car approach that spot
and enter the zone of influence at which time the radar unit
clocked a speeding violation. The court held that the
police officer's testimony was sufficient to uphold the
charge.
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CONCLUSION; With the increasing use of sound level meters
for the enforcement of noise standards, the question of the
admissibility of mechanical meter readings as evidence in
court may arise. The procedure for establishing sound level
meter readings as admissible evidence may be analogized to
the procedure used for radar. Therefore, a number of
developments should be expected. Expert testimony as to the
reliability of the sound level meter may be an initial
requirement. In light of the recent Florida decision the
reliability of such instruments is always a subject of
proof, and therefore may not automatically be expected to be
a proper subject for judicial notice. The admissibility of
sound level meter readings may be conditioned on a prima
facie showing that the meter was properly calibrated and
functioning properly at the time of the alleged sound level#
reading. The prosecution should be prepared to rebut the
various defense arguments, including assertions of mistake,
entrapment and unconstitutionality. Modern technology
appears to remain as an available aid to noise enforcement,
but the burden of proof must still be met.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Fifth Amendment and Self Incrimination -
ISSUE:
Involuntary Noise Test
Does an enforcement officer's order to an
operator to rev an engine as part of a
noise test constitute a denial of the
operator's Fifth Amendment privilege
against self-incrimination?
BRIEF ANSWER:
No. The Supreme Court has interpreted
the Fifth Amendment as protecting only
"testimonial" or "communicative" evidence,
and it is unlikely that noise test evidence
would be considered "testimonial" or
"communicative."
DISCUSSION: The U.S. Constitution provides in part that
"... no person ... shall be compelled in any criminal case
to be a witness against himself...." U.S. CONST, amend. X.
The Supreme Court held the Fifth Amendment privilege to be
applicable to the States through the Fourteenth Amendment.
Malloy v. Hogan, 378 U.S. 1 (1964).
An operational definition of being "compelled... to
be a witness against oneself" has evolved from court decisions,
For example, the Supreme Court has held that it is not
a denial of the privilege against self-incrimination to
compel a defendant to put on a garment. Holt v. United
States, 218 U.S. 245 (1910). More recently, in Schmerber v.
California, 384 U.S. 757 (1966), the Supreme Court rejected
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the defendant's claim that the taking, over objection, of a
blood sample by a physician at police direction was a
violation of the Fifth Araendement's prohibition of compulsory
self-incr imination. The Court noted that "both federal and
state courts have usually held that it [the privilege]
offers no protection against compulsion to submit to finger-
printing, photographing, or measurements, to write or speak
for identification, to appear in court, to stand, to assume
a stance, to walk, or to make a particular gesture."
Schmerber at 764. See also Adams v. State, 485 S.W. 2d 746
(Ark. 1972).
From-3 these cases, it is apparent that compelled activities
which require active participation by the defendant will
not necessarily be protected by the Fifth Amendment. The
test for distinguishing between the compulsions which will
be deemed to evoke the Fifth Amendment privilege and those
which will not appears in Schmerber at 761s "... the privilege
protects an accused only from being compelled to testify
against himself, or otherwise provide the State with evidence
of a testimonial or communicative nature...." The Court
elaborated that while the blood test evidence was clearly
"an incriminating product of compulsion," it was not in-
admissible on privilege grounds since it "was neither
petitioner's testimony nor evidence relating to some com-
municative act or writing by the petitioner...." Schmerber
at 765.
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CONCLUSION: Case law supports a contention that the
constitutional protection against compelled self incrimina-
tion does not extend to a request to operate a piece of
equipment for purposes of testing it against a specific
statutory standard. A motorist might be required to "rev"
an engine for a noise test and have no recourse under a
claim of compelled self incrimination. The cr itical factor
in providing testimony against oneself is whther the evidence
sought is communicative or testimonial.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT; Prima Facie Evidence
ISSUE:	What is the legal significance of
prima facie evidence?
BRIEF ANSWER: Prima facie evidence is evidence
which if not rebutted is sufficient
to establish a fact.
DISCUSSION; A noise ordinance may state that a measure-
ment of noise exceeding specified noise levels shall be
deemed to be prima facie evidence of a violation of the
ordinance.. For example Ashland, Ohio has an ordinance
which provides;
The creation.of noise by the squealing
of tires, or the creation of tire marks
on the roadway, shall be prima facie
evidence of a violation of this section.
ASHLAND, OHIO, CODIFIED ORDINANCES
§333.06 (1969) .
In an early Supreme Court opinion, Justice Story found
that prima facie evidence of a fact "is such as, in judg-
ment of law, is sufficient to establish the fact? and,
if not rebutted remains sufficient for the purpose." Kelly
v. Jackson, 31 U.S. 631 (1832). Simila•• definitions have
been employed in numerous, more recent lower court decisions
One representative description is that prima facie evidence
... [e]vidence which, if unexplained
or uncontradicted, is sufficient to
sustain a judgment in favor of
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the issue which it supports, but
which may be contradicted by other
evidence.... State v. Hareroza,
515 P.2d 1217, 1222 (Kan. 1973).
While prima facie evidence is thus consistently defined
as sufficient to support a judgment on a single issue,
certain usage of the term raises the question of whether a
prima facie case, if unrebutted, requires a judgment in
favor of the person who introduced the evidence. As Wigmore
points out, the term prima facie is sometimes given the
meaning that the proponent of the evidence, "has entitled
himself to a ruling that the opponent should fail if he does
nothing more in the way of producing evidence." 9 J.
WIGMORE, EVIDENCE §2494, at 293 {3d ed. 1940). The more
prevalent usage, according to Wigmore at 293-94, is that:
[W]her*e the proponent, having the
first duty of producing some evidence
in order to pass the judge to the
jury, has fulfilled that duty, satisfied
the judge, and may properly claim that
the jury be allowed to consider his
case.
Wigmore elaborates that the significance of a prima
facie case is that "the proponent is no longer liable to a
non-suit or to the direction of the verdict for the opponent.
The Supreme Court of North Carolina has expressed this
latter view in Clott v. Greyhound Lines, Incorporated, 180
S .E . 2d 102 (N.C. 1971) .
CONCLUSION: Prima facie evidence of a noise violation
is evidence which may be sufficient to establish a noise
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violation exists. The drafter of noise ordinances may want
to consider wording such ordinances to include specific
reference to mechanical measuring devices and the permissible
limits beyond which violations are said to exist. In this
way the drafter can further assure that a prima facie case
is established when the required facts are shown to exist.
However, under the more prevalent view, even if a prima
facie case is unrebutted, the trier of fact will still be
free to decide if there has been a violation.
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STATE AND LOCAL NOISE ENFORCEMENT LEGAL MEMORANDA
Noise and Radiation Enforcement Division
U.S. Environmental Protection Agency
Washington, D.C.
SUBJECT: Sovereign Immunity
ISSUE;	When may sovereign immunity bar a successful
prosecution of a State or local government
agency for violation of a State or local
control statute or ordinance?
BRIEF ANSWER: Under the common-law doctrine of sovereign
immunity, a State agency may not be prosecuted for violations
of its own statutes or local regulations unless it has
specifically waived its immunity through Constitutional or
statutory provisions. Because the common-law doctrine of
immunity exists in varying degrees in different j ur is_dict ions,
and because State constitutions, statutes and local ordinances may
provide additional bases of sovereign immunity, drafters and
enforcers of noise regulations must acquaint themselves with
the extent to which sovereign immunity has been extended or
waived in their own States.
Local governmental immunity flows from the State, thus .
the State may 1imit or extend the immmunity of its political
subdivisions. In determining whether a local government may
be prosecuted for violation of its own or another local
noise ordinance, courts have used different tests which will
be discussed following. Among them are: strict sovereign
immunity, State agency theory, superior sovereign test,
governmental-proprietary function and, balancing.
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Although the extent of local government immunity is ultimately
a judicial determination, drafters of noise control regulations
may influence the judicial determination by including
provisions which explicitly include or exclude local govern-
ments within the scope of the regulations. The specific
provisions relating to waiver, or lack thereof, can then be
used judicially to -help determine the intent of the ordinance.
As is the case with any new law, the prosecutor of local
noise ordinances will be aided by the specificity with which
any waiver of governmental immunity is designated.
DISCUSSION:
Hypothetical Situations where the Defense of Sovereign
immunity may be Raised
Because governments and their agencies are often major
sources of noise, drafters and enforcers of State and local
noise statutes and ordinances should consider the potential
application of the defense of sovereign immunity.
Under fact situation like the following, sovereign
immunity may become a legal issue in a noise enforcement
action?
(a) State agency in violation of State noise statute,
(e.g., a State sewage treatment plant violates
the maximum permissible decibel level prescribed
by the State Noise Enforcement Agency);
{b} State agency in violation of local regulation,
(e.g., State construction equipment violates a
municipal ordinance restricting construction
project noise);
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(c)	Local government in violation of State noise
regulation, (e.g., city-owned garbage trucks exceed
permissible in-use emission levels adopted by a
State);
(d)	Local agency in violation of local noise regulation
in the same jurisdiction, (e.g., city-owned
trucks violate municipal noise ordinance);
(e)	Local government in violation of local noise
regulation in a different jurisdiction, ('e.g.,
county-owned air conditioner violates a city noise
ordinance) .
Bases of Sovereign Inunmunity
Under the common-law doctrine of sovereign immunity,
States, and, to a lesser degree, local governments, are
immune from suits based upon claims against them. The
immunity of the sovereign is based on the historic principle
that no court has the power to command the King ("the king
can do no wrong"). Ulen & Co. v. Bank Gospodarstwa Krajowego,
24 N.Y.3.2d 201 (Sup. Ct. App. Div. 1940) . It is an established
principle of jurisprudence resting on reasons of public
policy. Because of the inconvenience and danger which would
flow from any different rule the "sovereign" cannot be sued
in its own courts or any other without its consent. The
modern trend, however, is toward the relaxation of the
doctrine of governmental immunity. For example, in all
States the doctrine of strict sovereign immunity has been
'relaxed sufficiently to allow some actions to be brought
against the government. However, often such actions are
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limited to claims based upon contract or tort. Because the
common-law doctrine survives in some jurisdictions, noise
control ordinance drafters should consider to what extent
the government is subject to noise regulations. See 77 Am,
Jur. United States §112 (1975).
In addition to the common law, State Constitutional
provisions provide an additional source of sovereign immunity.
For example, the Pennsylvania Constitution states;
Suits may be brought against the Common-
• wealth in such manner, in such courts
and in such cases as the Legislature
may direct. Pa. CONST, art., §11
In Sweigard v. Department of Transportation, 309 h.2d 374,
375 (Pa. 1973), the Supreme Court of Pennsylvania interpreted
this constitutional provision as establishing, rather than
waiving, sovereign immunity for the State of Pennsylvania
and its State agencies.
State statutes may also provide an additional source of
sovereign immunity. For example, the Michigan general
statutes provide that the State, the State Highway Department
and the Chief Officer of the State Highway Department shall
be immune from liability with respect to injury resulting
from ice on public highways. See, Mich. Pub. Acts 1943, No.
237; 1945, No. 87; 1960, No. 33. In interpreting these
general statutes, the Supreme Court of Michigan stated, "The
doctrine of sovereign immunity in Michigan is not the
archaic, obsolete, King can do no wrong edition of 1066...but
is a creature of the Legislature." McDowell v. Mackie, 112
N.W.2d 491, 492 (Mich. 1961).
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Sovereign immunity may also be established through
local ordinance provisions. Such provisions may state that
the State or local government is exempt from prosecution for
violation of the ordinance. For example, the Grand Rapids,
Michigan noise ordinance provides;
"Provisions of this subsection shall
not apply when the vehicle or motor is
being used by a public utility, municipal
department, commission or other govern-
mental agency to provide essential
services hereinbefore defined."
GRAND RAPIDS, MICH. ORD. Ch. 151, Art 6{b)
Scope of Sovereign Immunity: State Compliance with State
Regulations
A State may waive its sovereign immunity through
express statutory or Constitutional provisions. 81 C.J.S.
State §229 (1-977). Waiver provisions have been strictly
construed by courts, however, and governmental immunity
remains intact outside the scope of the waiver provisions.
Nevada v. Webster, 504 P.2d 13165, 1320 (1972). (Nevada
statute limiting tort recovery to $2,500 strictly construed
to mean ceiling on each claim rather than aggregation of
claims.) Some courts have implied a waiver from general
statutory language, but the majority of courts require
explicit language to construe a valid waiver. Cooper
S.S. Co. v. Michigan 194 F.2d 465, 467 (1952). {Michigan
Court of Claims Act waiving immunity in Federal Court does
not extend to maritime tort suits).
Drafters of noise statutes can include a provision
which waives the government's immunity from citations for
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noise violations. These provisions, however, must expressly
delineate the extent of waiver intended by the draftar. For
example, the Hew Jersey Noise Control Act of 1971 includes t
State within the class of persons subject to its provisons.
The definition of "person" in that statute states:
"Person" means any corporation,, - company
association, society, firm, partnership,
and joint stock company as well as'
individuals, and shall also include the
State and all Its political subdivisions
and any agencies or instrumentalities
thereof. N.J.3.A. 13: IG-l(e) (1971)
State Compliance with Local Regulations
State waivers may not necessarily constitute sufficient
waiver of State immunity from enforcement of local noise
ordinances. If the local regulations are identical to the
State noise provisions, a court may either rule that the
State waiver extends to all noise regulations, both State
and local, or rule that the State did not intend to subject
itself to prosecution by each locality for noise violations.
If, however, a local ordinance contains*restrictions more
stringent than the State noise statute, a court may more
likely find that the State has not consented to waive its
immunity from local regulations. Enforcers of local noise
regulations should review all relevant State Constitutional
and statutory material to search for an effective waiver of
State immunity. However, the validity and extent of these
waivers are ultimately subject to judicial determination.
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Local Compliance with State Regulations
A local governmental body is subject to enforcement
of State statutes. 81 C.J.S. States §229 et sea. {1971) .
Because local governments are political subdivisions of the
State, all local sovereign immunity flows from the State.
However, a State may explicitly waive local government
immunity by including it within the scope of State provisions,
Such waivers may be made by including political subdivisions
within the definition of persons subject to enforcement of
the statute. For example, the Maryland noise control
statute provides:
"Person" means any individual, group or
individuals, firms, partnership, association,
private or municipal corporation, or
political subdivision of the State...
MD. ANN. CODE. art. 43, §828 (1974)
A local government may specifically state that its
agencies shall comply with State noise regulations. For
example, the Anchorage, Alaska noise ordinance provides:
All municipal departments and agencies
shall comply with federal and state laws
and regulations and the provisions and
intent of this chapter respecting the
control and abatement of noise to the
same extent that any person is subject
of such laws and regulations.
ANCHORAGE, ALASKA ORD. Ch. 15.70.040(C) (1978)
However, because all local governmental immunity is derived
from the State, these provisions are more declarations of
local compliance rather than self-executing waivers of
sovereign immunity.
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Local Compliance with Local Regulation (same jurisdiction)
A local government is more amenable to suit by its own
departments and citizens than is the State. See, 62 C.J.S.
However, there is no mechanical formula used by courts in
determining the extent to which a municipality must follow
its own ordinances and regulations. See, Sales, The Applic-
ability of Zoning Ordinances To Governmental Land Use, 39
Texas L. Rev. 316 (1961). This study of cases dealing with
the applicablity of zoning ordinances to municipal government
land uses reveals trends which may be useful in predicting
how courts will determine whether local governments are
subject to their own noise regulations.
Some jurisdictions apply strict sovereign immunity to
the local government which has enacted the ordinance. See,
C.J. Kuback Co. v. McGuire, 199 Cal. 215, 248 Pac. 676
(192*6) . This immunity is absolute unless the State has
expressly required compliance by the local government
through its enabling act governing the regulation. See, 39
Tex. L. Rev. at 317 (1961) . However, this position is
waning expecially in 1ight of the general trend toward
dissolution of immunity at both the Federal and State level.
See, 81A C.J.S. States §303. (1977).
In zoning ordinance cases, courts have widely used the
"governmental-proprietary function" approach. See, Govern-
mental Immunity From Local Zoning Ordinances, 84 Harv.
L. Rev. 869 (1971). Under this test the activity performed
by the government which violates the ordinance or regulation
is classified either as governmental, (i.e., when the
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municipality is acting pursuant to and in furtherance of
obligations imposed by legislative mandate) or proprietary
{i.e., if the act is permissible in nature and the municipality
has the power but not the duty to perform the function).
See, Rhodes v. City of Ashville, 52 S.E.2d 371, 375 (1949).
If the activity is classified as governmental, there is no
mandatory compliance with the ordinance. Id. at 375. If the
function is classified as proprietary, the municipality must
comply with the ordinance. Id. at 375. Although the
classifications are reasonably distinct, no satisfactory
basis for determining whether an activity falls within one
class or the other has developed: the same activity has
been classified as governmental in one jurisdiction and
proprietary in another. 84 Harv. L. Rev. 869 at 872. For
example, New York courts have classified sewage disposal as
governmental while Alabama courts have classified it as proprietary.
Garbage disposal facilities and water supply facilities have
been classified as both governmental and proprietary in
different jurisdictions. Further, the same function may be
classified differently depending upon the type of action
involved. For example, an Alabama court has classified
sewage treatment facilities as proprietary in zoning actions
yet a governmental function in tort actions.1
Compare Westchester v. Village of Mamaroneck, 255
N.Y.S.2d 290 (1964) aff'd 16 N.Y.S.2d 940 (sewage treatment:
governmental) with Jefferson County v. City of Birmingham,
55 So.2d 196, (1951) (sewage treatment: proprietary).
Compare Pruett v. Dayton, 168 A.2d 543 (1961) (garbage:
governmental) with O'Brien v. Township of Greenburgh, 268
N.Y.S. 173 (1933) aff'd 195 N.E. 210 (garbage: proprietary)
and McKinnev v. City of High Point, 73 S.E.2d 440 (1953)
(water supply: governmental) with Water Works Bd. v.
Stephens, 78 So.2d 267 (1955) (water: proprietary). See,
also, Jefferson County v. City of Birmingham, 55 So.2d 196,
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Drafters of noise control regulations may expressly
state that the government is subject to the noise control
provisions to help avoid a judicial determination that
governmental immunity exists by virtue of the governmental-
propriety function test. Following are examples of pro-
visions of noise ordinances which clarify the scope of the
immunity of the local government from its own noise provisions:
The provisions of this ordinance shall
not apply to governmental agencies when
engaged in activities authorized by law;
or emergency work performed for the
safety, welfare and public health of the
citizens.
CITY OF KALAMAZOO, MICH. ORD. No. 992
Person: Any individual, association,
partnership or corporation and includes any
officer, employee, department, agency or
instrumentality of a State or any political
subdivision of a State,
FOND LU DAC, WIS. ORD. §17.03 (1976)
Local Compliance with Local Regulation (different jurisdiction)
A complex case of sovereign immunity arises when there
is conflict between two political subdivisions of the State,
e.g., a municipality and a county or a municipality and a
school district. Courts have used various approaches
to determine the extent to which one locality is subject
to ordinances of another locality. See generally, Sales,
The Applicability of Zoning Ordinances to Governmental
Land Use, 39 Texas L. Rev. 316 {1961), Governmental Immunity
From Local Zoning Ordinances, 84 Harv. L. Rev. 869 (1971).
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The governmental-proprietary function approach is
most prevalent among jurisdictions today. See, 39 Texas
L. Rev, at 320. The same test used by some courts to
determine whether a local government is immune from prosecution
for violations of its own ordinances. However, j ur isdictions
differ concerning the classification as either governmental
or proprietary functions frequently performed by local
government agencies.
The "State agency" approach used by some courts holds
that a county or other political subdivision is not subject
to municipal ordinances because it is -acting as an arm of
the State and is thus protected by the State's sovereign
immunity. See, Hall v. City of Taft, 302 P.2d 574, 576 (Cal.
1956). Concluding that a school district was not subject to
a municipal zoning ordinance, .the California Supreme Court
stated, "when it [school district] engages in such sovereign
activities as construction and maintenance, it is not
subject to local regulation unless the Constitution says it
is or the Legislature has consented to such regulations."
Id. at 379. One criticism of this approach is that the
municipality, in enacting and enforcing a local noise
provision, is also engaged in.local performance of a State
function pursuant to State enabling legis"ation. See
generally, 39 Texas L. Rev. 316 (1961). Strict application
of this test would result in immunity of political subdivisions
from local noise ordinances.
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The "superior sovereign" approach compares the respective
levels of the local jurisdictions or agencies which are
violating or attempting to enforce an ordinance. In ruling
that a county was not subject to a municipal zoning regulation,
a New Jersey court stated:
Where the immunity from the local zoning
regulations is claimed by an agency
or authority which occupies a superior
position in the governmental hierarchy,
the presumption is that such immunity
was intended in the absence of express
statutory language to the contrary.
However, the higher authority should
make attempts to comply with the
local authority. Tim v. City of Long
Branch, 53 A.2d 164, 165 (N.J. 1947).
Under this approach, political subdivisions of the State are -
immune from noise ordinances enacted by "lower-level"
governmental bodies.
The "balancing approach", adopted by some courts,
compares the activity causing the violation with the function
of enforcing the local ordinance. See Comment, The Inappli-
cability of Municipal Zoning Ordinances To Governmental Land
—t	i	H	H	ii	H	M	i	i	i
Uses, 19 Syracuse L. Rev. 698 (1968). Factors considered in these
balancing tests are; specific statutory authority granted to
the violating governmental body to perform the function, the
scope and specificity of this statutory authority, and
whether a direct conflict exists between the functions. For
example, the New York Supreme Court has held that if there
is specific statutory authority for a governmental unit to
perform a function, this supercedes a town or local ordinance.
Bishoff v. Town of East Hampton, 263 N.Y.S.2d 61, 63 (S.Ct. 1965).
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The New Jersey Supreme Court has applied a "reasonableness
of political unit's actions" standard in questioning whether
the political unit's action was arbitrary, and then comparing
the utility of enforcing the local ordinance. Township of
Washington v. Village of Ridgewood, 141 A.2d 308, 311 (N.J.
19 58 ) . Courts which use the balancing approach often
incorporate the governmental-proprietary function. State
agency and superior -.sovereign tests as factors in weighing
the utility of the violating function with the enforcement
of the ordinance.' .
An additional factor often considered in the context of
balancing is whether the violating activity constitutes a
common-law nuisance. For example, in ruling that the
location of a county jail was not bound by municipal zoning
requirements, a Wisconsin court stated, "unless a different
intention is clearly manifested, States, municipalities, the
Federal Government and other political subdivisions are not
bound to requirements of a local ordinance, especially where
the proposed uses are not within the nuisance classification."
Green County v. City of Monroe, 87 N.W.2d 827, 828 (Wis.
1958). Similarly, an Alabama Court has held that although a
municipal ordinance alone was insufficient to-prevent a
county from building a structure, the ordinance may be used
as evidence to enjoin construction in a nuisance suit.
Lauderdale County Bd. of Ed. v. Alexander, 110 So.2d 911,
912 (Ala. 1959).
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Although provisions within the codes of individual
localities, subjecting other local governmental units to the
ordinance are not dispositive in subjecting other governmental
units to noise control provisions, where there has been no
waiver of sovereign immunity by the State or the violating
governmental body, or where the court uses a strict superior
sovereign test, these provisions may have persuasive values
for the locality enacting the noise ordinance. Such provi-
sions may effect the court's classification of the violating
functions as governmental or proprietary as well as the
balancing of the violating activity with the ordinance
enforcement, especially in courts which mandate compliance
with ordinances when the activity constitutes a nuisance.
CONCLUSION
Because State agencies are protected against prosecution
for violation of noise regulations unless the State has
explicitly waived its immunity, drafters and enforcers of
State and local noise regulations should view all relevant
State Constitutional and statutory provisions to determine
if a valid waiver of State sovereign immunity exists.
Local government immunity from noise provisions
which it has enacted differs in individual jurisdictions.
Because government compliance with noise regulations
may depend upon a court classification of a given activity
as governmental or proprietary, a test for which no clear
guidelines have been established, the ordinance draftsman
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should expressly state whether government facilities
and functions are immune from the noise provisions or are
subject to enforcement. In this way the intent of the
locality to include or exclude the government from the
ordinance provisions is clear.
The ability of one political subdivision of a state to
subject another political subdivision of a state to local
laws is ultimately subject to judicial determination.
Although provisions in local ordinances which include other
governmental units within their scope are not conclusive in
insuring enforcement, such provisions may assist the
court in balancing the function of the activity causing the
violation, with the function of enforcing the ordinance, and
thus serve as persuasive value to allow the court to uphold
a local noise ordinance.
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For Section III A, PROSECUTOR.
CASKS CITED AND OTHER SOURCES
St. Louis v. Boecker, 370 3. W.2d 731 (Mo. App. 1963).
Commonwealth v. Hartley, 411 Pa. 286, 191 A,2d 673 (19-53).
Commonwealth .Brose, 412 Pa, 276, 194 A.2d 322 (1963).
Dooley v. Cocwn-^alth, 198 Va. 32, 9? S.E. 2d 348 (1956).
Dietz v. State ? 162 Neb. 80, 75 N.W.95 (IS 5 6} .
People Vr Charles, 15 Misc. 2d 401, 180 N.Y.S.2d 635 (1958).
, vv.fi-f^* 216 N.Y.S. 2d 34 (1961/.
Faopl'i ;. " hr.;_ou, 23 Misc. 2d 11, 196 N.Y.S.2d 227 (1960).
People v. Mase3'-a~, 3 Misc. 2d 418, 155 N.Y.S.2d 462 (19Do) .
PF.cple v« Sachs, 1 Misc. ?.d* .148, 147 N.Y.S.2d 881 (1955).
People v. Torpey, 204 Misc. 1023, 128 N.Y.S.2d 864 (1953).
People v. Wylr'.e,'' 13 Misc. 2d 310, 179 N. J. S . 2d 90 (1958).
F ^-als v. Commonwealth, 198 Va. 876, 96 S.E.2d 813 ( 1957)
¦State- v. Carta, 194 A, 2d 544 (Conn. 1962).
S'cate v. Dantonia, 18 N.J. 570, 105 A.2d 918 (1954).
State v. Graham, 322 S.W.2d 197 -(Mo. Ct. App.1959) .
Stats v. Lenzen, 24 Conn. Supp. 20ft, 189 A.2d 409 (1962).
-i: c:.<* v. Moffitt, 48 Del. 210, 100 A.3d 778 (1953).
y. Ryan., 48 Wash. 304,. 293 P.2d 399 (1956).
State v. Wibeit, 9 Ohio Misc. 15,8 (1967).
Wilson v. State, 328 S.W.2d,311 (Tex. 1959).
r catur v. Gould, 185 Iowa 203,, 170 N.Y. 449 (1919).
iJ. Am. Jur. Proof of Facts (Supp. 1976)
L-.-srendt, Raymond D. , et al, Quieting: A Practical Guide to
'.foise Control. U.S. Department of Commerce, Washington, D.C
1W7T. At" 3.
McCarter, William K..-, "Legal Aspects of Police Radar," 16 Clev.-
AaCcL.Rev, 455 (1967),
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