THOMPSON, JUDGE.
This appeal requires that we interpret a Lexington-Fayette Urban County Government (L-FUCG) noise ordinance. We conclude that the ordinance does not apply to the facts presented and reverse.
On Friday, August 7, 2009, at 11:34 p.m., Officer Dunn, a Lexington police officer, heard music playing at Club 9, a nightclub owned by Will McGinnis. The club is located at 934 Winchester Road, a zoned business area and populated by six nightclubs within a 200-foot area. Officer Dunn testified at trial that she heard music emanating from the club less than twenty yards away. When she arrived at the club, the doors were open and music was projecting from loud speakers within the club.
McGinnis was cited for violation of L-FUCG ordinance 14-72(6)(a) that prohibits "[u]sing, operating, or permitting the operation of any loudspeaker, public address system, mobile sound vehicle or similar device amplifying sound therefrom on a public right-of-way or public space for any commercial purpose." Pro se, McGinnis challenged the application of the ordinance arguing that the ordinance prohibits only the use of a sound amplifying device on a public right-of-way or public space for a commercial purpose and does not apply to noise emanating from a privately owned nightclub. He did not challenge the constitutionality of the ordinance or give notice to the Attorney General that a constitutional issue was presented.
After a bench trial, McGinnis was found guilty of violating the ordinance and a monetary fine was imposed. McGinnis filed a timely pro se appeal to the Fayette Circuit Court which affirmed. Again acting pro se, McGinnis filed a petition for discretionary review in this Court and, after we granted review, filed a brief presenting the identical argument as he did to the trial court. He did not present a constitutional challenge and, consequently, the Attorney General was not notified of a constitutional attack on the ordinance.
Upon review of the briefs submitted, this Court ordered that the parties submit supplemental briefs addressing the constitutional implications of the ordinance. Although McGinnis is a pro se litigant, we held oral argument.
This Court has had no opportunity to review an ordinance similar to that presented and, because the penalties for violating a noise ordinance are minor, litigants rarely pursue appeals and even fewer file for discretionary review. Nevertheless, noise ordinances have been subjected to review by the United States Supreme Court and state courts. Even a cursory review of the case law demonstrates the limitations on the police power of local governments to control the speech and conduct of its citizens by the enactment of noise ordinances.
Noise ordinances that restrict First Amendment rights are subject to constitutional scrutiny. In Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the United States Supreme Court held that the First Amendment applies not only to speech but other forms of expression, including amplified music. However, the Court added that First Amendment rights are not absolute and that "the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Id. at 791, 109 S.Ct. at 2753 (internal quotations and citations omitted).
Although our appellate courts have not had the opportunity to address an ordinance similar to the L-FUCG ordinance, the constitutional limitations on the police power have been expressed in cases involving First Amendment challenges. It is well-settled that a "city's interest in attempting to preserve or improve the quality of urban life is one which must be accorded high respect." Hendricks v. Commonwealth, 865 S.W.2d 332, 338 (Ky. 1993). However, consistent with the United States Supreme Court, in Blue Movies, Inc. v. Louisville/Jefferson County Metro Government, 317 S.W.3d 23 (Ky. 2010), our Supreme Court explained the limitations on the government's attempt to restrict First Amendment rights:
Id. at 32 (quoting DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 412 (6th Cir. 1997)).
Two related constitutional doctrines frequently emerge when a noise ordinance is constitutionally tested: Overbreadth and void-for-vagueness. In Wilfong v. Commonwealth, 175 S.W.3d 84, 95 (Ky.App. 2004), both doctrines were explained:
Although yet to be addressed in this Commonwealth, consistent with constitutional doctrine, when considering ordinances that broadly prohibit amplified sound, courts have focused on the specificity of the time, place, and volume levels restricted. In Tanner v. City of Virginia Beach, 277 Va. 432, 674 S.E.2d 848 (2009), the Court held that a noise ordinance that prohibited any "`unreasonably loud, disturbing and unnecessary noise,' noise of `such character, intensity and duration as to be detrimental to the life or health of persons of reasonable sensitivity,' or noise that `disturb[s] or annoy[s] the quiet, comfort or repose of reasonable persons,"' was unconstitutionally vague because it failed to sufficiently describe the noise prohibited. The Court reasoned:
Id. at 440-441, 674 S.E.2d at 853.
Likewise, in Daley v. City of Sarasota, 752 So.2d 124 (Fla. 2d DCA 2000), the Court held that an ordinance prohibiting all amplified sound emanating from an incompletely enclosed structure within a commercial business violated the First Amendment when applied during certain hours of each day regardless of the volume of the sound. Its reasoning was premised on the doctrine of overbreadth and the potential to suppress First Amendment rights. Id. at 126-127.
In Duffey v. City of Mobile, 709 So.2d 77 (Ala.Cr.App. 1977), an ordinance prohibited all amplified sound plainly audible at a distance greater than fifty feet anywhere in the city and at any time of the day or night. The Court held that "[t]his sweeping restriction of sound is not narrowly drawn, and restricts speech beyond the point necessary to accomplish the objective for which the ordinance was created." Id. at 81 (internal quotations omitted).
The ordinance enacted by the L-FUCG is broader than those considered in the cited cases and a properly presented constitutional challenge would have merit. It is not merely a restriction of amplified noise on a public right-of-way or public place but prohibits all amplified sound on all public right-of-ways or public places for commercial purposes regardless of the time of day or volume. However, the Commonwealth argues that even if the ordinance is unconstitutional, McGinnis did not present the issue to the trial court and did not notify the Attorney General as required by KRS 418.075 and CR 24.03 and, therefore, this Court cannot review the issue.
KRS 418.075 provides in part:
CR 24.03 states that "when the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General." The Commonwealth contends that notification to the Attorney General is required in civil and criminal cases and even if the challenge is to a city or county ordinance.
We are bound by Supreme Court precedent. Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). The Supreme Court has repeatedly stated that KRS 418.075 and CR 24.03 require a defendant to serve the Attorney General with notice of any constitutional challenge to a statute in civil and criminal cases. Brashars v. Commonwealth, 25 S.W.3d 58 (Ky. 2000); Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). If a party fails to strictly comply with the notification provision of KRS 418.075, any constitutional challenge to a statute is deemed unpreserved and will not be reviewed upon the merits. Brashars, 25 S.W.3d at 66; Benet, 253 S.W.3d at 532.
The courts do not hold pro se litigants to the same standard as attorneys and some leniency is given toward compliance with procedural requirements. See Commonwealth v. Miller, 416 S.W.2d 358 (Ky. 1967). However, because the Supreme Court has directed that the requirements of KRS 418.075 and CR 24.03 are mandatory, McGinnis's pro se status cannot excuse his noncompliance. Thus, if McGinnis was required to notify the Attorney General that the constitutionality of the noise ordinance was challenged, we are precluded from voiding the ordinance as unconstitutional.
We have been unable to find a published case that discusses whether notification must be given to the Attorney General when a city ordinance is challenged. The Civil Rule refers only to challenges to an act of the General Assembly and makes no reference to ordinances. Similarly, KRS 418.075(1) states that notice is to be given "[i]n any proceeding which involves the validity of a statute," and KRS 418.075(2) refers only to appeals involving the constitutionality of a statute. Therefore, the language of the civil rule and the statute arguably do not require that the Attorney General be notified when a city ordinance is challenged. However, the limited judicial decisions have not unequivocally resolved the issue.
In Preston v. Johnson County Fiscal Court, 27 S.W.3d 790 (Ky. 2000), the Kentucky Supreme Court reviewed a constitutional challenge to a county occupational license fee ordinance although the Attorney General was not notified. Notably, the majority did not discuss the lack of notice. However, Justice Keller wrote a thorough concurring opinion on the basis that the failure to notify the Attorney General precluded review of the constitutional argument. Id. at 797. Thus, it is logical to conclude that the majority did not consider the lack of notice to the Attorney General an impediment to its review of the constitutional issue presented.
The Commonwealth points out that in an unpublished opinion a panel of this Court indicated that if the constitutionality of an ordinance is not presented in the trial court and the Attorney General is not notified of a constitutional attack, this Court will not review the issue. Highview Manor Association, LLC v. Louisville Metro Health Department, 2007-CA-000233-DG. Although the Court did state that a statute and ordinance are analogous under KRS 418.075, it declined to review the constitutional issue presented because the appellant did not present the constitutional issue to the trial court. Moreover, the Kentucky Supreme Court accepted discretionary review and affirmed in part, reversed in part, and remanded the case to the district court. Louisville Metro Health Department v. Highview Manor Association, LLC, 319 S.W.3d 380 (Ky. 2010). Consequently, we do not believe that the case serves as precedent to the issue presented. However, while the application of KRS 418.075 to an ordinance is debatable, we do not need to resolve that issue.
It is the long-standing practice of appellate courts "to refrain from reaching constitutional issues when other, non-constitutional grounds can be relied upon." Baker v. Fletcher, 204 S.W.3d 589, 597-598 (Ky. 2006). Based on that practice, we address whether the ordinance applies to amplified sound emanating from a nightclub.
When interpreting an ordinance or statute, we must follow stated rules. The interpretation of either is one of law, subject to de novo review. Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743, 747 (Ky.App. 2003). When considering a smoking ban ordinance enacted by the L-FUCG, this Court summarized the principles of statutory construction that are equally applicable to our consideration of the L-FUCG's noise ordinance.
Lafayette Football Boosters, Inc. v. Commonwealth, 232 S.W.3d 550, 555-556 (Ky.App. 2007)(internal quotations and citations omitted). Moreover, as explained in Hendricks v. Commonwealth, 865 S.W.2d at 337, we must read the L-FUCG ordinance so that it does not defy common sense and create absurd results:
If the Commonwealth is correct that the L-FUCG noise ordinance prohibits all amplified sound that emanates into a public right-of-way or public space, the result would be absurd. We set forth a few examples to demonstrate our point. Outdoor concerts using amplified music would be banned. Business owners would be prohibited from using any music that could be heard outside, regardless of its volume. Indeed, a nightclub owner such as McGinnis would be in violation anytime a patron opened the door and the amplified music or sounds emanated into the street. Summer fairs that use a sound amplifier would be prohibited. The University of Kentucky's use of sound amplification devices at its football games to sell tickets, merchandise, and broadcast its games throughout the stadium projecting sound outside the stadium would violate the ordinance.
The plain language in the ordinance indicates that the L-FUCG did not intend for the ordinance to prohibit amplified sound traveling across a public right-of-way or space. The ordinance unambiguously is limited in application to amplified sound from a device on a public right-of-way or space for any commercial purpose. Because sound cannot be "on" a public right-of-way or public space, the ordinance logically refers to the device located on the public right-of-way or space. The distinction between "on" and "across" is exemplified by the L-FUCG ordinance 14-72(8)(a), which prohibits the use of a radio, television, phonograph, drum, musical instrument or similar device to "create a noise disturbance across a dwelling unit boundary[.]" The obvious intent of the L-FUCG when enacting 14-72(6)(a) was to prohibit the use of public right-of-ways and spaces for commercial purposes through the amplification of sound. The present facts do not come within the ordinance's prohibitions. A nightclub is not a public right-of-way or space and music emanating from the club is not a violation of the ordinance.
The ordinance is undeniably broadly written and its prohibition on all amplified sound on public right-of-ways and spaces for commercial purposes and at all times is constitutionally suspect. However, for the reasons stated, we have decided this case on the plain language of the statute.
Based on the foregoing, McGinnis's conviction is reversed and the case remanded to the Fayette District Court for an order consistent with this opinion.
DIXON, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY.
