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Lewis v. Hotel and Restaurant Employees Union

March 11, 1999

THERESA D. LEWIS, ADMINISTRATOR, DISTRICT OF COLUMBIA HOUSING REGULATION ADMINISTRATION, APPELLANT
v.
HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 25, AFL-CIO, APPELLEE



Before Terry and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)

Argued May 13, 1998

Local 25 of the Hotel and Restaurant Employees Union ("the union") brought suit to challenge the constitutionality of certain provisions of the District of Columbia Noise Control Act of 1977, D.C. Law 2-53, codified at 20 DCMR §§ 3000 et seq. (1984). The trial court enjoined the noise limits and enforcement provisions of 20 DCMR §§ 3001.1 and 3011.1 as unconstitutional, and the District of Columbia appealed. While the appeal was pending, the Council of the District of Columbia enacted legislation that materially amended the Noise Control Act in favor of non-commercial speech. The parties agree that enactment of this legislation mooted this appeal. The only issue remaining before us is whether the original opinion of the trial court should be vacated. The District argues that it should be; the union argues that it should not. We agree with the District.

I.

The District of Columbia Noise Control Act of 1977 ("the Act"), passed by the Council and signed by the Mayor, took effect on March 16, 1978. Section 5 of the Act provided in part:

"No person shall cause, suffer, or permit any sound which emanates from an operation, activity, or noise source under his or her control to exceed the maximum permissible sound level established in the following table as applicable for the time of day or night and the zoning location where the noise originates." D.C. Law 2-53, § 5 (a), as codified at 20 DCMR § 3001.1 (1984).

The appended table established the maximum daytime noise level in a residential or special purpose zone at sixty decibels. The Act also provided:

"Notwithstanding any other provision of the Act, if the Mayor finds that any person is acting in a manner that causes or contributes to a sound level of a characteristic and duration which is likely to be injurious to the public welfare, the health of human or animal life, or to property, or which interferes with the reasonable enjoyment of life or property, the Mayor may order the person immediately to reduce or discontinue the act." D.C. Law 2-53, § 11 (a), as codified at 20 DCMR § 3011.1 (1984).

In September 1991 the union became embroiled in a labor dispute with the Jefferson Hotel. For almost four months beginning in October 1991, members of the union, using bullhorns and loudspeakers, engaged in picketing and "related communications efforts" in front of the hotel, at the corner of 16th and M Streets, N.W., in downtown Washington. On February 3, 1992, the Department of Consumer and Regulatory Affairs -- the agency charged with enforcement of the Act *fn1 -- issued a cease and desist order to the union, coupled with a notice of infraction for using a bullhorn to amplify speech in excess of the limits prescribed by 20 DCMR § 3001.1. *fn2 On February 11 the union filed suit seeking to have the Act declared unconstitutional as it applied to union members' use of loudspeakers and bullhorns at picketing sites, and requesting an order permanently enjoining District of Columbia officials from enforcing provisions of the Act against union members. *fn3 See Council of the District of Columbia, Committee on Consumer and Regulatory Affairs, Report on Bill 11-114, Noise Control Amendment Act of 1996, at 2-3 (March 12, 1996) (hereafter "Committee Report") (summarizing the dispute between the union and the District).

On February 12 the court issued a temporary restraining order barring enforcement of the Act against the union. Thereafter the labor dispute between the union and the hotel was settled, and the District withdrew both the notice of infraction and the cease and desist order.

On October 1, 1992, the court entered summary judgment in favor of the union and permanently enjoined enforcement of the Act against the union. In its order the court:

DECLARED that the enforcement . . . of the [Act], specifically 20 DCMR ยงยง 3001.1 and 3011.1 as applied to a labor union's use of amplified sound in conjunction with its public speaking activities on public streets, alleys, and thoroughfares, ...


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