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Niles Municipal Court judge weighs case on noise control



Published: Thu, October 22, 2009 @ 12:00 a.m.

By Jordan Cohen

The lawyer for the nightclub owner claims the new law is unconstitutional.

NILES — The first and, thus far, only case to come to trial under the recently enacted noise-control ordinance is in the hands of Municipal Court Judge Thomas Townley.

The judge presided over the trial Wednesday of Robert Leonard, owner of McMenamy’s, a restaurant and bar on Youngstown- Warren Road. Leonard was cited last May on a charge of loud noise from the bar during a concert on behalf of the American Cancer Society’s Relay for Life.

The city’s noise ordinance makes an exemption for such charity events but not after midnight.

City council developed the revised noise ordinance earlier this year after ongoing complaints from residents who live near McMenamy’s about loud music in the early-morning hours.

The city’s only witness, police Lt. David Smathers, said he cited Leonard based on the officer’s discretion as provided in the revised ordinance. There is no requirement for a mechanical reading of the noise level.

“[Leonard] told me he thought the ordinance was unconstitutional and to go ahead and cite him,” Smathers said.

The officer testified that he had to go back to the police station to get a citation book, returned to McMenamy’s an hour later and cited Leonard. He said the volume was lower upon his return.

Defense attorney Patrick Perry asked the officer if he had been annoyed by the volume of the music.

“It didn’t annoy me, but [it]annoyed others,” Smathers responded.

Testimony revealed that police dispatchers had received six complaints about the noise that evening, but only one caller, a resident of Weathersfield Township, left a name. Perry questioned whether Leonard should have been cited based on anonymous complaints, and the judge indicated that may be a concern of his as well.

“Isn’t all this hearsay?” Townley asked city Prosecutor Terry Swauger. “You’re asking me to take a leap with this.”

Swauger responded that the police officer had acted reasonably and cited Leonard based on his “personal discretion.” Judge Townley then announced he would take the case “under advisement.”

Leonard was not called to testify.

Swauger said afterward the judge recently rejected a motion from Perry to dismiss the charge on constitutional grounds. The prosecutor said he hopes the judge will rule by the end of the week.

Leonard would be fined $100 if convicted but faces much stiffer penalties if there are subsequent violations. Perry declined to comment afterward, but Swauger indicated he does not expect the issue to end if the judge rules against Leonard.

“I’m sure [if they lose] they will appeal on constitutionality,” Swauger said.


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