Fort Walton Beach Council agenda — 05-08-2007 regular agenda — reading text

92 Constitutional Law 92V Personal, Civil and Political Rights The owner of a business using live bands and 92k90 Freedom of Speech and of the Press recorded music brought action against city for 92k90. 1 Particular Expressions and declaratory judgment that noise ordinance was Limitations unconstitutional. The County Court, Sarasota County, 4) k. Use of Streets and Public 92k90. l( invalidated the ordinance. City appealed. The Circuit Places; Licenses and Permits. Most Cited Cases Court, Bob McDonald, J., reversed. Owner petitioned The government can constitutionally restrict for writ of certiorari. The District Court of Appeal expression, even in a public place, if the limitations held that ordinance prohibiting all amplified sound on the time, place, and manner of the protected emanating from incompletely enclosed structures speech are reasonable and the restrictions are justified violated the First Amendment. without reference to the content of the regulated speech, are narrowly tailored to serve a significant Writ issued; circuit court decision quashed. governmental interest, and leave open ample West Headnotes alternative channels for communication of the ill Constitutional Law 92 ~ 90. 1( 6) information. U.S. C. A. Const.Amend. 1. 92 Constitutional Law ill Constitutional Law 92 ~ 90. 2 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 92 Constitutional Law 92k90. 1 Particular Expressions and 92V Personal, Civil and Political Rights Limitations 92k90 Freedom of Speech and of the Press 92k901. ( 6) k. Entertainment in General; 92k902. k. Commercial Speech in General. Motion Pictures. Most Cited Cases Most Cited Cases Music and amplified music, as fonns of expression and communication, are protected under the First 596 Municipal Corporations 268 ~ Amendment. U.S. C. A. Const. Amend. l. 268 Municipal Corporations ill Constitutional Law 92 ~ 90( 3) 268X Police Power and Regulations 268X( A) Delegation, Extent, and Exercise of 92 Constitutional Law Power 92V Personal, Civil and Political Rights 268k596 k. Public Peace and Order. Most 92k90 Freedom of Speech and of the Press Cited Cases 92k90( 3) k. Limitations on Doctrine 10 City noise ordinance that prohibited all amplified General. Most Cited Cases sound emanating from incompletely enclosed The mere existence of an alternative means of structures within a commercial business- newtown expression, such as unamplified speech, will not by CBN) zone violated the First Amendment, even if itself justifY a restraint on the particular means that the ordinance were limited to commercial speech; the speaker finds more effective. U.S. C. A. the ordinance applied during certain hours of each Const. Amend. l. day, regardless of the volume of that sound and regardless of whether that sound could be heard @ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 752 So.2d 124 Page 2 752 So.2d 124, 25 Fla. L.Weekly D617 Cite as: 752 So. 2d 124) outside of the structure. U. S. C. A. Const.Amend. 1. Sarasota Zoning Code. The portion of the ordinance challenged in this proceeding prohibits all amplified 90. 1( 1) sound in nonenclosed structures in the area zoned ill Constitutional Law 92 ~ Commercial Business-Newtown ( CBN), during 92 Constitutional Law certain hours of each day, regardless of the decibel 92V Personal, Civil and Political Rights level of the sound being produced and regardless of 92k90 Freedom of Speech and of the Press whether the sound is audible outside the structure. 92k90.l Particular and The challenged portion of the ordinance provides: Expressions Limitations Amplified sound prohibited: Amplified sound not in k. In General. Most Cited 92k90l. (l) a completely enclosed structure is prohibited between Cases the hours of 10: 00 p. m. and 7: 00 a.m. the following moming on Sunday through Thursday, inclusive, 594( 2) except the day prior to a holiday, or between the Municipal Corporations 268 ~ hours of 11 : 59 p.m. and 10: 00 a. m. the following 268 Municipal Corporations moming, on Friday, Saturday, and the day prior to a holiday. This section shall not apply to structures or 268X Police Power and Regulations portions thereof used primarily for residential 268X( A} Delegation, Extent, and Exercise of Power purposes. 268k594 Ordinances and Regulations in General 268k594( 2) k. Form and Sufficiency in Amplified sound" is defined as the " using or General. Most Cited Cases operating for any purpose, or pennitting the operation or use for any purpose, any amplification system or The requirement of real and substantial overbreadth did not apply to First Amendment challenge to city any amplified radio, phonograph, tape player, television set, musical instrument, drum or similar ordinance prohibited all amplified sound that device which is amplified." " Amplified" is defined emanating trom incompletely enclosed structures as " to increase the strength, amount of or loudness of within a commercial business- newtown ( CBN) zone; a device." The ordinance defmes " completely the ordinance did not prohibit a core of easily enclosed building" instead of " completely enclosed identifiable and proscribable conduct. U.S. C. A. structure" and requires all doors and windows of a Const.Amend. 1. business to remain closed, except for normal ingress and egress. Mark A. Gruwell, Sarasota, for Petitioner. Michael S. Perry of Taylor, Lawless and Singer, A temporary exemption trom the ordinance can be obtained by a person who secures a specially limited P.A.,Sarasota, for Respondent. PER CURIAM. permit trom the city manager for community events or programs, construction, and demolition. A fairly Petitioner Arthur F. Daley (" Daley") seeks certiorari review of a decision of the circuit court, sitting in its long list of permanent exemptions includes noise from fire or burglar alarms, emergency sirens, church appellate capacity, which reversed a county court order declaring unconstitutional as overly broad a bells, cellular telephones, automobile sound equipment, and motorboats, as well as portion of a noise ordinance enacted by the noncommercial public speaking covered by a respondent, City of Sarasota ( the " City"). We different section ofthe City Code. conclude that the circuit court departed trom the essential requirements of law in finding the Daley owns a business within the district zoned CBN.