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

challenged portion of the ordinance to be " narrowly He entertains his customers with both live band tailored to achieve the legitimate interest in performances and recorded music. After receiving regulating unreasonable sound" and in * 125 the noise two citations for violating the amplified sound concluding that Daley' s challenges to ordinance were not " real and substantial." We prohibition in the ordinance, Daley filed a motion in the county court to declare the City' s noise accordingly issue the writ and quash the order under review. ordinance unconstitutional. After a hearing the judge granted the motion, declaring the ordinance unconstitutional as overly broad and dismissing the The City enacted ordinance number 97- 4019, which citations against Daley. created, among other things, section 8- 322.1( a) of the @ 2007 ThomsonlWest. No Claim to Orig. U.S. Govt.Works. 752 So. 2d 124 Page 3 752 So.2d 124, 25 Fla.L.Weekly D617 Cite as: 752 So. 2d 124) The City appealed to the circuit court, which found achieve that interest. The City' s ordinance, however, that the ordinance was " narrowly tailored to achieve is not limited to prohibiting " unreasonable" sound. the legitimate interest in regulating unreasonable Instead, it prohibits all amplified sound emanating sound" and reversed the county court' s order. The ftom incompletely enclosed structures within the circuit court further described Daley' s challenges to district zoned CBN, during certain hours of each day, the noise or4inance as " hypothetical examples" and regardless of the volume of that sound and regardless not " real and substantial overbreadth challenge[ s]." of whether that sound can be heard outside of the FN 1 Citing to Secretarv of State ofMarvland v. Joseph H structure. Munson Co.. Inc.. 467 U.S. 947. 964. 104 S. Ct. 2839. 81 L.Ed. 2d 786 (1984), the circuit court found that any prosecution that might occur based on Daley' s FNI.We point out that in the absence of any hypotheticals could be analyzed either by a limiting objective criteria, such as decibel limitation, construction or an " as applied" constitutional unamplified sound greater in volume than standard. Our review of the ordinance and the amplified sound is permissible under the applicable cases convinces us that, in coming to these ordinance. conclusions, the circuitjudge departed ftom the essential requirements of law by applying the The goal of regulating unreasonable sound is incorrect law. See Haines City Community Dev. v. unquestionably a matter within the City' s province. Heggs. 658 So.2d 523. 530 ( Fla. 1995). However, that goal, no matter how laudable, cannot be achieved by the overbroad regulation of activities llill " Music, f. as aform of expression and protected by the First Amendment. As currently communication, is protected under the First written, the City' s ordinance can be used to suppress Amendment." Ward v. Rock Against Racism. 491 First Amendment rights far more severely than can U. S. 781. 790. 109 S. Ct. 2746. 105 L.Ed. 2d 661 be justified by the City' s interest in regulating 1989). This protection extends to amplified music. unreasonable sound. See Saia. 334 U.S. at 562. 68 126 The United States Supreme Court recognized in S. Ct. 1148; C.C.B, v. State. 458 So. 2d 47. 49 ( Fla. Saia v. New York. 334 U.S. 558. 68 S. Ct. 1148. 92 1st DCA 1984). L.Ed. 1574 ( 1948), that the use of sound amplification equipment within reasonable limits is ill The requirement of real and substantial an aspect of ftee speech protected by the First overbreadth applies primarily " where conduct and Amendment. Furthermore, the mere existence of an not merely speech is involved." Broadrick v. alternative means of expression, such as unamplified Oklahoma. 413 U.S. 601. 615. 93 S. Ct. 2908. 37 speech, will not by itself justify a restraint on the L. Ed.2d 830 ( 1973). Here, of course, the City' s particular means that the speaker finds more noise ordinance is concerned primarily with effective. See Reeves v. McConn. 631 F. 2d 377. 382 regulating forms of speech and not conduct. 5th Cirl.980). Moreover, th~ " real and substantial" requirement is appropriate " in cases where, despite some possibly ill By enacting this ordinance, the City has sought to impermissible application, the ' remainder of the covers a whole range of easily identifiable regulate protected free speech in a public forum. statute ... The government can constitutionally restrict such and constitutionally proscribable ... conduct.' " expression, even in a public place, if the limitations Munson. 467 U. S. at 964. 104 S. Ct. 2839 ( quoting on the time, place, and manner of the protected United States Civil Servo Comm' n v. National Ass' n of speech are reasonable. The restrictions must be Letter Carriers. 413 U.S. 548. 580- 81. 93 S. Ct. 2880. justified without reference to the content of the 37 L.Ed. 2d 796 (1973)). That is not the case here. regulated speech, ... [ be] narrowly tailored to serve a The challenged portion of the City' s noise ordinance significant governmental interest, and ... leave open does not contain a core of easily identifiable and proscribable conduct that it prohibits. Instead, it ample alternative channels for communication of the information." Ward. 491 U.S. at 791. 109 S. Ct. indiscriminately bans all amplified sound that does 2746 ( quoting Clark v. Community for Creative Non- not emanate ftom a completely enclosed structure, Violence. 468 U.S. 288. 104 S. Ct. 3065. 82 L. Ed.2d during certain hours of each day, regardless of its 221 (1984)). volume. ill The circuit court in this case found that the City The City' s ordinance is flawed not simply because it had a legitimate interest in regulating " unreasonable" sanctions some constitutionally- protected conduct, sound and its ordinance was " narrowly tailored" to but because it is founded upon the mistaken premise 2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 752 So. 2d 124 Page 4 752 So. 2d 124, 25 Fla. L.Weekly D617 Cite as: 752 So. 2d 124) that all amplified sound in nonenclosed structures is unreasonable during certain hours of the day and can be prohibited regardless* 127 of the First Amendment rights it suppresses. It is therefore subject to facial attack. See Munson. 467 U. S. at 964. 104 S. Ct. 2839. The City asserts that a limiting construction can be placed on the ordinance' s application to avoid a finding of overbreadth if it is restricted to the prohibition amplified commercial speech only. of Imposing such a limitation, however, would not cure the constitutional infinnity. A blanket ban on all amplified commercial speech not emanating from within an enclosed structure during certain hours of each day, regardless of its volume, would still extend too far. See Beckwith v. Department of Bus. & Prof! Regulation. Bd. of Hearing Aid Specialists. 667 So.2d 450. 451 ( Fla. 1st DCA 1996). City ordinance number 97-4019 is unconstitutional because it curbs First Amendment rights in a manner more intrusive than necessary. The City cannot absolutely ban all amplified sound in nonenclosed structures for certain hours each day regardless of its volume. The City may regulate amplified sound subject to strict guidelines and definite standards closely related to pennissible governmental interests. Although the drafting of such an ordinance is a task for the City and not for this court, see C.C.B.. 458 So. 2d at 50. we note that any such regulation must be sufficiently definitive as to secure against arbitrary enforcement. See Easv Wav of Lee County. Inc. v. Lee County. 674 So.2d 863. 866 ( Fla. 2d DCA 1996). We accordingly issue the writ and strike the challenged portion of City ordinance 97- 4019. The order of the circuit court is quashed. CAMPBELL, A. C.J., and CASANUEV A and DAVIS, JJ., Concur. Fla.App. 2 Dist.,2000. Daley v. City of Sarasota 752 So.2d 124, 25 Fla. L.Weekly D617 END OF DOCUMENT