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

g 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.  674 So.2d 863 Page 1 674 So. 2d 863, 21 Fla. L.Weekly D1234 Cite as: 674 So.2d 863) I> Spencer, Assistant Lee County Attorney, Ft. Myers, Easy Way of Lee County, Inc. v. Lee County for Appellees Lee County and Joseph D'Alessandro. Fla.App. 2 Dist.,1996. Kenneth W. Sukhia of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A.,Tallahassee, for Appellee District Court of Appeal ofFlorida,Second District. John J. McDougall. EASY WAY OF LEE COUNTY, INC.,a Florida CAMPBELL, Acting Chief Judge. corporation d/b/ a Club Nouveau After Dark; Luis C. Appellants, Easy Way of Lee County, Inc., doing Catania; and Mark A.Sanders, Appellants, business as Club Nouveau After Dark, Luis C. v. Catania and Mark A. Sanders, challenge a final LEE COUNTY, a political subdivision of the State of summary judgment upholding the facial Florida; John McDougall, duly elected Sheriff of Lee constitutionality of Lee County Noise Control County, Florida; and Joseph D'Alessandro, duly Ordinance, chapter 241/4, Lee County Code, as elected State Attorney for the Twentieth Judicial amended by Lee County Ordinance 94- 17. We find Circuit of the State of Florida, Appellees. a portion of that ordinance to be unconstitutionally No. 95- 02905. overbroad and vague as we will explain. The remainder of the ordinance is determined to be a May 24, 1996. severable and valid exercise of police power by Lee County. Accordingly, we reverse in part and affirm Nightclub owners initiated declaratory judgment in part. action seeking determination of whether noise ordinance was facially constitutional. The Circuit That portion of the Lee County Noise Control Court, Lee County, R. Wallace Pack, J., determined Ordinance which is the subject of this appeal is ordinance was' facially constitutional, and nightclub contained within the amendment enacted by owners appealed. The District Court of Appeal, Ordinance 94- 17, and provides as follows: Campbell, Acting C, J., held that ordinance which SECTION TWO: prohibited operating device for production of sound which was " plainly audible" fifty feet trom such C. Specific Prohibitions device was both broad overly and and vague, therefore it was unconstitutional. 3. Radios, television sets, exterior loudspeakers and similar devices. Reversed in part and affirmed in part. In the case of any radio receiving set. musical West Headnotes instrument. television, phonograph, drum, exterior Nuisance 279 ~ 60 loudspeaker, or other device for the production or reproduction of sound, it shall be unlawful to create or permit to be created 279 Nuisance any noise that exceeds: 279II Public Nuisances 864 a. 60 dBA during the hours between 10 a.m. to 279II( A) Nature of and 10 p.m. t:rom the property line of the noise source. Injury, Liability b. 55 dBA during the hours between 10 Therefor p. m. to 12: 00 279k60 k. Provisions of Statutes and a. m. :trom the property line of the noise source. Ordinances. Most Cited Cases Operating or permitting the use or operation of any County ordinance which prohibited operating device radio receiving set. musical instrument, television, for production or reproduction of sound which was phonograph, drum, exterior loudspeaker, or other plainly audible" 50 feet trom such device was both device for the production or reproduction of sound in such a manner as to cause noise disturbance so as to overly broad and vague, and therefore it was unconstitutional. Lee County, Fla., Noise Control disturb the peace, quiet and comfort of the Ordinance ~ 94- 17. neighborhood and vicinity thereof; operating any such device between the hours of 12: 01 a.m. and the follawing 10: 00 a.m. in such a manner as to be 863 Steven Carta of Simpson, Henderson, Savage & plainly audible across property boundaries or Carta,Fort Myers, for Appellants. through partitions common to two ( 2) parties within James Yaeger, County Attorney, and Thomas E. a building or plainly audible at fifty ( 50) feet from @ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 674 So.2d 863 Page 2 674 So.2d 863, 21 Fla. L.Weekly Dl234 Cite as: 674 So.2d 863) such device when operated within a public space or Club Nouveau. The club hires an independent DJ within a motorboat. who plays pre-recorded music. No external 4. For purposes of subsection 3 above, the term loudspeakers are used. On July 27, ] 994 and July 31, 1994, the Sheriff issued a citation to appellants plainly audible" shall mean any sound produced, including sound produced by a portable Catania and Sanders for alleged violations of the soundmaking device that can be clearly heard by a above-quoted section of the ordinance. The citation person using his or her normal hearing faculties, at a charged that appellants had operated a device distance offifty ( 50) feet or more from the source. between 12: 01 a. m. and 10: 00 a. m., in such a manner as to be plainly audible at fifty feet from such device. Any law enforcement personnel or citizen who hears a sound that is plainly audible, as defined herein, shall be entitled to measure the sound according to When the officer first arrived at the scene, he entered the following standards: the club and requested appellant Catania to from the a. The primary means of detection shall be by means accompany him outside to a point fifty feet front door of the club. Catania complied and could of the complainant's ordinary auditory senses, so not hear any sound, but was cited for music which long as their hearing is not enhanced by any mechanical device, such as a microphone or hearing could be heard fifty feet from the front door. At no aid. time did the officer display a decibel meter or tell b. The complainant must have a direct line of sight Catania that the music exceeded any specific decibel and hearing to the source producing the sound so level. Similar procedures* 865 and events took that he or she can readily identify the offending place at the time of the subsequent citations. source and the distance involved. Informations were later filed against appellants c. The complainant need not determine the particular Sanders and Catania on the basis of those citations. words or phrases being produced or the name of any At the time the first citation was issued, the club was song or artist producing the sound The detection of a rhythmic bass reverberating type sound is sufficient warned by the Sheriff that unless it turned down its to constitute a plainly audible sound music to comply with the fifty-foot restriction, further citations would be issued. The club Emphasis supplied.) complied, resulting in a loss of business. The club also soundproofed its interior walls and made We focus particularly on the emphasized portions of periodic sound checks from It fifty-foot radius. the amended ordinance ( the last clause of section Despite those attempts to comply with the ordinance, C( 3) and all of section C(4)) and appellants' at least two more citations were issued to employees challenge against the facial validity of that portion as of the club after the trial court declaratory action an overly broad restriction against the right of free proceedings were commenced. Those criminal speech provided for and protected by the First, Fifth proceedings remain pending. and Fourteenth Amendments to the Constitution of the United States and sections 4 and 9 of article I of The established business hours of Club Nouveau are the Florida Constitution. from 1 : 30 a.m. to