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

6: 30 a.m., Thursday through Monday. The club is located approximately fifty- This appeal arises from the final summary judgment eight feet from a residential community, commonly in a declaratory action filed by appellants seeking a known as " The Forest." The amplified music played detennination as to whether the contested ordinance by the club immediately created problems for these invalid invalid as applied to residential neighbors. John Bullard attested that he was facially or The facial validity of the ordinance is the resided 200- 300 feet away from the club and that his appellants. sole issue presented on this appeal. residence was established approximately twelve years prior to the establishment of the club. Bullard stated he could hear the club' s music during operating Appellant Club Nouveau is an after hours bottle club located in the Omni Center, a commercial shopping hours, and that he could regularly hear a bass boom center adjacent to South U.S. 41 in Lee County. The beat which physically vibrates the pillow in his center leases space to at least seventeen commercial bedroom. businesses, twelve of which are open for business for all or a portion of the regulated time period of 12: 0] Other residents of The Forest had similar complaints. a.m. to 10: 00 a.m. John Morse, the past president of the Forest Property Owner's Association, he attested that he received complaints from property owners Appellants Catania and Sanders were managers of repeated @ 2007 ThomsonlWest. No Claim to Orig. U.S. Govt.Works. 674 So.2d 863 Page 3 674 So. 2d 863, 21 Fla. L.Weekly D1234 Cite as: 674 So.2d 863) concerning noise from the club. concerning the behavior prohibited and the specific intent required: it must provide " citizens, police In addressing the constitutionality of the ordinance, officers and courts * 866 alike with sufficient we stress the fact that this appeal focuses only on the guidelines to prevent arbitrary enforcement." QJju)f provisions of the ordinance emphasized above. We Seattle v. Webster. 115 Wash. 2d 635, 645. 802 P.2d do not address whether the complaints of the adjacent 1333, 1339 ( Wash.l990), cert. denied, 500 U. S. 908, residents can be or have been properly addressed 111 114 L.Ed. 2d 85 ( 1991). S. C!. 1690, The under that portion of the ordinance we find to be ordinance under review does not defme the terms valid and which prohibits "[ o] perating or permitting beg" or " begging," nor is its intent expressed. the use of any radio receiving set, musical Consequently, the danger of arbitrary enforcement instrument, television, phonograph, drum, exterior exists. loudspeaker, or other device for the production or reproduction of sound in such a manner as to cause 652 So. 2d 1254 at 1256. noise disturbance so as to disturb the peace, quiet and comfort of the neighborhood and vicinity thereof; Similarly, in the case before us, the Lee County ordinance does not define its crucial terms '' plainly audible" so as to secure against arbitrary The United States Supreme Court has considered the enforcement. permissible scope of government's efforts to protect citizens from disturbing or distracting sounds as those In Reeves v. McConn. 631 F.2d 377 ( 5th Cir.1980), efforts relate to the " preferred position of freedom of reh' g denied, 638 F. 2d 762 ( 5th Cir. 1980, the court speech." See Saia v. People of State of New York. had occasion to construe a Houston sound abatement s. 558, 68 S. Ct. 1148. 92 L.Ed. 1574 (1948); 334 u. ordinance in light of Saia and Kovacs. The Reeves Kovacs v. Cooper. 336 U.S. 77, 69 S. Ct. 448, 93 court struck down as unconstitutionally overbroad the L.Ed. 513, reh' g denied, 336 U. S. 921, 69 S. C!.638, following sections of the Houston ordinance: 93 L.Ed. 1083 ( 1949). 1) The operation of sound amplifying equipment is prohibited Monday through Saturday within the In Ledford v. State. 652 So. 2d 1254 ( Fla. 2d DCA downtown business district. A permit must be 1995). this court considered a " begging" ordinance of obtained for the operation of such equipment in these the City of St. Petersburg as it related to free speech areas on Sundays. Any such Sunday permit shall rights. In holding the " begging" ordinance in state the business district to which same applies and shall be valid for only one day. Each separate Ledford unconstitutionally overbroad and vague, we Sunday must have a separate permit. Provided, applied a strict scrutiny standard as follows: however, that the provisions of this section shall not In the present case, since the ordinance restricts parade permits which have been obtained speech on the " public ways," a traditional public apply to forum, the regulation is subject to intense scrutiny. from city council. Such regulations survive only if: ( 1) they are 2) The operation of sound amplifying equipment is narrowly drawn to achieve a compelling prohibited between the hours of 7:00 p.m. and 10: 00 governmental interest; ( 2) the regulations are a. m. daily, and further prohibited on Sunday between reasonable; and ( 3) the viewpoint is neutral. 10: 00 a.m. and 1 : 00 p. m. In subjecting the ordinance to strict scrutiny, we hold that section 20- 79 of the City of St. Petersburg Code 5) The operation of sound amplifying equipment is is unconstitutionally overbroad and infringes on prohibitedwithin one hundred (100) yards of any Ledford's free speech rights in a manner more hospital, school, Church or courthouse. intrusive than is necessary. We embrace the holding in CCB that the aim of protecting citizens from 631 F.2d at 380. annoyance is not a " compelling" reason to restrict speech in a traditionally public forum. See CCB, In doing so, the Reeves court explained its standard 458 So.2d at 50. Although section 20- 79 does not of review for overbreadth and vagueness as follows: ban begging in all public places, the ordinance is overbroad; it does not distinguish between 2. Overbreadth aggressive" and " passive" begging. Furthermore, section 20- 79 is vague. To withstand a challenge for vagueness, an ordinance must provide adequate If, at the expense of First Amendment freedoms, a notice to persons of common understanding statute reaches more broadly than is reasonably 2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 674 So.2d 863 Page 4 674 So. 2d 863, 21 Fla. L.Weekly D1234 Cite as: 674 So.2d 863) necessary to protect legitimate state interests, a court Supreme Court has approved the use of the word may forbid its enforcement. But the Supreme Court unreasonably" in similar statutes that are otherwise has cautioned that invalidation of state laws for facial precise and narrowly drawn. Cameron v. Johnson. overbreadth is a remedy that should be applied 390 U.S. 61 L 615- 16, 88 S. Ct. 1335, 1338, 20 Broadrick fv. L. Ed.2d 968). The Court has also approved 182 ( sparingly and only as a last resort." Gklahomal. 413 U.S. f6011 at 613, 93 S. Ct. f29081 at the tenns " loud" and " raucous" as standards of 2916 f37 L.Ed. 2d 830 ( 973)]. Accordingly, we prohibited sound amplification. Though these words will label a provision of the Houston ordinance areabstract, " they have through daily use acquired a unconstitutional only if a limiting construction could content that conveys to any interested person a not readily be placed on the challenged section, sufficiently accurate concept of what is forbidden." Dombrowski v. Pfister. 380 U.S. 479, 491, 85 S. Ct. Kovacs Coover. 336 U.S. 77, 79, 69 S. Ct. 448, v. 1116, 1123, 14 L.Ed.2d 22 ( 965), and if the 450, 93 L.Ed. 513 ( 949). [ Footnote omitted.] We on the overbreadth of the challenged provision is both real approve the words " jarring" and " nuisance" and substantial. Broadrick. 413 U.S. at 615. 93 S. Ct. same grounds, even though they fall short of at 2918. providing " mathematical certainty." Gravned fv. CiN of Rockford!, 408 U.S. fl041 at 110, 92 S. Ct. f22941 at 2299 ( 33 L. Ed.2d 222 ( 972)]. " Flexibility 3. Vagueness and reasonable breadth, rather than meticulous specificity," is acceptable in this area.