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

Id. Several provisions of subsection ( b) were also The remainder of the prohibitory language in challenged and invalidated for vagueness under the subparagraph 6, " disturbing ... to persons within the due process clause of the Fourteenth Amendment. area of audibility", presents a closer question. The The traditional standard of unconstitutional Supreme Court has expressed reservations about the word " disturbs" in a similar ordinance. But in the vagueness is whether the tenns of a statute are so indefinite that " men of common intelligence must expectation that a state court would interpret the tenn actual or imminent interference necessarily guess at its meaning and differ as to its objectively to mean " application." Connallv v. General Construction Co., with ... ' peace or good order' ", the Court eventually 269 U.S. 385, 391, 46 S. Ct. 126, 127. 70 L.Ed. 322 found the tenn not unconstitutionally vague or 1926). See also Hvnes v. Mavor and Council of overbroad. Gravned. 408 U. S. at 109- 112, 92 S. Ct. Borouzh of Gradell, 425 U.S. 610, 620, 96 S. Ct. at 2299- 2301. We have a similar expectation with 1755, 1760, 48 L.Ed. 2d 243 ( 976). This standard is regard to subparagraph 6. If actual experience with the ordinance were to demonstrate that it represents a applied even more strictly to statutes that inhibit free speech because of the value our society places on the subjective standard, prohibiting a volume that any free dissemination of ideas. Id. at 620, 96 S. Ct. at individual person " within the area of audibility" 1760. happens to find personally " disturbing," we would 631 F. 2d at 383. However, the Reeves court also not hesitate to change our judgment accordingly. sustained the provision of the Houston ordinance that Taking subparagraph 6 as a whole, we must at this The volume of sound time reverse the district court' s finding that it is provided as follows: " amplified shall be controlled so that it is not unconstitutionally vague. unreasonably loud, raucous, jarring, disturbing or a nuisance to persons within the area of audibility." 631 F.2d at 385. In sustaining that portion of the Houston ordinance, We hold that the " plainly audible" standard in the the Reeves court stated: Lee County ordinance represents exactly such a 867 Subparagraph 6 requires the volume of sound subjective standard, prohibiting a volume that any amplification to be controlled so that it is not individual person ' within the area of audibility' unreasonably loud, raucous, jarring, disturbing, or a happens to find personally disturbing," that would nuisance to persons within the area of audibility." have caused the Reeves court to strike down the The district court found that the tenns remaining portion of the Houston ordinance. We unreasonably" and " nuisance" are imprecise, do not likewise find it objectionable for being both overly give the ordinary person fair notice of prohibited broad and vague and, accordingly, declare that conduct, and allow arbitrary and discriminatory portion of the Lee County ordinance emphasized enforcement by officials. The court therefore found earlier as being unconstitutional. this subparagraph to be void for vagueness under the Fourteenth Amendment. We disagree. The Reversed and remanded for further proceedings @ 2007 Thomson/West. No Claim to Grig. U.S, Govt. Works. WestJm.v. 710 So.2d 635 Page 1 710 So. 2d 635, 23 Fla. L.Weekly D880 Cite as: 710 So.2d 635) C 92k90.l Particular Expressions and Davis v. State Limitations Fla.App. 5 Dist.,1998. 1) k. In General. Most Cited 92k90. 1( Cases District Court of Appeal ofFlorida,Fifth District. Noise statute making it violation to play motor vehicle' s radio so that it is plainly audible at distance Reyneldon J. DAVIS, Appellant, v. of 100 feet or more from motor vehicle is not STATE of Florida,Appellee. violation of right to free speech; statute addresses No. 97-996. noise, not speech, is content neutral, and permits one to listen to anything they want although not as loudly asthey may please. U. S. C.A. Const.Amend. 1; April 3, 1998. West' s F. S. A. & 316.3045. Motorist was stopped by off-duty police officer for violating noise statute by playing motor vehicle's ill Breach ofthe Peace 62 ~ 1( 2) radio so that it was plainly audible at distance of 100 feet or more from motor vehicle, and consented to 62 Breach of the Peace search of vehicle that resulted in discovery of 62kl Nature and Elements of Offenses cocaine. Case was determined by the Circuit Court 62kH2) k. Statutory and Constitutional for Orange County, A. Thomas Mihok, J. Motorist Provisions. Most Cited Cases appealed claiming noise statute was unconstitutional. The District Court of Appeal, Harris, J., held that, as Constitutional Law 92 ~ 90. 1( 4) a matter of first impression: ( 1) noise statute was not vague; ( 2) noise statute did not violate free speech; 92 Constitutional Law and ( 3) violation of noise statute justified stop of 92V Personal, Civil and Political Rights automobile. 92k90 Freedom of Speech and of the Press 92k90. 1 Particular Expressions and Affirmed. Limitations West Headnotes 92k90.l( 4) k. Use of Streets and Public ill Breach of the Peace 62 ~ 1( 2) Places; Licenses and Permits. Most Cited Cases For purposes of determining whether noise ordinance 62 Breach ofthe Peace is unconstitutional as violation of right to free speech, 62kl Nature and Elements of Offenses regulation of sound and noise in public areas is 62kH2) k. Statutory and Constitutional important function of government, and noise statute Provisions. Most Cited Cases that makes it violation to play motor vehicle radio so Noise statute making it violation to play motor that it is plainly audible 100 feet or further from vehicle' s radio so that it is plainly audible at a vehicle is reasonable application of that function. distance of 100 feet or more from motor vehicle is West' s F. S. A. & 316.3045. not vague. West'sF.S. A. & 316.3045. ill Arrest 35 ~ 63. 5( 6) ill Breach of the Peace 62 ~ 1( 2) 35 Arrest 62 Breach of the Peace 35II On Criminal Charges 62kl Nature and Elements of Offenses 35k63. 5 Investigatory Stop or Stop- And-Frisk 62kl( 2) k. Statutory and Constitutional 35k63. 5( 6) k. Motor Vehicles, Stopping. Provisions. Most Cited Cases Most Cited Cases Motorist's violation of noise statute justified Constitutional Law 92 €:= 90. 1( 1) automobile stop that led to consensual search of vehicle discovering presence of cocaine, and officer 92 Constitutional Law was not limited to stopping motorist only for 92V Personal, Civil and Political Rights violation of traffic code. West's F. S. A. & 316.3045. 92k90 Freedom of Speech and of the Press te.>2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 710 So.2d 635 Page 2 710 So.2d 635, 23 Fla. L.Weekly D880 Cite as: 710 So.2d 635) City of Portland v. Avers. 93 Or.App. 73 L 764 P.2d Dean F. Moslev of McCrary & Mosley, Orlando, for 556 (1988), rev.