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

PW ~2. to state regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. Any ordinance must address compelling City governmental interests and not violate constitutional rights to privacy, freedom of movement, free speech, and property rights. 3. Noise ordinances are considered infringements of several protected rights. Courts will strike down a noise ordinance if it is more broad than is reasonably necessary. The ordinance must provide strict guidelines and definite standards closely related to protecting the governmental interests at risk. Likewise, the terms of the ordinance cannot be vague. It must be sufficiently definitive as to secure against arbitrary enforcement. If the terms of a noise ordinance are so indefinite that "men of common intelligence must guess at its meaning and differ as to its application," it may be held invalid. necessarily 4. A part of any court review of an ordinance relies upon the legislative intent and reasoning for enacting the law. 5. A noise ordinance regulates conduct and not land development. Therefore, the proper process for adopting changes to the noise ordinance is through only the Council. This ordinance would not be routed through the Municipal Planning Board as a land use or development regulation. Analysis 6. Currently, our noise ordinance provides, in relevant parts: Sec. 9.06. 01. Prohibition. No person shall maliciously or willfully disturb the quiet of any street or neighborhood, or of any family of persons, by making loud or unusual noises; . . . or by using any other device or means whatever to disturb the peace. Sec. 9.06. 02. Prohibited Noises Defined. The following acts and omissions are hereby prohibited: 7) Tools. The use in a residential zone or in the vicinity of a hotel or motel of hand or power tools or machinery, resulting in loud and disturbing noises, between the hours of 10: 00 p. m. and 7: 00 a. m. Sec. 9.06. 03. Exceptions to Prohibited Noises. None of the preceding provisions shall apply to . . . those normal situations of community life where noise is inherent and has long been accepted by the community, . . . ." 7. Section 9.06, et. seq., of the Code has been in effect since 1985. In the past 22 To years, Florida Courts have heightened their review and analysis of noise ordinances. my knowledge, at least for the past 15 years, the provisions of section 9. 06, et. seq., have not been challenged, nor actively enforced to any point of prosecution. It is legally down my opinion that if legally challenged, the current noise ordinance would be struck as vague and overly broad. Any revisions to the ordinance would only complicate the legal analysis without addressing the legal insufficiency of the current ordinance. Compare section 14- 51, et.seq., Destin Code of Ordinances) 8. There are many areas of the City where residential zoning is adjacent to commercial, mixed use, or industrial zoning. The revision or drafting of a law to address only one area or section of the City or to address the needs of only one citizen, without further study and analysis of the entire City is poor legislative habit. This " bandaid" approach does not support the fact that the regulation of noise is a legitimate municipal for purpose unless it can be determined and explained that there is a special reason enactment in only one area. 9. Section 9. 06 contains an element of scienter: " No person shall maliciously or willfully disturb..." Regarding the acts of a business, it may be terribly difficult to prove the scienter of the business or corporation. Instead, the intent of an individual in charge or proof of a pattern of conduct must be established. This creates a kink in enforcement, in my opinion. However, the analysis of enforcement in any given situation is beyond the scope of this opinion and can be addressed if the Chief of Police needs my opinion. In conclusion, it is my opinion that section 9. 06, et. seq. of the Code of Ordinances could be considered unconstitutional and unenforceable for overbreadth and to address the vagueness. Amendments suggested by Ordinance 1727 are insufficient overbreadth and vagueness. However, understanding that staff desires a " bandaid," I suggest the attached revised ordinance 1727 and the purchase of measuring tapes to be carried in all police cars." The proposed ordinance provides the following changes: 9. 06 Loud and Unusual Noises Prohibited The City has determined that the proaress of development within the City limits has created circumstances where the comfort and peace of residents may be routinely and unreasonably disturbed. Therefore. in an effort to further the welfare of citizens. the City finds that it is necessary to enact provisions which will control and prohibit loud or unusual noises in the City. The City further finds that prohibitions based upon a reasonable distance at which loud and unusual noises are prohibited is necessary to ensure the hiahest protection of the riahts of citizens to free speech, free movement. and property riahts. Sec. 9. 06. 01 Prohibition No person shall maliciously or willfully disturb the quiet of any street or neighborhood, or of any family of persons, by makina prohibited noises as defined in 9. 06. 02. by making loud or umJsual noises; by blo'.ving horns or other instruments; by the beating of drums, pans or other things of like nature; by loud and boisterous laughing, singing or screaming; or by using any other de'/ ice or means whatever to disturb the peace. Sec. 9.06. 02 Prohibited Noises Defined The following acts and omissions are hereby prohibited: a. Loudsoeakers. amolifiers or noise devices for advertisina. The use of any radio or television set. musical instrument. phonoaraph, loudspeaker. sound amplifier, bell, drum. horn or other machine or device for the production or reproduction of sound directed upon public streets for the purpose of commercial advertisina or attractina the attention of the public to any buildina. structure or tent. The City Manaaer may authorize and permit an exception to this subsection for no more than eiaht hours per day and in coniunction with a special commercial sale. or civic. religious. or Christmas event. b. The following noises, acts and omissions that are plainly audible one hundred ( 100) feet or further away from the source of the noise. act. or omission. are hereby prohibited.  1) Horns and other signaling devices. The sounding of any horn or other signaling device on any motor vehicle on any street or public place of the city, except as Volume 11151 otherwise specifically permitted or required by law, or as a danger warning, and the sounding of any such device for any unnecessary period of time. 2) Exhausts. The discharge into the open air of the exhaust of any steam engine, stationary or portable internal combustion engine, or motor vehicle, except through a muffler in good repair or other device that effectively prevents loud or disturbing noises, provided that where such steam engine, stationary or portable internal combustion engine or motor vehicle is enclosed within a building used for industrial or commercial purposes, a reasonable level of such noise will be permitted. This subsection shall not apply to aircraft or to supporting ground equipment for aircraft. 3) Loudspeakers, amplifiers or n0i8e ) s for advertising. The use of any radio or devi, f8 tele'/ ision set, musical instrument, phonograph, loudspeaker, sound amplifier, bell, drum, horn or other machine or de'lice for the production or reproduction of sound directed upon public streets for the purpose of commercial advertising or attracting the attention of the public to any building, structure or tent. Tempor-ary exceptions for civio e'/ents, for ci'.'ic or religious organizations or for the playing of music during the Christmas season only may be authorized by the city manager for such periods of time and under such conditions as may be consistent with the public interest. 4) Radios, television sets, phonographs, etc. The playing of any radio or television receiving set, musical instrument, phonograph or other machine or device for producing or reproducing sound~ in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants. 5) Yelling, shouting, etc. Yelling, shouting, hooting, whistling, or loud and boisterous lauohino or singing on the public streets, or at any other so as to annoy or disturb place.:, , the quiet, comfort or repose of persons in any office, or in any d\Nelling, hotel or other type of residence, or of any person in the vicinity. Q e) Domestic pets. The keeping of any domestic bird or animal which emits frequent or long continued So as to distl.rb the peace, qll.iet and comfort of the neighboring noise,,- inhabita. nts. g,7) Toots. The usa in a residential zone or in the vicinity of a hotel or motel transient lodging f-acility or mixed use resort or in a com erci3: 1 zone adjacent to any residential land use of hand or pO'Ner tools or machinery or equipment, resll.ting in loud and disturbing noises, bet\\' een the hours of 10:00 p. m. and 7: 00 m. a. The use of hand tools. power tools. machinery or eauipment. between the hours of 10: 00 p. m. and 7: 00 a. m. is prohibited. I 3) Hawkers, peddlers and vendors. The shouting and crying of peddlers, hawkers or vendors on any public street or place or on private property so closely adjacent thereto Is may be collected and tr.af ic that crO'::<: obstructed thereon. Staff concurs with the opinion of the City Attorney as they parallel our experiences in several municipalities in the State of Florida with noise ordinances. Staff recommends that Ordinance 1727 as revised by the City Attorney be approved as an intermediate action, recognizing that s. 9. 06 needs to be replaced with more current and enforceable provisions. RECOMMENDATION: The City Council may: 1) Approve Ordinance 1727 as presented on first reading; 2) Approve Ordinance 1727 with changes, which may, if determined significant by City Attorney, require reconsideration of the Ordinance on first reading at the next meeting; or 3)