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

other type of residence, or of place.:, 100 any person in the vicinity. 101 102 ill.G) Domestic pets. The keeping of any domestic bird or animal which 103 emits frequent or long continued So as to disturb the peace, quiet noise:- 104 and comfort of the neighboring inhabitants. 105 106 ( 2,7-)Tools. The use in a residential zono or in the vicinity of a hotel or 107 motel transient lodging facility or mixed use resort or in a commercial 108 zoneadjacent to any residential land use of hand or power tools or 109 machinery or equipment, resulting in loud and disturbing noises, 110 bewJeen the hours of 10: 00 p. m. and 7: 00 3. m. The use of hand tools. 111 power tools. mac~inerv or equipment, between the hours of 10: 00 p. m. 112 and 7: 00 a. m. is prohibited. 113 114 ( IS) Hawkers, peddlers and vendors. The shouting and crying of 115 peddlers, hawkers or vendors on any public street or place or on private 116 property so closely adjacent thereto that crowds may be collected and 117 traffic obstructed thereon. 118 119 @ 9) Sirens. The sounding of sirens on escort services, except where 120 specifically required or permitted by law and not for the purpose of 121 calling attention to a vehicle or caravan, and the sounding of a siren on 122 an ambulance, except when operated in response to an emergency call 123 and when reasonably necessary to warn pedestrians and other drivers of 124 the approach thereof. 125 126 9. 06. 03 Exceptions to Prohibited Noises 127 128 None of the preceding provisions shall apply to emergency situations where life, 129 health or property i$ at stake or to intermittent situations arising out of industrial 130 research and development work carried on in areas zoned for industrial 131 purposes, nor to those normal situations of community life where noise is 132 inherent and has long been accepted by the community, such as activities 133 during school recess and at public parks and athletic contests. 134 135 SECTION III. CONFLICTING PROVISIONS. 136 If any ordinance or parts of any ordinance are in conflict with this ordinance, the 137 provisions of this ordinance shall prevail. 138 139 SECTION IV. SEVERABILITY. Page 3 of4 140 Should any section or provision of this ordinance, or any portion thereof, be 141 declared by a court of competent jurisdiction to be invalid, such decision shall not affect 142 the validity of the remainder, as a whole or any part hereof, other than that part declared 143 to be invalid. 144 145 SECTION V. EFFECTIVE DATE. 146 147 This Ordinance shall take effect immediately upon approval by the City Council 148 and signature of the Mayor. 149 150 151 PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FORT 152 WALTON BEACH, FLORIDA ON THE DAY OF , 2007. 153 154 155 156 157 MIKE ANDERSON, MAYOR 158 159 160 ATTEST: 161 162 163 HELEN A.SPENCER 164 CITY CLERK 165 Approved as to form and legal 166 sufficiency. 167 168 169 170 TONI L. CRAIG 171 CITY ATTORNEY 172 173 174 Note: Deletions are noted by strikethroughs; additions by underlines. 175 176 Codification Instructions: Section II, inserted in Chapter 9. 06 as stated. 177 Sections I, m, IV, and V are not codified. 178 179 180 181 182 Page 4 of 4  Toni L. Craig Local Government Law Attorney at Law Marital & Family Law ATTORNEY PRIVILEGED WORK PRODUCT*** NOT FOR PUBLIC RECORD April 26, 2007 TO: Len Mitchell CC: Mayor & Council City Manager Police Chief CDS Director RE: Noise Ordinance, Ordinance 1727 Ordinance 1727, as submitted to me on 19 April 2007, is not approved as legally sufficient for the following reasons. Statement of Law 1. The police power of the City is restricted only by applicable provisions of the federal and state constitutions and statutes designed to protect private rights from arbitrary and oppressive governmental action. So long as a municipal ordinance does not encroach upon constitutional guarantees or run afoul of federal or state statutory law, the City has broad discretion to regulate the conduct of its citizens. 2. The police power, though, is not a power to pass unconstitutional laws, and in the exercise of the police power, the City is not permitted to enact an ordinance that will, in its operation, defeat the purpose of a provision of the US or Florida Constitutions. In addition, a governmental purpose to control and prevent activities constitutionally subject 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 necessarily guess at its meaning and differ as to its application," it may be held invalid. 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 th e. commumty, " .... 7. Section 9. 06, et. seq., of the Code has been in effect since 1985. In the past 22 years, Florida Courts have heightened their review and analysis of noise ordinances. To my knowledge, at least for the past 15 years, the provisions of section 9.06, et. seq., have not been legally challenged, nor actively enforced to any point of prosecution. It is my opinion that if legally challenged, the current noise ordinance would be struck down 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 purpose unless it can be determined and explained that there is a special reason for 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 is beyond the my opinion. However, the analysis of enforcement in any given situation 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 vagueness. Amendments suggested by Ordinance 1727 are insufficient to address the 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. If!can assist further, please let me know. 3~ 9L ?!  1 ORDINANCE 1727 2 3 4 AN ORDINANCE OF THE CITY OF FORT WALTON BEACH, 5 FLORIDA; PROVIDING FOR AUTHORITY; AMENDING 6 CHAPTER 9. 06 LOUD OR UNUSUAL NOISES PROHIBITED OF 7 THE CODE OF ORDINANCES TO AMEND THE HOURS OF USE 8 OF TOOLS, MACHINERY AND EQUIPMENT WITHIN ONE 9 HUNDRED (100) FEET OF A RESIDENTIAL ZONE, TRANSIENT 10 LODGING FACILITY OR MIXED USE RESORT; PROVIDING 11 FOR CONFLICTS AND SEVERABILITY; AND PROVIDING AN 12 EFFECTIVE DATE. 13 14 15 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF 16 FORT WALTON BEACH, FLORIDA, AS FOLLOWS: 17 SECTION I. AUTHORITY 18 The authority for enactment of this Ordinance is pursuant to the powers of the City of 19 Fort Walton Beach provided in the City Charter and section 166. 021( 1), Florida Statutes 20 ( 2006). 21 SECTION II. AMENDMENT TO CHAPTER 9.06, LOUD OR UNUSUAL NOISES 22 PROHIBITED, OF THE CODE OF ORDINANCES, TO AMEND SECTION 9.06.02, 23 PROHIBITED NOISES DEFINED. 24 25 Chapter 9. 06, Loud or Unusual Noises Prohibited, is hereby amended, as follows: 26 27 9. 06 Loud and Unusual Noises Prohibited 28 The City has determined that the proaress of development within the City limits has 29 created