Fort Walton Beach Council agenda — 01-25-11 special — reading text

standards to enact, and may use suggestions from the EPA as one of the sources of information 13 supporting a proposed ordinance. 1. 3 Constitutional Considerations Any proposed ordinance must be analyzed to discern whether the ordinance raises any substantial constitutional questions. Pennsylvania courts have held that uncertainties in the interpretation of an ordinance are to be resolved in favor of a construction which renders the ordinance constitutional. Archbishop O'Hara's Appeal, 389 Pa. 35, 50 n.5, 131 A.2d 587, 594 n.5 ( 1957); Schmalz v. Buckingham Township Zoning Board, 389 Pa. 295, 298, 132 A.2d 233, 234 ( 1957); Upper Salford Tp. v. Collins, 669 A.2d 335 ( 1995). Municipal ordinances are presumed to be constitutionally valid whether they are enacted by the council of a city, town or borough or by the supervisors of a township. Bilbar Const., supra, at 856. As with all other enactments, ordinances establishing general rules for the conduct of citizens must be drafted clearly and completely so as to express the intention of the governing body, and the statutory requirements for the enactment of the ordinance must be followed. The ordinance must be reasonable, must avoid 14 discrimination, and must avoid the arbitrary or unlawful delegation of power to enforcing officers. 1. 4 Prior Restraint Implications Arguably, anytime a restriction is placed on noise, the right to free speech is implicated, since verbal speech creates sound and if loud enough, noise. The First Amendment forbids the federal government from imposing any system of prior restraint, with certain limited exceptions, in any area of expression that is protected by that Amendment. Freedom of speech is a fundamental right which is not subject to impairment by state action. Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L.Ed. 1138 ( 1925). A O municipal ordinance constitutes state action and is addressed by the prohibition of Section 1 of the 0 o Fourteenth Amendment of the U.S. Constitution. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 . Z L.Ed. 949 ( 1938). By incorporating the prohibitions of the First Amendment in the Fourteenth Amendment, the same limitations are applicable to the states. See, Saia v. People of State of New York, °' IT- 334 U.S. 558, 559 -5605 68 S. Ct. 1148, 92 L.Ed. 1574 ( 1948); Cantwell v. Connecticut, 310 U.S. 296 1940); Lovell v. Griffin, 303 U.S. 444; Hague v. C.I.O., 307 U. S. 496. Running afoul of the First c Amendment can be avoided by drawing the proposed local ordinance narrowly to regulate the hours and °— M location of the noise restriction, and proscribing specific levels of sound ( in decibels) that are reasonably E related to the noise problem sought to be regulated. See, NAACP v. City of Chester, 253 F. Supp. 707 , o E.D. Pa. 1966). The U.S. Supreme Court has held that the police power of a state extends beyond regulation of health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well -being and tranquility of a community. Kovacs v. Cooper, 336 U.S. 775 69 S. Ct. 448, 93 L.Ed. 513 ( 1949). 0 In NAACP v. City of Chester, the Plaintiff brought an action under 28 U.S. C. Section 1343 claiming that an ordinance of the City of Chester, regulating the use of sound amplifying equipment in streets and in public places violated the U.S. Constitution. Plaintiff claimed that the ordinance was subject to the following constitutional infirmities: ( 1) the ordinance was unconstitutional on its face, since it established a prior restraint on the right of free speech; ( 2) the twenty -five dollar per diem fee required by the ordinance was unreasonable; and ( 3) the ordinance imposed an unreasonable restriction on the volume - producing capacity of sound amplifying equipment. The Court15 held that the ordinance was not an invalid prior restraint on Plaintiffs right of free speech. The court stated: The number of hours during which a sound truck may be operated is set forth, an attempt is made to regulate the volume of sound to which amplifying devices must be adjusted and, most important, the issuance of the required permit itself does not, in any way, depend upon an administrative decision16 The city clerk in Chester was in charge of issuing the permits and the ordinance made it clear that permit issuance was a purely " ministerial" function. The court emphasized that the ordinance interfered very little, if at all, with the Plaintiffs right of free speech because permit issuance was premised upon clear, non -discriminatory and non -discretionary standards not subject to the control of any local official and reflected the concern of the City of Chester for the maintenance of peace and tranquility within the community. The ordinance was also not an unreasonable restriction on the volume of sound amplifying equipment since the ordinance regulated " the volume of sound ( in decibels) to which they must be adjusted" in  4.1. a accordance with the U.S. Supreme Court ruling in Saia v. People of the State of New York, supra." The court enjoined, however, the enforcement of the $ 25. 00 fee imposed by the ordinance because the City of Chester failed to show that the fee bore a reasonable relationship to the cost of enforcing the ordinance. 1. 5. Vague, Indefinite or Uncertain Provisions If a statute or an ordinance is so " vague, indefinite or uncertain" that the courts are unable to determine, with any reasonable degree of certainty, the intent of the legislative body, such statute or ordinance is invalid. Murray, et ux. v. Philadelphia, et al., 364 Pa. 157, 176, 71 A.2d 280 ( 1950); Willcox v. Penn Mutual Life Ins. Co., 357 Pa. 581, 595, 55 A.2d 521( 1947) 18; Miller v. Belmont Packing _& Rubber Co., 268 Pa. 51, 63, 110 A. 802 ( 1920). The crucial test to be applied is whether the language of the legislation clearly reveals the intent of the legislative body. Hines v. Winfree, supra, at 702. In Hines v. Winfree, another case involving the Chester sound truck ordinance, a citizen attacked the constitutional validity of an ordinance which prohibited the making of unnecessary noises and regulated the use of sound trucks. The party attacking the ordinance asserted that it was invalid because it was " vague, indefinite or uncertain." The Pennsylvania Supreme Court held that the language of the ordinance clearly set forth "the p intent of the legislative body" and thus met the test. The court stated: o Z This ordinance clearly shows that it was the intent of the councilmanic body to protect the citizens of Chester from " unnecessary noises and sounds" as would occasion them discomfort and annoyance and to regulate the use of sound trucks and sound amplifying equipment in and about the public highways so as to decrease accident hazards, insure the orderly movement of traffic and avoid traffic congestion on such c highways. Winfree, supra, at 702. The court found the provisions of the ordinance to be sufficiently definite because the ordinance permitted the use of sound equipment under certain stated conditions which were "... clearly set forth and with which compliance is neither onerous nor difficult." Id. at 702. By setting forth the noise restrictions specifically, including the conditions under which certain sound levels will be proscribed, and by choosing restrictions which make compliance " neither onerous nor difficulti19, the ordinance will avoid being found to be invalid because of vagueness, indefiniteness or uncertainty. 1. 6. Lawful Exercise of Police Power A law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be obtained. As the court stated in Lutz v. Armour, 395 Pa. 576 ( 1959): Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations...." An ordinance cannot, under the guise of the police power, but really to effect some purpose not within its power interfere with a person's individual lawful property rights. Id. at 110, 111, quoting Gambone v. Commonwealth, 375 Pa. 547, 551, 101 A.2d 634, 636 ( 1954). In Lutz v. Armour a second class township enacted an ordinance permitting the collection of garbage, rubbish, waste material or ashes within the township and the operations of garbage disposal facilities. The same ordinance prohibited the hauling and disposition into the township of any of those materials which originate " from without the township." Operators of a garbage collection and disposal business in the township instituted a suit in equity seeking to enjoin enforcement of the ordinance after being cited for a violation. The Supreme Court of Pennsylvania affirmed the trial court's granting of a permanent injunction. In doing so, the court stated that although the regulation of garbage disposal areas was a proper exercise of police power, the township supervisors failed to demonstrate a factual distinction between waste collected from outside the township and waste collected from within. The distinction in the ordinance had to do with the place of origin of the garbage which the court held had "... no kind of relation to the evil which the ordinance apparently seeks to remedy." Based upon that lack of relationship the court concluded that the challenged ordinance provisions were "... arbitrarily capricious, discriminatory and unconstitutional." In Gambone v. Commonwealth, supra, the Pennsylvania Supreme Court struck down a statute which limited the size of gas station signs that advertised the price of gasoline. A purpose of the law was to prevent the fraudulent advertising of prices, price cutting and price wars. The court found that limiting the size of the sign had no relevancy or connection to the prevention of fraud or price cutting. The court stated that larger signs would have the opposite purpose and would make it more difficult for the gasoline dealer to deceive the purchaser. Also, there was no connection proved " between the size of the sign and the upholding of a uniform price, since the evil to be avoided would not logically be prevented by forbidding conspicuous advertisement of the lower price but rather by prohibiting a lower price being charged20." Consequently, the prohibition of the posting of price signs in excess of a certain size had no rational relation to public health, safety, morals, or welfare and was not a valid exercise of the police o power. Z o T Care must be taken in