City of Fernandina Beach Police Chief Hurley responds to "noise"

May 25, 2017 5:30 p.m.

Editor's Note: Concerns were raised during the Fernandina Beach City Commission meeting regarding the City of Fernandina Beach Noise Ordinance. City Manager Dale Martin suggested Police Chief James T. Hurley prepared written comments for the commission about the current noise ordinance and issues related to compliance.

Chief Hurley's comments follow:

"When the City of Fernandina Beach adopted a new, practical solution to noise disruption in 2009, it ended years of frustration over the enforcement obstacles associated with the previous “decibel driven” ordinance.  The new ordinance took a common sense approach to balancing the personal perspectives of competing interests by adopting a simple and defensible combination of the “plainly audible” standard and the reasonable requirement that a complainant be able to demonstrate standing and be willing to be named in the complaint.

To properly understand this issue it is important to recognize that those living near the downtown core realize without debate that an urban vibe exists, even in small cities.  They accept the trade-off between access to bars and restaurants and the crowded noise of population centers.  However, there is a breaking point and the nuance of noise acceptance matters greatly.  If you talk to those in neighborhoods that surround the downtown they will tell you that some noise is acceptable, a reasonable expectation of living where they do.

Problems only begin to surface when the camel’s nose goes under the tent, as in new businesses trying to push the envelope by moving “too close” to residential housing and then “noisily” changing the business model to capture bar traffic. The same theory applies when “acceptable” acoustic sets soon morph into amplified music with pounding, repeating bass lines.

Residents that previously accepted the dull roar of distant music are likely to be outraged when the band starts playing in their own backyard, causing windows to rattle and tempers to flare.  Meanwhile, we have heard from business owners that hope to disguise their behavior as “the same as everyone else.”  From a practical perspective, putting amplified music immediately next to an occupied residence is not the same as placing it further away and blocking it with two story brick buildings.  Being able to hear it and being bothered by it are two very different things.  The proof is found in the delicate balance between what has been an acceptable level of noise, and what is being viewed as a breach of peace.

Recent newspaper accounts and emotional commission testimony aside, some folks may wish to create the false impression that the ordinance is not fair; however, no one should be confused by our Noise Ordinance, and those debating the issue should be addressing these concerns with the same set of facts, especially as the facts relate to the Police Department stance on enforcement.

As suggested, issues related to excessive noise closely resemble Breach of Peace, which is a Florida State Statute previously known as Disturbing the Peace. In a 1989 Jacksonville case, officers charged a person with Breach of Peace for singing the song “F*** the Police,” while officers attempted to interview a person nearby.  The Florida First District Court of Appeals ruled that, despite others being in the area, the police officers could not prove that her actions “inflicted injury or incited an immediate breech of the peace.”  This ruling essentially determined that no one with a level standing was affected by her actions.  We use this same guideline when enforcing the Noise Ordinance. There must be a complainant who has a level of standing that can show that the noise is causing them to suffer in some reasonable manner.

For example, the residents of an apartment complex conduct a picnic social in their courtyard and have amplified music.  It is a Saturday and the nearby school is closed, but a person driving by the event hears the music and makes a complaint. That person has no standing in that they cannot prove that they have suffered or been adversely affected by the music’s volume, duration, etc.  However, if another person makes a complaint that this same music is keeping their baby awake and our investigation reveals that it is clearly loud enough to be heard inside their home, even over the television, then that individual has standing and those producing the music will be warned and then cited if the violation continues.  The victim in this case has demonstrated that their quality of life is suffering from the noise.  Typically in cases like this we warn those conducting the party that, absent a city permit, it is likely that there will be valid complaints and we work with them to reduce the sound and duration, while also considering the time of day and other relevant factors.

In some cases an anonymous complainant will call to make a noise complaint. Without being able to verify that the complainant has appropriate standing, or is sufficiently bothered or harmed by the noise, we will not enforce the ordinance.  However, we will survey the situation and make the property owner or representative aware of the complaint.

We have consistently instructed our officers so that they can enforce this ordinance fairly, while hoping to accomplish the goal of compliance and compromise.   In the past we have found that those that are on the receiving end of a noise complaint are often incredibly patient.  In many cases when we actually have to warn or cite an individual or business, the noise is documented as plainly audible many times over the ordinance requirement."

Side bar:

The following email went out to the troops on May 5, 2017 in advance of Shrimp Festival, along with the new ordinance and summation.

From: "James Hurley" <jhurley@fbfl.org>

To: "Police Dept" <PoliceDept@local>

Subject: FW: Ord 2017-08 Code Amendment - Noise

For your information and future action, please see the amended Noise Ordinance, which passed second reading on Tuesday night.  You might also want to read the agenda item summation.

As you probably know, this ordinance was taken back to the commission for some housekeeping issues only.  The one-hundred foot standard at any time of the day or night, anytime of the week, was moved from the back to the front so that the ordinance is less confusing to those not familiar with it.  The plainly audible standard is articulated so that people understand how we go about measuring the distance and enforcing the ordinance.  In other words, no substantive changes were made to the ordinance.

The intent of the ordinance and our enforcement strategy remain the same, to accomplish compliance through documented warnings and citations when necessary.  We have had many public discussions about this ordinance and it appears clear that our residents like the way we balance enforcement and rely on victims who are truly bothered by obvious noise abuse to act as complainants.  I tell people that if a resident or business gets cited for excessive noise it is likely that the noise is plainly audible for well over 100 feet, or well past 25 feet if occurring during restricted hours, as we don’t nit-pick and we are driven by complaints to act.

One future test might include attempts to determine if a reporting person is truly and significantly being bothered by the volume, the hour of the day or night, the proximity to the noise, etc.  Some folks may wish to attack established businesses that otherwise operate without people complaining.  Simply being able to hear downtown noise activity may not be compelling enough a reason to cite a business, but we can cross that bridge when we get to it.

James T. Hurley, Chief of Police

ORDINANCE 2017-08

AN ORDINANCE OF THE CITY OF FERNANDINA BEACH, FLORIDA, AMENDING CHAPTER 42, ARTICLE V, NOISE, BY AMENDING SECTION 42-141, DEFINITIONS, TO ADD DEFINITION OF PLAINLY AUDIBLE; AMENDING SECTION 42-142 REGARDING UNNECESSARY AND EXCESSIVE NOISE SETTING FORTH PLAINLY AUDIBLE MEASUREMENT STANDARD; AMENDING SECTION 42-145 REGARDING EXEMPTIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.

NOW, THEREFORE, THE CITY OF FERNANDINA BEACH HEREBY ORDAINS:

SECTION 1. It is hereby proposed that Section 42-141 of the Code of Ordinances, City of Fernandina Beach, Florida is hereby amended to read as follows:

Sec. 42-141. - Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Amplification device means any instrument, machine, or system, which by electronic means augments sound by increasing the sound level or volume.

Amplified sound means sound augmented by any electronic means that increases the sound level or volume.

Central business district means the C-3 zoning district as defined by the city's land development code.

City manager means the city manager or the city manager's designee which may be one of his assistants or a department or division head of the city designated by the city manager.

Code inspector means an authorized employee or agent of the city whose duty it is to ensure code compliance, including but not limited to inspectors of the city's code compliance department, police officers, or any authorized agent or employee of the city whose duty it is to assure code compliance.

Emergency work means any work performed for the purpose of remedying conditions that create an imminent peril to life, health or property.

Habitual means when a person or entity has more than five offenses within 18 months of the first offense.

Motorcycle means any motor vehicle having a saddle or seat for the use of the rider and designed to travel on not more than three wheels in contact with the ground. The term shall include motorized bicycles and motor scooters.

Motorized vehicle means any motor-operated vehicle licensed for use on the public highways, but not including motorcycles or recreation vehicles.

Offense means a notice of violation that has not been appealed timely or a finding of violation by the code enforcement and appeals board following the appeal of a violation.

One day means a 24-hour period from noon to noon.

Plainly Audible means any sound that can be detected by a person using his or her unaided hearing faculties and can reasonably determine the source of the noise. who has a direct line of sight and hearing to the source of the noise. The person need not determine particular words or phrases, or the name of any song or artist, the detecting of a rhythmic bass reverberating sound is sufficient.

Premises means any real property or parcel of land, including the buildings, structures, other improvements thereon, private courtyards and private alleys.

Qualified noise engineer means any person selected pursuant to the city's competitive bidding procedures.

Recreational vehicle means any race car, motorcycle or any other motorized vehicle equipped for use in racing or other recreational events or uses off of public rights-of-way on public or private property.

Residential district means the R-E, R1-G, R-1, RLM, R-2, R-3, OT-1, and OT-2 zoning districts as defined by the city's land development code.

Temporary use means those uses deemed temporary uses under the city's land development code.

Violator means a person or entity determined or cited by a code inspector or police officer as being in violation of the provisions of this article.

SECTION 2. It is hereby proposed that Section 42-142 of the Code of Ordinances, City of Fernandina Beach, Florida is hereby amended to read as follows:

Sec. 42-142.  Noises; unnecessary and excessive prohibited; plainly audible measurement.

It shall be unlawful for any person to make, continue, or cause to be made or continued any unreasonably loud, excessive, unnecessary or unusual noise. Except as provided in Section 42-145, the following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section, but this enumeration shall not be deemed to be exclusive, namely:

• Horns, signaling devices, etc. The sounding of any horn or signaling device on any automobile, motorized vehicle, recreational vehicle, motorcycle, bus or other vehicle on any street or public place of the City that creates any excessive or unreasonably loud noise for any unnecessary and unreasonable period of time.
• Radios, televisions, amplification devices, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, amplification device, musical instrument, phonograph, or other machine or device for the producing, reproducing or amplification of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, premises, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, amplification device, phonograph, machine or other device between the hours of 10:00 p.m. and 7:00 a.m. Sunday through Thursday and 11:00 p.m. to 7:00 a.m. on Friday and Saturday, in such a manner as to be plainly audible at a distance of twentyfive (25) feet from the premises or vehicle in which such noise is located shall be prima facie evidence of a violation of this section.  The operation of any such set, instrument, amplification device, phonograph, machine or other device at any other time of day or night, in such a manner as to be plainly audible at a distance of one hundred (100) feet from the premises or vehicle in which it is located shall be prima facie evidence of a violation of this section.
• Animals, birds, etc. The owning, harboring, possessing or keeping of any dog, animal or bird which causes frequent, habitual or long continued noise which is plainly audible at a distance of one hundred (100) feet from the building, structure or yard in which the dog, animal or bird is located.
• The blowing of any locomotive whistle or whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger or upon request of the proper municipal authorities.
• Defect in vehicle or load. The use of any automobile, motorcycle, jet ski, water bike, recreational vehicle, dirt bike or motorized vehicle so out of repair, so loaded, so modified or in such manner as to create unreasonably loud or unnecessary grating, grinding, rattling or other noise within a residential area.
• Schools, courts, hospitals. The creation of any excessive or unreasonably loud noise on any street adjacent to any school, institution of learning, house of worship or court while the same are in use, or adjacent to any hospital, which unreasonably interferes with the workings of such institutions, or which disturbs or unduly annoys the patients in the hospital, provided conspicuous signs are displayed in such streets indicating that it is a school, hospital or court street.
• Hawkers, peddlers. The shouting and crying of peddlers, hawkers, and vendors which disturbs the peace and quiet of the neighborhood.

• Noises to attract attention. The use of any drum, loudspeaker, or other instrument or device for the purpose of attracting attention by creation of any unreasonably loud or unnecessary noise to any performance, show, sale, display or advertisement of merchandise.
• Loudspeakers, etc. The use or operation on or upon the public streets, alleys and thoroughfares anywhere in this City for any purpose of any device known as a sound truck, loud speaker or sound amplifier or radio or any other instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon such streets or public places aforementioned. It is provided, however, that this subsection is not intended to be construed in a manner that would interfere with the legitimate use of the foregoing loudspeaker type devices in political campaigns.
• Tools and landscaping equipment. The operation of noise-producing lawn mowers, lawn edgers, weed trimmers, blowers, chippers, chain saws, power tools, hammers, air compressors, and other noise-producing tools which are used to maintain property out-of-doors between 8:00 p.m. and 7:00 a.m.
• Shouting and Yelling. Shouting or yelling in such manner as to be plainly audible at a distance of twenty-five 25 feet from the premises or vehicle in which such noise is located shall be prima facie evidence of a violation of this section.
• Motorized vehicles, Motorcycles and Recreational Vehicles. The operation of a motorized vehicle, motorcycle, recreational vehicle or combination of vehicles that is not equipped with a muffler or other noise-dissipative device or is otherwise cutout, bypassed or modified to increase noise production and creates any excessive or unreasonably loud noise for any unnecessary and unreasonable amount of time in any Residential District or the Central Business District, or the operation of a motorized vehicle, motorcycle, recreational vehicle or combination of vehicles that creates excessive or unreasonably loud noise for any unnecessary and unreasonable amount of time and which is plainly audible at a distance of two hundred (200) feet from the motorized vehicle, motorcycle or recreational vehicle in all other zoning districts within the city.
• Plainly Audible Standing and Measurement. In determining whether a sound is plainly audible, law enforcement personnel or code enforcement officers shall be entitled to measure the sound according to the following standards:
• The primary means of detection shall be by means of the officer's ordinary auditory senses, so long as the officer's hearing is not enhanced by any mechanical device, such as a microphone or hearing aid.
• The officer must have a direct line of sight and hearing to the source producing the sound so that he/she can readily identify the offending source and the distance involved.

(3)(2) The officer need not determine the particular words or phrases being produced or the name of any song or artist producing the sound. The detection of a rhythmic bass reverberating type sound is sufficient to constitute a plainly audible sound.

(4) The standards which shall be considered in determining whether sound annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable person of normal sensibilities shall include, but shall not be limited to, the following:

• The volume of the sound.
• The intensity of the sound.
• Whether the nature of the sound is usual or unusual.
• The volume and intensity of the background sound, if any.
• The proximity of the sound to residential sleeping facilities.
• The nature and zoning of the area within which the sound emanates.
• The time of the day or night the sound occurs.
• The duration of the sound.
• Whether the sound is produced by a commercial or noncommercial activity.
• The measurement period shall be not less than ten (10) minutes (continuous).

SECTION 3.  It is hereby proposed that Section 42-145 of the Code of Ordinances, City of Fernandina Beach, Florida is hereby amended to read as follows:

Sec. 42-145.  Exemptions.

The following uses and activities shall not constitute unreasonably loud, excessive, unnecessary or unusual noises prohibited in section 42-142:

• Cries for emergency assistance and warning calls.
• Radios, sirens, horns and bells and other sounds created by police, fire and other emergency response vehicles.
• Parades, fireworks displays, and other activities for which a permit or other agreement has been obtained from the city, within such hours and in accordance with such restrictions as may be imposed as conditions for the issuance of the permit.
• Authorized activities on or in municipal or publicly owned properties and facilities, except where such publicly owned properties or facilities are under private operation or use, unless the city manager or the city manager's designee has specifically authorized an exemption from this section, which exemption will be subject to specific requirements consistent with the administrative guidelines approved by separate resolution of the city commission.
• Fire alarms and burglar alarms, bells and chimes of churches or other religious institutions.
• Locomotives and other railroad equipment and aircraft, to the extent that city regulation is preempted by federal law.
• Noises resulting from emergency work and from relief valves rupture disks, and other safety and emergency devices and signals.
• Any noise resulting from activities of a temporary duration permitted pursuant to section 42-144.
• Noise generated by motor vehicles as defined in F.S. § 320.01 when operated and equipped in accordance with requirements set forth in the Florida Statutes.
• Noise resulting from the operation of vessels when operated in compliance with the decibel limitations in F.S. § 327.65. However, noise exceeding the limitations set forth in F.S. § 327.65 shall be subject to enforcement and penalties as set forth in F.S. ch. 327.
• Noise as defined in subsection 42-142(b) shall be permitted for extended hours on the Sunday of holiday weekends, specifically, Memorial Day and Labor Day, and on Thursday or Sunday of Fourth of July weekends when the Fourth of July falls on Friday or Monday, from 7:00 a.m. through 11:00 p.m. However, the operation of any such set, instrument, amplification device, phonograph, machine or other device at any time of day or night, in such a manner as to be plainly audible at a distance of one hundred (100) feet from the premises or vehicle in which it is located shall be prima facie evidence of a violation of section 42-142.
• Noise generated by a forest products processing plant together with all related or ancillary activities, including trucking. if the plant has been in operation for one year or more. The provisions of this subsection shall not apply when a nuisance results from the negligent, improper, or illegal operation of any such forest products processing plant or ancillary activities.

SECTION 4.   If any section, subsection, sentence, clause, phrase of this ordinance, or the particular application thereof shall be held invalid by any court, administrative agency, or other body with appropriate jurisdiction, the remaining section, subsection, sentences, clauses, or phrases under application shall not be affected thereby.

SECTION 5.  That this Ordinance shall become effective immediately upon its final adoption.

PASSED AND ADOPTED, this 2^nd day of May, 2017.