www.mymanatee.org
Manatee County Government Administrative Center Commission Chambers, First Floor 9:00 a.m. - June 4, 2013
June 4, 2013 - Regular Meeting
Agenda Item #40


Subject
Adoption of Proposed Noise Ordinance 13-05

Briefings
All

Contact and/or Presenter Information

James A. Minix, Chief Assistant County Attorney
Jo Ann Grace, Legal Assistant, Ext. 3750



Action Requested

Motion to adopt proposed Ordinance No. 13-05, which will incorporate new provisions and specifics to definitions, prohibited acts, civil remedies and citations, repeal and codification.



Enabling/Regulating Authority
Sections 125.01 and 125.66, Florida Statutes.

Background Discussion

A. Brief History of Noise Regulation.

In General

Noise regulation has been a government prerogative for many years and includes statutes or guidelines relating to sound transmission established by national, state and local levels of government. A noise regulation restricts the amount of noise, the duration of noise, and the source of noise. It usually places restrictions for certain times of the day. Prior to 1960, few people recognized that citizens might be entitled to be protected from adverse sound level exposure. Most citizens' actions were directed against specific sources of noise such as sound arising from a specific highway project or airport. By 1973 however, the national poll found that 60 percent of people considered street noise to have a "disturbing, harmful or dangerous impact." This trend continued strongly throughout the 1970's in the U.S. with about half of the states and hundreds of cities passing substantive noise control laws. Starting in the 1970's, many states began requiring local governments to have a noise element in their comprehensive plans, a substantial noise database and a blueprint for making land use decisions. In addition to land use restrictions, local noise ordinances developed with the goal aimed at controlling construction noise, power equipment and un-muffled industrial noise penetrating residential areas. A typical noise ordinance sets forth clear definitions of acoustic nomenclature and defines categories of noise generation; then numerical standards are established, so that enforcement personnel can take the necessary steps of warning, fines or other municipal police power to rectify unacceptable noise generation. These ordinances have achieved a certain level of success but they can be difficult to enforce in Florida.

Historically in Florida, noise ordinance enforcement in most communities has not been a high priority. Noise enforcement has traditionally not been enforced on a regular basis unless a complaint is received. In many jurisdictions, code enforcement officers may not be properly prepared to take an enforcement action that will result in a strong case for the prosecution. Commercial noise complaints are often vigorously defended and issues are raised concerning the scope or clarity of the ordinance, the training experienced by the compliance officer, or the calibration and correct procedures used in the device to measure sound. [See "Enforcing Noise Ordinances in Florida," by Patrick Dooley]

There are noise regulations set forth in state law that apply:

The Florida Constitution states that it is the policy of the state that adequate provision shall be made by law for the abatement of excessive and unnecessary noise. Art. II, Sec. 7, Fla. Const. Certain Florida statutes involve noise regulation: e.g. Subsection 323.13 (airport noise); Section 316.3045 (regulating car radio noise) [declared unconstitutional by State v. Catalano, 104 So.3d 1069 (Fla. 2012)]; Section 335.17 (airport construction noise); Section 339.09 (FDOT to use funds to construct noise mitigation facilities). Local law enforcement officers often use the "Breach of Peace" Statute (Sec. 877.03) to enforce noise violations. A county noise ordinance provides more specific relief for a noise regulation and there is no statutory counterpart for one in Florida.

Florida Noise Ordinances.

There are many different noise ordinances in effect throughout the state. These ordinances or codes have broad differences. Some are based simply on the nuisance statement (a subjective element), while others are performance-based (objective or noise meter measured). Performance-based ordinances have specific sound level guidelines which, after taking a sound level reading, clearly state what is, and what is not, a violation. Nuisance based ordinances are subjective in that they are based on a finding that some noise disturbance is created under the circumstances of a specific incident. No measurement of noise is taken.

When a local government chooses to use a performance-based type ordinance, the personnel assigned to the enforcement of the ordinance may have very little, or no training in the use of sophisticated measurement equipment. In these situations, the measurement equipment can vary greatly. There are sound level measurement devices that are of high quality, affordable, and with some instruction on the operation, are relatively easy to use. The instruments used for measuring sound vary a great deal in costs, as well as quality.

B. The Proposed Manatee County Noise Ordinance.

Subjective v. Objective Elements

The proposed ordinance is a significant refinement of the previous revision to the original 1999 ordinance. The Manatee County ordinance has always been based on a nuisance element (subjective) and a performance-based element (objective measurements). [See Section 2-21-34 of the ordinance.] The subjective nuisance statement standard has been refined in the proposed ordinance by defining "noise disturbance" in a more specific way and incorporating the definition set forth by the Florida Supreme Court in its recent decision: State v. Catalano, 104 So.3d 1069 (Fla. 2012). We have included in the subjective element of the ordinance the definition of "noise disturbance" the plainly audible standard that the Supreme Court has ruled is not vague.

With regard to the objective decibel level measurement standard set forth in subparagraph 2 of Section 2-21-34, some explanation  concerning the measurement of sound is required:

Sound waves are a series of compressions and refractions within a medium. There are 2 components of sound waves: intensity and frequency. Intensity is determined by the amount of energy in a sound wave. This contributes to the loudness as perceived by the human ear. The intensity, or sound pressure is reported and measured in decibels (dB). The decibel scale is similar to the Richter scale in the respect that are both logarithmic (that is, when there is an increase of 3 dB of sound pressure, humans perceive a 10 dB increase as a doubling of the loudness). Frequency is measured by how fast the sound waves are moving. This determines the pitch of the sound. The term Hertz (Hz) is used to report the measurement of frequency. Frequency is measured in cycles per second. [See Dooley's article, supra.]

Most ordinances require measurement with a decibel or sound meter be taken on the A-scale. The reason for this is that the A-scale is designed to mimic that of human hearing. When a measurement is taken on the decibel meter on the A-scale, the result is a single number per measurement that would be close to the way that the human ear would perceive that particular source. A single number of measurements is then reported, such as 65 dB.

The proposed ordinance also permits enforcement officers to take sound measurement with meters using the "C" scale.  The C-scale weighting system allows the sound meter to pick up low frequencies. These are the the intrusive sub-woofer types of bass sounds that can penetrate structures and result in an unpleasant physical sensation. This type of bass is not readable using an A-scale. Most quality sound meters are already equipped with C-scale weighting and can be changed from A to C weighting with a simple switch. When properly applied, the C-scale is a valuable tool in sound enforcement and can allow Manatee County to control the bass sounds that are frequently annoying to residents.

The Manatee County ordinance is a regulation on sound whatever its source. This avoids the trap to the County of regulating the content of sound, which is forbidden by the Courts. It does not matter whether the sound originates in a house, a nightclub or a vehicle. Nor does it matter what type of sound it is: voices, music or machinery, amplified or non-amplified. With limited exceptions, the kind of sound experienced is irrelevant if it exceeds the maximum dB level or causes a sound disturbance.

Noise ordinance has been upheld in Circuit Court.

It is important to note that this proposed ordinance has been reviewed by acoustical experts, the Manatee County Sheriff's Office, local code enforcement and the State Attorney's Office. The current ordinance has also been evaluated and sustained by the Circuit Court. In once instance, the ordinance was declared unconstitutional by the County Court in a criminal case. An appeal was taken and the Circuit Court ruled that the ordinance was, in fact, constitutional on its face. The Court reserved its ruling on whether it was unconstitutional as applied depending upon the particular circumstances of the noise situation before it. However, due to the difficulty of enforcing the subjective elements of the ordinance prohibiting a "noise disturbance," it was informally agreed among the County Attorney's Office and code enforcement authorities (Manatee County Sheriff's Office and State Attorney's Office) that future violations of the noise ordinance to be criminally prosecuted would come with a noise meter reading to establish the violation in accordance with the objective element of the ordinance.

Specific revisions to the Noise Ordinance.

There have been a number of important revisions to the current ordinance that are underlined and set forth in the proposed ordinance:

1. As a component of the definition of "noise," we have included amplified bass music that can induce vibrations in building structures or human beings.

2. We have added the formulation from the Florida Supreme Court's decision in State v. Catalano that a component of a "noise disturbance" is sound which "is plainly audible from a distance of 25 feet or more."

3. We have deleted any reference to or definition of "noise pollution" which simply caused confusion with the definition of "noise disturbance."

4. We have added a standard criteria for the sound level limit in order to define what that limit is with more specificity.

5. We continue to make the ordinance applicable only in the unincorporated areas of Manatee County as it has been since 1999 since this allows the municipalities to enact their own ordinances on noise.

6. We have added some language to Sec. 2-21-34 that will make the enforcement of a noise disturbance less difficult to establish that sound constitutes a "noise disturbance pursuant to the applicable standard of proof."

7. We have added the decibel levels on the C-scale to the maximum permissible sound levels in Subsection 2 of Sec. 2-21-34.

8. We have changed the character of sound from "any source of sound which emits a pure tone to, any source of sound which emits a continuous tone."

9. We have increased the dBC sound levels to +5 over the dBA levels.

10. We have changed the area of measuring sound from the property line of the land where the sound originates to within the boundary of the receiving property.

11. We have supplemented the citation system set forth in Section 2-21-36 to include specific penalties for first, second and repeat violations as follows:

First violation-warning.
Second violation-$250
First repeat violation-$500
Second repeat violation-mandatory court appearance and a fine of up to $500

These are the major changes that have been made to the ordinance. We have also made a number of minor changes to the ordinance to make it more readable and to provide more direction in areas where noise meter readings are needed. As stated earlier, as population increases, noise issues come before the Board with increasing frequency. The purpose of the revisions are to make the ordinance clearer, more enforceable and less likely to be struck down by a court.

The County Attorney's Office therefore recommends the enactment of Noise Ordinance No. 13-05.



County Attorney Review
Other (Requires explanation in field below)

Explanation of Other

See attached proposed Noise Ordinance No. 13-05.



Reviewing Attorney
N/A

Instructions to Board Records

Please return a fully approved electronic copy of this agenda item with supporting documents to joann.grace@mymanatee.org.
Thank you.



Cost and Funds Source Account Number and Name
N/A

Amount and Frequency of Recurring Costs
N/A


Attachment:  Noise Ord 13-05 Revisions 2013 Draft 7.pdf
Attachment:  Noise Ord 13-05 Final.pdf
Attachment:  Affidavit Of Publication Ord 13-05.pdf