EMERGENCY ORDINANCE NO. 1636

Transcription

1 AN EMERGENCY ORDINANCE OF THE CITY OF COCOA BEACH, FLORIDA, CREATING A NEW CHAPTER 13.5, NOISE, ; PROVIDING A FINDING OF EMERGENCY; PROVIDING FINDINGS OF FACT; PROVIDING ADOPTION; PROVIDING FOR ENFORCEMENT; PROVIDING MEANS AND METHODS OF DETERMINING EXCESSIVE NOISE; PROVIDING THAT EXCESSIVE NOISE IS A CODE VIOLATION; DECLARING THAT EXCESSIVE NOISE IS A PUBLIC NUISANCE; AND PROVIDING FOR CONFLICTS, CODIFICATION, SEVERABILITY, AND EFFECTIVE DATE. WHEREAS, the City of Cocoa Beach ( City ) is a municipality with municipal home rule powers established pursuant to Chapter 166 Florida Statutes; and WHEREAS, the City of Cocoa Beach has recently received voluminous complaints about excessive noise which is interfering with the quality of life and quiet enjoyment of residents homes; and WHEREAS, the Florida Supreme Court has acknowledged that protecting the public from excessively loud noise is a compelling state interest. State v. Catalano, 104 So.3d 1069, 1079 (Fla. 2012) (citing Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)); and WHEREAS, the City Commission of the City of Cocoa Beach makes a legislative determination that there exists an emergency situation which necessitates the adoption of this emergency ordinance; and WHEREAS, the City Commission has determined that although the current ordinance provisions addressing noise violations are valid and enforceable, the need to expeditiously adopt a better and supplemental method of enforcement of noise complaints constitutes an emergency, and is in the best interests of the health, peace, safety, and general welfare of the citizens of Cocoa Beach; and WHEREAS, the City Commission finds it in the best interests of its citizens to enact an emergency ordinance addressing noise violations while at the same time working with and amongst the city staff, the City Commission, and the public to adopt a permanent non-emergency ordinance relating to noise violations; and WHEREAS, the City Commission anticipates the adoption of a non-emergency ordinance on this same subject to replace this Emergency Ordinance; and WHEREAS, the City Commission finds and declares that it is the City Commission s legislative intent that this Ordinance be and enforced as a content-neutral regulation of excessive noise, and WHEREAS, the City Commission hereby finds and declares that this ordinance is in the best interest of the public health, safety, and welfare. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF COCOA BEACH, FLORIDA:

2 SECTION 1. FINDINGS. The foregoing Whereas clauses are true and correct and are hereby ratified and confirmed by the City Commission. SECTION 2. ADOPTION. Chapter 13.5, Noise of the Code of Ordinances of the City of Cocoa Beach is hereby adopted to read as follows: ARTICLE 1. IN GENERAL Sec Authority and Purpose This chapter is enacted under the home rule power of the City of Cocoa Beach in the interest of the health, peace, safety and general welfare. The purpose of this Chapter is to regulate and reduce the man-made noises and sound levels within the city in order to preserve, protect and promote the public health, peace, comfort, safety and welfare, and the peace and quiet and quality of life of the inhabitants, both residents and visitors alike, of the city, prevent injury to human and animal life, preserve property values, foster the peace and comfort of the city s inhabitants, and facilitate the enjoyment of the natural attractions of the city. Sec Findings of Facts Based on information presented at various city commission meetings by residents of Cocoa Beach, communications from city residents to city staff and city commissioners, the practical first-hand experience and observations of city commissioners, common sense deductions of city commissioners based on long term experiences in Cocoa Beach, information learned by city commissioners from various residents, and from research concerning the adverse health consequences of excessive noise, the city commission finds, recognizes, determines and declares: 1. It is the public policy of the city that every person is entitled to sound levels that are not detrimental to the life, health, comfort and peace of the city s residents and visitors, and to be free of excessive noise that interferes with the enjoyment of property in the city by its residents and its visitors. 2. Scholarly research has shown that exposure to excessive noise can have serious and long term negative physical and psychological health consequences which can include, but are not limited to, hearing impairment, hypertension, heart disease, sleep disturbance, changes in the immune system and increased incidence of diabetes. Research has also shown that adverse cardiovascular effects occur from chronic exposure to noise due to the sympathetic nervous system's inability to habituate. The sympathetic nervous system maintains lighter stages of sleep when the body is exposed to noise, which does not allow blood pressure to follow the normal rise and fall cycle of an undisturbed circadian rhythm. 3. Stress from time spent around elevated noise levels has been linked with increased accident rates and aggression and other anti-social behaviors. 4. It is recognized that excessive noise in the vicinity of residences potentially lowers the value of such residences. Page 2 of 7

3 Residents of the city have the right to have peace and quiet in and about their residences and have the right to be free of excessive noise. 6. The city recognizes the importance of the provisions of the Florida Constitution, Art. 2, Sec. 7, relating to the abatement of excessive and unnecessary noise. 7. It is hereby declared that the making, creation or maintenance of excessive noise within the city is a menace to the public health, comfort, safety, welfare, peace and the quality of life and prosperity of the people of the city. The provisions and prohibitions hereinafter contained and enacted are the minimum deemed to be necessary to protect the health, safety and welfare of the city and its residents and visitors. 8. It is recognized that due to the intermittent character of some violations of this chapter, traditional methods of code enforcement with running fines, or citations which could merely be considered a cost of doing business by some commercial establishments, may not be effective means of deterrence of violations of this chapter. Therefore, it is found that in some cases, it is reasonable and appropriate, at the determination of the city manager and/or the city commission, to provide for enforcement of this chapter through a request for equitable relief in the circuit court. Sec Excessive noise declared a violation/means and methods of determining excessive noise It is a violation of this code of ordinances for any person within the city to make, continue, cause, or allow to be made or continued, any excessive noise as defined herein. This chapter sets forth two means and methods by which sound can be determined to be excessive noise and therefore a violation of this code of ordinances. Those means and methods are the Traditional method (Article II), and the Clearly Audible at a Distance method (Article III). A finding of excessive noise under either one of the two means and methods shall be sufficient to establish a violation of this code, and it shall be no defense to such a finding that a different means and method was not used in making the determination. The determination of which means and method is to be used in the determination of any violation shall be up to the reasonable discretion of the investigating officer determining the violation. Sec Declaration of public nuisance It is hereby found and determined that excessive noise in the City of Cocoa Beach is a public nuisance, subject to injunction and abatement by a court of competent jurisdiction. Sec Enforcement. Violations of this chapter may be investigated by the Cocoa Beach police department and/or any code officer duly appointed by the city manager, (herein Page 3 of 7

4 investigating officer ) and may be enforced through any, some, or all of the following: (a) A suit brought by the city in the circuit court to restrain, enjoin, or prevent a violation of this chapter. (b) Citation enforcement with each individual violation being a Class V violation. (c) Special Magistrate proceedings. (d) Any other legal proceedings deemed appropriate by the city manager. Sec Construction of chapter. This chapter shall be liberally construed to accomplish its purpose of regulating excessive noise, protecting the character of Cocoa Beach, the health, safety, and general welfare of its residents and visitors, and the preservation of the quality of life in Cocoa Beach, and the quiet enjoyment by Cocoa Beach s residents of their residential property. Sec Severability In the event that any word(s), phrase(s), portion(s), sub-sub-section(s), subsection(s), or section(s) of this Chapter, is contrary to law, or against public policy, or shall for any reason whatsoever held to be invalid, illegal or unconstitutional, by any court of competent jurisdiction, such word(s), phrase(s), portion(s), sub-subsection(s), sub-section(s), or section(s) of this Chapter shall be null and void, and shall be deemed severed, and a separate, distinct, and independent provision from the remaining provisions of this Chapter, and such holding shall in no manner affect the validity of the remaining words, phrases, portions, sub-sub-sections, subsections, or sections of this Chapter, which shall remain in full force and effect. This Chapter shall be construed in a manner to accomplish, to the greatest extent legally possible, the purposes of this Chapter as expressed herein. Further, specifically, and without limitation, in the event any portion of this Chapter, expressed or implied, causes this Chapter or any portion thereof, to be determined to be a content-based regulation rather than a content-neutral regulation, then such portion of this Chapter causing such determination shall be deemed severed, and it is declared the legislative intent of the City Commission that the balance of this Chapter would have been enacted absent such portion. Sec through Reserved. ARTICLE II. TRADITIONAL MEANS AND METHOD OF DETERMINING EXCESSIVE NOISE Sec Excessive noise determination under traditional means and method Either in response to a complaint, or upon an investigating officer becoming otherwise aware of an alleged violation of this chapter, the investigating officer may proceed to investigate the alleged violation by interviewing witnesses and listening to the alleged excessive noise. Excessive noise as determined by this traditional Page 4 of 7

5 means and method means any sound, as perceived by the investigating officer (with the investigating officer using his normal hearing faculties, not enhanced by any mechanical or medical device such as a hearing aid), which due to its volume, pitch, time, duration, and/or location, unreasonably disturbs the peace, quiet and comfort of reasonable persons of normal sensitivities in and about their residences, accommodations, businesses, offices, or neighborhood. Sec through Reserved. ARTICLE III. CLEARLY AUDIBLE AT A DISTANCE MEANS AND METHOD OF DETERMINING EXCESSIVE NOISE Sec Excessive noise determination under clearly audible at a distance means and method Either in response to a complaint, or upon an investigating officer becoming otherwise aware of an alleged violation of this chapter, such investigating officer may proceed to investigate the alleged violation by the clearly audible at a distance means or method of determining excessive noise as described hereinafter. The investigating officer shall determine the source of the sound being investigated and shall reasonably determine the relevant property lines of the real property that is the source of the sound being investigated (the Originating Property ). The investigating officer may then, through physical measurement or other reliable source, determine a location which is either 100 feet or more, or 300 feet or more, as applicable depending upon the time of the occurrence, from any property line of the Originating Property. The investigating officer shall then, at that location, use his normal hearing faculties, not enhanced by any mechanical or medical device, such as a hearing aid, to determine whether the sound being investigated is clearly audible as defined herein. The standards to be used to determine whether a violation of this code is occurring are as follows: a) No person shall permit, cause, allow, or create sound that is clearly audible 100 feet or more in distance from any property line of the Originating Property, during or between the hours of 11:00 p.m. through 7:00 a.m., and if such sound occurs it shall be deemed excessive noise as prohibited by this Chapter. b) No person shall permit, cause, allow, or create a sound that is clearly audible 300 feet or more in distance from any property line of the Originating Property, during or between the hours of 7:01 a.m. through 10:59 p.m., and if such sound occurs it shall be deemed excessive noise as prohibited by this Chapter. Sec Definitions The following terms as used in this Article are defined as set forth hereinafter: Clearly audible shall mean any sound produced by any source, or reproduced by a radio, tape player, television, CD player, electronic audio equipment, musical instrument, sound amplifier or other mechanical or electronic sound making device that can be clearly heard by a person using his/her normal hearing faculties, at a distance as defined in this article from the property line of the source of the sound. Page 5 of 7

6 When the particular sound involves words or phrases, the sound may be deemed as "clearly heard" even though the investigating officer cannot determine the specific words or phrases being uttered or produced. The detection of a rhythmic bass reverberating type of sound is sufficient to constitute a clearly audible sound. Property line shall mean an imaginary line along the surface of land, and its vertical plane extension, which separates the real property owned, rented, controlled or leased by a person or entity from real property owned, rented, controlled or leased by another person, entity, or government. Where an Originating Property extends into a water body, the applicable property line of the Originating Property shall be the imaginary line, and its vertical plane extension, separating where the dry land touches the body of water, so that submerged lands, whether below dockage or not, and regardless of ownership of the submerged lands or dockage, shall not be considered part of the Originating Property for purposes of making the 100 feet or 300 feet measurements (as applicable), unless the sound is being produced or reproduced on the dockage or over the water, in which case the applicable property line of the Originating Property for purposes of making the 100 feet or 300 feet measurements (as applicable) shall be the actual location of the origin of such production or reproduction of such sound. SECTION 3. CONFLICTS. All Ordinances or parts of Ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed to the extent of any conflict; provided, however, this Ordinance shall be deemed supplemental to the current ordinances relating to noise that are contained in Chapter 15 of this code of ordinances, and shall not act to repeal such ordinances. SECTION 4. CODIFICATION. The provisions of this Ordinance shall be codified as and become and be made a part of the Code of Ordinances of the City of Cocoa Beach. SECTION 5. SEVERABILITY. In the event that any word(s), phrase(s), portion(s), sub-subsection(s), sub-section(s), or section(s) of this Ordinance, is contrary to law, or against public policy, or shall for any reason whatsoever held to be invalid, illegal or unconstitutional, by any court of competent jurisdiction, such word(s), phrase(s), portion(s), sub-sub-section(s), sub-section(s), or section(s) of this Ordinance shall be null and void, and shall be deemed severed, and a separate, distinct, and independent provision from the remaining provisions of this Ordinance, and such holding shall in no manner affect the validity of the remaining words, phrases, portions, sub-subsections, sub-sections, or sections of this Ordinance, which shall remain in full force and effect. This Ordinance shall be construed in a manner to accomplish, to the greatest extent legally possible, the purposes of this Ordinance as expressed herein. Further, specifically, and without limitation, in the event any portion of this Ordinance, expressed or implied, causes this Ordinance or any portion thereof, to be determined to be a content-based regulation rather than a content-neutral regulation, then such portion of this Ordinance causing such determination shall be deemed severed, and it is declared the legislative intent of the City Commission that the balance of this Ordinance would have been enacted absent such portion. SECTION 6. EFFECTIVE DATE. This Ordinance shall become in full force and effect immediately upon adoption. Page 6 of 7

7 Upon Motion by Commissioner, seconded by Commissioner, this Ordinance was duly adopted at a Regular Meeting of the City Commission of the City of Cocoa Beach, Florida, held on the day of, Ayes: Nays: Absent or Abstaining Ben Malik, Mayor-Commissioner ATTEST: Loredana Kalaghchy, MMC City Clerk First Reading: Date Posted: Date Published : Page 7 of 7