AN ORDINANCE AMENDING AND RESTATING ORDINANCE NO.

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1 ORDINANCE NO AN ORDINANCE AMENDING AND RESTATING ORDINANCE NO RELATING TO OUTDOOR CONCERTS; PROVIDING THE TITLE OF THE ORDINANCE; PROVIDING DEFINITIONS; MAKING FINDINGS; PROVIDING AUTHORITY; PROVIDING SCOPE; PROVIDING PROHIBITED HOURS FOR OUTDOOR CONCERTS; PROVIDING FOR ENFORCEMENT; PROVIDING FOR VARIANCES; PROVIDING FOR NARROW CONSTRUCTION; PROVIDING FOR SEPARATE VIOLATIONS; PROVIDING FOR RESOLUTIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Article II, Section 7 of the Florida Constitution states (a) It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources; and WHEREAS, according to the U.S. Census Bureau, Polk County has an estimated population of 650,092, larger than Wyoming at 589,713 and Vermont at 626,042; and WHEREAS, Polk County is ranked 38 th in per capita income in comparison to the other counties in the State of Florida; and WHEREAS, Polk County has a total land area of 2011 square miles, slightly smaller than Delaware at 2,491 square miles, but quite a bit larger than Rhode Island at 1,214 square miles; and and WHEREAS, the unincorporated land area of Polk County is 1,695 square miles; WHEREAS, the Polk County Sheriff s Office ( PCSO ) is Ten Star Accredited law enforcement agency and is the sole law enforcement agency charged with enforcing county ordinances in the unincorporated areas of Polk County; and WHEREAS, in spite of increased funding by the Board of County Commissioners of Polk County, Florida, the PCSO and Polk County Fire/Rescue have limited resources to respond to extraordinary events, particularly in the rural, unincorporated areas of the county; and WHEREAS, public health, safety, and welfare hazards arising from Outdoor Concerts, including, without limitation, unsanitary conditions, alcohol and drug abuse, driving under the influence, and unsafe conditions for first responders from law enforcement and Fire/Rescue to respond to calls for service, have been and continue to be a serious problem in Polk County; and

2 WHEREAS, unreasonably loud, raucous, jarring, unseemly, and disturbing noise intrusion into residential areas from Outdoor Concert venues, disturbance of the character of the area in the vicinity of an Outdoor Concert venue, are also problematic and problems will increase in conjunction with the growth, development, and urbanization of Polk County and changes in culture and technology; and WHEREAS, limiting the hours that Outdoor Concerts may be held reduces the impacts from the public health safety, and welfare hazards by limiting the hours Outdoor Concert goers are active, drinking alcohol, and driving home from the venue, and reduces demand for services from the PCSO and Polk County Fire/Rescue; and WHEREAS, on October 6, 1992, the Board of County Commissioners of Polk County Florida (the Board ), adopted Ordinance No , the Polk County Noise Control Ordinance, which attempted to address noise disturbances from various sources including amplified music, which ordinance has been modified in 1999, 2004, and 2014 to address changes in the source of noise disturbances and the law; and WHEREAS, on March 3, 1998, the Board, adopted Ordinance No (the Outdoor Concert Ordinance ), An Ordinance Prohibiting Outdoor Concerts during certain hours at the request of the Polk County Sheriff s Office due to the emergence of unauthorized and unpermitted Outdoor Concerts in the unincorporated areas of Polk County events then known as Raves, which resulted in public health, safety, and welfare hazards, calls for service, and noise complaints due to either noise intrusion into residential areas, or noise contrary to the character of the area in the vicinity of the Outdoor Concert venue and WHEREAS, according to the minutes of the adoption hearing the Outdoor Concert Ordinance was a stop gap measure while the Sheriff and others work out a more detailed ordinance; and WHEREAS, on March 1, 2000, the Board adopted the Polk County Land Development Code after approximately years of work whose purpose and intent (including, inter alia, regulation of land uses and permitting for Outdoor Concert venues) are as follows: The purpose of the Polk County Land Development Code is to establish regulations, standards, and review procedures for the use of land and the development of land and to encourage the utilization of lands as agriculture. It is the intent of this Code that the use and development of land comply with the requirements of those documents listed above and that the most appropriate use of land, water, and resources, consistent with the public interest be allowed. Furthermore, it is the intent of this Code to preserve, promote, and improve the public safety, health, comfort, good order, appearance, convenience, law enforcement, fire prevention, and general welfare of the citizens of Polk County; to facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational

3 facilities, housing, and other required services; and to conserve, develop, utilize, and protect natural resources. It is not the intent of this regulation to restrict, confine or otherwise limit the agricultural use of the land. In addition to improving the quality of life for Polk County citizens, it is the intent of this Code to provide a streamlined yet effective review and approval process while protecting the citizens of Polk County and respecting the rights of property owners. WHEREAS, Polk County, through the Polk County Land Development Code, as amended, has attempted to address with mixed success the land use and permitting aspects of the various areas of concern related to the evolving incarnations of Outdoor Concert venues, from the initially problematic Raves, to party barns, music barns, music ranches, single use venues exceeding scope of approvals, festivals, agri-tourism based activities, and others, that continue to this day, and will continue into the future as culture and technology evolve; and WHEREAS, the Polk County Sheriff s Office has continued to monitor the efficacy of the Polk County Noise Ordinance, the Polk County Land Development Code, and the Outdoor Concert Ordinance since their inception, to determine if they provide the necessary tools for its staff, with the limited resources available, to effectively address the public health, safety, and welfare hazards, noise complaints due to noise intrusion into residential areas, and disturbance of the character of the area in the vicinity of the Outdoor Concert venue, that arise from Outdoor Concerts in the unincorporated areas of Polk County Florida; and WHEREAS, the Polk County Sheriff s Office has determined that maintaining the current prohibited hours in Ordinance No is reasonable and necessary to address public health, safety, and welfare hazards that arise from Outdoor Concerts with the limited resources available, as well as, noise intrusion into residential areas, and maintaining the character of the area in the vicinity of the Outdoor Concert venues; and WHEREAS, it is the purpose of this ordinance to provide a reasonable, contentneutral, narrowly tailored, time, place, and manner regulation in order to limit Outdoor Concerts during certain hours, to protect against the public health, safety, and welfare hazards arising from Outdoor Concert venues, preserving the reasonable peace and quiet of the residents of Polk County, inhibiting disturbing noise from intruding into residential areas, or from disturbing the character of the area in the vicinity of an Outdoor Concert venue; and NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA: SECTION 1: TITLE

4 This ordinance shall be known and may be cited as the Polk County Outdoor Concert Ordinance. SECTION 2: DEFINITIONS As used in this ordinance, the following terms shall have the following meanings: A. Outdoor Concert shall mean a public or private performance of singers, instrumentalists, and/or recorded/electronic music using amplified speakers on a temporary or permanent stage in the open air, or in a partially enclosed (less than four (4) sides of a quadrangle or 270 degrees of circular or polygon enclosure building, or in a tent, or other similar temporary or permanent structure. B. Event shall mean a single Outdoor Concert conducted at a specific location starting with the first performance of singers, instrumentalists, and/or recorded/electronic music and concluding with the last performance of singers, instrumentalists and/or recorded/electronic music. SECTION 3: FINDINGS The foregoing findings are incorporated herein by reference and made a part hereof. SECTION 4: AUTHORITY This ordinance is enacted under the Home Rule Power of Polk County, specifically Section (1), Florida Statutes, Article II, Section 7, Florida Constitution, which provides that adequate provision shall be made by law for the abatement of excessive and unnecessary noise, and the First Amendment to the U.S. Constitution that permits reasonable, content-neutral, narrowly tailored, time place, and manner regulations. SECTION 5: SCOPE This ordinance shall be effective throughout the unincorporated areas of Polk County, Florida. This ordinance is limited to the regulation of Outdoor Concerts. Nothing herein shall be deemed to waive the requirements of other county ordinances, including, without limitation, the Polk County Noise Control Ordinance No , the Polk County Land Development Code, and the Polk County Comprehensive Plan. SECTION 6: PROHIBITION Outdoor Concerts shall not be conducted after the hours of 11:00 p.m. and before 10:00 a.m.

5 SECTION 7: ENFORCEMENT The Polk County Sheriff s Office, Polk County s code enforcement officers, and any other person authorized to enforce county ordinances may enforce the provisions of this Ordinance. Violations of this ordinance shall be prosecuted in the same manner as a misdemeanor with a fine not exceeding Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term not exceeding sixty (60) days or by both fine and imprisonment. When enforced by a code enforcement officer, the enforcement provisions and procedures contained in the Polk County Code Enforcement Special Magistrate Ordinance, as may be amended, are incorporated herein by reference and will apply. Nothing contained herein shall prevent the County from taking such other lawful action in law and equity as may be necessary to remedy any violation of any part of this Ordinance, including, without limitation: A. Pursuit of injunctive and/or declaratory relief in a court of competent jurisdiction; and B. Utilizing any other action or enforcement method permitted by law. SECTION 8: VARIANCES A. Authority to Grant of Variances The Board may grant a variance from the strict application of this Ordinance, on a per Event basis, if the following procedures are followed and findings made. Variances under this Ordinance shall be heard solely by the Board, and not by either the Board of Adjustment, or the Planning Commission. B. Application Applications for a variance from this Ordinance shall be filed with the County s Planning & Development division and shall be accompanied by the applicable fee established by resolution of the Board for variances. All such applications must contain: 1. The name, address, and telephone number of the Applicant; 2. A reasonably detailed description of the Event for which the variance is requested; including, without limitation: date and times; what is proposed; how many attendees expected; public health, safety, and welfare precautions; safety plan; and, noise attenuation utilized. 3. Applicant s reasonably detailed statement addressing Applicant s position that the Criteria for Granting Variances D D.6 will be met.

6 C. Notice Public notice of the Board hearing shall be given pursuant to Section 960, of the Land Development Code. The Applicant shall bear the actual cost of such notice, paid in advance at the time of application. D. Criteria for Granting Variances In order to authorize any variance from the terms of this Ordinance, the Board shall consider the following factors: 1. The findings in the staff report; 2. Whether granting the variance will be in accordance with the general intent and purpose of the Ordinance, is in compliance with other applicable county regulations, and that the variance will not be injurious to the area involved or otherwise detrimental to the public health safety and welfare; 3. Whether special conditions and circumstances exist which are peculiar to the particular Event, land, structure, or building involved and which are not applicable to other Events, lands, structures, or buildings in similar areas; 4. Whether the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure; 5. Whether the variance, if granted, will result in a prohibited change of land use that would not be permitted in the Land Development Code and the Comprehensive Plan; and 6. Whether the granting of the variance circumvents previous in force approvals of the applicant, or an in force condition of approval placed on the development by the Planning Commission or the Board. E. Conditions, Restrictions, and Safeguards The Board may approve, approve with conditions, or deny the request. The Board may prescribe appropriate conditions, restrictions and safeguards in granting a variance. Violation of any conditions, restrictions, and safeguards, when made a part of the terms under which the variance is granted, shall be considered a violation of this Ordinance.

7 D. Appeals from Decisions of the Board Any person or persons aggrieved by any decision of the Board shall be entitled to a review of the decision by the 10th Judicial Circuit Court of Polk County by filing an appropriate petition with the Clerk of the Court within 30 calendar days after the Board s decision. E. Re-application for an Exception to the Land Development Code A variance may be denied without prejudice by the Board and re-application for such variance may be submitted without waiting the one year period. SECTION 9: NARROW CONSTRUCTION The provisions of this ordinance shall be narrowly construed such that its purpose is effectively rendered in the interest of the health, safety, and welfare of the citizens and residents of Polk County and the First Amendment rights of everyone. SECTION 10: SEPARATE VIOLATIONS Each separate occurrence shall be a separate violation. SECTION 11: RESOLUTIONS The Board of County Commissioners may adopt such resolutions as are necessary to effectively administer this ordinance. SECTION 12: SEVERABILITY If any section, subsection, sentence, clause, phrase, or portion of this ordinance is held invalid or unconstitutional, such holding shall not affect the validity of the remaining portions of this ordinance. SECTION 13: EFFECTIVE DATE A certified copy of this ordinance shall be filed with the Florida Department of State. This ordinance shall take effect upon the receipt of acknowledgment that the ordinance has been filed with that office.