Corporate Report. Report from Legal and Clerks Services, Legal Services. Date of Report: February 4, 2015 Date of Meeting: February 23, 2015

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1 Corporate Report Report from Legal and Clerks Services, Legal Services Date of Report: February 4, 2015 Date of Meeting: February 23, 2015 Report Number: LCS File: Subject: By-law to Prohibit and Regulate Noise in the City of St. Catharines - Downtown Establishments Recommendation That Council refer the report from Legal and Clerks Services, Legal Services, dated February 4, 2015, regarding a by-law to prohibit and regulate noise within the City of St. Catharines, for consideration by City Council after the public meeting scheduled for March 23, FORTHWITH Staff Recommendation That Council approve the amendments to the Noise By-law as proposed by staff in the report from Legal and Clerks Services, Legal Services, dated February 4, Summary The City of St. Catharines Noise By-law prohibits and regulates noise within the City by using specific prohibitions for certain types of noise and a general prohibition against noise likely to disturb the inhabitants of the City. The By-law is currently enforced by the Niagara Regional Police and Legal Services staff and is often driven by complaints made by residents of the City. Some amendments to the Noise By-law would assist with the effective enforcement of the By-law. Background At its meeting of September 8, 2014 a motion by Councillor Elliot and approved by Council requested, among other things, that staff report on resolving noise problems, before and after 11:00 p.m. from other venues in the downtown. The other aspects of that motion were addressed in a report from Parks, Recreation and Culture Services, dated January 22, Report Noise By-law The City s Noise By-law, being By-law No , was passed on June 12, 1995 (hereinafter the By-law ). To date the By-law has not been amended. Report Page 1 of 5

2 The By-law deems several types of noises to be likely to disturb the inhabitants of the City whenever these noises are heard. Examples of these types of noises include: - the persistent racing of the motor of a motor vehicle; - the persistent operation of any internal combustion engine without an effective muffling device in good working order; - the persistent operation of a motor vehicle horn or other warning device (except where authorized by law); - the persistent barking, calling or whining of a domestic animal. In addition, the By-law deems certain types of noises to be likely to disturb the inhabitants of the City when these noises are heard between 23:00 hours one day and 07:00 hours the next day. Examples of these types of noises include: - the operation of any electronic device or group of connected electronic devices incorporating one or more loud speakers or other electromechanical transducers and intended for the production, reproduction or amplification of sound: o such that the sound amplified by the devices is clearly audible within a residential unit with the windows closed, other than the one in which the device(s) is located; o in a public place such that the sound amplified by the device(s) is clearly audible within a residential unit with the windows closed; - the operation of any auditory signaling device (ringing of bells, gongs or the blowing of horns or sirens or whistles); - yelling, shouting, hooting, whistling, singing or the playing of musical instruments in such a manner as to make a sound clearly audible within a residential unit, or, in the case of such noises taking place within a residential unit, where the sound is clearly audible within a residential unit with the windows closed, other than the one in which the sound originates; - the operation of construction equipment; - the operation or use of any tool for domestic purposes other than snow removal. In addition to the specific prohibitions it lists, the By-law also makes it an offence to cause or permit any noise likely to disturb the inhabitants of the City. There are no decibel limits contained in the By-law. There are no specific exemptions contained in the By-law, although from time to time Council has approved exemptions from the provisions of the By-law for certain events and construction projects. Restriction of Noise from Downtown Establishments Several provisions of the By-law can be applied to restrict noise from downtown establishments before and after 11:00 p.m. Firstly, Section 3(1)(b) of the By-law which restricts amplified sound in a public place when it is audible within a residential unit with the windows closed between 11:00 p.m. and 7:00 a.m. the next day would apply to restrict amplified sound emanating from a downtown establishment which can be heard inside a residential unit. While public place is not currently defined in the By-law, a public place would normally include Report Page 2 of 5

3 property and places to which the public have access as of right or by invitation, express or implied, including bars and restaurants. Secondly, Section 3(1)(d) of the By-law which prohibits yelling, shouting, hooting, whistling, singing or the playing of musical instruments in such a manner as to make a sound clearly audible within a residential unit between 11:00 p.m. and 7:00 a.m. the following day would apply to downtown establishments that have bands playing after 11:00 p.m. or to loud noises from its patrons after 11:00 p.m. Finally, Section 4 of the By-law is the general provision that makes it an offence to cause or permit any noise likely to disturb the inhabitants of the City also works to create a general noise prohibition 24 hours a day. This provision may also be applied to noise emanating from downtown establishments before 11:00 p.m., however the courts have interpreted this provision fairly narrowly, calling into question its effectiveness in prohibiting excessive noise before 11:00 p.m. when the noise comes from a source specifically enumerated in Section 3 of the By-law (including the prohibitions relating to amplified sound and singing/the playing of musical instruments). Enforcement of the Noise By-law- Current Practice Currently the City s Municipal By-law Enforcement Officers do not enforce the By-law. Instead, the By-law is enforced by the Niagara Regional Police (hereinafter the NRP ) and the City s Legal department. The NRP respond to calls relating to infractions of the By-law contingent on their availability, with priority going to more serious calls. NRP has the ability to issue a Part I ticket under the Provincial Offences Act (hereinafter POA ) to offenders. The set fine for a ticket under the By-law is $ plus Victim Fine Surcharge and Court Costs. The recipient of a Part I ticket has the ability to pay the fine and resolve the matter out of court, request an early resolution meeting with the prosecutor or request a trial. The Regional prosecutor acts as prosecutor in relation to Part I tickets issued by NRP. The NRP have advised staff that in 2014 they issued 48 charges under the By-law, compared with 12 charges in 2013, 11 charges in 2012, 10 charges in 2011 and 13 charges in The City s Legal department also works with residents in relation to noise complaints. When a written compliant is received, the Legal department will send a warning letter to the property being complained of. The letter will provide the details of the complaint and require compliance with the provisions of the By-law. If the initial letter does not resolve the complaint and a further complaint is received, a second and final warning letter will be sent advising that upon conviction of an offence under the By-law a fine of up to $5, may be imposed by the Court. If the letters are unsuccessful at remedying the noise, the complainant may request that a prosecution is commenced against the offending party. Prior to commencing a prosecution under Part III of the POA the City s prosecutor will meet with the complainant and any additional witnesses to the alleged infraction to determine whether there is a reasonable prospect of conviction. If there is, the City s prosecutor will assist the complainant in preparing an Information and will Report Page 3 of 5

4 attend with the complainant before a Justice of the Peace to have the Information sworn. There is no financial cost to the complainant to commence a prosecution under the By-law, but witnesses are required to attend court and give evidence of the alleged infraction if the matter proceeds to a trial. Relatively few complaints regarding noise levels from downtown establishments are made to the City s Legal department. Given that enforcement of the By-law is most often reliant on private citizens who lodge complaints, Staff would caution against amendments to the By-law which institute decibel restrictions as these would greatly restrict enforcement by removing the subjective elements of the By-law. If Council were to make such amendments, it is anticipated that sound level meters would have to be provided to the NRP for enforcement purposes. Constables would also need to undergo training and certification in the use of such meters. Additionally, for those calls that the NRP do not routinely attend to, it would be anticipated that Municipal By-law Enforcement Officers would have to take over the enforcement of the By-law. As such, Municipal By-law Enforcement Officers would also require sound level meters and would need to undergo the appropriate training and certification. It is anticipated that additional staffing, along with extended hours for such staff, would be required to adequately enforce the provisions of a Noise By-law that contains decibel limits. Noise By-laws in area Municipalities Staff reviewed the Noise By-laws of other local municipalities including Niagara Falls, Welland, Grimsby, West Lincoln, Lincoln, Wainfleet, Pelham, Niagara-on-the-Lake, and Port Colborne. Of these 9 Municipalities, only Port Colborne s by-law refers to decibel limits. All of the other Noise By-laws reviewed allow for a subject assessment of the noise, often prohibiting certain types of noise that is audible at the Point of Reception, typically defined as any point on a property where sound/vibration originating from other than the property is received. Many of the by-laws reviewed create exemptions for certain community events, including fairs, carnivals, parades, exhibitions, sporting, recreational or musical events approved or organized by the City. Niagara Falls has also exempted the entire Clifton Hill area of the City from the provisions of its Noise By-law. Amendments to the Noise By-law At this time, Staff would not recommend amending the By-law to institute maximum decibel levels as this will lead to more difficulties in the enforcement of the By-law and will also make enforcement of the By-law more costly. Staff would recommend the following amendments to the By-law: 1) Inclusion of a definition of public place to clarify that a public place includes establishments to which the public have access as of right or by invitation; 2) Inclusion of a definition for point of reception defined to mean any point on the premises of a person where sound or vibration originating from other than those premises is received; Report Page 4 of 5

5 3) Amendments to sections 3(1)(b) and 3(1)(d) of the By-law to include a prohibition against the noise when it is audible at a point of reception; 4) The addition of an exemption for events held at City owned parks, provided that a Parks Permit has been issued for the event and provided that the event complies with the Special Event Procedures and the terms and conditions of the Parks Permit, as recommended in the report by Parks, Recreation and Culture Services, dated January 22, 2015; 5) The creation a process by which exemptions from the provisions of the By-law can be applied for by organizers of special events and construction projects. Consultation with NRP Staff contacted Sergeant McGilly of the Community Policing Unit in relation to the enforcement of the By-law in the downtown core, specifically in relation to noise levels from restaurants and bars. Sergeant McGilly advised that relatively few complaints are received by NRP in relation to noise from downtown establishments. He also expressed his support for the inclusion of point of reception language in the By-law and felt that the inclusion of such language may make enforcement of the By-law easier. Financial Implications Not Applicable. Conclusion The current By-law applies to regulate noise emanating from downtown establishments; however, the amendments proposed will assist in adding certainty as to the applicability of the provisions to these establishments. Other amendments which relate to exemptions for events held in public parks, and a procedure for applying for exemptions under the By-law, will assist in effective administration of the By-law. Prepared and Submitted by: Stacey E. Wells, Assistant City Solicitor II Approved by: Nicole A. Auty, City Solicitor/ Director Legal and Clerk Services Report Page 5 of 5