How loud is too loud?

Submitted by Suanne Z. Thamm
Reporter – News Analyst
March 26,2017 1:00 a.m.

How much noise is too much noise? What type of noise? At what time of day? Constant or intermittent? Longfellow claimed that music was the universal language of mankind. But odds are he did not write that at 3 a.m. as one neighbor played amplified guitar against his wall to the accompaniment of a fellow musician on drums. One man’s music is another man’s noise. And that is one of the reasons why cities adopt noise ordinances.

It appears that the Fernandina Beach City Commission (FBCC) is preparing to reexamine the noise ordinance adopted in 2009 in light of complaints from Amy Petroy, owner of the Patio Place, that the existing ordinance is neither clear nor uniformly enforced. Further, she asserts that it interferes with her ability to earn a living because it would seem to work against her plan to feature bands on some regular basis that play amplified music.

At least two neighbors have taken strong exception to Petroy’s plans, telling city commissioners that her bands interfere with their quiet enjoyment of their homes, which they have lived in for many years prior to the opening of the Patio Place.

Some commissioners indicated that they wanted to hear from more citizens and businesses on problems with the current noise ordinance. It appears that the FBCC will continue discussion of whether to revisit the city’s noise ordinance at their April 4 meeting.

Background

In 2009, after many weeks of contentious debate in the Fernandina Beach downtown area that resulted in a lawsuit against the city, Commissioners passed an amended noise ordinance on fifth reading. Over time a dispute over noise between the Florida House Inn and the Green Turtle Tavern had blossomed into a Hatfield-McCoy type feud that pitted business owners and their patrons against each other. Other businesses also entered the fray, with one setting up an outdoor karaoke machine. The Florida House Inn filed suit against the city, the result of which was a mediated settlement in which it was agreed by the parties that the current regulation was unenforceable due to its reliance on noise meters. [The courts had ruled against evidence from noise meters unless it could be demonstrated that prior to each use, the meter had been properly calibrated.]

And because residential properties exist cheek to jowl with downtown businesses, the noise problem spilled over into residential neighborhoods as well. Downtown Historic District residents claimed that the antics of both establishments, along with other downtown evening entertainment venues, were depriving them of the quiet enjoyment of their property.

City commissioners at the time—Mayor Susan Steger, Vice Mayor Eric Childers, Jeffrey Bunch, Tim Poynter and Ken Walker—remember this as one of the most divisive issues of their term in office. Claims and counter claims flew between businesses and residents. Finally, after failed attempts by police and commissioners to resolve the issues through jawboning, the commissioners passed Ordinance 2009-11 on fifth reading.

While not a perfect ordinance, the FBCC’s action appeared to more or less address the concerns of businesses, residents and the police. Tempers cooled and vitriol seemed to subside as residents and businesses accepted the need to compromise in order to continue living side by side with each other.

Until today.

Amy Petroy, the owner of a new restaurant on the scene—The Patio Place at 416 Ash Street—wants the FBCC to reopen the noise ordinance based upon problems that she has encountered with introducing amplified music into her establishment. Following repeated complaints from residents living nearby, restaurant owner Petroy was issued a citation with a fine from the Fernandina Beach Police Department. Petroy successfully appealed to have her citation and fine voided because the officer cited the wrong section of code on the citation. Petroy claims that the code is confusing and needs to be reexamined.

Amy Petroy first came before the FBCC at its March 8, 2017 Regular Meeting seeking help and clarification of the city’s noise ordinance in light of a recent citation she had received for excessive noise in connection with band performances at her restaurant. Her restaurant has been open about 14 months, she said, and her intent was always to have live music on the patio. She had initially featured acoustic music, but has now booked performances by bands as well. She said because of citations arising from complaints she has had to cancel band event dates. She asked for help in getting permission to continue band performances.

Commissioner John Miller expressed his opinion that the current noise ordinance is “way too arbitrary.” Distinctions between rules for different days or times and distance from the venue, according to Miller, have led to businesses using the ordinance to harass competitors. Miller called for a discussion item on a future agenda, and Mayor Robin Lentz agreed.

Commissioner Tim Poynter asked that the police weigh in on the current ordinance before the city enters into any discussion of changing the existing ordinance. Poynter said, “I was sitting on this commission when we went through this nightmare the last time, and there is no easy solution to this, no happy players. The residents have certain expectations of quiet enjoyment of their property.” Poynter said that for those people who choose to live downtown, they understand that there is more noise than if they were living on a farm. But residents expect businesses to be mindful of them as well. Businesses are currently restricted to music during certain hours. Petroy said that while she understands that commissioners have other priorities, she is losing revenue by having to cancel band appearances. She claimed that she had been operating within the law, but Poynter said that she was not operating “within the spirit of the law.”

Lentz advised Petroy to discuss the matter with City Attorney Bach in the meantime. Bach added that Police Chief Jim Hurley had advised that he had voided Petroy’s citation.

Patio Place neighbors speak.

This issue was not on the FBCC’s agenda, but two of Petroy’s neighbors spoke at the next FBCC meeting on March 21, 2017. They explained that they had not objected when she introduced acoustic music to her establishment about 4-5 months ago. But then it got worse.

Steve Carver, who lives on S. 4th Street, said that on New Year’s Eve, Petroy brought in a big band with amplifiers. The music was so loud, it vibrated through his walls. He could not watch TV, read or sleep. He chose to overlook this incident, because it happened on New Year’s Eve. But a couple of weeks later the band returned and the same problems ensued. He attempted to talk with Petroy, but a few weeks later, the same thing happened again. Carver said, “I’m not the only one who called the cops that night, but I was the first.” He pleaded with commissioners not to change the noise ordinance. “[Petroy operates] a restaurant,” he said, “not a bar.” He asked commissioners how they would feel with a band playing amplified music about 70 feet from their bedrooms from 6:30-11:00 pm. He said, “Please, please don’t change this ordinance. You will mess up [the residents’] quality of life.”

John Cascone, another resident who lives on South 4th Street, reminded commissioners that the ordinance was in effect long before Petroy opened her restaurant. He characterized her complaint as “the airport syndrome”—the situation that develops when people move next to an airport and then complain about airport noise. Cascone said that like Carver, he had called police the third night the band performed. “These people knew what the ordinance was and they created this nightmare themselves,” Cascone said. “And they are now complaining that [neighbors] are interfering with their ability to earn money. … They came in, they knew what the rules were; they don’t like the rules now, and they want them changed. [The music] is interfering with the peaceful use of our homes. It’s not fair to [the residents]; [the business] needs to follow the rules set by the city commission.”

Cascone referenced the earlier problems that led to the creation of the noise ordinance, adding that residents have not complained about living under those requirements.

Amy Petroy also spoke at the meeting. She publicly apologized to the Carver and Cascone, saying “I had no idea that the music was creating such heartache for them and their families, since the rest of the neighbors have participated in my restaurant and welcomed the music.” She agreed that her conversation with Carver following the debut of amplified music at her restaurant did not go well. She explained that her goal is to feature such music once a month.

She asked that the commission clarify, not change, the existing ordinance in light of her now voided citations.

Petroy ran out of time before she finished her presentation. Chris Bordnick, a friend who had been in attendance when the band played, followed Petroy. He said that he had no problem with the ordinance, just with consistency of enforcement.

Commission discussion

Commissioner Tim Poynter has strongly urged the FBCC not to reopen the noise ordinance. He also served on the FBCC when the previous changes were made. He expressed concerns that reopening an ordinance that has served the city fairly well will risk the uneasy peace that has existed between businesses and residents since 2009. He said that any business owner that chooses to introduce music must understand that neighboring residents have a right to expect not to be an unwilling audience.

City Attorney Tammi Bach asked for direction in preparing any changes for FBCC consideration. She said that if the FBCC anticipates any substantive changes, “It’s not going to take just one or two meetings.” She told commissioners that it took five public hearings in 2009 to get the existing ordinance passed. She asked whether rearranging parts of the ordinance to make its intent more clear justified reopening the ordinance.

Mayor Robin Lentz, who anticipates problems with the noise ordinance when more people begin moving downtown and additional accommodation businesses open, supports reopening the ordinance as a possible way to stave off future complaints. She also expressed sympathy with the argument that it doesn’t seem to be uniformly enforced.

Attorney Bach clarified, stating that unlike other city ordinances, the noise ordinance specifies that a noise “is only considered a nuisance if it bothers somebody.” “I will do whatever you direct me to do for the next meeting,” Bach said. “But it’s hard to come up with what is ‘the right thing’ for business owners and residents.”

Lentz said that she wanted it added to the next agenda as a discussion item to give the public more opportunity to weigh in before considering any ordinance change.

Commissioner Roy Smith said that he supported uniform enforcement of the existing ordinance or changing the ordinance to allow only acoustic music downtown.

Commissioner Poynter said, “Look, I lived through that 2009 situation, and it was not an easy thing to go through…. There’s an expectation of living downtown, that you’re going to have some noise, and I get that. But the expectation is not to have so much noise that you can’t think in your own home. [The enforcement] is going to have to be complaint driven, because if it isn’t bothering anyone, where’s the complaint, where’s the nuisance?”

“I have two businesses downtown,” Poynter said, “and you have to be a good neighbor to other people who are not in business. That is still part of being a community. Listening to the people who complained, they said they were absolutely okay up to a point. After that point [the noise] became unreasonable.” Poynter said that he did not support “opening up this can of worms again.”

Vice Mayor Len Kreger said that if this is an issue between a business and two neighbors, they need to work it out. But if there is a discrepancy in the ordinance, he felt the commission should make the necessary changes. “You are never going to win,” he said, adding that the ordinance as written has worked pretty well since its adoption in 2009.

Smith added, “We need to get the situation back where people are friendly again.”

Commissioner John Miller said the situation tends to fluctuate, and that complaints tend to come in waves and then settle back down. He supported leaving enforcement in the hands of the police, who can use discretion in settling parties down. “It’s going to come up again and again and again,” he said, adding that he was willing to discuss it further.

The issue will return to the FBCC for discussion in April.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.