Submitted by Suanne Z. Thamm
Reporter – News Analyst
April 6, 2017 11:15 a.m.
On First Reading at their April 4, 2017 Regular Meeting, the Fernandina Beach City Commission (FBCC) unanimously approved Ordinance 2017-08 revising the existing Noise Ordinance. The revisions, meant to clarify rather than alter current restrictions, have long been advocated by Police Chief James Hurley. Mayor Robin Lentz directed City Attorney Tammi Bach to draft the revised language following complaints and concerns expressed at the previous meeting by a business owner and her neighbors.
Amy Petroy, owner of The Patio Place, continued to express her dissatisfaction with the ordinance, even with the proposed clarifications. She asked that the FBCC continue to work on the ordinance. Jeff Kurtz, Executive Director of Fernandina Beach Main Street and also President of the Historic Fernandina Merchants Association, also asked for more work on the ordinance. Kurtz expressed concerns that with more people choosing to live downtown, complaints about loud music would probably escalate.
Second Reading of Ordinance 2017-08 will require a public hearing. The agenda for the next meeting has not yet been published.
Proposed changes
Last month Petroy successfully appealed her citation and fine for noise ordinance violations, claiming that the police officer cited her under the wrong section of the code. [For background click here.] She asked that city clarify the existing language so that it would be clear at what time of day various restrictions applied. The changes include a definition of the term “plainly audible” and a rearrangement of existing language to eliminate confusion. The Noise Ordinance has citywide application, and is not just limited to the downtown area.
Attorney Bach as a revision provided a definition of the term “plainly audible”:
Plainly Audible means any sound that can be detected by a person using his or her unaided hearing faculties and can reasonably determine the source of the noise. The person need not determine particular words or phrases, or the name of any song or artist, the detecting of a rhythmic bass reverberating sound is sufficient.
(m) Plainly Audible Standing and Measurement. In determining whether a sound is plainly audible, law enforcement personnel or code enforcement officers shall be entitled to measure the sound according to the following standard:
(1) The primary means of detection shall be by means of the officer’s ordinary auditory senses, so long as the officer’s hearing is not enhanced by any mechanical device, such as a microphone or hearing aid.
(2) The officer need not determine the particular words or phrases being produced or the name of any song or artist producing the sound. The detection of a rhythmic bass reverberating type sound is sufficient to constitute a plainly audible sound.
The paragraph below is not new, but contains language moved from another section of the code:
(b) Radios, televisions, amplification devices, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, amplification device, musical instrument, phonograph, or other machine or device for the producing, reproducing or amplification of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, premises, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, amplification device, phonograph, machine or other device between the hours of 10:00 p.m. and 7:00 a.m. Sunday through Thursday and 11:00 p.m. to 7:00 a.m. on Friday and Saturday, in such a manner as to be plainly audible at a distance of twenty-five (25) feet from the premises or vehicle in which such noise is located shall be prima facie evidence of a violation of this section. The operation of any such set, instrument, amplification device, phonograph, machine or other device at any other time of day or night, in such a manner as to be plainly audible at a distance of one hundred (100) feet from the premises or vehicle in which it is located shall be prima facie evidence of a violation of this section.
Public reaction
At the previous FBCC meeting, Amy Petroy, owner of The Patio Place, stated that she was seeking clarification in the ordinance, not change. However, she did not appear satisfied with the revisions as presented.
Because the ordinance is nuisance-based, Petroy expressed concern that the 100-foot radius cited in the ordinance disadvantaged her business over other entertainment venues in the city. She is located closer to residential properties, more likely to be the source of complaints, than other downtown food and drink businesses that offer live music.
Mayor Robin Lentz reminded Petroy that her restaurant is in a unique position because it backs up to residential buildings. Petroy seemed to suggest that other establishments were in violation of the ordinance, but because no one complained, they were not cited. Commissioners reminded her that there is no violation without a complaint.
Bach explained that every time a noise complaint is registered with the police, it is investigated. “The Police respond; they make a determination. That’s how the Noise Ordinance works,” Bach said. She went on to caution Petroy. “I don’t want to do this, but I am going to do this. You are using the term ‘violation.’ And I’m going to advise the commissioners not to answer those questions. Every single business, residence, commercial or industrial business, is subject to the Noise Ordinance. And that’s all we are going to say. It applies to everybody.”
Although Petroy claimed to understand, she continued to assert that she was being treated differently. Bach advised her to read the entire ordinance to increase her understanding. “We don’t base our determinations on decibel readings,” Bach said. “We base them on what annoys the neighbors. Or is unnecessary. Or ‘loud and raucous.’ If nobody complains, we have to assume it’s not a violation.”
Petroy went on that “two people could control a loss of revenue” under the nuisance-based system the city employs. “This is happening,” she said, “and I’m not accusing anybody. But we’re opening it up for the future.” She presented scenarios where businesses could collude to target another business for complaints.
Attorney Bach and Mayor Lentz said they understood Petroy’s concerns and expressed a need to move on. Bach said, “We have done the best we can. We are right in line with current law, which could change next year. Noise ordinances all over Florida are based on whether someone complains. Period.”
Petroy was reluctant to concede. She claimed that the same band that generated complaints from her neighbors has played at other downtown venues at higher sound levels but no problems with police.
Mayor Lentz advised Petroy, “My recommendation based on what I’ve heard is that you continue to play your music, but you mind the bass and work it out with your neighbors ahead of time. If you go out, and you are a good steward to your neighbors that abut your property, you could work it out. I heard them say [at the previous meeting] that they didn’t mind it initially, but only when it got to be pounding noise and their walls were shaking. I feel that might be a viable solution, and I am happy to discuss this at greater length with you after the meeting.”
Petroy continued to argue with the city attorney. She concluded by asking the city to continue to look at the ordinance, claiming that it is unfair that one business will suffer a revenue loss when other businesses are not cited.
Jeff Kurtz, the only other public speaker, expressed his concerns as well. He said, “At this moment in time we are pursuing more residents for the downtown area. We are going to have more people living in the Central Business District, if we play our cards right. I understand the complaint-based enforcement of the rule, and I certainly understand the need to have reasonable respect for a resident, etc. But to cite a business for having a loud band in the Central Business District at 8 p.m. on a Saturday does concern me a bit. We all know that nightlife and entertainment is part of living downtown. So I would echo the need to talk about this a little bit and offer anything we can do to work as mediators to work on a reasonable solution for everyone.”
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.
Residential neighborhood and she wants to operate outside the noise rules —- she did not know a band would affect her business? Really too bad…. like the folks who move Next To an airport and expect the noise Will stop because They are now present…!!! The airport has the right to make noise And Residential spaces have the right to quiet time rules.
Technically she is zoned commercial (C3- Central Business District), and therefore is not a in residential neighborhood! And if you really want to split hairs, the complainers moved in next to the CBD! The current noise ordinance 42-142 (2) does in fact prescribe the quiet time you suggest; from 10 PM to 7 AM during the week and 11 PM to 7 AM on the weekends. During that time, anything plainly audible at 25 feet is considered noise. By their own comments during their meetings, the City Commissioners have said that the current ordinance has worked well, so I don’t understand the rush to change it for two complainers, and even the complainers asked that the ordinance not be changed. Obviously they did not understand what it actually says, nor do the police, who arrived between 8 and 8:30! I wonder why they have not complained about noise from the Green Turtle, as music there is MUCH louder and more frequent.