Fernandina Beach still without a noise ordinance

Submitted by Suanne Z. Thamm
Reporter – News Analyst
May 20, 2021

The City of Fernandina Beach has been without a noise ordinance since March, and it doesn’t look as though that situation is about to change any time soon.  In March, City Attorney Tammi Bach brought proposed amendments to the existing noise ordinance to the Fernandina Beach City Commission (FBCC).  The proposed changes did not alter the hours of operation for music venues or change the enforcement standard of “plainly audible,” which has been in effect since 2017.  Bach’s proposed amendments clarified portions of the existing ordinance and removed language regarding “content” of the noise, which could be construed as unconstitutional.

Bringing up the noise ordinance resulted in a firestorm of public comment from downtown businesses, residents and music lovers.  Thanks to an overload of misinformation regarding the City’s motives and plans spread by mouth and social media, crowds gathered outside City Hall with placards at every meeting during which the noise problems were discussed.  Most of the demonstrators supported keeping live music at the various restaurants and watering holes in the City.  Speakers arguing the case for live music included musicians as well as their fans and families.

Ironically, there was never any FBCC discussion suggesting that live music should be banned in the City.  The entire discussion centered on determining an acceptable level of sound that residents and businesses could reasonably be expected to tolerate up to 10 p.m. on week nights and 11 p.m. on weekends.

The FBCC considered and rejected using sound meters (decibel meters) for several reasons:  they had proven to be ineffective when in use prior to 2017; ambient sound interferes with metered readings, as well as weather conditions and surrounding structures.

So at their May 18, 2021 Regular Meeting, where the noise ordinance was once again on the agenda, the FBCC appeared to have gone full circle to come back to the standard of “plainly audible,” which has been upheld by federal and state courts since 1947.  The City had applied this standard since 2017 with few complaints and citations for violations.

Although Vice Mayor Len Kreger and Commissioner Chip Ross were prepared to accept the revised ordinance following some last minute changes, the other three commissioners would not agree.  Therefore, the revised ordinance failed on a 2-3 vote.

When the ordinance returns for its next reading, it will once again include acceptable sound limits as measured in decibels as recorded from the edge of the property of the complaining party.  Kreger and Ross are supporting an acceptable decibel reading of 65, while Commissioners Bradley Bean, David Sturges and Mayor Lednovich are supporting an acceptable reading of 80 decibels.

Normal conversation is generally at 55-65 decibels.  OSHA reports that prolonged exposure to noise above 70 decibels can lead to hearing loss.

It should be noted that the City is proposing to regulate the level of all sound in all parts of the City, not just downtown late night venues.  While many are unhappy that “music” is considered “noise,” it must be remembered that the ordinance covers all sorts of sound beyond music, including barking dogs, private parties and faulty mechanical equipment, just to name a few.

Public Comment

Unlike previous hearings of the noise ordinance, only four members of the public spoke on the current plan to revise the ordinance.  

Annette Acosta, whose residence is next door to The Boat House Restaurant and down the street from Pajama Dave’s, once again reminded commissioners that her house has been in the family in its current location since 1929.  “In the absence of a City noise ordinance,” she said, “I have had the privilege of hearing live music in my home 7 nights a week.  I can sit in my living room and sing the lyrics to songs coming from The Boat House and Pajama Dave’s.”  She asked that sound be kept at levels that prevent her from hearing it in her bedroom.  She commended Mark Harris, manager of the Green Turtle, as the only venue that has been willing to work with her.  “I’m all for keeping the music,” she said.  “Just turn the volume down.”

Green Turtle Manager Mark Gearis said that he has not fielded many complaints about noise over the past few months.  He asked how the City proposed to deal with the nuisance complaints, which he fears will increase under the “plainly audible” standard.  He believed that the standard is subjective and will cause some people to exploit it.  “I don’t think that passing this ordinance [will finish the discussion].  I think we need an ordinance, but this one is not it,” he concluded

Lisa Finkelstein, Executive Director of Fernandina Beach Main Street, reported that her organization has worked with downtown businesses on this issue.  “It’s a little bit confusing how this ordinance that you are about to pass is going to solve the problem,” she said.  She opined that over the past few months downtown businesses have become more sensitive to sound levels and the impact that sound emanating from their business might have on their neighbors.  “We are all a little bit more aware of how loud is too loud,” she said.  “But I don’t think there is a perfect answer.  But I think that having the time limits gives everyone a clear understanding of when the music will stop.  From talking with other Florida Main Street Communities, I think that is the single most important element of a noise ordinance.”

Local attorney Margaret Davis defended the “plainly audible” standard as preserving the interests of the City and its citizens in a legally defensive manner.  She said that most citizens do not want the City to dramatically change.  “Thus, we should continue to respect and honor the charming, family friendly nature of our community.  Our City is not an amusement park.”  Davis appeared to be satisfied with the changes and compromises offered in the current iteration of the noise ordinance.  She concluded, “I believe this ordinance is content neutral, legally defensible, and a balanced and reasonable law.  It will keep sound at a level that enhances residents’ and tourists’ experiences with little to no significant economic downside.”

Commission Discussion

Commissioner Chip Ross moved approval of the proposed ordinance with revisions supplied by the City Attorney and himself; Vice Mayor Len Kreger seconded the motion.

Commissioner Bradley Bean reminded commissioners that when he originally proposed using decibel meters to measure sound levels, he believed that was a middle ground between the parties.  “There is a sweet spot in the middle where both our residents and our businesses can live in harmony,” he said, “and the goal was to find that sweet spot.  I don’t believe this ordinance is that spot.”

Ross said that he has received multiple noise complaints from residents both downtown and around the City.  He said the FBCC has never agreed to a specific decibel reading for acceptable noise levels, but that he would support 65 decibels, which is the standard used in Maryland and other areas around the country.  He recapped the problems with using and enforcing readings from sound meters.  “Unless people are willing to get along and respect their neighbors, that is how this is always going to work.  It is never going to work unless we come together as a community and agree to get along and that people have a right to quiet enjoyment inside their homes.  I’m going to vote for this because I think it is worth a try.  If it doesn’t work, I’m sure we can come back and amend it.”

Commissioner David Sturges said the major problem today is that the City does not have a noise ordinance.  The Police can do nothing to respond to calls of loud music at 2 a.m.  He acknowledged problems with sound meters as raised by the Police and attorneys.  He said that the current controversy traces back to the opening of The Boat House and resulting noise complaints from Ms. Acosta and the Hampton Inn.  “I believe we need to come to a happy medium by crafting an ordinance that can be in effect for a long time, and this ordinance won’t do it,” Sturges said.  “I think we need more time to find a solution, perhaps going back to the idea of sound metering.”

Mayor Mike Lednovich said, “All this ordinance does is place a very heavy burden on our Police, who will have to make judgments on when to cite businesses for violations.  The first business they cite is going to send a shock wave through this community and that citation will be challenged.  And here’s the reason.  Ms. Acosta will have the ability to call the Police every single night. … This is totally unenforceable and puts the Police in a horrible position.  This is an abomination.  Period.  End of story.  The only way to regulate this is to have a measurement.”

Ross reminded Lednovich that the Police were the ones who recommended using the “plainly audible” standard.

Vice Mayor Len Kreger said he would vote for the ordinance because it has served the City well, except when a new business starts up.  He expressed a fear that setting a decibel standard would kill music downtown.  He supported adopting this ordinance, which is legally defensible, and then return to it if problems continue.

When the motion was called, it failed on a 2-3 vote, with only Kreger and Ross in support.  Bean asked about returning to consider the earlier version of the ordinance, which contained decibel meters.

City Attorney Tammi Bach replied, “My office has spent 10-20 percent of its time every week on this ordinance.  This has been advertised at least 4 times in the newspaper at a cost of roughly $2,000.  I ask that you as a group agree on a decibel reading and a distance measurement before we bring it back again.  Otherwise we are going to keep tweaking this ordinance indefinitely.”

Lednovich replied, “This is too important to quibble over money.  Let’s get it right.  That’s why we are spending the amount of time and resources on this.”

Bean called for all commissioners to weigh in on decibel reading.  Kreger and Ross supported 65 decibels; Bean called for 80 and Sturges called for 75-80.  Lednovich supported 80 as well.  Consensus was that the reading should be taken at the receiving property line.

Lednovich recognized City Manager Dale Martin, who said, “Government is not going to solve this problem.  But this wonderful, vibrant music scene — dozens of people have paraded to this podium to claim that was what attracted them to come here — was developed under the “plainly audible” standard that has been in place.  Our downtown has become successful with that standard in place.  I think we can continue with the “plainly audible” standard, because it involves common courtesy and respect.  Government is not going to solve this problem, no matter what the decibel or where you measure it.  This is a “Respect thy neighbor” issue.”

In response to the City Manager’s comments, the Mayor said, “The City has changed.  The Palace has moved from indoors to outdoors; we have The Boat House.  So now we have four sources of live  music downtown.  And we have the pocket park, which musicians use to entertain outdoors.”

Martin informed the FBCC that during their discussion, he had received an email from the property manager of the pocket park who said he had been made aware of an incident there when musicians had been playing offensive music and heckling pedestrians.  “If issues like this continue,” the email read, “we will have no option but to terminate the City’s lease and block public access.”  Martin reminded the community that the pocket park is not City property, and users must police themselves if it is to remain available for public use.

Commissioner Sturges did not see this as a problem, indicating that the City could designate other areas where street musicians could perform, away from businesses and residences.