Submitted by Suanne Z. Thamm
Reporter – News Analyst
October 25, 2017 11:20 a.m.
It was an unusual sight: a filled Commission Chamber in Fernandina Beach City Hall at 2:00 p.m. on a Tuesday afternoon (October 24, 2017). The reason for the assembly: a hearing before Special Magistrate Miriam Hill involving a noise citation delivered to The Patio Place, located at 416 Ash Street, and its owner Amy Petroy on August 9, 2017. Both the City of Fernandina Beach, represented by City Attorney Tammi Bach, and Petroy, represented by her attorney Nicole Jamieson, and laid out their cases for why the citation should – or should not – stand.
The City confined its testimony to the events of August 9 that led to the issuance of the citation, calling first the complainant, Patio Place neighbor Steve Carver. Carver, who has lived at 110 S. 4th Street for 24 years, explained that music coming from the restaurant patio that evening was so loud that he could not sleep or read. He called police around 8 p.m., and between 8:30-9 p.m. the music stopped.
Bach also called two members of the city police force to testify to events of that evening.
Fernandina Beach patrolman Shane Gothard, a police officer with more than 8 years on the Fernandina Beach force, responded to the call and determined that the music was “plainly audible” at a distance of more than 100 feet from the restaurant, a violation of the city’s noise ordinance. Since Petroy had been delivered a written warning in February, this violation resulted in a citation and a fine. His supervisor, Sergeant Freddie Peake, verified the patrolman’s account, adding that while the music had been plainly audible earlier in the evening, the police only respond if there is a complaint. He said that for a complaint to be registered, the complainant must provide a name, a phone number and other contact information.
According to language in Section 42 of the City Code the term “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.”
Nicole Jamieson called three people to give testimony as well: restaurant patron Chris Bordnick, musician Amy Bass Nixon and restaurant owner Amy Petroy.
Bordnick stated that other downtown establishments play loud music, citing complaints he made over Shrimp Fest weekend about the Green Turtle, the Palace Saloon and Café Karibo.
Nixon, who along with her son, was providing live music on the restaurant patio the evening of the complaint, said that she adjusts the level of sound based upon preferences of the restaurant patrons, but that she uses single performance speakers, not large speakers.
The Patio Place’s owner Amy Petroy was the final person to provide testimony. She said that she had gone through all required permitting processes that clearly indicated that her restaurant would have a patio and a deck. She opened her business on January 1, 2016, but did not begin offering live music until April 2016.
Through cross-examination, the city attorney established that Petroy had consulted a sound engineer who made suggestions on ways to baffle the sound, which she had not implemented. Petroy explained that she did not believe that the suggestions would either comply with city code or muffle the sound sufficiently to eliminate complaints. When asked whether she could move the music indoors, Petroy replied that due to the current configuration of the interior space, that could not be done effectively. Petroy also said that despite earlier complaints, she had not eliminated amplified music. She also said that following the August 9 citation, she has not offered musical entertainment, resulting in lost revenue to her establishment.
In presenting Petroy’s case, Jamieson attempted to interject evidence concerning excessive noise emanating from other Central Business District music venues during the year. She also raised Constitutional concerns. Bach objected to many of Jamieson’s points as not being relevant to the specific case.
Special Magistrate Hill said to the parties, “I apply the ordinance as it is written. This is a quasi-judicial proceeding. I cannot deal with Constitutional issues. I cannot rewrite the ordinance and apply it arbitrarily.”
Jamieson then took another tack, claiming that a “plain reading” of the language of the ordinance says that noise must be clearly audible “at a distance of 100 feet.” Using this language, she argued that the patrolman’s laser measurement of 103-110 feet exceeded the limit set out in the ordinance. She also argued that since the noise ordinance was amended in May 2017, based upon Petroy’s complaint that it was unclear, the written warning dating from February 2017 should not be counted as the first warning. Rather, she claimed, the revised ordinance should start a new time period and the citation given on August 9, 2017, should be converted to a written warning.
Special Magistrate Hill advised the parties that she would issue her ruling at a future date and closed the hearing at 3:30 p.m.
Section 2-400 of City Code lays out the conduct for hearings before a Special Magistrate. Subsection (g) states: “The burden of proof shall be with the code enforcement officer and/or city attorney to show by the greater weight of evidence, that a code violation exists and that the alleged violator committed, allowed, or was responsible for the violation.”
The Special Magistrate is required to issue a final order “within a reasonable period of time” and that order may be appealed to circuit court.
In response to questions from the Fernandina Observer regarding how the Special Magistrate was selected, City Attorney Tammi Bach responded, “Miriam Hill was chosen by a committee after an RFP. I believe she has a 3-year contract with the City for special magistrate services. The Commission approved the contract with Ms. Hill. Ms. Hill will write her opinion and issue it in a few days (by Monday, Oct. 30). Ms. Hill’s decision is binding but may be appealed to the Circuit Court.”
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.
Sounds like the sounds came after the permitting. Sounds like the sounds of an amplified, self sounding interest. Ah, for the sounds of silence.
It’s sad that this specific business is being targeted. I like all of these businesses but the fact remains that you can hear the turtle and the palace as well but we hear absolutely no mention of it. This has gotten way out of hand and it just goes to show that some are shown preferential treatment while others are violated. The way the ordinance reads, than any of us could call the police in the kids at the skatepark. You can hear them from 100’ away having fun. Better yet, let’s start calling the police from the noise from the cars passing by on 8th street. Good grief.
And yet, the City and its consultants continue to promote a “vibrant” downtown. It seems that vibrancy includes more residents, more businesses, more traffic, more lights and, of course, more entertainment.
I live a half mile from The Surf restaurant and there are times that the music from The Surf is louder than Mother Nature’s own surf (which I can also hear from my yard). I don’t need a laser gun to tell me that the music is too loud.
so when the lawn crew down the street is running 3-4 machines that are clearly audible in my house with the windows firmly closed — does this violate the noise ordinance? Is it only applicable in the city? Do those of us in the country have any recourse against this noxious, noisy invasion?
Music that invades the privacy of your home is noise. Noise is unwanted sound. If we look at why people visit and enjoy our historic district that has been established through great works, it has nothing to do with noise. We live downtown and talk with visitors everyday. Houses that have been here for 150 years are homes, too. People live here. This is a neighborhood. They want to enjoy their own selections for t.v., music, and quiet enjoyment of their property, a basic need for physical and mental health. Instead of being invaded by noise, a solution is to build containment or go elsewhere. A good example was O’Kanes on Centre St. Patrons can partake of the noise because they are willing participants. People who are forced as unwilling participants have a basic need for quiet and privacy on their property. Subjection to unwanted noise has physical manifestations, anxiety-loss of quiet enjoyment and property value and many other issues. There are many good ordinances out there that are fair to all. Look at the finalists for great Main Street Cities, their noise ordinances in mixed use areas. This is a historic district, what people come here for is not a nightclub setting or open air concerts. The reasons people come here are listed on our tourism and quality of life promotional websites. There are plenty of other places for noisemaking away from homes.
be sensible – we live 6 blocks off of main beach, we used to hear the music loud and clear. If the restaurant is willing to adjust, let them correct.