City attorney also directed to craft a revised city Sound Ordinance for board review late this year and then a public hearing
Sarasota City Commissioner Hagen Brody repeatedly voiced opposition to the proposal — even during the vote. Nonetheless, the rest of his colleagues this week approved an ordinance that raises the fines for city noise violations.
A second vote will be required, though the city agenda material did not indicate the timeline for that action. The next regular commission meeting will be in August.
Last fall, the Coalition of City Neighborhood Associations (CCNA) requested the action in response to late-night problems neighbors had reported, commissioners said.
The new measure would increase the penalty for a first violation of the sound regulations in the City Code from $100 to $250. The penalty for a second offense would rise from $100 to $500.
“I don’t think we have enough information to move forward right now,” Brody said during the July 20 discussion. The board members need to know more about the situations when people have been cited for violations, he added, emphasizing that the higher penalties would “apply to everyone,” even families having backyard cookouts and people holding house parties.
He called the proposed penalties “a big huge financial hit” and emphasized his belief that the action would result in “unfair applications” of the Sound Ordinance.
Further, Brody criticized his colleagues for trying “to jam [changes] through” while conducting a virtual meeting because of the novel coronavirus pandemic. The fact that no individual had submitted comments about the issues and no one was present to offer public remarks indicated to him, he said, that the public had insufficient notice about the July 20 agenda item.
Additionally on July 20, at the suggestion of City Attorney Robert Fournier, the commissioners voted 4-1 to direct Fournier to work on a comprehensive revision of the city’s Sound Ordinance and then bring it back to the board for discussion — including a list of potential issues for them to consider. Brody also was in the minority on that vote.
“There are not noise violations going on right now,” Brody stressed. “Nobody’s even going out. … It just feels like we’re doing this in the dark of night.”
“We’re not passing anything,” Mayor Jen Ahearn-Koch replied.
After the commissioners come to agreement on changes they would like to see in the regulations, Fournier explained, city staff could advertise the proposed amendments for a public hearing.
Asked how soon he felt he could complete the draft to them for review, Fournier replied that he expected it would be December or possibly even January 2021. There was a chance, he added, that he might be able to complete the draft for a November commission meeting.
During a presentation about the fines, at the outset of the July 20 discussion, Fournier noted that the City Code provides for a $100 penalty for a first offense; a $100 penalty for a second offense; and a maximum fine of $500.
Along with proposing the increases in the fines for the first and second offenses, Fournier pointed out, the CCNA had requested that the penalty be increased by $500 for each violation after the second one, “to the maximum extent allowed by law.”
Yet, Fournier told the commissioners, “Five hundred dollars is the maximum allowed by law for a municipal ordinance violation that’s tried in County Court. … That’s up to the Legislature,” he added, to raise the maximum.
One solution, he continued, would be to amend the city’s Sound Ordinance to transfer the jurisdiction for violations to the Code Enforcement Special Magistrate, who “is authorized to impose significantly greater fines.”
A June 26 memo Fournier provided the commissioners said that a Special Magistrate “may order fines that do not exceed $1,000.00 per day per violation for a first violation … and fines that do not exceed $5,000.00 per day per violation for a repeat violation … A Special Magistrate is further authorized to impose a fine of up to $15,000.00 per violation if the Special Magistrate finds the violation to be irreparable or irreversible in nature.”
Brody did voice support for amending the Sound Ordinance to allow Special Magistrates to assume jurisdiction in regard to noise violations. People should not have to go to court over such issues, he added. Referring to his previous position as an assistant state attorney, Brody said, “I’ve prosecuted these cases before. … People a lot of times can be nasty; people can be vindictive.”
He also emphasized that he had found that a disproportionate number of the people accused of violations were members of minority groups. “I feel strongly about this. I’ve had some really unfortunate experiences.”
Further, Brody said, “Some businesses are targeted unnecessarily,” including rooftop bars, even though, he added, they are “really providing a great entertainment venue … for people who don’t live downtown.”
In his June 26 memo, Fournier also explained that the city’s Sound Ordinance called for the $100 penalty for a first offense to apply only “in the event that the alleged violator elects not to contest the citation in County Court [emphasis in the memo].”
Again, he continued, the $100 penalty for the second violation applies only if the person alleged to have committed the offense decides not to contest it.
“In the event that an alleged violator elects to contest the citation in court and the case goes to trial,” Fournier added in the memo, “then the maximum fine that a County Court Judge could order to be paid is [$500]. After a trial, it is reasonably likely, but not a certainty, that a Judge would order a defendant to pay the maximum $500.00 fine, especially if the Judge found the violation to be knowing and intentional,” Fournier wrote.
“However,” he continued, “the Judge has the discretionary authority to order the violator to pay a fine in a lesser amount, which could happen for example, if there were extenuating circumstances or if the Judge thought that $500.00 was an excessive fine because it was a first violation or for other reasons.”
“How many other municipalities actually transfer jurisdiction [to Special Magistrates in noise violation cases]?” Vice Mayor Shelli Freeland Eddie asked.
The Special Magistrate has jurisdiction over a variety of issues covered by the Sarasota City Code, Fournier replied. As for how many other municipalities handle violations that way, he added, “I imagine there are several.”
Yet, he stressed, that proposed change was not part of the proposed ordinance before the board that night.
Sound Ordinance issues
Then Fournier explained that, in 2014, his office and the Sarasota Police Department supported amendments to the city Sound Ordinance for several reasons. As noted in the memo, those were to make the ordinance “easier to understand and enforce”; “make greater use of the ‘plainly audible’ standard for determining whether a violation exists”; and to “increase penalties for violation.”
Although the City Commission discussed the proposals, the memo added, no changes to the ordinance were adopted.
“It is my opinion that these three objectives are still worthwhile today,” Fournier pointed out in the memo.
In his discussion with the commissioners, Fournier also talked about a Florida Supreme Court case — State v. Catalano — which involved sound emanating from a moving vehicle.
The court held that the “plainly audible” standard “was not an unconstitutionally vague [one],” he told the board members. In his memo, he wrote, “The Court opined that making ‘plainly audible’ sound unlawful provides persons of common intelligence and understanding adequate notice of the proscribed conduct. The Court further opined that the prohibition of sound ‘plainly audible’ from a distance of 25 feet did not invite arbitrary enforcement because the distance from the source requirement provided an objective guideline to prevent arbitrary or subjective enforcement.”
Prior to the Supreme Court ruling, he told the commissioners, state law had pre-empted local governments “from placing limits on sound coming from moving vehicles on the roadways.”
In a December 2012 article, the Tampa Bay Times reported that the state law at the heart of the case prohibited drivers “from playing a car stereo or other device so loud that it is ‘plainly audible at a distance of 25 feet or more.’” However, the law also provided an exception for vehicles used “for business or political purposes.”
“That exception was at the heart of the court’s reasoning that the statute violated the First Amendment,” the Tampa Bay Times article pointed out.
Because the Florida Supreme Court ruling invalidated the state law, Fournier told the commissioners on July 20, local governments — such as the City of Sarasota — were able to include a “plainly audible standard” in sound ordinances.
In his June 26 memo, Fournier explained that in 2013, “at the urging of Commissioner [Willie] Shaw, the Sound Control Ordinance was amended to make it unlawful to operate or amplify the sound produced by a radio, tape player or other mechanical sound making device within a (moving) motor vehicle so that the sound is plainly audible fifty (50) feet from the sound source between specified night time hours.”
Two separate motions
After Fournier’s presentation, Mayor Ahearn-Koch sought clarification that he was seeking two separate motions — the first, on the proposed increases in fines; the second, on direction regarding amending the Sound Ordinance.
That was correct, he told her.
Brody then raised the issue about the CCNA’s focus on the Cabana Inn, asking whether the establishment was even still operating. (The Cabana Inn, which is located at 2525 S. Tamiami Trail, is still in operation, its Facebook page indicates.)
Fournier pointed out that, at Vice Mayor Freeland Eddie’s request in October 2019, he had included in his June 26 memo a list of complaints the city had received about noise.
In the memo, he wrote that he was aware of the Cabana Inn concerns. Additionally, he continued, complaints had come in from residents of single-family homes about noise associated with special events at Marie Selby Botanical Gardens; from residents of Marina Tower in regard to outdoor music from the Perspectives Rooftop Bar “(which was permitted as a restaurant)”; from The Mark on State Street about special events on Lemon Avenue; from residents of the Sansara condominium complex, located at 300 S. Pineapple Ave., about noise associated with a malfunctioning air conditioning unit on the roof of the United States Garage building; and from a resident of a condominium/apartment in the Aloft Hotel “about the frequency and loudness of the church bells at the Church of the Redeemer.”
As the board members debated the proposal for the increased penalties, Commissioner Shaw asked Brody whether the nose from the Cabana Inn that prompted the CCNA request was “ethnic music,” adding, “I’m just curious.”
It was his understanding from the Sarasota Police Department, Brody replied, that the problem was individuals who had left the establishment when it closed but remained in the parking lot, listening to music in their cars.
Brody cautioned his colleagues about using “a broad brush” in dealing with what he indicated was an isolated incident.
Vice Mayor Freeland Eddie countered, “At the time that this came up last year,” the board members had received emails form homeowners whose property abutted establishments where noise was an issue. “The ones that I remember specifically … affected the livelihood of neighbors that were not in the downtown core … I would agree that homeowners do have a right to be able to sleep at night.”
“From my end,” Mayor Ahearn-Koch said, “this has been a conversation that’s been going on for years and years and years.”
“The reason that it’s a problem,” she added, “is that $100 was not doing the job. The members of the CCNA had many discussions about the issue, she noted, with a desire to protect neighborhoods.
Brody responded that he did not believe the $100 fine was the problem. Instead, he continued, he believed the concern was enforcing the city ordinance, because police officers had difficulty identifying the sources of noise that prompted complaints.
As City Auditor and Clerk Shayla Griggs called the roll to ask for the commissioners’ votes, Brody said, “No” and added, “This ordinance sends the wrong message to the community.”
“He already spoke to the motion,” Commissioner Liz Alpert remarked.
Finally, Ahearn-Koch announced the 4-1 decision in favor of the ordinance with the increased fines.
As the board members moved on to the discussion about Fournier’s proposal for a comprehensive overhaul of the Sound Ordinance, Brody again protested. He cited the “deficiency in public participation and comment” that has resulted from the COVID-19 pandemic. The commission has been conducting its meetings remotely for months.
Brody also said he did not believe the public was even aware that the commissioners would be discussing the Sound Ordinance that evening, although city staff had published the agenda in compliance with the state’s Sunshine Law.
Nonetheless, on a motion by Freeland Eddie, the board members voted to direct Fournier to undertake the overhaul of the Sound Ordinance.