HomeMy WebLinkAboutOrdinance 46-1991 .'
'�� • ORDINANCE NO. 46-91
AN ORDINANCE PROHIBITING LOUD AND RAUCOUS NOISE IN THE CITY OF
BROOKINGS, SOUTH DAKOTA.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF BROOKINGS,
SOUTH DAKOTA, AS FOLLOWS, TO-WIT: �
I.
Sec. 25-30. LOUD AND RAUCOUS NOISE PROHIBITED
(i) Probibited Generallv.
It shall be unlawful for any person to willfully make, or cause,
or allow to be made or allow to be continued any loud and raucous
noise, which term shall mean any sound which, because of its volume
level, duration and character, annoys, disturbs, injures or endangers
the comfort, health, peace or safety of reasonable persons of ordinary
sensibilities within the limits of the city. Quieter standards are
expected during nighttime hours. The term includes the kinds of noise
generated by the activities enumerated in Subsection (3) , except as
provided in Subsection (4) . The term shall be limited to loud and
raucous noise heard in any occupied residential unit which is not the
source of the noise or upon the yard or driveway of said occupied
residential unit, school or public building or upon the ground thereof
while in use, in any church or hospital or upon the grounds thereof
while in use, upon any parking lot open to members of the public as
invitees or licensees, and in any event from a location not less than
fifty (50) feet from the source of the noise, measured in a straight
line from the radio, loudspeaker, voice, or other noise source.
(2) Prohibited Noise resulting from s Gathering of People.
No person in possession and present in any premises shall make or
cause, or allow to be made or allow to be continued any loud and
raucous noise resulting from a gathering of people, which term shall
mean any sound which, because of its volume level, duration and
character, annoys, disturbs, injures or endangers the comfort, health,
peace or safety of reasonable persons of ordinary sensibilities within
the limits of the city. Quieter standards are expected during the
nighttime hours. The term includes the kinds of noise generated by
the activities enumerated in Subsection (3) , except as provided in
Subsection (4) . The term shall be limited to loud and raucous noise
heard in any occupied residential unit which is not the source of the
noise or upon the yard or driveway of said occupied residential unit,
upon the public sidewalks and streets, in any public park, in any
school or public building or upon the ground thereof while in use, in
any church or hospital or upon the grounds thereof while in use, upon
any parking lot open to members of the public as invitees or
licensees, and in any event from a location not less than fifty (50)
feet from the source of the noise, measured in a straight line from
the radio, loudspeaker, voice, or other noise source.
(3) Enumeration.
The following acts, as limited by Subsection (1) and subject to
the exceptions provided in Subsection (4) , are declared to be public
nuisances in violation of Subsections (1) and (2) of this Ordinance;
namely;
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" � . (1) Radios, amplifiers, phonographs, etc. The using, operating
or permitting to be played, used or operated any radio,
amplifier, musical instrument, tape player, compact disc,
compact tape or phonograph or other device for the producing.
or reproducing of sound in such manner as to cause loud and
raucous noise.
(2) Yelling, shouting, prolonaed sounds by people, etc.
Yelling, shouting, whistling or singing, or any prolonged
sounds made by people at any time or place so as to create a
loud and raucous noise between the hours of 9:00 p.m. and
7:0o a.m. on any day.
(4) Buceptions.
The term "loud and raucous noise" does not include noise or sound
generated by the following:
(a) Cries for emergency assistance and warning calls.
(b) Radios, sirens, horns and bells on police, fire and other
emergency response vehicles.
(c) Activities on or in municipal and school athletic facilities
and on or in publicly owned property and facilities,
provided that such activities have been authorized by the
owner of such property or facilities or its agent.
(d) Fire alarms and burglar alarms, prior to the giving of
notice and a reasonable opportunity for the owner or tenant
in possession of the premises served by any such alarm to
turn off the alarm.
(5) Severable
It is the intent of the City Commission that this ordinance be
construed to secure for the people freedom from unwanted loud and
raucous noise as described herein without violating any of the rights
secured by the Constitution to the people. In the event that any
provision hereof should ever be determined invalid for any reason, it
is the intent of the City Commission that the remaining provisions
continue in effect to the extent that they can be enforced
notwithstanding such determination, and therefore this ordinance is
declared severable.
II.
This Ordinance shall not supercede or repeal Chapter 24 1/2 of
the Revised Ordinances of Brookings, but is intended to supplement the
provisions set forth therein. �
FIRST READING: July 30, 1991
SECOND READING: August 6, 1991
OFBR ISHED: August 12,
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Finance Officer
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Proposed Resolution 1-91/92
A Statement of SA Senate DfBaffection with Brookinqs Cfty Ordinance
No. 46-91
Ae proposed by: Senator Jon Lauck, Colleqe of Arts and Science
.
Preamble:
1) Whereas- The ordinance, No. 46-91, as passed by the Brookings
City Council on August 12, went into effect on September 2, 1991.
�" 2) Whereas- The ordinance was passed during a period when etudent
leadership was absent and subsequently unable to offer input.
� 3) Whereas- The ordinance works a hardship on any person of
"ordinary sensibilites" in the city of Brookings.
4) Whereas- The ordinance furthers a disturbing trend on the part
of the city of Brookings to micro-manage the lives of its citizens,
along with the "keg" ordinance and rental licensing.
5) Whereas- The ordinance ostensibly prohibits garbage collection,
tree cutting, street repair, construction, snow removal,
motorcylces, Christmas carroling, etc.
6) Whereas- The ordinance imposes a burden on Brookings police to
measure loudness and softness of sounds in and around fifty feet.
7) Whereas- The ordinance requires an increase in the overworked
bureacracy of the city of Brookings. A bureacracy that has failed �
even to implement previous ordinances, i.e. rental licensing.
-� 8) Whereas- The ordinance involves a fundamental question of
constitutionality.
9) Whereas- The ordinance is presumably antithetical to previous
jurisprudence.
10) Whereas- The ordinance is blatantly discriminatory in that it
devotes the entirity of subsection(3) to "radios, amplifiers,
phonographs, etc.", which are dispropotionately owned by SDSU
students. "
11) Whereas- The ordinance creates a situation of resident vs.
police or city official on the actual existence of a disturbance;
a situation resolved nearly all the time in the favor of the police
or city official.
�12) Whereas- The ordinance leaves enormous room for abuse from
police or city officials.
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13) Wharoaa- Tha ordinance could loetor harassment with littla or
no r�course.
� 14) Whereas- The ordinance is anathema to Campus-Community
relations.
Resolved, That the corporation�s State i Locel Affair� coordinator
(1) express the displeasure of Student Association with the
Brookings City Council for passing 46-91 at the next convening of
the Council and (2) ask them, in the spirit of demacracy, if they
would reopen the ordinance for reconsideration and a revote.
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S.A. Poll
1) How would you rank Campus-Community relations at this. point?
1 - the lowest, 10 - the greatest
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2) Are Campus-Community relations worse than et this point last
year?
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3) Do you think the "keg" ordinance and the "noise" ordinance
harms Cam us-Communit relations? -
P Y
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� CITY OF
BROOKINGS
City Attorney
418 Fourth Street • P.O. Box 686
Brookings, S.D.57006
Ph. f605) 692-2111
September 18 , 1991
Orrin Juel , Mayor
City of Brookings
311 Third Ave.
Brookings , South Dakota 57006
Dear Orrin:
Enclosed herewith is a copy of a Memorandum which STEVE
prepared to me regarding the basis for our existing noise ordi-
nance together with a copy of some research and Court history on
the ordinance which we have adopted. If you have any questions ,
please feel free to give me a call .
Thank you very much.
Sincerely,
DENHOLM, GLOVER � BRITZMAN LAW FIRM
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Alan F . Glo er
City Attorn y, City of Brookings
AFG/klf
(6)
Encl .
cc: Betty Prunty
Deb Pederson
Don Halstead
Mike Oster
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MEMORANDUM September 12, 1991
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To: A1
By: Steve
Re: Ordinance Section 25-30 Loud and Raucous voise Prohibited
This Ordinance was drafted as a result of research that was
done concerning a number of disturbing the peace cases which were
brought under Ordinance Section 25-26 which provides:
No person shall disturb or cause to be disturbed
the peace of the city or of any person by violent,
tumultuous or offensive conduct, or by loud or unusual
noise or by profane, obscene, indecent, violent or
threatening language, or by assaulting, striking or
attempting to assault or strike another person,,�or
inviting or defying another person to fight or quarresl.
or by engaging in a fight with another. �
For purposes of this section, any person in
possession and present in any premises wherein a
breach of peace by loud or unusual noises •occur shall
be deemed to have caused said breach of peace as
hereinbefore defined.
This Ordinance is based upon a similar ordinance adopted in
Clearwater, Florida which was upheld by the Circuit Court of
Florida' s Sixth Judicial Circuit, sitting in its appellate capa-
city. The ordinance is more specific in terms of the types of
noise that are prohibited and also establishes a more precise
standard as to where a determination is.made of a noise violation.
The ordinance prohibits loud music and loud yelling, shouting
and loud prolonged sounds made by people after 9: 00 o'clock p.m.
It should be noted that this ordinance is more specific and
therefore provides the general public with a clear understanding
of the prohibited conduct.
The language used throughout this ordinance is language which
has been accepted by the U.S. Supreme Court and appellate courts �
and includes language that is necessary to avoid a determination
that the ordinance is overbroad or vague.
I have included an article which discusses the Clearwater
noise ordinance which was used in drafting this ordinance.
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NOISE ORDINANCES:
WHAT KIND OF NOISE ANNOYS? j -
, By Milton'A. Galbraith, Jr.
� (Milton A. Galbraith, Jr. is the City Auorney of Clearwater, was not limited in scope to fighting words or to obscene o-
! Florida.) opprobrious language.
Must a noise ordinance contain "objecdve" standards In Clancon, an arres[ for disorderly conduct was de
expressed in decibels and measurable with a meter in order to be clared unlawful because the appellant's conduct -- offensive
� valid? language directed at a police officer which did not constituie
' either figh�ing words or false words likely to cause harm--was
: In this "high-tech" age, with footprints on the Mgon found to be protected speech. The validity of the disorderl�
and telescopes in orbi[,one might assume that the answer is yes. conduct statute was not at issue.
However,a growing body of state and federal case law begin-
ning with a 1949 decision of the Supreme Court supports the In Saunders,the Florida Supreme Coun held that Flor-
proposition that decibei limits and meter readers are not neces- ida's disorderly conduct statute is not facially unconstitutionai
sarily essential to a valid noise ordinance. when given a narrowing interpretation. As narrowed by judiciai
interpretation,the starute is limited to fighdng words and word�
THE CLEARWATER °�MAKO'S" CASE known to be false which create a clear and present danger ot
bodily harm to others. �
Early in the morning on various dates in April of 1987,
an owner,a manager and an employee of"Mako's," a night- � On appeal�o che circuit court,Clearwater distinguishea
club in Clearwater,Florida,were issued citations and notices to Mako's case from the cases cited by the county court on the
appear in county court for violating Sections 96.01 and 96.02(5) basis that the city's noise ordinance does not auempt to regulate
of the Clearwater Code of Ordinances, which prohibit ``loud disorderly conduct, dces not auempt to prohibit protected
and raucous noise" under certain specified circumstances.' speech and is content-neutral; a person may say virtuall�
anything [o a police officer without violadng the ordinance
In each instance, a police officer cited a defendant unless it is said so loudly as to be "loud and raucous" when
because of the volume of sound emanating from the nightclub's heard from one of the locations described in the ordinance: The
sound amplification system, after receiving complaints from city argued that the noise ordinance is neither too vague nor
' nearby residents and verifying the volume of sound at the scene. overly broad,does not violate the Free Speech or Due Proces�
The complaints from the neighbors were to the effect that they clauses,and is a valid exercise of the city's powers.
could not sleep in their homes because of the loud noise coming
from[he nightclub. Clearwater also argued that iu noise ordinance is nar
rowly tailored to further the significant state interest of protect
Each defendant pleaded not guilty,and the cases were ing citizens from the unwanted loud noises of others. Th�
consolidated. The Coumy Court of Pinellas County eventually ordinance applies if the noise is heard from places where the
dismissed the charges and declared the noise ordinance uncon- public has a right to be,such as a public street or park,but from
sd[udonal,finding the ordinance io be sufficiently overbroad to a distance of at least 50 feet from the noise source. The
allow the punishment,not for criminal conduct,but for speech. ordinance applies if the noise is heard from a residence, :.
The county coun relied upon Ciry of Housron v.Hill,482 U.S. courthouse or school,for example,but only when occupied e
451 (1987), Clanton v. Stage, 357 So.2d 455 (Fla. 2d DCA in use. The noise must disturb,not"tend to"disturb. The noisc
1978),and Stare v.Saunders,339 So.2d 641 (Fla. 1976). must meet an objective test,not a subjective test;accor.tiing cc
the ordinance. the noise must be one which, because of it
In Hill, an ordinance which made it unlawful for any volume level,duration and character,annoy,disturb,injure o-
person to "assault, svike or in any manner oppose, molest, endanger the comfort, health, peace or safety of"reasonabl�
abuse or interrupt any policeman in the execution of his duty," persons of ordinary sensibilities."
was found to be substantially overbroad. The ordinance,read
literally,mighc deter a signiCicant range of protected speech and The circuit court of F7orida's Sixth Judicial Circui:
expression,such as a verbal interrup�ion of a police officer,and sitting in its appellate capacity,found Clearwater's noise ordi
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riance constitudonal on its face and remanded for an evidenaary dards survived challenges based upon vagueness and over-
hearing to determine if the ordinance is constituuonal as ap- breadth,free speech,and other Consdtudonal claims. A few of
plied. State of Florida and City of Clearwarer v.Dodge,et al., these ordinances prohibit excessively loud noise from specific
35 Fla. Supp. 2d 1 (Fla. 6th Cir. 1989). Ultimately, the noise generators such as television sets, saund reproducing
defendants pleaded guilty and paid fines. devices,and bazking dogs,but a majority of the ordinances are
aimed at excessively loud noise in general.
The court's brief opinion is of limited precedential value
outside Pinellas County,Florida. However,the research resulu Vagueness. The most common allegation in a challenge to a
may be of interest to other municipal attomeys. noise ordinance is vagueness, a challenge brought under the
Due Process Clause. In the cases favorable to noise ordinances
KOVACS V. COOPER wi[hout decibel standards,almost every court has been called
upon to decide the vagueness issue.
Noiseordinancesprohibiang"loudandraucous"noise,
or employing similaz language to describe objectionably loud The tradiaonal standard is whether the[erms of a statute
noise without using decibel-based standards,have been upheld are�so indefinite that a person of common intelligence must
in a number of cases beginning in 1949 with Kovacs v.Cooper, necessarily guess at its meaning and differ as to its application.'
336 U.S.77,69 S.Ct.448,93 L.Ed.513(1949). In that case,an A vague statute may trap the innocent by not providing fair
ordinance of the City of Trenton, New Jersey, prohibited the warning,may lead to arbirrary and discriminatory enforcement
operadon of sound trucks, sound amplifiers and any other by delegadng basic policy matters to policemen and the courts,
instruments which emit "loud and raucous noises" on the and may operate to inhibit the exercise of sensitive First
public streets. The ordinance was upheld against a challenge Amendmen[ righ[s.s 'The Supreme Court in Kovacs found
that the words "loud and raucous" are so vague,obscure and "loud and raucous" to have acquired sufficient meaning throagh
indefinite as to be unenforceable. The appellant raised a variety daily use to convey to any interested �erson a suff'iciendy
of constitudonal claims under the Fourteenth Amendment -- accurate concept of what is forbidden. '
freedom of speech,freedom of assembly,and the Due Process
Clause--to no avail. The Supreme Coun said thac,although the ' Similar statements can be found in most of the cited
words "loud and raucous" are abstract words, they have cases. For example, in 1970, a federal court in Michigan
through daily use acquired a content that conveys to any examined an ordinarice prohibiting any willful "noise,distur-
interested person a sufficiently accurate concept of what is bance,or improper diversion by which the peace,quietude or
forbidden. The court found the ordinance to be a valid police good order of any public, priva[e, or parochial school is dis-
power exercise which protects unwilling and otherwise helpless turbed."6 In response to the criticism that several of the words
listeners, prohibits dangerous distractions, and pro[ects the and phrases in the ordinance were unclear,the court said:
quiet and uanquility of residendal azeas. After contrasting the
distributor of handbills with the unwelcome visitor who inserts But of this kind of semandcism there can be no
his foot in the door and insists on being heard,the Court said: end. No word has an inorinsic content� It gets J
meaning and contour from its usage.The thought
The unwilling listener is not like the passer-by expressed in the term"fasthorse"is notthe same
who may be offered a pamphle[in the street but as that in the term "fast woman" despite the
cannot be made to take it. In his home or on the similarity in terminology....The vagueness label
street he is practically helpless to escape this is properly applicable only to a statute or ordi-
interference with his privacy by loud speakers nance the terms of which are such that one of
except through the prote�tion of the municipal- common intelligence must be in doubt both as to
ity. Kovacs,336 U.S.at 86-87,69 S.Ct.at 453. its meaning and its application. McAlpine, at
138-139.
On the free speech issue,the Supreme Court observed
that the right is not absolute but is subject to regulauon for the The Supreme Court revisited the vagueness and other
protection of the public welfare. The ordinance was found to be issues in 1972 in Grayned v.City ofRockford,408 U.S.104,92 .
justified as a reasonable protecaon of the public's ears. S.Ct.2294,33 L.Ed.2D 222(1972),in which Grayned had been
convicted of violaang both a noise ordinance and an antipick-
SUBSEQUENT FAVORABLE CASES eting ordinance. The noise ordinance prohibited"any noise or
diversion which disturbs or tends to disturb the peace or good
The "loud and raucous" standard, and similar scan- order" of any school. The andpickedng ordinance was de-
dards,have been upheld in numerous federal2 and state' court clared invalid,but of the noise ordinance, the Court said that
cases. In these cases, noise ordinances without decibel stan- there was no impermissible vagueness:
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Condemned to the use of words, we can never
expect mathematical certainty from our language. In McAlpine v.Reese,a Federal district court concluded
The words of the Rockford ordinance are marked that a noise ordinance was valid,saying:
by "flexibility and reasonable breadth, rather j -
than meticulous specificity," .. .but we think it Much has been wriuen of the preferred position
is clear what the ordinance as a whole prohibits. ' of the consututional freedoms under the First
Grayned, 408 U.S. at 110, 92 S.Ct. at 2300 Amendmen[and their sancaty. Such concern is
(footno[es omiued). both proper and praiseworthy. But it is apparent
that there is an attempt�ed erosion,in the name of
• TheCouncontrastedRockford'sordinancewithbreach- the First Amendment,of o[her freedoms equally
of-the-peace and unlawful assembly ordinances previously dear...The cloak of the First Amendment is not
found to be vague. The noise ordinance was found to be a so broad as to cover their deswcdon,even their
reasonable regulation,nanowly tailored to further a significant disrupiion. McAlpine,309 F.Supp.at 140.
state in[erest without unnecessarily interfering with First
Amendment rights,and neither impermissibly vague nor overly BARKING DOGS
broad.
Three of the cases cited in Foomote 3 relate specifically
Overbreadth. Generally,a law is overiy broad if it dces not to the problem of constandy barking dogs, or dogs "in the
aimspecificallyattheevilswithinitsallowableareasofconuol, habit"of"barking."10 Unfortunately,theSpokane,Washing-
but sweeps within its ambit other activities that constitute an ton case was a loss for the city, although the Washington
exercise of First Amendment rights.' A law will not be voided Supreme Court has allowed the prosecution of"loud or rau-
for overbreadth, however, unless its deterrent effect on pro- cous"and unreasonably disturbing behavior by a human being
tected activity is substanual.$ on a bus under a disorderly bus conduct ordinance.l'
Kovacs has been cited numerous times for the rule that NOISY MUFFLERS
even protected speech may be restricted as to time,place and �
manner. Where an ordinance regula[es the volume, not the There is a line of cases dealing specifically with noisy
content,of amplified sound,defendants must establish that the motor vehicle equipmenc,usually mufflers. A recent example
regulation infringes upon a substantial amonnt of protected is St. Louis County v. McClune, 762 S.W.2d 91 (Mo. App.
expressive activity. Broadrick v. Oklahoma,413 U.S.601,93 1988), where a councy ordinance prohibicing "excessive and
S.Ct.2908(1973);City of Philadelphia v.Cohen,479 A.2d 32 unnecessary noises" made by a vehicle was upheid against a
(Pa.App. 1984). vagueness challenge. The officer tesdfied that the vehicle was
"really loud,"and that he had heard the vehicle before it came
The Fifth Circuit Courtof Appeals in Reeves v.McConn, into sight,even with the patrol car's windows up. The court
631 F.2d 377 (Sth Cir. 1980),decided �hat tt�e time and place cited decisions from Califomia,New York and Texas in support
resuictions of a Houston ordinance regulating the operation of of its decision.12
sound amplification equipment were invalid because they were
overly broad,leaving few times and places for the use of sound In responsc to the problem of noisy vehicles,some states
amplification equipment. However,the sound volume restric- have enactcd noise emission standards for motor vehicles while
tions (``unreasonably loud, raucous, jarring, disturbing, or a in operauon, and for new motor vehicies. Florida's statutes13
nuisance to persons within the area of audibility")were found incorporate decibel-based standards. The F7orida statute relat-
to be not void for vagueness,cidng Kovacs and Grayned. ing to motor vehicles in operaaon has been employed against
the opera[ors of vehicles with loud music syscems with some
Freedom of Speech. The amplification of sound is an activity praciical success. Recendy, the Florida Legislature enacted
protected under the First Amendment but subject to reasonable House Bill 1383, which prohibits the operation in motor ve-
time,place and manner restrictions.9 hicles of radios or other mechanical soundmaking devices
which are audible at a distance of 100 feet or more,or whict�are
louder than necessary in areas adjoining churches, schools or
In Srate ex rel.Nicholas v. f�eadley,48 So.2d 80 (Fla. hospitals. The bill does no�incorporate a decibel-based stan-
1950),the Florida Supreme Court cited Kovacs with approval in dard.
upholding an ordinance of the City of Miami which prohibited
the operation of sound trucks upon the public streets. The term AIRPORT NOISE
"loud and raucous" was not used in the ordinance, but the
ordinance was challenged(unsuccessfully)on f�e speech gmunds. Airplanes are inherendy noisy, and municipal ordi-
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-nances regulating noise from aircraft have tended to regulate the
hours of airport operation,tlight patterns,minimum altitudes, UNFAVOItABLE CASES
and types of aircraft which may land at airports. iJnfortunately,
airplane and airport noise regulations face the problem of The municipal attomey in a jurisdicdgn other than those
federal preemption. represented by the cases cited above should proceed with
'cauaon. There are several cases in which the courts have
In City of Burbank v.Lockheed Air Terminal,441 U.S. examined similu facts and similar ordinances,and have simply
624,93 S.Ct 1854,36 L.Ed.2d 547(1973),the Supreme Court gone the other way. Citations to two of the most recent
examined an ordinance which banned take-offs by "pure jet unfavorable decisions,from intermediate state appellate courts
aircraft" between 11 p.m. and 7 a.m. The Court found that in Minneso[a and Wisconsin, are inciuded at the end of this
Congress had preempted the field of aircraft noise regulaaon by article.1° In these decisions,the courts often are troubled by the
enacdng che Federal Aviauon Act of 1958, 49 U.S.C. Appx. lack of an objective standard. The inclusion of a"reasonable
Sections 1301 et seq.,as amended by the Noise Control Act of person of ordinary sensibilities" standard in the description of
1972,49 U.S.C. Appx. Secdon 1431, and the ordinance was the offensive noise should preclude an arrest based upon the
found to be an invalid exercise of rhe city's police powers. The complaint of an overly sensidve neighbor or the officer's
majority opinion's focus is on the effect of nighttime c�rfews on personal sense of annoyance,and should provide the requisite
the scheduling of airline fligh[s, and the delegaaon to the level of objectivity.
Environmental Protecdon Agency and the Federal Aviation
Administration of the task of developing aircraft noise emission
standards. The opinion acknowledged that the control of noise WHY A NOISE ORDINANCE
is deep-seated in the police power of the states,and ezpressed WITHOUT DECIBEL STANDARDS?
uncertainty as to the ulumate remedy for the "plague" of •�
aircraft noise. In dissent,Justice Rehnquist noted the distinc- Although the modern trend has been to adopt decibel-
tion between controlling aircraft noise sources and regulatory based ordinances to control noise, such ordinances are not
means such as airport availability times. He would not have without their drawbacks.Clearwater's ordinance was written in
found a preemption of every conceivable method of regulating response to a request to avoid the expense of purchasing the
airport noise. equipment and vaining the operators,and the logistical problem
of an officer's not having the equipment readily available when
In Santa Monica Airporr Ass'n v.City of Santa Monica, the need arises. Also,operators of sound detection equipment
659 F.2d 100(9th Cir.1981),the Nin[h CircuitCourtof Appeals often encounter certain practical problems in the�eld.
upheld an airpor[ noise reduction ordinance enacted by a
municipality in its proprietary capacity. The ordinance estab-
lished a 100-decibel maximum single event noise exposure For example, in U.S. Labor Pa�ty v. Pomerleau. 557
level by aircraft during takeoffs and landings. The court held F.2d 410 (4th Cir. 1977), the enforcement of Baltimore's
that the method used by the city to regulate che noise for which decibel-based noise control ordinance against the amplificaaon
the city could be held liable was not preempted by the federal of political speech on downwwn public streets ran into an
regulation of aviauon. unexpected snag when the court examined the procedures used
by the inspectors to measure sound volume. The ordinance
The City of Clearwater unsuccessfully asserted the prohibited sound levels above certain limits"atany point on the
proprietary exempaon in Pirolo v.City of Clearwater,771 F.2d property line of the use,"but inspectors could not easily locate
1006(1983). The city's airpon had been leased to an airport the appropriate point from which to measure the sound volume.
operator,and the city la�er adopted ordinances banning night The inspectors took their readings from the sidewalks,adjacent
Elights and imposing traffic controls for takeoffs and landings. street corners, and areas from which complaints had been
The court held that the city had leased away its proprietary received. The meter readings depended, in part, upon the
powers and the ordinances were invalid. distance from the sound source. The distances varied,in this
case, from 4 1/2 to 57 fee� The coure found che ordinance
Condnuing dissatisfaction wich the Burbank decision is unconsu[uaonal as applied because the ordinance gave the.
evident in one of the most receni airport noise cases,Harrison inspectors no clear guidance as to where to stand to take their
v. Schwartz, 572 A.2d 528 (Md. 1990), where the Court of ineasurements in the downtown area,and because the ordinance
Appeats of Maryland felt compelled to dectare invalid several permitted readings to be taken within a few feet of the loud-
zoning restrictions that had been imposed upon the use of a speaker.
private airport for glider operaaons. The zoning restrictions
related to aming between iakeoffs,and a ban on night takeoffs. City of Farmington v.Wilkins,740 P.2d 1172(N.M.C�
The dissent questions ihe application of Burbank to the facts of App. 1987)involved both a decibel-based noise ordinance and
the case.
4
. - ,
an ordinance regulating noise without decibel standards. In this or licensees,or in any occupied residential unit which is not th:
case,the defendant proved that his external loudspeakers emit- source of the noise or upon the grounds thereof,and in any even
ted noise below the decibel standards set forth in one secaon of from a location not less than fifty(50)feet from the source of th�
the ordinance. The court nevertheless found him in violation of noise,measured in a straight line�rom the radio,loudspeaker
another section, which prohibited any "unreasonably loud. motor,horn or other noise source. (Emphasis added.)
disturbing or unnecessary noise, or noise of such character,
intensity or dura[ion as to be detrimental to the repose,life or ***** *****
health of others." That standard, said the court, was not too
vague. Sec.96.02.Enumeration.
An effective noise ordinance can be useful as an alterna- The following acts, as limited by Section 96.01 an�
tive tool for handling certain kinds of public diswrbances. For subject to the exceptions provided in Section 96.04, are de
example,the City Court of Oswego,New York,said that squeal- clared to be public nuisances in violation of Section 96.01
ing dres and jack-rabbit starts were not disorderly conduct,but namely:
' the defendant should have been charged under a secdon of the
law which bans"unreasonable noise,"in People v.Brown,520 * ***** *** *
N.Y.S.2d 315 (N.Y. City Ct. 1987). That section had earlier
been determined valid in People v.Bakolas,59 N.Y.2d 51,462 (5) Radios, amplifiers, phonographs, etc. The using.
N.Y.S.2d 844, 449 N.E2d 738 (N.Y. Ct� App. 1983), which operadng orpermiuing to be played,used oroperated any radio
cites numerous cases inciuding Kovacs. amplifier,musical instrument,phonograph or other device for
the producing or reproducing of sound in such manner as tc
cause loud and raucous noise. (�mphasis added.)
CONCLUSION
In at least fifteen jurisdictions, cities have adopted Secrion 96.04 contains cerain exceptions,none of whict;
. applied to[he Defendants at the dme the citaaons were issued.
enforceable noise protection ordinances relying upon terms
commonly heard in ordinary speech rather than "objective" a Ji�rockett Promotion v.City of Charlotte,706 F.2d
standards expressed in decibels. The reviewing courts have 486(4th Cir. 1983)("unne�essary"is unconsdtutionally vague.
generally had no difGculty finding that noise pro[ec[ion is a bu["unreasonably loud,discurbing. ..noise" is valid).
legitimate police power activity of cities.The terminology used
in these ordinances has been found neither vague or overly Reeves v. McConn, 631 F.2d 377 (Sth Cir. 1980
broad,nor do the ordinances violate Freedom of Speech pro�ec-
tions. Barring possible federal preemption problems, ordi- �"unreasonabiy loud,raucous,jarring,disturbing,ora nuisance
to persons within the area of audibility").
nances such as these are a useful weapon against the plague of
excessive noise in a "high-tech"age. � McAlpine v.Reese,309 F.Supp. 136(E.D.Mich. 1970
("any noise. . .by which the peace,quietude or good order oT
END NOTES any public,private or parochial school is diswrbed").
'Sections 96.01 and 96.02(5)state: 'In order to include a comprehensive collection o�
Sec. 96.01. Prohibited generally. supporuve case citauons,the cases cited in this endnote ma�
include some which are published but not yet final. Counsei
It shall be unlawful for any person to willfully make, should, as usual, check the current validity of any decision
continue or cause to be made or continued�ny loud and raucous which appears to be useful.
noise,which term shall mean any sound which,because of its
volume level,duration and character,annoys,disturbs,injures pRIZ:State ofArizorea v.Cole,501 P.2d 413(Ariz.Ct.
or endangers the comfort,health,peace or safety of reasonable App. 1972)(keeping a dog which is"in the habit of barking or
persons of ordinary sensibilities within the limits of the city. howling or disturbing the peace and quiel of any person�within
The term includes ehe kinds of noise generated by the activiues the city").
enumerated in section 96.02, except as provided in sec�ion
96.04. The term shall be limited to loud and raucous noise heard CAL:Mann v.Mack,202 Cal.Rptr.296(Cal.Ct.App.
upon the public sveets, in any public park. in any school or 1984) ("loud,unnecessary and unusual noise").
public building or upon the grounds thereof while in use,in any
church or hospital or upon the grounds thereof while in use, ILL:Town ofNorma!v.Stelzel,441 N.E.2d 170(I11.4tt
upon any parking lot open io members of[he public as invitees �A 1928)(``loud and raucous").
5
� I , r
' fr�
�'*�
MD: Eanes v. Stare, 569 A.2d 604 (Md. 1990), cert. (Va. 1990)(playing a television se�radio.taQe piayer,phono-
denied, 110'S.Ct.3218(1990)(willfully disturbing any neigh- graph or musical instrument in mannex or volume as to annoy
borhood by"loud and unseemly noises"). "any person"is not facially unconstitutional on ground thatthe
ordinance could only be a private nuis�nce).
MICH: People of Dearbo�n Neights v. Bellock, 169
N.W.2d 347(Mich.C�App.1969)("any noise...by which the WASH: City of Seattle v. Eze, 759 P.2,¢ 366 (Wash.
peace and good order of rhe City of Dearborn Heights are 1988)("disorderly bus conduct" defined to include "loud or
disturbed"). raucous behavior"which "anreasonably diswrbs others"while
in a bus); but see, City of Spokane v. Fisch�r, 754 P.2d 1241
NJ: State v. Holland, 331 A.2d 262 (N.J. App. 1975) (Wash. 1988) (allowing a dog "w disturb or annoy any other
("loud and unnecessary"). person or neighborhood by frequent or habitual howling,yelp-
ing or barking" --found void for vaguene.ss). . �
NY:People v.Holstegge,493 N.Y.S.2d 720, 129 Misc2d
580 (Vill. Ct Ocean Beach 1985): People v. Bakolas, 449 `Reeves v. McConn, 631 F.2d 377, at 383 (Sdi Cir. I
N.E.2d 738,59 N.Y.2d 51 (N.Y.Ct.App. 1983). 1980);Connally v.General Construction Co.,269 U.S.385,46 '
S.Ct. 126(1926).
NC:State v.Smedberg,229 S.E.2d 841 (N.C.Ct App.
1976)("unreasonably loud,diswrbing and unnecessary noise"). SGrayned v. City of Rocl¢ord,408 U.S. 104, 92 S.C�
2294(1972).
ND: Stare v. Beyer, 441 N.W.2d 919 (N.D. 1989)
(muffler must prevent"excessive or unusual noise"). 6McAlpine v.Reese,309 F.Supp.136(E.D.Mich.1970).
OHIO:Scate v.Dorso,446 N.E.2d449(Ohio 1983)("in 'Beckerman v. City of Tupelo,664 F2d 502(Sth Cir.
such manner as to diswrb the peace and quiet of the neighbor- 1981);Thornhill v.Alabama.310.U.S.88,97(1940).
hood, having due regard for the proximity of places of resi- �
dence,hospitals or other residendal institutions and to any other BBroadrick v.Oklahoma,413 U.S.601,615 (1973).
conditions affected by such noises");CityofMarietta v.Grams,
531 N.E.2d 1332(Ohio Ct.App. 1987)(disturbing the "ge�d � 'Saia v. People,334 U.S.558(1948).
order and quiet"of the city by"clamors or noises of the night
season,"limited by the court to be applicable to one who,with 10The Arizona d8cision in State v. Cole, the Texas
a reckless mental state, produces loud and continuous noise decision in Gear v. Stace,and the Washington decision in City
which offends a reasonable person of common sensibilities and of Spokane v.Fischer,note 3,supra
disrupts the reasonable conduct of basic nighuime activiaes
such as sleep). 11City of Seatrle v.Eze,note 3,supra.
ORE:City of Portland v.Aziz,615 P.2d 1109(Ore.C� 12CAL:Smith v.Peterson,280 P2d 552(Cal.CL App.
App. 1980)("plainly audible within any dwelling unit which is 1955).
not the source of the sound"); City of Porrland v.Ayers, 764
P.2d 556(Ore.Ct.App. 1988)(operating a sound reproducing NY: People v. Byron,215 N.E.2d 345, 1? N.Y.2d 64,
device on a public right-of-way so as to be "plainly audible" 268 N.Y.S.2d 24(N.Y.Ct�App. 1966).
fifty feet or more from the device).
TEX:Ex Parte Trafton,271 S.W.2d 814(Tex.C�App.
PA:Commonwealth v.Alpha Epsilon Pi,540 A.2d 580 1953).
(Pa. Super. Ct. 1988) (disorderly conduct deFined to include
making "unreasonable noise" with intent to cause public "Sections 316.293(vehicles in operation)and 403.415 �
inconvenience,annoyance or alarm). (new vehicles),Florida Statutes.
TEX: Lear v. Stare, 753 S.W.2d 737 (Tex. C� App. "MINN: City of Edina v. Dreher, 434 N.W.2d 621 �
1988)(harboring a dog which makes"frequent or long contin- (Minn.Ct.App. 1990)(ordinance prohibiting the keeping of an .
ued noise" which is disturbing to persons of"normal nervous animal that "by any noise disturbs the peace and quiet of
sensibilities");Blanco v.State,761 S.W.2d 38(Tex.Ct.App. persons in the vicinity"dces not provide adequate notice or
1988)(intentionally or knowingly making"unreasonable noise"
in a pubiic place or in or near a private residence that he has no WIS: City of Madison v. Baumann, 445 N.W.2d 647
right to occupy). (Wis. Ct. App. 1990) ("any noise tending to unreasonably
disturb[he peace and quiet of persons in the vicinity thereof"
VA: Ciry of Virginia Beach v.Mwphy,389 S.E.2d 462 unless the noise cannot be prevented and is necessary).
6