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HomeMy WebLinkAbout01/16/1990, 5 - MINOR AMENDMENTS TO THE CITY'S NOISE ORDINANCE TO MAKE IT ENFORCEABLE I�'II�IIIIII}IIAII�III MEETING SATE: `Ili Iu�uil cityof sarrluis oBispo 1-16-90 COUNCIL AGENDA REPORT ITEM NUMBER: FROM: Jeffrey G. Jorgense City Attorney SUBJECT: Minor Amendments to the City's Noise Ordinance to make it Enforceable CAO RECOMMENDATION: Introduce an Ordinance to Print Revising Portions of Chapters 1. 0 and 9. 12 of the San Luis Obispo Municipal Code Concerning Noise Control BACKGROUND: On December 18, 1989, Municipal Court Judge James Ream declared a portion of the San Luis Obispo noise ordinance (SLOMC § 9. 12 . 020U) unconstitutional. What this means is that wherever the code uses the term "noise disturbance, " a term defined in § 9. 12.020U, the code cannot be used as the basis of a criminal complaint. In addition, the Judge in "dicta, " indicated that the ordinance was constitutionally flawed in other areas (S 9.12 . 050) . (The Decision is attached for your information as "Attachment 311. ) Another municipal court judge has refused to hear noise complaints as infractions because they are not included in the list of infractions specified in Municipal Code § 1. 12 . 060. Therefore, the City cannot presently count on successfully enforcing its noise ordinance. ALTERNATIVES: Appeal the Judge's Decision: This alternative is not suggested. The Judge's decision appears to be sound, insofar as it deals with the definition of noise disturbance. In addition, even if we won, the other problems in the ordinance dismissed as "dicta" by the Judge, would most certainly be attacked. Do Nothing: This alternative would be undesirable for two reasons. First, it would limit enforcement options. Second, it would leave us with laws still in force which we know to be un- constitutional and/or unenforceable. 3-/ Staff Report Page Two Change Our Municipal Code: This alternative would once again allow officers to cite noise violations under our code. It is the recommended action. CONCURRENCES: The Chief of Police concurs with the recommended action. FISCAL IMPACT There are no short or long-term fiscal impacts expected. RECOMMENDED ACTION: Move and pass to print the attached Ordinance (Attachment 2) which revises portions of Chapters 1.0 and 9. 12 of the San Luis Obispo Municipal Code. The attached legislative draft (Attachment 1) indicates those changes necessary to make all of Chapter 9. 12 enforceable. In \ addition, technical changes have been made to the Chapter to clear ) up typographical errors and ambiguities. Finally, Chapter 1, S 1. 12 . 060 has been amended to broadly include all code citations mentioning infractions. The proposed changes are technical in nature and do not affect the substantive provisions of the current noise control ordinance. ATTACHMENT: (1) Legislative Draft to Amend Portions of SLOMC Chapter 9. 12 (2) Ordinance to amend portions of SLOMC Chapter 9. 12 (3) Judicial Decision in People v.. .Durning y LEGISLATIVE DRAFT TO AMEND THE SAN LUIS OBISPO NOISE CONTROL ORDINANCE i SAN LUIS OBISPO MUNICIPAL CODE CHAPTER 1 1 . 12 . 060 Designation of Infractions. a. Wherever this code so specifies a violation of this code shall constitute an infraction rather than a misdemeanor. b. In addition, a violation of any of the following provisions shall constitute an infraction, and not a misdemeanor: Chapters 3 . 04 and 3 ..08 -- Tax Procedure; Chapters 10 . 04 - 10. 76 and 10.84 -- Traffic Regulations Title 6 -- Animal Regulations Chapter- 12 . 24 -- Tree Regulations; Chapter 5 . 04 -- Business Licenses; Chapter 3 . 12 -- Uniform Sales and Use Tax; Chapters 12 . 04 - 12. 16 -- Street Excavations; Chapter 13 . 04 -- Public Utilities and Rates. Chapter 9. 12 -- Noise Control I SAN LUIS OBISPO MUNICIPAL CODE CHAPTER 9. 12 9 . 12. 020 Definitions., T. "Noise control office(r) (NCO) " means the municipal agencies or departments having lead responsibility for this chapter or their employees. will be—i n the eeme tlu= develer E Jdepartraent and the peliee department. U. "Noise disturbance" means any sound which, as deteriftined—by--thP ate=ge _entrel e€fieer,(a) endangers or injures the safety or health of human beings or animals, or (b) annoys or disturbs reasonable persons of normal sensitivities, or (c) endangers or injures personal or real property, or (d) violates the factors set forth 'in Section 9 . 12 . 060 - of this chapter. Compliance with the quantitative standards as listed in this chapter shall constitute elimination of a noise disturbance. ATTACHMENT 1 s-3 r� 9 . 12 . 040 General. noise regulations. Notwithstanding any other provision of this chapter, and in addition thereto, it shall be unlawful for any person to wilfully or negligently make or continue, or cause to be made or continued, or permit or allow to be made or continued, any feud, unneee55ary e unusual noise which disturbs the peace and quiet of any neighborhood or which causes any discomfort or annoyance to any reasonable person of normal sensitivity in the area. . No permit shall be. issued for any activity that may violate this section. The factors which may be considered in determining whether a violation of the provisions of this section exists include, but area not limited to, the following: A. The sound level of the objectionable noise; B. The sound level of the ambient .noise; C. The proximity of the noise to residential sleeping facilities; D. The nature and zoning of the area within which the noise emanates; E. The number of persons_ affected by the noise source; F. The time of day or night the noise occurs; G. The duration of the noise and its tonal, informational or musical content; H. Whether the noise is continuous, recurrent or intermittent; Z. Whether the noise is produced by a commercial or noncommercial activity. 9 . 12 . 050 Prohibited Acts: A. Noise Disturbances Prohibited. No person shall ______________l make, continue or cause to be made or continued, or permit or allow to be made or continued, any noise disturbance in such a manner as to be plainly audible at a distance of fifty feet from the noise. maker, provided nothing in this section shall be construed to prohibit any noise which does not penetrate beyond the boundaries of the noisemaker' s own premises or does not constitute an unreasonable disturbance to people lawfully on said premises. , at thi- geetrei I 9 . 12 . 100 Exceptions. C. Appeals. Appeals of an adverse decision under this .section of the police department' s noise control office(r) shall be made to the community development department. Review of the community development department shall be limited to whether the decision is supported by substantial evidence. J �J ORDINANCE NO. (1990 Series) AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO AMENDING PORTIONS OF MUNICIPAL CODE CHAPTERS 1. 0 AND 9. 12 OF THE SAN LUIS OBISPO MUNICIPAL CODE CONCERNING NOISE CONTROL BE IT ORDAINED by the City Council of the City of San Luis Obispo as follows: SECTION, 1. Section 1. 12 . 060 of the San Luis Obispo Municipal Code is hereby amended to read as follows: "1. 12 . 060 Designation of Infractions. "a. Wherever this code so specifies, a violation of this, code shall constitute an infraction rather than a misdemeanor. "b. In addition, a violation of any of the following provisions shall constitute an infraction, and not a misdemeanor: Chapters 3 . 04 and 3 . 08 -- Tax Procedure; Chapters 10 . 04 - 10. 76 and 10. 84 -- Traffic Regulations Title 6 -- Animal Regulations Chapter 12.24 =- Tree Regulations; Chapter 5.04 -- Business Licenses; Chapter 3 . 12 -- Uniform Sales and Use Tax; Chapters 12 . 04 - 12 . 16 -- Street Excavations; Chapter 13 . 04 -- Public Utilities and Rates Chapter 9 . 12 -- Noise Control" SECTION 2 . Section 9 . 12 . 020T of the San Luis Obispo Municipal Code is hereby amended to read as follows: "T. 'Noise control office(r) (NCO) means the municipal agencies or departments, having lead responsibility for this chapter, or their employees. " SECTION 3 . Section 9 . 12 . 02OU of the San Luis Obispo Municipal Code is hereby amended to read as follows: "U. 'Noise disturbance' means any sound which (a) endangers or injures the safety or health of human beings or animals, or (b) annoys or disturbs reasonable persons of normal sensitivities, or (c) endangers . or injures personal or real property, or (d) violates the factors set forth in Section 9. 12. 060 of this chapter. Compliance with the quantitative standards as listed in this chapter shall constitute elimination of a noise disturbance. " ATTACHPIENT 2 Ordinance No. ( 1990 Series) Page Two ' SECTION 4 . Section 9. 12 . 040 of the San Luis Obispo Municipal Code is hereby amended to read as follows: 119 . 12 . 040 General noise regulations. "Notwithstanding any other provision of this chapter, and in addition thereto, it shall be unlawful for any person to wilfully or negligently make or continue, or cause to be made or continued, or permit or allow to be made .or continued, any noise which disturbs the peace and quiet of any. neighborhood or which causes any discomfort or annoyance to any reasonable person of normal sensitivity in the area. "No permit shall be issued_ for any activity that may violate this section. "The factors which may be considered in determining whether a violation of the provisions of this section exists include, but are not limited to, the following: "A. The sound level. of the objectionable noise; B. The sound level of the ambient noise; C: The proximity of the noise to residential sleeping facilities; D. The nature and zoning of the area within which the noise emanates; E. The number of persons affected by the noise source; F. The time of day or night the noise occurs; G. The - duration of the noise and its tonal, informational or musical content; H. Whether the noise is continuous, recurrent or' intermittent; I . Whether the noise is produced by a commercial or noncommercial activity. " SECTION 5 . Section 9. 12 . 050A of the San Luis Obispo Municipal Code is amended to read as. follows: "9 . 12 . 050 Prohibited Acts. A. Noise Disturbances Prohibited.. No person shall make, continue or cause to be made or continued, or permit or allow to be made or continued, any noise disturbance in such a manner as to be plainly audible at a distance of fifty feet from the noise maker, provided nothing in this section shall be construed to prohibit any noise which does not penetrate beyond the boundaries S� r Ordinance No. (1990 Series) Page Three of the noisemaker's own premises or does not constitute an unreasonable disturbance to people lawfully on said premises. " SECTION 6. Section 9 . 12 . 100C of the San Luis Obispo Municipal Code is amended to read as follows: 119 . 12 . 100 Exceptions. "C. Appeals. Appeals of an adverse decision under this section of the police department' s noise control office(r) shall be made to the community development department. Review of the community development department shall be limited to :whether the decision is supported by substantial evidence. " SECTION 7 . A synopsis of this ordinance, approved by the City Attorney, together with the ayes and noes, shall be published once in full, at least three (3) days prior to its final passage, in the Telegram-Tribune, a newspaper published and circulated in said city, and the same shall go into effect at the expiration of thirty (30) days after its said final passage. A copy of the full text of this ordinance shall be on file in the office of the City Clerk on and after the date following introduction and passage to print and shall be available to any interested member of the public. On motion of seconded by and on the following roll call vote: AYES.: NOES: ABSENT: the foregoing ordinance was passed and adopted this day of 1990. Mayor Ron Dunn ATTEST: City Clerk Pam Voges �-0 1 Ordinance No. (1990 Series) Page Four APPROVED: City A ministrative Officer t tt ]-ley Chief of Police i SAN LUIS OBISPO COL'S : MUNICIPAL COURT car Court Use Only' SAN LUIS OBISPO BRANCH 1050 MONTEREY STREET ' SAN LUIS OBISPO, CA 93408 C. PEOPLE OF THE STATE OF CALIFORNIA Plaintiff, vs . JOSEPH PATRICK DURNING Defendant. MEMORANDUM OF RULING ON MOTION TO DISMISS CASE NUMBER M145753 - The defendant, herein, challenges the constitutionality of the San Luis Obispo City Noise Ordinance on three separate grounds . Itis urged that the ordinance. suffers from vagueness, overbreadth and additionally places an impermissible burden of proving innocence on a defendant. The relevant provisions of the. ordinance are set forth as follows: "9 . 12 . 050 Prohibited acts . A. Noise Disturbance Prohibited. No person shall unnecessarily make, continue or cause to be made or continued, or permit to allow to be made or continued, any noise disturbance in such a manner as to be plainly audible at a distance of fifty feet from the property site, building, structure or vehicle in which it is located and shall be considered prima facie evidence of a violation of this section. " Section 9 . 12 .020 of the challenged ordinance provides definitions for the applicable sections : ATTACWTNT 3 S'-/o Page Two 14145753 _ "U. 'Noise disturbance' means any sound which, as determined by thenoise control officer, (a) endangers or injures the safety or health of human beings or animals, or (b) annoys or disturbs reasonable persons of normal sensitivities, or (c) endangers or injures personal or real property, or (d) violates the. factors_ set forth in Section 9. 11. 060 of this chapter. Compliance with the quantitative standards as listed in this chapter shall constitute elimination of a noise disturbance. " T. '-Noise control office(r) (NCO) ' means the municipal agencies or departments having lead responsibility for this chapter will be in the community development department and the police department. " VAGUENESS A criminal statute which fails to define the crime with sufficient certainty violates the constitutional guaranteeof due process of law_ A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due: process . of law. Connally vs . General Const. Co. (1926) 269 U.S. 385, 46 S.Ct. 126 , Lanze.tta vs . New Jersey ( 1939 ) 306 U.S. 451, 59 S ,Ct . 618. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible-. Lorenson vs . Superior Court ( 1950) 35 Cal. 2d. 49; 216 P.2d 859, Solander vs . Municipal Court ( 1975) 4.5 Cal.App. 3d 668, 119 Cal. Rptr. 609 . S•rl Page Three .• M145753 - In the case here under consideration, the ordinance makes it unlawful to cause any noise disturbance so as to be plainly audible at a distance of fifty feet from the property site. The ordinance then defines "noise disturbance" as "any sound which, as determined by the noise control officer (emphasis added) , inter alfa, annoys or disturbs reasonable persons of normal sensitivities " . The courts have uniformly held that due process requires that the laws have explicit standards so as to eliminate arbitrary and discriminatory enforcement. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad 'hoc and subjective application. Grayned vs . City of. .Rockford ( 1972 ) 408 U.S . 104 , 92 s .Ct. 2294 . The malady in the ordinance here under consideration is that it delegates the standards of enforcement to the noise control officer. In other words , if the noise control officer determines that "any sound" annoys or "disturbs" "reasonable persons of normal sensitivities" that finding becomes a violation of the ordinance. It does not appear that such a finding, by the noise control officer, is even reviewable by a trier of fact. The language of the ordinance defines the violation, i.e. noise disturbance, as a determination by the officer. As such, the ordinance sets no standards which are Page Four _ M145753 _ subject to review by anyone. ** Thus, the ordinance impermissibly, in the Court's view, delegates basic policy matters to the noise control officer and therefore violates the Due Process Clause of the Constitution(both State and Federal) . In that the Court has reached the conclusion that the ordinance is unconstitutionally vague, the remaining -issues of overbreadth and burden. of proof shifting need not be discussed in detail . It does appear to the Court, that the ordinance suffers from overbreadth in those situations that would constitute a violation when no disturbance crosses 1 ** As the ordinance is written, it could legitimately be argued, that at trial, the only factual issue to be resolved by the trier of fact is whether or not the noise officer "determined" that a noise disturbance occurred. During argument, counsel referred to this ordinance being analogous to a speeding violation without specifying the ' speed limit. In the Court 's view, it is more akin to a violation of the basic speed law ( i.e. an unreasonable speed based on all the circumstances ) when the ultimate question of fact .is whether the citing officer believed the speed unreasonable versus whether the trier of fact believed (beyond a reasonable doubt) that the speed was unreasonable. �-l3 Page Five M145753 �1 beyond the property line of a defendant. Further, if the burden of proof shifting has meaning., it reduces the prosecution's burden of proof and thus is violative of. Constitutional standards . Accordingly, the Court grants the defendant's motion to dismiss the complaint . DATED: December 18 , 1989 L. - --- J D. REAM, JUDGE JDR/pw