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.
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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
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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.
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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
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