Memorandum
City of Lawrence
Legal Services
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TO: |
David L. Corliss, Interim City Manager
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
April 6, 2006
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RE: |
Options for Amendment of Noise Ordinance |
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TABLE OF CONTENTS
III. Objections to Existing Law
V. The “Plainly Audible” Alternative
A. Deciding on Appropriate Limits
VII. Conclusion and Recommendations
On March 10, 2006 a meeting was held with members of the public, city staff, University of Kansas officials and members of the City Commission regarding excessive noise and other neighborhood issues. One of the primary topics of discussion was the suggested changes to the City’s noise ordinance proposed by the University of Kansas Chapter of the American Civil Liberties Union. That group advocates requiring a citizen complaint before issuing any citation and proposes that each individual either be warned before issuing a citation to that person or that a noise limit of 60 decibels be set in residential neighborhoods between the hours of 12:00 A.M. and 7:00 A.M. Police Chief Ron Olin noted at the meeting that as a matter of practice, most violators of the City’s noise ordinance do receive a warning prior to enforcement activity. I spoke against a decibel limit based noise ordinance for a variety of reasons. Mayor Highberger asked that I draft this memorandum in an attempt to present some alternatives to the existing ordinance, and my objections to a decibel denominated standard. Before I discuss specific regulatory schemes, I will briefly overview the area of the law and the objections made regarding our current ordinance.
Sections 14-413 through 14-416 currently contain the general provisions of the City Code related to excessive noise violations within the City. In addition, there are several ordinance sections in Chapter 17 dealing with amplified noise from motor vehicles. Section 14-414 contains the primary prohibitions against excessive noise. It reads:
14-414 SAME. Disturbing the Peace.
(A) It shall be unlawful for any person to make, continue, maintain or cause to be made or continue any excessive, unreasonable or unusually loud noise which disturbs, injures, endangers the repose, health, peace or safety of other people of ordinary sensitivity within the vicinity of the noise.
(B) It shall be unlawful for any person to use, operate or permit the use or operation of any electronic device, radio, receiving set, television, musical instrument, phonograph or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet or repose of the neighboring inhabitants of ordinary sensitivity.
(C) No person shall participate in or be in any party or gathering of people from which sound emanates at a sufficient volume so as to disturb the peace, quiet or repose of the neighboring inhabitants of ordinary sensitivity. A police officer may order all such persons present at any such party or gathering to immediately disperse from the vicinity of any such party or gathering in lieu of being charged under this ordinance; provided; however, owners or tenants are not required to leave their own dwelling unit. Owners or tenants residing in the dwelling unit where the party or gathering occurs shall, upon request of a police officer, cooperate fully in abating the disturbance and failing to do so shall be in violation of this ordinance.
(D) For the purposes of this ordinance, the term "neighboring inhabitants" includes those persons in single family dwellings, multiple family dwellings, boarding house rooms, hotel rooms or motel rooms within the vicinity of the noise.
The current noise ordinance has proven to be enforceable in Municipal Court. The disposition of the 334 noise ordinance violations charged in 2005 follows:
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Disposition |
Number |
Percentage |
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Guilty Plea |
208 |
62.2% |
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Found Guilty at Trial |
2 |
0.6% |
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Diverted |
14 |
4.2% |
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Dismissed |
61 |
18.3% |
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Still Pending and Scheduled |
15 |
4.5% |
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Still Pending – Active Warrant |
34
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10.2%
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334 |
100% |
The statistics show that a significant majority of cases charged result in a guilty finding, either as a result of a plea or a trial, or result in the offender entering into a diversion program. Jerry Little, City Prosecutor, was contacted and asked about the cases that were dismissed in an attempt to determine whether there is a flaw in the current ordinance or the way it is being enforced that hampers his ability to obtain a conviction. He reported that a significant portion of the dismissals were as a consequence of a request for dismissal by the person who complained about the noise in question or because of the unavailability of necessary civilian witnesses when the trials are scheduled. It may be argued that because a substantial majority of people charged with a violation of the noise ordinance voluntarily enter a plea of guilty or enter diversion in lieu of a trial that the prosecution is able to effectively enforce the ordinance and that the Police Department is using proper judgment in deciding when it is appropriate to initiate that enforcement action.
III. Objections to Existing Law
The advocates for a change to the existing ordinance contend that it lacks objective enforcement criteria. An ordinance written with objective prohibitions is enforceable based upon observable phenomena, and its application does not depend upon an individual’s emotion or bias. From a legal standpoint, ordinances that lack objective enforcement criteria are generally found to be unconstitutional by the courts under the vagueness doctrine. The vagueness doctrine is used to invalidate ordinances that do not allow a person of ordinary intelligence to reasonably know what has been illegalized by the ordinances. In Luna v. City of Ulysses, 28 Kan. App. 2d 413 (2000), a noise ordinance was ruled to be invalid for this reason. The ordinance in question in Luna stated:
Section 1. Loud Noise Prohibited. It shall be unlawful for any person to make or cause or permit to be made upon any public or private property including public streets, alleys, thoroughfares or parks, any unnecessarily loud or excessive noise or sound which is physically or mentally annoying or disturbing to another person or persons or which disturbs the peace, quiet, or comfort of another person or persons.
The Luna court ruled that the ordinance was invalid because it did not contain any objective standard. It is unreasonable to ask a person to accurately predict what might annoy or disturb any specific other person especially if the person disturbed or annoyed is bothered by conduct most people would not consider to be objectionable.
Our ordinance, on the other hand, is significantly different than the ordinance struck down in Luna because it only applies to the peace, quiet and repose of persons of ordinary sensitivity. Therefore, it is much more unlikely that conditions that cannot be readily anticipated will be included in the ordinance’s coverage. In City of Wichita v, Smith, 31 Kan. App. 2d 837 (2003), a person charged with violating Wichita’s noise ordinance alleged that, following Luna, the ordinance was unconstitutionally vague for the lack of an objective standard. The Wichita ordinance provided that:
(a) It is unlawful for any person to make, continue, or allow to be made or continued, any excessive, unnecessary, unusual or loud noise which creates a nuisance or injures or endangers the comfort, repose, health or safety of others, or which interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area unless the making and continuing of such noise is necessary for the protection and preservation of property or the health and safety of some individual.
The court found that the inclusion of the “person of reasonable sensitivities” language supplied enough for there to be objective enforcement of the ordinance and refused to invalidate it. I would submit that our ordinance’s “person of ordinary sensibilities” language is substantially equivalent in this important respect to the language approved in Luna, and on this basis a reviewing court would find it to be valid as well.
Although our ordinance contains provisions that are objective enough to withstand legal challenge, it is possible to rewrite it to be more specific in its scope or to utilize additional objective criteria. One possible revision would adopt the decibel denominated standards requested by the K.U. chapter of the A.C.L.U. I will discuss that proposal next.
Many cities use decibel readings to define the acceptable limits for noise. Some regulatory schemes are fairly complicated, specifying different acceptable sound levels by land use, source and time of day. This sort of ordinance is generally referred to as one that employs a performance standard. On an ideal level, decibel based readings have a broad appeal. After all, what could be better than having a sharp dividing criterion testable by a standardized scientific process? The downside is that the increase in specificity and accuracy is paid for by increased expense and an ultimate lack of enforceability. This is why some cities that have had a decibel denominated standard for many years are either shifting completely away from these standards or are supplementing them with standards that are more common sense and easier to enforce.
New York City, for example, has recently proposed revisions to its noise code for the first time in 30 years. The primary change is to move away from conventional decibel-based noise limits measured using sound level meters to a “plainly audible” standard. The “plainly audible” standard will be discussed in more detail below. New York City’s Department of Environmental Protection characterizes the changes as “designed to make enforcement of the code more effective and more practical.” DEP Newsletter, Winter/Spring 2005.
Using a decibel denominated standard creates challenges for the enforcement personnel who are charged with primary enforcement or the noise ordinance, the prosecutors and courts where noise violations are heard, and the citizens subject to the standard. These challenges can be broadly categorized as issues involving the cost of the program, the enforcement issues posed by the adoption of the technology, and the understandability of the specific conduct that the ordinance prohibits by members of the public. Each category will be discussed in turn.
Although a simple sound meter may be purchased at Radio Shack for around $50, the cost of an individual meter with all the certifications, features and data logging capabilities that will be required for the enforcement of a criminal ordinance can be conservatively estimated at $500 to $1000 per unit. This cost includes, in part, test equipment necessary to ensure that the meter is working properly on a daily basis. In order for any ordinance based upon technological evidence to be enforced, the evidence of that ordinance violation must not only be admissible, but it must be sufficient to prove guilt beyond a reasonable doubt. Radar and Lidar units that are used to measure the speed of moving vehicles not only have testing based upon an external standard, but also self test many times per minute to ensure that they continue to work correctly for any specific reading. At a minimum, I would expect that a court would require the sound meters in question to be tested shortly before attempting to obtain a reading.
In addition to the cost of the meters, there are training costs to consider. Each police officer assigned to patrol or other enforcement officer would need to be trained on the proper use and operation of the sound level meter. That training could either be provided by an outside trainer, or City employees could be trained to be trainers, but in any event the cost of training each member is not insignificant.
In order to ensure that each officer who might answer a citizen call would have immediate access to a sound level meter, the City would need to purchase approximately 23 sound level meters. Approximately 100 police officers would require training and perhaps certification on their use. Certainly, a decision could be made to purchase fewer devices or to train fewer people, and such a decision would reduce the costs of the program. Depending on the extent of the reduction, it could also significantly curtail the effectiveness of the program by delaying the arrival of a qualified officer with a meter at the scene.
From an enforcement perspective, a decibel denominated standard raises concerns during both the investigatory and the prosecution stages.
One of the challenges involved in using sound meters for enforcement is source discrimination. The sound meters used in noise enforcement are normally A-weighted, and are designed to parallel the response of an average human ear. Unlike a human ear, however, sound meters do not have the inherent ability to identify the source of the sound. In an urban environment, it is rare that there is only a single source of noise. The results generated by a sound meter reflect the loudest source measured by the microphone. Pointing the microphone at the sound source that is being measured certainly reduces the chance for error, and from a common sense perspective there is probably reason to believe that the loudest sound that the operator hears is the loudest sound that is being measured. An assumption underlying this conclusion, however, is that the operator hears the same things that the sound meter does. A defense attorney might argue in court that no evidence has been introduced that the operator of the sound meter is hearing the same things at the same levels as the sound meter. This argument can obviously be dispelled by hearing tests of all operators. It carries less weight for a clearly reoccurring noise, like a loud home stereo, than it does for intermittent noises that may be more difficult to pinpoint.
A second enforcement concern with a noise ordinance based upon decibel readings is that the process of setting up equipment and making measurements is something that takes significantly longer than enforcement of many other standards, allowing offenders to avoid any liability by keeping a good lookout for the police and reducing sound output whenever the police show up. Of course, this risk is run by any enforcement scheme that requires police presence, but it is much more pronounced when the determination of a violation cannot be made in a fairly instantaneous manner by arriving law enforcement.
Third, the use of a decibel denominated standard makes it impossible for charges to be filed based upon citizen observations, even if they are objectively corroborated by a number of people or even captured on videotape. Police officers are not required to personally observe ordinance violations before they can charge a violation. As with any crime, they are able to rely on citizen statements and other evidence of a violation and if probable cause exists then charges can be filed. Hypothetically, an instance when this might come into play is when five separate neighbors independently report a violation, or if a person videotapes a wild party held across the street. In each case even though there is a substantial amount of evidence of a violation no charges could be filed under a decibel denominated standard unless someone present just happened to be trained in the use of a sound level meter and equipped with a certified and tested meter at that time. Needless to say, this would be unlikely to happen.
Finally, there might be a need to present the testimony of expert witnesses several times to establish that the sound meters used operate using principles that are generally accepted in the relevant scientific community as accurate. These sorts of hearings are common when technological evidence is being introduced. Often a case will be litigated to the level of a court that establishes published precedent in an attempt to get the court to rule that the technology is so well accepted that inferior courts may take judicial notice of the reliability of the technology in the future. This then relieves the prosecution of presenting subsequent expert testimony on the scientific issues. For instance, this has happened in Kansas for issues like using radar to measure the speed of a moving vehicle. State v. Primm, 4 Kan. App. 2d 314 (1980). Until it happens, however, charges on the basis of sound level readings are subject to attack in the absence of proper expert testimony. Presenting such testimony is not an inconsequential potential expense.
Advocates for decibel denominated standards for noise enforcement sometimes analogize to vehicles and speed measurements to support their position. They argue that using radar or lidar to measure the speed of moving vehicles is an example of an objective and fair enforcement mechanism that citizens find easy to understand, and that there is no reason that similar techniques should not be used in other arenas, like noise enforcement. While the argument is superficially valid, there are many factors surrounding the use of sound meters for noise enforcement that are do not exist in the context of speed measurement, and these factors actually make the enforcement process with sound meters less understandable than some alternative standards.
One significant difference between the two scenarios is a difference between the units of measurement used in each case. Speed is a simple distance and time computation. It is linear, meaning that doubling a unit of measurement (miles per hour for example) will result in doubling the actual speed. The unit of measurement has a constant value. The decibel, on the other hand, is a scale based upon a logarithmic function. Generally, each 10 decibel increase in sound represents a doubling of the sound level. For example a speed of 50 miles per hour represents an actual speed 5 times that of a 10 mile per hour speed reading. On the other hand, a 50 decibel reading represents a sound level approximately 16 times that of a 10 decibel reading. Average members of the public are well practiced and adept at applying and estimating based upon a linear scale such as speed, temperature, or length. I am hard pressed to think of any scale based upon a logarithmic function that is in common usage by the general members of the public. Basing measurements on a system that is counterintuitive for many people has the prospect of creating more public confusion that it solves.
Another difference between speed measurement and sound measurement is in the breadth of application. Although we are well used to measuring speed and having our speeds measured while we are driving, this is virtually the only time that individual members of the public are asked to be cognizant of and regulate their speeds. To make this process achievable, vehicles are equipped with speedometers. A driver has the opportunity (provided that his or her speedometer is working properly) to know that he or she is above the speed limit based upon the speedometer readings.
While speedometers are fairly ubiquitous, sound meters are not. Most people do not own a sound meter. If a person subject to a decibel denominated noise ordinance does not own a sound meter, and the decibel scale itself is not an intuitive standard, that person is left in an awkward position because he or she will find it difficult to conform his or her conduct to a required standard because that person has no idea what the decibel reading of his or her sound is. The criticism levied at our current “person of ordinary sensitivity” standard -- that a person cannot understand if his or her conduct is violating the ordinance -- can also be applied to the decibel standard. Even though decibel readings are objectively verifiable, that verification is not convenient for members of the general public.
This objection can be overcome if members of the public decide to purchase and learn to use a sound meter, but this creates a cost not associated with other enforcement schemes.
V. The “Plainly Audible” Alternative
One standard that has received judicial approval from many courts[1] and has been adopted by many cities is the “plainly audible” or “clearly audible” standard. While this standard lacks the scientific precision of decibel readings from a noise meter, it does provide a fairly objective, enforceable and understandable means for legislating against problem noise levels.
The plainly audible standard has many different permutations depending upon the jurisdiction. In some places it is used alone, while in others it is combined with some other noise enforcement means, such as decibel meters. The factors used to set limits based upon the plainly audible standard are time and distance from a sound source or property line. The detection device used to enforce the standard is the same device used to initially detect offensive noise levels in the vast majority of circumstances – the ordinary human ear.
The plainly audible standard prohibits noise from being generated that is detectable by the human ear of normal sensitivity in certain locations at certain times. For illustration purposes, consider the following crude example of ordinance language:
It shall be unlawful between the hours of 9:00 P.M. and 7:00 A.M. for any person to produce or cause to be produced noise or sound that is plainly audible to a person of normal sensitivity more than 50 feet away from the property where the sound is produced.
Obviously, before putting this sort of ordinance into effect, many of the key terms would need to be defined and the language would need refinement, but the basics are contained in the above provision. Instead of the acceptable volume of noise being defined by a decibel reading on a noise meter, it is defined by whether or not a human ear can hear the noise at a specific place and time. The relevant distances can be adjusted based upon both time and zoning classification. The governing body might conclude that a 50 foot limit is appropriate at night in a residential district, a 200 foot limit is proper for a bustling commercial district during the same time, and that no limit is needed for an industrial area during the day.
I view the plainly audible standard as one that compares favorably to a decibel denominated standard in terms of its objectivity, while not being susceptible to many of the problems of the decibel denominated standard. The plainly audible standard is more objective and definite than our current standard. Under the current ordinance, the noise must be damaging to the repose, health peace or safety of a person of ordinary sensitivity for a violation to take place. For any given noise, there is obviously room for debate regarding whether it has met this standard. While this room for debate does not make the ordinance invalid under the law, it can be minimized or eliminated by the plainly audible standard. Multiple people with adequate hearing standing at a location should be reach identical conclusions regarding whether they detected sound at an area, and this makes the plainly audible standard an objective standard. There is no significant room for subjective judgment in the calculation.
Further, the other advantages over a decibel denominated standard are significant. There is no need to invest in and pay to maintain expensive equipment. There is no need for overly technical training. Police officers need not worry about having specialized equipment on hand to enforce the ordinance. The ordinance could be enforced based upon credible citizen complaints without a police officer being present at the time of the offense. Individuals affected by the ordinance should be able to judge whether the noise they are producing is violating the provisions without resorting to purchasing sound meters. Police officers should be able to determine quickly whether an ordinance violation has taken place, and it will therefore be more difficult for offenders to avoid citation by stopping the conduct when they see the police arrive. There would be no need for expert witnesses when taking these cases to court. The only unit of measurement involved is distance, which is simple to determine and falls within the common understanding of most people.
In fairness to a decibel denominated standard, however, it must be conceded that the results obtained with such a standard if every last obstacle can be negotiated and every objection quelled are superior to the plainly audible standard when judged solely on the issue of objectivity. Drafting a workable plainly audible standard is also probably more difficult than a decibel denominated standard because of the many choices that must be made concerning how to establish appropriate limits.
While it is a fairly simple task to draft a noise ordinance based upon time and distance based upon a plainly audible or similar standard, it is much more difficult to decide what the limitations of that noise ordinance should be. Obviously, even though the more objective standards such as the plainly audible or decibel denominated standards do not explicitly incorporate the annoyance of others and the disturbance of their peace as elements of the offense, the overriding goal of any noise restriction is to prevent that type of annoyance or disturbance. In effect, the standards serve as a bright line to define noise that people should find annoying compared to noise that should not disturb a reasonable person.
There is clearly room for reasonable people to differ regarding what appropriate limits should be. Different standards can be promulgated based upon land use considerations, time considerations, and the means with which the noise in question is being produced. A legislative body can adopt a simple, general solution or can adopt tailored rules that attempt to balance equities among specific types of stakeholders. A very important initial decision is to determine how the limits that are appropriate for our community will be identified.
In conjunction with the consideration of different enforcement schemes for noise violations, it would be an appropriate time to examine the existing exceptions to the current noise ordinance. Currently, there are nine exceptions to the City’s noise ordinance. These are:
(1) Emergency work necessary to restore property to a safe condition or to protect a person and property from eminent danger;
(2) Emergency vehicles;
(3) Alarm systems;
(4) Trash and waste pickup operations;
(5) Aircraft or railroads;
(6) Noise resulting from the activities of a temporary duration planned by a school/university, governmental or community group;
(7) Air conditioners and lawn care equipment;
(8) Construction operations; and
(9) Church bells and campanile chimes.
Of the currently existing exceptions, the one that has drawn the most discussion is the construction noise exception.
Prior to the recent proposal for the amendment of the noise ordinance, City Staff had been contacted by Gwendolyn Klingenberg of the Lawrence Association of Neighborhoods who has proposed that the construction noise exception to the ordinance be revisited. Ms. Klingenberg had done an analysis of past noise complaints filed within the City of Lawrence and had identified several that were related to construction noise, although the vast majority of noise complaints were party related. The exception for construction activity that is now in place is a blanket exception, and Ms. Klingenberg seemed interested in paring back the exception to include times when construction noise is not exempt.
Steve Glass, the president of LRM Industries, Inc. wrote a letter in opposition to any change to the current exemption. He pointed out that construction noise constitutes less than one percent of the current noise calls, and that there are reasons that construction cannot always be best performed during normal working hours.
The current ordinance does not regulate the noise from construction activities in any way. It does not limit the hours that activity may lawfully take place and it fails to specify any maximum noise level. Essentially, the law as it currently exists would allow someone performing construction activities to perform those activities within the City of Lawrence any time at any volume level regardless of the welfare of the occupants of nearby property, or their right to quiet enjoyment of the property. Nonetheless, the number of construction related noise complaints received by the police force demonstrates that the vast majority of people conducting construction operations within the do so responsibly even without facing the threat of prosecution.
Legal Services staff researched the noise ordinances of 12 area cities[2] to determine how they handle construction noise. Three basic approaches were identified. The first is not to include any exception for construction noise. In the three cities that have adopted this approach, whether the source of noise is construction activities or not has no bearing on whether noise from those activities constitutes a noise violation. It might be argued, however, that those cities using a reasonable person standard have some built-in protection for construction related activity as individuals are more likely to accept noisy projects for specific purposes with specific end dates.
The opposite approach is the one taken by Lawrence, granting a complete exclusion for noise generated by construction activities. Although many other cities have exceptions to their noise ordinance provisions for emergency construction or demolition work, and at least one city takes the approach of allowing individual construction projects to apply for variances from the application of their noise ordinance, the City of Lawrence is alone among the cities surveyed in granting a fulltime, total exception for construction activities from the application of the ordinance.
Most cities have ordinances that fall somewhere between these two extremes. The majority of cities place some limitation on non-emergency construction or demolition noise based upon the time of day when the noise is occurring. These time based limitations come in two basic forms. One approach is to declare certain times when construction activities that can be heard across property boundary lines are completely prohibited, absent emergency situations. This is by far the most common approach taken by the cities surveyed. Generally, work is allowed to begin at 7:00 A.M. and continue until sometime after 7:00 P.M., with many ordinances allowing work to continue until 10:00 P.M. or 11:00 P.M. In addition, some ordinances place stricter limitations on weekend construction activities. The second type of time based limitation is one that completely exempts construction activities during certain times or provides them with otherwise favorable treatment during those times by lowering the standard that would otherwise apply. For example, some cities that use decibel denominated standards set higher decibel standards for construction during daylight hours. Another approach is to except construction activity from the scope of the noise ordinance much as the City currently does, but to limit that exception to certain periods of time, and allow construction noise to be treated like any other noise during the time that is not exempted.
Any time limits imposed should likely be carefully considered for unintended impact on the construction industry. Some infrastructure improvement projects such as the KLINK overlay project on 6th Street have been scheduled for nighttime hours to avoid disrupting traffic. In the summer months, some concrete pours currently start earlier than 7:00 A.M. to provide more favorable weather conditions. The wide variety of approaches taken by other cities on the subject of construction noise shows that there is no one solution that works the best in every individual case, but if the Commission wishes to legislate on the subject of construction noise there are a wide variety of approaches that can be taken to craft a solution for Lawrence.
If the City wishes to limit the application of the construction exception to the noise ordinance to specific times of day, for the sake of consistency it might also consider imposing similar limitations on some of the other current exceptions. For example, lawn care equipment and solid waste pickup operations are currently excepted from the application of the noise ordinance. These noise sources are often restricted by time in other cities. Likewise, the group organized activity exception might be more carefully drawn to ensure that it is not used to justify conduct that would otherwise be termed unacceptable or abusive.
VII. Conclusion and Recommendations
The governing body has several options in regards to the City’s noise ordinance. It may:
1. Maintain the status quo.
Our existing noise ordinance appears to be a valid regulation under existing Kansas case law. The disposition of the cases charged in 2005 does not clearly indicate that the ordinance itself in not enforceable or that the enforcement personnel charged with enforcing the law are unable to distinguish substantial violations from frivolous complaints. Because of these facts, and the familiarity with the current enforcement procedure, there are some significant advantages to keeping the current ordinary person standard in place. As an alternative, the term “ordinary sensibility” in the ordinance could be amended to “reasonable sensibility”, thus bringing the ordinance directly within the holding of the City of Wichita v. Smith case. Although one option in the A.C.L.U. proposal is to maintain the current ordinance with a mandatory warning provision added, it is my opinion that the issuance of warnings during enforcement should not be absolutely required based upon the wide variety of factual circumstances that enforcement personnel face. There are too many ways that a mandatory warning provision can be manipulated to defeat the purpose of the ordinance. On the other hand, it should be noted that the vast majority of offenders are warned before being cited for a noise violation under the current ordinance.
A regulatory scheme based upon decibel level measurements might be drafted. This would be a much more objective standard for noise enforcement, but the added precision comes at great price for the City, both financially and operationally. There is a substantial risk that a decibel based standard would be much less effective than the competing standards when it comes to enforceability and comprehensibility by the public. For the reasons previously stated, Staff does not recommend the adoption of this sort of standard.
The plainly audible standard is premised on more objective criteria than does our current noise ordinance. It also largely avoids the problems that plague the decibel denominated standard in that is easier and less costly for the police to enforce and it is structured based upon time and distance limitations that should be easy to understand for most citizens. It is broader in its application than the current standard in some ways. For example, sounds that now might not be considered to be disturbing to the sensibilities of an ordinary person might be plainly audible in at a given distance at a given time and thus in violation of the new ordinance. Given that the Police Department does almost no noise enforcement for activities that nobody has complained about, this concern should be minimized. If the Commission wishes to move towards a more objective enforcement standard, some type of plainly audible standard would be our recommendation. There will be many choices that need to be made in deciding what sound levels are appropriate at certain times in certain areas of the City, and this process will necessarily be time consuming and somewhat imprecise.
In conjunction with any change to the current ordinance, and perhaps even if there is no other change, the Commission might choose to examine the construction noise exception that currently exists to determine whether it should follow the majority of other cities and place some restrictions on construction noise during the nighttime hours.
If the construction noise exception is limited, several other current exceptions might be susceptible to time limitations as well. It might be an appropriate time to examine each of the current exceptions to determine if they are serving their intended purpose or are in some way allowing conduct that should be regulated.
I understand that this is a complicated topic involving many substantial issues and difficult decisions. If I can provide further assistance to you or members of the City Commission, please feel free to call on me.
[1] A partial list of those cases approving distance based noise violations includes State v. Medel, 139 Idaho 498, 80 P.3d 1099, 1103 (Ct.App.2003) (upholding ordinance as not unconstitutionally vague where it prohibited operating a vehicle's sound system so that it is audible at a distance of 50 feet); Davis v. State, 272 Ga. 818, 537 S.E.2d 327, 329 (2000) (finding that statute which prohibits amplified sound from a vehicle which is "plainly audible" at 100 feet is not vague); People v. Hodges, 70 Cal.App.4th 1348, 1354, 83 Cal.Rptr.2d 619 (Cal.Ct.App.1999) (ordinance prohibiting a vehicle's sound system from operating where it could be heard 25 feet away not unconstitutionally vague); Moore v. City of Montgomery, 720 So.2d 1030, 1032 (Ala.Crim.App.1998) (holding ordinance that prohibited noise audible 5 feet from vehicle not unconstitutionally vague); Davis v. State, 710 So.2d 635, 636 (Fla.App. 5th Dist. 1998) (statute making it a violation to play a vehicle's stereo so that the sound therefrom is plainly audible at a distance of 100 feet or more from the vehicle was not vague); Holland v. City of Tacoma, 90 Wash.App. 533, 954 P.2d 290, 295 (1998), review denied, 136 Wash.2d 1015, 966 P.2d 1278 (1998) (finding ordinance not unconstitutionally vague as the court noted that a person of ordinary intelligence knows what is meant by prohibition of sound that is audible more than 50 feet away). A few courts have found that vagueness problems exist with the plainly audible standard, but this position is overwhelmingly the minority position.
[2] The cities surveyed were De Soto, Kansas City, Missouri, Leavenworth, Leawood, Lenexa, Manhattan, Mission, Olathe, Overland Park, Shawnee, Topeka and Wichita.