Protecting Our Community - City of Fort Pierce

MEMORANDUM
To:
From:
Date:
Re:
Robert J. Bradshaw, City Man~
R. Sean Baldwin, Chief of Poli
May 26,2013
Commission Conference Agenda- Noise Ordinance
I understand that our noise ordinance will be a topic of discussion at the Commission's
Conference Agenda meeting on June 10, 2013. I have enclosed copies of a memorandum and
back-up documentation that outline my concerns and recommendations for resolving this
issue. I will attend this meeting and provide any additional information that may be necessary
to help the City Commission in this discussion.
As you know, our officers recently attempted to resolve a noise complaint from Skatetown by
enforcing our noise ordinance. The State Attorney's Office refused to prosecute this case, citing
problems with our ordinance. This action reinforces my concerns and makes it practically
impossible to enforce our existing noise ordinance. We are also receiving other complaints,
including one about Captain Jax, which present the same challenges.
Although my staff has assisted in drafting several ordinances over the years, this particular issue
is legally complex and beyond our capability. It is my recommendation that the City Attorney's
Office be tasked with developing an enforceable noise ordinance.
RSB/sc
enclosure
Protecting Our Community

I .
POLICE
FORT PIERCE
MEMORANDUM
To:
From:
Date:
Re:
Robert J. Bradshaw, City Manager
R. Sean Baldwin, Chief of Poli(e{)
January 3, 2013 ~
Request for Legal Review- Noise Ordinance
The police department is experiencing difficulty in resolving noise complaints due to
deficiencies and conflict in our local ordinances. In order to resolve this issue, I respectfully
request that City Attorney Robert Schwerer review our ordinances and draft any revisions
necessary.
To be more specific ... City of Fort Pierce Code of Ordinances, Section 11-48, generally prohibits
music or noise that is audible at a distance of more than 50 feet after certain hours. Section 11-
52 prohibits " ... excessive, unnecessary, or unusually loud noise, or any noise which annoys,
disturbs, injures, or endangers the comfort, repose, health, peace or safety ... " This same
section provides a scientific method of determining a violation, exempts certain types of noises,
and then prohibits certain sounds that are not measurable.
My concern is that these sections conflict with one another. A violation of one section is not a
violation of the other; and what is permissible by one section is not permissible by the other. I
am also concerned that the Florida courts have struck down several local and state laws
regulation noise over the last few years, and our codes may be unconstitutional. In example,
early this month, the Florida Supreme found that Florida Statute 316.3045, which prohibited
sound "plainly audible at a distance of 25 feet" from a vehicle, was unconstitutional (State v.
Catalano, SCll-1166). Other l"ocal noise ordinances that have met a similar fate (i.e. Daley v.
City of Sarasota, Fla. 2d DCA 2000). I have attached a copy of An Overview of Noise
Regulations in Florida (Bently, M & Robinson, G.), which provides additional references to
relevant court rulings.
My preference is to revise our ordinances, so that we have a simplified method of measuring
and determining a violation (similar to Section 11-48). However, I am not sure that this
methodology will withstand legal requirements.
For context, we currently have two long-standing noise complaints that are unresolved. One is
a complaint of loud "bass" coming from Skatetown on Orange Avenue and impacting adjacent
residential property owners. The other is a complaint of equipment noise coming from
commercial property at 25th Street and Orange Avenue and impacting adjacent
residential property owners. We deal with these types of noise complaints constantly and need
to have a legal and consistent method for handling these matters.
. .
~~---=~Rr.tJtecting-Ou~Community-=···,·~~..0""_,~-"~"··~~~~~~--
• • ~ .. ' • • • ' '.. ' '. l • ' ' • " ' • •

I understand that St. Lucie County completely revised their noise ordinance in 2006, and it may
be helpful for our legal staff to consult with their attorneys in this matter. A copy of their
current ordinance is enclosed.
I have assigned Deputy Chief Gregory Kirk to address current complaints from residents, and he
will serve as a point of contact for the City Attorney's office is technical assistance is required.
Deputy Chief Kirk can be reached at gkirk@fppd.org or 467-6940.
RSB/sc
attachment: City of Fort Pierce Code of Ordinances, Section 11-48 and Section 11-52
St. Lucie County Code of Ordinances, Chapter 1-13.8- Noise Control
Supreme Court of Florida SC11-1166
An Overview of Noise Regulation in Florida
c: Cassandra Steele, City Clerk
Gregory Kirk, Deputy Chief

I. Introduction
AN OVERVIEW OF NOISE REGULATION IN FLORIDA
BY: Mark Bentley, Esquire,AICP
GrayRobinson, P.A.
Tampa, Florida
The state of Florida is experiencing incredible growth, attracting thousands of
new residents and businesses each year. A negative side effect of this growth is noise
pollution, which local governments must now deal with as development encroaches
into areas which once were rural and residential. A review of recent Florida
headlines indicates the pervasive noise problems within the state. In 2005, central
Florida citizens have been annoyed by the invasive sound of airboats. Hillsborough
County has been embroiled in several months of litigation with the owners of an
outdoor amphitheater that has severely annoyed residents within miles and caused
them many sleepless nights. Also in 2005, the City of Treasure Island's noise
ordinance was challenged by a bar owner, and was ruled invalid as applied by the
Circuit Court, resulting in amendments to the ordinance. In addition, the now
pervasive sound of thumping car stereos caused the Legislature during its last session
to amend a motor vehicle statute so that a violation would now occur if the music is
audible from twenty-five feet from the vehicle, as opposed to the previous one
hundred feet. See Fla. H. 1697, 107th Reg. Sess. (Apr. 21, 2005).
Given that the topic of noise regulation is so broad and the caselaw from around
the country is so divergent in its interpretations of common terms typically contained
in noise regulations, such as "rumoy," "disturb.," "unnecessary," or "excessive," as
they implicate the relevant provisions of the U.S. Constitution, tllis article will focus
on the treatment Florida has given noise regulation. It will also discuss the trend
toward adopting quantitative, objective noise level standards and how even these
standards can be subject to attack and undermined by alleged violators.
II.
The Florida Constitution and Statutes
In Florida, the state Constitution sets forth the State's policy concerning
protection of its citizens from noise pollution. Specifically, Article II, § 7 states that:
"It shall be the policy of the state to conserve and protect its natural resources and
scenic beauty. Adequate provision shall be made by law for the abatement of air and
water pollution and of excessive and unnecessary noise .. .. "
In order to implement this aforementioned constitutional provision, the\ Florida
Legislature delegated authority to the Florida Department of Environmental
Protection (DEP) to establish standards "for the abatement of excessive and
unnecessary noise." See F.S. Section 403.061(11) 2004. However, as of this date, the
DEP has failed to enact any regulations, and therefore, the only statutory regulations
regulating noise propagation sources are laws relating to motor vellicles, loud music
# 719510 v2

from car stereos, and marine vessel noise. See F.S. Sections 316.272, 316.293,
316.3045 and 327.605 (2004), respectively.
III.
Local County and CityNoise Regulations
Most local governments have some form of noise control based on either
subjective nuisance or disturbance based standards, or an objective decibel based
standards, or a combination thereof. Many of the subjective noise ordinances seek to
control excessive noise that is of such character that it "tends to annoy, disturb or
cause physiological or psychological harm to a person with normal sensitivities."
Improvements in sound measurement teclmology and federal noise initiatives that
occurred in the 1970's, however, have caused a trend among local governments to
adopt detailed objective decibel-based noise regulations that incorporate noise
emission limitations and noise assessment criteria. These ordinances are often
coupled with traditional nuisance based regulations that allow for a two-pronged
approach to noise control.
IV.
Federal Constitutional Standards
In order for a noise regulation to comport with the United States Constitution, it
must be content neutral, clearly and narrowly drafted, and must not provide unlimited
discretion to government officials, or regulate more conduct that is necessary to serve
the alleged govemmental interest. Local govemment regulations are most commonly
challenged on First Amendment grounds for impeding free speech rights, or under the
Fifth and Fourteenth Amendments for violating due process rights. Amplified music,
even your neighbor's teenager's "boom box" blasting your home with Snoop Dogg's
unconventional perspective on social relationships, is considered a form of protected
expression and communication that is subject to very narrowly tailored regulation.
V. Florida Cases Involving Constitutional Challenges
Florida courts have generated very few opinions concerning the constitutionality
of local governn1ent noise ordinances. Of the five cases that are mentioned herein,
four have resulted in decisions holding in part that the ordinance under attack was
unconstitutional. Generally, these cases indicate that the courts will uphold certain
subjective provisions in a noise ordinance, but also further suggest a policy of strict
judicial adherence to the requirement that ordinances must be narrowly tailored to
fulfill a legitimate governmental interest.
In City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So.2d 528
(Fla. 3d DCA 1963), the Third District Court of Appeal considered the validity of a
provision in a 1948 noise ordinance and ultimately affirmed a circuit court's
injunction prohibiting its enforcement. The ordinance in question contained sections
that prohibited "restricted noises," which included construction noise within fifty
yards of any apartment building or hotel "at all hours" during the timeframe
consisting of December 1st through March 31st. In applying a balancing of interests
#719510 v2

: '
test, the court found tllis provision of the ordinance unconstitutional as it placed too
great a burden on the property owner by prohibiting any construction for one-third of
the year. Although the Seacoast court recognized that the government had a
substantial interest in promoting tourism and protecting visitors from disturbances,
the court failed to find a reasonable basis for the law's ban on construction noise
during winter months as tourists were now conling to Miami Beach "year round," as
opposed to when the ordinance was enacted in 1948.
A second provision of the ordinance that allowed the city manager "to waive any
and all requirements herein in cases of emergency where the welfare of persons or
property may be jeopardized," was held to be an arbitrary and unconstitutional
standard. The court applied a due process vagueness analysis and found that this
section was invalid as it allowed arbitrary enforcement of the ordinance at the "wllim
and fancy" of a city official "without any ascertainable standard of guilt" or standard
indicating what qualified as an "emergency."
The next reported Florida opiilion concerning noise regulation was the Second
District Court of Appeal's decision in Easy Way of Lee County, Inc. v. Lee County,
674 So.2d 863 (Fla. 2d DCA 1996). Easy Way concerned portions of the county's
noise ordinance prohibiting the use of certain devices for the production of sound "in
such a manner as to cause noise disturbance so as to disturb the peace, quiet and
comfort of the neighborhood ... [or] between the hours of 12:01 a.m. and the
following 10:00 a.m. in such a manner as to be plainly audible across property
boundaries ... or plainly audible at fifty (50) feet from such device when operated
within a public space." The ordinance defined "plainly audible" as "any sound
produced ... that can be clearly heard by a person using his or her normal hearing
faculties, at a distance of fifty (50) feet or more from the source." The alleged
violations were generated by a bottle club whose owners were cited by law
enforcement officials for violations of the ordinance when residential neighbors
complained of amplified music propagating from the nightclub. In response, the club
owner challenged the constitutionality of the aforementioned portions of the
ordinance as being both vague and an overly broad restriction on the right to free
speech.
The Easy Way court upheld that portion of the ordinance that prohibited devices
used to cause "noise disturbance so as to disturb the peace, quiet and comfort" of
others, finding it to be a valid exercise of police power by Lee County. In coming to
tllis conclusion, the court's analysis relied heavily on Reeves v. McConn, 631 F.2d
377 (5 1 h Cir. 1980) wherein the court found that a qualitative noise standard of
"unreasonably loud, raucous, jarring, disturbing, or a nuisance" was not
unconstitutionally vague. The Easy Way court also made reference to Reeves wherein
it suggested that a standard of conduct may depend on abstract words "even though
they fall short of 'mathematical certainty,"' because '"flexibility and reasonable
breadth, rather than meticulous certainty' is acceptable in this area." Accordingly,
agreeing with the Reeves court, the Second District Court of Appeal upheld this
subjective provision contained in Lee County's ordinance.
# 719510 v2

However, the Second District struck that portion of the ordinance that contained a
"plainly audible" standard for determining a noise violation. Finding that the term
"plainly audible" did not provide sufficient guidelines to prevent arbitrary
enforcement because it allowed noise to be prohibited based on the subjective and
personal perceptions of a particular listener, the court determined that this provision
was unconstitutionally overly broad and vague.
Shortly after the filing of the Easy Way decision, Florida's Sixteenth Judicial
Circuit issued an unpublished opinion ruling on the constitutionality of Monroe
County's municipal noise ordinance. In Kolbenheyer v . State, 1996 Fla. ENV LEXIS
99* 1 (Fla. 16 1 h Cir. May 31, 1996), a section of the County's noise ordinance was
challenged as being unconstitutionally vague and overbroad. Specifically, this
regulation stated that "[n]o person shall unnecessarily make, continue, or cause to be
made or continue, any noise disturbance," along with the definition of noise
disturbance as "any sound in quantities which are or may be potentially harmful or
injurious to human health or welfare . .. or unnecessarily intetfere with the enjoyment
of life or property ... of a reasonable person with normal sensitivities." The Circuit
Court found that the use of the term "unnecessarily" failed to provide a "standard by
which to measure the actor's conduct." Furthermore, the court opined that violations
of the ordinance were "wholly dependent" on the subjective reactions and complaints
of a third party, without any attempt to determine volume or "necessity" of the sound
being generated. In light of these deficiencies, the court determined that these
sections were vague and unenforceable.
Next, in 1998, the constitutionality of a "plainly audible" standard was once again
addressed by the Fifth District Court of Appeal in Davis v. State, 710 So.2d 635 (Fla.
5 1 h DCA 1998). In Davis, the court held that a portion of the Florida Statute that
prohibited the playing of a motor vehicle's radio so that the sound was "plainly
audible at a distance of 100 feet or more from the motor vehicle" ( was not
unconstitutionally vague as it clearly conveyed what conduct was forbidden . The
court also disregarded the appellant's First Amendment argument alleging that the
statute was not content neutral, indicating that the statute simply limited how loudly
sound could be played and failed to regulate content, stating that " . . . the statute
permits one to listen to anything he or she pleases, although not as loudly as one
pleases."
Notably, this decision was in direct contradiction of Easy Way. This very brief
opinion noted that it had failed to find cases on point from Florida and cited to noise
ordinance cases from other states in support of its decision. Therefore, it is
interesting that the court neglected to recognize the earlier Easy Way decision, and its
opposite result regarding the vagueness of the "plainly audible" standard.
The most recent Florida case conceming the constitutionality of a noise ordinance
was Daley v. City of Sarasota, 752 So.2d 124 (Fla. 2d DCA 2000). The alleged
violator in Daley was cited on two different occasions for violating a provision of the
# 719510 v2

City's noise ordinance that prohibited "amplified sound not in a completely enclosed
structure" during certain night time hours within a commercial business district. The
petitioner attacked the constitutionality of the ordinance, claiming that the regulation
imposed an overly broad restriction on the right to free speech. The court indicated
that the ordinance in question simply sought to regulate protected speech in a public
forum, and therefore it applied a First Amendment time, place, or mmmer analysis
used by the U.S. Supreme Court in Ward v. Rock Against Racism, 491 U.S . 781
(1989). The court determined that the City's interest in regulating unreasonable
sound was unquestionably a legitimate interest; however, the City's noise ordinance
was not narrowly tailored to achieve its intended goal of regulating unreasonable
sound. This was because the portion of the ordinance that was challenged completely
banned all amplified sound coming from unenclosed structures during certain hours,
irrespective of whether the volume or the sound could be heard outside of the
structure. Further, the ordinance placed absolutely no limits on unamplified sound,
regardless of the time of day. Accordingly, the court ruled that the ordinance
restricted First Amendment rights more intrusively than necessary and therefore, was
unconstitutionally overbroad.
The foregoing Florida cases suggest that regulations seeking to limit noise must
be narrowly tailored to specific times and places, and also must be reasonable relative
to the government's perceived harm, in order to avoid being invalidated based on
ove1"bl·eadth.
VI.
Noise Ordinances In Florida
A cursory review of numerous ordinances of Florida counties and municipalities
intended to control noise indicates that many are legally insufficient, may be difficult
to enforce, and are subject to legal challenge. Generally, these ordinances contain
subjective nuisance based standards and/or objective decibel based standards with
insufficient guidelines or criteria to properly quantify and prosecute a noise violation.
Many of these noise ordinances are deficient in that:
1. They fail to account for existing ambient sound in their noise level
standards and measurements;
2. They are based on an A-weighted standard, which deducts significant
sound energy from low frequencies, often providing misleading results relative to the
actual annoyance of low frequency sound;
3. The low quality analog measurement equipment identified in their
ordinance allows for imprecise "ballpark" estimated violations subject to a large
margin of human enor, as opposed to digital equipment that more precisely measures
sound level data;
tt719510 v2

4. They often contain provisions and standards that have been mled facially
unconstitutionally vague by various courts;
5. They fail to account for numerous variables, such as ambient noise,
refraction, wind and humidity, reflection from water bodies, building refraction, and
other environmental conditions, which leads to difficulty in attributing sound to the
source property;
6. They provide exceptions for sound relating to certain uses, such as church
bells, religious holiday events, or amplified public events, that provide a basis for a
First Amendment equal protection challenge; and
7. They provide inappropriate discretion for enforcement officials as they fail
to define pemlitting and appeal periods, or how sound will actually be measured, (i.e.
Lmax, providing for an instantaneous maximum sound level measurement, or Leq, an
equivalent continuous sound level providing for measurement to be averaged over a
period of time).
Most local noise ordinances have generally included subjective provisions
prohibiting activities based on traditional common law nuisance standards. For
example, the City of Inverness' noise ordinance simply states that "[t]he volume of
sound inherently and currently generated shall be controlled so as not to become a
nuisance to adjacent property owners." Notably, in 2005, the City's ordinance was
. being applied to a restaurant that was the subject of several complaints for excessive
noise. When questioned by the media concerning the matter, the City's Development
Director was quoted as saying that "[t]he problem that we had with it is it's very
difficult to enforce because it's very broad ." Music or Nuisance? Inverness Looks to
Clarify, St. Petersburg Times 7 (November 6, 2005).
Another example of a subjective regulation is the City of Treasure Island's which
states that:
"It shall be unlawful for any person to willfully make,
continue or cause to be made or continued any loud and
raucous noise, which term shall mean any sound that,
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." See Sec. 18-72,
Code of Ordinances, City of Treasure Island, FL (1998).
Still another example of a typical subjective noise regulation IS contained in
Hillsborough County's ordinance, which states in part that:
" ... (b) Definition of noise disturbance. As used in this
section, a 'noise disturbance' is any sound which is either:
# 71 9510 v2

(1) Excessive in amount or of such duration, wave
frequency or intensity as may be or is injurious to human
or animal life or property; (2) Excessive or unnecessary in
amount, level or duration as to umeasonably inte1fere
with the comfortable enjoyment of life, property or the
conduct of business; (3) Of such character and in such
quantity or level as to be detectable by a considerable
number of persons or the public, so as to inte1fere with
such person or the public health, repose or safety, or to
cause severe annoyance or discomfort, or which interferes
with normal conduct of business, or is otherwise
detrimental or harmful to the health, comfort, living
conditions, welfare and safety of the inhabitants of the
county." See Code of Hillsborough County (Fla.) Section
26-4.1 (1985).
These types of ordinances are based upon standards that are often subject to attack
as being unconstitutionally vague, with the court's providing a great divergence in
their decisions. These qualitative regulations are most often subject to the
enforcement of either affected citizens, local law enforcement personnel, or code
enforcement officials that have broad discretion to determine whether a sound is
"um·easonable," "unnecessary," "excessive," "annoying," "disturbing," or causing
"discomfort."
VII.
Trend Toward Objective or Quantitative Standards
The trend is now for local governments to adopt objective standards in their noise
ordinances to avoid enforcement problems and legal challenges. Quantitative
ordinances with objective noise level limits proscribe noise producing activity by
applying scientific standards of sound intensity and frequency, measured as
"decibels." Maximum sound levels are generally measured in dBA and vary
considerably from ordinance to ordinance.
Notwithstanding that these objective standards are generally more reliable and
defensible than traditional subjective standards, and if well crafted, can virtually
eliminate First Amendment challenges, they are still subject to attack by offenders for
a variety of reasons. Therefore, any quantitative ordinance should be carefully
drafted to avoid or at least minimize any facial or as applied challenges. Specifically,
these ordinances should consider the following items:
1. Exceptions- that any exceptions to the ordinance are narTowly crafted,
including time, duration and decibel levels. For example, many ordinances exempt
activities such as holiday events, entertainment districts, amusement parks, sporting
events, school carnivals, and events sponsored by governments. If certain reasonable
limitations are not placed on these exceptions, they can be used as the basis for an
equal protection challenge to the ordinance. Therefore, in considering any
#719510 v2

exemptions, it is wise to limit their duration, time, and noise level intensity.
Consideration should also be given to authorizing certain events through a permitting
process that would allow a temporary exemption. The permitting process should set
forth clear and narrow guidelines for granting or denying the permit to prevent
arbitrary denials, and consequently, First Amendment prior restraint challenges.
2. Definitions- an ordinance should clearly specify and define the devices
and methods that will be used to avoid overbreadth and vagueness challenges.
3. Equipment- all the equipment identified in the ordinance should meet
industry standards and should be digital equipment capable of recording and
downloading data, as opposed to analog equipment requiring hand written field
measurements, which are difficult to precisely register while monitoring a noise
source.
4 . Use of equipment -the equipment used should meet American National
Standards Institute (ANSI) industry technical specifications, and should be used in
accordance with American Society for Testing Materials (ASTM) standards on
measurement protocols.
5. Calibration- the equipment must be properly calibrated prior to each
reading per the manufacturer's specifications, and also at the factory as suggested by
the manufacturer.
6. Ambient noise- existing or background noise must be measured and
logged to determine its effect on the source noise.
7 . Competence of field personnel -all field personnel should be trained to
utilize the equipment and interpret its data, in accordance with the manufacturer's
specifications and follow an established written protocol for using the equipment.
8. Measurement of different octave bands - the A weighted scale is designed
to correct decibel readings to account for the fact that the human ear is less sensitive
to low pitched sounds than it is to high pitched sounds. However, oftentimes the
offending noise source results in bass sounds, or vibrations only detected by a sound
meter measuring the lower octave bands. Therefore, consider measuring the noise
source based on different frequency or octave band levels which not only will identify
the noise source that is causing the complaint, but will more easily identify the source
if challenged based on the distinct octave bands recorded. This way, if a violation is
challenged, a pattern of octave band levels can be distinguished from the ambient
levels and other noise sources, which will pinpoint the source and isolate the
offender, similar to a fingerprint.
9. Point of measurement- Sound should be measured as close to the source
as possible to avoid arguments that the measurement was tainted by ambient sound,
# 719510 v2

atmospheric conditions, environmental conditions, traffic, chirping insects, power
lines, building refraction or other possible sources.
10. Outside experts- if the situation appears that it may lead to litigation,
outside acoustical consultants should be hired whose experience, quality of
equipment, and reliability of data will provide the basis for a strong almost
"bulletproof' case. Money spent on experts when dealing with a contentious
situation that will be hotly contested, such as a popular nightclub, auto raceway, or
outdoor nightclub where the offender continues to ignore citations and will most
likely litigate seeking to invalidate the ordinance and its application, may be money
well spent. This will avoid many of the typical "as applied" challenges that
offender's raise concerning competence of the field personnel, quality of the
equipment, recording of data; inaccuracies due to ambient noise skewing the data, and
other defenses.
VIII. Subjective Nuisance Based Standards
Although oftentimes difficult to enforce, a subjective standard can still be an
important weapon in a local govenm1ent's arsenal for controlling noise disturbances.
There are certain situations where a noise disturbance may not exceed a certain
established objective noise level standard, but relative to that particular environment,
may still qualify as a nuisance.
Naturally, in light of the diverse caselaw interpreting subjective noise standards,
caution should be executed in drafting an ordinance that will withstand constitutional
scrutiny. Therefore, a subject noise standard should consider the following:
1. Utilize terms that have sustained constitutional challenges, such as "loud
and raucous," "disturb," and "loud and unseemly," while avoiding terms that have
been dete1mined to be vague.
2. Employ a reasonable person standard because they have been upheld by
most courts and they have often been held to cure otherwise vague standards.
3. Ensure that the ordinance's permitting scheme is tightly drafted and
provides for prompt judicial review of a denial to avoid arbitrary action by the
pe1mitting authority, which could provide the basis for a prior restraint argument.
4 . Ensure that the ordinance is clearly and plainly worded and includes time
for compliance, penalties, an appellate process and a review process, which will
deflect arguments concerning inconsistent enforcement.
5. Alleged violations should be determined by designated trained officials
and should not be solely based on citizen complaints.
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IX.
Conclusion
Although the Florida Constitution states that noise abatement is an important state
policy, Florida has done virtually nothing to achieve this goal . Control of noise pollution
in Florida is handled on an ad hoc basis at the local government level with each city and
county having its own unique method of control. Most of these regulatory schemes
include the use of a subjective standard that is often extremely difficult to defend in this
rapidly developing state that presents many opportunities for incompatibility and conflict.
Therefore, cities and counties should evaluate their laws to ensure that they comply with
recent caselaw and that they will provide a strong basis to effectively control excessive
noise, while also avoiding costly, time consuming legal challenges.
#719510v2

~upreme (!Court of jflortba
No. SCll-1166
LABARGA, J.
STATE OF FLORIDA,
Appellant,
vs.
RICHARDT. CATALANO, et al.,
Appellees.
[December 13, 2012]
This case is before the Court on appeal fi-om a decision of the Second
District Court of Appeal, State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011),
which declared section 316.3045, Florida Statutes (2007), to be invalid. We have
jurisdiction. 1 For the reasons set forth below, we affirm the Second District's
declaration that the statute is invalid because it is an um·easonable restriction on the
1. See att. V, § 3(b)(1), Fla. Const. (providing for mandatory review by this
Comt of decisions of district comts of appeal declaring invalid a state statute or
provision of the state constitution). The Second District also cettified a question of
great public impmtance: "Is the 'plainly audible' language in section
316.3045(1)(a), Florida Statutes, unconstitutionally vague, overbroad, arbitrarily
enforceable, or impinging on free speech rights?" Catalano, 60 So. 3d at 1144.
Thus, we also have jurisdiction based on the cettified question of great public
impmtance. See att. V, § 3(b)(4), Fla. Const.

freedom of expression. We also find that the statute is unconstitutionally
overbroad, but not unconstitutionally vague. Finally, we find that section
316.3045(3) is not severable fi:om the remainder of the statute.
FACTS AND PROCEDURAL HISTORY
Richard Catalano (Catalano) and Alexander Schermerhom (Schermerhorn)
were cited by law enforcement officers in separate iiicidents in Pinellas County,
Florida, for violating the sound standards of section 316.3045(1)(a), Florida
Statutes (2007). Catalano, 60 So. 3d at 1141. 2 Specifically, section 316.3045
provides as follows:
Operation of radios or other mechanical soundmaking devices or
instruments in vehicles; exemptions.-
(!) It is unlawful for any person operating or occupying a motor
vehicle on a street or highway to operate or amplifY the sound
produced by a radio, tape player, or other mechanical soundmaking
device or instrument from within the motor vehicle so that the sound
IS:
(a) Plainly audible at a distance of25 feet or more from the
motor vehicle; or
(b) Louder than necessary for the convenient hearing by
persons inside the vehicle in areas adjoining churches, schools, or
hospitals.
(2) The provisions of this section shall not apply to any law
enforcement motor vehicle equipped with any communication device
2. The Second District consolidated State v. Catalano, Case No. 2D10-973,
with State v. Schermerhom, Case No. 2Dl0-974, on appeal and issued one
opinion. Catalano, 60 So. 3d at 1141. The only distinguishing feature between the
two cases is that Catalano was issued a citation on November 13, 2007, and
Schermerhom's citation was issued on April II, 2008. Catalano and
Schermerhom are now joined as appellees here.
- 2 -

necessary in the performance of law enforcement duties or to any
emergency vehicle equipped with any communication device
necessary in the performance of any emergency procedures.
(3) The provisions of this section do not apply to motor vehicles
used for business or political purposes, which in the normal course of
conducting such business use soundmaking devices. The provisions
of this subsection shall not be deemed to prevent local authorities,
with respect to streets and highways under their jurisdiction and
within the reasonable exercise of the police power, fi:om regulating
the time and manner in which such business may be operated.
( 4) The provisions of this section do not apply to the noise
made by a horn or other warning device required or permitted by
s. 316.271. The Department of Highway Safety and Motor Vehicles
shall promulgate mles defining "plainly audible" and establish
standards regarding how sound should be measured by law
enforcement personnel who enforce the provisions of this section.
(5) A violation of this section is a noncriminal traffic infi:action,
punishable as a nonmoving violation as provided in chapter 318.
§ 316.3045, Fla. Stat. (2007).
As required by subsection ( 4 ), the Depa1iment of Highway Safety and Motor
Vehicles (DMV) promulgated the following mle:
15B-13.001 Operation ofSoundmaking Devices in Motor Vehicles.
(1) The purpose of this mle is to set fmih the definition of the
term "plainly audible" and establish standards regarding how sound
should be measured by law enforcement personnel who enforce
section 316.3045, F.S.
(2) "Plainly Audible" shall mean any sound produced by a
radio, tape player, or other mechanical or electronic soundmaking
device, or instmment, fi·om within the interior or exterior of a motor
vehicle, including sound produced by a portable soundmaking device,
that can be clearly heard outside the vehicle by a person using his
normal hearing faculties, at a distance of twenty-five feet (25 1 ) or
more from the motor vehicle.
(3) Any law enforcement personnel who hears a sound that is
plainly audible, as defined herein, shall be entitled to measure the
sound according to the following standards:
- 3 -

(a) The primaiy means of detection shall be by means of the
officer's ordinary auditmy senses, so long as the officer's hearing is
not enhanced by any mechanical device, such as a microphone or
hearing aid.
(b) The officer must have a direct line of sight and hearing, to
the motor vehicle producing the sound so that he can readily identify
the offending motor vehicle and the distance involved.
(c) The officer need not determine the particular words or
phrases being produced or the name of any song or atiist producing
the sound. The detection of a rhythmic bass reverberating type sound
is sufficient to constitute a plainly audible sound.
(d) The motor vehicle from which the sound is produced must
be located upon (stopped, standing or moving) any street or highway
as defined by Section 316.002(53), F.S. Parking lots and driveways
are included when any part thereof is open to the public for purposes
of vehicular traffic.
( 4) The standards set fotih in subsection (3) above shall also
apply to the detection of sound that is louder than necessaty for the
convenient hearing of persons inside the motor vehicle in areas
adjoining churches, schools, or hospitals.
Fla. Admin. CodeR. 15B-13.001 (2011). Both Catalano and Schermerhom
entered not guilty pleas and moved to dismiss their citations in county court,
arguing that section 316.3045 is facially unconstitutional. The county court denied
their respective motions based on the Fifth District's decision in Davis v. State,
710 So. 2d 635 (Fla. 5th DCA 1998), which found section 316.3045, as originally
written prior to the 2005 amendment, constitutional. Catalano, 60 So. 3d at 1142.
Thereafter, Catalano and Schermerhorn changed their pleas to nolo
contendere, reserving the right to appeal the constitutionality of section 316.3 04 5.
The county court accepted their pleas and withheld adjudication. Each then
appealed to the circuit comi ofPinellas County, arguing that section 316.3045 is
- 4 -

facially unconstitutional because the "plainly audible" standard is vague,
overbroad, invites arbitrary enforcement, and impinges on their free speech rights.
The circuit court issued vhtually identical opinions holding that the decision in
Davis conflicts with the Second District's decision in Easy Way of Lee County,
Inc. v. Lee County, 674 So. 2d 863, 867 (Fla. 2d DCA 1996), which held that a
county's general sound ordinance's "plainly audible" standard was
unconstitutionally vague and overbroad. Catalano, 60 So. 3d at 1143-44.
Accordingly, bound by the decision in Easy Way, the circuit court reversed the
trial comi's orders denying the motions to dismiss the citations.
Subsequently, the State filed a petition for writ of certiorari in the Second
District Court of Appeal, arguing that the circuit court departed fi:om the essential
requirements of law because section 316.3045 compmis with free speech rights,
does not invite arbitrary enforcement, is not vague, overbroad, or content based,
and the circuit comi failed to follow Davis, which upheld the constitutionality of
section 316.3045. The Second District denied the State's petition for certiorari
relief, holding that the circuit court did not depart from the essential requirements
of the law in applying the binding Second District precedent of Easy Way, which
held that the "plainly audible" standard of a noise ordinance was unconstitutional. 3
3. Judge Kelly only concurred with this pmtion of the opinion that discusses
whether the circuit court departed from the essential requirements of the law by
relying on Easy Way, 674 So. 2d at 867, to conclude section 316.3045(1)(a) was
- 5-

See Catalano, 60 So. 3d at 1144-46. In addition, the majority in Catalano held that
section 316.3045(3) is an unconstitutional content-based restriction because it
contains an exemption for vehicles used for business and political purposes that
use sound-making devices in the normal course of operations. Id. at 1146.
ANALYSIS
The State appealed the declaration of invalidity of section 316.3 045 and asks
this Court to determine whether: (a) the statutmy "plainly audible" standard in
section 316.3045(1)(a) is unconstitutionally vague and overbroad; and (b) whether
the "business/political" exception in section 316.3045(3) is pem1issible, but even if
not, whether the exception should be severed. For the reasons that follow, we find
that the statute is not unconstitutionally vague, but is unconstitutionally overbroad
and an impermissible content-based restriction. Additionally, we find that
severance of section 316.3045(3) is not an appropriate remedy to preserve the
unconstitutionally vague and overbroad. Catalano, 60 So. 3d at 1147 (Kelly, J.,
concurr-ing specially). Associate Judge Raiden concuned with the opinion, but
also wrote separately that, although he was not positive section 316.3045(1)(a) was
impermissibly vague, he joined the majority opinion because subsection (b) of the
statute suffers constitutional infirmity as it "permits citations, at least 'in areas
adjoining churches, schools, or hospitals,' for sound that is 'louder than necessmy
for the convenient hearing by persons inside the vehicle.' " Catalano, 60 So. 3d at
1147 (Raiden, J., concurring).
- 6 -

constitutionality of this statute. We first examine whether section 316.3045(1)(a)
is unconstitutionally vague. 4
Vagueness
A court's decision regarding the constitutionality of a statute is reviewed de
novo as it presents a pure question of law. See Caribbean Conservation Corp. v.
Fla. Fish & Wildlife Conservation Conun'n, 838 So. 2d 492, 500 (Fla. 2003).
There is a strong presumption that a statute is constitutionally valid, and all
reasonable doubts about the statute's validity must be resolved in favor of
constitutionality. See DuFresne v. State, 826 So. 2d 272, 274 (Fla. 2002). "This
Court has noted, however, that in a vagueness challenge, any doubt as to a statute's
validity should be resolved in favor of the citizen and against the State." I d. (citing
State v. Brake, 796 So. 2d 522, 527 (Fla. 2001)). Accordingly, in order to
withstand such a challenge, a statute must provide persons of conunon intelligence
4. The State suggests that Catalano and Schermerhorn do not have the
requisite standing to facially challenge the constitutionality of the statute for
vagueness. Litigants may not successfully challenge the constitutionality of a
statute for vagueness or complain of its vagueness as applied to the hypothetical
conduct of others "[i]fthe record demonstrates that a defendant has engaged in
some conduct clearly proscribed by the plain and ordinary meaning of the statute."
See State v. Brake, 796 So. 2d 522, 526-27 (Fla. 2001) (citing McKe1mey v. State,
388 So. 2d 1232, 1233 (Fla. 1980) ("A person whose conduct clearly falls within
the statute's prohibition cmmot reasonably be said to have been denied adequate
notice.")). Here, due to the procedural posture of the case, the record does not
clearly demonstrate whether Catalano and Schermerhorn engaged in clearly
proscribed conduct. Neve1iheless, their standing is not determinative as we find
the statute is not unconstitutionally vague.
- 7-

and understanding adequate notice of the proscribed conduct. Id. at 527. As we
explain below, we find that section 316.3045(1)(a), which prohibits the
amplification of sound from within a vehicle so that it is "plainly audible" beyond
twenty-five feet, is not unconstitutionally vague.
When considering the constitutionality of a statute, we first look at the
language of the statute itself. See State v. Dugan, 685 So. 2d 1210, 1212 (Fla.
1996); Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470, 472 (Fla. 1995).
Specifically, section 316.3045(1)(a) states as follows:
Operation of radios or other mechanical soundmaking devices or
instruments in vehicles; exemptions.-
( I) It is unlawful for any person operating or occupying a motor
vehicle on a street or highway to operate or amplifY the sound
produced by a radio, tape player, or other mechanical soundmaking
device or instrument from within the motor vehicle so that the sound
IS:
(a) Plainly audible at a distance of25 feet or more fi"om the motor
vehicle.
§ 316.3045, Fla. Stat. (2007). Catalano and Schermerhorn argue that the "plainly
audible" language is unconstitutionally vague on its face because whether a police
officer can hear amplified sound beyond twenty-five feet is necessarily subject to
each particular police officer's audit01y faculties, leading to arbitra1y enforcement
based on whether a police officer personally fmds the amplified sound disturbing.
In short, Catalano and Schermerhorn argue that citizens cannot conform their
- 8-

ehavior to the law because of uncertainty over whether the music in their vehicles
would be plainly audible beyond tvventy-five feet to a pmiicular police officer.
To withstand constitutional scmtiny, however, statutes do not have to set
determinate standards or provide mathematical cetiainty. See Grayned v. City of
Rockford, 408 U.S. 104, 110 (1972) (observing that we cmmot expect
mathematical cetiainty :fi:om the use of words); Broadrick v. Oklahoma, 413 U.S.
601, 608 (1973) (explaining that the English language has limitations ~ith respect
to being both specific and brief, but noting that statutes must set out standards in
terms that the ordinary person exercising ordinmy common sense can sufficiently
understand and comply with, without sacrifice to the public interest). Applying the
rationale from Grayned and Broadrick, the "plainly audible" standard provides
persons of cmmnon intelligence and understanding adequate notice of the
proscribed conduct: individuals operating or occupying a motor vehicle on a street
or highway in Florida cannot amplify sound so that it is heard beyond twenty-five
feet :fi:om the vehicle. Although it is true that each police officer may have
different auditmy sensitivities, the "plainly audible" beyond twenty-five feet
standard provides fair warning of the prohibited conduct and provides an objective
guideline-distance-to prevent arbitrmy and discriminatmy enforcement so that
basic policy matters are not delegated to policemen, judges, and juries for
resolution on an ad hoc and subjective basis. See Grayned, 408 U.S. at 108-09.
- 9 -

This is not a standard that calls for police officers to judge whether sound is
excessive, raucous, disturbing, or offensive; if the officer can hear the amplified
sound more than twenty-five feet fi·om its source, the individual has violated the
statute.
Indeed, several jurisdictions both in Florida and around the country have
upheld similar statutes in the face of vagueness challenges. See, e.g., Montgomery
v. State, 69 So. 3d 1023, 1032 (Fla. 5th DCA 2011) (holding section
316.3045(1)(a) is not unconstitutionally vague, but finding the statute
unconstitutionally overbroad as an impermissible content-based restriction); Davis
v. State, 710 So. 2d 635, 636 (Fla. 5th DCA 1998) (upholding pre-2005
amendment version of section 316.3045(1)(a), which required that amplified sound
be plainly audible more than one-hundred feet fi·om the vehicle, as not
unconstitutionally vague); State v. Medel, 80 P.3d 1099, 1103 (Idaho 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 fifty feet);
Davis v. State, 537 S.E. 2d 327, 328-29 (Ga. 2000) (fmding that a statute which
prohibits amplified sound from a vehicle which is "plainly audible" at 100 feet is
not vague and stating that it would belie credibility to find that persons of ordinaty
intelligence do not know what it means for amplified sound to be "plainly audible"
at a distance greater than one-hundred feet); People v. Hodges, 83 Cal. Rpfr. 2d
- 10-

619, 622 (Cal. Ct. App. 1999) (ordinance prohibiting a vehicle's sound system
:fi:om operating where it could be heard twenty-five feet away not
unconstitutionally vague); Moore v. City ofMontgome1y, 720 So. 2d 1030, 1032
(Ala. Crim. App. 1998}(holding ordinance that prohibited sound audible five feet
from vehicle not unconstitutionally vague and stating that finding otherwise belies
credibility); Holland v. City of Tacoma, 954 P.2d 290, 295 (Wash. 1998), review
denied, 966 P.2d 1278 (Wash. 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 fifty feet away); Com. v. Scott,
878 A.2d 874, 878-79 (Pa. Super. Ct. 2005). Additionally, the United States
Supreme Court has rejected vagueness challenges to arguably more subjective
terms. See Kovacs v. Cooper, 336 U.S. 77, 78 (1949) (upholding constitutionality
of a sound ordinance that prohibited the use of a sound-generating instrument that
produces loud and raucous sound on vehicles); Grayned, 408 U.S. at 107-08
(upholding constitutionality of a sound ordinance that prohibited sound that
disturbed or tended to disturb the peace). Thus, we find that the "plainly audible"
standard is not unconstitutionally vague. 5 We now discuss whether the statute is
5. Although we find that the statutory language sufficiently notifies citizens
of the proscribed conduct, the United States Supreme Comt has also noted that an
administrative regulation can save a vague statute. See Village ofHoffinan Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504 (1982). Here, as required by
subsection (4), the Depaliment ofHighway Safety and Motor Vehicles (DMV)
- 11 -

unconstitutionally overbroad or an unreasonable restriction on the freedom of
expression. 6
Overbreadth and the First Amendment
The overbreadth doctrine applies when legislation criminalizes constitutionally
protected activities along with unprotected activities, by sweeping too broadly
and infringing upon fundamental rights. See Firestone v. News-Press Publ'g Co.,
538 So. 2d 457,459 (Fla. 1989) (citing State v. Gray, 435 So. 2d 816, 819 (Fla.
1983)). In the context of the First Amendment, "[t]he overbreadth doctrine
promulgated Florida Administrative Code Rule 15B-13.001. Pursuant to the rule,
a violation of section 316.3045(1)(a) occurs when an individual's vehicle produces
sound that can be "clearly heard" more than twenty-five feet away by a law
enforcement officer who has a direct line of sight mid hearing to the motor vehicle
producing the sound, using his or her normal auditory senses, without any
enhancements or hearing aid. Additionally, the administrative regulation notes that
an officer need not determine particular words or phrases, or the name of any song
or atiist; the detection of a rhythmic bass reverberating sound is sufficient. Thus,
any lingering doubt as to what constitutes a violation of the statute is clarified by
the administrative regulation.
6. Litigants need not meet the traditional requirement of standing when
challenging the constitutionality of a statute on the grounds of overbreadth. See
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). A litigant whose own speech
or conduct is clearly proscribed is permitted to challenge a statute on its face on the
ground that the rights ofnonpmties may be unconstitutionally inhibited. See
Montgomery, 69 So. 3d at 1029 (quoting Bd. of Airport Cmmn'rs v. Jews for
Jesus, Inc., 482 U.S. 569, 574 (1987)). This is so because the existence of the
statute may cause others not before the comi to refrain from constitutionallyprotected
speech or expression rather than undertake to have the law declared
patiially invalid. See Montgomery, 69 So. 3d at 1029 (citing Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 503 (1985), and Broadrick, 413 U.S. at 612).
- 12-

prohibits the Government fi_-om banning unprotected speech if a substantial amount
of protected speech is prohibited or chilled in the process." Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 255 (2002); see City of Daytona Beach v. Del
Percio, 476 So. 2d 197, 202 (Fla. 1985)). The government may regulate
expression only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433
(1963); see also Firestone, 538 So. 2d at 459 ("Restrictions on first amendment
rights must be supported by a compelling governmental interest and must be
narrowly drawn to insure that there is no more infringement than is necessa1y.")
(citing Wim1-Dixie Stores, Inc. v. State, 408 So. 2d 211 (Fla. 1981)). The
overbreadth doctrine, applied facially, however, is "strong medicine" that must be
used sparingly. Del Percio, 476 So. 2d at 202 (citing Broadrick, 413 U.S. at 613,
615). Accordingly, the first step in an overbreadth analysis is determining whether
the statute restricts First Amendment rights, and whether the restrictions are
substantial. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489,494 (1982).
Here, the State argues that Catalano and Schermerhorn do not have a
constitutionally recognized right to play loud music, thus the statute is not subject
to an overbreadth analysis. However, the right to play music, including amplified
music, in public fora is protected under the First Amendment. See Ward v. Rock
Against Racism, 491 U.S. 781, 788-90 (1989) (noting that regulation of amplified
- 13-

music in public park was protected by the First Amendment); Saia v. New York,
334 U.S. 558, 562 (1948) ("The police need not be given the power to deny a man
the use of his radio in order to protect a neighbor against sleepless nights."). This
right, nevertheless, is subject to reasonable limitations on the time, place, and
manner of the protected speech. Limitations are reasonable if they are "justified
without reference to the content of the regulated speech, ... nanowly tailored to
serve a significant govemmental interest, and ... leave open ample altemative
channels for communication ofthe information." Ward, 491 U.S. at 791. Ifthe
time, place, and manner of the limitations are content based, a strict standard of
scmtiny is applied. See, e.g., Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006).
"The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of disagreement with the
message it conveys." Ward, 491 U.S. at 791. If the government's purpose has no
relation to the content of the speech, the statute will be deemed neutral even if the
restriction affects some speakers or messages and not others. See id. Initially, it
would appear that section 316.3045(1)(a) does not regulate expression based on the
content of the message as it bans all amplified sound coming fi:om within the
interior of a motor vehicle that is "plainly audible" beyond twenty-five feet fi:om
the source. In short, the statute proscribes excessive sound emanating from
- 14-

vehicles on public thoroughfares. Subsection (3), however, excepts "motor
vehicles used for business or political purposes, which in the normal course of
conducting such business use [sound-making] devices" from this broad
proscription.
The State argues that this exception is based on the type of vehicle, and not
the content of the message, because these vehicles do not present the same safety
and noise pollution concerns as other vehicles. Thus, according to the State, the
justification for the differential treatment, and the statute as a whole, is content
neutral. The regulation, however, treats commercial and political speech more
favorably than noncommercial speech. Additionally, the statute does not have to
intentionally suppress ce1iain ideas to be constitutionally suspect as a contentbased
restriction. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
429 (1993) (citing Simon & Schuster, Inc. v. Members ofN.Y. State Crime
Victims Bd., 502 U.S. 105, 117 (1991)). Regardless ofthe intent ofthe
Legislature, section 316.3045 is a sweeping ban on amplified sound that can be
heard beyond twenty-five feet of a motor vehicle, unless that sound comes from a
business or political vehicle, which presumably uses sound-making devices for the
purpose of expressing commercial and political viewpoints. For instance, business
and political vehicles may amplifY c01runercial or political speech at any volume,
whereas an individual traversing the highways for pleasure would be issued a
- 15-

citation for listening to any type of sound, whether it is religious advocacy or
music, too loudly. Thus, this statute is content based because it does not apply
equally to music, political speech, and advertising. See Discovery Network, 507
U.S. at 428-29 (stating that a sound ordinance is permissible if it applies equally to
music, political speech, and advertising). Accordingly, this statute is subject to the
strict scrutiny analysis to determine whether it is a reasonable restriction or
unconstitutionally overbroad.
The State argues that this statute serves the State's interest in traffic safety
and protecting the public fi:om excessively loud noise on public streets. Protecting
the public from excessively loud noise is a compelling state interest. See Granyed,
408 U.S. at 116 ("If overamplified loudspeakers assault the citizemy, govermnent
may turn them down.") (citing Kovacs, 336 U.S. at 80, and Saia, 334 U.S. at 562).
Traffic safety, however, which the State argues is the overarching purpose of the
statute, is generally not considered a compelling state interest. 7 See, e.g.,
7. We have previously recognized that there is a compelling state interest in
highway safety. See State v. Bender, 382 So. 2d 697, 699 (Fla. 1980) ("[T]here is
a compelling state interest in highway safety that justifies the state legislature to
allow suspension of a driver's license for failure to take a breathalyzer or blood
alcohol test.") (citing Mackey v. Montrym, 443 U.S. 1 (1979)); see also Sambrine
v. State, 386 So. 2d 546, 548 (Fla. 1980). Bender and cases fi·om the district comis
of appeal that acknowledge this compelling interest, however, involve a
defendant's failure to take a breathalyzer or blood alcohol test in situations where
the driver may have be~n under the influence of alcohol. See Kurecka v. State, 67 ·
So. 3d 1052, 1060 n.3 (Fla. 4th DCA 2010); Conahan v. Dep't ofHighway Safety
and Motor Vehicles, 619 So. 2d 988, 990 (Fla. 5th DCA 1993); State v. Demarzo,
- 16-

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality
opinion) (aesthetics and traffic safety were substantial government interests);
Beaulieu v. City of Alabaster, 454 F.3d 1219, 1234 (11th Cir. 2006) ("The [c]ity's
interests in aesthetics and traffic safety are substantial but they are not compelling
for present purposes."); Solantic, LLC v. City ofNeptune Beach, 410 F.3d 1250,
1267 (11th Cir. 2005) (noting that traffic safety has not been recognized as a
compelling state interest); Di1mnitt v. City of Clearwater, 985 F.2d 1565, 1570
(11th Cir. 1993) (stating that aesthetics and traffic safety were not compelling state
interests); Cafe Erotica v. Florida Dept. ofTransp., 830 So. 2d 181, 187 (Fla. 1st
DCA 2002) (stating that traffic safety has been traditionally recognized as a
substantial govemment goal, citing Metromedia and Penn Cent. Transp. Co. v.
New York City, 438 U.S. 104 (1978)).
Even assuming the asselied interests are compelling, it is unclear how the
statute advances those interests by allowing commercial and political speech at a
volume "plainly audible" beyond twenty-five feet, but not allowing
noncommercial speech to be heard at the same distance. See Montgomery, 69 So.
3d at 1032 ("We fail to see how the interests asserted by the State are better served
453 So. 2d 850, 853 (Fla. 4th DCA 1984). Here, much like the cases cited above
which do not find traffic safety to be a compelling state interest, the proscribed
conduct involves an individual's freedom of expression as it relates to safety on
public thoroughfares. Nevertheless, the level of import of the State's interest here
does not change our conclusion on the constitutionality of the statute.
- 17-

y the statute's exemption for commercial and political speech."). The State
simply argues that noncommercial vehicles are more dangerous to the public
because they are ubiquitous. This argument, however, fails to explain how a
commercial or political vehicle amplifying commercial or political messages
audible a mile away is less dangerous or more tolerable than a noncommercial
vehicle amplifying a religious message audible just over twenty-five feet away
from the vehicle. Further, the statute protects cmmnercial speech to a greater
degree than noncommercial speech; cmmnercial speech, however, is generally
afforded less protection. See U.S. v. Edge Broad. Co., 509 U.S. 418,430 (1993)
(noting that cmm11ercial speech is afforded less protection than other forms of
speech); see also Board ofTmstees of State Univ. ofN.Y. v. Fox, 492 U.S. 469,
477-78 (1989) ("Our jurisprudence has emphasized that 'commercial speech
[enjoys] a limited measure of protection, cmmnensurate with its subordinate
position in the scale of First Amendment values,' " quoting Ohralik v. Ohio State
Bar Ass'n, 436 U.S. 447, 456 (1978)). Accordingly, we find that the statute is an
unreasonable restriction on First Amendment rights. Likewise, the restriction of
the constitutionally protected right to amplify sound, despite the State's
acknowledgement that this level of noise is tolerable and safe if the source is a
commercial or political vehicle, is not narrowly tailored to achieve the
government's interests in improving traffic safety and protecting the citizemy from
- 18 -

excessive noise. Thus, we also fmd that the statute is unconstitutionally overbroad
because it restricts the freedom of expression in a manner more intrusive than
necessary. We now proceed with a discussion of whether severance of the
offending provisions is an appropriate remedy in this situation.
Severability
"Severability is a judicially created doctrine which recognizes a court's
obligation to uphold the constitutionality of legislative enactments where it is
possible to remove the unconstitutional portions." Florida Dept. of State v.
Mangat, 43 So. 3d 642, 649 (Fla. 2010) (citing Ray v. Mm1ham, 742 So. 2d 1276,
1280 (Fla. 1999)). It is "derived from the respect of the judiciary for the separation
of powers, and is 'designed to show great deference to the legislative prerogative
to enact laws.' " Ray, 742 So. 2d at 1280 (quoting Schmitt v. State, 590 So. 2d
404,415 (Fla. 1991)). The pm1ion of a statute that is declared unconstitutional will
be severed if: " ' (1) the unconstitutional provisions can be separated from the
remaining valid provisions, (2) the legislative purpose expressed in the valid
provisions can be accomplished independently of those which are void, (3) the
good and the bad features are not so inseparable in substance that it can be said that
the Legislature would have passed the one without the other, and (4) an act
complete in itself remains after the invalid provisions are stricken.' " Lawnwood
Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 518 (Fla. 2008) (quoting Cramp v. Bd.
- 19-

ofPub. Instmction, 137 So. 2d 828, 830 (Fla. 1962)); see also Schmitt, 590 So. 2d
at 415. Here, the key determination is whether the overall legislative intent is still
accomplished without the invalid provisions. See Martinez v. Scanlan, 582 So. 2d
1167, 1173 (Fla. 1991) (citing Eastern Air Lines, Inc. v. Dep't of Revenue, 455 So.
2d 311, 317 (Fla. 1984)).
Section 316.3045(1)(a) prohibits individuals fiom amplifying sound inside
their motor vehicles that is "plainly audible" more than twenty-five feet away fi:om
the vehicle. At first glance, the broad pm1Jose of the statute could be accomplished
absent the invalid provisions. The statute, however, was not intended to apply
uniformly to all classes ofvehicles or content; subsection (3) of the statute and
legislative history clearly indicate that the Legislature intended to exempt
cmmnercial and political vehicles from the statute's proscription. Severing the
provision :fi:om the statute would expand the statute's reach beyond what the
Legislature contemplated. Accordingly, in striving to show great deference to the
Legislature, this Court will not legislate and sever provisions that would effectively
expand the scope ofthe statute's intended breadth. 8 Cf. Holly v. Auld, 450 So. 2d
8. Additionally, in 1990, the same year that House Billl383, now codified
as section 316.3045, was filed, Senate Bill2274 was filed and also sought to
restrict "sound amplification from within motor vehicles." Fla. S.B. 2274 (1990).
Senate Bill2274 exempted "a vehicle used for advetiising" and "a vehicle used in
a parade or other special event." Senate Bill2274 did not propose an exemption
for political speech. House Bill 13 83 contained the exemptions which eventually
-20-

217, 219 (Fla. 1984) (noting that comis lack the power to constme an unambiguous
statute to extend, modify, or limit its express terms or its reasonable implications).
CONCLUSION
Accordingly, for the reasons set fmih above, we affirm the Second District's
declaration that the statute is invalid. Section 316.3045(1)(a) is an umeasonable
restriction on the freedom of expression and is unconstitutionally overbroad, but is
not unconstitutionally vague. Additionally, we find that severance of the
constitutionally infirm provisions is not an appropriate remedy.
It is so ordered.
P ARIENTE, LEWIS, and PERRY, JJ., concur.
POLSTON, C.J. and CANADY, J., concur in result.
QUINCE, J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the District Comi of Appeal - Statutory or Constitutional
Invalidity
Second District- Case No. 2D10-973
(Pinellas County)
became the law. Fla. H .B. 1383 (1990). Thus, it is likely that the invalid
provisions were cmcial to the enactment of section 316.3045.
- 21 -

Pamela Jo Bondi, Attorney General, and Timothy David Osterhaus, Deputy
Solicitor General, Tallahassee, Florida,
for Appellant
Richard Thomas Catalano ofT S E Industries, Inc., Clearw·ater, Florida,
for Appellees
Andrea Flynn Mogensen of the Law Office of Andrea Fly1m Mogensen, P.A.,
Sarasota, Florida, and Randall C. Marshall and Maria Kayanan, Miami, Florida,
for Amici Curiae American Civil Liberties Union of Florida
-22-

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St. Lucie County, Florida, Code of Ordinances>> PART 1- CODE OF ORD INANCES>> Chapter 1-13.8- NOISE -
CONTROL»
Chapter 1-13.8 - NOISE CONTROL ~
____ :· · ------- -~--~ --- - --- " --~ -------~-------·---------~-- ---·-·----'--~- -~·-~-----·----...... -~ ~-- - ·- -- -~ -
Sec. 1-13.8-1. - Purpose.
Sees. 1-13.8-2-1-13.8-15. - Reserved.
Sec. 1-1 3.8-1 6.- Terminology. standards. and defin itions.
Sec. 1-13.8-17. - Classification of use districts.
Sec. 1-13.8-1 8. - Sound level limitations.
Sec. 1-13.8-19.- Exemptions.
Sec. 1-1 3. 8-20. - Application for special permit.
Sec. 1-13.8-21 .- Penalties.
Sec. 1-13.8-1. -Purpose.
(1) Excessive, unnecessary or unusually loud noise is a detriment to the public health, comfort,
convenience, safety, welfare and prosperity of county residents.
(2) It is in the public interest that the regulations contained in this chapter be adopted as public policy to
promote the public health, comfort, safety, welfare and repose of the county and its inhabitants.
Sees. 1-13.8-2-1-13.8-1 5. - Reserved.
Sec. 1-13.8-'1 6. - Terminology, standards, and definitions.
For the purposes of this chapter, the following definitions shall apply:
A-Weighting is the electronic filtering in sound level meters that models human hearing frequency
sensitivity.
Background sound level is the total sound pressure level in the area of interest excluding the noise
source of interest.
Commercial property is any property zoned for commercial purposes that is used primarily for the
sale of merchandise or goods, or for the performance of service, or for office or clerical work.
Construction is any site preparation, assembly, erection, repair, alteration or similar action, or
demolition of buildings or structures.
Decibel (dB) is the unit of measurement for sound pressure level at a specified location.
dBA is the A-weighted unit of sound pressure level.
Emergency is any occurrence or set of circumstances involving actual or imminent physical trauma
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or property damage that demands immediate action.
Emergency work is any work or action performed for the purpose of preventing or alleviating the
physical trauma or property damage threatened or caused by an emergency or delivering essential
services.
Impulsive sound is a sound having a duration of less than 1 s with an abrupt onset and rapid decay.
Industrial property is any property that is used primarily for manufacturing or processing.
Legal holiday includes the following: New Years Day, Martin Luther King Jr. Day, Memorial Day,
Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Christmas Eve and Christmas Day.
Mixed use building is a building in which both residential and commercial uses are permitted.
Muffler is a sound-dissipative device or system for attenuating the sound of escaping gases of an
internal combustion engine.
Multi-Family dwelling is any building or other shelter that has been divided into separate units to
house more than one family.
Noise is any sound that annoys or disturbs humans or causes or tends to cause an adverse
psychological or physiological effect on humans or that would unreasonably interfere with the enjoyment of
life or property.
Octave band is all of the components in a sound spectrum whose frequencies are separated by an
octave.
Person is any person, person's firm , association, copartnership, joint venture, corporation or any
entity, public or private in nature.
Real property line is the line, including its vertical extension that separates one parcel of real
property from another.
Residential property is any property on which people live and sleep.
Sound level meter (SLM) is an instrument used to measure sound pressure levels conforming to
Type 1 or Type 2 standards as specified in the ANSI Standard S1.4-1983 or the latest version thereof.
Sound pressure level (SPL) is twenty (20) multiplied by the logarithm, to the base of ten (1 0) , of the
measured sound pressure divided by the sound pressure associated with the threshold of human hearing,
in units of decibels.
Weekday is any day, Monday through Friday, that is not a legal holiday.
Sec. 1-13.8-17. - Classification of use districts.
For purposes of defining the "use occupancy," all premises containing habitually occupied sleeping
quarters shall be considered in residential use. All premises containing transient commercial sleeping
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quarters shall be considered commercial use. All premises containing businesses where sales, professional
or other commercial use is legally permitted shall be considered commercial use. All premises where
manufacturing is legally permitted shall be considered industrial use. In cases of multiple use, the more
restrictive use category shall prevail. Hospitals, nursing homes, schools, libraries, churches and all
institutional uses shall be considered residential uses. Any area not otherwise classified shall conform to
commercial standards.
·. -.. _, : ._; ,-.,,,: · :r: .:(=- Lat •ci use rsgulations, ;J.pp. A.§ -3.0.000.
Sec. 1-13.8-18.- Sound level limitations.
No person shall cause, suffer, allow, or permit the operation of any sound source in such a manner
as to create a sound level that exceeds the sound level limits set forth in Table 1 when measured at the
real property line of the nearest receiving property, using the slow response setting unless otherwise noted.
Such a sound source would constitute a noise disturbance.
TABLE I
SOUND LEVEL LIMITS BY RECEIVING PROPERTY
Receiving Property rTime Sound Level
Category
Residential
Commercial
Industrial
Limit (dBA)
7:00 a.m.-10:00 p.m. 60
10:00 p.m.-7:00a.m. 55
At all times 65
At all times 70
(1) If the noise is an impulsive sound, the fast response setting that shall be used and the
daytime (7:00 a.m.-10:00 p.m.) limits of Table 1 shall be increased by ten (10) dBA.
(2) In a multi-family dwelling, it shall be unlawful to create or permit to be created any noise that
exceeds the daytime (7:00 a.m.-1 0:00 p.m.) limit of fifty (50) dBA and the nighttime (1 0:00
p.m.-7:00a.m.) limit of forty (40) dBA as measured from a neighbor's dwelling.
(3) In a mixed use building, it shall be unlawful to create or permit to be created any noise that
exceeds the daytime (7:00 a.m.-10:00 p.m.) limit of 55 dBA and the nighttime (10:00 p.m.-
7:00 a.m.) limit of forty-five (45) dBA as measured within the residential use portion of the
building.
(4) In addition to the limits of Table 1, for any sound source which impacts residential property,
the maximum allowable sound level limits for the individual octave bands whose centers are
31.5, 63 and 125 Hertz shall not exceed sixty-five (65) dB.
"/ • . ~ .. ~ . · :.: ~ ~·! ' ::)
Sec. 1-13.8-19.- Exemptions.
(1) The following uses and activities shall be exempt from noise level regulations:
(a) Noise of safety signals, warning devices, and emergency pressure relief valves.
(b)
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Noise resulting from any authorized emergency vehicles, when responding to an emergency
call or acting in time of emergency.
(c) Noise resulting from emergency work as defined in section 1-13.8-16
(d)
(e)
(f)
(g)
(h)
(i)
Noise resulting from the operation of any type of aircraft, not including scale model aircraft.·
Noise resulting from the operation of any motor vehicle as specified in F.S. Ch. 316 and Ch.
403.
Noise resulting from the operation of the following facilities existing and in operation on the
effective date of this chapter:
1. Electricity regulating substations.
2. Electric generation plants.
3. Other electric utilities.
4. Gas pressure control stations.
5. Gas production plants.
6. Natural or manufactured gas storage and distribution points.
7. Other gas utilities.
8. Pipeline pressure control stations.
9. Railroad, rapid rail transit, and street railway transportation.
10. Industrial wastewater disposal.
11 . Sewage disposal.
12. Sewage pressure control stations.
13. Sewage treatment plants.
14. Sewage sludge drying beds.
15. Water utilities and irrigation.
16. Solid waste disposal.
Noise resulting from agricultural activities in districts zoned AG-1 (Agricultural-1), AG-2.5
(Agricultural-2.5), AG-5 (Agricultural-5), and AR-1 (Agricultural, Residential-1) under Section
3.01.03 of the St. Lucie County Land Development Code.
Noise resulting from the operation of the engine of any boat on the waters of the
unincorporated areas of the county.
Noise resulting from any authorized law enforcement and firefighting training activities
including, but not limited to, sheriff department shooting range activities.
U) Noise resulting from the activities of any permitted use, conditional use or accessory use
permitted in districts zoned industrial, light under section 3.3.114, St. Lucie County Zoning
Ordinance, industrial, heavy (I H) under section 3.3.115, St. Lucie County Zoning Ordinance,
and industrial, extraction (IX) under section 3.3.116, St. Lucie County Zoning Ordinance,
existing and in operation on the effective date of this chapter.
(k)
(I)
(m)
Noise resulting from the temporary operation of equipment or activities relating to normal lawn
and/or landscape maintenance of residential or commercial uses, from sunrise to sunset
including, but not limited to, the following activities: lawn mowing, maintenance of trees,
hedges, and gardens; soil cultivation; and pavement sweeping and cleaning.
Noise resulting from the operation ofany mining activities under a permit issued pursuant to
Chapter 1-12.5 of this Code. The hours of operation shall be limited to the hours set forth in
the permit.
Noise resulting from the operation of railways and shipping activities.
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(n)
(o)
(p)
Noise resulting from permitted construction activities occurring between 7:00a.m. and
sundown pursuant to permits issued prior to December 6, 2006 and between 7:00a.m . and
6:00p.m . on weekdays and 8:00a.m. and 5:00p.m. on Saturday for permitted construction
activities pursuant to permits issued on or after December 6, 2006. The exemption shall be
effective upon obtaining a building permit and shall pertain to any construction activity directly
related to the construction authorized under the permit. A special permit issued pursuant to
section 1-13.8-20 shall be required for the generation of noise resulting from construction
activities outside the hours set forth above in this subsection. In the event of an emergency,
the building official may issue a special permit for extended hours pending review of an
application for a special permit pursuant to section 1-13.8-2. For any violation of the terms of
the special permit, the permit holder and the violator shall be jointly and severably liable.
Any other noise resulting from activities of temporary duration permitted by law and for which
a license or permit therefor has been granted by the board of county commissioners in
accordance with section 1-13.8-20
Any noise resulting from golf course maintenance activities.
(2) Where an industrial or commercial use is established on property not adjacent to a residential use
district and the adjacent property subsequently becomes residential, the noise resulting from the
operation of the pre-existing industrial or commercial use which is projected into the residential use
district, shall be subject to the permissible noise levels for industrial or commercial use districts, as
appropriate.
(3) Where the noise levels for a pre-existing use are more restrictive than those for a subsequent use
established adjacent to the pre-existing use, the noise levels for the pre-existing use shall apply.
Sec. 1-13.8-20. - Application for special permit.
Application for a permit for relief from the noise and vibration levels designated in this chapter on the
basis of undue hardship may be made to the board of county commissioners. Any permit granted by the
board hereunder shall contain all conditions upon which the permit has been granted and shall specify a
reasonable time that the permit shall be effective. The board may grant the relief as applied for if it finds:
( 1) That additional time is necessary for the applicant to alter or modify his activity or operation to
comply with this chapter; or
(2) The activity, operation, or noise or vibration source will be temporary duration and cannot be
done in a manner that would comply with other sections of this chapter.
(3) That no other reasonable alternative is available to the applicant.
The board of county commissioners may prescribe any conditions or requirements it deems
necessary to minimize adverse effects upon the community or the surrounding neighborhood.
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Sec. 1-13.8-21. - Penalties.
Violation of this chapter is a misdemeanor pursuant to F.S. § 125.67, and is punishable under said
section by imprisonment for up to sixty (60) days, or a fine of up to five hundred dollars ($500.00) or both
such imprisonment and fine. Each instance of a violation of this chapter shall constitute a separate offense.
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Sec. 11 -48. ~
1\!lusic or loud noises; hours; area.
It shall be unlawful for any person to operate, play or cause to be operated or played within that
portion of the city which has been zoned and designated as a business area or business section of the city,
between the hours of 11 :00 p.m. and 7:00a.m. of each day, and on Sunday from 7:00a.m. to 1:00 p.m.,
and within that section or those sections of the city which have been zoned and designated as residential
districts, between the hours of 10:00 p.m. and 7:00a.m., any radio, phonograph, talking machine, piano,
electric piano, music box or other machine, instrument or appliance for making music or noise, in such
manner that the music or noise produced by the same may be heard at a greater distance than fifty (50)
feet therefrom.
! · ._·, ..
Sec. 11 ~52.~ Excessive, unnecessary, etc., noises prohibited; penalty for violation.
(a)
(b)
Generally. It shall be unlawful, except as expressly permitted herein, for any person to make,
continue or cause to be made or continued any excessive, unnecessary or unusually loud noise or
any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or
safety of others within the City of Fort Pierce, Florida. Failure to comply with this section shall
constitute a violation of this Code.
Definitions. For the purpose of this section, the following definitions shall apply:
A-weighted sound level means the sound pressure level in decibels as measured on a sound level
meter using the A-weighting network. The level so read is designated dBA.
Ambient noise is the all-encompassing noise associated with a given environment, being usually a
composite of sounds from many sources, near and far, independent of any single, identifiable noise source.
Bel is a unit of level when the base of logarithm is ten (1 0). Use of the Bel is restricted to levels of
quantities proportional to power.
Decibel (dB) is a unit for measuring the volume of a sound, equal to twenty (20) times the logarithm
to the base ten (1 0) of the ratio of the pressure of the sound measured to the reference pressure, which is
twenty (20) micropascals (twenty (20) micronewtons) per square meter.
Emergency work is work made necessary to restore property to a safe condition following a public
calamity or work required to protect persons or property from an imminent exposure to danger.
Frequency of a function periodic in time is the reciprocal of the primitive period. The unit is the cycle
per unit time and must be specified.
Person is any person, person's firm, association, copartnership, joint venture, corporation or any
entity, public or private in nature.
Sound level means the weighted sound pressure level obtained by the use of a metering
characteristic and weighting A, B orCas specified in American National Standards Institute specifications
for sound level meters, ANSI S1.4-1971, or in successor publications. If the weighting employed is not
indicated, the A-weighting shall apply.
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Sound level meter is an instrument including a microphone, an amplifier, an output meter and
frequency weighting networks for the measurement of noise and sound levels in a specified manner.
Sound pressure levels in decibel of sound is twenty (20) times the logarithm to the base ten (1 0) of
the ratio of the pressure of this sound to the reference pressure, which reference pressure must be
explicitly stated.
All technical definitions are in accordance with American National Standards Institute Standard S1 .1-
1960 or in successor publication entitled Acoustical; Terminology, as reaffirmed.
(c)
(d)
Classification of use occupancy. For purposes of defining the "use occupancy," all premises
containing habitually occupied sleeping quarters shall be considered residential use. All premises
containing transient commercial sleeping quarters shall be considered commercial use. All premises
containing businesses where sales, professional or other commercial uses are legally permitted shall
be considered commercial use. All premises where manufacturing is legally permitted shall be
considered industrial use. In cases of multiple use, the more restrictive use category shall prevail.
Hospitals, nursing homes, schools, libraries, churches and all institutional uses shall be considered
residential uses. Any area not otherwise classified shall conform to commercial standards.
Maximum permissible sound levels by use occupancy. It shall be unlawful to project a sound or
noise, from one property into another property within the boundary of the use occupancy, which
exceeds either the limiting noise spectra set forth in Table I below or exceeds the ambient noise
level by more than three (3) decibels when measured as specified under the noise enforcement
practices as adopted by the city commission by ordinance.
(1) Sound or noise projecting from one use occupancy into another use occupancy with a
different noise level limit shall not exceed the limits of the use occupancy into which the noise
is projected.
(2) The limits hereinabove referred to shall be in accordance with the following table:
TABLE I
APPLICABLE NOISE LIMITS
Measurement period one-quarter hour (continuous), as measured at the property
boundary of the receiving parcel.
Sound Level in Decibels
~-Scale (dBA)
Use
Day
Night
Classification (7:00 a.m. - 10:00 p.m.) 10:00 p.m.-7:00a.m.
L1
L10 L so L1 L10 L so
Residential 70
65 60 65 60 55_
Commercial 75
70 65 70 65 60
Industrial 75
70 65 75 70 65
Level L1. That noise (A-weighted sound level) exceeding one per cent of a
measurement time equivalent to at least fifteen (15) minutes.
Level L1o- That noise (A-weighted sound level) exceeding ten (1 0) per cent of a
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measurement time equivalent to at least fifteen (15) minutes.
LevelL so. That noise (A-weighted sound level) exceeding fifty (50) per cent of a
measurement time equivalent to at least fifteen (15) minutes.
(3) If the noise occurs at any time on Sundays or holidays, the decibel level applicable between
10:00 p.m. and 7:00a.m. shall prevail.
(4) Noise levels shall not exceed the peak noise levels, independent of time duration, set out in
Table II below:
TABLE II
PEAK NOISE LEVEL
Use
Classification
Residential
Commercial
Industrial
Sound Level in Decibels
A-Scale (dBA)
80
85
85
(e)
(5) For noise of impulsive character (hammering, etc.), the permissible decibel levels set out in
Table I shall be corrected by subtracting five (5). Impulsive sound is any sound of short
duration, usually less than one second with an abrupt onset and rapid decay, e.g. explosions,
blasting, and discharge of firearms.
Exemptions.
(1) The following uses and activities shall be exempt from noise level regulations:
a. Noises of safety signals, warning devices and emergency pressure relief valves.
b. Noises resulting from any authorized emergency vehicle, when responding to an
emergency call or acting in time of emergency.
c. Noises resulting from emergency work as defined in subsection (b) herein.
d. Noise resulting from the operation of any type of aircraft, not including scale model
aircraft.
e. Noise resulting from the operation of any motor vehicle as specified in Chapter 316
and Chapter 403, Florida Statutes, not including cars or trucks with loud stereos or
boom boxes, tape players or sounds amounting to rolling juke boxes.
f. Noise resulting from the operation of the following facilities existing and in operation on
the effective date of the ordinance from which this section derives:
1. Electricity regulating substations.
2. Electric general plants.
3. Other electric utilities.
4. Gas pressure control stations.
5. Gas production plants.
6. Natural or manufactured gas storage and distribution points.
7. Other gas utilities.
8. Pipeline pressure control stations.
9. Railroad, rapid rail transit, and street railway transportation.
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10. Industrial wastewater disposal.
11 . Sewage disposal.
12. Sewage pressure control stations.
13. Sewage treatment plants.
14. Sewage sludge drying beds.
15. Water utilities and irrigation.
16. Solid waste disposal.
g. Air conditioners are exempt from provisions of Table I of this section when this
equipment is functioning in accord with the manufacturer's specifications and with all
manufacturer's standard mufflers and noise-reducing equipment in use and in proper
operating condition according to standards promulgated by the American Refrigeration
Institute. The same exception shall apply to lawn mowers and agricultural equipment
during daylight hours.
h. Nonamplified crown noises resulting from the activities such as those planned by
student, governmental or community groups.
i. Construction operations for which building permits have been issued, or construction
operations not requiring permits due to ownership of the project by an agency of
government; providing all equipment is operated in accord with the manufacturer's
specifications and with all standard equipment, manufacturers' mufflers and noisereducing
equipment in use and in proper operating condition.
j. Noises made by persons having obtained a permit to use the streets.
k. Noises resulting from any authorized law enforcement and firefighting training activities
including, but not limited to, police department shooting range exercises.
I. Noise resulting from the activities of any permitted use, conditional use or accessory
use permitted in districts zoned industrial, light or industrial, heavy.
m. Noise resulting from the temporary operation of equipment or activities relating to
normal maintenance of residential or commercial uses, between the hours of 7:00a.m.
and 10:00 p.m. including, but not limited to, the following activities: lawn mowing,
maintenance of trees, hedges and gardens; refuse collection; soil cultivation; and
pavement sweeping and cleaning.
n. Noise resulting from the operation of railways and shipping activities.
o. Noise resulting from construction activities occurring between 7:00a.m. and sundown.
The exemption shall be effective upon obtaining a building permit and shall pertain to
any construction activity directly related to the construction authorized under the
permit. A special permit issued pursuant to subsection (f) herein shall be required for
the generation of noise resulting from construction activities between sundown and
7:00 a.m. For any violation of the terms of the special permit, the permit holder shall be
jointly and severally liable.
p. Any other noise resulting from activities of a temporary duration permitted by law and
for which a license or permit therefor has been granted by the city manager or his
designated appointee.
(2) Where an industrial or commercial use is established on property not adjacent to a residential
use district and the adjacent property subsequently becomes residential, the noise resulting
from the operation of the preexisting industrial or commercial use which is projected into the
residential use district shall be subject to the permissible noise levels for industrial or
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(f)
(g)
commercial use districts, as appropriate.
(3) Where the noise levels for a preexisting use are more restrictive than those for a subsequent
use established adjacent to the preexisting use, the noise level for the preexisting use shall
apply.
Application for special permit. Application for a permit for relief from the noise levels designated in
this section on the basis of undue hardship may be made to the city manager or his designated
appointee. Any permit granted by the city manager or his designated appointee hereunder shall be
in writing and contain all conditions upon which the permit has been granted and shall specify a
reasonable time that the permit shall be effective. The city manager or his designated appointee may
grant the relief as applied for under the following conditions:
(1) The city manager or his designated appointee may prescribe any reasonable conditions or
requirements as he deems necessary to minimize adverse effects upon the community or the
surrounding neighborhood, including use of mufflers, screens or other sound-attenuating
devices.
(2) Permits for entertainment. Permits may be granted for the purpose of entertainment under the
following conditions:
a. The function must be open to the public (admissions may be charged).
b. The function must take place on public property.
(3) Other. Special permits for nonentertainment special purposes may be issued under the
following conditions:
a. 1. If the special purpose relates to the operation of a trade or business, that the
special purpose not be in the ordinary course of that trade or business; or
2. If the special purpose does not relate to the operation of a trade or business,
that the special purpose not be an ordinary event in the affairs of the applicant;
and
b. If the special purpose be a recurring purpose, that it not recur more often than four (4)
times each calendar year; and
c. 1. That the special purpose be absolutely necessary to the operation of the applicant's
trade or business; or
2. If the special purpose does not relate to the operation of the trade or business,
that the special purpose be compatible with the ordinary activities of the
neighborhood in which the special purpose is to occur; and
d. Except in emergency situations, as determined by the city manager or his designated
appointee, the special permit may be issued for only four (4) hours between 7:00a.m.
and 11:00 p.m . on weekdays; and
e. Special permits may be issued for no longer than fifteen ( 15) consecutive days,
renewable by further application to the city manager or his designated appointee.
(4) No permit may be issued to permit the use of any loudspeaker or sound-amplifying device on
the exterior of any building which at any time exceeds the sound level limits in Table I except
those used for emergency warnings.
Noises prohibited; unnecessary noise standard; sworn complaint required.
(1) Some sounds may be such that they are not measurable or may not exceed the limits but
they may be excessive, unnatural, prolonged, unusual and are a detriment to the public
health, comfort, convenience, safety, welfare and prosperity of the residents of the city.
(2) With the exception of those exemptions provided by state law, noises prohibited by this
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(h)
(i)
subsection (g) are unlawful notwithstanding the fact that no violation of subsection (a) is
involved and not withstanding the fact that the activity complained about is exempted in
subsection (e).
(3) Thus the following acts, among others, are declared to be loud, disturbing and unnecessary
noises in violation of this section, but said enumeration shall not be deemed to be exclusive,
namely:
a. The sounding of any horn or signaling device on any automobile or other vehicle,
except as a danger warning; the creation by means of any signaling device of any
unreasonably loud or harsh sound; the sounding of any signaling device for any
unnecessary or unreasonable period of time; and the unreasonable use of any
signaling device.
b. The using, operating or permitting to be played, used or operated any radio, television,
tape or record player, amplifier, musical instrument or other machine or device used for
the production, reproduction or emission of sound; any prolonged sounds made by
people and the keeping of any animal which, by causing frequent or long continuous
noise, disturbs the public peace, quiet and comfort of the neighboring inhabitants or at
any time with greater intensity than is necessary for convenient hearing for the person
or persons who are in the room, vehicle or chamber in which such sound emitter is
operated and who are voluntary listeners thereto. Quieter standards are expected
during nighttime hours.
(4) Any person making a complaint under this section shall be required to sign a sworn affidavit
prior to a warrant being issued; otherwise, no such complaint will be honored.
Penalties.
(1) Violation of this section is a misdemeanor pursuant to section 125.69, Florida Statutes, and is
punishable under said section by imprisonment for up to sixty (60) days or a fine of up to five
hundred dollars ($500.00), or both such imprisonment and fine.
(2) Upon conviction of being in violation of this section three (3) times for the same offense within
a twelve-month period, when such sound is created by the same sound emitter or same type
of sound emitter, the noise-creating equipment may be confiscated.
Additional remedy; injunction. The operation of maintenance of any device, instrument, vehicle or
machinery in violation of any provisions hereof, which endangers the comfort, repose, health and
peace of residents in the area, is declared to be a public nuisance, and the city is authorized to
pursue any and all remedies therefor. Nothing herein shall be construed to limit any private right of
action.
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THIS MEMORANDUM I S A COMMUNICATION FROM COUNSEL TO AGENTS AND
REPRESENTATIVES OF THE CITY OF FORT PIERCE IN AN ATTORNEY / CLIENT
RELATI ONSHIP AND IS THEREFORE CONFIDENTIAL AND IS FURTHER
PROTECTED BY FLORI DA STATUTE SECTION 119. 07 AS IT CONTAINS WORK
PRODUCT OF THE ATTORNEY PREPARED IN ANTICIPATION OF , OR IN
CONNECTION WITH , POTENTIAL OR PENDING ADVERSARIAL ADMINISTRATIVE
PROCEEDINGS AND / OR CIVIL LITIGATION.
CITY OF FORT PIERCE- OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
FROM:
SUBJECT:
R. Sean Baldwin, Chief of Police
Robert V. Schwerer, City Attorney
Noise Ordinance
DATE: January 16,2013
I am in receipt of your memorandum of January 3, 2013 concerning the above and will be
assigning a member of my staff to work with you on any potential revisions to our City
ordinances. As you are aware, noise ordinances in general have been extremely difficult to
enforce tlu·oughout Florida. As the legal overview you provided suggests, these type regulations
involve both Federal and State Constitutional principles, and are a hotbed for constitutional
attack and time consuming legal challenges.
Your suggestion we look at St. Lucie County's revised ordinance is well taken. It would
certainly be helpful to determine what enforcement history the County has experienced since
adopting their revised ordinance in 2006. Violations of the County's ordinance are a criminal
offense. It would help if your staff also checked with the State Attorney's Office in determining
whether they have prosecuted violations of the County ordinance and seek the State Attorney's
input from a prosecutor's standpoint in evaluating the effectiveness of the ordinance. It is
assumed violation of any Fort Pierce noise ordinance would similarly result in a criminal
citation.
Q:\Protected\Current File Folders\ordinances\Noise- FPPD\RVS.Baldwin.Ol.l6.13.doc

R. Sean Baldwin, Chief of Police
January 16, 2013
Page 2
Please provide us with the above information and if necessary we can meet in the interim to
discuss what would be involved in unde1iaking this project and gauging support from the policy
mak;:: ctin a more effective noise regulations.
Robert V. Schwerer, Esq.
City Attorney
/mlp
Attachment
c: Robert J. Bradshaw, City Manager
James T. Walker, Assistant City Attorney
Steven R. McCain, Assistant City Attorney
Karen Emerson, Assistant City Attorney
Q:\Protected\Current File Folders\ordinances\Noise- FPPD\RVS.Baldwin.01.16.13.doc

' ,.
JAN - 8 2013
To:
From:
Date:
Re:
Request for Legal Review- Noise Ordinance
The police department is experiencing difficulty in resolving noise complaints due to
deficiencies and conflict in our local ordinances. In order to resolve this issue, I respectfully
request that City Attorney Robert Schwerer review our ordinances and draft any revisions
necessary.
To be more specific ... City of Fort Pierce Code of Ordinances, Section 11-48, generally prohibits
music or noise that is audible at a distance of more than 50 feet after certain hours. Section 11-
52 prohibits " ... excessive, unnecessary, or unusually loud noise, or any noise which annoys,
disturbs, injures, or endangers the comfort, repose, health, peace or safety ... " This same
section provides a scientific method of determining a violation, exempts certain types of noises,
and then prohibits certain sounds that are not measurable.
My concern is that these sections conflict with one another. A violation of one section is not a
violation of the other; and what is permissible by one section is not permissible by the other. I
am also concerned that the Florida courts have struck down several local and state laws
regulation noise over the last few years, and our codes may be unconstitutional. In example,
early this month, the Florida Supreme found that Florida Statute 316.3045, which prohibited
sound "plainly audible at a distance of 25 feet" from a vehicle, was unconstitutional (State v.
Catalano, SCll-1166}. Other local noise ordinances that have met a similar fate (i.e. Daley v.
City of Sarasota, Fla. 2d DCA 2000}. I have attached a copy of An Overview of Noise
Regulations in Florida (Bently, M & Robinson, G.}, which provides additional references to
relevant court rulings.
My preference is to revise our ordinances, so that we have a simplified method of measuring
and determining a violation (similar to Section 11-48}. However, I am not sure that this
methodology will withstand legal requirements.
For context, we currently have two long-standing noise complaints that are unresolved. One is
a complaint of loud "bass" coming from Skatetown on Orange Avenue and impacting adjacent
residential property owners. The other is a complaint of equipment noise coming from
commercial property at 25th Street and Orange Avenue and impacting adjacent
residential property owners. We deal with these types of noise complaints constantly and need
to have a legal and consistent method for handling these matters.
. '
:.=~·=-------. ,-, . ~ =o - -- -~·

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I understand that St. Lucie County completely revised their noise ordinance in 2006, and it may
be helpful for our legal staff to consult with their attorneys in this matter. A copy of their
current ordinance is enclosed.
I have assigned Deputy Chief Gregory Kirk to address current complaints from residents, and he
will serve as a point of contact for the City Attorney's office is technical assistance is required.
Deputy Chief Kirk can be reached at gkirk@fppd.org or 467-6940.
RSB/sc
attachment: City of Fort Pierce Code of Ordinances, Section 11-48 and Section 11-52
St. Lucie County Code of Ordinances, Chapter 1-13.8- Noise Control
Supreme Court of Florida SC11-1166
An Overview of Noise Regulation in Florida
c: Cassandra Steele, City Clerk
Gregory Kirk, Deputy Chief