[Vision2020] Noise Ordinance compromise

Mon Nov 26 22:02:03 PST 2007

Garrett,

I'm glad you're following this so closely and taking the time and effort 
to help bring about a fairer noise ordinance. I'd like to add to your 
objections to this noise ordinance my fears over the wording of the term 
"offensive" when describing a noise for a noise complaint. This leads me 
to believe that a noise that is not too loud, or bothersome to anyone, 
may be cited simply because the source of the noise is offensive to the 
officer. There is no way of knowing what noises might be considered 
"offensive", and to leave this up to the officer's discretion may lead 
to problems. It's probably best to leave the idea of offensiveness out 
of this and describe noises as being simply too loud if there is a 
problem. Like Sunil has mentioned, this is also something that can be 
measured somewhat objectively using a decibel meter.

Paul

Garrett Clevenger wrote:
> I attended the Admin meeting on 11/26 for the noise
> ordinance, and this one seemed the most productive,
> yet still did not resolve the issue, and will be back
> to the council too close to the break to be
> responsible for the out-going council to vote on.
>
> Randy Fife said at this meeting the amendment was not
> to target party houses, but intended to cover
> everybody, which is contrary to what the city brought
> to the first Admin meeting where Aaron and Tom voted
> on it.  It was sold as a solution to party houses and
> I believe Aaron and Tom would have blocked the first
> version if they knew all the repercussions that I
> point out in my testimony.  Thus, it seems that there
> was misinformation at play, which means this needs
> more time to settle then we are presented with for the
> current council.  Though, as you'll note in my reply,
> there is always compromise.
>
> I am curious to know any of the new council members
> thoughts.
>
> I am attaching my testimony and the reply to the city
> after Randy Fife replied to my email I cc'd to v2020
> last week, which is also attached.  
>
>
> Moscow Noise Ordinance Modification, 2007
>
> What the law says:
>
> Allows police to issue a ticket in the range of
> $159-$359 to anyone at any time for any “noise” that
> an officer deems offensive without any neighbor
> complaint.
>
> No set definition or limit to what that “noise” may
> be:  Sec. 11-2 (the last line):
> "The following acts, among others, are declared to be
> unlawful nuisance noises in violation of this Code
> Section, but said enumeration shall not be deemed to
> be exclusive; these acts may constitute a violation
> even when the noises created are within the decibel
> limits contained elsewhere herein"
>
> There may not even be anybody bothered by the “noise.”
>
> Noise ordinance violators are not necessarily warned
> of violation before citation.
>
> Landlords are subject to citation if they don't
> prevent violations from renters:  Sec 11-9
> "Failure or refusal to perform such duty after
> knowledge of the violation(s) shall constitute a
> violation of this Chapter. 
>
> Violates First Amendment: "Congress shall make no law
> ... abridging the freedom of speech."
>
> 17% of noise violations are repeat offenders (party
> houses), the advertised target of this amendment, yet
> everyone is subject to this infringement.
>
> City could choose to limit scope of law, but refuses.
>
> Questions to be answered:
>
> Is the intent of the law to create a chilling effect
> on everybody, or is the law sincerely written to
> address party houses?
>
> Why should everybody sacrifice freedom of expression
> because of 17% of noise violators?
>
> Why doesn't the law address the 17% (party houses) by
> limiting scope of law to certain hours and
> circumstances?  i.e. 10 pm to 7 am, "party house" type
> noises above specified decibel limits
>
> Why put pressure on police to be the deciding factor
> on what "noise" is acceptable at all times?  limit
> police-initiated citations to party house situations
>
> How is this overbroad and vague law not
> unconstitutional?
>
> Who will pay if the city loses a challenge in court
> based on Constitutional violations? taxpayers
>
> Why won't the city be reasonable with this law?
>
>
> Hello Cityfolk,
>
> Thanks for replying, Randy, and everybody else who is
> willing to engage with me on this.  I appreciate your
> feedback.  I am sorry if my persistence is frustrating
> for you, but please keep in mind that our concerns are
> legitimate and there is a better alternative to this
> dilemma.
>
> Randy said at the Admin meeting this Monday that the
> amendment was not specifically to address "party
> houses."  According to the agenda the first time it
> came to the Admin meeting on 9/10/07, I am wondering
> why there is a discrepancy:
>
> "The proposed changes will assist the Police
> Department in addressing repeat offenders outside the
> current 48 hour warning period... The changes will
> directly impact  boarding houses where large groups of
> people assemble or known party houses with a history
> of public 
> nuisance complaints."
>
> I believe that the testimony from Dan Weaver at that
> meeting was focused on party houses, and thus he
> garnered support from Aaron and Tom.  This to me
> implies that the the noise ordinance was being
> modified to address repeat offenders, not everybody
> else.  I believe most people have the impression that
> this is for "party houses" and would be surprised that
> now this is not about party houses.
>
> Why should these changes affect everybody else when it
> seems the current noise ordinance apparently is not a
> problem in dealing with other noise violations and
> when the stated target was "party houses?"
>
>
> Since there are council members who are uncomfortable
> with having police initiate complaints, it seems we
> can find a compromise to this.
>
> Why can't we limit the noise ordinance changes to
> party house situations?
>
>
> If the amendment says police can cite on the spot
> without warning for people making noise over a certain
> limit during 10 PM and 7 AM, I believe you will have
> more support from this council, the new council and
> the public.  Plus, it'll be a less intrusive law and
> one more fitting for Moscow.
>
> Why can't the scope of the amendment be narrowed and
> thus quell some of the controversy?
>
>
> Since it looks like the current council may not be
> able to vote on this before Christmas break (I
> certainly hope the council will not vote on this when
> many people are out of town) this may end up going to
> the new council, anyways.
>
> But if the law were narrowed down, I don't think you
> will see as much resistance, and thus the current
> council would probably be more justified in voting on
> it.
>
> If the law I am suggesting doesn't work, the council
> can always look in to this later and strengthen it as
> needed.  But considering the law was broken in regards
> to repeat offenders, it seems reasonable to start
> addressing that problem first.
>
> Based on my research into noise ordinances from other
> cities, most have strictly defined noises (such as
> Boise's "loud amplification devices") and set decibel
> limits (such as Lewiston's which varies based on time
> of day)  Seattle's even has a repeat offender clause
> (http://clerk.ci.seattle.wa.us/~scripts/nph-brs.exe?s1=25.08&s2=&S3=&Sect4=AND&l=20&Sect1=IMAGE&Sect3=PLURON&Sect5=CODE1&d=CODE&p=1&u=%2F%7Epublic%2Fcode1.htm&r=1&Sect6=HITOFF&f=L3%3B1%3B25.08.508.SNUM.)
>
>
> I haven't seen any other noise ordinances that are so
> broad as our current proposal, so it seems there are
> still parts of it that should be whittled away to make
> it more palatable.
>
> Thanks for your time, 
>
> Garrett
>
> --- Randy Fife <rfife at ci.moscow.id.us> wrote:
>
>   
>> Dear folks,
>>
>> I have read the email exchanges between Garrett
>> Clevenger and Professor
>> Brandt in reference to the proposed changes to the
>> noise ordinance I
>> posted on the City's website last Wednesday. Before
>> I drafted the
>> changes, I reviewed some law review articles given
>> to me by Prof. Brant
>> as well as the information previously provided by
>> Mr. Clevenger and
>> others. In addition, I reviewed materials and model
>> codes from the
>> International Municipal Lawyers Association and from
>> other sources. My
>> brief comments follow. 
>>
>>  
>>
>> It is not uncommon for Constitutionally created
>> rights and privileges to
>> be balanced against others or for rights of some
>> groups and interests to
>> be balanced against others. Here, free speech may
>> run up against the
>> right of peaceable enjoyment and use of property;
>> individual rights may
>> run up against group rights; and speech and
>> expression rights may run up
>> against community standards. The contrasting and
>> comparing of these
>> concerns is the subject of lots of case law. There
>> are also rules in
>> place regarding probable cause, searches and
>> seizures, standards of
>> proof, burden of proof, production of evidence, due
>> process, and a whole
>> slew of other things which guides a nuisance noise
>> through the system
>> (if it gets there). The ordinance and its content is
>> but one of the
>> pieces (albeit, an important one).
>>
>>  
>>
>> I will be happy to expand upon these comments as
>> requested at the
>> committee meeting. Although I do not normally
>> respond in this way, I
>> just thought you could all have my same thoughts and
>> so that I could
>> respond to some of Mr. Clevenger's inquiries
>> (although not in detail).
>> Randy
>>
>>  
>>
>> I believe the current ordinance to constitutional
>> but not perfect. 
>>
>> I believe the proposed language to be an improvement
>> over the current
>> language and that it is also constitutional.
>>
>> I do not think that the proposed language is an
>> impermissible
>> restriction on the First Amendment.
>>
>> The three suggestions Professor Brandt has made look
>> good to me (with a
>> few teeny little tweaks). See below.
>>
>>  
>>
>> I would propose the following language for this
>> section [11-1(B)].
>>
>>  
>>
>> "Noise.  Any sound which is loud, raucous or
>> boisterous which
>> unreasonably disturbs a reasonable person of normal
>> sensitivities or
>> which causes or tends to cause an adverse
>> psychological or physiological
>> effect on a reasonable person of normal
>> sensitivities.  Factors to be
>> considered in determining whether a sound is loud,
>> raucous or boisterous
>> or whether it unreasonably disturbs, injures or
>> endangers a reasonable
>> person of normal sensitivities include but are not
>> limited to: [no
>> changes to the rest of the section as proposed]"
>>
>>  
>>
>> I would revise the section [11-2] as follows:
>>
>>  
>>
>> "It shall be unlawful for any person within the City
>> to knowingly make,
>> continue, or cause to be made, or to knowingly allow
>> to be made or to
>> continue, any noise as defined in section 11-1(b) of
>> this Code Section.
>>
>> The following acts, among others, are declared to be
>> unlawful nuisance
>> noises in violation of this Code Section, but said
>> enumeration shall not
>> be deemed to be exclusive;  these acts may
>> constitute a violation even
>> when the noises created are within the decibel
>> limits contained
>> elsewhere herein:"
>>
>>  
>>
>> Finally, I would suggest the addition of the
>> following language to
>> section 11-9
>>
>>  
>>
>> "Peace officer citation. Any Moscow City peace
>> officer or person
>> empowered to enforce this provision of the Moscow
>> City Code is
>> authorized to issue a citation upon his own
>> observation of a violation
>> without the necessity of a citizen complainant's
>> signature on said
>> citation. By signing the citation officer or person
>> is certifying that
>> he has reasonable grounds to believe that the person
>> cited committed the
>> offense contrary to law."
>>
>>     
>
> =======================================================
>  List services made available by First Step Internet, 
>  serving the communities of the Palouse since 1994.   
>                http://www.fsr.net                       
>           mailto:Vision2020 at moscow.com
> =======================================================
>
>   