Wednesday, July 21, 2010

Make Music, Not Noise: Meditations on Municipal Noise Ordinances

 What's the matter Gettysburg? Is somebody bothering you?

Is it the earth-shaking thump of a bar band with amplifiers that you can hear from the parking lot?

Is it the head-splitting drone of bikers with modified exhaust pipes that you can hear from miles away?

Then have no fear! The Gettysburg Borough Council is here and has been working out a noise ordinance to help save your ears!

Some of you who aren't Gettysburg locals probably have no clue what I am talking about so here's an excerpt from the Gettysburg Times to start our story in a similar story outside of the borough limits:
After a five-hour public hearing Wednesday before the state's Bureau of Liquor Control Enforcement, The Pike Restaurant & Lounge in Cumberland Township received overwhelming support in its request to transfer noise enforcement powers from the state to local police.
Pike operator Cheryl Hankey and the Cumberland Township Board of Supervisors have filed a petition to transfer noise enforcement at the bar from state regulators to the Cumberland Township Police Department.
State law forbids bars from playing amplified music outside of a licensed-premise, but Cumberland's noise ordinance is complaint-driven, with police having the discretion to issue a fine or warning if music is heard within 30-feet of a bar.

Cumberland Township adopted a noise ordinance in 2008, regulating inconvenient noise from 10 p.m. to 7 a.m. With Cumberland Township Police addressing the noise complaints instead of the state, the response to problems can be immediate. FindLaw explains the significance of a transfer in power from the state to a municipality in their article "Guidelines for Drafting Municipal Noise Ordinances Controls":

An ordinance is a legislative enactment by the corporate authority of a municipal corporation. The authority to enact general regulatory ordinances is generally founded upon the police power of the state as delegated to the municipality. When drafting any ordinance, it is first necessary to determine whether the particular municipality concerned has the authority to legislate on the subject matter involved. The powers of a municipality are delegated powers and the municipality has no legislative authority except as granted by constitutional or statutory provisions.
FindLaw notes that one of the difficulties in establishing a noise ordinance involves avoid infringement upon free speech:
Arguably, anytime a restriction is placed on noise, the right to free speech is implicated, since verbal speech creates sound and if loud enough, noise. The First Amendment forbids the federal government from imposing any system of prior restraint, with certain limited exceptions, in any area of expression that is protected by that Amendment. Freedom of speech is a fundamental right which is not subject to impairment by state action
FindLaw explains that restrictions can be placed upon noise based on quantitative measurements.
Running afoul of the First Amendment can be avoided by drawing the proposed local ordinance narrowly to regulate the hours and location of the noise restriction, and proscribing specific levels of sound (in decibels) that are reasonably related to the noise problem sought to be regulated. See, NAACP v. City of Chester, 253 F. Supp. 707 (E.D. Pa. 1966).
The U.S. Supreme Court has held that the police power of a state extends beyond regulation of health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community. Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L.Ed. 513 (1949).
FindLaw explains the precedent for formulating municipal noise ordinances was established in the NAACP v. City of Chester case:
In NAACP v. City of Chester, the Plaintiff brought an action under 28 U.S.C. Section 1343 claiming that an ordinance of the City of Chester, regulating the use of sound amplifying equipment in streets and in public places violated the U.S. Constitution. Plaintiff claimed that the ordinance was subject to the following constitutional infirmities: (1) the ordinance was unconstitutional on its face, since it established a prior restraint on the right of free speech; (2) the twenty-five dollar per diem fee required by the ordinance was unreasonable; and (3) the ordinance imposed an unreasonable restriction on the volume-producing capacity of sound amplifying equipment. The Court held that the ordinance was not an invalid prior restraint on Plaintiff's right of free speech. The court stated:
The number of hours during which a sound truck may be operated is set forth, an attempt is made to regulate the volume of sound to which amplifying devices must be adjusted and, most important, the issuance of the required permit itself does not, in any way, depend upon an administrative decision.
 Remember how Elwood and Jake went around promoting the Blues Brothers show with a megaphone on top of their car? What if everyone who had a gig ran around making that much noise? Would we be able to hear ourselves think?
The court emphasized that the ordinance interfered very little, if at all, with the Plaintiff's right of free speech because permit issuance was premised upon clear, non-discriminatory and non-discretionary standards not subject to the control of any local official and reflected the concern of the City of Chester for the maintenance of peace and tranquility within the community.
The ordinance was also not an unreasonable restriction on the volume of sound amplifying equipment since the ordinance regulated "the volume of sound (in decibels) to which they must be adjusted" in accordance with the U.S. Supreme Court ruling in Saia v. People of the State of New York, supra. The court enjoined, however, the enforcement of the $25.00 fee imposed by the ordinance because the City of Chester failed to show that the fee bore a reasonable relationship to the cost of enforcing the ordinance.
The question I would like to raise through the Pike controversy is how this transfer of power from the enforcement of a state liquor law regulating noise in bars to a municipal noise ordinance ought to occur in a way that is fair. How should we measure noise and at what point is it acceptable to restrict noise? Is noise First Amendment protected speech and sometimes even a necessary element to conducting a business?

Findlaw continues to explain how noise ordinances must be "quantitative" rather than "qualitative."
The qualitative ordinance is generally subjective in nature, and is more likely to pose constitutional issues such as vagueness, and is also more likely to be subject to enforcement at the discretion of local police and to non-uniform application as indicated above. Many noise control ordinances fail to include quantitative acoustical criteria, and merely prohibit "loud noise". Quantitative ordinances, on the other hand, proscribe noise-producing conduct by amount, applying scientific standards of sound intensity and frequency. The quantitative ordinance is capable of providing non-discretionary, objective and predictable standards. Quantitative standards are more amendable to tailoring in order to meet the specific, unique needs of a local community.
Does this mean placing ban on amplified music would be unconstitutional if the music stayed within a restricted decibel level? How can time periods for noise ordinances fairly balance the needs of a bar which often requires live music to draw in customers, with a hotel that requires quiet for their guests? Should we measure sound by how loud it is from its origin or should we measure it based on how far the sound travels?

Another complication in addressing noise is making sure that we aren't preferring some noise over others, as Garret Keizer discussed recently on The Colbert Report.
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Keizer argues that "noise and silence get distributed like other forms of wealth and other forms of disadvantage." Colbert uses the example of his private jet, saying that inspires others to get their own private jet and making the justification that "my noise is just very loud hope." Keizer notes that "Noise is indicative of power. The powerful can make noise and throughout history they have and they can also have the power to silence other people and impose noise..." 

After Colbert asks whether he means this means that poor people are literally or politically less noisy, Keizer remarks "I think many poor people could stand to be louder than they are."

The Gettysburg Borough Council is going through the process of addressing the lack of a noise ordinance in the borough. One of the greatest difficulties in balancing business interests with domestic tranquility is the issue of the popular annual Bike Week in Gettysburg during the month of July. Borough Council President John Butterfield recently met with the town's chief of police and mayor to discuss issues concerning the noise ordinance. The Gettysburg Times addresses some of the dilemmas facing the law:
A proposed noise ordinance was submitted to the borough's attorney for legal review in November 2008, and has remained in limbo. Constitutionality and enforcement concerns have plagued the progress of the ordinance, which was designed to reduce noise pollution and curtail incessant clatter, such as motorcycle and truck noise.
The proposed ordinance prohibits all "noise disturbances," defined as sounds that endanger the safety or health of humans and animals, and annoy or disturb citizens or visitors.
"We're still working on it," Council Vice President Holliday Giles said this week. "Some of these ordinances take a very long time to get together and get it right."
"I know it's frustrating to people, but it comes down to enforcement, and there's no sense in enacting some sort of ordinance that there is no enforcement," continued Giles. "We have a difficult time when it circles around to the enforcement part of it."
The town's police department, which makes up 35 percent of the borough's annual $4.2 million spending plan, employs 13-full time officers. Chief Joe Dougherty has voiced concern in the past about enforcing a noise ordinance, pointing out that the department lacks noise-monitoring equipment, with no officers trained to utilize the devices.
Enforcement of the Gettysburg ordinance, according to the proposal, will be complaint-drive. Veteran Councilman Ted Streeter has stated that the proposed code must include an "objective standard for reasonable noise, not a subjective standard."