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Noise OrdinanceCity of Kalispell Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax (406)758-7758 TO: Mayor Pamela B. Kennedy and the Kalispell City Council FROM: Jane Howington, City Manager Roger Nasset, Chief of Police Rich Hickel, Adj. City Attorney SUBJECT: Proposed New Noise Ordinance MEETING DATE: August 17, 2009 BACKGROUND: The Kalispell Police Department and the City Attorney's Office have taken citizen noise complaints from residents for many years. Recently, the KPD and the City Attorney's office discussed various options for a proposed new noise ordinance for the City of Kalispell. The desire to establish a better enforcement framework is being driven, in part, by the proliferation of extremely loud stereos which have been installed in vehicles. Currently, excessive noise is governed by two code sections, specifically M.C.A. §45-8-101, Disorderly Conduct and Disturbing the Peace, K.C.C. § 19-10. Both define excessive noise by the standard of "loud or unusual." It is very possible that in the event the "loud or unusual" standard was subjected to a legal challenge, our State Supreme Court could hold this standard to be unconstitutionally vague. In State v. Stanko, 1998 MT 321, 292 Mont. 192, 974 P.2d 1132, the Montana Supreme Court held the state's former "basic rule" statute to be unconstitutionally vague. At issue was that section of the statute which criminalized driving "at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation." The Court noted that the U.S. Constitutional standard for void -for -vagueness "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,103 S.Ct. 1855 (1983). The U.S. Supreme Court held that a vague law, "may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, law must provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294 (1972). The Montana Court described this state's standard Noise Ordinance Pagel of 3 in similar terms, stating that "a statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." State v. Woods, 221 Mont. 17, 716 P.2d 624 (1986). Continuing, the Court stated, "no person should be required to speculate as to whether his contemplated course of action maybe subject to criminal penalties." State v. Conrad, 197 Mont. 406, 643 P.2d 239 (1982). Applying these principles, the Court ruled that the basic rule statute was unconstitutional in that it "impermissibly delegates the basic public policy of how fast is too fast on Montana's highways to `policemen, judges, and juries' for resolution on an ad hoc and subjective basis. Stanko, 974 P.2d at 1137. Applying this legal principle, a similar argument exists for the current "loud and unusual" standard. Noise laws in other jurisdictions most frequently take one of two forms. Some ordinances set specific decibel limits, measured at a specific distance from the source. These laws are referred to as performance standard laws. Billings and Great Falls have implemented decibel limits in their noise ordinances.) The typical limit for car stereos for instance, is generally 75 to 80 db, measured at a specific distance from the car. The advantage of this type of law is that it is specific and objective. Among the disadvantages is that it requires expensive monitoring equipment and the requisite training. In addition, since sources of noise may be moving, it may be difficult to obtain a valid reading of the noise level. Furthermore, background noise can confound noise readings and some decibel scales do not adequately record the low frequency sounds common to loud car stereos. The technical requirements which must be followed to take readings and defend them against legal challenges may limit the ability to enforce performance standard laws. As an alternative to set decibel standards, statutes and ordinances have been passed which prohibit any noise which is plainly audible from a specified distance. Most laws regulating music levels do not require that the music lyrics be intelligible; the bass vibrations alone may suffice. The specified distances vary across jurisdictions, ranging from 15 feet to 100 feet, depending on how restrictive communities choose to be. The specified distances can vary depending on the time of day, typically with shorter distances set for nighttime hours. The advantage of these laws is that they do not require expensive monitoring equipment and the requisite training. Several courts have upheld the plainly audible standard for a noise ordinance in the face of legal challenges.2 A disadvantage to plainly audible standards is that enforcers must measure or estimate distances, something which is not easily done with a moving source. RECOMMENDATION: With this background, it is the staff recommendation that the City consider a noise ordinance which incorporates the "plainly audible" standard. It has been tested in other jurisdictions and with minimal training, officers may be taught to estimate distances. In drafting the ordinance, staff considered several factors, including various sources of noise, differing standards based on time of day, noise distance limitations, permitted exceptions, defenses, and penalties. 1 See e.g., B.C.C. §§17-101 etseq; G.F.C.C. §§8.56.010 etseq. 2 See, e.g., State of Hawaii v. Ewing, 914 P.2d 549 (1996), finding that a "plainly audible" standard is not unconstitutionally vague. Noise Ordinance Page 2 of 3 FISCAL EFFECTS: Because future compliance with the ordinance is impossible to gauge, the precise fiscal impact of the ordinance is uncertain. Enforcement of the ordinance would involve additional staff time, but would not necessitate additional staff. For this reason, staff believes that adoption of the ordinance would most likely have a neutral fiscal impact. Any added workload would be offset in whole or in part by permit fees or by penalties imposed on violators. (Jane Howington, City Mana r Rich Hickel, Adj. City Attorney Noise Ordinance Page 3 of 3 r Roger asset, Chief of Police ORDINANCE NO. AN ORDINANCE ADOPTING PROVISIONS RELATING TO NOISE AND SOUND LEVELS IN THE CITY LIMITS OF KALISPELL; ADDING TO THE KALISPELL CITY CODE DEFINITIONS, GENERAL NOISE PROHIBITIONS, AND REGULATING NOISY VEHICLES AND AMPLIFIED SOUNDS; REPEALING ALL INCONSISTENT PROVISIONS; ALLOWING EXCEPTIONS BY PERMIT; ESTABLISHING DEFENSES AND PENALTIES; AND ESTABLISHING AN EFFECTIVE DATE. Whereas, the City Council of Kalispell has determined that there is a need for establishing a basic level of regulation for the emission of noise and sounds, to promote public welfare and safety and to help in protecting the users of property who are in close proximity to others from the degrading effects to their quality of life caused by others who are creating noise at an excessive level and to protect citizens from the harmful effects and inconvenience of such sounds and to promote peacefulness within the City; and Whereas, the public hearings before the Kalispell City Council have additionally demonstrated a desire by the public for such basic regulation; and, Whereas, the Kalispell City Council has found that the following regulations will promote the health, safety, and welfare of the citizens and persons with the City; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA THAT THE FOLLOWING REGULATIONS BE AND ARE HEREBY ADOPTED, THAT THE SAME BE ADDED TO THE KALISPELL CITY CODE AND ARE HEREINAFTER EFFECTIVE WITHIN THE CITY OF KALISPELL: SECTION I. Definitions. The following words, terms, and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, unless the context of their usage clearly indicated another meaning: A. Daytime hours shall mean the hours from 7:00 a.m. to 10:00 p.m., local time. B. Motor vehicle means every vehicle which is propelled by its own power and designed or used to transport persons or property on a publicly -maintained highway, road, street, avenue, alley, driveway, or parking area located in the City of Kalispell. C. Plainly audible means any sound that can be detected by a person using his or her unaided hearing faculties. As an example, if the sound source under investigation is a portable or personal vehicular sound amplification or reproduction device, it is not necessary that the enforcing party determine the title of the song, specific words, or discern the artist performing the song. The detection of the rhythmic bass component or bass reverberation of the music is sufficient to constitute plainly audible sound. D. Real property boundary means the property line along the ground surface and its vertical extension, which separates real property owned by one person or entity from that which is owned by another person or entity. E. Sound amplification equipment means a radio, tape player, compact disc player, digital audio player, television, electronic audio equipment, musical instrument, sound amplifier, or other mechanical or electronic sound -making device that produces, reproduces, or amplifies sound. SECTION II. Excessive noise. A. Unless otherwise excepted or permitted by law, it shall be a civil infraction for any person to: 1. Operate or allow the operation of anv sound mmplifiention enninment cn nc to create sounds that are plainly audible from the boundary of the nearest residentially -occupied property. For multifamily structures, including apartments, condominiums, or other residential arrangements where boundary lines cannot be readily determined, it shall be unlawful to operate or allow the operation of any sound amplification equipment so as to create sounds that are plainly audible from any point within the interior of another residential unit in the same complex or within the boundary line of the nearest residentially occupied property. 2. This section shall not apply to the following: a. A special event, mass gatherings, or other activity excepted or permitted by the City government; b. Entertainment facilities constructed to provide outdoor entertainment owned or operated by a governmental entity, including but not limited to the Flathead County Fairgrounds, the Kalispell City Airport, or City parks under the control of the Kalispell Department of Parks and Recreation. 3. Operate or allow the operation of any sound amplification equipment on the public right-of-way, including streets and sidewalks, which does not have a City -issued noise permit and which produces or reproduces sounds which are plainly audible fifty (50) feet or more from the source. B. It shall be a civil infraction for any person to conduct the following activities between the hours of 10:00 p.m. and 7:00 a.m. if they generate sound which is plainly audible across the property boundary line of the nearest residentially occupied property, or at a distance of fifty (50) feet or more from the source: 1. Operate any blower, power washer, lawn mower, or lawn trimming device, power fan or other similar equipment powered by a combustion engine. 2. Test by revving the engine of any motor vehicle, motorcycle, all -terrain vehicle, snowmobile, mini -bike, scooter, or other similar vehicle powered by a combustion engine. SECTION III. Motor vehicle noise. A. It shall be a civil infraction for any person to: 1. Operate any motor vehicle that is not equipped with a muffler in good working order and in constant operation to prevent excessive noise; 2. Operate a motor vehicle equipped with a cut-out, by-pass, or similar muffler elimination unit, or operate a motor vehicle with devices that amplify motor noise or motor exhaust noise. 3. Operate a motor vehicle if the exhaust noise is plainly audible at a distance of 200 feet. For purposes of this subsection, "plainly audible" means the detection of the sound of a muffler or of an exhaust system by a person using his or her unaided hearing faculties. B. It shall be a civil infraction for any person to: 1. Operate or occupy a motor vehicle on any highway, road, street, avenue, alley, driveway, either public or private property, or parking area located in the City of Kalispell any sound amplification equipment from a motor vehicle between the hours of 7:00 a.m. and 10:00 p.m., local time, in a manner such that the sound is plainly audible at a distance of fifty (50) feet from the vehicle, or in the case of a motor vehicle on private property, beyond the property line. 2. Operate or occupy a motor vehicle on any highway, road, street, avenue, alley, driveway, either public or private property, or parking area located in the City of Kalispell any sound amplification equipment from a motor vehicle between the hours of 10:00 p.m. and 7:00 p.m., local time, in a manner such that the sound is plainly audible by any person outside the vehicle. C. Prohibitions contained in this section shall not be applicable to emergency or public safety vehicles, vehicles owned and operated by a governmental agency or any utility company, for sound emitted unavoidably during a job -related operation, or any authorized public or private activity for which a permit has been granted by the appropriate agency of the City government. SECTION IV. Permit to conduct outdoor activities. A. The City of Kalispell may issue a permit for certain outdoor activities which will allow the holder to exceed sound level standards established in this Chapter. No permit is required for any use not prohibited by law or for any use not exceeding permissible sound levels. 1. The permit may be granted in the following manner: (a) May be obtained by making application to the City Manager or his or her designee. (b) A payment of a $10.00 fee to cover the administrative cost of issuing the permit. A sworn statement of inability to pay may be filed in lieu of the normal administrative fee. (c) The permit will be valid for any requested time period between the hours of 7:00 a.m. and 10:00 p.m., local time. (d) The permit shall not be issued to the same person, or any other person in the same location more than twice in any 30-day period. In the case of a sound truck, located shall relate to the area traversed by the truck in one day. (e) The permit shall specify the maximum sound level permitted. 2. The permit application required to be filed under this section shall contain the following information: (a) The date of the application and the date and hours for which the permit is requested. (b) The name and address of the applicant. (c) The name and address of the person who will he conductin¢ the permitted activity. (d) The address and a description of the location where the activity will be conducted. (e) A description of the sound source to be used by the permit holder. 3. The permit hereby required is not required for the purpose of regulating speech which is protected speech or to conflict with any law of any superior governmental authority. B. Issuance of a valid City parade permit will exempt the holder from City noise regulations during the parade event. SECTION V. Defenses. A. The following defenses shall apply to any infraction cited for in the Chapter, and the same must be specifically pled by anyone cited with a violation: 1. The emission of any sound was for the purpose of alerting persons to the existence of an emergency, danger, or attempted crime, or was produced pursuant to any safety rule or regulation of any governmental entity or agency. 2. The sound was produced by an authorized emergency vehicle. 3. The sound was produced by emergency work. 4. The sound was generated: (a) At a lawfully scheduled stadium event; (b) By a parade and spectators and participants on the parade route during a lawfully -permitted parade; (c) By spectators and participants at a lawfully -scheduled fair, carnival, music event or theatrical event; (d) By a pyrotechnic display that was permitted by the local fire marshal; (e) By spectators and participants of any outdoor event, fun run, race, festival, fiesta, or concert that was sponsored or cosponsored by the City or in full compliance with a permit issued by the City. 5. The sound was produced by an aircraft, in flight, or in operation at an airport. 6. The sound was produced by railroad equipment in operation on railroad rights -of -way. 7. The sound was produced by the erection, excavation, construction, or demolition of any building or structure, road construction activity, trash or refuse collection, sidewalk installation, public infrastructure installation or other attendant activities, when necessary for the installation, maintenance, or upkeep of such improvements. 8. The sound was produced by church bells or church chimes when used as part of a religious observance or service during the daytime hours for the zone in which the church is located. 9. The sound was produced by power equipment or yard or lawn maintenance equipment or device used between the hours of 7:00 a.m. and 10:00 p.m. when the sound is being produced for the maintenance and upkeep of the property on which it is operated. 10. The sound was produced during the daytime hours by activities conducted on public parks, public playgrounds, and public or private school grounds, including, but not limited to, school athletic events, band and school entertainment, or practices for such events. SECTION VI. Penalty. A. Any person who violates any provision of this chapter may be issued a civil infraction citation, which if proven by clear and convincing evidence shall have a civil penalty imposed by the Court in accordance with Section 1-12 of the Kalispell City Code. B. Each hour or portion thereof in which a violation shall occur shall constitute a separate violation. C. Enforcement of this Chapter shall not require the pleading or proving of any culpable mental state. SECTION VII. Repealer. All other ordinances or parts of ordinances in conflict with this Chapter are repealed to the extent that they are in conflict. SECTION VIII. Severability. In the event that any one or more of the provisions contained in this Chapter shall, for any reason, be held to be invalid or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Chapter, which shall remain in full force and effect unless the deletion of such provision or provisions would result in such a material change so as to cause the entirety of the Chapter to be unreasonable, uncertain, or unintelligible. SECTION IX. Effective date. This Ordinance shall be effective thirty (30) days from and after the date of its final passage and approval. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS DAY OF _ _ _ 2009. Pamela B. Kennedy Mayor Attest: Theresa White City Clerk