[Vision2020] Noise Ordinance compromise

[Garrett Clevenger]

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."
>