Noise Pollution - Amplified Noise Ordinances
Keywords
Many communities have enacted laws defining maximum levels for amplified noise (similar to muffler laws for autos). City governments can amend the community noise ordinance to add these provisions, enact a whole new ordinance that includes these provisions, or enact this law to stand alone. The only real difference is the distance from the the noise source from which a violation is determined, which varies between 25 and 150 feet in most ordinances.
A "plainly audible" standard has been applied in many places across the United States, and this standard has been held to be neither vague nor overbroad (State v. Ewing, 914 P.2d 549, Haw. 1996). It is also unambiguous to those it is intended to regulate.
Below is a model code provided by the Noise Consultancy that covers amplified noise from stationary sources (not just cars). Following is a an actual code enacted in Nashville, Tennessee that regulates car stereo noise.
The Noise Pollution Clearinghouse is the primary on-line resource for noise pollution information.
Model Amplified Noise Code
CODE PROVISIONS
DEFINITION
"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, the enforcement officer need not determine the title of a song, specific words, or the artist performing the song. The detection of the rhythmic bass component of the music is sufficient to constitute a plainly audible sound.
RESTRICTED USES AND ACTIVITIES
(1) Personal or commercial music amplification or reproduction equipment shall not be operated in such a manner that it is plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible at a distance of 25 feet in any direction from the operator. (2) Self-contained, portable, hand-held music or sound amplification or reproduction equipment shall not be operated on a public space or public right-of-way in such a manner as to be plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible by any person other than the operator.
Chapter 11.12 OFFENSES AGAINST PUBLIC PEACE
11.12.070 Excessive noise--Use of televisions and radios restricted.
C. No person operating or occupying a motor vehicle on any street, highway, alley, parking lot, or driveway, either public or private property, shall operate or permit the operation of any sound amplification system, including, but not limited to, any radio, tape player, compact disc player, loud speaker, or any other electrical device used for the amplification of sound from within the motor vehicle so that the sound is plainly audible at a distance of fifty or more feet from the vehicle or, in the case of a motor vehicle on private property, beyond the property line. For the purpose of this subsection, "plainly audible" means any sound which clearly can be heard, by unimpaired auditory senses based on a direct line of sight of fifty or more feet, however, words or phrases need not be discernible and said sound shall include bass reverberation. Prohibitions contained in this section shall not be applicable to emergency or public safety vehicles, vehicles owned and operated by the metropolitan government or any utility company, for sound emitted unavoidably during job-related operation, or any motor vehicle used in an authorized public activity for which a permit has been granted by the appropriate agency of the metropolitan government.
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Noise ordinances versus music ordinances
This web page shows a model "noise" ordinance regulating amplified music, and a Nashville, Tennessee ordinance subsection regulating noise from automobiles. While the Nashville ordinance apprears on its face to be enforceable, in stark contrast the model ordinance regulating amplified music is almost certainly unconstitutional, as federal courts have consistently found outdoor music performances to be protected free speech. [MICHAEL BERGER, a/k/a/ "MAGIC MIKE" v. City of Seattle, et al., Order on summary judgment in favor of Michael Berger filed 4/22/2005]
In the words of the Federal District Court in Seattle: "Although the First Amendment prohibits 'abridging the freedom of speech,' some abridgements pass constitutional muster.... The government can regulate speech in a traditional public forum as long as the regulation meets the 'time, place, or manner' test. [It must be] (1) 'justified without reference to the content of the regulated speech,' (2) narrowly tailored to serve a significant governmental interest' and must (3) 'leave open ample alternative channels for communication of the information.'"
An ordinance that restricts only amplified music would not meet the "narrowly tailored test," because it does not equally restrict amplified speech generally. An ordinance that restricts amplified speech would not meet this test because it does not equally restrict unamplified speech.
The Nashville Ordinance is much more likely to meet constitutional muster because automobiles on roads, in parking lots, etc., are not occupying a traditional public forum to which the "time, place, or manner test" would apply.
The point is, an ordinance that specifically targets street musicians and outdoor music venues in or adjacent to a traditional public forum will not pass constitutional muster. And as for the sound being "clearly audible" from 25 or 50 feet, as the term is defined, a person speaking on a cell phone can be clearly audible at a distance of 50 feet, and would certainly be clearly audible at a distance of 25 feet. Children playing can be clearly audible at distances of 25 and 50 feet. An ordinance that applies to music but not, for example, to people speaking on cell phones or to each other, or calling out to someone to get their attention, or children at play, will not meet the "narrowly tailored" test and will be unconstitutional.
Consider, for example, the size of a little league baseball field. The distance from the pitcher's mound to where the home plate umpire stands is almost exactly 50 feet. Try to imagine live music at that distance, and how quiet it must be so that you can't even detect bass notes or rythem, much less a vocalist. It's absurd.
Is there anything about
Is there anything about barking dogs and a noise ordinance? For example, what about barking dogs late in the evening and early in the morning? Does the 8 am and 10 pm time frame apply to this as well?
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