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Nix noise ordinance

July 19, 2019
Cape Coral Daily Breeze

The city of Cape Coral has scheduled a public hearing Monday to garner public input on a proposed noise ordinance that would allow police officers or code enforcement to issue civil violations with fines up to $500 for citizen-sworn noise complaints.

Proposed Noise Control Ordinance 29-19 would no longer require police, or now code enforcement, to hear or measure any "unreasonably excessive" or "plainly audible" noise, defined in the new ordinance as "any sound that can be heard by a reasonable person using such person's ordinary auditory sense" provided the offended party -- i.e. a neighbor -- makes a sworn complaint.

The officer answering the call could evaluate a witness statement and also consider factors such as the time of the alleged violation, how long the offending action continued, whether there was a history of complaints against the reputed offender, the distance from the sound and its proximity to the complainant's bedrooms, other witnesses and whether there is video or recording of the violation.

If the officer determines, based on the above, that there is probable cause that a violation occurred, a verbal or written warning to cease within 5 minutes would be the first step. If the action continued, or reoccurred within 48 hours, a civil citation or notice of violation could follow. The fine for a first offense is set at $150 and $500 for any subsequent violations.

Citable actions include too much bass in the offender's music of choice and vehicles passing along the street that are "plainly audible" from 50 feet away -- a little more than the distance from the road to the couch where some homeowner is trying to watch Jeopardy in peace.

Offenses between the hours of 11 p.m. and 7 a.m. "shall be prima facia evidence that a sound (whether recurrent, intermittent or continuous) is unreasonably loud and raucous if the sound is plainly audible a minimum of ...100 feet from the property line" and heard by a neighbor inside their home.

Air conditioners, pool pumps, barking dogs, squawking birds, school activities and construction work between 7 a.m. and 7 p.m., except for Sundays and designated holidays, would be exempt.

We didn't see anything about wind chimes or the laughter of kids splashing in the pool or running willy-nilly about the yard among noise that "can cause or aggravate health conditions" but we guess that's what public input is for.

A couple of things.

City staff has outlined some issues they believe are problematic in the current ordinance, saying required decibel readings are "unclear and subject to interpretation," and that certain types of noise, including sounds from motor vehicles, are not specifically included among the nuisances.

The major changes in the proposed ordinance -- the elimination of decibel readings except in the South Cape Entertainment District, the provision that allows an officer to cite without witnessing an alleged violation, giving code enforcement the authority to issue notices of violation and the inclusion of noisy vehicles -- provides for an ordinance that is "more practical and useful for property owners and enforcement purposes" and "increases the ability for judicial success of civil judgement against the offender."

With all due respect to city staff and the Cape Coral Police Department, which supports and helped draft the ordinance, what we see is a cumbersomely "unclear and subject to interpretation," codifying of he-said, she-said complaints that allow for hefty fines that will be hard -- and costly -- to collect, if challenged.

Consider: Police can't make an unwarranted arrest for most misdemeanor crimes they do not witness and code enforcement cannot currently cite you for a violation they cannot see.

But Cape residents could be cited, and fined, for violations neither can hear, based on the word and "investigation" by a neighbor whose standard for "noise" may not be the same as the neighbor on the other side of the offender.

And we're going to fine drivers who dare to drive their loud clunker -- or brand new Harley -- past the house of a Cape commando?

Some additional food for thought:

While there are five provisions dealing with enforcement and penalties for violators, we see nothing to address or penalize the possibility of repeat, unfounded complaints. "Deputizing" this vocal minority would just further sap scant police and code enforcement resources.

Ahem.

We do understand the frustration of living next door to a "too noisy" neighbor. We don't like to see their trash cans left out by the street all week, either.

This ordinance, however, is not the way to address the problems police officers currently face when dispatched to deal with noise complaints.

We urge Council to sound off on this one loud and clear and boot it back to staff if they think Cape Coral can do better than the ordinance on the books.

- Breeze Newspapers

 
 
 

 

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