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Item O7 NOTICE OF INTENTION TO CONSIDER ADOPTION OF COUNTY ORDINANCE NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that on Wednesday, May 17, 2000, at 3:00 PM at the Key Largo Library, Tradewinds Shopping Center, Key Largo, Monroe County, Florida, the Board of County Commissioners- of Monroe County, Florida, intends to consider the adoption of the following County ordinance: AN ORDINANCE OF MONROE COUNTY, FLORIDA, AMENDING CHAPTER 13, ARTICLE III, MONROE COUNTY CODE, "NOISE CONTROL"; REPEALING EXISTING PROVISIONS AND CREATING.,NEW PROVISIONS REGULATING UNREASONABLE NOISE; PROVIDING APPLICABILITY; PROVIDING DEFINITIONS; PROHIBITION UNREASONABLE NOISE AND REQUIRING SOUNDPROOFING OF COMMERCIAL STRUCTURES PROVIDING LIVE ENTERTAINMENT OR AMPLIFIED MUSIC; REGULATING MOTOR VEHICLE NOISE EMISSIONS; PROVIDING EMERGENCY EXCEPTION; PROVIDING FOR SPECIAL VARIANCES; PROVIDING FOR LIABILITY, PENALTIES AND ENFORCEMENT; PROVIDING FOR OTHER REMEDIES AND CITIZENS SUITS; PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR INCORPORATION INTO THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decided to appeal any decision made by the Board with respect to any matter considered at such hearings or meetings, he will need a record of the proceedings, and that, for such purpose, he may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Copies of the above-referenced ordinance are available for review at the yarious public libraries in Monroe County, Florida. Dated at Key West, Florida, this 24th day of April, 2000 (SEAL) DANNY L. KOLHAGE, Clerk of the Circuit Court and ex officio Clerk of the Board of County Commissioners of Monroe County, Florida Requested publication dates Reporter Citizen Keynoter 4/27-5/4/00 4/28-5/5/00 4/29-5/6/00 1,01 Board of County Commissioners ORDINANCE NO. - 2000 AN ORDINANCE OF MONROE COUNTY, FLORIDA, AMENDING CHAPTER 13, ARTICLE III, MONROE COUNTY CODE, "NOISE CONTROL"; REPEAUNG EXISTING PROVISIONS AND CREATING NEW PROVISIONS REGULATING UNREASONABLE NOISE; PROVIDING APPLICABILITY; PROVIDING DEFINITIONS; PROHIBITING UNREASONABLE NOISE AND REQUIRING SOUNDPROOFING OF COMMERCIAL STRUCTURES PROVIDING LIVE ENTER'MINMENT OR AMPLIFIED MUSIC; REGULATING MOTOR VEHICLE NOISE EMISSIONS; PROVIDING EMERGENCY EXCEPTION; PROVIDING FOR SPECIAL VARIANCES; PROVIDING FOR LIABILITY, PENALTIES AND ENFORCEMENT; PROVIDING FOR OTHER REMEDIES AND CITIZEN SUITS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR INCLUSION IN THE MONROE COUNTY CODE; PROVIDING AN EFFECTIVE DATE WHEREAS, the Board of County Commissioners ("BOCC") has determined that the existence and creation of unreasonable noise has resulted in an incompatible use with adjacent and surrounding residential neighborhoods; WHEREAS, such unreasonable noise constitutes a menace and nuisance to the public health, safety and welfare, and threatens the quality of life of persons within Monroe County; WHEREAS, the Florida Constitution establishes the right of the people to an environment free of excessive and unnecessary sound; WHEREAS, the BOCC finds that prohibiting unreasonable noise is within the general police power and will serve to promote the health, safety and welfare of the citizens of Monroe County; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA that: Section 1. PurDose. The purpose of this Ordinance is to clarify and strengthen the existing regulation of unreasonable noise originating within Monroe County. Section 2. ReDeal of Existina Provisions. Sections 13-36 through 13-39, and 13-42 through 13-50, Monroe County Code, are hereby repealed. Section 3. Creation of New Provisions. Sections 13-51 through 13-58, Monroe County Code, are hereby created to read as follows: ~13-51. Applicability. This article shall apply to all sound or noise originating from a sound source within the unincorporated area of Monroe County. ~13-52. Definitions. (a) "Emergency" or "Emergency Work" shall mean any occurrence or set of circumstances involving or creatin,Q actual or imminent physical trauma or property damage which demands immediate attention. (b) "Person" shall mean any individual, entity, association, corporation, or partnership, including any officer, employee, department, agency, or instrumentality of the United States, a state, or any political subdivision or municipality. (c) "Property Boundary" shall mean the imaginary line along the surface, and its vertical plane extension, which separates the real property owned, rented, or leased by one (1) person from that owned, rented, or leased by another person. (d) "Public Right-of-Way" shall mean any street, avenue, boulevard, lane, highway, sidewalk, alley, or similar place normally accessible to the public which is owned or controlled by a governmental entity or which has been dedicated to use or access for the benefit of the public or adjacent property owners. (e) "Soundproof"shall mean any physical arrangement or configuration of a building which is sufficient to prevent the sound of live entertainment or amplified sound from constituting unreasonable noise within any residence or residential property, or from any other non-residential establishment more than two hundred (200) feet away from a property boundary of the sound source. (f) "Unreasonable Noise" shall mean (1) any noise of which with the exercise of reasonable care, the maker or operator should know is loud and raucous due to its volume, character, duration, time of occurrence, or the number of persons affected, regardless of its source or content; OR (2) any noise which equals or exceeds a measured sound level of sixty (60) dBA for more than ten percent (10%) of any measurement period which shall not be less' than ten (10) minutes when measured at or beyond any property boundary of the sound source. 2 ~ ~13-53. Prohibition Against Unreasonable Noise; Soundproofing Requirement. (a) No person shall make, continue, or cause to be made any unreasonable noise. (b) If a complaint arises from a multi-story structure, the determination of whether such sound constitutes unreasonable noise shall be made from a story height equal to that of the sound source. (c) Any commercial stru.~ure that provides live entertainment or amplified sound, including any portable structure or vehicle of any type, shall be fully enclosed and soundproofed whenever such live entertainment or amplified sound is provided. The occasional escape of noise resulting from the opening of access doors is expected and the brief period of noise therefrom shall not constitute a per se violation of this subsection. However, such escape noise may constitute unreasonable noise under subsection (a). ~13-54. Emergency Exception. The provisions of this article shall not apply to the emission of sound for the purpose of alerting persons to the existence of an emergency or emergency vehicle or the performance of emergency work. ~13-55. Motor Vehicle Noise Emissions. (a) On Rioht-of-Way. Motor vehicles operating on the publiC right-of-way are regulated as set forth in chapter 403, Florida Statutes. (b) Off RiQht-of-Way. No person shall operate or cause to be operated any motor vehicle off a public right-of-way in violation of this article. This article shall apply to all motor vehicles, whether or not duly licensed or registered, including but not limited to commercial or recreational racing vehicles, motorcycles, dirt bikes, mopeds, go-carts, ampnibious vehicles, campers, power boats, personal watercraft, or any other engine-powered vehicle. ~13-56. Special Variance. (a) Apolication and Determination. Upon application to the Planning Director, a special variance may be granted from the provisions of this article. A special variance may be granted only if the Planning Director determines that compliance with this article would cause an unreasonable hardship on the applicant, community or other person(s). In' determining whether to grant or deny the application, the Planning Director shall balance the hardship on the applicant, the community, and other persons against the adverse impact on the health, safety, and welfare of the person(s) and property to be affected. In granting or 3 denying an application, the Planning Director shall issue to the applicant a written decision stating the reasons therefor. Applicants or any persons contesting the application r,nay be required to submit any information the Planning Director may reasonably require. A special variance shall not be granted to apply for more than three hundred sixty-five (365) days from the date on which it was granted. Applications for extensions, renewals, or modifications to special variances shall be treated like applications for initial variances. (b) Notice and Time Requirements. Notice of an application for a special variance shall be given by the Planning Director by registered mail to any adjacent property owner(s) ., if the activity to be exempted is to be a fixed site. Such notices shall be mailed within (5) business days of the Planning Director's receipt of a completed application for a special variance. Within ten (10) business days of the Planning Director's receipt of a completed application, (s)he shall cause to be published in a newspaper of general circulation a publiC notice describing the proposed special variance and informing any persons who believe they may be adversely affected if the special variance is granted of the method and ability to file a protest. Any person who claims to be adversely affected shall file a statement containing any information to support his/her claim. Such statements must be filed within five (5) days of receipt of the Planning Director's notice or the date of publication of the notice of special variance. Upon a determination that the application is complete, the time has expired for filing of protests, and that any additional information needed has been received, the Planning Director shall render a decision granting or denying the special variance within two (2) business days. The Planning Director shall notify the applicant and all persons who protested the application of his decision by registered mail no later than the business day following the day the decision was rendered. (c) Apoeals. The applicant or any person who protested the special variance may appeal the Planning Director's decision to the Board of County Commissioners ("BOCC") by filing a notice of appeal with the Planning Director within five (5) business days of receipt of the Planning Director's decision. The Planning Director shall agenda the appeal for the next regularly scheduled BOCC meeting and shall transmit to the BOCC a coherent and orderly record of the special variance file in his/her custody. If the Planning Director determines that there is insufficient time to transmit the record in time for the next regularly scheduled BOCC meeting, (s)he shall agenda the appeal for the following regUlarly scheduled meeting. If time is of the essence, (s)he may request the mayor to schedule a special meeting. The BOCC shall entertain appeals pursuant to this section on the record but shall allow the applicant and 4 any person(s) who protested the application to make such arguments based on the record as they may choose, subject to any reasonable time limits the BOCC may determin~. The BOCC's appellate review shall be de novo. The BOCC may request the Planning Director to elaborate upon or explain any documents or other evidence in the record. Upon conclusion of the parties' argument and the receipt of any comments from the Planning Director, the BOCC may affirm, reverse, or modify the decision of the Planning Director based on the BOCC's evaluation of the record, and the arguments and comments presented. The BOCC's decision shall be made by Resolution and shall state the reasons and/or findings in support ., thereof. ~13-57. Liability; Penalties and Enforcement. (a) Liabilitv. The maker or creator of a noise and the operator and/or owner of its sound source shall each be subject to liability for violations of this article. If prosecuted jointly, each shall be jointly and severably liable for any fines imposed pursuant to this article. (b) Penalties and Enforcement. A violation of this Ordinance shall be punishable as a second degree misdemeanor and by a fine of up to five hundred dollars ($500.00) per day, per violation and/or by imprisonment in the county jail for not more than sixty (60) days. Violators of this article may be prosecuted in County Court in the name of the state by the state attorney through citation or information. Code enforcement may also enforce the terms of this Ordinance by bringing the case before a Special Master pursuant to Code ~6.3-14 or by citation under Code ~6.3-11, Florida Statutes ~162.21 (as may be amended), and 76-435 Laws of Florida (as may be amended). If a code enforcement citation is issued, the fine shall be $250.00 for a first offense and $500.00 for subsequent offenses. In addition, the occupational license issued for a commercial entity may be revoked by the S"pecial Master of court of competent jurisdiction upon a finding of two or more violations of this Ordinance by the same entity. ~13-58. Other Remedies and Citizen Suits. In addition to any other remedy available to Monroe County (including code enforcement pursuant to Chapter 162, Florida Statutes), Monroe County or any other adversely affected party may enforce the terms of this article in law or equity. Any citizen of Monroe County may seek injunctive relief in a court of competent jurisdiction to prevent a violation of this article. No provision of this article shall be interpreted to prevent any person from commencing a civil action on his/her own behalf against any person who is alleged to be 5 in violation of any provision of this article. Attorney's fees and costs incurred in an action to enforce these regulations may be awarded to a substantially prevailing party in the di~cretion of the court. Section 4. Severability. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 5. ReDeal of Inconsistent Provisions All Ordinances or parts of Ordinances of Monroe County in conflict with the provisions ., of this Ordinance are hereby repealed to the extent of such conflict. Section 6. Inclusion in Monroe Countv Code. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of Monroe County, Florida, as an addition or amendment thereto, and may be appropriately renumbered to conform to the uniform numbering system of the Code. Section 7. Effective Date. This Ordinance shall become effective upon its passage and adoption and authentication by the signature of the presiding officer and the Clerk of the County. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting held on the day of , 2000. Mayor Shirley Freeman Commissioner Wilhelmina Harvey Commissioner George Neugent Commissioner Mary Kay Reich Commissioner Nora Williams (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By By Deputy Clerk Mayor/Chairperson 6