CLEARWATER — As Florida’s best beach town, as voted by USA Today readers, continues to be a magnet for tourists, its party scene has rankled some of its residents.
During Monday’s city council work session, Mayor George Cretekos cautiously raised concerns brought to his attention by residents about late-night noise and amplified music coming from businesses that serve alcohol until 3 a.m. That cut-off time was adopted in 2010 so such establishments in the city could compete with those in St. Petersburg and Pinellas County, which had extended their 2 a.m. mandatory closing time by one hour.
While most of the noise complaints are from residents who live in the tourist district on Clearwater Beach, the mayor emphasized that he didn’t want to single out any particular business because the ordinance applies to mainland Clearwater as well.
Police Chief Anthony Holloway said that despite assumptions that a decibel meter is used to investigate noise complaints, they’re actually evaluated based on “the 100-foot rule,” outlined in the 1988 city ordinance.
For noises heard at a distance of 100 feet or more from the source, police can cite the business owner if the officer determines that the volume, duration and character of the noise is loud and raucous and is annoying or disturbs, injures or endangers a “reasonable person of ordinary sensibilities.”
The “reasonable person” standard is a legal concept frequently used to denote a hypothetical person who exercises average care, skill and judgment in his or her conduct and who serves as a comparative standard for determining liability.
Holloway said that in most cases, the complaints tend to be about establishments that offer musical entertainment and that the business owners or managers, once confronted by police, comply by lowering the volume. Police can issue a citation on the initial call; typically they issue a verbal warning.
However, “we still get complaints over and over again,” he said.
The chief told the mayor that staff track complaint calls, which is a way to identify repeat violators and could determine whether a citation is issued. Police could adopt a stricter policy that after three complaints, a citation is issued on the fourth. The current ordinance provides no such direction on the issuing of citations.
Assistant City Attorney Rob Surette told the council that the current noise ordinance was “challenged in county court and upheld in a circuit court opinion in an appellate capacity.”
“It may sound subjective to some individuals; however, it is a standard that the courts have determined to be permissible,” he said.
While some communities do use a decibel meter, Surette noted that the devices don’t capture all sounds, that wind conditions can impact the readings, and that there are issues with calibration and with training users.
Moreover, “the U.S. Supreme Court upheld that an individual playing amplified music or a live performance is considered an activity that is protected under the First Amendment as communicative or expressive conduct,” he said.
“There are difficulties in creating absolute prohibitions” without limiting the type of sound violations that police officers would be required to enforce, Surette said.
Those convicted of violating the noise ordinance can face up to 60 days in the Pinellas County Jail.
Cretekos questioned the validity of a provision in the 26-year-old noise ordinance that prohibits “yelling, shouting, whistling or singing at any time or place so as to create a loud and raucous noise between the hours of 10 p.m. and 7 a.m. on any day.” He said that businesses should be reminded of that rule and that residents need to understand that a possible violation should be reported to police “while it’s happening and not two days later.”
Councilman Hoyt Hamilton, whose family owns the Palm Pavilion on north Clearwater Beach, said enforcing the noise ordinance is “a moving target.”
“Do we want to establish (a rule) that after three-warnings in a six-month period, the fourth warning results in a citation?” he asked. “Do we really want to go there or leave it as is and let the chief and his officers handle it at their discretion?”
“We should leave it up to officer to determine what is loud and raucous, rather than put a lot of controls into place that can lead to a lawsuit,” Vice Mayor Doreen Hock-DiPolito added.
Holloway said he would be satisfied with the current procedure and that even though it seems subjective, his officers know their patrol zones and who the repeat offenders are.
City Manager Bill Horne told the council that the real conflict is that the tourist district and residential areas on the beach overlap.
Horne favored benchmarking the number of times an officer confirms that a violation has occurred. “We have to communicate a get-tough response before a citation is issued to get the response we want.”
In the end, the city council agreed with Horne that immediate changes to the noise ordinance and further discussion aren’t required at this time and that police should benchmark violations to determine whether further action is warranted.