Agenda 09/15/2009 Item #16K 3
Agenda Item No. 16K3
September 15, 2009
Page 1 of 100
EXECUTIVE SUMMARY
Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of
County Commissioners authorizes the County Attorney's Office to select and retain
outside counsel to represent County Manager James V. Mudd who has been Darned as a
defendant in the lawsuit entitled Pebble Pa2:e Inc.. DIB/ A Stevie Tomato's Sports Pa2:e Bar
and Grill v. Jim Mudd. in his official capacity as County Mana2:er for Collier County. Case
No. 09-6825-CA, now pending in the Twentieth Judicial Circuit in and for Collier County,
Florida, and in addition, to waive the Purchasing Policy to the extent it applies to the
selection of outside counsel and/or otherwise exempt the selection of outside counsel from
competition pursuant to VII.G. of the Purchasing Policy.
OBJECTIVE: To get direction from the Board in responding to a complaint filed against Jim
Mudd in his official capacity as County Manager for Collier County.
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CONSIDERATIONS: Collier County Resolution No. 95-632 sets forth the Board's policy with
regard to providing a defense and paying legal expenses of County Commissioners, County staff
and advisory board members ("County persons") who are sued individually in lawsuits. A copy
of both the complaint and Resolution No. 95-632 are attached. County Manager Jim Mudd has
been sued in the case styled Pebble Page Inc., D/B/A Stevie Tomato's Sports Page Bar and Grill
v. Jim Mudd, in his official capacity as County Manager for Collier County, in an action for writ
of mandamus involving an application for a sound amplification permit. The Plaintiffs allege
Staffs' issuance and then revocation of a permit and withholding a decision on the permit
pending completion of site modifications as specified in the Developer Agreement with DAD
Developer Corporation is not valid under any state law or Collier County Ordinance.
In accordance with Resolution No. 95-632 and current Florida law, County persons sued in civil
actions and civil rights lawsuits may be provided representation if the litigation involving the
person(s) to be represented: (1) arose out of or in connection with the performance of official
duties and (2) while the County person was serving a valid public purpose.
The County Attorney's Office recommends the Board provide County Manager Jim Mudd with
private legal counsel in accordance with Resolution No. 95-632.
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Given that the suit has already been filed and served, it is imperative that investigation of the
complaint be commenced as soon as possible. Accordingly, based on these circumstances and in
the best interest of the County, it is further recommended that the Board waive the Purchasing
Policy and/or otherwise exempt the selection of outside counsel from competition pursuant to
VILG. of the Purchasing Policy to the extent it applies to procurement of legal services under
Resolution No. 95-632 and authorizes the County Attorney's Office to select and retain counsel
for County Manager Jim Mudd. The County Attorney's Office has identified Yale Freeman,
Esq., to represent Mr. Mudd in this action. Mr. Freeman has experience in such civil matters and
has previously represented Mr. Mudd in a lawsuit in which he was named as a defendant in
addition to the County. Mr. Freeman has agreed to a rate of $200.00 per hour.
Agenda Item No, 16K3
September 15, 2009
Page 2 of 100
FISCAL IMPACT: Risk Management Department has informed our office that defense costs
will be covered by the County's insurer.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this Executive Summary.
RECOMMENDATION: That the Board of County Commissioners authorizes the County
Attorney's Office to select and retain Yale Freeman, Esq., to represent County Manager Jim
Mudd in the case styled Pebble Page Inc., D/B/A Stevie Tomato's Sports Page Bar and Grill v.
Jim Mudd. in his official capacity as County Manager for Collier County. and in addition to
waive the Purchasing Policy to the extent it applies to the selection of outside counsel and/or
otherwise exempt the selection of outside counsel from competition pursuant to VII.G. of the
Purchasing Policy.
PREPARED BY:
Jacqueline Williams Hubbard, Litigation Section Chief
09-6825/6
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2
Item Number:
Item Summary:
Meeting Date:
J" ubI,; I VI .:.,
Agenda Item No. 16K3
September 15, 2009
Page 3 of 100
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
16K3
Recommendation pursuant to Collier County Resolution No 95-632, that the Board of
County Commissioners authorizes the County Attorneys Office to select and retain outside
counsel to represent County Manager James V. Mudd who has been named as a defendant
in the lawsuit entitled Pebble Page Inc., D/B/A Stevie Tomatos Sports Page Bar and Grill v.
Jim Mudd, in his official capacity as County Manager for Collier County, Case No. 09-6825-
CA, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida, and in
addition, to waive the Purchasing Policy to the extent it applies to the selection of outside
counsel and/or otherwise exempt the selection of outside counsel from competition pursuant
to VII.G. of the Purchasing Policy.
9/15/20099:00:00 AM
Prepared By
Jacqueline W. Hubbard
County Attorney
Assistant County Attorney
Date
County Attorney Office
8/20/200910:00:34 AM
Approved By
Jeffrey A. Walker, CPCU,
ARM
Administrative Services
Risk Management Director
Date
Approved By
Risk Management
8/20/200910:02 AM
Steve Carnell
Administrative Services
Purchasing/General Svcs Director
Date
Purchasing
8/22/2009 9:07 AM
Approved By
Jacqueline W. Hubbard
County Attorney
Assistant County Attorney
Date
County Attorney Office
8/31/20099:47 AM
Approved By
Jeff Klatzkow
County Attorney
County Attorney
Date
County Attorney Office
9/1/20092:28 PM
Approved By
OMS Coordinator
County Manager's Office
OMB Coordinator
Date
Office of Management & Budget
9/1/20093:19 PM
Approved By
Mark Isackson
County Manager's Office
Budget Analyst
Date
Office of Management & Budget
9/1/20095:18 PM
Approved By
Leo E. Ochs, Jr.
Deputy County Manager
Date
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Agenda Item No. 16K3
September 15, 2009
Page 4 of 100
Board of County
Commissioners
County Manager's Office
9/1/2009 5:58 PM
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Agenda Item No, 16K~/:)~
September 15, 2~~; ,./J-I
Page 5 of 1 ~~.
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL DIVISION
JIll.
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PEBBLE PAGE INC., D/B/A STEVIE TOMATO'S CASE NUMBER:
SPORTS PAGE BAR & GRILL
PLAINTIFF,
cq -lo~i'5-' GA
VS.
JUDGE:
JIM MUDD, in his official capacity as
County Manager for Collier County, a
Political subdivision of the State of Florida
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THE STATE OF FLORIDA ~ Zf*
TO EACH SHERIFF / POLICE OFFICER OF THE STATE / CERTIFIED PROCESS S~VEFC?
DEFENDANT.
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SUMMONS
YOU ARE HEREBY COMMANDED to serve this summons and a copy of the Complaint
filed in this action upon defendant:
JIM MUDD, County Manager
County Manager's Office
3301 E. Tamiami Trail
Naples, FL 34112
Defendant is hereby required to serve written defenses to the Complaint or Petition on
Plaintiffs attorney, whose name and address is:
KUHN LAW FIRM, P.A.
Scott A. Kuhn, Esq.
12800 University Drive, Suite 385
Fort Myers, FL 33907
within twenty (20) days after service of this summons upon that defendant, exclusive of the day
of service, and to file the original of the written defenses with the clerk of this court either before
service on Plaintiff's attorney, or immediately thereafter. If a defendant fails to do so, a default
will be entered against that defendant for the relief demanded in the Complaint or Petition.
WITNESS my hand and the seal of said court on the ~ day of _CO! <df1,J2006.
DWtGHT e. BROCK, CLERK
Clerk of Circuit Court
(COURT SEAL)
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Agenda Item No. 16K3
September 15, 2009
Page 6 of 100
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL DIVISION
PEBBLE PAGE INC., d/b/a Stevie
Tomato's Sports Page Bar & Grill,
Plaintiff,
vs.
CASE NO:
OCt ~ to21-5 . eft:
JIM MUDD, in his official capacity as
County Manager for Collier County, a
Political subdivision of the State of
Florida
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COMPLAINT
Plaintiff PEBBLE PAGE INC., d/b/a Stevie Tomato's Sports Page Bar & Grill ("Stevie
Tomato's") sues defendant JIM MUDD and alleges:
1. This is an action for a writ of mandamus.
2. The facts on which plaintiff relies are:
a. Plaintiff operates a restaurant at 15215 Collier Boulevard, unit numbers 301 to
305, Naples, Florida Folio number 66261900022, Section 27, Township 48
South, Range 26 East.
b. Plaintiff applied for an Amplified Sound Permit pursuant to the Collier County
Noise Control Ordinance, as amended by Collier County Ordinance Number
2008-68. (Attached as Exhibit "A").
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whether or not staff had the ability to issue the above
referenced permit based on the Board's September 25th
decision.
Agenda Item No, 16K3
September 15, 2009
Page 7 of 100
3. As is evident from the plain language of the Collier County Noise Control
Ordinance, the issuance of an Amplified Sound Permit is a ministerial act on the
part of the County Manager. The County Manager does not have any discretion to
withhold a decision regarding the issuance of an Amplified Sound Permit. The
County Manager must issue a permit to an applicant if the source of the amplified
sound is within 2500 feet of a residential zoning district. The only basis for denial
of an Amplified Sound Permit application shall be prior adjudication for violation of
Collier County Noise Control Ordinance relating to the same amplified sound
activity. Here, the County Manager revoked the permit that was issued on July 15,
2009 and is refusing to act on the application of Plaintiff ''pending the completion of
the site modifications as specified in the Developer Agreement. . . ." The County
Manager does not have the discretion to refuse to act on Plaintiff's application.
4. What's more, the July 30, 2009 letter revoking the previously issued Sound
Amplification permit cites to the Board of County Commissioner's September 25,
2007 decision (Exhibit "C") to deny issuing a Sound Amplification Permit to Stevie
Tomato's. During the public hearing in 2007, Commissioner Henning asked County
Attorney Jeffery Klatzkow about the County's risk in denying Stevie Tomato's a
Sound Amplification Permit. County Attorney Klatzkow responded:
Well, at the end of the day, the applicant would have the
ability to bring us to court for a Writ of Mandamus
basically asking the Court to order us to issue the permit.
That's probably the likely result.
Could they seek damages? Maybe, but it's very speculative.
So that's probably what your looking at. If you deny the
permit, they'd have to consider whether it or not its worth
the cost to go to court to compel us to issue the permit.
.... t
Agenda Item No. 16K3
September 15. 2009
Page 8 of 100
c. The Collier County Noise Control Ordinance provides:
a. Issuance. Upon receipt of an Amplified Sound permit
application the County Manager or designee will verify
that the physical location of the proposed Amplified Sound
source(s) is within 2500 feet of any residential zoning
district or land use as opposed to the Real Property Line of
the property on which the Sound producing event will
occur. This distance will be measured according to a
survey if provided by the applicant or by the Official
Zoning Map aerial photography or other reliable and
accurate means. Upon completion of such verification the
County Manager or designee shall issue an Amplified
Sound Permit.
b. Denial. The onlv basis for denial of an Amplified Sound
Permit application shall be prior adjudication for violation
of this Ordinance relating to the same Amplified Sound
activity.
Collier County Ordinance 2008-68 (emphases added).
d. Plaintiff properly applied for a Sound Amplification Permit in early July 2009.
A permit was issued on July 15, 2009 and then summarily revoked on July 30,
2009. (See letter revoking permit dated July 30, 2009, Exhibit "B").
e. In the July 30, 2009 letter, Susan Istenes, AICP, Director, Department of Zoning
and Land Development Review states:
Staff is withholding any decision regarding the requested
Amplified Sound Permit pending the completion of the site
modifications as specified in the Developer Agreement
with DAD development Corporation which are shown on
SDPA-2008-AR-14002 as directed by the Collier COWlty
Board of County Commissioners.
It is further noted a similar item was previously heard by
the Board of County Commissioners on September 25,
2007 and as part of a public hearing the Board denied the
requested pennit. As of this writing it is questionable
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Agenda Item No. 16K3
September 15, 2009
Page 9 of 100
Commissioner, you have no criteria to deny this, okay.
There is nothing here you can look at to weigh and deny
this the way our ordinance is currently constructed. We
can change the ordinance and take care of it in that way. . . .
But at the end of the day. if you decide to do this, they
would have a cause of action.
5. The Board of County Commissioner's voted unanimously to deny Stevie Tomato's
a Sound Amplification pennit in 2007. The following year the Board amended the
Noise Control Ordinance. Interesting, the amended ordinance still provides no
discretion to the County Manager in deciding whether to issue at permit. The act of
issuing a permit remains purely ministerial. As County Attorney Klatzkow
articulately admitted: "Commissioner, you have no criteria to deny this, okay." Just
as the Board of County Commissioners had no criteria to deny the soood
amplification perririt under the Noise Control Ordinance in effect in 2007, the
County Manager has no criteria to deny issuing a permit under the 2008 amendment
to the Noise Control Ordinance. Therefore, County Attorney Klatzkow's end-of-
the.day prediction has come true: "the applicant would have the ability to bring us
to court for a Writ of Mandamus basically asking the court to compel us to issue the
permit. That's probably the likely result."
6. No valid Collier County Ordinance or law of Florida permits the withholding of a
Sound Amplification Permit on the basis cited by Susan Istenes; the County
Manager has a legal duty to issue the permit.
7. Because Plaintiff complied with all valid legal requirements, issuance of the Sound
Amplification Permit is not discretionary.
8. PlaintifIhas incurred attorney fees and costs in relation to this action.
Agenda Item No, 16K3
September 15, 2009
Page 10 of 100
WHEREFORE Plaintiff demands a preemptory writ of mandamus directing the County
Manager to act on Plaintiff's application and issue the Sound Amplification Permit,
attorney fees and costs in pursuing this action, and any other relief that the Court deems
just and proper.
~,t;
cott A. Kuhn tL par NI4t'Y\ber $55431.0
Attorney at Law
KUHN LAW FIRM, P.A.
12800 University Drive, Suite 385
Fort Myers, FL 33907
Phone: 239-333-4LA W (4529)
Fax: 239-333-4531
scott@kuhnlegal.com
www.kuhnIegal.com
ORDINANCE NO. 2008 - ~
COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 90-17,
THE COLLIER COUNTY NOISE CONTROL ORDINANCE, AS
PREVIOUSLY AMENDED AND CODIFIED IN CHAPI'ER 54, ARTICLE
IV OF THE CODE OF LAWS AND ORDINANCES OF COLLIER
COUNTY, BY AMENDING SECTION FOUR, PROHIBITIONS; BY
AMENDING SECTION FIVE, DEFINITIONS; BY AMENDING SEcrION
SIX, MAXIMUM PERMISSIBLE SOUND LEVELS; BY AMENDING
SECTION SEVEN, EXCEPTIONS; BY AMENDING SECTION EIGHT,
COMMUNITY EVENT PERMITS; BY AMENDING SECTION NINE,
W AIYERS; BY AMENDING SECTION TEN, RIGHT TO APPEAL; BY
AMENDING SECTION ELEVEN, VIOLATIONS, PENALTIES,
ENFORCEMENT; BY AMENDING SECTION .THIRTEEN, USE OF
LOUDSPEAKERS; BY AMENDING THE SECTION ENTITLED, NOISE
VIOLATIONS THAT DO NOT REQUIRE USE OF TESTING
EQUIPMENT; PROVIDING FOR INCLUSION IN THE CODE OF LAWS
AND ORDINANCES; PROVIDING FOR CONFLICT AND
SEVERABILITY; AND PROVIDING FOR AN EFFECfIVE DATE.
WHEREAS, on Febmary 13, 1990. the Board of County Commissioners adopted
Ordinance No. 90-17, known as the "Collier County Noise Control Ordinance," codified as
Chapter 54, Article IV, of the Code of Laws and Ordinances of Collier County, Florida, which
Ordinance subsequently was amended by Ordinance Nos. 93-77, 96-29. 00-68, 04-55, and 07-61;
and
WHEREAS, it remains the public policy of Collier County that every person is entitled to
sound levels that are not detrimental to life, health, and enjoyment of his or her property, and that
the making. creation, or maintenance, within unincorporated Collier County, of sounds in excess
of the maximum levels at sound-affected locations as specified in Ordinance No. 90-17, as
amended, negatively affects health, comfort, convenience, safety, welfare and prosperity of
people in the County; and
WHEREAS, the Board of County Commissioners desires to amend Ordinance No. 9Owl7,
as previously amended, to better coordinate and facilitate the enforcement of the Collier County
Noise Control Ordinance by the Code Enforcement Department and the Collier Comity Shcliff's
Office.
Page 1 of 36
Words un<Jerlined are added; Words smJell tar-ewglt are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 12 of 100
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that
SECTION ONE: STATUTORY AUTHORIZATION.
The legislature of the State of Florida has, in Chapter 125, Florida Statutes, delegated to
local govenunental units the responsibility to adopt regulations designed to promote the public
health, safety, and general welfare of its citizenry.
SECTION TWO: FlNDINGS OF FACT.
The Board of County Commissioners of Collier County, Florida, after a public hearing
with due public notice, has determined that the public health, safety, comfort, good order,
convenience, and general welfare would best be served by the exercise of the power granted to
said Board by said Chapter 125, Florida Statutes, and the adoption of this Ordinance.
SECIlONTHREE: AMENDMENT TO SECfION FOUR OF ORDINANCE NO. 90-17,
AS AMENDED.
Section Four of Ordinance No. 90-17, as amended, entitled "Prohibitions" is hereby
amended to read as follows:
SECTION FOUR. Prohibitions.
It shall be unlawful, except as expressly pcnnitted herein. to make, cause~ or allow the
making of any noise or sound which exceeds the Sound Level limits set forth in this Ordinance.
SECTION FOUR: AMENDMENT TO SECfION FlVE OF ORDINANCE NO. 90-17,
AS AMENDED.
Section Five of Ordinance No. 90-17, as amended, entitled "Definitions" is hereby
amended to read as follows:
SECTION FIVE. Definitions.
The following words, terms and phrases, when used in this Ordinance, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meamng:
Page 2 of36
Words underlined are added; Words s~8k 1hreugh are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 13 of 1 00
Agricultural Zone means any geographic area designated for agricultural activities by the
zoning authority having jurisdiction over such area.
Ambient Noise means the all encompassing noise associated with a given environment,
being usually a composite of sound from many sources near and far.
Ambient Souad Level means the A-wei!d1ted or C":wei{d1ted Sound Level of the Ambient
Noise at a siven location.
Amplified S01lnd meanS use of a public address system, loudspeaker, amplifier or any other
device which electronically or mech;uyca1ly augments the volume of sound. For Durooses of
this Ordinance. Amplified Sound does not include ~kground Music.
ANSI means the American National Standards Institute.
A-Weighted Sound Level dB{A} means the sound pressure level in decibels as measured on
a sSound ILevel mMeter using the A-weighteeing network. The level so read is designated
dB(Al.
Backerouud Music means anY music or other Sound played in a DubHe or private space
whose main function is to create an atmosphere suitable to a specific occasion. rather than to
be listened to. Background Music shall normally generate Sound Levels no hi2her than 45
dBeA) at any location on the property where it is being played.
Commercial Zone means any geographic area designated for commercial or professional
activities by the zoning authority having jurisdiction over such area.
Community Event means any cultural, sporting, historical or traditional -observance,
holidays and ceremonies, parades and concerts open to the public, including events operated
for profit or for which admission is charged.
Page 3 of36
Words underlined are added; Words sinH Ihfellgh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 14 of 100
Construction means any site preparation, assembly, erection, substantial repair. alteration, or
similar action, but excluding demolition, for or on any public or private right-of-way,
structures, utilities or similar property.
Continuous Noise means a noise wftieh whose sound pressure level exceeds the Ambient
Sound Level and remains essentially constant in level during the period of observation.
Cooaty Code Enforcement Department means the designated. authority charged with
administration of this Ordinance and enforcement in addition to enforcement by the County
Sheriffs Office.
C-weidted Sound Level. dB(C) means the sound Dressurc level in decibels as measured on
a Sound Level Meter USin2 the C-weilzhtinJl: network:. The level so read is desiJl:Mted dB(C).
Decibel (dB) means a logarithmic unit of measurement that expresses the malmitude of a
'PhYSical quantity relative to a specified or implied reference level. Since it exPresses a ratio
of two Quantities with the same unit. it is a dimensionless unit. In the case of this Noise
Ordinance. a Decibel means a unit for measuring f:leseri~iBg the amplitude of sound, equal to
20 times the base ten logaritlun to the ease ten of the ratio of the measured sound pressure
the seYllEi HiB.asllfetl to the reference pressure, which is 20 micmBewtaflS per sqaare Hieier.
I>eeihel measm:emems staft &em C:h.e e8flllJleft logarithm (8868 10) aR8 lBeB6tlN the pre66tif8
stfeftgtft 8Ilfl IBagnit1:lSS (leutiRess) ef a B8wui flUlgiRg Hem Q, the Wesheld ef 8-1:18ihility of
the R9muH htimaa ear, ta Meat 120 dB, the thteshelEl ef ear paill. The higher the Eleei~els,
tlie le\tder lfte seUlld.microPascals. Generany. hi2her decibel levels re,present louder sounds.
Emergency means an occurrence or set of circumstances involving actual or imminent
physical trauma or property damage or loss. which demands immediate action.
Emereency Work means any work performed for the purpose of preventing or alleviating
the physical trauma or property damage threatened or caused by an egmergency.
Page 4 of 36
Words underlined are added; Words soak dlreugll are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 15 of 100
EQuiPment includes. but is not limited to. air conditioning unit. heating unit. Dump. fan.
generator. utility facility. and any other substantiallv similar item. operatin~ in accordance
with its manufacturer's specifications. laree or small. commct9ial or non~mmcrcial.
whether or not a fixture.
EQuivalent A-weitdlted or C-wel2htecl So.ad LeveL Lea..... or Leca.c means the constant
Sound Level that in a JOven situation 81\d time period. conveys the s~e sound eneriv as the
actual time-varYing A-weighted or C-weighted sound. For thc PUI'Q9ses of this e>:minance. a
minimum measurement time oeriod of onc minute shall be used. unless otherwise specified.
Hertz (Hz) is a lHeIStH'emeftt ef the ft:eq\leBey of 981:1:Dd '.\'IV/89. ~aeh lief:k e'il:1als eRe Gyele
per easeful. The heng mags af the HefIRal B\IIB8fl eB:F is bet:\'/8ea 20 }k Hut 20,000 Hz
(eyeles per seeoRd). The higfteF \he ftBfRber sf hems (ftrtMtHeftsy). the higlt.er the piteh. ef
seuBd. is thc unit of measure of th~ fiwuency of sound. One Hertz equals one cycle per
second. The audible freauencv range f9r nonnal human h~qg is between 20 Hertz and
20.000 Hertz. The higher the frequency (measured in Hertz). the meer the pitch of the
sound.
Impulsive Sound means a sound of short duration, usually less than one second, with an
abrupt onset and rapid decay. Examples of sources of impulsive sound include explosions,
drop forge impacts, and the discharge of fireanns.
lDdustrial Zone means BIt. iB.fi8lPial ZEtfttl is any geographic area designated for industrial or
manufacturing activities by the zoning authority having jurisdiction over such area.
IntermitteDt Noise means a noise whose sound pressure level exceeds the aAmbient Reise
SSHll8 lLevel at either regular or irregular intervals.
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Mixed-Use Project means a development or structure characterized bv the use or occupancy
of any georvaphic area. detemtined by reference to tract boundary. desirnated for bott)
residential and non~residentiaI purposes by the zonine authority having iurisdiction over such
area
Page 5 of36
Words underlined Ire added; Words sEsk Shreugh are deleted.
Agenda Item No. 16K3
September 15. 2009
Page 16 of 100
Motor Vebicle means any self-propelled vehicle not operated upon rails or guideway, but
not including any bicycle, motorized scooter, electric personal assistance mobility device, or
moped. Many vehicles are not motor vebicles.
Multifamily DwelliD, means any buildin~ or structure containin.g two or more residences.
each occupied in whole or in part as the temporary or oennanent residence of one or more
natural persons.
Noise means any sound which annoys or disturbs.. 81HRaftS or which causes or tends to cause
an adverse psychological or Dhysiological effect on hwnans.
Noise Level means the sound pressure level as measured In dB(A} unless otherwise
specified. A fBeasuretB:eftt of Baise mast he at leeBt 8'/8 dB abo,,'e the ameieRt aeise level-.
N8BElBelSlIed IN. Rle8:BS MY BI'8fl at slroekire titet is Bet tatally elielBseS with a eeatift\:l8HB
reef, floer aM vlalls eeastAleteti H6iBg rigid stm6Rlfall:n:likHsg materials.
Penon means any individual natural person, public or private corporation, finn, association,
joint venture, partnership, or any other entity whatsoever or any combination of such, jointly
and severally. Person shall include any owner, agent, or employee of a business
establishment or other entity.
Property Boa.clary means the legal haYBdar"f Real ProDerty Line of any real property. 1ft
the ease sf multiple family struetuFeS, the JH'0perty heWlEiary fer JlWl'8Ses ef ~a ONill8aee
shall 'he the halseR}', peNh aT inteRS! Bf the eempl&inent's Wiit.
Pare Tone means any Sound whieh eon he SiBtiRetly Beam 8& a smgle piteh Sf a set efsiagle
pitGhes consistin'J of a sinele frequency. For the purposes of measurement, a ~fure tlone
shall exist if the one-third octave band sound pressure level in the band with the tone exceeds
the arithmetic avera9:e lflll.tte of the sound pressure levels of the two contiguous one-third
octave bands by five dB for center frequencies of 500 Hz and above; _ by eight dB for
Page 6 of 36
Words underlined are added; Words slRIek dtrellgll are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 17 of 100
center frequencies between 160 and 400 Hz.;, and by fifteen ~ dB for center frequencies less
than or equal to 125 Hz.
Real Property LiDe means an imaginary line along the groWld surface, and its vertical plane
extension, which separates the real property owned. rented or leased by one person from that
owned, rented or leased by another person, excluding intrabuilding real property divisions.
Residential ZoDe means a Fesi6eatiel ilea8 is any geographic area designated for single or
Multifamily Dwelling by the zoning authority having jurisdiction over such area.
Road means the entire width between the bOl.U1dary lines of every way or place of whatever
nature when any part thereof is open to public use for vehicular traffic, and every private way
or private place over which the Sheriffs Office has traffic control jurisdiction under a
Section 316.006(3)(b), Florida Statutes, traffic control assignment.
RMS Souad Pressure means the square root of the time averaged square of the sound
pressure. denoted Pnns.
Sheriff's Office means the Collier County Sheriff's Office.
Sound means an oscillation in pressure, stress, particle displacement, particle velocity or
other physical parameter. in a medium with internal forces. The description of sound may
include any characteristic of such sound including duration, intensity and frequency.
SOURd Level means the weiehtcd sound pressure level obtained bv the use of a Sound Level
Meter and ~uency-~ei2hting network. such as A or C. as s,pccified in the latest revision of
the ANSI Standard S 1.4, "Soecification for Sound Level Meters". If the frequency weighting
erIY'loyed is not indicated. the A-weighting shall apply.
Sound Level Meter means an instnnnent used for thf( te measurement of sound pressure
level. A-weighted SOWld Level. or C-weiJdtted Sound Level ef felMlvely e9Rtm.U9\lS and
IU8ashlllKl Raises. -+he Anv Sound Level Meter used to detennine compliance with this
Ordinance shall meet or exceed the requirements for Type 2 &Sound l,Level mMeter in
Palle 7 of36
Words pnder{ined are added; Words struek "lIgA are deleted.
. ,
Agenda Item No. 16K3
September 15, 2009
Page 18 of 1 00
accordance with the latest revision of ANSI &Standard S 1.4. "Specification for Sound Level
Meters," To be valid. readings from a Sound Level Meter shall be prooerlv calibrated Drior
to each set of readings oer the manufacturer's specifications.
Sound Pressure means the instantaneous difference between the actual pressure and the
average or barometric oressure of a ~ven ooint in space. as produced bv sound energy.
Souad Pressure Level means 20 times the base 10 logarithm te the hase 10 of the ratio of
the RMS sound pressure to the reference pressure of 20 micropfascals (20 >' 10 €i N/m 2).
The sound pressure level is denoted Lp or SPL and is expressed in decibels.
Vebicle, which also includes all motor vehicles. means every device in, upon, or by which
any individual or property is or may be transported or drawn upon a litghmadway (excepting
devices used exclusively upon stationary rails or tracks), including but not limited to
automobjJ~, commercial motor vehicle~. truck!, tandem trailer truck~ traile~ semi-trailet],
bus~ motorcycl~ tracto~, fann labor vehicle!, all-terrain vehicle~, two-rider all-terrain
vehicl~ moped~ go-carts, maxi-cube vehicl~ motorized scooter!, motorized bike~ and 6f
bicycl~, whether moving or stationary.
SECTION FIVE: AMENDMENT TO SECTION SIX OF ORDINANCE NO. 90-17, AS
AMENDED
Section Six of Ordinance No. 90-17, as amended, entitled "Maximum Permissible Sound
Levels" is hereby amended to read as follows:
SECTION SIX. MAXIMUM PERMISSffiLE SOUND LEVELS.
A. Classification or use occupancy. For the purposes of defining "use occupancy" in the
Ordinance, the following classifications shall apply.
(I) All premises containing habitually occupied sleeping quarters shall be- considered
residential use.
(2) Premises containing transient commercial sleeping quarters shall be considered
tourist use.
Page 8 of36
Words underlined are added; Words s8'lIek tlveiigll are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 19 of 100
(3) All premises containing businessa where sales, professional. or other commercial use
is legally permitted shall be considered commercial use.
(4) All premises where manufacturing is legally permitted shall be considered
manufacturing use.
(S) Nursing homes. hospitals,' hospices, public or private schools including colleges and
ef universityi.sl. libraries in use, churches in use, and courts in session shall be
considered residential uses.
(6) Legally pennitted use(s) oflhe site or unit shall supersede the zoning classification of
the site or unit and in cases of multiple ~ the most restrictive actual lawfully
permitted use shall supersede and control the zoning classification applicable to that
site or unit.
(7) Each site or unit not otherwise classified as to zoning shall confonn to the
commercial sound-level st~ ~.
B. Maximum Permissible Sound aD" VihF9tieB Levels by Zoning Classification or Use
Occ.paDcy.
(1) No 58'BUt tested ey eEfllipmeat shell vial. any 60tHHl stllftfla.N pr:w;isi9R sf 1his
OrtiiflBBee UBJess the effetliBg seaM ene.as the tlle eKiBt:iRg amlJie&t sel:lfta le\<e'
by at least the (S) dB.A.. fer TaBle 1, af f.he (5) Eleeibels liftv..eigktee fer Table Y, at the
sound affeeted site ar Uftit. The BeBfd, by FeselaaoB(s), after pubie hearing tfteFeeR.
may make, adept, amend and repeal ntles anti. adBtiais&ative 0Pdefs te implemeat.
administer aad ea:f6ree tbl5 artiele. No person shan operate, or cause or suffer to be
operated any source of sound from any use occupancy in such a manner as to create a
~ound lLevel. after applicable character of sound adjustments, if any. which exceeds
the limits set forth for the use occupancy category in Table *1. No Sound tested by a
Sound Level Meter shall be deemed to be in violation of this Ordinance unless the
offendioe Sound exceeds the Sound Level limits in Table T. and also exceeds the then
exiStiDf! Ambient Sound Level by at least five (5) dB(A) or five (5) dB(C)' at the
sound-affected site or unit Sf Table II. fer any uHftimlHB part af my meBSUfemeRt
period. which measlH'emeftt pensEl shall flet he le5S thaB siKty (60) seesREIe. Sounds
that are tested sIteaki shall be measured at or within the Pf9PeFty bean_,. liRe sf the
site ar l:Hlit ftom whioh the se\ttHl eRlanates at my S91:ltlS affeGted site(s) ar HRil(s) that
-:-
Page 9 of36
Words underlined are added; Words s1Nek threllgh are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 20 of 100
the tester deems ta he mast appF8pFiate, rmQ whish 6heuW 1:lStlaRy be at a tHstanee
greater than fifty (50) feet .&em the seuad Bel:lfB8 Ynlees theM is valid AlMaR fer
teeting at R ale set' dist8B68. "Real pfeperty jiBe (ar beURdary)" Hl8&BS an imaglaary
liBe aleBg the gre1:U\d swfaee, and its 'JeFtieal eKteBSieR, wki6h sep8nltes Feal PfepeRy
owned by SBe oy.'fler WID reel pf6pefty e"mied by &nether s';mer, bat dees .Ret
ineluEle iBtfa b\iilwag dhisieas the property boundary of the sound-affected site or
unit from which the complaint originated. In order to file a comnlaint. the
complainant must provide hiSlher name. address and phone nwnber. The test
equipment should normally be at a distance greater than fifty (50) feet from the sound
source unless there is a valid reason for measurinlZ at a closer distance. A "valid
reason" exists where land use. location. zoning. phYSical barriers. and/or acoustical
impediments adversely affect the accuracy of sOWld measurements. Measurements
shaU be made in accordance with the latest revision of ANSI Standard S1.13.
"Measurement of Sound Pressure Levels in Air". Test equipment shall be placed at a
height at least three (3) feet above the ground and at least four and one-half (4 1/2)
feet away from walls, barriers, obstructions and any other sound-reflecting surfaces
that might deswy the validity af the test IJUlllSlIf8BlSRts affect the measured Sound
Leve)(s). Microphone Wwind eB11leP.'l screens &Re1:lId shall be used when appropriate.
If the iRvesugek8R is b&sea tipeR a sempet. the testiAg e~yjpme&t seeald Be
leeatell as slese as pessi9le te lile so1:1BEl affeeted site 91' I::lftit !rem whish die
09Rlplaiftt efiginatetl All times &fe sianaBftl aT ~Jight S&"lmgs as 8I'plieable. The
~(s) to he applied shall ge the sl8ndaAi(&) 8IlB/er tehle(s) that fesuJt in the
lo'.veat 89_ [6'/eI(S) that 'l'ielate this OftIiMBee. BEttHpfBeftt testiBg shall iBeli:l6e
seta'le balHi BRalysis. i\B "eaw/s baBEl" is a IlIRge sf seHftEI ~1:l8Beies Qi.,ise6 iate
RiBe (9) Beta-va lumds t9 eJ(I8filify sounds aeear.aiRg te piteh (ftlMl1:leBey). If the
RieiSUfeEl Eiiftereaee 8efw8eft the appasaIJle ambieRt seHBdB and the alleged V'ielaaHg
9El~ levels is Rve (5) EIB.A~ aT 1:lHweighted deeihels, eaeh aJ1eged '/ieJa~8g seHfta
1'5"1el shall be fedueeEI by twe (2) QB:'~ er llSweiglHeEl deeihels. If the 1BeaN'e8
difTersl.lee is six. (6) ts eight (8) d8.A~ or UWJ.'eigkteEl seeibels, the a.JlegeEl \'ielatiRg
SOOO8 level readings shall be redaeea by efte (1) ElBA er HftWeigkteEl decibel. If sueh
meMureEI EfifIereRee is Rise (9) eF more Ei8.'\ ef IIftVleighteEf EieeiiJels, tfte ~assihly
Page 10 006
Words underlined are added: Words swell: waHgh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 21 of 100
viel&t:iHg soH-lMi readiBg sh:eukl RElt I:.e a6jli&te6 1:.888d 1:lp8R tit. Elifferess8. The
measured Sound ~vels used for comparison with the Table I Sound Level limits
shall be the eq\!ivalcnt A.weilzhted Sound Level and equivalent C-weisdltcd Sound
Level mcssmed oyer a II\iniJllum duration of sh{.tv (60) seconds. after correction for
the applicable A-wei2hted or C-weigh.ted Ambient Sound Level, No person shall
hinder, obstruct, delay, resist, prevent in any way, interfere with, or attempt to
interfere with any authorized person while he or she is in the perfonnance of duties
pursuant to this Ordinance. The Board. by resolutionls). after public hearing thereon.
may make. ado~t. amend and repeal rules and ~inistrative orders to ~lement.
administer and enforce this Ordinance.
TABLE I
ZoainlfUse at the location of Time of Day or Nigh~ Sound Level Limit!
the Sound-affected Site or Unit (4BA)
!!!tAl !BHC
7:00 a.m. to 10:00 p.m. 60 72
Residential
After 10:00 p.m. to 7:00 &;-W a.m. 55 67
7:00 a.m. to 10:00 p.m. 6S 77
Commercial or tourist
After 10:00 p.m. to 7:00 ~ am. 60 72
Manufacturing or industrial At all times 75 87
Agricultura1 At all times 75 87
· All times are the current local standard or davli2ht savines time in effect durin~ the test. as
applicable.
(2) Taele II, helew, applies fa tested S6l:1fl6 at 56l:1Bd affeeted sitesiHfHts. The f8qyifed
fi'.'e deeihel difTeFeBes 8eW.'el!lB the BIIlsiem sEJ\:lftd level Me the effBRBiBg seMe
-- applies fa e'/eTY eetav8 baRd. Table II applies ta seeds emitteEl Rem fIft}' siRgJe
fe&ide8til1:l, fauftst feSieenlial, e8fBfBel'eial, lR4u&trial, lI8EiIef mllAttfaeturiBg
epef6t.ian, aelivil.'y, preases-, "taRt er faeility, er an)' eemeiBatiea(s) thereof. Previaed
the of'fenaing TaBle I sounc:l level far 88tiR8S that 8fe tested exseees tile amhiem
sel:l:na level ~r at least five &Sf\, Sf eJtssetls hy five _iests Yfl'\yeigBted aay of the
Page II of36
Words underlined are added; Words S1Nek thlellp are deJea:d
Agenda Item No. 16K3
September 15, 2009
Page 22 of 100
maximum 8"plieahle S8YBd level Hi eRY eele.ve eaBEl iR Tlihle n, it is a vialakaR of
this Ordin&Bee wfteR &BY sueD SOUHd is eausea af s\lffered by MY Imeh iteR eKempt
aetivity, feeiltty, eR~ty, pllUlt, epeF&tiaR, ar "186MS. f4'lJlyiBg TaBle II, the nighttime
hsHf'5 &fe ellek day &em 10:00 ".m. HBtil 7:00 8.JR. the fellew~~'1g maming ~[eept as
otherwise eJEpfessly speeifted iB this OrdiR8BEie. Ualess pre vi sed et1:ltwwise, ineludiRg
8eetisR 54 93, eaeh SHeR testea seYREI that tests iB exee88 af any sues f:laUllEt affeetoo
site speeifie 81'plieahle resultant "attie, after applyiRg an 8"plieeele site speeine
impulse flElttREl MEller "'life leBe (shametel' ef &EllIOt!) aEljllstmems, shall ee a violatiea
Bf this OrEitBanee. Correction for Ambient Sound Level shall be made as specified in
Table II. below. If the measured difference between the aoplicable Ambient Sound
Level and the alleged violatioJt Sound Level is five (5) dB(A) or five (5) dB(C). each
alle~ed violatinfl sound level shall be reduced by two (2) dB( A} or two (2) dB(C). If
the measured difference is six (6) to eight (8) dB(A) or dB(Cl. the alle3ed violating
Sound Level readin2S shall be reduced bv one (1) da(A) or one (I) da(e). If such
measured difference is nine (9) or more dB(A) or dB(C). the allee:ed violating Sound
Level shall oot be adjusted based upon the difference. Fractional decibels shall be
rounded to the nearest whole decibel.
TABLE II
Muimam Unweighted Se\Hl8 PresS1:lfe Levels (is llItweighted) deBih81s Day ed Night Steady
Sell8El
09.':8 B&Rd ResideBlial Site or T earist ar M8ft\ifaeturing.ln8ttstI'ial, er
Ctmter FFetl. (in Commelllial Site or
Yftij Agriettltut'alSite ar Unit
Hertz. ) ~
~ Day 69 Night' 4 OilY 74 Night @ 84
@ Day 69 Nigltt fJ4 Day 71 Night 69 S4
~ Day (it) Night b 1 Day 71 Night 66 8+
~ Day 62 Night 57 Day 67 Night &2 +?-
m Day S8 Night 53 Day 63 Night 58 +3- -
.J.OOQ Day 53 Night ~8 Day 58 Night 53 a.8
;WOO Day 49 Nigbt 44 Day 54 Night 19 94
4000 Day 46 Night 41 Day 5 J Nigkt 46 6+
Page 12 of36
Words underlined are added; Words slNek .....fI8wga are deleted.
Agenda Item No, 16K3
September 15, 2009
Page 23 of 1 00
f
8009
QBA
I g~ 4:J:~ 371 Doy 4~~ 42 I
The DBA FeW is fer esm,arisoR ,llIpeses anly.
R-efer t8 "Csffeebea fer Charaeter efSeun6" ia Sl.t8SeeU:9a (3)(Cl, 13el&v:.
~
~
TABLE II
Difference b~een aJleftd violatina CorreetioD (to be subtncted ({'om
Sound Leve~. ad Ambient Sound the qJeasured allesrecl viol.tin"
Level- Sound Jevel*\
9 and hiaher 0
6-8 1
5 2
.Sound Levels in dB(A) or dBlC)
(3) Vihf6tiens emaaMieg ieIB e9fftfllereial, ilHklstrilll, 6r HHlftllfaetBfieg (aeilit)'. These
IR oot seand limits. These st_eMs apply threUgfteut lHlieeefl'&l'8ted Callier
Cetiftty. I'.. vie_ea ill 8ft 98fJillatery metieR af solid bedies deeeri6eE1 hy
displaeeEAeftt, ',eleeity or aeeeleHltleR vnth fe_Me te B giyea. referesee ,eiRt. k is
a vialatieB Bf this OrEIiB88ee t9 eperate, pefllHt, er suffer epeI'Bti9B 9f' we sf aBy
iB4Ystrial. manufaetarisg 88E11er El81RJJleRial IIs"/ies, faeility, o,efBliBR, 61 pfBeeGS
thet eBllSBS aBY ".'iBFBkettB whisk He_ die applieaele displaeemem(s) ill meRes
speeHied. iB Table m, "elo'.v, at the Pf8PeFty BalHi6ary of, or withir.. any vihNt:iSR
affeeted site or Uftit in r-esiEleatial sr Kumst f88ideatial Y.5EI 9f ~BiRg BIl)""kere lR
uB:iBeefPeratee Collier Cellftty. Steatly slate yjluatioBs 8fe 89RtiRHSUS Sf" BeElHr ia
dilJ8fete ,\tie. HlBFe ifeEt\leHtly dUlR eM huBdfed (1 (0) imf,Nlses per sHaate.
QiseFete palses that de 8et ex.ceed ORe htmdreEl (100) impalses per miD. must Bet
eause Elispl&eemeBt ill Meess of miee the appliea8le velue(-s) iB Tahle m, "elew.
lmpaet ...ibfati9ft6 OOElI:Jf iB GlsElRlte pulfJes whieh. lH'e separated BY a time mt8f'llBl of at
least eRe (I) miRUte SAd ".vme8 eeeHr Be mere thaa eight (8) times iR any tv:efl:ty feY!'
(24) MHI' pefisd. These '.'i"fatiea r-egulatieft6 de Bet apply to aeti,.jties 8sRdaeted
PUfBUant le, ana 18 the 8KteRt aul:heriilM By, BtMting permit(s) i8&u.ed hy Callier
COl:tflty er by MY other ge"emBlcmlal ageoey that then has 5tlpersediRg aw.hority te
issye the respestive blestiBg peRft'it(s)
TABLE III
Page 13 006
Words underlined are added; Words stNek Ywl:lgh are deleted.
. ...p.-._._......_,........,--,.__.._--~...-..
Agenda Item No, 16K3
September 15, 2009
Page 24 of 100
fteqaeHey of Steaey State ViMation FfeEJl:ltlfK!y of Impaet Vieration
Displaeemeat Cyeles Per SeeeRd, DisplaeeRleftt Cyeles Per 8eeoRa, makes
IBeftes
Less than O.OOQ4 Less dum to G:OOG9
19 fr.reagft 19, ~ 10 tbfeagh 19 O. ()()() 3
20 thFeugk 29 O.()Q()) 20 t:meagft 29 0.0002
39 thr()ugk 39 9:OOQf 30 through 39 (),OOG+
~Q tMeugk ~9 9.000 1 40 thFeagR 49 Q. OOtH
50 llR8 ever 0.0001 SO and O\'ef 0.0001
TIte feUwNiRg stlHldardS shall Be asea, a6 .pJieae1e, ts mell5\H'e vibrabens: ISO 2{)31 1
(MeehllRieal vihfMioR Md saeelc E'/ahuKioo ef ht:HB&fl expOSl:lfe to 'Naale heoy "IiSrabOll);
ANSI S 2.2 1959 (R 1990) (Clllilu:&ti9R sf sheek and 'ffitl'atien piekups); ANSI S 2.al 1989
(1'.81'. 78) (Meellaniea1 H\8tlBtiRg of aeeoleRlftletefs); ANSI S 24.21 1957 (R1989)
(Chafaeteristies of shaek aile vihFfttiaB fBeQ8YftlHleHt~. A three 091HflOBeRt measar.ng ~em
skllll ee USN to measwe '/thfMions. The teetiBg system shaul6 meBSUI'e earth eeme 'l'i.8f8tienB in
d-.ree direetioflB. 88eR of vlhieR eoour at right aagles to the ether tv/e.
C. Correction for cbaraeter of sound.
(1) Stead)' '8Fe teBe. Far eaeh so~d that is Il steady 1'''11'8 tOIle. the appHeable
maximlHfl S8HH6 18\<ellimitB set ferth iR TaBle I 8:84 TaBle II shall he redueeEl by 6'16
aooibals at seuml aft"eetee site&luDits in r~tieatiall:1se ar ooRing.
Pure TODe. For each sound that is a Pure Tone. the Sound Level limits set forth in
Table I shall be reducefj bv five (5) decibels at sound-affected sites/units in residential
use or zoning.
(2) Non-repetitive impulsive sound. For any non-repetitive impulsive sOWld (up to five
(5) impulses an hour), the mwmam s~ound I1evellimits set forth in Table I tJftd
Taele II shall be increased by ten (10) decibels from 7:00 a.m. to 10:00 pm.
D.~ultifamiJy Dwellings. This _seebeR shan aat ap"ly if Ifte set:IftEI affeeteEi siteitmit
and the OOHfefl of the gel:lBd ean be ,.~ed by the same maRagemeRt. iBeluding hy NStrietive
co' lenaRt, leafle, eeBaemiRilHft OOEll:lm8Rt Sf my ether rule or fegWatioa that PW'p8ft9 to be
eflfer(lflable by the ffiaAagemeRt against the ',ialater. wke~er aT Ret enferced. This subsection
applies only to sounds when measured within a multifamily residence unit (occupied in whole or
Page 14 006
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Agenda Item No. 16K3
September 15, 2009
Page 25 of 100
in part as the temporary or pennanent residence of one or more natural persons) in residential,
tourist residential, or commercial use or zoning and the building contains two or more such
dwelling units. It shall be a violation of this Ordinance to emanate any sS.ound, including from
eM,uipment, live performance music, or a,Amplified eS.ound., that, when measured inside of the a
m Multifamily tiDwelling unit in residential or tourist residential use or zoning, completely
enclosed by walls and a roof with all doors an~ windows closed. exceeds 53 dBA anytime
between the daytime hours of 7:00 a.m. to 10:00 p.m., or exceeds 45 dBA anytime between the
nighttime hours of 10:00 p.m. and 7:00 a.m. 'IM8Allg8IB8Bt" iBelvde6 IIHlEle>..'lBer, IllRdlard,
resiaeat Hl88Bger. eeRdemmi\UR llSB8Bia~ea, ar &BY ether suhfM&mially similar iBewitbuH, group
Of eauty that has etHherity te ooBtfeI the reSl'eetive 98&(8). "Eql:lipment" ill6wd.ee, hY:t is Bot
limiteEl te, air eeaditieaing' Ufti.t, heating unit, pump, faft, .."lily faeility, &fill &BY ather
sest_aUy similar item, large or small, eernmereial ar ReR eemmereial. whetft8l' er Rat a
fiXtW8, withiB. Hjae8Bt Ie, 9f 86SgeiBtea 'A<iUt the multifamily 8t1iltIHtg oompFi_eeRve Sf more
fe5ieease aweJliftg lIBits.
E. Mixed-Use Proiects. This subsection shall onlY apply ifboth the sound-affected
site/unit and the source of the sound ITC lQCI.ted within the same Mixed-Use Proiect. In the case
of a Mixed-Use Proiect. and notwithstandina anything to the contrary as may be contained in this
Ordinance. it shall only be a violation of this Ordinance to ~te any SOUDq (including frQm
EquiDment, live performance music. or Amplified Sound) that. when measured from inside of
the sound-affected residential dwelling unit. completelY enclosed by walls and a roof with all
doors and windows closed. exceeds the limits se~ forth in Table III below. No Sound tested by a
Sound Level Meter shall be deemed to be in violation of this subsection or this Ordinance unless
the offendin.: Sound exceeds the SOlllld Level limits in Table ill and also exceeds the then
existinl!. Ambient Sound Level by at least five (5) dB(A) or five (5) dB(e). as applicable to the
respective A or C frequency-weighting ~twork. when measured from inside of the enclosed
sound-affected residential dwellinlz unit. completely enclosed bv walls and a Toof with all doors
and w!!tdows closed. The measured Sound Levels \lsed for comparison wi~ the Table III Sound
Level limits shall be the eQuivalent A-wei2hted Sound Level and equivalent C-weigbted Sound
Level measured over a minimum duration of sixty (60) seconds. after correction for the
apolicable A~weiBbted or C~weighted Ambient Sound Level. For Mixed-Use P,rojects, Table I
Sound Level limits shall only aoo)y to sound-affected residential land uses or zoning located
Page 15 of36
Words UIJdf'rlined are added; Words slfUlJk threug.k are deJeted.
Agenda Item No, 16K3
September 15, 2009
Page 26 of 100
outside of the Mixed-Use Proiect. and shall not aDDlv to residential uses or zoninR: within the
Mixed-Use Project.
TABLE III
ZoainelUse at t'e location of Time of Dav or NIIlt* Sound Level Limits
Sound Affected Site or Unit
dB(A} dB{g
Residential DwellinR: Unit 7 a.m. to 12 p.m. 53 68
After 12 D.m. to 7 a.m. 45 62
· All times are the current local standard or daylight savina times in effect during the test. as
annlicable.
Ji!.F. Construction Sounds.
(1) Power driven construction equipment No person shall operate or permit to be
operated any power driven construction equipment without a muffler or other sound
reduction device that is at a minimum at leest as effective as that recommended by the
manufacturer or provided as original equipment. Construction equipment that must
be operated within 2.500 feet of lMl8f a residentially zoned area a on a 24-hour per day
basis (including but not limited to ~ pumps,well tips, and generators..-.et&.-) shall be
shielded by a barrier to reduce the s.s.ound Level during the haUlS of6:00 p.m. to 7:00
a.m. unless the unshielded 5~ound ILevel is less than 55 ElBA 1Bee&\lr8El at Sf iRSide- of
the elElsest &eElessihle for testiBg 56lmEl aft'eeteEl resideBtially zeBeEl or usee pF9perty
the Sound Level limits stated in Table I.
(2) Regulating Noise from Construction Activity.
a. Any construction activities and site preparation activities including but not
limited to land clearing and grading. excavation and vegetation removal,
authorized or permitted pursuant to the provisions of this Code shall occur
only during the following hours: 6:30 a.m. to 7:00 p.m., Monday through
Saturday. No construction activity or site preparation activity is permitted on
Page 16 of36
Words underlined are added; Words slfttek dueug& are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 27 of 100
Sundays or on the following holidays: New Year's Day, Memorial Day,
Fourth of July. Labor Day. Thanksgiving Day, and Christmas Day.
b. Any person desiring to engage in the aforementioned activities beyond the
stated hours of limitation, based upon cases of Emer2encv.urgeBt neeeseity ar
~peR die interests efpuhlie heakft. safety.. and welfare may apply in writing to
the County Manager or ftis designee for an e~mergency eCoDstmction
pfermit. Such application shall state all facts and circumstances
demonstrating the existence of an ~er~cy and the need for such permit.
Such penuits, if granted, shall be limited to 15 days, but may be renewed for
additional periods if the e~mergency or need therefor continues. Requests for
renewals of said pennit shall be made in writing prior to the expiration of
permits previously issued pursuant to this section. In the issuance of such
permits. the County Manager or ftM designee shall weigh all facts and
circwnstances presented and shall detennine whether the reasons given for the
Emerp:ency arg8ftt fteeeseMy arc valid and reasonable,;;. whether the public
health. safety.. and welfare will be protected or better served by granting the
permit requested~ and whether. should the permit not be granted, the manner
and amount of loss or inconvenience to the applicant presented bv the
Emergency imposes a significant hardship. Upon an affirmative finding of the
foregoing considerations, the County Manager or his designee is authorized to
issue the ~mergency &Construction pfennit. Notice of said permit
application shaH be given to aU property owners adjacent to the subject site.
During such periods of emergency activities and during the normal
constIUction or site preparation hours of 6:30 a.m. to 7:00 p.m., the ~
Levels ooiEl0 le'/els generated by construction or site preparation activities
shall not exceed those permitted under eft. S~. Art. IV this Ordinance.
fJ) Exceptions. Construction activities or site preparalion activities perfonned by the
County. state or federal governments are exempt from the Emer~ency Construction
Permit requirement. tRia pravisi98 provided that Cede Cft. 54. .'\ft. IV such activities
are conducted in comDliance with aoolicable Jaw. including this Ordinance i9
eemplied vl'ith.
Page 17006
Words underlined are added; Words stntek tareugb ue deleted.
Agenda Item No. 16K3
September 15, 2009
Page 28 of 100
G. Permittilll!" for AmDUfied So.ad Drovidial! outdoor eatertalameot.
(1 ) Purpose and apDlicabilltv. In order to aid in monitorine: and control of
Amplified SOWld providing outdoor entertainment for certain public and/or private events. and
provide for enforcement action to address violations of this Ordinance resultine: from outdoor
entertainment activities generatinsz such AmDlified Sound. a one-time. site-specific Amolified
Sound Permit will be required for any commercial business or nonresidential land use (such as.
but not limited to. Dubhe park. amphitheater. fraternal ofe:anization. or church) which conducts
such outdoor entertainment activities within 2.500 feet of any prooerty containinR a residential
use or of any residential zoning district. That distance must be measured from the location of the
actual sound source within the sound-producine. property to the Real Prooertv Line of the sound-
affected residentially zoned or used property. For purposes of this subsection. no Amolified
Sound Permit is required where the Sound source( s) and the Sound-affected residential use Of
zoning are located within the same Mixed-Use Proiect.
(2) Residelltial ...aldes. For the DurpoSCS of this Section. any residential amenity
(includin~ but not limited to. clubhouses. recreation centers. swimming 00018. and D8vilions)
will be considered a residential use and Amolified Sound nom outdoor entertainment emanating
from these locations will not be subject to a requirement for an Amplified SOWld Pennit.
(3) Commercial establishments. In the event that any commercial establishment
utilizing Amplified Sound to provide indoor (that is. occupiable sPace within the buildimz walls)
entertainment for public and/or private events is adjudicated by the Code Enforcement Boar<l,
Soecial Magistrate. or court of conmetent jurisdiction to be in violation of this Ordinance
pursuant to the provisions of Section Six. that land use or commercial establishment will be
considered to have expanded their entertainment outside the confines of the buildin2 walls and
must obtain an AmDlified Sound Permit. subiect to an of the provisions of this Section.
(4) ComDliaace with Sound Level limits. All activities ~ovemed by the Amplified
Sound Permit reauirements must be conducted in accordance with the provisions of Section 6.B
lMaximum Permissible Sound Levels by Zoning Classification or Use OccuDancv).
Page 18 of36
Words underlined are added; Words sm.Qk lhFe",gh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 29 of 100
(5) ADDlicadoD for AmDliliecl Saud Permit. Prior 10 issuanc:e of the nermit. an
application must be comnleted which includes the foll9Wim! information:
a. The name. address and telephone number of the apjlJiC8.tlt;
b. The name. adQress and telC3Jhone number of the business or location at which
the event will ~ur;
c. Ids:mtificatjon of the tYpe of busineq or other nonrcsidcntialland use (e.g.
restaurant. Dieht club. public park. church):
d. A sketch and description 9f the area in which the event will occur on the
pr~v (C.R.. patio. outdoor diniI)g ~ea. ooolside);
e. It. narrative description of anv factors which mi~t mitigate the impact of
close oroximity oftl!e activity to adiacent residential use or zoping ;
f. A description of the pron9Sed entertainment (c. g.. live band. recorded music.
disc iockey. theater performanc;e);
g. Frequency of occwrence (monthly. weekly, dailv) or ~timatcd number of
events per calendar Yea{ with dates to be determined;
h. Proposed holl(S of activity.
(6) Issuance or denial.
a. Issuance. Upon receipt of an Amplified Sound oc:mrit applicatiog.. the County
Manager or designee will verify that the physical location of the proposed
Amolified Sound source(s) is within 2.500 feet of any residential zoning
district or land use (as opposed to the Real Property Line of tht( propC{ly QD
which the Sound-producIDS event will occur). This distance will be measured
according to a survey. if provided by th.c ip\)licant. or by the Official Zoning
Map. aerial 1'hotosuaohy. or other reliable and accurate means. Uoon
completion of such verification. the County Manager or designee shall issue
an Amplified Sound Permit.
b. Denial. The only basis for denial of an Amplified Sound Permit IlDplication
shall be prior adjudication fQr violation of this Ordinance relating to the same
Amplified SOWld activity.
(7) Terms of approvaL Once ~ted. tIle "emUt will remain valid. so long as there
is no chanlle in use on the subject propertY and no substantive change to the information
Page 19 of36
Words upderlined are added; Words strllek live. are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 30 of 100
provided on the apolication. Change of ownership or cham~e of business will not invalidate the
~it so long as the use remains the same: however. the nennit may be revoked in accordance
with the provisions of subsection 0.10. The pennit and related Sound-producing activitv may be
reviewed periodically to ensure compliance with this Ordinance.
(8) Fee for permit. A nonrefundable fee for the permit covering costs associated
with administration and processing will be assessed in accordance with the Fee Schedule
aooroved bv the Board of County Commissioners and in effect at the time of aoo]ication. and
will be payable at time of llDDlication.
(9) Enforcement. All Anmlified Sound activities aoproved in coni unction with the
oormit must be conducted in accordance with the provisions of Section 6.8 (Maximum
Permissible Sound Levels bv Zonin~ Classification or Use Occupancy).
(10) Viol.tioDS. Any violations of the orovisions of the oermit shaH be enforced in
accordance with the provisions of Section Ten of this Ordinance. In the event of two (2}
adjudications of violation of this Section within any 12-month period bv the Code Enforcement
Board. Special Magistrate. or cow! of competent jurisdiction. the Amplified Sound Permit shall
be revoked bv the County Manager or designee for one vear from the date of the second
adiudication. and the permitted activity must cease immediately. unless otherwise ordered.
Durin2 said period of revocation. the Person having: held the revoked pennit shall be ineJiltible to
apply for an annual oennit issued pursuant to Section Six. Appeal of the revocation of the Dennit
must be taken in accordance with Section Nine of this Ordinance.
P. ABBRIII permit fer Uve peFfer..Bee IIlllsie _dler amplified 581lad lit e81RIBeFeialeF
tSllnst eeBlIlleFeittl .!!M sites. SeRB. te ."Net aUeBti&B te a perieFmaBe~ slIew, sale 8F
displayv
(I) Exeept as 8therwis8 eKslRf'teEl hy tftis OrdiBanee, He per90R shall eBass, al~e'N or
sHffer live perfef1B8flee HUtsie or ampBHeEl sollAEls te emanate ffam er tbrel:1gft a
ROfleRelesed gx area ef 8ft)' husiBess eatabHshmeat epetl fer eate:ftainmeBt p~9Ses
wiliHft a eelBfHereial or ~urist lI8e ace\lpaney 8r zelle befet:e ObtaiRiRg oom tfte
CeHRty 8:ft aftRllal pemtit ill aeeer4Bnee with SY86eetieR (3), Belew. No anaual pefmit
shall be iSIi1:le6 for live perfeHBaft6e lRl:lsie or amplified 50YftO(S) t8 emanate aem MY
site er unit theft ift Filal8enhBl use ef zaRing, aJ.theagh speeial &'!ents at FesideRtial
Page 200f36
Words IInderlined are added; Words sa:uek tftIlMlg.h are dele led.
Agenda Item No. 16K3
September 15, 2009
Page 31 of 100
sites may he eligiele fer eemmtlRity eveat pemH.l9 av1Benzed HI this ()pdtftlHl88 the
IMHi DevelepIReBt Cese.
(2) Live perfefmllJ)ee IBHtiie ar amplified se_ eM&B8aag &em Of threagR a
ReB.eBeleseEI ~ ar88 shell Bet seeed tlte applieHle daytime 18\'6ls oet-v,,"8eR the
ke1lf8 sf 9:00 8.1ft. 819;00 p.m., ailS shall net &K-eeed tit. applieahle BigMlime aeise
[er.'ale heW,rees the M1B1I ef HUn p.m. B:Rd g:S9 a.Hl. wfteR m88S1:lfed. aut sf 009fS at
8f" iMi.de die Pl8pfJfty 99HRB8l)' sf 81ft.. sites 9l' Wli~ m fesidl!lBli&l use er zeBiftg.
These pRJvisiaRs are BllDjeet te the exemptieB in sahSlil6aaB D, Have (Rui:ltifamily
dVlelliftg \:lflitB \:lAdei' eff.aye 89fl1r'81efmanagemeat).
(3) Prier te 1lllfI.\:la! poanit iss\t8nee, aD appliealiea shall he filM eeRtainiRg aU ef the
fella"i.'iag iafsfmatisR:
a. N8IBEl and. mBiliRg aEler.. sf a"lieaBt~
It.. Nemes BIle &Ekkes&" ilJft8l'ReBe n\lmhef8 sflkLlntsi:a8ss ar e&t8hlishmeftt fmm
~ where 1i''''8 perfermallee lMSie BRdJer amplified. 98llfl6 'Will emanate
ti'om suek R8BeftelaseEI area;
G. Deseriptiea efth8 8f'PlieEI for BeReRelesed area aftd die 8\'.8) fer whiek live
peRSfIHllee musie Of amplified. se_ '".1411 em&D8le fre91 the lIIlflHftUy
peuuitteEl RMleBeleseEl area: (e.g., siBBer h9tU', lteppy hew, daytime, eveBiag
Sf '..wekeREi 8IMeRBilUfleBt, eta.).
d. DeseriDe all heltf8 sariBg MY 2-4 hew peried Sw1ag 'l.4\ieh SHah live
perfefm8:hee lftH6ie sr llIBplified 981:l9El will eB'lBBate.
e. Cales_ year for tile Imulal permit D8iBg applied fer.
(4) Fee fer 8....1 peFfllit. i'.. $49.00 fee shall ),8 paifl hy die applieaRt at tile bme sf
8PfJlieUieR fer aD lIftfluaJ permit far eests 1SSgeiated "lith aElmiBi&iNBeft asd
enfereemeBt. 18888 anRy.al peHRitG t1Hl &em JamHll'Y 1 tftFeHgh Deeemeer J 1. There
shell he 1l81n~fBij8R eftke 8Jlrlieatieft fee. These &ftftHaI peRt"ltt fees may he ehangeti
&em me te time 8Y ANJelllh9R(s) erlbe BeaM efCeHftty Celfll1HssiOftef5.
(5) Vielaa9B ef BBDlIal permit fer Ii';e rerf0flBBIlee RlY6ie lIf1.d. amplified se\HlEl. St.thjeet
te the Rlllltifamily dweUiRg ~t "lIIlder lBan&gemeBt eKetflrtieftS" iB IHIBS8eaOR D,
aheYe, &BY peRl9ll whe, 9r entity that. eauses or sHews to he eaased 8ftftltBJly
parmiMeEllive perfeHRBRse RUI5je er ftr..BHlIlly pennitled amplified S9\U1d te efftftfIate
Page 21 of36
Words IlI1derlioed are added; Words RNlOk llvellgh are deleted.
. , ... ..---.. - --~ .--. .- - .. .._._----_.~... -. . -
Agenda Item No. 16K3
September 15, 2009
Page 32 of 100
G. Alltla8rilHd 8eh88~ P.,.k 8' Playgr8aBd Aelivities. NadHBg iR this OrdiBaaee is
iRteaEled te regulate aDY 56UB8S 61'BeBMiftg ffem any 8Ht:ReflZN playpeHB6 ar sehee) SJ'arting
&\'88., eRteFtai.ameBt eveRt, ar lKltheriZeQ eveRt at a ,,"lie ey private ,,)aYgFeYlJd er S{l.Aool
~deEl die saHllds theweffem eeRfefIR te the a\ldlerimRElR gFBIltetlhy the playgreUBs's or the
selteel's lB8Ragemeat te eeREl\l6t that eVeRt.
H. .R8eew8Y FH4U. .ad Aen'tiaes 8t tile IlIHIIekalee RegieRa' ll.iFpeFt. 'I1B1l
OftiiBaBee sBeII apply ta the eK:isting eRe eighth mile dNg Stflp at the lnu8elWee R'glsRel
AiffJElrt aOO shaH eentmHe te apply tRef8le BBless 8REl ttRtiI ddfaumt Reise levels RiB)' be
sefa....JMEt hy !R88:flt ee the i6UewiBg pSf IRittiBg "1e8886e6. 'This ()ftiiBaBee dees Bet eslahlisli
aRY seHftd level stanEifH:dB that are te ~Iy te any fi.lt:&Fe A!eiBg feeiliUes 9f &ea.-lities hereafter
lesates at dult aUpart. If aGditieRaJ FBeeway fueilities are aHtheAlle6 at that ~eft, the oollftd
16"/el &laBE1af4s filet shall apply therete shall be detaraxiRed ,,)' BREI duriftg the permitting
pF8ee6SElB that a1KheriM saell futare fatUities BReYer aeti.litiee. The Been! shall .have fiBBI
approval autherity af the applieele seuaEl 18\.els after pvhlie hearing 188f88B.. These 11&''': seed
'S".'el Bhmdards shall theR be lIpt'lied eElH8lly te the GB8 eigkth mile amg stifil'. TRese Rew seood
lewel 9laBEiBfds em ex:eeed, 9l::lt sllall Ret he sHieter than, tHe mWRi\Hl! sews levels Rew
sl'eeifieEi in this <::>FEIiBsJu:e, and sh611 be det4.......:fte6 by and e\:EriRg the p~~tfing l'~eeBses that
8l:itftsrize sHeD fiHul:e {aeilities anEller aeti'lities. SueR Bt_ares sfiall be Eleseri"e6 in terms af A
..yeighted testing HB8eF Teele r &fIEI by eeWl"/e bed stBlt8erd5 uRaer TaiJle II, &:BEl th..e shall be no
time averaging sf 8ftY ef these seHft6s. New:ithsf8BEliag llBY ether theft mRsting enfeF8ement
6ltematives, these st&8tJllftI6, enee eM88iisBetI, shall be eM9RleElhle BY applying this ORltBanee.
Page 22 of 36
Words underlined are added; Words SRllk &}-.Nlllgft are deleted.
. r
Agenda Item No. 16K3
September 15, 2009
Page 33 of 100
I H. Otller Be.... Preserve4. Ne pre-visi&1l ee ws Or4iBlIMe is iBt_ed te dist\tfb the
Rgltt aftke CeaRty er af ~ pEeR ar eMit}' te pmwe IlB'Y ether remedy fer tfte aeatemem of Il
atftS&Bee, ar my allier relRe&y that may theft he availaBle HAder law Sf .ty. This ORiiRaaee
de" 8et apply .& tile eJfteM the speaifie regalatieR is thE I'feempted hy HeBda or feEieNllaw,
Nle 9f reguleall.
SECTION SIX:
AMENDMENT TO SECTION SEVEN OF ORDINANCE NO. 90-17,
AS AMENDED
Section Seven of Ordinance No. 90-17, as amended, entitled "Exceptions" is hereby
amended to read as follows:
SECTION SEVEN. EXCEPTIONS EXEMPTIONS.
The following uses and activities shall be pennitted under this Ordinance and are exemDt
from the Sound Level limits set forth in subsection 6.8:
A. Construction operations for which building permits have been issued, or CQnstruction
operations not requiring pennits due to ownership of the project by an agency of government;
providing all equipment is operated in accord with the manufacturers' specifications and with aU
standard equipment, manufacturers' mufflers and noise reducing equipment in use and in proper
operating condition, and is operated in compliance with Ssubsecqon &tJi6.F hereof.
B. Noises of safety signals, warning devices, and emergency pressure relief valves, &Bd hells
&BEl ehimee eE eltHftlftes.
C. Noises resulting {Tom reasonable use of bells lY}d chimes. su"ph as those from churches.
D.G,- Noises resulting from any authorized emergency vehicle when responding to an
emergency call or acting in time of e~mergency.
B.P" Noises resulting from Emergency Work 85 deiiBed ill 8eeh8RFhre.
F.& Noises resulting from equipment or operations incidental to the emergency repair or
restotmion of services such as public utilities or other e,Bmergency activities in the public
interest.
G.F: Any other &Noise resulting from activities of a temporary duration permitted by law and
for which e lieeBse, peRfilt ar ~:aiYer therefore permiSSion has been granted by the County
Manager or designee in accordance with SeetieRS Se';en., Nine, aRB Tea this Ordinance.
Page 23 of 36
Words underlined are added; Words swelt tI".I9IIglt are deleted
Agenda Item No. 16K3
September 15, 2009
Page 34 of 100
H.G Noises made by persons having obtained a permit to use the streets_
L.1oh All ftNoisee coming from the nonnal operations of aircraft (not including scale model
aircraft), includina: Noise from mosauito foglring aircraft. and from the normal operations of
airports within the COWlty.
I. SelWl ffttm vehieles wheB 9ft a fE)8fI shall Bet be .fegaJated by Code BRfefeemeBt
offieem, iHsludiBg BaYDa Ram seH'ftEl pfeaueiRg 6&'/iees \-r..ftElR. OR a EeH.
J. Motor vehicles used on public roadwayS. as defined in F.S. ~ 316.293(2)(al. (b). and (e).
K. Ordinary noise created by the normal operation of railways.
L. Operation of .Equipment or conduct of activities nonnal to residential or agricultural
conununities such as lawn care, soil cultivation, domestic power tools, lawn mowers,
maintenance of trees, hedges, gardens, refuse collection, agricultural equipment, saws and
tractors, street sweepers, mosquito fogging. tree trimming and limb chipping and other normal
community operations, between the hours of7:00 a.m. to 10:00 p.m.
M. EIceDtioD for enstiDe: operatioDI. An exceotion to the Sound Level limits contained in
Section Six. Table ~ shall be permitted where a commercial use or other non-residential use had
in prior vears established its place of business in an area away from a residential use. and through
subsequent develOJ)ment or rezoning. now finds itself adioinine: a Residential Zone. In these
instances. the Sound Level limits in Table I oertainins to the previously existine zonine: or use
cate20rv shall apply. and the cormnercia1 use or other non-residential use shall not be required to
meet those Sound Level limits pertaining to residential zonine: or use. Ce.pli8Ru PFsvisisBS.
I!\ those inBtanees where an iBEltl5try er s9mtBefeial easiness heEl prier tf) FeBfU&I'y 23, J 999,
eGtaeli91te8 its plaee ee hll5is888 iR an 8fea reme-;ed &em feSidemial Z8Be IB'HI SY9'*ltleBtly
tr.!9HgB enef9aeBmeat efl'e8idential develepmeat or~, eeeame iRllReEliately &EijaeeRt ta a
r~ideBtial zelle, saeh huaiBeS8 &Mil Be FeEI~ tEl eemply vdtb all s~811:Bd lLevel limits.
NotwitftstaBamg tfte Baeve, faeilities aBEt pl'eee6ses ex.istiftg at tfte Basiness site as of JllIl\:HU)' 1,
2001 sftBll be dBemed to be in Ain eemplianee with this Oftlinanse pf8vide6 tJte l'e5peOOve
ksiRe~ eemplies ,\lith the felloVliag:
(1) An eRgiBeer with eJlpm:aS8 in tits subjeet matter 8AlQ of ae0YBtiElal eagiaeeAng &Bd
lie8ft5ed to provide SlieR serviees i8 fJeriEla, is HltaiBeEl by .ee baMess tEl eendaet,
and dees E.l00000t, a theceagh aGotlstieal Malysis of the felevant Roise predtleiB.g
opemtioAS arID" 8\l8iness; ami
Page 24 of36
Words underlined are added; Words slNek thre~h are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 35 of 100
(2) A tilll_Ie (fer 88mmeRe8lBeftt _ 991B,leH8R af tM eftgtMer'S pf9J'6sed 1i8BB6
redv.eri8R plaa ~ te be \HUieJ.Uk.i!a. by the busiMss) is p'f8lHlfttM ta tfte CawRy's
IMeetel' af Cede WereemeRt, wJie is herNY autMftzed Ie aseel't8iB ('with sr wi1fteBt
as&ilMBee ef an aeellStieal 8ftgiaeeriB.g film reatineEl by tH CSliBty) wketller t:he
PFep8sed reme6ielmeesY.res QRd timetahle appear It) he as:eEluate aJMl f886BBllble. If
8PPFe'/eS te b8 FeM&R8ble BY the 9ireeter. the Dirf>eter shBllmenitar ~ appro'ied
pllB aM timetaBle te een.fi1m tiIRely eempleHeR sf the pIe; md
(3) 8M. U:p88 ~ eRgiaeeriBg analysis, the ba&iBees, &y 8JEPeodfBg MaBey and/or talaag
ether ABleQialme86UfeS, mekes 8 gee4 faitS affeR te attempt Ie eeHlJlly fUlly with.
the applie8Ble Hl(S[ilfNtBi Reise levels as mee5ttR:lEl at represeBtatF/. f8eideBtial Reise
atfeste6 sites 61K11er Mite, and the rem8sial fRlN5HFeS hM! the offending Reise levels
teward OOlftpliaB.e8 with the maxiRulIR seQlls leo:els, IWl &:ft. eempleti0B of the
pl_'s selHMl redtletie8 D'le86U:Fe6. the 69tWl 18':818 de Bet saeed BB}' applieaele
BlIIKimHm 8e\Hld level speeified ift d!is OnIiBBBee BY Iftefe thE twe _i88Is; aDd
(4) 1ft tile prefessi9f16l jli6gmeat ef the 9usine5S' retaifteEl ae6lHllieal eftgme8f)
9I'eRfli.tHre ef ad6iRenal melley or ether Fe88t1fee6. Sf talEiBg ether feRleElial
me98UfeS te attempt te Mt1ler Muse tfie levels af Iln)' lHl8B ge1:lD8e is ulikely It)
Nsult ift &11)' lRellfti~ fuAfler reStteaeB ill MY ef tfle se1:HWllevel tfte8 eHl8lHltmg
Rem the hY8iaeGs.
(5) C8lRpli8Bee "llith the &have few stlBparagmphs shall OOneI1l9iyely estaBlisR that if tile
CeUD.ty sfte1:1ld ~ aBy fw1ller &pendimre of Jlt8ft8'Y 81 Yie IBkiRg of Bfty e~er
remedial JB8a&\ftS IlJiIl thereBy impese &B UI't4\le eeeaemie huMeB IIP88 that
InllMess. Uaaue eeellEHBie bardeR iBel1:Hles IB9Betary 1e86e8 pmjeeieEI te resttk Hem
feElWriIlg the 9wHB868 .e eemply maN fidly "vith the applieable JBIOOIRl:UB 69D
levels, ioolYdiBg. htlt Rot Reeessarily limited te, sessatieB ar any _:ustieR ef tlte
lMl!ftReGS' heHfS ef opeF8tmg dariBg my 24 hew period.
N. The reasonable use of the unamplified human voice.
O. Noise resulting from regular maintenance testing of standby emer~ency pow~
generators. provided that any sound attenuation provided by the mcplufacturcr is retained. ~d
provided that the noise occurs between the hours of 9:00 a.m. and 5:00 p.Jl!., Mondav through
Saturday. excluding holidays stated in subsection 6.F.2.a hereof. The frequency of maintenance
Page 25 of36
Words underlined are added; WOlds stNek threugll are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 36 of 100
testing and the duration of each test shall be no more frequent and not longer in duration than
thirty (30) minutes once a week.
P. Autllorized SchooL Park or P1atJrOIUld Adivities. Sounds emanarin2 from any
authorized plaY2IOund or school soortin3 event entertainment event or authorized event at a
public or tiTivate school. Park. or play~und. provided the sounds therefrom conform to the
official authorization granted to conduct that event.
.Q Racewav Facilities and Activities at the Immokalee Re2iODaJ Aimort This
Ordinance shall apply to the existing one-ei2hth mile drag ship at the Immokalee Regional
Aimort and shall continue to aoply thereto unless and until different noise levels may be
detennined bv means of the following pennittine: processes. This Ordinance does not establish
any Sound Level standards that are to aDl'ly to any future facine: facilities or activities hereafter
located at the aiq>ort. If additional raceway facilities are authorized at that airport. the Sound
Level standards that shall antlly thereto shall be determined bv and during the permitting
processes that authorize such future facilities and/or activities. The Board shalt have final
annroval authority of the aPJ'licablc Sound Levels after public hearing thereon. Those new
Sound Level standards shall then be aoolied eaually to the one-eiRhth mile drag strip. Those
new Sound Level standards can exceed. but shall not be stricter than. the Sound Level limits now
specified in this Ordinance. and shall be determined bv and dwin.l! the permitting processes that
authorize such future facilities and/or activities. Such standards shall be described in terms of A-
weighted and C~weiid1ted Sound Level testing under Table I. and there shall be no time
averamg of any of those sounds. Notwithstanding. any other then existing enforcement
alternatives. those standards. once established. shall be enforceable bv applying this Ordinance.
SECfION SEVEN: AMENDMENT TO SECTION EIGHT OF ORDINANCE NO. 90-17,
AS AMENDED
Section Eight of Ordinance No. 90-17, as amended, entitled "Community Event Permits"
is hercd>,y amended to read as follows;
SECTION EIGHT. COMMUNITY EVENT PERMITS.
The County Land Development Code contains the requirement for and Droces& related to
Community Event Permits.
Page 26 of 36
Words underlined are added; Words s1nIsk th:-sltgh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 37 of 100
.\pp1iSeBeB& :fer a eeHllRHBity eveRt p6IHlit fer relief frem the RlMim\IIR allowaBle aeise level
limits designated i8 this Seetien or 8eetie8 Tea may Be made ill writiag te the CeHBty
.\6miBistfater or his ElesigRee. .\ eeRtffttmKy &'IeDt permit may B9t h8 aelaiBea BY the helder sf
8ft amHIe:l peRBit fer &BY &VSt ~ pttRRt8Rt te the llIlBtiaI p..A....4t. A:B.Y e9lB1ftwHty eveRt
permit gFfIBte8 hy the Ceyaty f\timini9tl'ater 8ef8YllEler RHlst he !Bade ia -.vritiag Sftd &haY eeBtain
aU eeBmtieftS &peR whieli said eeJllffulrUty eVeRt permit shall 88 effeebYe. The COllDty
AdmiBistfatar, or his designee, m&y i19S1:Ie Ii eeRlBllHlity e\'&Bt peRnit lIBaer tke felleMeg
e98diti.9Its~
1. TI1e Ce\lRty AdmiRistFater may preseRhe B:By rease_Ie esaEiitisll8 sr TfMt\lifemems
as he aeems RM)e5Sary Ie miR:iHt:ti!e IICl-/eIM effeee llp9ft tile e81BH.~{y ar tHe
s1lI'I91H1dieg Reigfth9ffieed, iRelasmg YSS sf RUlfilef6, ssreeDa or edter s6WHl
att8ftH8ting deviees.
2. CemmHf'lity eVeRt peRRits iS8l:led 88f8YBder Ill&)" be jRlflted .fer lI6Y pH18Iu!ld
eeRllRWlity eVeRt as defined R8I'8ia.
3. C8ft1sumity WeBt permits isstie6 hereYB8er for eBteRaiBmeBt eveeiB~ iBelHEling
'p8N888. eRteFtai&f88Bt evests etBer dHm at parks. plBygtetlRM eT seheel preperty;
eaRS., in slf'eet er.t88ts, BfeWeNs displays, ana S1:lh&t881ialJy similar &Vents may he
gI'iIftteEt silBjeet te Ute felle'lliRg eeRsiti&BS:
8. The &V8flt RHlst Be 8p8H te the pYhlie (acJmjssieR may 98 eharged);
B. The l'sffuit ean 8ltt:heme the eRtefteinment 8"/eBt te :NR6tiOO fer tt:p fa 16 h0Hf's ia
a 2. heUl'ss}'; ana
EI. The eBteftaimnent &":eBt itself lIlay ameueft enly 8e~'e8B lite heUfS ef 8;99 am.
aAd midnight.
4. CSlBsumlty event POlRUts fef ether tHan enteftaitHBeRt 81!eRts may Be iSS\led l:IRder
the felle'::ing eoBtiitiORs:
a. If the 88Bmulai$y eveat felates te the eperaiisB of a tfaEle er I:tusiness hat it; f10t
eea4il6te6 iR the eniiBary ee\tfS8 of that REte er basiRessj
9. If the applieanf is an iadiviEktal, Ule 6eHlRumity e'/8Bt 8eea 88t "late te the
ep8f8tieR of II tFade 8f hHSia6s5 aHa the EleB.lmumty ",,'e.nt is Bet an eRIiRary eYeRf
in the affaifS of the applieaat;
Page 27 of36
Words underljned are added; Words slnlsk threwga are deleted.
Agenda Item No. 16K3
-September 15, 2009
Page 38 of 100
e. If the eol'ftRll:l1lity eveat is a fe6tJffiBg e\'eRt Bm tlees Het Fee1:H" Hiere afteR the
four times eeeh ealeA6&r year, &Rd
8. If ~e BeRlBlWlity 8":SRt does Rot relate to the epemueR ef a tRlEia ar I:NSiRes5 and
t:he 8'"/88t is eeHlJlafihle Mdt die Bfllinary aetivities af the Reighberheed iB whieh
t:he eefRmUl1:ity eveat is te oeoor.
5, &eept iB emergeney simatiefi5, as detefRliBed by the Cot:Hity .\&Hni98'Btar, af as
Rlsa=ieted ift 88~efl NiBe, a oeHlJDUDity e..-8ftt pem1it may Be is&\le6 for aBly fellf
heYfS bet\veeR 7;00 a.m. and 11:00 p.m, eft weekdays for 8"/eBtS ether than
eRter1aimnent.
6. ./'.. eemmwity eVeRt Jlenflit may he iSSllOO fer He JeRger thm seveft 86ftsee\ltive aays.
7. No eeRHHHDity event l'8RBit Riay he is&aea to aHew the use of &By laudspeaker or
soWld &lBplifying deviee on the exterior ef an)' httilsmg v.<hieh at MY time eKeeees
the applieable sound level limits in Table I heFeef eKeef)t these l.t5e8 fer 8fHeI'geney
WftBgB IlflG eK:eept 8fI etBefwis8 provided by SeekeR 54 93 oCtile Cede sf Laws and
OAliRallG8S herein.
SECI'ION EIGHT: AMENDMENT TO SECTION NINE OF ORDINANCE NO. 90-17,
AS AMENDED
Section Nine of Ordinance No. 90-17, as amended, entitled "Waivers" is hereby deleted:
SECTION NINE. W ANERS.
AppoeatiOBB for a wlIher for relief from the .me:xinHlm alle...:ahle Beise level liHlits er
tHBe eE day Rlstrietiens sesigBateEi iB this <:>miRaRee shaU be m&Ele in \'lriaBg to the Bellfti of
C0Wlty COmmiSSiOBet'S, when ~e aGtivity SFe8.tiBg sueh Raise is leGatee 'llithffi the
lHliBeerporated area of the CeHflty. ~"'.ny wwyer granted by the Be6Ri of COlmty CemmiasienefS
fHust he in writiRg and shall eeBtalR all eeHditiem5 l:l.p9R '.vhieh &aid .Naiver sllan be effeetlve.
The 8ear6 efCel:lAty CemmissieRel's ma.y gftHlt the <Naiver apaR G9BSidef8t:iOB ertha.request at B
regularly seheEltlled puo1ie hellfiBg ami l::I:REler the felJewing eOHsiti.ens:
1. The appJieftftt has Ret reGei'leEi a 'l,'aming or eitatieH kom the Code ERfereeml:!lat
Depar'.mflRt whioh is eaffefttIy peREliRg fer vielatieR of ftRBti8.1 ~mHt.
Page 28 of 36
Words underlined are added; Words SlRJsk tJuey.ga are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 39 of 1 00
<'-
2. The 8eard ee CSUftty Cemmi8ei9BeFS~ ia gmsBBg .. waber, may pNSefibe ey
l'easeBaele eea&iti6Rs Sf feEl1:Hf8JMBt:& it deems fleeessary te mimMe adveRts effee\s
lII'eB the 8eRHDtlBity Sf the StH"AlIHMIiRg JUligkBerlleed.
3. WEW/lR ffem Hlf13[imUBt aUs"...'tlhle neise levelli.mits er aBle ee day P86trietiens may
he 8f8B.teEi fer Reises 6N8t:ed \Vil:hin aft i_strial 9f esmmereial zelie By ep8f&tieR8
'NAish were iR eKillteBee eft tile efiee.Dl'." daY af the 0rdiB19G8 fmm whieh this
OP8tBaRee was deri"led.
4. 'NaiveR may ee issued fer 00 laRger thaa 39 days, FeBeWahle by fHr.her applieatiOR
t8 die 9&erQ of CeYRty Cemmi!lSieftef6.
SECTION NINE: AMENDMENT TO SECfION TEN OF ORDINANCE NO. 90-17, AS
AMENDED, AND RELOCATION OF SECTION TEN TO
SECTION NINE
Section Ten of Ordinance No. 90-17, as amended, entitled "Right to Appeal" is hereby
amended to read as follows:
SECl10N ~. RIGHT TO APPEAL.
Any person aggrieved by the denial of his application for a permit. or revocation of an
ex:istiWl permif. by the COWlty t\dmHHs&eter Manager, or Itis designee. may appeal such denial
. or revocation to the Board of County Commissioners. Such appeals shall be taken within 30
days from the date of denial or revocatiQn by filing with the County A8minislf8tar Manager a
written notice specifying the gTOWlds thereof. Due public notice of the hearing on the appeal
shall be given.
SEcnON TEN: AMENDMENT TO SECTION ELEVEN OF ORDINANCE NO, 90-17,
AS AMENDED, AND RELOCATION OF SECI'ION ELEVEN TO
SECTION TEN
-
Section Eleven of Ordinance No. 90-17, as amended, entitled "Violation; Penalties;
Enforcement" is hereby amended to read as foJlows:
SECTION TENELEYEN. V10LATIONS~ PENALTIES; ENFORCEMENT.
Page 29 of 36
Words underlined are added; Words siNek thrflwgh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 40 of 100
A. Any person violating any of the provisions of this Ordinance shall, upon adiudication of a
violation by the Code Enforcement Board. Special Magistrate. or court of competent jurisdiction.
e9B~Gti9R thereef, be subject to a fine not exceeding $500.00... 9f imp8S88IReRt Bet eJEeeeeHtg ~
days, er bad!.. as follows:
First Violation 5100.00 fine
Second Violation $250.00 fine
Third or more Violation 5500.00 fine
Each incident of violation day suek '1ialatien. is eelRlftilted aT p~milteQ te eefttlftl:le shall
constitute a separate offense and shall be punishable as such hereunder. Any person who
continues to violate the provisions of this Ordinance after having been previously cited, may be
subject to further citations, iaehtdiBg the Bey upon vlRieh the erigi.."1&l mtatien. was iSSue8.
B. Upon 69R'Iietien. of adiudication by the Code Enforcement Board. $pecial Magistrate. or
court of competent jurisdiction of three violation~ of this Ordinance tmee times for the same
offense within a 12-month period, when the offending SYeh sSound is created by the same
sSound emitter, the noise creating equipment may be confiscated by the Code Enforcement
Board. Special Ma2istrate. or court following the mest fl'eeRt 0E1R9J4etiea third adjudication of
violation. until such time as the offender can satisfy the Code Enforcement Board. Soecial
Magistrate. or court that he or she is prepared to and., in fact, will operate said equipment within
the limits of this Ordinance. Further adiudications of violation thereafter shall re91ilt iR the be
grounds for pennanent confiscation by the Code Enforcement Board. Special Mafristrate. or
court; llpel'l sash een'liebeR.
C. The OWDer of property, a tenant, a Jessee, a manager, employee, an overseer, an agent,
corporation or any other person or persons entitled to lawfully possess or who claims lawful
possession of such property involved at a particular time shall each be responsible for
compliance with this Ordinance and each may be punished for violation of this Ordinance.
D. _It shall not be a lawful defense to assert that some other person caused suciJ sound but
each lawful possessor or claimant of the premises shall be: responsible for operating or
maintaining such premises in compliance with this Ordinance and the offending act shall be
punishable whether or not the person actually causing such soWld is also punished.
Page 300f36
Words underlined are added; Words SfNek dwYgh are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 41 of 100
E. The County Sheriff or his designee or any other authorized enforcement agency is
empowered to investigate any situation where a persoll; business or other establishment is
alleged to be in violation of this Ordinance. If the Sheriff or fti8 designee or other authorized
enforcement agent encounters a circumstance which reasonably indicates that a person is in
violation of this Ordinance, or where the Sheriff 'or hie designee or other authorized enforcement
agent responds to complaints regarding aArnplified sSound or nonamplified music from a
ReBeBelaslMl any area for which an eAnnual Sound ,~cnnit has been issued, he may administer a
s9HBEIlevel pfeSSYle test with a sSound l~vel mMeter and ascertain whether a violation of this
Ordinance has occurred. lithe result of the StMlft4ler:el pMS&\If8 test indicates a violation of this
Ordinance, the Sheriff or hie designee or other authorized enforcement agent is authorized to
demand that the violative sound cease, ~to issue a citation or notice to appear, er te meet, m
the person producing, causing to be produced. or allowing to be produced the &Amplified Reise
Sound.
F. In addition to the foregoing provisions, the following enforcement procedures shall apply
where an annual pennit is required pursuant to Section Six er SeetieB Si 93 efthe Caee efLIl"Mi
aDd Ort:iiBlHlees.
(1) Upon the first violation of the annual permit the County Code Enforcement
Department or Sheriff's ~ Elep8l1meHt may issue a verbal or written warning, if
one has not been previously issued by another authorized enforcement agency, and
upon the second violation or any subsequent violations within a 24-hour period a
written citation may be issued. Any violations for which a written citation has been
issued may be referred to the County Code Enforcement Board. Special Ma~strate.
or to a court of competent jwisdiction. in accordance with the procedures set forth in
COWlty Ordinance No. 2Q07-44. the "Consolidated COfje Enforcement Ordinance".
(2) If cited to the Code Enforcement Board or Special Magistrate. the Code Enforcement
Board or S~ial Magistrate shall conduct a hearing and provide for and enforce such
penalties as provided by law.
(3) In addition to the authority of the Code Enforcement Board or Special Magistrate to
impose fines and other penalties, the person, business establishment or other entity
causing or allowing to be caused the violative sound may be subject to civil andL-or
Page 31 006
Words underlined are added; Words swell tS>ell8h are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 42 of 100
criminal penalties as provided by this Ordinance upon conviction by a court of
competent jurisdiction.
(~) UplHl the 9Ele&M enf9feeRlellt aetieR NfaffOO to lbe Cede Befef68lBeBt BeeN aT to 8.
ee\Ut ef e9Hlpete8t jwisdletiea ?l'ithia MY 12 meRtR peried, the BBB\HlI JJ8fIl1it shall
be ~'aked hy the CefBRUmit}' DevelsJlRl8Rt Sen168S ,A"Eiministmter fer eRe ye8f
ReHl the dele af Mal BeaM hy the Cede ERfel'eelHeBt Belllll.: af hy a eeurt ef
sefftpeteRt jW'iadietioB fttuHng 1M pemeR Hi v4elatieft ef this OfEliB&Bee. DuriHg said
peried ef fe1'/eEl&tl9n, the peRl9B 8lWiRg 8ehl tfie w;ekee p~l.ljt shall he iBeligiele to
appl)' fer an aT.Hoal p8ftBit iss\le8 pHfs1!8ftt 18 8eetisR Six ar Beeasa $4 93 af the
Cede efLav.rs &Rd Oniilumees.
(5) .A.BY pElf6Sfl aggrie\'e8 hy tke le'/eeatieR sf the 8OBH8:l permit hy the CelDllNlftity
Devel9J'HleBt AElminisfFMer may 8I'J'e!H S\leh Fe".<eeati88 te the BeaM ef CeHBty
CommiSst9ReF5, 8BRsisteRt ",~th BeefieR Nine sethil; OfdiRaRoo.
G. StatutOry Vebicle Related Noise ViolatioDs. Motor vehicle noise prohibited bv Section
316.272. F.S, (excessive or unusual noise from motor vehicle exhaust syStem). or bv Section
316.293. F.S. (maximum motor vehicle decibel levels measured bv testing equipmentl. or any
vehicle noise prohibited by an): other Florida Statute. shall be enforceable by the Sberifrs
Office. and shall not be enforceable bv Code Enforcement officers.
H. Noise that violates this Ordinance emitted from a vehicle (includinj,! motor vehicle) when
on a road. or emitted from a noise producing device related to a vehicle when on a road. shall be
enforceable by the Sheriff's Office. and shall not be enforceable bY Code Enforcement officers.
These violations. when off road. can be enforced bv Code Enforcement officers or bv the
Sheriff's Office. including without noise testin, bv applying Section Twelve.
I. Other Remedies Preserved. Nothing in this Ordinance shaB prohibit the Sheriffs
Office from chargini persons responsible for acts which affect the Deace and auiet of persons
who may witness them for breach of the peace or disorderly conduct under Florida Statutes. In
additi~n. no provision of this Ordinance is intended to disturb the right of the COWlty or of any
person or entity to pursue any other remedy for the abatement of a nuisance, or any other remedy
that may then be available under law or equity. This Ordinance does not apply to the extent the
specific regulation is theft preempted by Florida or federal law, rule er regulatieR.
Page 32 of 36
Words underlined are added; Words stfttek dtr8llgft are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 43 of 100
SECTION ELEVEN:
AMENDMENT TO SECTION TmRTEEN OF ORDINANCE
NO. 90.17, AS AMENDED
Section Thirteen of Ordinance No. 90-17. as amended. entitled ''Use of Loudspeakers" is
hereby amended to read as follows:
SECfION TIlIRTEEN. Use of Loudspeakers.
Loudspeakers or public address systems used to produce sound signals from any source
fer either adVertiSiRg ar sifter ptI:fPeses may not be operated on or over public property and
public right-of-way, unless an annual permit has been issued by the County AdmiRistfater
Manager or his designee. An annual Dennit fee af IS.OO shall be paid for such permit. The
permit may be canceled fOT noncompliance with this Ordinance. Such systems may be used
Monday through Saturday during daylight hours only.
SEcrION TWELVE:
AMENDMENT TO NEW SECTION OF ORDINANCE NO.
90-17, AS AMENDED
The section of Ordinance No. 90-17, as amended, entitled "Noise Violations That Do Not
Require Use of Testing Equipment'" (added as a new Section 54-93 of the Code of Laws and
Ordinances bv Ordinance No. 07~61) is hereby amended to read as follows:
Noise Violations That Do Not Require Use of Testing Equipment.
A. This ~ection, which shall be narrowly construed, applies notwithstanding other
provisions in this Ordinance relating to Sound measured by Sound Level MetersseHndlReise
measwiBg (deeihel te8tiag) ~~iJlrft8Rt.
B. This sSection applies only to the felle..vittg noise affected sites classified as residential
use in Section Six.
':"'(1) Re&ideRtial dwelliftg er unit: These ittelUEle single family r_deHse, duplan, N.,
8f'B11IBe8l, d'NeUiRg eeademiBitlHl l:Iftit, maillle heme. :BeHS8 tmiler, Reuse heat er tFaRaie8t
dwelJiRg ~ait iBelaeiftg Retel, metel, 8m or simil.. NSitiefttial Bse estaelisl-.HIeRt that is Rot
eJCeRtptee &em this OrdiBaB08 by 8\1bsaetieB S4 92(d) (ifiYhifamily &vlelliRg& lIREIer the 9ftIR8
mllR8gem8Rt);
Page 33 of36
Words underlined are added; Words slfllek threB~ are deleted.
Agenda Item No. 16K3
September 15. 2009
Page 44 of 100
(2) Hospital;
(3) N9fMRg heme;
(4) IilHvy in use;
(S1 l\lhlie er ,wIBle seheel, iaelaeiBg eellege B:Bd lIBivemity.
(€i) CeHrt ia seBsloa;
(7) Hespiee; er
(8) Clt1lf6h ift lise.
C. Taking into account the time of day, day of the week, and the unmeasured Ambient Noise
at ~ MY MeYe listed noise affected site, the foHowing ftNoisee are a violation of this Ordinance
without use of testing equipment provided such ftNoise, based upon observation bv listening
heariftg by an enforcement officer and a complainant at the noise affected site, is clearly:
(I) Unreasonably loud, raucous or jarring: (is clearly annoying or clearly disturbing
to any individual of normal sensibilities at such site); or
(2) A nuisance: (without reasonable justification is unreasonably interfering with the
peace and quiet of any individual of normal sensibilities at such site).
D. This Section applies when either (or both) above-listed RNoise is emitted from a:
(I) Domesticated animal, including dog, bird or fowl, which violations pursuant to
this Section shall be enforced only by Domestic Animal Services or by the Sheriff's Office when
testing equipment is not used. These noises can be enforced by Code Enforcement officers when
noise testing equipment is used.
(2) Vehicle (including motor vehicle) Reise applies to includin2 the total volume of
noise from the vehicle or from any part thercofincluding motor/engine, if any~ 8ntl e9ft&ideAag
whether This includes all vehicles for which any part of the vehicle's original manufacturer's
exhaust system, if 8ft)', is modified or removed, €II Bee8:H58 tile yehisJe ar &RY vehiele miMed
SOOM pmaHtiing de,,'ieE! is oat af repair and all vehicles that are out of rcoair and any vehicle
related sound producing device that is out of repair. These noises are enforceable bv the
Sheri~s Office. but shall not be enforceabloo by Code Enforcement officers unless exeept whee
the location of the source of such noise is off road.
(3) Sound Producing Device. These devices include every device designed to
produce, reproduce or amplify sound, whether or not related to a vehicle, such as horn, siren,
whistle. bell, musical instrument, radio, TV, phonograph. speaker, loudspeaker, microphone, or
Page 34 of 36
Words UJlderlined are added; Words struek 1hrSlIg4 are deleted.
Agenda Item No. 16K3
September 15,2009
Page 45 of 100
other substantially similar device, including when a horn. siren, whistle. bell or similar device is
sounded longer than necessary. These noises are enforceable by the Sheriff's Office, but shall
not be enforccablee by Code Enforcement officers unless exeept 'J!.'lum the sound producing
device is off road.
(4) Exceptions; Lawful Business, Profession or Occupation. This 'Section does not
apply to any lawful business, profession, or occupation provided any such above-listed class of
&Noise is typically emitted from that type of business. profession or occupation, and at that hour
of the day and day of the week. This sSection applies if such aNoise is either not typical for
such type business, profession or occupation. or is typical but is emitted at a time other then the
nonnal hours of operation of that specific business. profession or occupation, at that location.
SECTION THIRTEEN: CONFLICT AND SEVERABILITY.
In the event this Ordinance conflicts with any other ordinance of Collier County or other
applicable law. the more restrictive shall apply. [f any phrase or portion of this Ordinance is held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION FOURTEEN: INCLUSION IN CODE OF LAWS AND ORDINANCES.
The provisions of this Ordinance shall become and be made a part of the Code of Laws
and Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or
re~lettered to accomplish such, and the word "ordinance" may be changed to "section", "article",
or any other appropriate word.
SECTION F1FrEEN:
EFFECTIVE DATE.
This Ordinance shall be effective upon filing with the Department of State.
PASSED AND nUL Y ADOPTED by the Board of COW1ty Commissioners of Collier
County, FIorida this Jh day of l":Ee.~200g.
Page 35 of 36
Words underline_4 are added; Words strHek lllrettlk are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 46 of 100
ATIES1\', tJ::t'1/),t - . BOARD OF COUNTY COMMISSIONERS
DWI ..'E;'B~Clerk COLLIERCOTORIDA
, ... ',~..
~:. '< "~k BY.~ _
. !;.' . st.... ~. .:~~~lerk TOMHENNING,C~IRMAN
. a~~".."'~.
Approv '.I.tBl fbim
and] al sufficiency:
.
This ordinance filed with the
Sec~ of S~ Office the
~doyof " ~
ond octcftuwledgement of that
~~I~~~. t'-\doy
?(,k. ).-c.-.
DooI>utr c.",
Page 36 of36
Words underlined are added; Words siNek tftreBgB are deleted.
Agenda Item No. 16K3
September 15, 2009
Page 47 of 100
STATE OF FLORIDA)
COUNTY OF COLLIER)
I, DWIGHT E. BROCK, Clerk of Courts in and for the
Twentieth Judicial Circuit, Collier County, Florida, do
hereby certify that the foregoing is a true and correct
copy of:
ORDINANCE 2008-68
Which was adopted by the Board of County Commissioners
on the 16th day of December, 2008, during Regular Session.
WITNESS my hand and the official seal of the Board of
County Commissioners of Collier County, Florida, this 31st
day of December, 2008.
DWIGHT E. BROCK
Clerk of Courts ~~.~lerk
Ex-officio to :soarg" of'J,.
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county comm1~s1o~~~S ~
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Agenda Item No. 16K3
September 15, 2009
Page 48 of 100
EXHIBIT B
July 30,2009 Letter from Susan Istenes, on behalf of Collier County, informing Plaintiff
that its Sound Amplification Permit has been revoked and staff is withholding any
decision regarding the issuance of the permit.
Cof"~ Cmmty
- ~......
Community DewIopment &
Environmental Servires DMsion
Zoning & Land Development Review
Agenda Item No. 16K3
September 15, 2009
Page 49 of 100
.<
-...l
July 34), 2009
Mr. Derek Woods
2430 V..-wlt.... Ro.I. S... 101-119
NIpIes. FL 34109
RE: Amplified Soaad PwaUt. __ July 1 S. 2009; IUIJjact busiJaII. SIIDYio TOIIYdots Sport Page
~__ CcntII', loaded It 15215 Cotlier Boa.IewId, unit ~. 301 to lOSt Naples,
F1oricIa. Folio..... 66261900022, Sectim 27. TowBdp41 SmIdt, ltIap 26 East.
DeIr Mr. Woods:
\Jpf.m .... review of )'1M' penait IIppJicstioa it is bolioWId tIIIt 1IIe ArnpJified SoaIIIcl Permit
issued few SIeyie T~'. SporD JI-.. PebbI...d6 CenWr ... iIIUId ..-bl.1y by staff
oa July IS. 2009..... ......".. ....1'CIt'OUd_of~- Staft'ia -~ac8)' da:isioo
....... the "'1*11 ~....... SouDd Permit "... eM ~ of die site
moclifieIdoaI allpllCifilld iD the Dndopor AtP--widl DAD Dewsktfllf7-. ~
which ~ thowD on SDPA-2GOI-AR-J4002 _. diftlQod by the CoI_ c.o.Q Bc.m of
COI8Ity (;oMmi--....
It is further 1lOtaI. similar __ .. pHriousIy ~ by die &.rd at COUIIly 0-...... DO
~ 25, 2007 IDd . .-.dIe puIIIio ~i8& .. ...... ..... die ,..1IIlIItCld ,.-.it. Iu.
olthis writ:iBa it is ...-;...... ~ or"" aff.... ....1Ibi1ily to ... dwl abowI t'lIIlIft..-vJ
pcI'DIit ~ 00 die .....'. ........, 2S"- decilica f....~;... ...... 1M 8bifity Co
obbda the....... pIIIIIit. . dIiI dIM., lIhoaId be .....10.... BomI ot'Ccady eo.~..,i.leen.
If you ....1Iave lIlY questioas. ,... do Bat bas.. It>> 00IIIId me.
SiIanIy.
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Susa M. ........ AICP. Direc:a'
D5..-b..d ofZoains" LaIMI ~t Rmow
ec: Leo ~ Deputy Couaty u_....
Jc.ph s..u.iII, NI--=-...... COOS
Jc8"K.IIaUw. eou.ty Attamey
DUne F..... Dindor. Code~
Bill Lonmz, Dindur. ~u.... s.w.,_....'IIl Sen.
c....1~ file
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2800 North Horsahoe Drive . NBPIeS, Florida 341 04 . 239-252-2400 . FBI 239-64~968 . www.cOIiergov.net
Agenda Item No. 16K3
September 15, 2009
Page 50 of 100
EXHIBIT C
Relevant minutes from the September 25,2007 Collier County Board of Commissioner's
minutes discussing Plaintiff's then-pending application for a Sound Amplification Permit
Agenda Item No. 16K3
September 15, 2009
Septembef~, 51667DO
TRANSCRIPT OF THE MEETING OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, September 25,2007
LET IT BE REMEMBERED, that the Board of County
Commissioners, in and for the County of Collier, and also acting as
the Board of Zoning Appeals and as the governing board( s) of such
special district as has been created according to law and having
conducted business herein, met on this date at 9:00 a.m., in
REGULAR SESSION in Building "F" of the Government Complex,
East Naples, Florida, with the following members present:
CHAIRMAN: Jim Coletta
Tom Henning
Frank Halas
Fred W. Coyle
Donna Fiala
ALSO PRESENT:
Jim Mudd, County Manager
David Weigel, County Attorney
Crystal Kinzel, Office of the Clerk of Court
Page 1
Agenda Item No. 16K3
September 15, 2009
P-a~,5~,.Qf 100
September 25, L.UU I
our staff.
CHAIRMAN COLEITA: You had to get that in. Okay, fine.
We have a time certain, Mr. Mudd.
Item #lOD
CONSIDERATION OF AN AMPLIFIED MUSIC PERMIT FOR A
COMMERCIAL ESTABLISHMENT KNOWN AS STEVIE
TOMATO'S SPORTSPAGE RESTAURANT AND SPORTS GRILL
LOCA TED AT THE SOUTHWEST CORNER OF COUNTY
ROAD 951 AND IMMOKALEE ROAD AND CONSIDERATION
FOR A LAND DEVELOPMENT CODE REQUIREMENT FOR
ANNUAL TEMPORARY USE PERMITS FOR OUTDOOR
SERVING AREAS -MOTION TO DENY AND STAFF GIVEN
DIRECTION FOR CHANGES TO LDC - APPROVED
MR. MUDD: Yes, sir, and it's 100, and it's consideration of an
amplified music permit for a commercial establishment known as
Stevie Tomato's Sports Page Restaurant and Sports Grill located at the
southwest corner of Collier Road 951 -- or excuse me -- County Road
951 and Immokalee Road, and consideration for a Land Development
Code requirement for annual temporary use permits for outdoor
.
serVIng areas.
And Ms. Michelle Arnold, your Director of Code Enforcement,
will present.
MS. ARNOLD: For the record, Michelle Arnold, Code
Enforcement Director. This item is being brought to you because of
the sensitivity within the neighbors and this particular business.
We had received an AIMS issue some time ago regarding the
inadequate sound barrier located at the shopping center described as
Stevie Tomato's, or actually Pebblebrook PUD. It's located at 951 and
I mmokaJee Road, the southwest comer.
Page 65
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Agenda Item No. 16K3
September 15, 2009
September 15,92obo/ 100
The complaints were that the noise emanating from the Stevie
Tomato Restaurant and Sports Grill were bothersome to the adjacent
neighborhood. We do have a site plan that identifies, you know, the
approximate location of the shopping center in relation to the
residential. .
The shopping center is located at the -- yes. The shopping center
is at that comer piece within that PUD right there, and the surrounding
residents that are concerned with the noise emanating from the Stevie
Tomato's bar is just along this portion right here.
My staffhas been working with the Sheriffs Office, along with
the neighbors and the business owner -~ that's probably a better, more'
zoomed-in picture -- to try to resolve the issues and the concerns.
Part of the efforts that we've done was we've had several
meetings with all the parties involved. We've also coordinated the
preparation of a noise analysis for that area. The noise study was paid
for by the parties involved. The county had nothing to do with that
portion of it, but coordinated the efforts to get that done.
We had a meeting with all the parties, and the consultant that
prepared the report provided several different recommendations as to
what could probably mitigate the concerns of the neighbors. The
report attached to your executive summary. It's attachment B.
The commercial establishment agreed to do one of the
alternatives. And let me back up a little bit. The noise consultant
went out and actually made measurements, but the report looked at a
worst-case scenario, not necessarily what occurred while she was out
there testing, but what could -- possibly the noise could be at its
highest, and then her recommendations were a result of that
worst-case scenario in terms of what would mitigate the noise.
The consultants agreed to erect a wall, or at the time of the
meeting they agreed to erect an eight-foot wall no closer than -- no
further than five feet away from the development or the establishment,
and they have submitted permits for a wall. The wall, however, is not
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Agenda Item No. 16K3
September 15, 2009
Page 54 of 100
September 25, 2007
an eight-foot wall. It's a four-foot wall with shutters that have
acoustical noise prevention. And we did check with the consultant,
and the consultant said that that is equivalent to the eight-foot wall that
you recommended in the study.
As I said, the permit has been iSsued. The wall and the acoustical
shutters have not been erected. The only thing that is awaiting that
commencement of construction is the issuance of this amplified music
permit. And the county's holding off issuing that permit until the
actual construction occurs because we don't want the impacts on the
neighbors to be there without the assurance that the wall is actually
going to be there.
In addition to this, the county's also looking at amending the
Land Development Code to address outdoor entertainment areas or
establishments with the outdoor seating areas. That proposed
amendment has been vetted through your Planning Commission and
will be brought before you.
The actual attachment that was included with this executive
summary has been modified slightly again from the Planning
Commission, but this is something that you will be seeing and
considering at your Land Development Code Amendment Meeting.
And also, you all have authorized staff to look at amending the land--
the noise ordinance to make sure that it's meeting our needs, so this is
going to be coming back to you at a future date as well.
But the item that is before you today is a consideration of
whether or not to issue an amplified noise permit for the Stevie
Tomato establishment.
That's all I have.
CHAIRMAN COLETTA: We have three commissioners that
have some questions to ask. We'll start with Commissioner Fiala and
go to Commissioner Coyle, then Commissioner Halas.
COMMISSIONER FIALA: Thank you. So what we do today
actually sets a precedent, doesn't it, for the rest of the county?
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Agenda Item No. 16K3
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Page 55 of 1 00
Septernber25,2007
MS. ARNOLD: Well, our noise ordinance allows for the
issuance of amplified noise permits for any establishments that are --
that will have amplified noise or amplified sound. My department
issues those permits annually. Thus far this year we've issued, I
believe it's 46 for the year 2007.
COMMISSIONER FIALA: For amplified music?
MS. ARNOLD: Yes.
COMMISSIONER FIALA: Okay. In here it says until the wall
is constructed, and I had a question marked down here, is it an
eight-foot wall. You just answer that had question, but I think that -- I
think that definitely we -- the rest of the -- all that code mentions is an
eight- foot wall, as I read through it. And so I think we should adhere
to the code and make sure that they have an eight-foot wall, too, and
the acoustical things to top it off.
MS. ARNOLD: Well, this is -- this is outside our building code.
This is -- the eight-foot waII that was recommended was as a result of
that noise study that was done.
COMMISSIONER FIALA: That's what I was reading, okay.
MS. ARNOLD: Right.
COMMISSIONER FIALA: I've got this thing all marked up. A
few other things. It was noted that no restrictions on the hours of
operation are in this PUD, so they can ampliiy music anytime and all
the time?
MS. ARNOLD: There are no restrictions to the operations of
that establishment, correct, or any in that PUD.
COMMISSIONER FIALA: I think we need to adjust that
somewhat. And I also noted in here that -- about transfers, that a
permit can be transferred to any person. Doesn't say within that
establishment. It says to any person, and it will be administratively
approved. So if somebody has an establishment and they go out of
business but they have this permit, they can transfer it to somebody
embedded right in somebody's neighborhood for amplified music
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Agenda Item No. 16K3
September 15, 2009
Page 56 of 100
September 25,2007
according to this.
MS. ARNOLD: Well, that -- yeah. And what you're referring to
is the proposed amendment for outdoor seating area. That's something
that's not in effect right now.
COMMISSIONER FIALA: I see.
MS. ARNOLD: But the annual music permit is for that
particular site and location, and it's not transferable.
COMMISSIONER FIALA: And it's not -- I was just going to
say we should add that, but it's not transferable. And when you say
administratively issued one-time permit. One time doesn't mean for
one-time use, it means forever, right? One-time permit. They don't
have to come back again?
MS. ARNOLD: Right.
COMMISSIONER FIALA: And they don't have to come back
each year?
MS. ARNOLD: And again, that's referring to the proposal that is
really not something that you're considering today.
COMMISSIONER FIALA: Yes, but it is, because it's in -- it's in
the documents here in our proposal and says -- it says that one time
only. I just want to add that if it's one time only, I think they ought to
be coming back once a year just to check in. Ifwe -- if we're having a
lot of trouble with them, then we need to readdress whether they can
keep that perm it or not.
One thing about putting some I imits and strongholds on it is
people have a tendency to obey the laws and care about their
neighbors a little bit more when there's some teeth into the thing.
Let me see. I'll let somebody else do this for now. I've got a lot
more questions, but I've asked enough for my turn.
CHAIRMAN COLETTA: Yeah. Of course we'll come back to
you.
Commissioner Coyle?
COMMISSIONER COYLE: I would just like to pursue this
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Agenda Item No. 16K3
September 15, 2009
Page 57 of 100
September 25, 2007
statement that it should be noted that no restrictions on hours of
operation or restrictions on outdoor seating has been incorporated in
this pun.
Does that mean there is nothing in our code at all which deals
with either of these issues, outdoor seating and amplified music?
MS. ARNOLD: There is in the noise ordinance that language
dealing with amplified music.
COMMISSIONER COYLE: Okay.
MS. ARNOLD: Yes. But there's--
COMMISSIONER COYLE: But is it done from the standpoint
of -- weB, what I'm trying to get at is, if you approve a business
establishment to conduct business within a building, does that give the
business establishment the unilateral right to move outside the
building to conduct their business, or must they -- must they seek
approval from someone?
MS. ARNOLD: I think it would apply -- I think. I'm going to
have to refer this to Susan. But I think it would depend upon the
zoning ordinance or the PUD document what would be permissible.
COMMISSIONER COYLE: Okay. And PUD documents vary,
so if it's in the PUD document it means we don't have a uniform code
for it; is that right, Susan?
MS. ISTENES: Yes. Susan Istenes, for the record. Y ou're
correct, Commissioner, all the PUDs are different. In this case, just
for your information, outdoor seating is typically considered an
accessory use to a restaurant, and they would have to -- if they added
additional seats after the fact, they would have to have adequate
parking to address those additional seats. Normally that's not a
problem in a shopping center type of situation.
COMMISSIONER COYLE: But do they have the right to
proceed with the accessory use without getting approval?
MS. ISTENES: Approval would come in the form of
administrative approval through a Site Development Plan or Site
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Agenda Item No. 16K3
September 15, 2009
Page 58 of 100
September 25, 2007
Development Plan amendment.
COMMISSIONER COYLE: Okay.
MS. ISTENES: Yes. It would not require a public hearing.
COMMISSIONER COYLE: Okay.
MS. ISTENES: Approval in this case. It's not going to be --
obviously if a PUD prohibited outdoor seating or had hours of
operation and they wanted to exceed that or do something different,
then that would obviously require a public hearing.
COMMISSIONER COYLE: Well, there are two issues here.
Number one is the outdoor seating or expansion of the services
provided by the restaurant and sports grill, and then there is the
amplified music aspect.
Letts take first just the outdoor seating and the expansion of
services beyond the confines of the building itself. Is there anything
in the code which requires administrative approval or any other kind
of approval before people can do that?
MS. ISTENES: That would be reflected on their Site
Development Plan, so yes.
COMMISSIONER COYLE: Okay. But if it's -- if it's not part of
the PUD and the Site Development Plan, it means they can do it
without seeking approval, or they would need to seek approval to do it
if it's not part of the PUD and on the Site Development Plan?
MS. ISTENES: In the case of restaurants normally that's just
considered an accessory use. So what youtll see in a PUD document is
you'll have your list of permitted uses, and then generally under that
list, you'll have a list of accessory uses and you'll typically see very
typical language that says accessory uses that are commonly
associated with those uses permitted by right in the district.
COMMISSIONER COYLE: And do those accessory uses
require any approval from government whatsoever?
MS. ISTENES: Just administrative.
COMMISSIONER COYLE: Just administrative.
Page 71
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Agenda Item No. 16K3
September 15, 2009
Page 59 of 100
September 25, 2007
MS. ISTENES: Correct.
COMMISSIONER COYLE: And what are the guidelines for
administrative approval of an accessory use? Is it compatibility and
that sort of thing?
MS. ISTENES: In this case -- well, yeah. There's -- first, well,
let me segregate. First you're going to have the site plan requirements.
So, for example, provided they can meet all the accessibility, fire
safety, parking, like I mentioned, those would have -- requirements
would have to be satisfied, and then you're going to have somewhat of
an administrative decision to be made as to whether or not that's a
typical accessory use. And in the case of restaurants, that's just been
the standard appl ication of that provision.
COMMISSIONER COYLE: Okay. Now, we move to amplified
music approval or permits. They are or are not required to get a
separate permit for outdoor entertainment or amplified music?
MS. ARNOLD: Yes, they would.
COMMISSIONER COYLE: Okay, okay.
MS. ARNOLD: According to the noise ordinance, and that
applies countywide.
COMMISSIONER COYLE: Now, is the person who conducted
the noise study here?
MS. ARNOLD: No, unfortunately she's not.
COMMISSIONER COYLE: Okay. Is there anyone here who
can describe how the one-minute average noise level was calculated
and how was the five-minute average level of noise calculated?
MS. ARNOLD: I'm going to refer to my expert here. Gary
Dantini with my office probably can explain to you exactly what
happened.
COMMISSIONER COYLE: Okay.
MR. DANTINI: Good morning. How are you all? For the
record, Gary Dantini, Collier County Code Enforcement Supervisor. I
am a county certified noise specialist.
Page 72
Agenda Item No. 16K3
September 15. 2009
Page 60 of 100
September 25, 2007
And the way that the readings are done, this particular reading
was done, is the one-minute and the five-minute are exactly the same,
it's just the duration of the time frame. And what it does is takes the
highs and the lows through that whole spectrum and averages them
out as far as what the -- what the noise was at the end of those
different intervals.
They also take the peaks and the valleys of those noise readings
and -- so that you have a complete record of what the highest and what
the lowest were because there's also background noise that happens.
And so they take the average of all the readings through that
one-minute or five-minute period of time, so they're exactly the same.
COMMISSIONER COYLE: Now -- and the conclusion of the
noise study was that, if I remember correctly, is that the nighttime
noise in the residences where complaints had been issued was no
greater than what might be expected within a house during the evening
hours anyway?
MR. DANTINI: During that particular reading at that time,
exactly right. The readings were quite low at that time.
COMMISSIONER COYLE: Now, that equates to a level of
sound that is two people talking quietly Of, perhaps, whispering?
MR. DANTINI: Normal conversation is around 50 decibels, 50.
COMMISSIONER COYLE: Yes. But at nighttime in the
bedroom, the levels they measured were generally those that could be
expected if people were talking in low tones in the house, in the
bedroom?
MR. DANTINl: That's correct.
COMMISSIONER COYLE: Okay. Now, here's the fallacy of
the noise readings. And I've had a lot of experience with this when
we've been monitoring noise of the Naples Community Airport for the
past 10 or 15 years.
When people average noise events, they don't take into
consideration the peak noise, and it only takes a peak noise
Page 73
Agenda Item No. 16K3
September 15, 2009
Page 61 of 100
September 25, 2007
periodically. Maybe once an hour there's a peak noise. There are
people applauding when somebody makes a touch down while they're
watching television, and a peak noise once an hour, if averaged over
the entire period of time, would be almost insignificant, but it would
be very disturbing to the people who heard it every hour while they're
trying to sleep.
So first of all, I do not accept the conclusions of this noise study
for that reason and for other reasons.
The building of a wall will not reduce that noise to the extent that
it needs to be reduced. I live six blocks from the Third Avenue South
shopping district in Naples and they have entertainment there, and I
can tell you that six blocks of buildings and trees and hedges and
everything else does nothing to attenuate that sound. And I don't think
an acoustic wall of any kind -.. and I don't think this is an acoustic wall
that we're looking at here ..- will do that either.
So my feeling is that, number one, when people apply for a
business permit for a building, then they're applying for the right to do
business in that building, not to expand outside and to do something
else.
If you want to do that, then you have to come in for another
permit. If it's not on our books, we ought to be putting it on our
books. And with respect to sound, amplified sound permits, I do not
support exterior amplified sound anywhere near a residential area, and
I don't believe that there is any reasonable way to mitigate that
problem.
So I just want to let you know where I am on this process. That
are a lot of establishments in Collier County that have caused a lot of
concerns for residents, and we need to get a handle on it and we need
to get some codes established that will permit us to control it.
MR. DANTINI: And generally -.. I'm sorry.
CHAIRMAN COLETTA: Oh, ('m sorry, sir. Go ahead and
make your comment.
Page 74
Agenda Item No. 16K3
September 15, 2009
Page 62 of 100
September 25, 2007
MR. DANTINI: I was just going to say that generally what
creates the biggest problem as far as the noise is the base. The base
will pretty much go through just about anything.
COMMISSIONER COYLE: Oh, I understand that.
MR. DANTIN!: And once they turn down the base, we seem to
eliminate a majority of all our complaints on them, but it's the base
that really affects the quality of life as far as the residents.
CHAIRMAN COLETTA: Yeah. Ifwe can keep moving this
right along. We still have seven speakers too go.
Commissioner Halas?
COMMISSIONER HALAS: Yes, Gary, this individual that was
the consultant and reading the information that was provided in our
agenda here, I pretty much took that that this person was looking at
basically the speech intelligibility range, which is somewhere around
200Hz to 5,OOOHz? Okay? That's basically where people speak. And
obviously you can address that with acoustics, whether it's drapery or
whatever else, some kind of -- something that you can shelter that
particular sound in that particular range.
But when we get into the base area, you and I know, both, that
we've gone out at night and taken measurements, and when we give
these permits for amplified music, we end up whereby we have this
base that you talked about, that sits there and just thumps away. And
you can take all sorts of sound measurements because they are taken
on the A-weighted scale, they meet the criteria, but yet the people that
are living close by, it drives you nuts because it perm -- it goes right
through the walls. There's no way of attenuating this base. And I think
that's the biggest problem that we have here.
I have no problem with outdoor entertainment or outdoor seating
for a restaurant, but I do have a problem whereby you have people out
there that are hollering and screaming at night. And as you -- as was
brought up by Commissioner Coyle, I believe that your averaging of
the over a one-minute span is basically RMS averaging. It's not peak
Page 75
Agenda Item No. 16K3
September 15, 2009
Page 63 of 100
September 25, 2007
.
averaging.
So if there could be a point in time where somebody over that
one-minute -- that one-minute period hollers loudly -- but what you
capture is the average of that one minute in duration, and so, therefore,
you're not really capturing the peak average of that duration of that
particular sound, as Commissioner Coyle brought up.
So I have some problems with that, but I understand that that's in
the criteria that we presently have within Collier County, and I think
that's where we need to address some of the issues.
On the other issue, I think that we need to look at looking at
maybe the C-weighted network where it rolls off at the low end but it
doesn't roll off to where, at 20Hz, you're down 55 dB if you look at an
A-weighted scale. And I think -- this is what is the factor that causes
the most concern for people.
And the other thing that I have a concern with is where residents
have been established for a period of time, and all of a sudden, there's
been a change in the pun and all of a sudden they bring in a sports
bar, and then they want to have outdoor entertainment, and this
infringes on those people, because they were there first. This isn't like
an airport issue whereby the airport's been there for years and these
people move in there. This is where the people are in a nice area, a
residential area, and they end up being subjected to this noise. And, of
course, this goes on till two o'clock in the morning. And I really have
a problem with that, so--
CHAIRMAN COLETTA: Okay. Let's keep moving along. I've
got a couple questions, sir, and then we're going to go to
Commissioner Henning, then back to Commissioner Fiala.
To permit amplified music, does that mean they don't need a
permit to be able to just play regular instruments without amplifying
it?
MR. DANTINI: That's correct. They can have--
CHAlRMAN COLETTA: Whoa. So in other words, if they
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Agenda Item No. 16K3
September 15, 2009
P)3g~.G4.. Af 100
September 2), LUU I
refuse the permit, they can go ahead and still play the music in these
people's back yards without a wall or any other provisions; is that
correct?
MR. DANTINI: If it's not amplified, that's correct.
CHAIRMAN COLETTA: We've got to change that. That's not
going to work.
Okay. Now another question I've got.
MS. ARNOLD: But it doesn't -- it doesn't mean that they can
exceed the limits identified in your noise ordinance.
CHAIRMAN COLETTA: No, and I know that. And when you
average it out, the whole business. But if you only fire a gun once
every five minutes, you're definitely still disturbing the people's peace
and quiet. I think that's one of the basic parts of our Declaration of
Independence, Constitution, you know, the pursuit of happiness and
peace and tranquility. That's just one of the things that we expect.
There's one other question I got, and I don't want to lose it before
I do. The -- what we're going to have now, if you put up the walls and
you allow them to have amplified music, will the situation be better or
worse than it was before, if you were a resident in one of those
houses? In other words, what you're experiencing at this point in time
with the background noise, the talking, the other possible musical
instruments that they mayor may not be playing, I'm not too sure on
that, to be able to say, okay, now we've got a wall up, we've got drapes
up, we've got this, now we're going to go to amplified music. What is
going to be the net results for the person that's living next door?
COMMISSIONER HALAS: Can I try to give you a -- if you
have amplified music -- and tell me if I'm wrong on this -- if you have
amplified music and if you're in the speech intelligibility range, there's
a very good possibility that you can shelter that. But if you're down
around 31Hz, which is really low, there's no protection. You can put
up any kind of wall you want. It'll just go right through it.
CHAIRMAN COLETTA: Okay. Let's do this, let's go to
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Agenda Item No. 16K3
September 15, 2009
Page 65 of 100
September 25, 2007
Commissioner Henning, Commissioner Fiala, and then I'd really like
to get to the speakers.
Commissioner Henning?
COMMISSIONER HENNING: Thank you. Legal question.
Since staff has given out 46 permits this year for what we're being
asked to consider today, if the board denies it, what's our risk?
MR. KLA TZKOW: Well, at the end of the day, the applicant
would have the ability to bring us to court for a Writ of Mandamus
basically asking for a court to order us to issue the permit. That's
probably the likely result.
Could they seek damages? Maybe, but it's very speculative. So.
that's probably what you're looking at. If you deny the permit, they'd
have to consider whether or not it's worth the cost to go to court to
compel us to issue the permit.
COMMISSIONER HENNING: Is it based upon -- I mean, I just
see a -- problematic if the board denies this. Can we give direction to
staff of what to do to -*
MR. KLATZKOW: Commissioner, you have no criteria to deny
this, okay. There is nothing here that you can look at and weigh to
deny this the way our ordinance is currently constructed. We can
change the ordinance and take care of it that way. And my
understanding, these permits all expire at the end of the year anyway
so that the time they could use this is relatively short. But at the end
of the day, if you decide to do this, they would have a cause of action.
COMMISSIONER HENNING: Well, my concern is, my
understanding about this issue, there were (sic) supposed to be a wall
there. Now, I'm understanding itts a short wall with shutters.
Are these shutters -- are they fixed shutters or are they movable?
MS. ARNOLD: Theyfre movable.
COMMISSIONER HENNING: So I don't know what we're
accomplishing.
MS. ARNOLD: Well, I guess you could ask the property owner
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that. I mean, they're here to --
COMMISSIONER HENNING: What's the ability of our staff
when they consider an SDP under the PUD ordinances in its use, do
they have the ability to locate those uses for compatibility reasons
within that ordinance or that PUD? .
MR. KLA TZKOW: I think initially this particular use was
supposed to be way on the other side of the development, and at the
last second it got shifted here, for reasons I'm not entirely sure of. I
think Susan could address that better.
COMMISSIONER HENNING: Yeah. But that's not our
decision is SDPs, or should we be looking at SOPs, give more public
involvement?
MS. ISTENES: Hopefully I'm answering your question.
COMMISSIONER HENNING: Thank you.
MS. ISTENES: We -- within this PUD in particular, there is no
authority granted to staff to make -- to render administrative discretion
as to where a use can be located. It's just simply listed as a permitted
use in the PUD and they can essentially locate, to the best of my
knowledge, anywhere.
COMMISSIONER HENNING: Well, I'm in favor of giving you
that authority to make sure that the compatibility issues -- because
when we look at a zoning ordinance, we're looking at compatibilities.
And then when we have a use within there that is a -- problematic with
the neighboring property, this may have been resolved if it had a
locational. And that's --
MS. ISTENES: I wouldn't disagree.
COMMISSIONER HENNING: You know, we need to do that.
I mean, we need to give you more authority to locate whatever uses
within the PUD. I don't know how to do that, if we can get some
assistance. The second thing is, the noise study was said it was
conducted for code enforcement, but you're saying it was not
conducted for code enforcement; that's a false statement?
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MR. DANTINI: Yeah. That was incorrect. It was done for the
COMMISSIONER HALAS: Petitioner?
MR. DANTINI: -- business and--
COMMISSIONER HENNING: Okay. So we didn't cut a check
for it?
MR. DANTINI: No, we did not.
COMMISSIONER HENNING: Okay.
MR. DANTINI: We just facilitated it. We were kind of the
mediators and kind of a try-to-be-neutral as far as what -- the citizens
and the property owner.
COMMISSIONER HENNING: Right. Thank you.
CHAIRMAN COLETTA: Commissioner Fiala?
COMMISSIONER HENNING: Commissioner Henning asked a
question; I'd like to follow up on that. Y oulre saying that we cannot
deny this?
MR. KLA TZKOW: No. You can deny it. What I'm saying is if
you do it, you're taking a risk that the owner here might bring suit.
COMMISSIONER FIALA: I see. Okay. Second question -- I
have three questions. Second question is, was that noise study taken
with -- did they already have amplified music that the noise study
could be taken from?
MS. ARNOLD: Let me -- the establishment had turned off all of
their amplified noise as -- at -- you know, trying to negotiate through
this process. We received complaints from them, and they had
televisions, and I don't know what else.
MR. DANTINI: They had the music going on.
MS. ARNOLD: And music at that time, doing that without a
permit.
COMMISSIONER FIALA: So in other words --
MS. ARNOLD: They've since stopped all that. So the noise
study that was taken, or the analysis that was taken, none of that was
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in place.
COMMISSIONER FIALA: Did not include amplified music?
MR. DANTIN[: May I correct that just -- statement just a little
bit. What we -- I was present at the time that they were doing the
study. And I requested that they turn on the TV s and also turn on the
music so we could get a better understanding as far as what the effects
were to the residents.
It was done. It was 81. Patrick's Day evening, and they had some
other things going on, March Madness as far as the basketball games,
so -- but it was -- happened to be a pretty quiet night and -- yeah, as
far as patrons were concerned, there wasn't -- it wasn't full capacity at
all.
COMMISSIONER FIALA: Yes. And then it says here that,
being that there wasn't much noise at the time, they only took one --
let's see. How did they say it? But the noise levels from Stevie
Tomato's were not high enough at the time to justify measuring the
additional four tests, so they only took one of the five tests.
So without amplified music in the first place being part of the
test, and then being a quiet night, we really don't have good results
from this test; is that what I --
MR. DANTINI: The one that was taken in the evening had. -- the
amplified sounds were turned on at that time.
COMMISSIONER FIALA: How can they have amplified music
if they don't have a permit?
MR. DANTINI: They -- I requested that they just do it for a few
minutes while we take -- for the test. And that was -- that was just to
turn it on so we could get a better idea of what --
COMMISSIONER FIALA: Boy, if I were the owner and you
requested me to put amplified music, I'd sure make sure it's nice, soft
amplified music.
MR. DANTINI: Well, they had -- I was in there when they
turned on the vol urnes to where the marks were where they normally
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keep the music at. Not to say that that's where it would be all the time,
but at that time that's where they put them.
COMMISSIONER FIALA: Okay. And the last thing is, can we
-- is there something that we can do to say, to moderate -.. to modify
this somewhat and say they could have inside, behind-close-door
amplified music, just not outside?
MR. DANTINI: They can do that already.
COMMISSIONER FIALA: Okay. Thank you.
CHAIRMAN COLETTA: Do you feel like you're on the losing
end of something?
COMMISSIONER FIALA: Well, you know, there's a lot of
things we need to change.
CHAIRMAN COLETTA: Let's do this--
COMMISSIONER FIALA: The eight-foot wall, we need to
change that. We should say that it needs to be behind closed doors.
We should have some time limitations, restrictions on the hours,
definitely, and it should -- it should come back to us once every year,
or to staff anyway, to address to see if there have been complaints
from them.
CHAIRMAN COLETTA: If I may. We -- was the petitioner
going to come forward also and talk?
MR. MUDD: Yes, sir.
CHAIRMAN COLETTA: We're running into a time thing. I'm
going to ask my other two commissioners that are waiting to speak to
hold their comments just for a little bit. Let's hear from the petitioner
at this time. Let's get to the speakers and see if we can come to some
sort of resolution on this. Don't go too far.
MR. DANTINI: Okay. Thank you.
CHAIRMAN COLETTA: You undoubtedly have been
following this conversation. You know that there's great concern.
MR. BROOKER: I have, thank you. For the record, Clay
Brooker, with the law firm of Cheffy, Passidomo, Wilson & Johnson,
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who represent Pebblebrook Page, Incorporated, which is the entity
owns -- that owns Stevie Tomato's Sports Page at the subject location.
As a preliminary matter, I want to touch on the whole lawsuit
threat and so forth. We have not threatened to sue, but we do question
why and how we are actually standing here today.
We don't believe the Bee has authority to hear this under
existing law. The law that says that an amplified music permit is
administrative in nature. The staff neither admits it nor denies it
pursuant to whatsoever -- whatever's in the code. And whatever is in
the code right now, we meet.
That code also includes an enforcement process. That
enforcement process is, upon the first violation, assume an amplified
permit is issued. We violate the noise ordinance. We are brought
before code enforcement and, perhaps, found guilty. We pay a fine.
If there's a second violation, our amplified music permit is
automatically revoked. That's the existing law. That's the law we're
relying upon today.
So for the record only, I must object to being called here today
before the BCC.
Having said that, we are here in the spirit of continued
cooperation. We'd had numerous meetings. We are agreeing to do a
lot of things above and beyond what the code requires. We are willing
to erect a sound barrier structure, which has already been permitted by
the building department, if the amplified permit is, in fact, issued.
Please understand that neither the county on its own, which has
visited the site numerous times above and beyond the noise study, as
well as the professional noise consultant, has found us in violation of
any law, including the noise ordinance when the amplified noise was
playing at the request of the county.
The sound barrier structure we have agreed to install if the
amplified music permit is issued is designed by a professional
consultant to satisfactori Jy address the noise generated by a loud
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factory where employees are required to wear hearing protection.
The professional consultant freely admits that comparing--
comparing the anticipated noise from Steve Tomato to a loud factory
is, quote, extreme, and it is, quote, very unlikely that that level of
noise will ever emanate from Stevie Tomato's. Nevertheless, we're
agreeable to erecting a sound barrier structure designed to address this
unanticipated level of noise.
A few final comments. In reviewing the staff report and the
package that was sent to the Bee -- the staff report and in the package
that was sent to the BCe, it appears that some of the neighbors'
frustration lies with the developer. A wall was not created.
They're asking for a wall back there along the dumpster and so
forth. We're not the developer. We are a tenant. As such, we have no
right to do anything beyond the confines of our leased commercial
space. This is a mixed-use PUD that's been in existence for over a
decade. There has been commercial permitted next to this residential
area for over a decade. That commercial, that PUD in terms of the
commercial uses allowed includes gas stations, hotels, eating and
drinking establishments and so forth. So I ask you to take that into
consideration.
I've heard, we're here first. But I know when I bought my house
I looked to see what could go on around me. What is around me --
Commissioner Coy Ie, you mentioned about the fact you live six
blocks away. I live adjacent to an industrial zoning district. I can hear
the music in the morning. Do I have a leg to complain about it?
Absolutely not.
I'd also like to submit for the record over 800 signatures of
people, many of which reside in the community we're talking about,
Pebblebrook Lakes, in support of the amplified music permit, and I'll
leave that here for the record.
And a couple, two final quick comments, and then I'll try to
answer questions. Actually three; I just thought of a third.
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Number one, we did not expand beyond the commercial space
that was rented to us. We carved it out.
Number two, I've heard a lot of statements about the noise study,
some of which I believe are not correct. So we rely on the noise study
as written. And by way of example, the noise study was conducted in
the back yards of these adjacent residential homes. And the fourth or
fifth one that was skipped or not done was because they measured it at
the front of the house. And after measuring it at the front of the
closest lot, the noise was -- you couldn't hear anything at all.
So according to the noise report, that's why she said, I didn't even
bother going down to the further lots that are an increasing distance
away because the closest I got to, in that location, I couldn't hear a
thing. So that's why she didn't do some extra studies. But she did do
the required studies under the existing law, as I read the report and
upon which we rely.
My final comment is, the wall. What was suggested as a sound
barrier to dampen a loud factory noise was an eight-fool wall
somewhere in the landscaping area outside this outdoor eating area.
What we have suggested is pulling it closer, which the consultant says
would work better, and it would be combined with what you see up on
the screens now. It's combined; a four-foot wall with shutters. These
are solid kind of plantation -- they look like plantation shutters, but
they are solid. And when closed, they act, according to the
professional, equivalent to an eight-foot wall right there as if you
re-enclosed this space.
So this is -- as a matter of fact, the professional consultant was
the one who gave us the name of the manufacturer of these shutters.
So we went to her to determine what would be best in this scenario.
So what we believe we have -- we believe what we're proposing
and what's actually been permitted by the county today is better than
what the study shows. And with that, I'll answer any questions you
may have.
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CHAIRMAN COLETTA: Okay. Questions related to the
presentation just made. Let's start with Commissioner Halas if you
have questions to ask.
COMMISSIONER HALAS: Sure.
CHAIRMAN COLETTA: And then Commissioner Coyle and
then Commissioner Fiala.
COMMISSIONER HALAS: You say when the shutters are
closed. If we make a stipulation that those shutters have to be closed
at all times, when there's music being played --
MR. BROOKER: We will agree to closing the shutters at all
times after seven p.m.
I guess I scared him away. No, I didn't.
COMMISSIONER HALAS: The problem is that I think that the
-- we'll have to listen to the other people here, but I think the problem
is that -- I know in my district, I've got a number ofprobl-- sound
complaint problems because of the fact that they bring in bands, and I
guess is what they want to do is bring in a band; is that right?
MR. BROOKER: What I'm told is, not a band. It would be a
single guy playing back in the corner. You can't see on that map. But
if --
COMMISSIONER HALAS: Do we have assurances that there
won't be any driving base?
MR. BROOKER: I'm not as -- I'm not as knowledgeable as you
are on hertz and intelligible voice ranges, but we're not -- we're not
playing base-type music. This is more of a family-type establishment,
so it's not going to be a base-driven band, if that --
COMMISSIONER HALAS: But you know what I'm talking
about, the younger generation that has the driving base, and you've
probably been associated with it when you drive along a road and
somebody pulls up at a stop light and about blows you out of the car
even with all the windows rolled up, and his windows rolled up, or her
windows rolled up. And that's the problem that -- even though it may
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meet the criteria, it's still very, very disturbing, especially when
somebody's trying to sleep at 11 o'clock at night.
MR. BROOKER: No. We'll stipulate to such thumping, driving
base, if that's a defined term.
COMMISSIONER HALAS: Well-- and the only other problem
is that we need to get after our noise ordinance and we need to look at
other -- like instead of using the A-weighted scale, I think we need to
look at a C-weighted scale, and I think we need to look closely at
addressing these issues.
And I have a question for staff. Of the 46 permits that have been
given, how many of these have been located right next to a residential
neighborhood?
MS. ARNOLD: I can't -- I can't answer that, Commissioner.
They're throughout the county. Some may be adjacent to residents,
but I don't know the exact number.
COMMISSIONER HALAS: Okay. I think that's something that
I'd like to find out myself, just as -- as some criteria in regards to
knowledge level of what we're -- where we're putting all of this
amplified music. I don't have a problem with it when it's in an area
that there's a large dividing factor between a neighborhood --
residential neighborhood and the commercial area. But when you're
right adjacent, then fIve got a real concern about it.
CHAIRMAN COLETTA: Okay. Commissioner Coyle?
COMMISSIONER COYLE: I'm going to wait till we finish with
the speakers.
CHAIRMAN COLETTA: Okay. Sir, is that your presentation?
MR. BROOKER: Yeah.
CHAIRMAN COLETTA: Okay. We may call you back with
some questions. Thank you very much.
Let's go to the speakers.
MR. BROOKER: Thank you.
CHAIRMAN COLETTA: When you come up, please state your
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name for the record; three minutes for each speaker.
MS. FILSON: The first speaker is Dianna Lutz. She'll be
followed by P.J. Obrecht.
CHAIRMAN COLETTA: Also, too, if you like, if the person
before you covered everything that you thought needed to be covered,
you have the option to waive.
MS. LUTZ: For the record, my name is Dianna Lutz. I'm one of
the residents at Pebblebrook Lakes community. I reside at 285 Spider
Lily Lane. Our home, as you can see, the second from the right, lot
111, is actually adjacent to the Pebblebrook Lakes commercial plaza.
More specifically, our home is located just 150 feet from Stevie's
Tomato's Sports Bar.
The bar opened up in last November, and afterwards opened an
outdoor area, not enclosed. And the bar often hosts entertainment such
as broadcasting of sports events, bikers' night, live entertainment, and
the noise, with cheering, shouting, bikers, a lot of exhaust system,
boom cars that emanate from the bar between the hours of ] 1 a.m. to 2
a.m., have tested the patience of the residents.
The residents have been deprived privacy, peace, and quiet
enjoyment of their homes. OUf homes have been invaded by
unwanted noise disrupting our serenity.
Let me give you an example. If you are somewhere and it's loud
and noisy, you have a choice to go home, but we are at home. The
picture that I will -- maybe I can show it here or I can pass it around--
illustrates the extra measures I had to take in order to provide for a
relatively good night's sleep under the current circumstances, without
even the permit being approved for amplified music.
I had to move from my own bedroom into the guest bedroom. I
have to use, on a daily basis, ear plugs. And in addition to that, I have
to stack all of those pillows in front of the window to actually try to
buffer the noise emanating from that establishment.
I really strongly urge the board not approve the permit for outside
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amplified music submitted by the bar owner of Steve's Tomato's, and I
respectfully thank you for your consideration.
MS. FILSON: The next speaker is P.J. Obrecht. He'll be
followed by Cindy Obrecht.
MR. OBRECHT: Good morning. My name is P.J. Obrecht. I
live at 293 Spider Li ly Lane in the Pebblebrook Lakes Development.
If you want to put that back up, I can show you where our home is
quickly.
This is our residence here. I have a visual aide. It's about a
two-and-a-half minute video that 1 think will answer all your questions
as to whether or not they should be allowed any kind of amplification,
from last November when they were playing music without a permit,
and I'd like to play that for you now. I don't know if you have a
volume control somewhere.
Oh, if any body's offended by foul language, you may want to
leave the room.
CHAIRMAN COLETTA: That goes for the viewing audience,
too. At this point in time, you may want to turn your set way down.
When I wave my hand, that's the all clear.
While she's setting this up, I will say this is two-and-a-half
minutes cut down from over four hours of video that I've shot over the
last 11 months since we've been dealing with the ordeal of this outside
bar being opened up at Stevie Tomato's.
And for the record, I object to being here today as well.
Cl-IAIRMAN COLETTA: If it's going to take a few minutes, I
could bring another speaker up and give you more time to set up.
MS. FILSON: The next speaker is Cindy Obrecht.
CHAIRMAN COLETTA: Oh, no. Here we are.
MS. FILSON: Here we are.
MR. OBRECHT: That's not this. This is what's going on there.
It's horrible, deplorable.
(The video is being played at this time.)
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MR. OBRECHT: Okay. Well, this is our lanai door. I'm going
to come out and open up the lanai. This is what we're looking at.
Plaza with the lights.
MR. OBRECHT: There are some subtitles also that you'll see
coming up for dates and times and what was being said in case you
can't hear it.
MR. OBRECHT: "What do you think of that, Buddy? Yeah, it's
pretty nice, isn't it?"
MR. OBRECHT: Having the bar here also subjects us to this
noise every morning and evening and afternoon.
Here we're being taunted by one of the employees of the bar.
And I thank you for your time.
CHAIRMAN COLETTA: All clear.
MS. FILSON: The next speaker is Cindy Obrecht. She'll be
followed by Walter Bruno.
MS. OBRECHT: Hi. Cindy Obrecht. I think that video speaks
volumes for what happens to our family. Those are my sons on there,
and we are submitted to that or subjected to that every day and every
night.
And we're limited on the access we can have to our pool and our
lanai. We can't open our windows when it's cool outside because you
never know what's going to happen, whether it's daytime or nighttime.
I think that we're not only talking about live music. I think. we're
also talking about sound on the TV s for sporting events, correct? Is
that also under live entertainment? So that's every -. that doesn't
matter if it's one o'clock on a Sunday afternoon, eight o'clock on a
Friday night, it doesn't matter. There's going to be noise all the time.
So I'm sorry I'm getting emotional about that, but I think the other
people will have more to speak on that. Thank you.
MS. FILSON: The next speaker is Walter Bruno. He'll be
followed by Greg Rearden.
MR. BRUNO: Good morning. For the record, Walter Bruno,
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288 Spider Lily Lane. And that's opposite Dianna Lutz's house.
I had a bunch of stuff: but I think you guys did a good job on
covering it all. What I'd like to bring to your attention, when they had
a community meeting for this rezoning, Karen Bishop, who
represented the developer, said at the meeting, you won't see it, you
won't hear it, you won't even know it's there. And they've failed on all
three counts. Thank you.
MS. FILSON: Greg Rearden. He'll be followed by Adam
Cohen.
MR. REARDEN: Hi. My name is Greg Rearden. I want to
thank you for allowing me to come today, and I thank you for your
comments. I do recognize that you are also homeowners. You also
have some of the similar problems that we're facing as well.
I would like to just show you -- I'm about five houses down. I'm
probably the furthest (sic) away from all of the others that have
already spoken. I cannot go out on my lanai as well. We're limited to
what mayor may not happen at the bar.
You know, there's a lot of screaming, a lot of -- and I just want to
bring up one quick point, is that when the study was done for the noise
level, I was there at the time it was conducted, and that was probably
four or five o'clock in the afternoon, if I remember correctly.
And at that time, that's not usually when most of the crowd noise
is there. What you have heard, as you can see, is mostly at nighttime.
Again, as Cindy has spoken, it's -- we are not able to open up our
windows and enjoy the beautiful paradise weather that welre -- have
paid to be here for, and we're subjected to this.
And, again, we were here first, and then the shopping center got
brought in.
The zoning, we're not even going to bring that up today. But I do
know something about audio/video. And I do know that, as you can
see behind us, there is also a preserve. And just from common sense,
you get out in the middle of the woods and you just start yelling, you
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hear all the echoing. The echoing in the woods in itself is just
amplified just all by itself: just from the woods itsel f.
It's terrible noise. It's hard to sleep at night. Even with my TV
on at night, you can still hear the noise coming from the bar with all
windows and all doors closed.
I really wish you would consider not approving this. And thank
you also for looking into the applications of other permits that go on
throughout the county. I know that we're not the only one in this
county that suffers from this. And thank you for your time.
MS. FILSON: Next speaker is Adam Cohen. He'll be followed
by Clay Brooker.
MR. COHEN: My name's Adam Cohen. I'm at 298 Spider Lily
Lane. Right here. My house is one of the further ones away from the
noise, and you can still hear it in the front of my house.
I do take exception to some of the things that the attorney for
Stevie Tomato's brought up, is that, yes, we were there first, however,
that -- their property was supposed to be residential. The -- it was
changed to commercial and then it was changed to having a bar out
there, which is also not a problem except that they made this outside
bar.
And, you know, we brought up aJl this as an accessory. I submit
to you that this is no longer an accessory to this bar. This is the
primary function of this bar is to be outside. I would love to see the
detail between the outside sales and the inside sales of this bar.
You know, I'm not all that affected by this. It's really not that big
a deal in my household. I can't hear it that badly. You know, most of
my house is behind. My lanai -- my house blocks the noise, but if I
was these folks, I'd be real -- I'm upset for them. I mean, some of
these folks, I've -- the first time I met them was last night trying to get
organized for this meeting. I don't normally get all excited about
community things. I just thought this was one of the more important
things we needed to deal with. Thanks.
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MS. FILSON : You final speaker, Clay Brooker. Oh, I don't have
a slip for you, sir.
MR. SMALL: I gave you one.
MS. FILSON: Okay. Go ahead and speak, and maybe it's on a
different item. Oh, you put 100. I have it.
MR. SMALL: Okay, sorry. Thank you. My name is JeffSmaJI,
thank you, and I live at 308 Spider Lily. I live next to Adam. And I
don't know if I can --
MR. MUDD: Point on this.
MR. SMALL: You actually can't even see my house. It's just
cut off from that. And my house actually, like most of the members
that face this barrage of music, my house is sideways, so it does
absorb most of blow; however, I can hear it in my house, and
occasionally I like to go to the lanai and watch a football game as
well.
I know you've got some experts here on sound studies. Let me
suggest to you and give you my sound study. There's a difference in
crowd noise between the Miami Dolphins playing the Tampa Bay
Buccaneers and Dancing with Stars. And when it is loud, it is loud
and I can hear it, to the point where I have to take my kids in the
house.
So I don't know how each house kind of stands up to the noise,
but I seem to be the furthest away. And if I can hear it, I know it's
miserable for them.
I would also say, I don't -- I don't know how we got here. I don't
know government. I don't know code. ] don't know how a bar gets
put in and can throw out that amount of music directly into
somebody's back yard. But it seems just illogical to me, just as a
neighbor, that we're even sitting here and we can all acknowledge
there's a tremendous amount of noise, swearing, bottles, toasting, loud
talking and screaming and saying, the best thing we could possibly do
is to now light off an amplifier on top of all that. So it's completely
Page 93
t ,. .~
Agenda Item No. 16K3
September 15, 2009
Page 81 of 100
September 25,2007
illogical in my mind. And I would suggest to you that we do not grant
the permit. Thank you.
MS. FILSON: Clay Brooker.
MR. BROOKER: I had initially -- Clay Brooker, for the record.
I had initially signed up as a public speaker. I didn't know I was going
to be called up earlier, so that's why I'm here again. But I assume
you'll have some questions of me, so I'm not duplicating my time.
But the property upon which all this commercial exists has been
zoned that way since 1996 at a minimum. I didn't check further back
than that.
CHAIRMAN COLETTA: Okay. Well, what we'll do, sir, is if
we have any questions, we'll address them to you. Thank you. Since
you already had a chance to speak.
What we're going to do now is go into deliberations.
Commissioner Henning, you were first, Fiala, then Coyle.
COMMISSIONER HENNING: Well, what I heard on the video
was -- really didn't address the application of a -- amplified music. I
mean, we got a problem when we have children in their own home
without amplified music having to be subject to this kind of stuff in
their own home. I can tell you, I wouldn't put up with it with my
child, and I dontt know why this is not being enforced. Wow.
You know, I don't think we should take action on this item. I
think we need assistance from the County Attorney with the evidence
that we have on that video to see what we can do to enforce the
peaceful enjoyment of family. Wow. This is shocking to me that this
has been going on. Shocking.
CHAIRMAN COLETTA: I'm sorry. Commissioner Henning,
could you -- you know, you're asking for County Attorney's advice.
Please ask for it, and maybe you can form it into a motion.
COMMISSIONER HENNING: We need to direct the County
Attorney to see what -- the rights of these people, these residents, take
a look at this video that this gentleman produced, and get their rights
Page 94
"-~".""-"",,,-_~_.v i" I"n I ,.,."..."""" .".
". Jt. ..
Agenda Item No. 16K3
September 15, 2009
Page 82 of 100
September 25, 2007
back, that's what -- the direction we need to do. I donlt think we need
to take any action, period, on this one.
But also, I think it was 2003 or '4, the gentleman was right, this
was multifamily zoning, and it was changed. The Board of
Commissioners was petitioned to make that change. We did with
specific uses. One of them was a restaurant with alcohol. Of course,
you know, our staff is going to have to take a look at that ordinance
and what was committed on the public record and enforce it.
CHAIRMAN COLETTA: Okay. Commissioner Fiala, then
Coyle, and then Halas.
COMMISSIONER FIALA: Yes. I think that we ought to
investigate why -- while you're doing that, what can we do to insist or
demand that an eight-foot wall that has some kind of sound absorption
in it is erected immediately to protect these people?
They lived there first, and they're not even protected. And then
people in the bar make fun of them because they can't sleep and they
have babies? It's just disgusting. And why are they open till 2:30 in
the morning? Aren't they supposed to be closing at two o'clock? Why
isn't that looked after?
MR. MUDD: Ma'am, they -- I had that little conversation before
about hours of operation. They have to close the bar by two o'clock.
COMMISSIONER FIALA: That's what I thought.
MR. MUDD: Okay. But it doesn't say they have to close the
establishment at two o'clock. They have to quit serving alcohol.
COMMISSIONER FIALA: So, in other words, people could
buy three or four or five more alcoholic beverages --
MR. MUDD: They could line them up.
COMMISSIONER FIALA: -- and just sit there and consume
them till four in the morning.
MR. MUDD: They probably could, ma'am. And that -- one of
the reasons this is here, this is problematic. This has been problematic
for over a year.
Page 95
.' ..
Agenda Item No. 16K3
September 15, 2009
Page 83 of 100
September 25,2007
There was -- there was a lot of discussion between the
neighborhood and the bar about as far as a wall is concerned, sound, in
order to try to get that done. We are at a point in time where the
sound wall is ready -- it's ready to -- it's been permitted. The owner
won't put the wall up unless the county guarantees the outdoor
amplified music permit.
COMMISSIONER FIALA: Well, the thing is, that wall is a
movable, sliding wall. What good is -- four foot.
MR. MUDD: Ma'am, I'm not -- I'm not arguing that point with
you at all. There's an issue, and there's a bigger issue, and the bigger
.issue is, there's going to be more of this as the county builds out, has
infill, and different issues.
We've talked about our sound ordinance for a long time, a noise
ordinance. And in this particular case, when you start talking about
distances from amplified music places to where residential is, we need
to talk about different levels of sound, and we need to -- we need to
strengthen that particular ordinance up in order to prevent this from
happening in the future.
Commissioner Henning had a good idea, giving the planning
staff, when the SDP comes in, make sure those uses are farthest away
from the residential area.
I'm not too sure being farthest away in this particular case, based
-- when I saw the video, is really going to happen a lot because there
are people that are farther away from -- the Lutz's home that -- that
still hear it. It's an issue, and we have it, and it's one that's going to --
and I know Commissioner Halas has had several of these up in his
part, in his neck of the woods.
Ma'am, you had it one time in your -- in your district, and there's
some things that we need to get after, part of which is some direction
to staff in order to tighten particular issues up at the board's desire.
COMMISSIONER FIALA: And following up on that -- and then
I'll get off this subject and let somebody else speak, but -- and
Page 96
, ~ ..
Agenda Item No. 16K3
September 15, 2009
Page 84 of 100
September 25,2007
somebody here said that their property was 150 feet away from -- you
said that. Okay, Mrs. Lutz said that her property's 150 feet away, yet
our ordinance, different parts of it, some of it's 1,000, some is 2,500,
some is 5,000. How did a bar even get pennitted to be built that close
to other homes? So that's another thing to be looking at.
(Applause.)
CHAIRMAN COLETTA: Okay. I want the commission to
focus on the fact that the issue before us -- while we can always direct
staff to come back with other items -- is to either approve or
disapprove this amplified noise permit.
With that we're going to go to Commissioner Coyle.
COMMISSIONER COYLE: Yeah. I think we need to
understand one thing. When you have a business establishment that
permits that kind of behavior by its patrons and its employees, you
cannot trust it to have a soundproof wall, particularly if they can open
it up, you can't trust them to make sure that the amplified music is
turned down to an appropriate level. You cannot trust people like that
to abide by any restrictions we place on them.
Now, I would be perfectly happy to make a motion to disapprove
this thing. And if this business owner wants to take us to court, then
I'd be happy to show that video.
COMMISSIONER HALAS: You make that a motion, sir?
COMMISSIONER COYLE: I make that a motion.
COMMISSIONER HALAS: I second it.
CHAIRMAN COLETTA: We have a motion by --
COMMISSIONER COYLE: Then as part of that motion, I also
would like to provide guidance to staff to come back to us with Land
Development Code changes or codes that will regulate these things in
the future so that we have an appropriate control over these things.
And I would say to you that I want to go as far as limiting
outdoor seating, limiting amplified music. You've got a good start
with the draft amplified music permit, amplified sounds of any kind,
Page 97
. ~ ,
Agenda Item No. 16K3
September 15, 2009
Page 85 of 100
September 25, 2007
quite frankly. I don't care whether it's music or anything else. But it's
noise. And I would like for you to come back to address all of the
issues that the commissioners have raised today concerning this topic.
COMMISSIONER HALAS: Commissioner Coyle --
CHAIRMAN COLETTA: Before you go. You -- what
Commissioner Coy Ie said was part of a motion directing the staff. Do
you agree?
COMMISSIONER HALAS: And I -- yes. And I'd like to ask
Commissioner Coyle to ask one other thing, and that is to have staff
look at other communities that have used the C scale. And I think
they've done it in a way that this helps eliminate a lot of the problems
that we have. If they would make -- look into that, if you'd put that in
your motion to look at the C-weighted scale on the sound level meters.
COMMISSIONER COYLE: Well, I don't mind. I don't care
what they consider. I just want them to come up with a solution to the
problem. But I'll tell you it is not all just frequencies. It's amplitude at
different frequencies.
COMMISSIONER HALAS: That's why --
COMMISSIONER COYLE: I mean, we can have high
ampl itude noise at higher frequencies that is just as disturbing, a jet
turbine engine as an example, as a low frequency noise boom box. So
we need to look at the entire spectrum to make sure that we're -- we
are measuring these noise sources in a way that address what people
are hearing and what's disturbing our residents.
COMMISSIONER HALAS: That will -- that will do it.
COMMISSIONER COYLE: Okay. So, yes, I would be happy
to include any measures that will attempt to get control of this issue.
CHAIRMAN COLETTA: Let's go to Commissioner Henning,
then Commissioner Fiala, then hopefully we'll take a vote.
COMMISSIONER HENNING: Well, the amplified noises or
music permit doesn't address what we heard on the video.
COMMISSIONER COYLE: That's right, it doesn't.
Page 98
W , It
Agenda Item No. 16K3
September 15, 2009
Page 86 of 100
September 25, 2007
COMMISSIONER HENNING: Or seen. To me, I think that's a
bigger issue, and that needs to be addressed. And Mr. Klatzkow is
shaking his head, so I think it will be.
MR. KLATZKOW: You're right. We'll work with staff.
COMMISSIONER HENNING: Thank you.
CHAIRMAN COLETTA: Commissioner Fiala?
COMMISSIONER FIALA: Well, that's exactly -- let me follow
up on that and say, is there something, as you work with staff, that we
can do to now protect these people who live there from this constant,
horrible noise and swearing and so forth such as a wall? Is there some
way that we can go back and insist the developer or the restaurant
build an eight-foot wall?
MR. KLATZKOW: I think we're going to go back, we're going
to relook at the PUD, wefre going to relook at the -- what was said to
this board during the entire process.
COMMISSIONER FIALA: Good.
MR. KLA TZKOW: And we will vigorously see if we can find
solutions.
COMMISSIONER FIALA: When he says that, he does mean
vigorously. Thank you, Jeff. Okay.
CHAIRMAN COLETTA: Okay. With that, we have a motion,
we have a second.
All those in favor, indicate by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HALAS: Aye.
CHAIRMAN COLETTA: Aye.
COMMISSIONER FIALA: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN COLETTA: Opposed?
(No response.)
CHAIRMAN COLETTA: The ayes have it unanimously.
And with that, ladies and gentlemen, we're going to break for one
Page 99
1 ,.... .
Agenda Item No. 16K3
September 15, 2009
Page 87 of 100
September 25, 2007
hour for lunch. Be back here at 1: 15.
(A luncheon recess was had.)
MR. MUDD: Ladies and gentlemen, please take your seats.
Mr. Chairman, Commissioners, you have a hot mike.
CHAIRMAN COLETTA: Welcome. Next item, Mr. Mudd, is
our time certain.
MR. MUDD: Okay. Just -- because we just heard a phone, if
you could make sure your phones are off, that would help a lot.
CHAIRMAN COLETTA: Yes. Cell phones, pagers, all turned
off, put them on vibrate.
COMMISSIONER COYLE: Hearing aids.
Item #7A
RESOLUTION 2007-274: PETITION: CU-2004-AR-6904 MINING
VENTURE, LLC., REPRESENTED BY R. BRUCE ANDERSON
OF ROETZEL & ANDRESS, IS REQUESTING A CONDITIONAL
USE ALLOWED PER LDC SECTION 2.04.03, TABLE 2 OF THE
A-MHO AGRICULTURAL ZONING DISTRICT FOR
EARTHMINING. THE SUBJECT PROPERTY, CONSISTING OF
2,576 ACRES, IS LOCATED EAST OF IMMOKALEE ROAD,
APPROXIMATELY 2 MILES NORTH OF OIL WELL ROAD -
ADOPTED W/STIPULA TrONS
MR. MUDD: This brings us to 7 A, and this item requires that all
participants be sworn in and ex parte disclosure be provided by
commission members.
It's petition CU-2004-AR-6901, Mining Venture LLC,
represented by R. Bruce Anderson at Roetzel & Andress is requesting
a continual use allowed per the Land Development Code section
2.04.03, table 2 of the A-MHO agricultural zoning district for earth
. .
minIng.
Page 100
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Agenda Item No. 16K3
September 15, 2009
Page 88 of 100
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RESOLUTION NO. 95- ~
A- JUISOLVTI:01I SZftDlQ :roR.D 'rBII POLJ:OX OP 'rBB BOJUlI)
OF COUftY ~'8IOIIBIt8 1I'I'fJI uaJU) '.rO PJlOVIDI1IG A
t.BG.L 1Hw.fdld A1ID PAYDfG LBtD.L JaPmlSB8 0.. COVlll'n
COIiDI%SS:IOJIBRS, COUlftT S'.rA17 :um COUJft'Y lU)'nSOJl1'
DO&IlD IIBKBBRS.
Agenda Item No, 16K3
September 15. 2009
Page 89 of 100
WHEREAS, the Board of County commissioners and the Co~lier
County management and leqal staff are constantly presented with
the necessi.ty for making decisions reqardinq all phases of
, Co1Ulty policy, lDanageaent and legal counsel, respective~y; and
WBEREl\S j local governaents and their employees have
recently become subj~ to increasinq numbers of lawsuits based
upon. state and federal laws; and
WHEREAS,. it is essential to the effective operation of
COQDty qoverrmaent that poliC)", manaqement and legal decisions
be _de cowapeteiltly, in the public interest, and with the
'threat of persona~ :liability for board and staff members for
making said decisions being maintained at a m.i.nimUJll so as to
avoid the "chilling effec1:" on. the proper and diliqent
-per.tonumce of public dutiesrecoqnized by the Florida supbDe
cOurt in Thornber v. city ot Fort Walton Beach, 568 So.2d. 914
(1990); and
WHEREAS, Florida stabitory' and' case law, . as well as
At:t:orney General opinions (hereafter referred to as "AGO"), set
forth the requirements and discretion which are afforded to the
local qoverning body to formulate a policy regarding the
.. ,provision of counsel and payment of legal expenses for Board
m"",ba1:'S,. County staff and advisory board members who are
involved in litiqation. arising out of or in connection with the
performance of official duties and while servinq a valId pUblic
po.u.~; and
,,~, Collier county insurance policies currently
include county employees as well as Board members and members
of the Administrator's and county Attorney"s staff within the
scope o~ coveraqe, provided that said persons are actinq within
the scope o~ their. e:lIIploymant: and do not act erilllinally or
fraudulently; and
-1-
BODll reo Pl';~ 111
WHEREAS, the Board of county commissioners
Agenda Item No. 16K3
September 15, 2009
Page 90 of 100
(hereafter also
.
:,
referred to all "Board") de~ires, to hereby set forth and
formalize its policy with regard to the provision of legal
counsel and the payment of legal expenses incurred by County
ColIIIIlissioners and administrative and legal staff so as to
promOte competent decisions and conduct in the public interest
while reducing the threat, intimidation and chilling effect on
performance of official duties created. by potential personal
liability for county commissioners and county staff members
whil.e actinq in the scope of their official duties and while
servinq a valid public purpose.
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WBE:RDS, the various advisory boards, quasi-judicial
boards and ~atory boards (hereafter also collectiVely
referred to as "advisory board(s).) formed by the Board of
County eo...issioners, and the members thereof who are appointed
by the Board of county c01lDllissioners, serve a critical function
with.- regard to the operation of Co1.1iercounty Government; and
I
.
II
mrRD1n!::, the members of such boards serve on a vo1.unteer
basis without ~n-=ation for the time spent in performing
their duties and functions; and
WMJ:l:t(EU, said boards and board members are regcu.:Ued by the
Board of COunty coJll1llissioners as being within the umbrella of
leqal protection affordP.d to the Board of County colDJll.issioners
.
.
.
and other Collier county employees: and
lIHEREAS, the Board hereby desires to set forth and
fonaal.ize its policy with reqard to the provision of leqal
counsal ancl the payment of legal expenses incurred by advisory
board' members so as to promote competent decisions and conduct
in the pub~ic interest while reducinq the threat, intimidation
and chill.inq effect on perfor1Q8.nce of official duties created
by potential personal liability for advisory board members
while actinq in the scope of their official. duties and while
servinq a valid public purpose.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMHI:SS:IONERS CiF COLLIER COUNTY, FLORIDA, that:
II
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Agenda Item No. 16K3
September 15, 2009
Page 91 of 100
1. J).fini~ioJt. of "CoW1ty person(s)": As used in this
~8So1utioh, the tera "County person(s)" shall mean and include
'the ~boIra of the .Board of County Co_iasioners, the County
Administrator and his staff, the county Attorney and his staff,
all employees of the Board of County Commissioners as well as
the Coll.ier County Airport Authority Director and his staff,
the Director and' staff of any other county-created authority,
the officers and staff of any dependent or other special
district for which the Collier county Board of county
"'--..asieners is the qoverninq body or ex-officio the qoverninq
boay thereof, and' any person appointed by the Board of County
~nmM"~ioners to a COllier county Advisory Board,
quasi-judicial board or requlatory bOard formed by the Board of
County' CoJIIIIlissioners of Collier County, Florida.
2. rursuant to Section 111.07, Florida statutes, and
"l'hornbar v. city of Port: Walton Beach, 568 SO.2d 914 (Fla.
. ~~:'"
1990),
the
Board
hereby
resolves
to ,provide
lega1
repres-.i:at:loa to County persons in civ11 aci:ioD:s aJ:I4 iD civi1
rigld:a aet10llS subje~ to the limitations set forth herein.
_ Legal representation shall be provided in oi vil
.~ .
actions and in civil riqhts lawsuits only if the
litiqation involvinq the County person to be
.
represented arises out of at; in connection with
the performance of official duties and while
said county person was servinq a valid public
parpose. No representation shall be provided in
tort actions if the county person acted or
failed. to act in bad faith, wi th DiaUcious
pUrpose, or in a manner exhibitinq. wanton and
willful disreqard of huillan rights, safety or
property. No representation shall be provided
to any County person in a civil action or civi~
riqhts action where said County person acted or
failed to act wi th intent to harm. No
representation shall be provided in any case
-3-
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.
.-
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where the County person has
Agenda Item No, 16K3
September 15, 2009
, Page 92 of 100
willfully failed to
follow the legal advice furnished by the Office
of the County Attorney, unless the Board of
County Commissioners specifically finds, at a
pubiic meeting, that said failure to follow
legal advice was for reason(s) within the County
person's scope of employment and served a valid
'public purpose.
b. Collier County shall at all times have the
discretion to determine whether to directlY
represent such individual through the County
Attorney's office or to select counsel to
represent said County person in the civil action
or' civil rights action. :i6. ~ ~
.. I
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-li -..,.'.& "ell!.' _,~ 1. b. :a . )...... i"~, w:~1t
Ji1lII.f r.i.... L ;.w.~ ,'~;~l'" ';;,:8 ---'.." ~
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,....;..." z -- '.l--AT!:J . M!..:111 "''fl~pt'''~
~FJlI .t.... 1 ,,_1"".... J(.,...........
c.
Any legal fees and/or cos~ properly payable,
under this Policy JIlUSt be reasonable in amount.
Pui:suant to Section 111. 07, Florida statutes,
any attorney's fees and/or costs paid or
incurred by the County for any County person who
is found to be personally liable by virtue of
actiri<] outside the scope of employJaent,. in bad
d.
. faith, wi th malicious purpose, or in a manner
exhibiting wanton and willful disregard of human
rights, safety or property, may be recovered by
the County in a civil action against such County
person.
e..
Notwithstanding anything else stated in this
section or this Resolution, the Board shall have
the sole and absolute discretion allowed by
-4-
~DOt
oeo ~:,! 114
Section 111.07, Florida
Agenda Item No. 16K3
September 15, 2009
Page 93 of 100
Statutes, as well as by
applicable case law, to not provide legal
rep~esentation and to instead reimburse any
County person for reasonable attorney fees
andlor costs in the event that said County
person prevails in the civil or civil rights
action.
3. Pursuant to Sections ~11..071 and ~~1.072, Florida
statutes, the County shall pay for final juclgaenu, settl_ents
UJ4/OJ: Cost:s involving county persons in civil acr1:ions aDd UI.
oin1 riqhta acr1:ioll:S subject: to the limitations provided
herein.
a. Collier County shall pay final jUdgments,
settlements and/or costs involving County
persons only where the litigation arose out of
or in connection with the performance by the
County person of official:'. dUties and while
servinCJ a valid public purpose.
No final
.....<.
.. "
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.
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judg:iaent, settleaent or costs shaJ.l be paid for
by the county in a civil action or a civil
rights action if the County person aqainst whoa
the final jUdqment, settlement and/or costs have
been ilDpt>sed has acted or failed to act with
intent to harm. The County shall not pay any
final jUdgment, settlement and/or costs in tort
actions where a Coun~y person has acted or
. . ,.,~ t ~ .
failed to act with bad faith, malice or with
wanton and willful disregard of human rights,
safety or property. No jUdgment and/or costs
shall be paid in any case where the county
person has willfully failed to follow the legal
advice furnished bY the Office of the County
'- .
Attorney,
unless
the
Board
of
County
Co1llmissioners specifically finds, at a public
meeting, that said failure to follow legal
-5-
aooc flCO pSG! 115
I
advice was for
'-.
Agenda Item No. 16K3
reasons withiRep~'per 19tJQD_9
~e 9; offlro
employment and served a valid
person's scope of
public purpose.
b. Any final judgments, settlements and/or costs
paid or incurred by the County shall be in
strict adherence with' .the sovereIgn immunity
recovery limits set forth in Section 768.28,
Florida Statutes.
c. If the County person has had private leqal
representation in the case, contrary to the
provisions of section (2) (b) of this POlicy, any
final judgment. settlement and/or costs imposed
shall be the sole responsibility of said person
and
Collier
County
shall
accept
no
responsibility
for payment
of
the final
I.. ".
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judgment, settlement and/or costs.
Pursuant to section 111.071(4), this section is
~ intended to be a waiver, of sovereign
~ity or a waiver of any other defense or
. immunity to such lawsuits.
4. J:n cases where a County person is foraa.ll.y charqecl
d.
I..'...'.....'.:.'....~:..:
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with a ariainal viol.ation, the County shall pay the l.egal fe..
UJ4/o~ COl!!lts incurred by said county person only under the
fopovinq circumstances:
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a.
The charges against the County person arose out
of ()r in connection wi th the performance of
official duties and while serving a valid public
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b.
purpose.
The county person has been acquitted or the
charges diSlllissed. Lomelo v. Citv of Sunrise,
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423 So. 2d. 974 (4th DCA 1982), pet. for rev.
dismissed at 431 So.2d. 988 (Fla. 1983), and AGO
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89-33.
c.
The legal fees and/or costs charged are
reasonable in amount.
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aODI f]OO "1~~ 116
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Agenda Item No. 16K3
September 15, 2009
Paoe 95 of 100
d. The County person has first notified the County
administration and legal staff of the pendency
of the charges and has perm~tted the County the
opportunity to either directly provide counsel
or to allow said County person to choose hiS/her
own counsel..
e. The charqes have not resulted from the willful
failure at the County person to follow the leqal
advice furnished by the Office of the county
Attorney,
unless
the
Board
of
County
CoImaissioners specifically finds, at a public
meetinq, that said failUre' to follow leqal
advice was for ~easons within the County
person's scope of employment and served a valid
pUbl.ic purpose.
f. The legal fees and/or costs incurred by a County
person during the investigatory, pre-charqe
staqes. of a criminal. case ahal.I. be paid by the
County only for proceedinqs involving potential
crilllinal liabil.ity for the County person and
where the allegations ara ultimately determined
to be unfounded and to have arisen fr01ll. conduct
related too the performance of official duties
and while servinq a valid pUblic purpose. AGO
9~-ll. The provisions o~ Subsections 4b, c, d
and e of this Resolution shall also govern these
cases.
q. In the event that. the county person has been
provided leqal representation by the County and
the COunty person is found guilty of a criminal
charqe, the county may recover from the County
person in a civil action all legal fees and/or
costs paid or incurred by the County.
5. The County shall pay l.egal. f$es and/or aosts incurred
by County per~ons in cases inVOlving formal ethics charges
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BOor 000 n~r 117
Agenda Item No. 16K3
September 15, 2009
subject to the limitations provided herein: Page 96 of 100
a. The ethics charges arose from conduct related to
the performance of official duties and whil"~
serving a valid public purpose. Ellison v.Reid.
397 So. 2d. 352 (1st DCA 1981) and AGO's 85-51
and 90-74.
b. The County person has prevailed and successfully'
defended against the ethics charges.
c. The legal fees and/or costs charged are
reasonable in amount.
d. The County person has first notified the County
administration and legal staff of the pendency
of the charges and has permitted the county the
opportunity to either directly provide counsel
'-
or to allow said County person to choose his/her
own counsel. '
..:....
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e.
The ~es have not resulted frOlll the willful
failure of the County person' to. follow the legal
advice furnished by the Office of the County
.... ...,.
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Attorney ,
unless
the
Board
of
Count:.
Co1J.Drlssioners specifically finds, at a public
meeting, that said failure to follow legal
advice was for reasons within the County
~n's scope o~ employment and served a valid
f.
~lic purpose.
The legal fees and/or costs incurred by a County
person during the investigatory, pre-charge
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stages of an ethics complaint shall be paid by
the county only for proceedings involving
potential civil and/or criminal liability and/or
.
ethics sanctions for the County person and where
the .alleqatlons are ultimately determined to be
unfounded and to have arisen frena conduct
.
t"elated to the performance of official duties
and while serving a valid public purpose. AGO
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Agenda Item No. 16K3
September 15, 2009
Page 97 of 100
94-11. The provisions of Subsections 5b, c, d
and e of this Resolution shall also govern these
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cases.
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g. In the event that the County person has been
provided. leqal representation by the County and
the County person is found by the Florida Ethics
Comaission or other appropriate tribunal having
jurisdiction over the case to have co1lDllitted
ethical violations, the County may recover from
the County person in a civil action all legal
fees and/ or costs paid or incurred by the
county .
h. Nothing in this section shall be construed to
preclUde the' county Attorney fro. requestinq
fo~l or informal ethics opinions on behalf of
'- ona or JIlOre COJIIIIIissioners.
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6. The County shall pay 1eqal ~... a:JM1/or costs incuz:re4
~ coanty persona in cas.. involviDq DOD-county .....hliP:t.rativa
....,or. reqglat:ory P7:OC.-.ct:hap UJiJ./or t'oftIaJ. charq_ subject to
the llaitatiOJU$ provided herein:
a. The proceec:1inqs and/or charqes arose froJll
conduct rf1lated to the perforaance of official
duties and while servinq a valid publio purpose.
b. The County person has prevailed and suooessfullY
c;1efended against the proc:eedinqs andlor charges. .
o. The legal fees and/or .costs ~_charqed are
reasonable in amount.
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d. '!'he County person has first notified the County
;Administration and leqal staff of the pendency
of the proceedinqs and/or oharqes and has
permitted the County the . opportunity to direotly
provide counselor to ailow said County person
to choose his/her awn counsel.
e. The charqes and/or proceedings have not resulted
from the willful failure ot the County person to
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aODK 01]0 PA'1119
Agenda Item No. 16K3
September 15, 2009
th Pagei98 of 100
follow the legal advice furnished by e Off ce
of the County' Attorney, unless the Board of
county COlllJlllssioners specifically finds, at a
public meeting, that said failure to follow
legal advice was for reasons within the county
person's scope of employment and served a valid
public purpose.
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f. The legal fees and/or costs incurred by the
county person during the pendency of the
proceedings and/or the investiqatory, pre-charqe
stages of an administrative or requlatory case
shall be paid by the County only for proceedings
and/or charges involving potential civil and/or
criminal
liability
and/or
administrative/
regulatory sanctions for the county person and
"
where the allegations are . ultimately determined
to be unfounded and to have risen ~roDl conduct
related to the performance ot official duties
and while serving a valid public purpose. AGO
94-11. The provisions of Subsections 6b, c, d
and e of this Resolution shall also govern these
cases .
g. In the event that the county person has been
provided legal representation by the county and
the county person is found, by an administrative
or regulatory agency or other appropriate
tribunal having jurisdiction over the case; to
have civil or criminal liability and/or to have
violated administrative or regulatory rules ,the
county may recover from the county person in a
civil action all legal fees and/or costs paid or
incurred by the county.
7. Tbe county shall pay 1.egal fees and/or ClOSts incurred
~ iD4ivid1la1 maJDbers o~ the Board of .county co1llDli.ssioners for
iDatitutiDq, as opposed to defending, litiqation only where all
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HCll Pl'.~ 120
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Agenda Hem No. 16K3
September 15, 2009
Page 99 of 100
o~ the following circumstances are present:
a. The litigation arises from or in connection with
8.
b.
the Board lIIembers performance of official duties
and the litigation serves a valid pUblic
purpose.
This section shall apply only to members of the
Board of County CollDll:issioners ,- and not to any
other .County person" defined in Section 1 of
this Resolution.
c.
The Board member must prevail
said
in
d..
litiqation.
The leqal fees and/or cosbs are reasonable in
amount.
e.
The Board III-1fthex' shall have first notified the
f.
Board of County CODIIIlissioners, the County
Adminikator and the County Attorney prior to
the ccmmenc_ent of the litiqation and shall
have permitted the County the opportunity to
either directly provide counselor to allow said
Ccnmai.ssioner to choose his/her own counsel.
The litiqation has not resulted from the willful
failure to follow the leqal advice furnished by
the Office of the County Attorney, unless the
Board o~ County Commissioners specifically
finds, at a public meeting, that said failure to
follow legal advice Was, for reasons within the
C01lllllissioner's scope of E!1Iployaent and served a
valid public purpose.
In the event that the eo.aissioner has been
provided leqal representation by the County and
the Commissioner does not prevail in the
Ii tigation, then the County may recover fram the
'eommissioner in a civil action all legal fees
and/or costs paid or incurred by the County.
q.
All
preliminary
and
decisions
acbainisterinq
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aoult 000 Pl~! 121' ,
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Agenda Item No. 16K3
September 15, 2009
implementing this policy shall initially be made by ~~n~fl100
AdaiDistratOr and/or his designee and the Office of the county
Attorney in cooperation and consultation with each other's
respective offices.
Both offices are hereby de1eqated the
power to make any lawful and reasonabl.e investigation and
eva1uation of cases arising under this po 1. icy . s~id eval.uation
lIbal.~ take into account all available relevant information in
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addition to the. nature, type, number and substan~e of ~e
al.legations contained in any pleadings filed and/or served in
any leqal. proceeding. All final determinations regarding the
. .iJlpl~tation and administration of this policy shall be made
only by the Board of county commissioners which is in
accordaDce with AGO's 85-51, 89-22, 90-74 and 91-58. The Board
.. shal.l also make all final deter1llinations regarding the
provision of a leqal. defense and/or paying l.eqal. expenses of
eomrt:y persons for any type of ~al cl.aim or suit arising f:r:cna
a County person's performance of official duties whil.e serving
a val.id public purpose it' said type pf c:laim or,' . suit is not
speciflca.1ly addressed by this Resolution. .
g. Col.l.ier county Board' o'f county CoJIIJIli.ssioners
Resolution Nos. 85-126 and 85-178 are hereby repeal.ed and
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saperseded in their entirety.
~ Resolution adopted after motion, second and majority
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vote favorlDq same.
'r>>p:BD'i':.~#S
.EL.rEST;: . " ....
.' rilrrGBT 'E~;.~, Clerk
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.Approved as to form and
leq.a~:sufficiency:
BOARD OF COUNTY COMHI:SSJ:ONERS
COLLnm co~ FID-. RI:~DA._
By:~a ~'r
;n:rnE . ~S, Chairman
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/7 ~ .(?
( A-;;"'~1. ~J L~'
Chief .Assistant County Attorney
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annK nnu rl~t ill.
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