On March 13, 2024, at the request of Commissioner Alex Fernandez, the Mayor and City Commission referred the subject discussion item (C4 L) to the Land Use and Sustainability Committee (LUSC).  On May 1, 2024, the LUSC discussed the item and continued it to the June 10, 2024, LUSC meeting, with the following direction:

1. The Administration shall research the decibel codes utilized in New York City, Philadelphia, Pennsylvania, and Paris, France.

2. The Administration will request the participation of the city sound consultant at the June 10, 2024, LUSC meeting to further discuss the previous pilot proposal from March 1, 2023.

In 2023, the LUSC discussed a decibel-based noise standard pilot program, which included the study of stationary sound level meters at elevated locations on utility poles. However, no recommendations were made.

As noted in the attached referral memo, the item sponsor would like the LUSC to discuss a decibel system of enforcement, rather than the current reasonable noise standard, including the use of noise meters to augment enforcement measures for establishments generating unwanted noise and to pilot an initiative to allow for code enforcement officers to use decibel readers.

The current standard used for determining noise infractions (unreasonably loud, excessive, unnecessary, or unusual noise) is objective and has withstood judicial scrutiny.1  The existing standard is also less likely to result in a successful legal challenge than a decibel-based system.

A pilot program that requires entertainment establishments to place a decibel reader within the confines of the establishment may be feasible. However, depending upon the requirements established regarding the location of the readers, and the transmittal of information generated by the reader, there could be issues with First and Fourth Amendment rights. Such a program would need to be carefully crafted, and ideally agreed to by the establishment owners.

1. While the overall standard has withstood judicial scrutiny, the Eleventh Judicial Circuit of Florida’s Appellate Division recently ruled that a single clause (“or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto”) is unconstitutionally vague. The City’s challenge to that ruling is currently pending.

SUMMARY
One of the challenges with a decibel-based system is factoring in those variables outside the control of the establishment generating the noise, such as weather, temperature, and background noise. Ultimately, the true test as to whether music and other noise generated by a particular establishment is unreasonably loud when audibly perceived from an affected property is just that – the impact experienced at a particular residential property or residential units. In this regard, a decibel-based system would, potentially, mandate a fixed decibel level that would either be codified by Ordinance or in a development order. Even if that decibel level were not exceeded, the sound or music could, potentially, still be unreasonably loud within an adjacent residential area due to other, unforeseen factors. In these instances, the City would have no recourse other than to either modify an Ordinance or request that the Planning Board modify a conditional use permit (CUP).

If endorsed by the LUSC, a future pilot decibel program would require the approval of the full City Commission. Additionally, as this would be an expenditure that was not budgeted for FY 2024, the proposal would likely need to be prioritized as part of the FY 2025 budget process.

For informational purposes, attached is a study proposal prepared by Arpeggio, LLC (“Arpeggio”) regarding a potential scope of work for a decibel-based noise standard pilot program. This study proposal was provided to the LUSC in April 2023, as part of a similar discussion, and includes a potential scope for a noise pilot program covering the properties fronting Washington Avenue and Collins Avenue between 8th Street and 10th Street.

The scope includes mapping existing noise that could be used as a baseline for the purpose of creating a future decibel-based noise ordinance. The scope also included the following primary tasks for the “Noise Pilot Program”:

• Identifying potential locations for deployment of stationary sound level meters. It is presumed that a number of these may be installed at elevated locations on utility poles (with applicable approval).

• Perform a site noise survey within the geographic limits of the study area to establish typical sound levels. All equipment woud be time-synchronized to allow for correlation of data between the sites.

• Using sound level data collected on site to develop noise heat maps of the area utilizing the commercial SoundPLAN program.

• Preparation of a report summarizing findings, including maps and photographs, SoundPLAN heat maps, graphs, and tables to fully describe the sonic environment over the course of our survey. The report would also include general comments with respect to noise ordinance development.

• A “Business Owner Opt-in Option”. For businesses that provide authorization, the Consultant would work with the venue’s house sound system and typical music program to generate sound in the interior of the venue. The Consultant would simultaneously take sound measurements in the interior and exterior of the venue. This would be used to determine an average interior sound level that will yield exterior sound at or below a specific target level. If this option is utilized, the consultant would prepare recommendations for sound level meters that could be distributed to local business owners to monitor sound emissions and provide instructions. The scope also included additional optional services, such as drafting a potential noise ordinance.

Arpeggio provided the scope proposal in March 2023, and at that time included a base fee of $110,300 for the Noise Pilot Program with additional costs for optional elements. Should the LUSC recommend, and the Mayor and City Commission vote in favor of implementing this program, the cost proposal would likely be refreshed, and the services would need to be competitively procured. As funding for the study has not been identified, budgeted, or appropriated, funding would need to be prioritized as part of the Fiscal Year 2025 Budget process.

UPDATE - June 10, 2024 LUSC
At the request of the LUSC, the Administration has confirmed the participation of the city sound consultant at the June 10, 2024, LUSC meeting to further discuss the previous pilot proposal from March 1, 2023. Additionally, the Administration researched the noise codes for Philadelphia, Pennsylvania, New York City, and Paris, France. The following is a summary for each city.

Philadelphia, Pennsylvania
Section 10-403 of the Philadelphia City Code contains the following provisions related to allowable sound, which include decibel levels:

§ 10-403. Prohibited Conduct.
(1) Sound Near Protected Facilities. No person shall create or cause, or permit the creation of, sound that exceeds 3 decibels above background level measured at the property boundary of any hospital, nursing home, house of worship, courthouse, school, library or day care facility. This provision shall apply, notwithstanding the potential applicability of a less restrictive standard in this Chapter.
(2) Sound From Residential Properties. No person shall create or cause, or permit the creation of, sound originating from a residential property audible at a distance greater than one hundred feet from the property boundary or that exceeds 3 decibels above background level measured beyond the property boundary except for the following:
(a) the operation of lawn maintenance equipment between the hours of 8 a.m. and 8 p.m., provided the equipment is functioning within manufacturer's specifications and with sound-reducing equipment in use and in proper operating condition;
(b) sound originating from an air conditioning or refrigeration unit or system; sound from such a source shall not exceed:
(.1) 5 decibels above background level measured at the property boundary of the nearest occupied residential property;
(.2) 10 decibels above background level measured at the property boundary of the nearest occupied non-residential property;
(c) sound from animals, to which the restrictions of subsection (6) apply; and
(d) the unamplified human voice.
(3) Sound From Non-Residential Properties. No person shall create or cause, or permit the creation of, sound originating from a property used for a non-residential purpose that exceeds:
(a) 5 decibels above background level measured at the property boundary of the nearest occupied residential property; or
(b) 10 decibels above background level measured at the property boundary of the nearest occupied non- residential property.

New York City
Attached are the New York City noise code, as well as a published guide to the noise code. Between 10:00 p.m. and 7:00 a.m., music from bars and restaurants may not exceed 42 decibels when measured from inside nearby residences and may not exceed 7 decibels over the surrounding area sound level when measured on a public street 15 or more feet away from source.

Paris, France
No information regarding noise control for venues was available, but the city has implemented sensors to control noise from vehicles, including scooters, motorcycles and cars. Attached is an article from the New York Times providing additional information on the Paris noise control efforts.