We have all been on at least one side of the noise dial: We are at a stoplight and there is a significant amount of noise. For those creating the sound, they perhaps call it “sound enlightenment” or a gracious display of giving music to the world. For others, it is simply called noise pollution.
For “sound enlightenment” readers, someone may have told you to turn it down, and you then showed them your fondness of the kingdom of Animal, phylum of Chordata, and the Class of Aves (scientific classification for birds in general) with non-verbal finger gestures. For those that consider loud vehicle sounds as noise pollution, you may have equally shown your love of our flying natured friends in a similar manner.
There are a significant percentage of people who are woken up by noise pollution at their homes either by passing sound enthusiasts or a partying neighbor. Most of the time the conflict between the sound enthusiast and noise pollution clans is short-lived and simply a small annoyance.
However, there are some people who are constantly bombarded by a repeat offender, which can significantly disrupt a person’s quality of life. Unfortunately, a citizen’s private remedies are very few, and the citizen must rely heavily on law enforcement or state agency assistance.
This article first breaks down the noise laws, and then discusses what can and cannot be done by citizens to take control of the situation themselves through the court-system.
What’s on the Books?
The Florida Constitution has a general policy to abate “excessive and unnecessary noise and for the conservation and protection of natural resources.” While that is a great policy, it really does not say very much.
Up until this year, section 316.3045, Florida Statutes, provided some relief from noise pollution originating from vehicles on public roadways. In essence, the statute prohibited a driver from playing sound in a vehicle that could be heard farther than 25 feet away. The statute was enforceable by law enforcement and therefore did not provide a private remedy for other drivers or to seek court assistance.
However, section 316.3045 was declared unconstitutional in 2011 when an attorney based out of Pinellas County argued that it violated his free speech. State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011). Let me be clear, the attorney was not representing another client who violated the statute. The attorney himself challenged the statute after he pled no contest to his own violation to the statute.
The statute does not provide a private homeowner any relief to seek court assistance against neighbors. It only applied to violations on public roadways. Nevertheless, the ruling against the statute was a huge defeat to the groups trying to establish more restrictions to noise pollution. It was a huge win for those who believe that loud music is an expression of free speech.
In the three major counties that my column covers, there are noise ordinances that are intended to protect residents from loud noises in their neighborhood.
In Pasco County, the noise ordinances are in sections 66-91 through 66-97. There are animal noise provisions in section 14-98. In Tampa, the noise ordinances are in 14.151. I found St. Petersburg noise ordinances in sections 11-47 through 11-55. I found Clearwater’s noise ordinances here. Almost all local city and county ordinances are available at www.municode.com.
What struck me about the noise ordinances is that almost every one was only enforceable by law enforcement or a government agency. In essence, if your neighbor is sharing his or her love of music with you at 3 a.m., you would have to rely on the police to take action. Don’t get me wrong, I have a deep respect for law enforcement. Additionally, the initial call to law enforcement may provide an immediate resolution but may not help against multiple and constant offenders. My point is that the citizen cannot directly seek judicial assistance under the civil court system under the ordinances.
So What is a Person to Do?
How can you seek judicial assistance against the offender without relying on law enforcement?
Your options are limited. There is an old Florida Supreme Court case that says essentially that a private citizen can seek court assistance under the theory of “nuisance” to stop noise pollution. Bartlett v. Moats, 162 So. 477 (Fla. 1935).
There are several practical problems with this private remedy. First, you can only get a civil injunction, which is an equitable remedy. This means you cannot reduce your court expenses or the speed of the case by filing in Small Claims court. I have previously written articles on both equitable courts of law and the benefits of . There is a significant difference between Small Claims courts and County/Circuit courts in speed, expense and procedure.
I recently thought of an alternative idea in a noise pollution case in Pinellas County that perhaps noise could be a trespass. This would allow the case to stay in Small Claims court, reduce filing fees, reduce complexity, and hit violators where it hurts: the wallet. The theory was that noise is energy and we all know noise can affect our physical surroundings. Noise has been shown to shatter glass. In essence, noise is a physical vibration. However, a judge disagreed and dismissed my trespass theory with prejudice.
As such, it appears that while our elected officials have carefully considered and implemented provisions to prevent intrusive noise, they have also left enforcement of noise violations largely in the hands of the government. Private court proceedings are generally expensive, drawn out, and procedurally complicated under the current remedies available.
Do the lawmakers believe that allowing private citizens to pursue their own remedies will open up frivolous litigation? I don’t know. Nevertheless, what are your thoughts? Should you be able to reduce noise affecting you with the assistance of the civil courts in a more efficient way? Or are these matters better left to government agencies and law enforcement?