This past Thursday, the City Council introduced an ordinance to strengthen New Orleans’ noise regulations. Predictably, I am less than thrilled. Because the issues involved are multifaceted and I always seek to edify my valued readers, I have written the following Q&A regarding these newly proposed noise laws. As a holiday bonus, the questions will be asked by the ghost of John Wayne.
Q: What does this fancy new noise law actually do, pilgrim?
A: Our current noise law has a table that provides decibel restrictions for “receiving” land uses (i.e., the property receiving the noise) and sets different standards for different zoning districts. The zoning districts in the French Quarter have significantly higher decibel restrictions.
In French Quarter Entertainment Districts and in Special Historic Districts (i.e., the Marigny), the law states that the sound can be measured 25 feet from the source with a clearance of 3 feet from any reflecting surface (because they tend to increase the reading).
The proposed ordinance creates a second table providing decibel restrictions for “emanating” land uses, which are to be measured right at the property line. It keeps the “receiving” land use table but only applies it to “sound emanating from industrial areas and public rights of way.” Furthermore, it significantly lowers the existing decibel restrictions in the French Quarter. The new noise law also adds a column to both tables setting new “c weighted” decibel restrictions.Q: Whoa now, partner. What’s this fiddle-faddle about “c weighted?”
A: It comes down to the way decibels are measured. The “weighting” refers to the frequency curve utilized by the sound meter. The gold standard for measuring decibels is “a weighting” (dBA), which is a curve designed to mimic the frequency sensitivity of the human ear.
However, the human ear is normally less sensitive to lower frequencies, so dBA cuts them off. These are the frequencies created by the loud bass noise put out by subwoofers, which can carry and create irritating vibrations. Accordingly, the ordinance seeks to restrict loud bass noise by adding “c weighted” (dBC) restrictions, because dBC is a flatter curve that encompasses more frequencies.
Q: I gotcha, poindexter. So what sticks in your craw about this law?
A: My problem is that the existing decibel restrictions were already fairly strict, and the new ones simply go overboard. When laws are written this strictly, where compliance is extremely difficult or impossible, it normally indicates that the city is looking to have wide discretion in enforcement. After all, if everybody is violating the law, police can cherry-pick venues to go after. It’s a recipe of unfairness and corruption.
The biggest change here is that instead of measuring noise from the receiving land use or from a reasonable distance, the proposed ordinance measures it right at the property line of the emanating land use. It will basically force police to jam their instruments right up against the exterior walls of bars and music clubs to get a reading.
Q: Why does measurin’ from the property line of the emanating use matter?
A: It’s a problem for two reasons. First, it’s wrong because noise dissipates over distance. Specifically, noise dissipates at a rate of 6 decibels each time the distance from the source doubles. Accordingly, under the existing law, sound is allowed to dissipate in French Quarter Entertainment Districts and in Special Historic Districts by roughly 30 decibels before a reading is taken. In all other districts, measurements are currently taken from the receiving land use (i.e., from where the impact of the noise is actually felt), which normally provides some distance for the noise to dissipate.
Secondly, it’s inappropriate on a conceptual level. Noise laws normally regulate stationary sources of noise by measuring from the receiving land use. In other words, they focus on immission (controlling sound input) rather than emission (controlling sound output). Emission noise laws are normally only used with mobile sources because they affect multiple persons and properties, making it impractical to measure from the receiving land use.
Because the goal of noise laws is to prevent other citizens from actually receiving excessive noise, not to restrict noise per se, immission noise laws are generally accepted to be a far more appropriate way of dealing with stationary sources. By pushing emission restrictions for stationary sources, the proposed ordinance simply gets it wrong.
Q: What’s yer basis for sayin’ the decibel restrictions themselves are too strict?
A: My basis is that the French Quarter is a neighborhood that needs significantly higher decibel restrictions. As the Fifth Circuit Court of Appeal noted in Reeves v. McConn, 631 F. 2d 377, 384 (5th Cir. 1980), “there is probably no more appropriate place for reasonably amplified free speech than the streets and sidewalks of a downtown business district.” This is why the decibel levels were raised in the first instance, with measurements were to be taken from a reasonable distance away.
For example, the new law maintains the dBA L10 restriction of 60 decibels or 10 decibels over ambient in French Quarter Entertainment Districts and in Special Historic Districts. This means that a source cannot exceed 60 decibels (or 10 decibels over ambient) 10% of the time.
60 decibels is roughly the level of normal human speech, so you’re talking about testing at the walls of bars in the Marigny and French Quarter for a sound equaling people talking in a normal speaking voice. And with respect to 10 decibels over ambient, you’re talking about a very small difference in noise. 10 decibels by itself is barely at the threshold of human hearing.
The proposed a-weighted decibel restrictions in other zoning districts in the Quarter and Marigny are set in the range of 75 to 55 decibels, with different standards for nighttime and daytime. Thus, we’re talking about decibel restrictions, measured directly from the source, that range from the volume of a sedate conversation to the level of the average noise from a vacuum cleaner. Taking normal dissipation into account, these are sound levels that are scarcely audible in nearby buildings.
Q: Is that “c weighting” thing plum good or plum awful?
A: Adding dBC isn’t a bad idea, but the proposed ordinance botches it. Instead of establishing the primacy of dBA, the proposed law simply adds dBC standards and sets them 5 decibels higher. The only reason why dBC should normally be used is if heavy bass sounds are heard. Otherwise, the readings will wind up being inflated and give an inaccurate account.
Q: Yeah, so it’s bad policy. But would you say this proposed law ain’t constitutional?
A: I’d say at the very least tightening our noise laws will push the line of constitutionality. Courts have consistently held that governments have a legitimate interest in restricting excessive noise, but the law must be narrowly tailored to comport with the First Amendment. Accordingly, “[w]hen the government chooses to prohibit sound levels in public places that are not demonstrably disturbing, the courts will reject the regulation as overly broad.” Lionhart v. Foster, 100 F. Supp. 2d 383, 387 (E.D. La. 1999).
In the Lionhart case, the Eastern District of Louisiana enjoined enforcement of a state law that crates “quiet zones” around hospitals and churches. Specifically, it prohibits noise exceeding 55 decibels when measured at a distance of 10 feet from the entrance. The Eastern District reasoned that the 55 decibel restriction “reaches sound that is not actually disturbing or excessive.” Id. at 388.
In another case, the Eastern District struck down a New Orleans ordinance that prohibited loudspeakers “plainly audible” on any public property. Mellen v. City of New Orleans, 1998 U.S. Dist. LEXIS 14586 (E.D. La. Sept. 11, 1998). The Court pointedly noted that the French Quarter is “not a typical residential neighborhood” and that the law in question lacked a distance restriction. The Court essentially held that the law adopted by the council wasn’t even close to being narrowly tailored.
What all this means is that the City Council should be treading lightly in this area, but they’re not. Shifting from regulating immission to emission is a radical change and a departure from standard practice. Other citizens aren’t normally disturbed or annoyed by sound levels at the property line of the emanating land use unless those levels are already excessively high. Thus, I do not believe the proposed law is narrowly tailored and is, therefore, unconstitutional.
Q: You say, that, partner, but didn’t the city hire some city slicker expert for his opinion on this?
A: They did. They just didn’t follow it.
Back in 2011 the city hired David S. Woolworth of Oxford Acoustics to issue a report on noise regulation in New Orleans. His report was released this past August, and contained specific recommendations for revisions to our noise laws.
Woolworth did not recommend anything resembling the proposed ordinance. He did not propose creating a new category of regulations for “emanating” land uses (i.e., regulating emission). He did support cutting the 25 foot distance at which sound is tested to 5 feet, but he did so with higher decibel restrictions and the elimination of the “60 decibels or 10 decibels over ambient” standard. He did not recommend the tighter decibel restrictions in other districts in the Quarter and Marigny either.
Woolworth did recommend adding dBC restrictions, but with the proviso that dBA would be the “primary measure,” while dBC “may be used as a secondary measure, especially when the complaint is about low frequencies or in a residence.” The bottom line is that the proposed ordinance ignores Woolworth and takes very little from his report.
Q: So what’re the political prospects on this?
A: The proposed ordinance has a great deal of political backing, although it’s not even clear who wrote the dang thing. It was co-sponsored by Councilwomen Kristin Gisleson Palmer, Jackie Clarkson, Stacy Head and Cynthia Hedge-Morrell.
Outgoing Councilwoman Palmer, who represents the French Quarter, insists that the text didn’t originate from her office and that she co-sponsored it as a “starting point for public consideration and discussion.” Nevertheless, Palmer has spoken out in support of these types of restrictions in the past, essentially becoming the mouthpiece of VCPORA.
Q: Any parting thoughts, partner?
A: This is a complex issue. I haven’t even described all of the problems with the proposed ordinance. The complexity of all of this is what the anti-music crowd is counting on; that people aren’t going to understand the magnitude of what is being proposed. They’re arguing that this is just a modest tweaking of decibel standards and measurement protocols.
In reality, this is a sea change. We’re going from an immission standard to an emission standard while simultaneously enacting tougher decibel restrictions. Especially in a neighborhood like the French Quarter, compliance isn’t going to be realistic. Even with sound dampening, these restrictions are simply too easy to violate.
This is serious. If you want to allow music to flourish in this city, if you want fair and reasonable laws, then you need to oppose this ordinance. Let your councilmember know how you feel.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.