Jan 062014
 

Owen Courreges

When it comes to noise laws, the constitutional issues arise on both ends.  The way the law is written is crucial, because it must be narrowly tailored.  The way the law is enforced is equally essential, because Courts will look to practical realities.

All of this is essential to understanding the problems inherent in New Orleans’ proposed revisions to its noise ordinances.

In  U. S. Labor Party v. Pomerleau, 557 F.2d 410, 411-412 (4th Cir. 1977), a case out of the 4th Circuit, the Court addressed Baltimore’s noise law which created hard decibel limits to be measured “at any point on the property line of the use.”  This is very similar to the new proposed ordinance in New Orleans, which requires that measurements be made from “as close to the property line of the emanating land use as is practicable.”

What happened in Baltimore is that noise enforcement officers rapidly figured out that they lacked land surveys and were often uncertain where the properly line was.  Thus, while the city “generally measured sound levels along the property line of the use,” in commercial downtown areas where detecting the location of the property line was difficult, the city would measure from sidewalks or adjacent corners where complaints were likely to arise.

A lawsuit was brought by the U.S. Labor Party to enjoin enforcement of the Baltimore ordinance after they were cited for violating decibel limitations in public streets.

The District Court held in favor of the city, but the 4th Circuit reversed, finding that because noise control officers could not follow the directive of the ordinance to measure at the property line, the law “depend[ed] on the subjective opinion of the investigator.  Accordingly, “the speaker ha[d] no protection against arbitrary enforcement of the ordinance.”

The 4th Circuit also reversed on a second ground.  The Court noted that the decibel limitations “prohibit[ed] amplification that creates no more noise than a person speaking slightly louder than normal.” Thus, the city had no legitimate interest in “banning amplified political messages which do not exceed the sounds encountered daily in the most tranquil community.”

Now, New Orleans’ proposed noise ordinance does not actually implicate the narrow holding of U.S. Labor Party because it applies a separate set of standards to noises emanating from public rights-of-way, which are still measured from the receiving land use.  However, reasoning of U.S. Labor Party strongly suggests that the City Council is about to pass yet another unconstitutional noise restriction.

Both Baltimore and New Orleans are old cities with unclear property lines in downtown commercial areas.  It seems doubtful that the NOPD will have an easier time enforcing the new ordinance (assuming it passes) than did the highly specialized “Bureau of Noise Control” in Baltimore. As a result, the NOPD will likely default to arbitrary, complaint-driven enforcement.

Secondly, the New Orleans decibel restrictions take up a very low range, with many of the restrictions set at a level lower than an ordinary conversation.  Moreover, the reading is taken a mere “as measured within a few feet of the speaker,” which will render the decibel limitations too onerous.

The proposed Orleans ordinance also gives officers discretion whether to use dBA (A-weighting) or dBC (C-weighting) in measuring sound, with the latter resulting in much higher readings because dBC is designed to capture more frequencies than the human ear is sensitive to.  However, it offers no guidance to officers regarding which standard to use in a given situation.  As in U.S. Labor Party, this means that the “subjective opinion” of the officer on the street determines the standard of measurement.

Finally, the fact that the U.S. Labor Party case involved a political protest does not distinguish it.  The Supreme Court has held that music is entitled to all the protection the First Amendment offers.  Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).  Musicians can, and should, expect all the protections afforded political protestors.

What all of this means is that the regulatory scheme being pushed by VCPORA, anti-noise groups and certain members of the City Council, is going over the same ground as the ordinance from Baltimore.  There is no reason why we should expect a different outcome; if the proposed ordinance is passed, we will have yet another lawsuit.  The city has been batting poorly on those.

Instead of proposing an highly-complex ordinance that is, at best, of dubious constitutionality, the council needs to look into some bare-bones regulatory scheme that catches the most egregious offenders and is easy for the NOPD to enforce.  Sadly, it does not look like we’re headed in that direction.  Instead, we’re going down the same well-worn path that Baltimore did 35 years ago.

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.

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  • kmsoap

    Well put, Owen. MaCCNO has been asked to draft an alternative ordinance and we would love to have your assistance.

  • Karen Sepko

    Owen,
    Please buy the Ap for your iPhone “dB Meter Pro” for $0.99. Test out decibel readings yourself. The decibel readings in the current ordinance and proposed ordinance (45dBA – 90 dBC) are not practical. BUT, the real BIG ISSUE is the Point of Measurement taken at the property line of a business rather than from a complainant point of reference. Sound dissipates quickly as you move from the source. If the noise bothers a resident, the sound measurement should be taken from inside his home not on the public street. If a measurement is taken off a public street, there is NO WAY a business owner will pass. Furthermore, this “minor change” is major because it allows ANYONE to complain about noise from a business property line and file a lawsuit against a company that violates the ordinance. This sets up the perfect Class Action Lawsuit.

    There are over 40 lawsuits that have been filed by one complainant against businesses over the existing Sound Ordinance. His attorney has found the perfect loop hole and has been filing sound lawsuits costing the insurance companies hundreds of thousands of dollars in defense costs and settlement money. This is “legal” extortion.

    The insurance companies are pulling back now and exempting “Sound Complaints” from their business insurance policies due to the extreme defense cost, settlement payouts and analysis of the existing ordinance that is difficult to comply with. Business owners need to know this because if this sound ordinance passes as written, they will be out of pocket defending against this attorney and his class action machine. This could bankrupt a company quick.

    The next step this ” 20 Neighborhood Association Coalition” is doing is getting the New Orleans Health Department to set up an internal department with qualified sound technicians to monitor the sound emanating from businesses. This will add the technical credence to the class action complaint and eliminate the argument the sound measurements were not taken by qualified technicians.

    The group that put the Seven Essentials together that got their Proposed Ordinance Signed off by City Council on Dec 19, 2013 is claiming they have the support of “20 Neighborhood Associations”. It’s questionable if these Associations truly represent the majority of the people they claim.
    Here it is! The list of 20 Neighborhood Associations that support the proposed ordinance. If yours is listed, it’s time to rethink what you signed up for.. What Katrina could not do .. this will. This Sound Ordinance as written, will be the END NEW ORLEANS.

    1. Algiers Presidents Council
    2. Bywater- Neighbors First for Bywater
    3. Coliseum Square Association
    4. Delachaise Neighborhood Association
    5. Eastern New Orleans Neighborhood Advisory Commission (ENONAC)…
    6. Esplanade Ridge/Treme Civic Association
    7. Faubourg Marigny Improvement Association
    8. Faubourg St. John Neighborhood Association
    9. French Quarter Citizens
    10. Fontainebleu Neighborhood Association
    11. Garden District Neighborhood Association
    12. Lafayette Square Association
    13. Lake Vista- Lake Vista Property Owners Association
    14. Louisiana Landmarks Society
    15. Maple Area Residents, Inc.
    16. Mid-City Neighborhood Association
    17. St. Charles Avenue Association
    18. Uptown Triangle Neighborhood Association
    19. Vieux Carré Property Owners and Residents Association
    20. Warehouse District Association

  • Karen Sepko

    Owen
    There is a Business Owner’s meeting today at Barcadia, 601 Tchoupitoulas 4:45pm – 5:45 pm if you care to attend. We plan to discuss the Sound Ordinance and insurance what it means to doing business in Orleans Parish.

  • Owen Courrèges

    AhContraire,

    Forth Worth’s decibel maximums in commercial areas are 80 dBA during the day and 70 dBA at night, measured from the property line of the receiving use. This is more liberal than New Orleans’ existing noise laws.

  • Owen Courrèges

    AhContraire,

    According to you, it shouldn’t matter either way. You claim that decibel levels are as high on one side of the street as the other. Moreover, it doesn’t explain why Forth Worth should have higher decibel restrictions. Decibels are decibels regardless of how big the street is.

  • Cher