Farmersville Municipal Code Ch. 9.04 Noise

Footnotes:

--- (1) ---

Editor's note— Ord. No. 448A, § 2, adopted September 27, 2010, repealed the former Chapter 9.04, §§ 9.04.010—9.04.110, and § 3 of Ord. No. 448A, enacted a new Chapter 9.04 as set out herein. The former Chapter 9.04 pertained to similar subject matter and derived from Ord. No. 166; Ord. No. 363; Ord. No. 375; and Ord. No. 396, 2002.

A. It is declared to be the policy of the city that the peace, health, safety and welfare of its citizens require protection from excessive, unnecessary and unreasonable disturbances and noises from any and all sources in the community. It is the intention of the city council to control the adverse effect of such noise sources on local residents under any condition of use, especially those conditions of use which have the most severe impact on the ability of any person to sleep or peacefully enjoy the City of Farmersville.

B. This chapter is enacted, in part, to remedy and defray the costs associated with responding to and abating public disturbances and other public nuisances that repeatedly occur or exist at the same location, and to ameliorate those conditions and hold responsible the property owners or other responsible persons.

(Ord. No. 448A, § 3, 9-27-2010)

A. "Disturbance" and "disturb" shall include conduct creating, causing, committing, maintaining or allowing to exist any disturbing or loud noise or sound; any conduct which disrupts the peace and quiet of a neighborhood; or any conduct which interferes with the quiet enjoyment of neighboring property by persons lawfully thereon.

B. "Owner" means the person(s) (including individual(s), corporation, partnership or other entity) having legal or equitable title to the property.

C. "Property" means any real property and any improvement thereon incidental or appurtenant, including but not limited to any room, apartment, house, building, structure or any separate part or portion thereof, whether permanent or not.

D. "Response" shall mean the arrival of a police officer at the scene of a disturbance to render whatever service is reasonably required in order to abate a disturbance or other public nuisance.

E. "Responsible party" is each person owning, leasing, occupying, or having charge or possession of property where a disturbance takes place, and any person who organizes, controls or participates in a disturbance. If the responsible person is a minor, then the parent or guardian who has physical custody of the child at the time of the disturbance shall be the responsible party.

F. "Loud and unreasonable noise" shall have the same meaning as used in Penal Code Section 415 and the following:

1. The sounding of any horn, signal or noise device on any automobile, motorcycle, bus, truck or other vehicle, in any other manner or for any other purpose than allowed by the California Vehicle Code or other federal, state or local laws;

2. The noise generated by the exhaust system of any vehicle which is not equipped, constructed, operating or maintained in a manner that prevents such noise from being audible by any person twenty-five or more feet away from the vehicle;

3. The revving sound created by the engine of any motor vehicle, while such vehicle is not in motion, when the engine's revolutions per minute (RPM) exceed the normal idle RPM for that vehicle model, except when done in the course of repairing, adjusting or testing the vehicle or when the vehicle initially malfunctions for the first time;

4. Shouting, screaming or crying by peddlers, hawkers, vendors or newspaper carriers that can be heard by any person thirty or more feet away;

5. The playing or operating of any radio, phonograph, orchestra or other musical device or instrument at an audible volume that can be heard by any person at a distance of thirty or more feet away; and

6. Shouting, screaming, wailing or other vocalization that can be heard by any person thirty or more feet away from the exterior of the vehicle, building, home or other facility where such noise originates.

G. "Loud and unreasonable noise" shall not include any non-commercial speech that has artistic, literary, religious, social or political value when such speech occurs in a traditional public forum and does not violate any reasonable and applicable time, place or manner restriction(s).

H. "Enforcement officer" means either a police officer or a code enforcement officer of the City of Farmersville.

(Ord. No. 448A, § 3, 9-27-2010)

A. No person shall disturb the peace, quiet and comfort of any neighborhood or create, cause, commit, maintain or allow to exist any loud and unreasonable noise.

B. Violation of subsection A shall constitute a public nuisance and upon a second or subsequent violation within twelve months of a prior violation (at the same location or by the same person) shall be subject to immediate and summary abatement pursuant to Health and Safety Code Section 38773.

C. A violation of subsection A which also constitutes a violation of Penal Code Section 415 shall not be punishable under this code as either a misdemeanor or an infraction but shall still constitute a civil public nuisance.

(Ord. No. 448A, § 3, 9-27-2010)

A. At the first response to a public disturbance call at a property, the responding enforcement officer shall determine if a violation of Section 9.04.030 has occurred. If the enforcement officer determines that a violation has occurred, the enforcement officer shall inform a responsible party that the disturbance must cease immediately and shall issue a written "notice of public disturbance violation" to all responsible parties. The notice required by this section shall advise the responsible party that each subsequent violation of this chapter within one year following such notice will result in the assessment of a nuisance abatement service charge as provided in this chapter.

B. If an enforcement officer determines that a subsequent violation of section 9.04.030 occurred on privately owned real property where a written "notice of public disturbance violation" was issued to a responsible party within the past twelve months, the enforcement officer shall issue a notice of public disturbance violation to each responsible party and the owner of the property shall be liable for a nuisance abatement service charge payable to the City of Farmersville for the administrative, investigative and abatement resources utilized by the City of Farmersville for such violation. The service charge must be listed in the notice of public disturbance violation and must be in an amount based on the standard rate(s) set by resolution of the city council pursuant to a public hearing.

C. The written notice required under this section must be in writing and must:

1. Identify the responsible party including the owner(s) of the premises upon which the violation exists, as named in the records of the county assessor.

2. Describe the location of such premises by its commonly used street address, giving the name or number of the street, road or highway and the number, if any, of the premises.

3. Identify such property by reference to the assessor's parcel number, if reasonably possible.

4. Contain a statement that violation occurred on the premises, describe the nature of the violation and that it has been determined by the enforcing officer to be a public nuisance as described in this chapter.

5. Contain a statement that the owner or occupant is required to abate all future violations of this chapter.

6. Contain a statement that the owner or occupant may, within ten calendar days after the date that said notice was served, make a request in writing to the city clerk for a hearing with the city manager or the city manager's designee to appeal the determination of the enforcing officer that the conditions described in the notice of public disturbance violation constitute a public nuisance, or to show other cause why those conditions are not subject to abatement in accordance with the provisions of this chapter. The hearing shall be held in accordance with the procedures set forth in Section 1.13.060 of this code.

7. Contain a statement that, unless the owner or occupant requests a hearing before the city manager or designee, within the time prescribed in the written notice, the determination of the enforcement officer shall become final. It shall also state that the abatement costs, including administrative and investigative costs, shall be made a special assessment added to the real property tax assessment roll and become a lien on the premises, or be placed on the unsecured tax roll.

8. Indicate that the premises may be sold by the tax collector after three years of unpaid delinquent assessments.

D. The Farmersville Police Department shall cause to be issued an invoice for the service charges accrued by a responsible party pursuant to this chapter, unless the responsible party has timely filed a request for hearing (or appeal hearing) as authorized by the provisions in this section. Such bill shall be due and payable within fifteen days after the billing date. Failure to pay after sixty days from the billing date shall result in an additional ten percent late charge per each response invoice.

(Ord. No. 448A, § 3, 9-27-2010)

A. It is a defense to any notice of public disturbance violation under this chapter, that the responsible party, at the time the alleged action(s) or behavior(s) occurred resulting in a violation Section 9.04.030 or section 9.04.090(I), could not, in the exercise of reasonable care or diligence, determine that a public disturbance occurred at the property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that a public disturbance had occurred at the property. The responsible party shall bear the burden of proving such defense by clear and convincing evidence. The assertion that the responsible party was not present at the property at the time the alleged public disturbance occurred upon the property, shall not be a defense.

B. For any appeal to the city manager's office made pursuant to this chapter, the hearing officer may consider any of the following factors, as appropriate, in its decision, and shall cite those found applicable in any decisions:

1. The effort taken by the responsible party to mitigate or correct the alleged action or behavior which occurred at or near (as defined in this chapter) and in relation to the property;

2. The degree to which the alleged action or behavior at the property was repeated or continuous;

3. The magnitude or gravity of the alleged action or behavior;

4. The cooperativeness of the responsible party with the city in causing the abatement of the violation at issue;

5. The reasonableness of the city's investigation and abatement action or behavior or attempt to correct the condition; or

6. Any other factor deemed by the hearing officer to be relevant.

C. The decision of the hearing officer on appeal shall be final. Any written decision affirming the finding of a violation may increase the nuisance abatement service charge by an amount equal to the cost for conducting the appeal hearing.

D. A responsible party found, after an initial hearing, to be liable for a nuisance abatement service charge pursuant to this chapter shall have the right to an administrative appeal hearing pursuant to the procedures set forth in Section 1.13.100 of this code. Any decision affirming the finding of a violation may increase the nuisance abatement service charge by an amount equal to the cost for conducting the appeal hearing.

(Ord. No. 448A, § 3, 9-27-2010)

If any section, subsection, sentence, clause, provision, portion, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The city council hereby declares that it would have passed this chapter and each section, subsection, sentence, clause, portion, or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid or unconstitutional.

(Ord. No. 448A, § 3, 9-27-2010)

All remedies provided for herein are cumulative and not exclusive, and are in addition to any other remedy or penalty authorized by law.

(Ord. No. 448A, § 3, 9-27-2010)

A. Unless otherwise indicated or exempted in this chapter, each violation of Section 9.04.030 or Section 9.04.090(I) shall also be subject to an administrative citation, governed by Chapter 1.13 of this code, unless the violation is cited as an infraction and prosecuted in a court of law. An administrative citation may be issued in addition to a notice of public disturbance violation regardless of whether or not the violation is the first in the preceding twelve months.

B. Collection of administrative fines and penalties for violation of this chapter shall be made pursuant to any of the methods set forth in Section 1.13.050 of this code. Such administrative fines and penalties which may become due shall be independent of any nuisance abatement service charge assessed for a second or subsequent violation of this chapter within the preceding twelve months.

(Ord. No. 448A, § 3, 9-27-2010)

A. Notwithstanding any other provision in this chapter, the following shall not constitute a violation of Section 9.04.030:

1. Any lawful activity occurring pursuant to, and in conformity with the terms of, a permit validly issued pursuant to this chapter.

2. Any lawful non-commercial speech that has artistic, literary, religious, social or political value when such speech occurs in a traditional public forum and does not violate any reasonable and applicable time, place or manner restriction(s).

3. Any live sporting event lawfully occurring at a public park.

4. Any activity officially sponsored or conducted by the City of Farmersville.

5. Lawful construction activities, building repairs, landscaping activities and maintenance related thereto occurring within the hours of six a.m. and nine p.m. on any weekday, or nine a.m. and ten p.m. on any day that is immediately followed by a Saturday, Sunday or a recognized state or federal holiday.

B. A person may apply for a noise exemption permit by submitting an application to the Farmersville Police Department, on a form prescribed by the chief of police, no later than five days before the proposed effective date of the permit. Completed applications must be accepted by the Farmersville Police Department on non-holiday weekdays between the hours of nine a.m. and five p.m. local time.

C. The application must specify the street address of the premises where the permit shall be used, the full legal name of the applicant, the full legal name of the owner of the premises, telephone number of the owner and applicant, and a brief description of the nature of the event or conduct that will occur under the permit. The application must be signed by the applicant and the owner of the premises (if not publicly-owned property) and must be accompanied by a legible copy of a government-issued identification card (or driver's license) of the owner and the applicant. The application form prescribed by the chief of police may include a cost-recovery and indemnification agreement in favor of the City of Farmersville in the event that any term or condition of the permit is violated, authorize the imposition of any reasonable terms and conditions for the permit, and require the applicant and owner to obey all applicable laws. The application shall not be complete, and may be rejected or not processed, unless all requirements of this subsection are satisfied.

D. Within seventy-two hours after accepting a completed application for a noise exemption permit, the chief of police or his/her designee shall issue a noise exemption permit containing reasonable terms and conditions that are rationally related to the nature of the event and the prior history of violations of this chapter by the applicant or owner, or the location where the noise exemption permit shall be utilized. In order to be valid, the noise exemption permit must be signed by the chief of police or his/her designee and shall indicate the effective date which shall be the only date that the permit shall be used.

E. Any application for a noise exemption permit may be denied if any provision in this chapter has been violated by either the owner, applicant or at the subject premises within the twelve months preceding the proposed effective date of the requested permit. Any applicant may appeal the denial of their application pursuant to the procedures set forth in Sections 1.13.060 through 1.13.100 of this code.

F. No noise exemption permit issued under this section shall be valid earlier than seven a.m. on the effective date, or nine a.m. if the effective date is a Saturday, Sunday or a recognized state or federal holiday.

G. Unless the terms of the noise exemption permit indicate an earlier time, each permit shall expire and become invalid at nine p.m. on the effective date, or eleven fifty-nine p.m. if the effective date is immediately followed by a Saturday, Sunday or a recognized state or federal holiday.

H. On the effective date of a noise exemption permit, and when such permit is being utilized, the permit must be clearly posted at the site where it is utilized and any enforcement officer or any owner or resident of adjacent real property who requests to read it must be allowed to do so.

I. No person acting under a noise exemption permit issued under this section shall create, cause, commit, maintain or allow to exist any noise which is audible by any person at a distance of one hundred yards or more from the exterior of the vehicle, building, home or other facility or location where such noise originates, unless expressly exempted by the noise exemption permit. Violation of this subsection shall be a public nuisance.

J. Any violation of either the terms and conditions of a noise exemption permit, subsection H or subsection I shall immediately revoke the noise exemption permit by operation of law and no written notice thereof is necessary.

(Ord. No. 448A, § 3, 9-27-2010)

Nothing in this chapter shall be construed as imposing on any enforcing officer or the City of Farmersville any duty to issue a notice of public disturbance violation, nor to abate any public nuisance as defined in this chapter, nor to take any other action with regard to any such public nuisance. Neither the City of Farmersville nor any enforcing officer shall be held liable for failure to issue a notice of public disturbance violation, nor for failure to abate any public nuisance under this chapter, nor for failure to take any other action with regard to any such public nuisance.

(Ord. No. 448A, § 3, 9-27-2010)

A. If a hearing has not been timely requested by the owner of real property who was issued a notice of public disturbance violation, or after all timely appeals under this code have occurred and the property owner remains responsible for the nuisance abatement service charge, pursuant to Government Code Section 38773.5(c) the city manager or designee may send a "notice of abatement lien" by certified mail to the record owners of the premises. The notice of abatement lien must indicate that the premises may be sold by the tax collector after three years of unpaid delinquent assessments.

B. After the notice of abatement lien is sent in accordance with the requirements in subsection A, the city manager or designee may record the notice of abatement lien pursuant to Section 38773.5(e) of the Government Code as a special assessment against the respective parcels of land and authorize the County of Tulare to place such assessment lien upon the secured county tax roll or on the unsecured roll in accordance with Section 38773.5 of the Government Code. However, the nuisance abatement service charge shall not be placed on any tax roll if paid in full at the city manager's office prior to entry of said costs on the tax roll.

C. The notice of abatement lien may be withdrawn, discharged or released upon payment in full of all amounts due.

D. All amounts paid by or on behalf of the property owner, or remitted by the County of Tulare, to the city manager's office as a nuisance abatement service charge shall be allocated into a public disturbance nuisance abatement recovery fund and thereafter allocated to the appropriate city departments which incurred expenses in connection with the abatement process.

(Ord. No. 448A, § 3, 9-27-2010)