BOOK 41 Page 14751 06/10/97 4:00 P.M. MINUTES OF THE SPECIAL MEETING OF THE SARASOTA CITY COMMISSION ON JUNE 10, 1997, AT 4:00 P.M. PRESENT: Mayor Gene Pillot, Vice Mayor Jerome Dupree, Commissioners Mollie Cardamone, David Merrill and Nora Patterson, Deputy City Manager V. Peter Schneider and City Auditor and Clerk Billy Robinson ABSENT: City Manager David Sollenberger PRESIDING: Mayor Pillot The meeting was called to order in accordance with Article III, Section 9 of the Charter of the City of Sarasota at 4:01 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. 1. CHANGE TO THE ORDERS OF THE DAY - APPROVED #1 (0020) through (0042) City Auditor and Clerk Robinson presented the following Change to the Order of the Day: A. Add as Item No. I-A, Discussion Re: 70 decibel maximum permissible sound level in the C-CDB Zone District per the request of Commissioner Patterson On motion of Commissioner Cardamone and second of Vice Mayor Dupree, it was moved to approve the Change to the Orders of the Day. Motion passed unanimously (5 to 0): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, yes. 2. APPOINTMENT RE: PLANNING BOARD/LOCAL PLANNING AGENCY (PBLP) APPOINTED MS. SANDY VAUGHN (AGENDA ITEM I) #1 (0042) through (0320) Mayor Pillot stated that the terms of Ronald Annis and Judson Boedecker have expired; that Mr. Annis and Mr. Boedecker have served two full terms on the PBLP and are not eligible for reappointment; that a number very qualified people have applied for appointment to the PBLP. Commissioner Cardamone stated that Mr. Boedecker's term has expired although he is willing to continue serving for which appreciation is expressed; however, selecting two new members for the PBLP would be an efficient use of Staff time; and requested the opinion of the other Commissioners. Commissioner Merrill stated that the Commission had an interest in maintaining continuity on the PBLP through the completion of the Land Development Regulations (LDRs); ; therefore, a request was made of Mr. Boedecker to continue serving; and voting for a replacement is not favored until his interests are determined. Commissioner Cardamone stated that Mr. Boedecker's continued willingness to serve was understood; however, the understanding was also that he did not wish to do so for a long period of time; that the suggestion to appoint two new members to the PBLP was based on her understanding of Mr. Boedecker's interests. Mayor Pillot asked if a nomination of Mr. Boedecker is in order? City Auditor and Clerk Robinson stated the Mr. Boedecker, who has served two terms, is not eligible for reappointment but has indicated he is willing to continue to serve until a replacement is appointed; that his continued service could be discussed with him prior to the next regular City Commission meeting of June 16, 1997, at which time another appointment to the PBLP could be discussed. Commissioner Patterson stated that Mr. Boedecker has served the City admirably for six years during a period of considerable activity by the PBLP; that retaining the two PBLP members whose terms are expiring while the LDRS are being revised would have been desirable; however, the expressed desire of Mr. Annis to be replaced at the earliest possible date will result in lost continuity; that the interests of Mr. Boedecker should be considered. Mayor Pillot asked the wishes of the Commission. Commissioner Merrill stated that one appointment could be made at this meeting and a second appointment considered at the regular City Commission meeting of June 16, 1997, prior to which Mr. Boedecker can be consulted. Upon hearing general agreement, Mayor Pillot stated that the consensus of the Commission is to delay action on the appointment to the PBLP seat occupied by Mr. Boedecker until he is contacted. Mayor Pillot called for nominations for appointment to the seat on the PBLP currently occupied by Mr. Annis. Commissioner Cardamone nominated Ms. Sandra Vaughn. Commissioner Patterson nominated Dierdre Fuller, known as DeDe Fuller. Mayor Pillot nominated Dr. Robert Kantor. Commissioner Cardamone stated that Ms. Vaughn, who has lived in the City a long time, is well known as being active in the relatively new East Sarasota Neighborhood Association, now called the Park East Neighborhood Association, has an interest in City matters, and BOOK 41 Page 14752 06/10/97 4:00 P.M. BOOK 41 Page 14753 06/10/97 4:00 P.M. is currently a member of the Nuisance Abatement Board; that she is pleased Ms. Vaughn applied; that all the applicants are well qualified. Commissioner Patterson stated that Ms. Fuller, who has been known a long time, is a realtor with considerable experience and knowledge of land use and has lived in the City for a long period of time; that all the candidates are well qualified. Mayor Pillot stated that a large number of highly qualified people have applied; that Dr. Kantor is known best and brings a prospective as a businessman and long-time City resident who could bring new insight to the PBLP. Commissioner Patterson stated that all the candidates would serve the City well; that Ms. Vaughn is an excellent candidate but is already serving on the Nuisance Abatement Board; that her intention would also have been to nominate Dr. Kantor, who has a long- standing expressed interest, if two appointments were being made. Mayor Pillot called for a vote on the nomination of Ms. Sandra Vaughn. Nomination carried (3 to 0): Cardamone, yes; Dupree, yes; Merrill, yes. Mayor Pillot stated that a majority has been achieved and announced the appointment of Ms. Sandy Vaughn to the PBLP. 3. DISCUSSION RE: 70 DECIBEL MAXIMUM PERMISSIBLE SOUND LEVEL IN THE C-CDB ZONE DISTRICT - DIRECTED THE ADMINISTRATION TO BRING BACK MR. IAN S. CADDIE, NOISE EXPERT, OR AN EOUALLY COMPETENT CONSULTANT TO REPORT ON NEW DATA AT THE EARLIEST POSSIBLE TIME WITH THE POSSIBILITY OF SCHEDULING A SPECIAL COMMISSION MEETING PRIOR TO THE JULY 7, 1997, REGULAR CITY COMMISSION MEETING (AGENDA ITEM I-A) #1 (0321) through (4300) Commissioner Patterson stated that mixed reports have been received concerning the noise level in Downtown as measured by sound meters using the decibel A-weighting (dBA); that a proposal was made to change the threshold at which noise would be regulated from 70 to 75 dBA at the second reading of Ordinance No. 97-3994; that one consideration in her vote was the change was not appropriate between first and second reading; that another consideration was that sound meter readings taken by Mr. Ernest Ritz, owner of the Gator Club and landlord of the Main Street Depot, indicated control was possible at the 70 dBA level; therefore, her inclination was not to increase the dBA level at second reading of the ordinance; however, Mr. Ritz's sound meter must be in error; that more data may be helpful before fines are issued on the basis of dBA levels; that a comparison of sound meter readings by Mr. Ian S. Caddie, the noise expert hired by the City, and those of the Police Department would be helpful; that her confusion is not whether the police are performing the noise level measurements correctly but rather whether the Commission had all the necessary information prior to making a decision. Vice Mayor Dupree stated that once Ordinance No. 97-3994 was passed, the anticipation was reliance would be placed on the Police Department's enforcement responsibility; that sound meter readings by other people was not anticipated. Commissioner Patterson stated that Vice Mayor. Dupree's point is valid. Mayor Pillot stated that a memorandum with an attached packet of information was received by the Commission from the Police Department; that management of the Police Department directed that sound meter readings for enforcement purposes will be taken only by equipment owned and calibrated by police officers; that the police officers are not to become involved in using any noise measuring equipment provided by involved businesses; that the directive is commended. Russell Pillifant, Deputy Police Chief, and Lewis White, III, Police Lieutenant, came before the Commission. Deputy Chief Pillifant stated that numerous calls concerning the regulation of noise have been received by his office; that no citations have been issued in Downtown without the Police Department's first responding to a noise compliant; that upon response to a complaint, a sound meter reading is immediately taken and citations issued on the basis of violations of the established 70 dBA level; that one other instance of a citation involved outdoor amplified music after allowable hours, in the instant case after 12:00 midnight on Saturday; that the media erroneously reported Ordinance Nos. 97-3993 and 97-3994 were enforced during the past weekend when no music was being played. Lieutenant White stated that the. police officers taking the sound meter readings have been trained in the proper use and calibration and have been certified through the manufacturer of the sound meters. Commissioner Patterson stated that the City set the threshold at which a violation would occur based on a sound meter utilized by the City's noise expert; that a question is whether the sound meter used by the Police Department measures the same dBA level as the sound meter used by the City's expert, which should be the case; that she does not know enough about sound metèr measurements to determine the possibilities; that Mr. Caddie's report of October 1996 indicated a recommended threshold of 70 dBA; that the police officers' proper use of the sound meters is not questioned; that the Commission chose a certain threshold based on a particular BOOK 41 Page 14754 06/10/97 4:00 P.M. BOOK 41 Page 14755 06/10/97 4:00 P.M. operator and a particular sound meter; that a question is whether the sound meters read the same noise levels. Deputy Chief Pillifant stated that sound meter readings were taken with Mr. Caddie during tests conducted at Dolphin Tower and the Lemon Coast Grille; that a base sound meter reading was taken at the source of the noise which was the Lemon Coast Grille prior to any music's being played; that the sound meter reading with no music playing was between 72 and 74 dBA. Commissioner Patterson asked if a stereo, etc., was being played? Deputy Chief Pillifant stated no; that the base reading was taken on November 8, 1996; that the Lemon Coast Grille was very crowded on Friday night this past weekend; that the sound meter reading was 76 dBA with no music; that after the music, which was a guitar player, started playing around 8:00 p.m., the sound meter reading was 78.8 dBA; that the level of noise doubles with an increase of approximately 3 dBA; that the sound meter reading from the source with no music of 76 dBA was not cited; that a complaint was received as soon as the guitar player began playing; that the Police Department responded to the complaint, performed a sound meter reading around the corner to determine the level of ambient noise which measured 63 dBA and another sound meter reading at the source at the spot designated by the City Attorney's Office and the Engineering and Police Departments which was 78.8 dBA; that the difference between the ambient and source noise was significant, i.e., more than 10 dBA; that the sound meter reading was valid and the business cited; that the question is whether the citation was issued when music was not being played and the response is no; that a sound meter reading taken at the Main Street Depot with no music measured 74 dBA. Commissioner Patterson stated that the information furnished by Deputy Chief Pillifant makes her more anxious to follow through on her request; that the report issued in October 1996 indicates no sound meter readings taken by Mr. Caddie's sound meter in excess of 70 dBA; that a recommendation to regulate noise at a level of 70 dBA would have been foolish if the ambient noise had been excess of 70 dBA; that two possibilities exist: 1) the sound meters used by the Police Department do not measure the same as Mr. Caddie's or 2) Mr. Caddie was in error on a number of sound meter readings; that noise should not be regulated at a level which is lower than the ambient noise; therefore, some adjustments would appear necessary. Deputy Chief Pillifant stated that Mr. Caddie reported a base sound meter reading of 74 dBA during one study conducted early in the evening when no music was being played. Commissioner Patterson stated that Mr. Caddie's November 1996 study is in apparent disagreement with the first sound meter readings indicated in his October 1996 report. Deputy Chief Pillifant stated he is not familiar with the October 1996 report. Commissioner Patterson stated that the October 1996 report is approximately 12 pages in length. Deputy Chief Pillifant stated that the November 1996 study was conducted on a Friday and Saturday nights; that several Commissioners were present at Dolphin Tower when the sound meter readings were taken on November 8, 1996, at the Lemon Coast Grille; that the band started playing at approximately 10:03 p.m. and sound meter readings were taken; that residents at Dolphin Tower were asked to rate the sound as acceptable or unacceptable and the results correlated with the sound meter readings; that the sound meter reading was 78 dBA at 10:03 p.m.; that the sound meter reading was 73 dBA at 12:05 a.m. when no band was playing. Commissioner Patterson stated that she was in attendance at Dolphin Tower and was shown sound meter readings of 74 and 75 dBA with the band playing. Deputy Chief Pillifant stated that the lowest sound meter reading on November 8, 1997, was 75 dBA with the band playing. Commissioner Patterson asked the sound meter reading with no band playing? Deputy Chief Pillifant stated that the sound meter reading at 12:05 a.m. was 73 dBA; that the comments indicate no band was playing; that whether the juke box was playing is not recalled. Commissioner Merrill stated that the sound meter readings taken by the Police Department seem to match fairly closely with sound meter readings he witnessed taken last week; that sound meter readings taken by Mr. Gary Druin, President of Save Downtown Outdoor Music, Inc., were in the upper 70s dBA; that Mr. Ritz's sound meter may not be registering accurately. Deputy Chief Pillifant stated that the sound meter readings witnessed by Commissioner Merrill are consistent with those taken by the Police Department. Commissioner Merrill stated that obtaining an ambient reading on Lemon Avenue is difficult due to the surrounding noise; that the ambient readings obtained by the Police Department were 63 or 64 dBA; however, the ambient readings he witnessed were typically in the upper 60s to 72 dBA; that the difference of 9 dBA is broad and is close to a doubling of the noise level; and asked where the ambient sound meter reading was taken? BOOK 41 Page 14756 06/10/97 4:00 P.M. BOOK 41 Page 14757 06/10/97 4:00 P.M. Lieutenant White stated that a diagram on the back of the citation indicates where the ambient sound meter readings were taken. Commissioner Merrill referred to the citation issued to the Main Street Depot and stated that the ambient sound meter reading was taken on First Street; but should be taken on Main Street rather than an area which is blocked by buildings from the noise source; that the ambient noise level on Main Street is close to 70 dBA; that the impression may be created that the bands are blaring whereas the reality is the intersection is very busy, with motorcycles starting up at noise levels close to 120 dBA. Deputy Chief Pillifant stated that no distinction could be made between the ambient and the source noise if the ambient reading is taken at Main Street and Lemon Avenue. Commissioner Merrill agreed, as an individual or group is always playing music somewhere in the vicinity; and stated that taking the ambient sound meter reading at the next block and around the corner may not provide a true perspective; that the difficulty of obtaining an ambient sound meter reading is understood; that gaps in music playing may occur at which time the noise levels are probably 68 dBA or even in the lower 60s dBA. Deputy Chief Pillifant stated that a sound meter reading taken at the site without the band playing is not ambient noise but still source noise. Commissioner Merrill stated that amplified music is being regulated. Deputy Chief Pillifant stated that the two noise ordinances are all encompassing; that a specific section deals with amplified music but a citation can be issued for noise in general. Commissioner Merrill stated that his focus was on the regulation of amplified music; and asked if a noise level of 74 to 76 dBA with no music playing is a violation? Deputy Chief Pillifant stated yes, in his opinion and that of the City Attorney's Office. Commissioner Merrill stated that reconsideration may be in order; that Main Street must be successful; that the selection of a 70 dBA threshold was not based on scientific data; that the City may have gone too far in selecting 70 dBA as the threshold; that the suggestion to get scientific data on which to base a decision is supported. Mayor Pillot stated that two broad aspects of the issue are being discussed: the policy and the enforcement of the policy; that the thrust of the discussion appears to revolve around the policy rather than the enforcement; that enforcement encompasses three different aspects: Is the equipment good and properly calibrated? Is the operator trained? Is the location at which sound meter readings are taken appropriate? Mayor Pillot continued that selection of the equipment is not a matter of policy but rather of professional judgment; that training of the enforcement officers is also a matter of professional judgment; that selection of the site at which sound meter readings are taken may be both a matter of professional judgment and policy; that considering a policy change may be an item to be placed on an agenda of a regular City Commission meeting if so desired by a Commissioner. Commissioner Patterson stated that her idea was not to change the policy at this meeting; however, occasions have occurred of a short, temporary stoppage of enforcement of an ordinance during an investigation; that Mr. Ritz has accumulated fines of $800 from last weekend's enforcement activities alone; that if the appropriate threshold has not been chosen, fines of that magnitude should not be accumulated while the City investigates further; that she is not advocating a reconsideration of the hours of the day at which noise is regulated, which does offer some relief to condominium residents; that a higher threshold based on additional information may be appropriate; that the Police Department could be afforded the opportunity to accumulate more data and return with a recommendation. Commission Cardamone stated that information concerning the cost and method of calibration of the sound meters would be appreciated; that a broadcast on Sarasota News Now (SNN) over the weekend did not present both sides of the issue; that a suggestion was made to SNN. to talk to the Police Chief as reports had been heard of a possible abuse factor in challenging the ordinance; as well as an impression of a grace period; and asked if the Police Department had heard similar reports? Deputy Chief Pillifant stated that mention of a grace period had been heard; however, the challenging of the ordinance had not. Commissioner Cardamone stated that some of the material received by the Commission indicated a resident would no longer call about loud music at the Lemon Coast Grille due to a threat of a lawsuit; therefore, the resident indicated a complaint would be registered against the Main Street Depot; that the community must work together to solve the problem; that Ordinance Nos. 97-3993 and 97- 3994 are untested; that the new equipment was used for the first time this weekend; that some problems may exist; however, cooperation from residents and business owners is necessary for a positive outcome and asked the cost of the sound meters. BOOK 41 Page 14758 06/10/97 4:00 P.M. BOOK 41 Page 14759 06/10/97 4:00 P.M. Lleutenant White stated that the sound meters cost $2,800. Commissioner Cardamone asked if the sound meter can be calibrated? Lieutenant White stated that the sound meter is calibrated before and after any measurements are taken. Commissioner Cardamone asked if anyone else checking noise levels in the City has the same type of sound meter? Lieutenant White stated that the same sound meter has not been seen in use; that the sound meter seen on television had a Radio Shack label. Commissioner Cardamone stated that the expectation is the sound meter readers used by the Police Department are the best. Lieutenant White stated that the sound meters have an error factor of plus or minus one dBA; that the manufacturer indicates the only equipment that is better is used by the National Aeronautics and Space Administration (NASA). Vice Mayor Dupree stated that the Main Street Depot has received citations totaling $800 in fines. Commissioner Patterson stated that is correct; that the citations are based on sound meter readings; that some of the citations issued against the Lemon Coast Grille were for its refusal to acknowledge the time limitations. Commissioner Pillifant stated that the Lemon Coast Grille was cited Thursday night for excessive noise when police officers could hear the noise from as far away as Island Park; that no sound meter readings were taken at that time; that one citation has been issued for exceeding the allowable noise limit of 70 dBA; that another citation was issued for after-hours amplified music. Vice Mayor Dupree asked if the Main Street Depot has received the most citations? Deputy Chief Pillifant stated that the Main Street Depot has been cited four times and the Lemon Coast Grille three times; that all the citations issued to the Main Street Depot have been for music producing sound meter readings in excess of 70 dBA. Vice Mayor Dupree stated that his understanding was the musicians at the Main Street Deport were turned in a certain direction. Deputy Chief Pillifant stated that the place designated to take sound meter readings is on Lemon Avenue 65 to 75 feet north of Main Street. Deputy City Manager Schneider stated that the court dates for the citations are not scheduled until the end of June 1997; that no fines have been levied at this time. City Attorney Taylor stated that is correct; that seven citations are pending and each will be pursued; that some of the Commission's concerns will be tested during the prosecution process, which is not a negative; that a court ruling will provide insight as to a local judge's evaluation of the argumentsi; that no particular fines have been accumulated as the prosecutor asks for an imposition of fines based upon consideration of various factors; that a fine as little as $25 could be recommended, although the final decision is up to the court; that the Commission makes the decision as to whether prosecution should be pursued. Mayor Pillot asked who makes the decision as to penalties? City Attorney Taylor stated that the judge makes the decision. Mayor Pillot stated that the decision correctly belongs with the judge; that time may be necessary to refine the process; that support is not offered for an enforcement moratorium; that this violation, like many others, can be argued subjectively; that the alleged offender can make such an argument to the court who makes the final decision; that any delays in the implementation of Ordinance Nos. 97-3993 and 97-3994 or any non-enforcement thereof will be opposed. Commissioner Patterson stated that for the benefit of any member of press in the audience, that the continuous repetition that ambient traffic noise is 85 dBA is resented; that the study by the City's noise expert indicates that noise at the edge of an expressway is 68 dBA and at the right-of-way line is 62 dBA; that the 85 dBA level was taken from some backup material presented to Commission by Mr. Druin, who is in the sound business; that the reference is a quotation from the Yamaha Sound Reinforcement Handbook. The following persons came before the Commission: Charles H. Stender, 101 Gulfstream Avenue (34236), stated that he is the President of the Dolphin Tower Condominium Association; however, he is not speaking for the Association but rather for himself individually; that the sky will be the limit if an enforcement moratorium is declared; that last weekend was the worst experienced to date; that the weekends will be crazy during the time required for research; that his residence is between 100 to 1,000 feet away from the source of the loud music, which can be heard from that distance; that music that loud should be in an enclosed space; and asked what outlet the residents have except for BOOK 41 Page 14760 06/10/97 4:00 P.M. BOOK 41 Page 14761 06/10/97 4:00 P.M. the 12:00 midnight deadline after which amplified music cannot be played? Mayor Pillot stated that in the absence of an enforcement moratorium, the Police Department will continue enforcement activities. Commissioner Merrill stated that action concerning an enforcement moratorium could be taken after the speakers are heard. Mayor Pillot stated that is correct. David Venafro, 35 South Lemon Avenue (34236), stated that he is an owner of the Lemon Coast Grille and the Monterey Deli and Pub; that the Lemon Coast Grille probably had the most number of police officers at the establishment last weekend; however, the Main Street Depot probably had a higher noise level registering at 85 dBA while the Lemon Coast Grill registered about 78 dBA; that 78 dBA is about the noise level at the establishment over the last 6 to 8 months with or without a band on a Friday night at about 10:00 p.m.; that two bands, one from Indiana and one from Maryland, had been booked 3 months ago for Thursday evening; that both bands had contracts; that the band schedule was moved from 9:00 p.m. to 12:00 midnight to 7:00 to 10:00 p.m.i that at 9:30 p.m. police officers came to the establishment looking for a music permit, which has not been needed for 15 months but he now has; that the last paycheck he received from the Lemon Coast Grille was April 15, 1997; that the $100 music permit took food from his baby's mouth; that the Deputy Police Chief, the Police Chief and residents of the Dolphin Tower indicated a noise level of 78 dBA was acceptable at their first meeting, which has been strictly observed since; that 78 dBA was the noise level last weekend; that more scientific data should have been obtained before interfering with his livelihood and that of many others; that the Lemon Coast Grille is the only establishment in Sarasota City or County has to turn the stereo off after 10:00 p.m. on Thursdays, one of his best nights, or 12:00 midnight on weekends; that the stereo has a noise level of about 76 or 78 dBA, bothers nobody and reaches no more than 50 feet; that the band did not play after 10:00 p.m. on Thursday or 12:00 midnight on Friday or Saturday; that the ticket on Thursday was received at 9:30 p.m.i that the police officer asked to see his music permit, which was produced; that the police officer was asked for the sound meter; that the police officer indicated he did not have a sound meter and a citation would be issued for excessive noise; that Friday night two police officers took sound meter readings after the happy hour performer concluded and the stereo was turned on; that the noise level measured by the police officers was 75 to 76 dBA; that he requested to turn the stereo off after which the noise level was measured at 74.5 dBA; that a ticket was issued; that a ticket was issued at 12:30 a.m. on Saturday night for having amplified music after three to four police officers had been in front of the Lemon Coast Grille from 10:00 p.m. to 12:00 midnight taking sound meter readings of 78 dBA; that the ordinance is very targeted to the central business district; that the problem for the Lemon Coast Grille is not the noise threshold which will probably be raised so the Main Street Depot can have live music; that most of the Commission's conversation is about the Lemon Coast Grille; that the Lemon Coast Grille had a noise level of about 78 dBA and the Main Street Depot was about 85 dBA; that no battle is sought with the Main Street Depot; as neither the Lemon Coast Grille nor the Monterey Deli and Pub would be in existence without the Main Street Depot; that support is offered to the Main Street Depot; that the actions of the Commission were known and no grace period was expected; that the decision was made by the Commission on Monday, the letter was sent by the Building, Zoning and Code Enforcement Department on Tuesday and received on Wednesday, and the permit was obtained by Friday; that obtaining more data will not make a difference; that the first sound meter readings taken by the City's noise expert were 55 to 60 dBA at 7:00 p.m. at Dolphin Tower; that another sound meter reading was taken at 10:00 p.m. measuring 55 to 60 dBA; that the Lemon Coast Grille has not raised the ambient noise level of the City and has been in compliance with the noise ordinance of Sarasota County for the past 6 to 9 months; that the County's threshold is 55 dBA from 7:00 a.m. 8:00 p.m. and 60 dBA from 8:00 p.m. to 7:00 a.m. measured at the receiving property. Philip M. Dasher, 936 Boulevard of the Arts (34236), stated that he is the President of the Marina Suites Association at 888 Boulevard of the Arts and Vice President of the Bayfront Condominium Association, comprised of 1400 units and 2500 residents; that the Associations fully supported Ordinance Nos. 97-3993 and 97-3994; that no change or enforcement moratorium is desired; that comparing a $29.95 Radio Shack sound meter in untrained hands with a $2,800 sound meter in trained hands is preposterous; that any increase in the noise threshold could adversely affect the Quay basin area; that residents in the area requested a separate zone with separate criteria; that the Ordinances are effective as written and should be allowed to continue and be tested; that the statements that the ordinances are the toughest in the area is not true; that Sarasota County's noise ordinance, which affects downtown Siesta Key, is far more stringent; that the Occupational Safety and Health Administration (OSHA) has reported that a noise-induced hearing loss occurs at 85 dBA. Commissioner Merrill stated that Ordinance No. 97-3994 prohibits noise including human conversation above 70 dBA; that a police report indicates a sound meter reading was taken outside the Lemon Coast Grille measuring 76 dBA with no band playing and limited noise; that the report continues that the sound meter was turned toward the street and measured 80 dBA; that the street is louder than the Lemon Coast Grille and asked if a law should be passed making that noise level illegal? Mr. Dasher stated that street noise is intermittent and represents traffic which is also received in the basin area; that the BOOK 41 Page 14762 06/10/97 4:00 P.M. BOOK 41 Page 14763 06/10/97 4:00 P.M. Commission should visit the condominiums and hear the crowd noises from the Sarasota Quay on Friday nights beginning at 12:00 midnight emanating 300 feet across the water. Commissioner Merrill stated that the current issue involved Main Street. Mr. Dasher stated that the issue of distance from residential units is parallel; that the basic issue is the inappropriateness of an open-air facility in a downtown area. Commissioner Merrill stated that great efforts have been taken in the City to encourage open-air facilities in the Downtown. Mr. Dasher stated that open-air dining until a reasonable time is appropriate. Commissioner Merrill stated that the Lemon Coast Grille with people outside in an open-air bar and restaurant produced noise levels above 70 dBA; that Mr. Dasher has indicated open-air dining is an appropriate use; that the law may be too strict in banning an appropriate use involving people outside in a restaurant with a nightclub environment. Mr. Dasher stated that the hours of operation should be restricted; that outside dining is over at 10:00 p.m. at the Sarasota Quay. Commissioner Merrill stated that Ordinance No. 97-3994 would effectively eliminate outside dining in Downtown at any hour as background noise has been measured in the mid 70s dBA; that Ordinance No. 97-3994 sets a threshold of 70 dBA. Mr. Dasher stated that the threshold should be maintained if the noise carries over to the residential units in the area; that issues related to proximity to residential units are being addressed. Regina Tebrugge, 2337 Ixora Avenue (34234), stated that she represents the organization Save Downtown Outdoor Music; that Ordinance No. 97-3994 is the most stringent in the country; that a misconception exists; that the Sarasota County ordinance has a lower threshold; however, the measurements are taken at the receiving property; that the City's noise expert took a number of sound meter readings measuring below 70 dBA but all were at the receiving property; that the October and November 1996 reports by the City's noise expert have been read and all the sound meter readings taken at the source were over 70 dBA; that the threshold applies to any noise Downtown, including lawn mowing, power washing buildings, etc.; that selective enforcement is occurring and is arbitrary and discriminatory; that the City has invited the problems which have arisen; that the 70 dBA threshold cannot last as crowd noise, laughing, talking, etc., exceed that level; that any court challenge will result in a finding that Ordinance No. 97-3994 is over broad; that people should not be subjected to criminal prosecution while the City is working out the bugs; mandatory jail sentences are imposed on a second violation; that an enforcement moratorium would be in the best interest of the citizens and taxpayers of Sarasota, who will eventually pay the legal bills and the damage to people's property and livelihoods; that the business owners, patrons, and musicians who are residents and taxpayers should not be hurt sO much when more work needs to be done to develop a good ordinance; that the City is requested to pass a good ordinance. Commissioner Cardamone asked for a response from the City Attorney. City Attorney Taylor stated that pending prosecutions are under consideration; that an attorney is using a City Commission meeting as a forum to attempt to establish a record with respect to matters pending in court; that not engaging in that type of discussion is preferred especially as he is not the attorney prosecuting the violations; that the City does, in fact, have a general noise ordinance; that a level of selective enforcement takes place in all ordinances on the books; that for example, the resources are not available to stop and cite every speeder; that the same applies to violators of Ordinance Nos. 97-3993 and 97-3994; that the effort is to attempt to answer complaints by. residents as opposed to developing a vehicle for the City to find violations; however, the ordinances could also be used for the latter purpose. Mayor Pillot stated that traffic enforcement has been increased on Orange Avenue south of Mound Street; that numerous tickets have been issued; and asked if a court would determine such action to be illegal because similar enforcement is not occurring elsewhere? City Attorney Taylor stated no. Commissioner Merrill stated that the Commissioners are encouraged to go Downtown with access to a sound meter on Friday or Saturday nights; that justifying an ordinance making street noise illegal is difficult; that standing on a Downtown street corner surrounded by people enjoying themselves is necessary to get a sense of what has occurred; that people can say the City has made all this activity illegal; that regulation of noise will not work at 70 dBA; that the Main Street Depot was too loud this weekend; however, two weeks ago a band from New Orleans created a string guitar effect which was very pleasant; that Mr. Druin measured the quiet band at 78 dBA; that no citation was issued; that the noise Downtown this past weekend was from the Main Street Depot not the Lemon Coast Grille; that the awkwardness of the situation is that the Main Street Depot hires off-duty City police officers; that the public is not aware that the police officers are not on duty or acting for the city; that the appearance is of a clear violation with police officers standing at the site; however, the police officers are in the BOOK 41 Page 14764 06/10/97 4:00 P.M. BOOK 41 Page 14765 06/10/97 4:00 P.M. employ of the Main Street Depot; that the appearance is awkward and leads people to wonder why the Lemon Coast Grille was issued a citation; that an individual indicated to him the reason is the Main Street Depot hires City police officers and enforcement is selective; that the situation at the intersection of Main Street and Lemon Avenue is not a negative; that the residents of Dolphin Tower do not have a problem with the noise of the public; that citizens have indicated the thump of drums is the worst noise offense; that the City should have a better grasp on what was done; that what was done is not good; that government should know what is being done before something is made illegal; that a clear understanding of a noise level of 75 or 80 dBA did not exist; that neither the Administration nor the Commission knew the implications of setting the threshold at 70 dBA; that enforcement is occurring at 72 dBA and could be raised to 76 or 77 dBA; that the threshold could be increased by 5 to 6 dBA so that existing street noise is not illegal and more study undertaken. Commissioner Patterson stated that Mr. Stender, who sent a very coherent letter, was contacted; that her intent is not to deal with the hours of allowable amplified music; that Mr. Stender indicated the police are enforcing at 2 dBA above the 70 dBA threshold; that 76 dBA as an enforcement threshold could be supported if the City Attorney can advise the City's prerogatives in court would not be endangered; that the police would be enforcing at a level of 76 dBA if the ordinance had a threshold level of 74 dBA instead of 70 dBA; that good rational for the City's actions exist; that the noise level of crowds enjoying themselves outdoors can be objectionable and disruptive; that considerable personal responsibility is taken as she argued strongly in favor of the regulation; however, 70 dBA may be too low a threshold; that a reasonable threshold for Downtown is probably reasonable for the rest of the City; that the hope is something reasonable can be achieved and work everywhere. Mayor Pillot asked if a response from the City Attorney is desired? Commissioner Patterson stated yes. City Attorney Taylor stated that the Police Department, recognizing the regulations are new and could be challenged, would want to assure that citations are based on solid sound meter readings; that the highest sound meter reading among the five citations is 89.6 dBA and the lowest is 78.8 dBA; that four of the five sound meter readings are over the level of 80 dBA; that the enforcement trend by the Police Department will probably continue so the cases are based on sound meter readings clearly beyond the established threshold level. Commissioner Patterson asked if the Police Department could be requested not enforce below 76 dBA level without endangering the ordinances' integrity. City Attorney Taylor stated that a question will be raised anytime a Commission imposes an enforcement moratorium on an adopted regulation, although such action can be taken; that the expectation is the Commission will want the Administration, the Office of the City Attorney and the Police Department to resolve the issue quickly so a report and recommendation can be returned to the Commission. Vice Mayor Dupree stated that sound meter readings will vary depending on the direction the musicians are facing as well as whether sound meter readings are taken at ground level or some higher level; that sound appears to rise; that people on the street talking could be heard from Dolphin Tower during the tests he attended. Mayor Pillot stated that the proposal to change the enforcement threshold is logical; that philosophically, asking the Police Department not to follow through on a legally adopted city ordinance is not supported, although changing the threshold in the ordinance may be supported at the appropriate time. On motion of Commissioner Merrill and second of Commissioner Patterson, it was moved to ask the Administration to increase the enforcement threshold for Ordinance No. 97-3994 from 72 to 76 dBA. Commissioner Patterson asked if the intent of the motion is a temporary change while additional data is gathered? Commissioner Merrill stated yes, during the period the Administration is gathering data to give the Commission more information on which to base a decision. Commissioner Cardamone stated that arbitrarily changing the threshold, even temporarily, after having written an ordinance and gone through the public hearing process is a concern; and asked the possible implications? City Attorney Taylor stated that anyone cited may choose to use the change against the City; that his position is the City has the ability to determine the level of enforcement under conditions deemed sufficient at the time and the place; that voting not to cite under 76 dBA is a proper mandate by the Commission; however, his intuition tells him the mandate will be used against the City. Commissioner Patterson asked if such a vote would be a serious strike against the City? City Attorney Taylor stated that the preference is not to have to deal with the issue in a prosecution; however, such a Commission directive is not fatal; that the sound meter readings of the citations issued are from 78.8 to 89.6 dBA; that the possibility is citations may not be issued at the 76 dBA level; that many BOOK 41 Page 14766 06/10/97 4:00 P.M. BOOK 41 Page 14767 06/10/97 4:00 P.M. considerations occur in the field when the sound meter readings are taken. Commissioner Cardamone stated that the street noise issue should be corrected; that the main thrust of the regulations was amplified outdoor music which is where the meeting of the minds occurred; that having the media take a sound meter reading of a car driving by at a noise level above 70 dBA creates an uneasy feeling; that the street noise and general conversation she measured on Hillview Street a week ago was above 70 dBA; that the main issue is outdoor amplified music and the hours of operation; that Mr. Stender requests in his letter that the Commission not raise the threshold above 74 dBA which would be enforced at 76 dBA and also indicates the primary issue is that loud and long music belongs indoors and not outdoors; that for these reasons as well as the reluctance of the City Attorney, she will vote against the motion. Mayor Pillot stated that the responsibility of State and local elected officials is to establish State laws and City ordinances; that highly qualified personnel such as the members of the City's Police Department are hired and provided the necessary equipment to perform the job; that the Commission has the right and the responsibility to amend the ordinance if necessary; however, circumstances under which he would vote to tell police officers how to perform their job and enforce the City's ordinances is not imagined; that the Commission should change the ordinance if so desired; that the laws should not be aborted in the interim; and asked for a comment from the Police Department concerning the motion. Deputy Chief Pillifant stated that the sound meters have an error factor of plus or minus one; that clarification is requested as to the enforcement threshold level if the motion passes. Commissioner Patterson stated that the ordinance would be enforced as if the threshold level were established at 74 dBA. Mayor Pillot restated the motion as to direct the Administration to enforce Ordinance No. 97-3994 at 76 dBA temporarily while preparing a report for the Commission. Motion failed (3 to 2): Cardamone, no; Dupree, no; Merrill, yes; Patterson, yes; Pillot, no. Commissioner Cardamone stated that measurements with the new sound meters should be taken as quickly as possible in front of the affected establishments and at Dolphin Tower. City Attorney Taylor stated that Mr. Caddie, the noise expert, should be brought back absent objection from the Commission; that his report is the basis upon which Ordinance No. 97-3994 has been built. On motion of Commissioner Patterson and second of Vice Mayor Dupree, it was moved to authorize the Administration to bring Mr. Caddie back to derive new data and report to the Commission as quickly as possible. Commissioner Patterson stated that a new report should clearly indicate whether music is playing or not when the sound meter readings are taken; that the applicable section of the previous report was vague; that the previous report had a footnote in one section indicating a stereo was playing but no indication was provided in another section; that specificity is requested. Commissioner Cardamone stated that another consultant who can provide professional guidance should come if Mr. Caddie is unavailable; that a status report would be appreciated at the next regular Commission meeting of June 16, 1997. Deputy City Manager Schneider stated that the Commission will be provided as much information as possible at that time. Mayor Pillot stated that the motion specifically referenced Mr. Caddie and asked if an assumption can be made that someone of equal competence can perform the service? City Auditor and Clerk Robinson stated yes. Commissioner Cardamone stated that a special City Commission meeting could be convened to receive the data if necessary. Commissioner Patterson stated that her original premise was that outdoor music with amplified bands should not be allowed; that if outdoor amplified music is to be allowed, a threshold should not be set effectively eliminating outdoor amplified music; that the Commission has tried, with some differences of opinion, to establish a reasonable ordinance; that the press coverage has not acknowledged the issues with which the Commission is wrestling. Mayor Pillot restated the motion as to direct the Administration to bring back Mr. Ian S. Caddie, noise expert, or an equally competent consultant to report on new data at the earliest possible time with the possibility of scheduling a special City Commission meeting prior to the July 7, 1997, regular City Commission meeting. Motion passed unanimously (5 to 0): Cardamone, yes; Dupree, yes; Merrill, yes; Patterson, yes; Pillot, yes. 4. CITIZENS' INPUT CONCERNING CITY TOPICS (AGENDA ITEM II) There was no one signed up to speak. BOOK 41 Page 14768 06/10/97 4:00 P.M. BOOK 41 Page 14769 06/10/97 4:00 P.M. 5. ADJOURN (AGENDA ITEM III) #1 (4301) There being no further business, Mayor Pillot adjourned the special meeting of June 10, 1997, at 5:38 p.m. 1 GENÉ M. PILLOT, MAYOR ATTEST: & a ASOIA 3 Reber son ILLY 3 ROBINSON, AUDITOR: AND CLERK -