The great mash-up debate: a holistic approach to controlling noise pollution in Florida's downtown districts.

• Author: Suarez, Ashley

Introduction

Florida, the Sunshine State, (1) attracts millions of tourists and hundreds of thousands of new residents every year. (2) In early 2015, Governor Rick Scott announced a record-breaking high of "[m]ore than [ninety-eight] million tourists" (3) and just shy of twenty million Florida residents. (4) Although this has a positive effect on the state's economic growth, (5) the hordes of tourists and residents have raised a great din in Florida's municipalities and communities. (6) New land use patterns and mixed-use development further amplify the fracas. As noise pollution increases, so does the need for control. (7) A great chorus of scholars have intoned the negative effects of sound on residents and communities. (8) Accordingly, Florida's municipal leaders should take the lead in enacting reasonable ordinances. (9)

Part I of this Note will discuss the regulation, mash-up debate and other problems concerning noise. Part A will address both the history of noise regulation in the United States since the Noise Control Act of 1972 (10) and the enforcement of noise in the State of Florida.

Part B will review Florida's ongoing and turbulent noise debate between residents and the nocturnal club revelry, specifically, live and amplified music in mixed-use communities. Part C will examine noise abatement strategies in Florida and the problems accompanied with enforcing noise ordinances. Moreover, this section will examine the process of issuing a verified noise complaint and the complications that arise with it.

The general parameters and requirements of nuisance law will be reviewed in Part D. The positive and negative effects of nuisance regulations on Florida businesses will also be considered in this section. A short, but important, conversation in the application of the covenant of quiet enjoyment in different zoning areas will be evaluated.

Part II will deliberate constitutional challenges of noise control, such as First Amendment limitations on noise regulation by summarizing the three prongs that render a valid ordinance.

Rather than focusing solely on how to build and structure a new ordinance, Part III of this Note will propose a holistic, bottom-up solution for local community regulation of noise. As the population in the state of Florida continues to grow, state and local governments must begin assessing noise pollution from the planning process, especially in mixed-use districts. Local governments should require a holistic approach, implementing mitigation efforts prior to noise complaints in order to create a harmonic environment.

1. Noise Regulation: A Symphony

   1. Noise Regulations, Sonata-Form

      Typically one of the first movements in a symphony, Sonata-form is a fast-tempo and sets up a dialogue between two contrasting themes: tonic key and dominant key. (11) It "is the most important large structure of individual movements from the 'common-practice' tonal era." (12) Throughout the years, national, state, and local governments have passed statutes and guidelines to abate noise. (13) However, headlines and ongoing litigation show enacting regulations that can be clearly enforced and pass constitutional muster are a recurring problem. (14)

      In 1972, Congress passed the Noise Control Act, (15) the first important noise action program under the United States Environmental Protection Agency (EPA). (16) Primarily designed to protect the public health and welfare of United States citizens, (17) the EPA reserved the right to call any federal regulation of noise for public review if the agency found that it inadequately protected Americans. (18) During this time, the EPA also mandated "all federal noise control activities [pass] through its Office of Noise Abatement and Control" (ONAC). (19)

      Despite the dissolution of ONAC under President Ronald Reagan less than a decade later, this large structured program was the prelude to more convoluted noise control. (20) Consequently, the EPA eliminated all funding and "concluded that noise issues were best handled at the [s]tate or local government level." (21) Even though Congress never rescinded the Noise Control Act, the responsibility of noise abatement was ultimately transferred to the states. (22)

      Unlike most types of pollution, the effects of sound do not create physical destruction, which explains the lack of attention drawn to it. (23) As a result, enforcing noise has not been a top priority in Florida. (24) Historically, noise ordinances were retroactively implemented through the common law doctrine of nuisance, (25) focusing on governance only after receiving a complaint by the aggrieved. (26) Now, the main functions to an ordinance are proactively placing restrictions on such things as the type, duration, amount, time, or source of noise. (27) The problem, though, lies not only in enacting a proper ordinance, but in the capability and understanding to effectively police it.

   2. The Drawn Out Noise Debate, Largo

      "Largo" is the second movement in a symphony, is a slow tempo--usually to give the audience time to personally reflect. (28) Of Italian origin, "Largo" means "broad, wide, large, and consequently slow." (29)

      Defined as a "loud or unpleasant sound," (30) noise ranges from music emanating out of a car stereo (31) to an airplane flying overhead (32) or even amplified music at a nightclub. (33) The meaning of "noise" is highly subjective, which typically can interfere with the requirements of an objective legal analysis. (34) Although part of daily life, noise has proven to elicit highly provocative confrontations between business owners and residents. (35)

      For communities that thrive off tourism, such as Florida's, live bands and amplified music are often blared loudly to attract consumers to restaurants, bars, and clubs. (36) Noise is necessary for local businesses, but can create controversy for neighboring landowners' and tenants' quality of life. (37) Industrial districts (38) and commercial districts (39) are zoned in a way that specifically anticipates and accommodates different types of sound. (40) But, when municipalities choose to embrace the economic benefits of revitalized communities, they must also compensate for new issues that arise. For example, mixed-use districts--areas combining residential, commercial, and sometimes industrial--create a division of personalities throughout the communities. (41) In this type of development, poor land use planning will most certainly generate complaints of an insalubrious living environment. (42)

      Miami Beach's own Jarndyce and Jarndyce (43) is the perfect illustration of this all too-common struggle. (44) In 2001, a Miami Beach nightclub, Opium Gardens (Opium), was charged with repeatedly violating city and county noise ordinances. (45) Opium had received ten noise violations over the course of six months, and the club contested the violations. (46) It was reported that the legal battle was just a "part of a larger conflict that ha[d] divided the community, with clubs, bars and restaurants on one side and South Beach residents and city officials on the other." (47)

      Preceding the conflict, Miami Beach's city code allowed Opium to build an open-air facility, which also operated as a nightclub because the area was significantly undeveloped. (48) As new, multimillion-dollar condominiums were erected near the club, tensions ran high when owners started to vocalize their complaints. (49) Opium's owners' defense was that they are "simply operating the business that they were licensed to operate." (50) The influx of objections prioritized the problem of noise pollution for city officials and led to discussions of passing a new noise ordinance. (51) As residents and business owners agreed, this was an extremely sensitive and controversial issue. (52) Residents wanted to coexist by living in a peaceful environment, while the local businesses were interested in capitalizing on the demand for nightlife. (53)

      The drawn-out South Beach noise debate became even more notorious when the fight turned political during the 2003 November city commissioner elections. Tony Guerra, co-owner and promoter of Crobar nightclub (Crobar) in Miami, ran against the incumbent, Simon Cruz, causing public outcries from neighboring residents--including the president of the South Beach Homeowners Association--stating that "[a]ny commissioner who stands against [the nightclub issue] is going to get an enormous backlash." (54) Cruz, who once was perceived as an advocate of the club industry, supported the ban on outdoor music from new clubs. (55)

      Following years of litigation and an unsuccessful appeal to the Eleventh Circuit, (56) Opium unfortunately had to close its doors and move. (57) Residents of South Beach considered it a great "victory." (58) However, this interminable lawsuit and others like it brought to light many issues that city planners, county commissioners, and developers had not yet thought about. (59) As residents move into these multimillion-dollar condominiums, what should happen to the surrounding area?

      Following the move of Opium, another nightclub named "Amnesia" moved into the same space. (60) In an attempt to mitigate noise levels and alleviate any further grievances, the club spent a fortune putting on a roof, quickly leading to financial difficulties. (61) Once again, poor acoustic planning resulted in another nightclub unable to keep its doors open. Only in the past decade have local governments begun to apprehend that noise pollution issues must be addressed proactively before permits are issued. (62) Noise, specifically amplified music and live bands, must be taken into consideration sooner rather than later. (63)

      Intrusive community noise is not just a subject that has adversely impacted Florida residents. In August 2009, Manhattan, New York had an issue comparable to the Miami Beach dispute. The Beatrice Inn, a busy nightclub located in the basement of a residential building became a popular...