Florida appeals court blasts Sarasota’s noise ordinance as unconstitutional

Monday, March 13, 2000

A Sarasota, Fla., noise ordinance prohibiting all amplified sound outside enclosed structures during certain hours in the city’s business district — regardless of the volume — violates the First Amendment, a state appeals court has ruled.

Arthur Daley, who owns a business in the designated area, challenged the ordinance, claiming it was overly broad and inhibited the exercise of First Amendment protected activity, such as the playing of music. Daley’s business featured both live band performances and recorded music in a non-enclosed area.

Dailey sued after he received two citations for violating the noise ordinance, which provides:

“Amplified sound prohibited: Amplified sound not in a completely enclosed structure is prohibited between the hours of 10:00 p.m. and 7:00 a.m. the following morning on Sunday through Thursday … and between the hours of 11:59 p.m. and 10:00 a.m. the following morning on Friday, Saturday and the day prior to a holiday.”

After a county court judge declared the law unconstitutional, the city appealed to a state circuit court. The state circuit court determined that the noise ordinance was “narrowly tailored to achieve the legitimate interest in regulating unreasonable sound.”

On appeal, the Court of Appeals of Florida reversed the circuit court in Daley v. City of Sarasota. The Florida appeals court cited the U.S. Supreme Court’s 1989 decision Ward v. Rock Against Racism in which the high court wrote that “Music, as a form of expression, is protected under the First Amendment.”

The Florida court also cited a 1948 U.S. Supreme Court decision Saia v. New York for the proposition that “the use of sound amplification equipment within reasonable limits is an aspect of free speech protected by the First Amendment.”

“The goal of regulating unreasonable sound is unquestionably a matter within the city’s province,” the court wrote in its March 8 opinion. “However, that goal, no matter how laudable, cannot be achieved by the overbroad regulation of activities protected by the First Amendment.”

The Florida appeals court emphasized the fact that the ordinance prohibited all amplified sound regardless of the volume. The court characterized this as “unreasonable” and “more intrusive than necessary.”

The court concluded: “The city cannot absolutely ban all amplified sound in nonenclosed structures for certain hours each day regardless of its volume. The city may regulate amplified sound subject to strict guidelines and definite standards closely related to permissible governmental interests.”

Mark Gruwell, Daley’s attorney, said the decision is a “First Amendment victory.”

“What government interest are you trying to protect to ban sound regardless of its volume and regardless of whether it can be heard outside?” Gruwell queried. “This ordinance was simply far too sweeping to be constitutional.”

The attorney for the city was out of the office and unavailable for comment.