STEVE KWARTIN

v.

CITY OF MIAMI BEACH

of Miami Beach affirming two noise violations issued by the Miami Beach Code Compliance Department.

Steven Kwartin, Steven Kwartin, P.A., for Appellant.

Rafael A. Paz, City Attorney, City of Miami Beach, Freddi Mack, Senior Assistant City Attorney, and Henry J. Hunnefeld, First Assistant City Attorney, for the City of Miami Beach, Appellee.

Before TRAWICK, SANTOVENIA, and ARECES, R., JJ.

ARECES, R., J.

Appellant contends section 46-152(b) of the City of Miami Beach Code of Ordinances (the "Noise Ordinance") is unconstitutionally vague. This Court agrees. [*1] IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA CASE NO. 2022-10-AP-01

APPELLATE DIVISION The Florida Supreme Court has held "[t]he standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Brown v. State, 629 So. 2d 841, 842 (Fla. 1994); see also Montgomery v. State, 69 So. 3d 1023, 1025 (Fla. 5th DCA 2011) (“A vague statute is one that fails to give a person of common intelligence fair and adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement."); DA Mortg., Inc. v. City of Miami Beach, 486 F. 3d 1254, 1271 (11th Cir. 2007) ("The traditional test for whether a statute or regulation is void on its face is if it is so vague that 'persons of common intelligence must necessarily guess at its meaning and differ as to its application....' Courts apply this test even more strictly to statutes that inhibit free speech.")1 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

N 1 A compelling argument can be made that the Noise Ordinance inhibits free speech. See DA Mort., Inc., 486 F. 3d at 1265 ("As a threshold matter, we must ask whether the First Amendment protects the conduct at issue in the challenged ordinance—playing or broadcasting recorded music. It does."). This Court, however, need not reach the issue of whether the test should be applied strictly here because the Noise Ordinance is unconstitutionally vague under even an ordinary application of the test. [*2] The Florida Supreme Court has, moreover, addressed the void for vagueness doctrine in the context of noise ordinances. See State v. Catalano, 104 So. 3d 1069 (Fla. 2012). In Catalano, the Florida Supreme Court determined that a noise ordinance which banned sound plainly audible from a distance of twenty-five feet from a vehicle was not unconstitutionally vague. Id. at 1075-77. In its analysis, the Court noted, [T]he 'plainly audible' standard provides persons of common intelligence and understanding adequate notice of the proscribed conduct: individuals operating or occupying a motor vehicle on a street or highway in Florida cannot amplify sound so that it is heard beyond twenty-five feet from the vehicle.... [T]he 'plainly audible' beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline-distance to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges and juries for resolution on an ad hoc and subjective basis.

Id. at 1076 (emphasis added); see also Montgomery, 69 So. 3d at 1028 ("The distance standard provides an explicit guideline to those charged with enforcing the standard."). The Catalano Court distinguished laws with objective guidelines, like the "plainly audible beyond twenty-five feet standard," from those "that call[] for police [*3] officers to judge whether sound is excessive, raucous, disturbing, or offensive." Catalano, 104 So. 3d. at 1076.

In this case, the Noise Ordinance at issue does not provide an objective guideline. Instead, the Noise Ordinance prohibits—not only music (and other sound) that would disturb the peace of neighboring inhabitants, but also-music (or other sound) that "at any time [is played at a] louder volume than is necessary for convenient hearing for the person or persons" who are voluntarily listening to said music (or other sound) in their homes or vehicles. Specifically, the Noise Ordinance provides, in pertinent part, Radio, televisions, phonographs, etc. The using, operating or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of 100 feet from the building, structure or vehicle [*4] in which it is located shall be prima facie evidence of a violation of this section.

City of Miami Beach, Fla., Code § Sec. 46-152(b) (emphasis added).

It is, therefore, possible for someone playing music at home to be in violation of this Noise Ordinance even if they do not disturb the "peace, quiet and comfort of the neighboring inhabitants." Id. In fact, to avoid playing music at an unlawful volume, someone would have to determine the absolute minimum volume at which they could conveniently listen to their music and hope their subjective opinion aligns with that of the Government.

The City of Miami Beach (hereinafter the "City" or "Appellee") has not, in its brief or at oral argument, adequately explained how a police officer should go about determining whether a resident's music that is not disturbing a neighboring inhabitant is nevertheless being played at a "louder volume than is necessary for convenient hearing." If there was ever a law that lent itself to arbitrary enforcement, it would appear to be one where the responding officer is permitted to determine, not whether some objective standard has been violated, or whether the peace has been measurably disturbed, but whether [*5] any one particular resident, in the opinion of the responding officer, could have enjoyed his/her music equally well at a lower volume.

The City nevertheless contends the Noise Ordinance is not vague for three reasons. First, the City contends that, like Catalano, the Noise Ordinance "proscribes [noise]...in such manner as to be plainly audible at a distance of 100 feet from the building."² Instead, the Noise Ordinance provides that noise that is plainly audible at a distance of 100 feet, strictly between "the hours of 11:00 p.m. and 7:00 a.m.," is prima facie evidence of a violation. This language would not protect someone who was playing music that was plainly audible at a distance of 99, 50 or even³ feet, if the responding officer believed it was being played at a "louder volume than is necessary for N² The dissent claims Appellant conveniently failed to mention the 100-foot standard. However, Appellant very clearly referenced the 100-foot standard as evidence that the City Commission knew how to create objectively measurable restrictions and chose not to. See Initial Brief at 21. [*6] convenient hearing." See City of Miami Beach, Fla., Code § 46- 152(b).³ The Noise Ordinance declares that "louder volume than is necessary for convenient hearing" is, by definition, "unreasonably loud, excessive, unnecessary, or unusual noise." See City of Miami Beach, Fla., Code § 46-152(b). Specifically, the Noise Ordinance provides, "The following acts...are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section...: ...The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound...at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room...and who are voluntary listeners thereto."

Id.

N³ This Court is fairly certain that if the standard for a noise violation is, as Appellee and the dissent states, "plainly audible from 100 feet," this matter would not be before this Court. [*7] Finally, the City argues the Noise Ordinance is not vague because the Eleventh Circuit previously found that a substantially similar (if not identical) ordinance was not void for vagueness. Specifically, Appellee, like the dissent, relies on DA Mortg., Inc., 486 F. 3d at 1270-72.4 Reliance on DA Mortg., Inc., however, is misplaced.

Other than the United States Supreme Court, the opinions of federal courts, including the Eleventh Circuit, are not binding on this Court. While the decisions of the Eleventh Circuit are, of course, afforded respectful consideration, the Eleventh Circuit's DA Mortg., Inc. opinion predates Catalano—a Florida Supreme Court decision concerning void by vagueness challenges to noise ordinances—by approximately five years. Catalano, which indisputably binds this Court, holds that noise ordinances need some form of objective guideline in order to avoid arbitrary enforcement. Catalano, 104 So. 3d. at 1076.5 N⁵ This Court, in any event, finds the analysis in DA Mortg., Inc. unpersuasive for at least two reasons. First, after noting that the [*8] Catalano is consistent with United States Supreme Court precedent on the vagueness of noise ordinances. See Grayned v. City of Rockford, 408 U.S. 104 (1972). While Grayned certainly contains a number of quotes that can be cherry-picked by either side in purported support of their respective arguments, the only reasonable reading of the case, as a whole, is that the noise ordinance at issue, which proscribed "the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof," contained an objective guideline—namely, term "convenient" was "somewhat abstract," the Eleventh Circuit found the term acceptable because it was no more abstract than terms like "loud" or "raucous"---terms that the U.S. Supreme Court has found unobjectionable. The Eleventh Circuit then created, seemingly from whole cloth, its own definition of "convenient hearing." DA Mortg., Inc., 486 F. 3d at 1272 ("Convenient hearing means the listening comfort' of those assembled."). The Eleventh Circuit's definition, instead of providing clarification, is itself inherently vague. It is far easier to imagine an objective assessment of whether a noise is "loud" than it is to imagine an objective assessment of when a noise is at its least convenient volume. Second, the Eleventh Circuit read an objective "reasonable person[] standard" into the Noise Ordinance. For the reasons stated in footnote 7, infra, the Noise Ordinance does not adopt an objective reasonableness test, but, rather, defines what is unreasonable in a manner that includes noise played a volume louder than necessary for convenient hearing. [*9] the measurable impact on a school's normal activities. Id. at 108.

The United States Supreme Court, in fact, stated as follows:

Although. the prohibited quantum of disturbance is not specified in the ordinance, it is apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general 'breach of the peace' ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school.

Grayned, 408 U.S. at 112 (emphasis added). The United States Supreme Court was, moreover, persuaded that the Grayned ordinance was not a "broad invitation to subjective or discriminatory enforcement" because the ordinance at issue "define[d] boundaries sufficiently distinct." Id. at 114. Specifically, the U.S. Supreme Court stated, The vagueness of these terms, by themselves, is dispelled by the ordinance's requirements that (1) the 'noise or diversion' be actually incompatible with normal school activity; (2) there be a demonstrated causality between the disruption that occurs and the 'noise or diversion', and (3) the acts be 'willfully done'.... [T]here must be demonstrated interference with school activities.

Id. at 113. [*10] Unlike Grayned, in this case the "prohibited disturbances" are not even disturbances. The instant Noise Ordinance criminalizes the voluntary listening of music (or other noise) that does not disturb the peace, or your neighbor, but is nevertheless played at a volume that the responding officer happens to believe is louder than necessary for a person's convenient listening pleasure.

This case is closer to Coates v. Cincinnati, 402 U.S. 611 (1971). In Coates, the ordinance at issue "punished the sidewalk assembly of three or more persons who 'conduct themselves in a manner annoying to persons passing by.'" Grayned, 408 U.S. at 113 (discussing Coates). The United States Supreme Court found the Coates ordinance unconstitutionally vague "because enforcement depended on the completely subjective standard of 'annoyance.'" Id. Like the ordinance in Coates, the ordinance in this case allows a person to be punished "at the whim of any police officer." Id. at 114.

Noise ordinances do not require mathematical precision, nor do they require a decibel reader. They do, however, require some N 6 On this, we all agree. This Court would note however that Appellant's suggestion is not extraordinary or novel. Many Florida counties and municipalities provide for decibel readings in a variety of circumstances and do not appear to share the dissent's concern of [*11] objective guideline. In this case, the Noise Ordinance at issue lacks an objective guideline and invites arbitrary enforcement. The Court, therefore, finds the Noise Ordinance to be unconstitutionally vague.

Our analysis, however, does not end here. The Florida Supreme Court, has recognized that a court has an "an obligation to uphold the constitutionality of legislative enactments where it is possible to remove the unconstitutional portions." Searcy, Denney, Scarola Barnhart & Shipley, etc. v. State, 209 So. 3d 1181, 1195 (Fla. 2017). "The rule is well-established that the unconstitutionality of a portion of a statute will not necessarily condemn the entire act." Id. This doctrine of "severability" is "designed to show deference to the Legislature in enacting laws but still respect the judicial branch's role in separation of powers." Id.

having to periodically update their technology. See, e.g., Broward County, Fla., Code § 27-235 (2023) (using sound level meters and a chart with various decibel limits); Citrus County, Fla., Code § 21-22 (2023) (using decibel levels); Jacksonville, Fla., Code § 368.203 (2023) ("The measurement of sound shall be made with a sound level meter... Recorded measurements shall be taken so as to provide a proper representation of the noise source."); Baker County, Fla., Code § 24-146 (2018) ("Noise levels shall not exceed 55 decibels when measured at the property line of any abutting landowner."). The above is not an exhaustive list. [*12] When determining whether to sever an unconstitutional provision, Florida courts have held that the "[p]art of a statute that is declared unconstitutional will be severed if "(1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken." Id. at 1196.

In this case, the unconstitutional portion of the Noise Ordinance reads as follows, ...or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto.

City of Miami Beach, Fla., Code § 46-152(b). This invalid provision can be easily separated from the Noise Ordinance's remaining provisions without affecting the rest of the Noise Ordinance. The legislative purpose, to proscribe "unreasonably loud, excessive, [*13] unnecessary or unusual noises" can be accomplished independent of the impermissibly vague provision. The above-quoted provision is not so inseparable from the remaining language that it can be said the City would not have passed the Noise Ordinance without the vague language. Finally, the Noise Ordinance remains complete in itself even without the impermissibly vague language.

Accordingly, this Court holds the Noise Ordinance is unconstitutionally vague, severs the impermissibly vague language quoted above and remands this matter to the lower tribunal for proceedings consistent with this Opinion.

TRAWICK, J., concurs.

SANTOVENIA, J., dissents.

Appellant was issued two notices of noise violations by the Miami Beach Code Compliance Department ("Department") on July 31, 2020, and August 8, 2020. Appellant was cited for violating section 46-1527 of the Code of the City of Miami Beach (City N 7 Section 46-152 ("Noise Ordinance") Noises; unnecessary and excessive prohibited states in pertinent part:

It shall be unlawful for any person to make, continue or cause to be made or continued any unreasonably loud, excessive, [*14] Code"). Appellant appealed those violations to the Special Magistrate, and an administrative hearing was held on February 24, 2022 on both violations. The Special Magistrate issued two final orders dated February 24, 2022 ("Orders") upholding each of the violations. The fine was reduced for the second violation from $1,000 to $250.

unnecessary or unusual noise. The following acts, among others, are declared to be unreasonably loud, excessive, unnecessary or unusual noises in violation of this section, but this enumeration shall not be deemed to be exclusive, namely:

*** (b) Radios, televisions, phonographs, etc. The using, operating, or permitting to be played, used or operated any radio receiving set, television set, musical instrument, phonograph, or other machine or device for the producing or reproducing of sound in such manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle, or chamber in which such machine or device is operated and who are voluntary listeners thereto. The operation of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of 100 feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this section. [*15] Appellant challenges the constitutionality of the Noise Ordinance. Appellant contends that the Special Magistrate did not address below the constitutional arguments raised by the Appellant in his Initial Brief; however, the Orders neither confirm nor refute Appellant's contention as they are silent on this point.

Standard of Review

"A court's decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law." State v. Catalano, 104 So. 3d 1069, 1075 (Fla. 2012).

Discussion

Appellant filed a timely appeal, but failed to comply with Fla. R. App. P. 9.200(e) which requires the preparation and submission of a record. See Cyrus v. Cyrus, 324 So. 3d 590, 591 (Fla. 1st DCA 2021)(holding that "it is Appellant's responsibility to ensure that an adequate record to resolve the issues raised on appeal is provided to the appellate court."). Appellant also failed in his duty to furnish a transcript of the hearing held in front of the Special Magistrate or proper substitute from which the Court can review the facts. See Fla. N 8 On May 20, 2022, Appellant filed a Designation of Record on Appeal, but failed to file the actual record. [*16] R. App. P. 9.200(b); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1151-52 (Fla. 1979) (affirming fact-based rulings where appellant did not bring forward any proper substitute for a trial transcript).

In the absence of a record, I decline to accept Appellant's factual characterizations of his Declaration, witness testimony, the parties' use or non-use of decibel meters or similar technology, and the neighbor's motives for his complaints. Based on Applegate alone, Appellant's arguments based on those alleged facts must be rejected because the merits of those arguments cannot be addressed without a record or hearing transcript.⁹ Barnett Bank of Tallahassee, 377 So. 2d 1150, 1151-52 (Fla. 1979). [*17] such actions, decisions or interpretations are unconstitutional: He is arguing that the Ordinance itself is unconstitutional, something not within the very limited, well-defined sphere of matters which the Special Master is proscribed from deciding.

Initial Brief at pp. 11-12. Appellant thus argues that he is asserting a facial challenge to the constitutionality of the Noise Ordinance as failing to meet state and federal Constitutional tests, as well as controlling decisions of the United States Supreme Court and the Florida Supreme Court. Moreover, Appellant posits that the Noise Ordinance is void for vagueness because the City failed to adopt an ordinance containing specific, scientifically-measurable sound levels. As such, Appellant avers that the Noise Ordinance fails to apprise a reasonable person as to what sound levels violate the Noise Ordinance.

The Florida Supreme Court has held that a constitutional challenge of a statute or ordinance can only succeed if a statute or ordinance does not sufficiently convey "definite warnings of the proscribed conduct when measured by common understanding and practice." D'Alemberte v. Anderson, 349 So. 2d 164, 166 (Fla. 1977) (citing Roth v. United States, 354 U.S. 476 (1957). In order to withstand a vagueness challenge, "a statute must provide persons of [*18] common intelligence and understanding adequate notice of the proscribed conduct". See Catalano, supra., 104 So. 3d at 1075. A reviewing court must find a statute unconstitutionally vague if the statute fails to give adequate notice or the requisite definite warning of what conduct is prohibited. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

Interestingly, both Appellant and Appellee argue that Catalano, supra. supports their arguments. Appellant cites Catalano for the proposition that the Noise Ordinance is vague. However, Catalano does not support Appellant's vagueness argument as the Florida Supreme Court held therein that a noise control statute was unconstitutionally overbroad, but specifically determined that the statute was not unconstitutionally vague. In its analysis, the Catalano court noted that several jurisdictions in Florida and around the country had upheld similar statutes in the face of vagueness challenges and held that the "plainly audible" standard in the statute was not unconstitutionally vague:

"plainly audible" beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline-distance to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges, and juries for [*19] resolution on an ad hoc and subjective basis. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294. This is not a standard that calls for police officers to judge whether sound is excessive, raucous, disturbing, or offensive; if the officer can hear the amplified sound more than twenty-five feet from its source, the individual has violated the statute.

104 So. 3d at 1076-1077.

In an attempt to distinguish the Noise Ordinance from the noise control statute that was found to be not unconstitutionally vague in Catalano, Appellant conveniently omits from his citation of the relevant Noise Ordinance provision the entire last sentence of § 46-152(b) of the City's Noise Ordinance pursuant to which Appellant was cited. The omitted sentence provides that:

The operation of any such set, instrument, phonograph, machine or device between the hours of 11:00 p.m. and 7:00 a.m. in such manner as to be plainly audible at a distance of 100 feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this section.

See Appellant's Initial Brief at pp. 19-20 (emphasis added). Significantly, the omitted language is the provision similar to the "plainly audible at a distance of 25 feet or more from the motor vehicle" provision of section 316.3045(1)(a), Fla. Stat. which was held [*20] to be not unconstitutionally vague in Catalano. Thus, acceptance of Appellant's constitutional vagueness argument requires the court to interpret in isolation part of the text of § 46-152(b) of the Noise Ordinance without considering the full text of § 46-152(b). The court declines Appellant's invitation to do so. When the entire text of § 46- 152(b) is considered, it is clear that the Noise Ordinance in question here provides the same objective measure—distance—as the noise control statute which withstood vagueness scrutiny in Catalano.

Moreover, the statute in Catalano did not mandate that police officers utilize any decibel meters or devices to record noise violations when stopping a car for playing a radio too loudly. Indeed, the Supreme Court in Catalano specifically rejected Appellant's argument in this appeal that the Noise Ordinance lacks "any easily expressed mathematical standards", stating that: "[t]o withstand constitutional scrutiny, however, statutes do not have to set determinate standards or provide mathematical certainty". Id. at 1076 (citing Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (observing that we cannot expect mathematical certainty from the use of words)). Accordingly, it is clear that there is no requirement that devices be issued to code [*21] enforcement officers to measure sound levels in order for the Noise Ordinance here to pass constitutional muster. If scientificallymeasurable sound standards were required, as Appellant posits throughout its Initial Brief, enforcement would be contingent on availability and functionality of technology and municipalities could be required to re-write their ordinances to accompany any changes to or upgrades in available technology.

The language of the Noise Ordinance is unambiguous and provides a clear and definite warning of proscribed conduct to a potential violator. DA Mortg., Inc. v. City of Miami Beach, cited by Appellee, is persuasive on this point. See Id., 486 F. 3d 1254, 1270- 72 (11th Cir. 2007) (upholding Miami-Dade County Code section 21- 28(b), which is substantively identical to City Code section 46-152(b), against vagueness challenge). Therefore, I find that the Noise Ordinance is not unconstitutionally vague.

For the foregoing reasons expressed in this dissenting opinion, the Final Orders of the Special Magistrate should be AFFIRMED.