Nov 7, 2013 6 min read

Proposed regulation for an existing entertainment district in downtown Fort Myers Beach received negative feedback from neighboring and island residents during a workshop at Town Hall Wednesday.

After listening to a report from Larue Planning Management and discussion from Town officials, many residents spoke in opposition to potential guidelines that may extend business hours of operation, increase entertainment sound decibel levels and create more of a party atmosphere within an area encompassing Old San Carlos Boulevard to either Crescent Street or as far as Lani Kai Beach Resort.

The consultant was hired to review existing regulations, documents as well as noise and entertainment regulations, assess comprehensive plan implications, interview residents and businesses in the area, provide detailed recommendations and prepare project boundaries and a proposed model ordinance. The report involved alcohol consumption restrictions, business hours of operation, parking, special exception approvals, various regulations and weighed advantages and disadvantages of such proposed legislation.

Town officials are looking to generate uniformity among affected downtown businesses and modify a ineffective noise ordinance for enforcement reasons. Accumulating more information on noise measurements and establishing better language in amending the existing noise ordinance was agreed to be the first step towards an expected lengthy process.

“I think it is important to get started on some language that is enforcable. Then you can worry about decibels,” said Councilman Dan Andre.

In a legal bulletin dated Aug. 12 from a local law enforcement director, it was stated the Town Noise Ordinance could be determined unconstitutional as a violation of the First Amendment due to a recent Supreme Court case (State vs. Catalano) finding.

Town Attorney Marilyn Miller stated Lee County Sheriff’s Office has not enforced noise complaints on the Beach after losing a legal case.

“They took a case to (Lee County) Judge (Josephine) Gagliardi, and she would not find the business guilty because our ordinance, apparently like Bonita Springs, has some constitutional issues,” she said. “The courts are refusing to find people guilty of a noise ordinance violation. So, we need to amend our noise ordinance. As far as decibel levels, we probably need some type of expert to help us.”

Right now, the Town Noise Ordinance has conflicting language. One section sets “a maximum sound level for radios, television sets, exterior loudspeakers and similar devices at the property line of the noise source,” while another “at or within the property line of the receiving land use.”

Section 14-21 of the ordinance states the limit is 66 dBA (A-weighted decibels) from 7 a.m. to 10 p.m. and 55 dBA from 10 p.m. to 7 a.m. An ordinance decibel chart shows normal conversation at one or two meters to be 60 dBA and passenger car noise to be 70 dBA.

In their first draft report, Larue officials state, “we believe one would normally expect somewhat higher levels of sound within an entertainment district. For example, maximum noise levels in Orlando’s Downtown Entertainment District are set at 75 dBA from 7 a.m. to midnight and 70 dBA from midnight to 7 a.m. for weekdays and weekends.”

Councilman Bob Raymond asked to have a copy of reports from towns closer to the Beach, like Sanibel Island, instead of the vibrant city of Orlando.

At the Council workshop, Jim Larue said that based on comments from the LPA, alternate measurements could include lowering the dBAS to 70 from 7 a.m. to 10 p.m. Sunday through Thursday and even lower to 60 after 10 p.m.

Many workshop attendees from the public represented Marina Village Condominiums at Snug Harbor. Alan Duncan, an owner and association vice president, stated the proposed ordinance has generated more than 100 letters from owners there.

“They’re afraid that this proposal would make it worse than what they’ve experienced in the past three years, which they feel is pretty much intolerable,” he said.

“Adopting the Larue proposal would permit every business in this proposed entertainment district to play music at higher decibel levels during longer hours,” added Marina Village owner and association president Paul Rosen.

Other condo owners present expressed past concerns with drunken behavior and fear of returning home from an evening out due to encountering such personalities, urination on property, litter, intrusion of property rights and right for privacy, rattling windows during special events and parking lot noise after hours.

Primo Drive resident Tracey Gore called the proposal a “commercial intrusion” and feared it would give a “permit by right to have outdoor music until 2 a.m.”

Other concerns involved at what distance to measure sound, parking and possible future development.

Former Councilman Bill Shenko requested Town officials look into eight items he addressed, while former Councilman Tom Babcock asked them to review a 2009 report entitled “Technical Acoustical Issues to be Considered in Noise Regulation.”

“Fort Myers Beach is not like any community reported by the consultant,” he said. “Forget the entertainment district and fix the noise ordinance to make it enforcable.”

Town Manager Terry Stewart said he and his staff will review the aforementioned report.

“I think it would be helpful for you to have an opportunity to have a better understanding how noise acts and how it is going to affect people with changes to different levels,” he said to his council.

Stewart stated he has taken new administrative action regarding specific regulation on special events.

“At any time that we have a special event application that proposes to have amplified music, we are going to require them to cover the cost of the code enforcement officer being on site for the duration of the amplified music,” he said. “The Town has purchased a noise meter, and we expect that person to monitor what is going on.”

List recommended that code enforcement should walk around the entertainment district during any given daytime with the noise meter to establish a base level of measurement for an everyday basis.

“I still think that there’s issues that we have to confront with one another together,” she said.

It was noted that a highly concerned open container issue is not involved in any recommendations.

Council has been down this road before. This year, Town officials held a workshop on April 15 to begin discussion on changes to the land development code regarding outdoor entertainment and the current noise ordinance. The Town Local Planning Agency then held a workshop on the topic last month and listened to the consultants’ overview findings while reading a draft of the report.

Town officials agreed this issue will be on its plate for some time. They made assurances that more workshops, meetings and public hearings will be planned before any Town legislation takes place.