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HomeMy WebLinkAbout1983-04-14 Minutes1 MINUTES OF A SPECIAL MEETING OF THE BOARD OF DIRECTORS A special meeting of the Board of Directors of the City of Fayetteville was held on April 14, 1983, at 9:00 a.m., at the Chamber of Commerce, Board Room, Fayetteville, Arkansas. 493 PRESENT: Mayor Noland, Directors Lancaster, Osborne, Orton, and Johnson; City Attorney McCord, City Manager Grimes, Assistant City Manager McWethy, City Clerk Kelly; City Prosecutor Jones; Assistant Police Chief Surles; members of the press and audience. ABSENT: Directors Bumpass and Sharp 493.1 493.2 CALL TO ORDER co (o Mayor Noland called the meeting to order and stated that the purpose of the 493.3 hem meeting was to review one or more variances from the literal provisions of the U Noise Ordinance of the City of Fayetteville. Mayor Noland added that Mr. John CO Adams, of Rock Against Racism, had applied to the City of Fayetteville for a variance from Section 13-8.1 of the City's Noise Ordinance in order to hold an Q event in Wilson Park on April 17, 1983, from 10:00 a.m. to 11:00 p.m., with an associated parade originating at the Federal Building. Assistant City Manager McWethy reviewed the events which took place prior to this meeting concerning the request for a variance from the literal provisions of 493.4 the Noise Ordinance. Mr. McWethy stated that on Friday, April 8, 1983, Mr. Adams requested this variance of Mr. McWethy. The matter was discussed. Sometime around the Noon hour Mr. Adams returned to the City Offices with a written request. Mr. McWethy then consulted with the City Attorney and drafted the variance, before the Board for review. In part, the memorandum prepared by Mr. McWethy stated that Mr. McWethy did not feel that a variance would be needed for the parade portion of the event, assuming that amplified sound would not be used at this portion of the assembly. He further stated that on the condition that the parade moves in an orderly and efficient manner and does not dawdle in any one location, a variance was granted to allow the parade to create a sound level at the receiving source of 80 decibels. With respect to the activities that take place within the Park itself, a variance was granted so as to allow a sound level of 80 decibels until 9:30 p.m. on the evening of April 17th. City Attorney McCord then addressed the group and stated that some opposition 493.5 had been registered by some of the residents in the area of Wilson Park. (Several of these residents were present at this meeting). He then briefly outlined the law, as he understands it, concerning the Board's position to amend or modify the issuance of the permit for a Noise Variance. He stated that it is imperative that the Board recognize that the persons desiring to parade and assemble in Wilson Park are exercising rights guaranteed by the First Amendment of the Constitution. He then quoted some excerpts from a Denver, Colorado 1979 Federal Court case, which states, in part: "The Supreme Court has consistently stressed the constitutional rule that the public streets must be available to exercise First Amendment rights. (It also applies to public parks)...governments may enact reasonable time, place and manner regulations so long as such are justified without reference to the content of the regulated speech, and serve as a significant governmental interest, without unnecessarily infringing on First Amendment interests. Such regultions must be narrowly and specifically drawn so that they neither brush too broadly nor spill too much discretion in allowing free expression of ideas in public places, with the protection of the public peace and the primary uses of streets and parks... The question in each particular case is whether government control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities 1 494 for the communication of thought and a discussion of public questions immemorably associated with resort to public places. First Amendment claims must always be adjudicated in light of the special characteristics of the 494.1 environment involved in the particular case. While parades and marches are not as strictly insulated from regulation in so called pure speech, they nonetheless receive significant constitutional protection as an established form of First Amendment expression. Blanket prohibitions of otherwise pro- tected First Amendment activity are unconstitutional and void. One is not to have the exercise of his liberty of expression inappropriately abridged on the plea that it may be exercised in some other place. The City may enact reasonable time, place, and manner regulations which narrowly serve the legitimate interests of traffic control and public order." City Attorney McCord stated that he was comfortable that the Noise Ordinance, as drafted, is a reasonable time, place and manner ordinance. It is not content based, and is drafted so it can be applied uniformly. 494.2 With regard to the parade route, Mr. McCord stated that there are cases indicating that the City does have the authority to specify the particular route a parade must follow, if that authority is exercised in a manner found necessary to avoid traffic congestion and safeguard the public peace, so long as the alternate route does not deprive the paraders of the forum to which they want to direct their speech and expression. He stated that perhaps this could be done in this case by specifying a time during which the parade can pass by whatever points are desired to be passed by, at such time as there is not a great deal of traffic in that area. 494.3 Mayor Noland then asked for discussion from the Board members on the possibility of modifying or amending the variance of the Noise Ordinance in order to in some way accommodate both the group seeking the variance, and the residents of the Wilson Park area who voiced strong opposition to this variance. 494.4 Mr. J.O. York, a resident of 683 Wilson, asked if this variance allows profanity over the amplification system. Mr. McCord stated, again, that the First Amendment right of free speech precludes the City from passing an ordinance prohibiting profanity. He added that the question of profanity is addressed by the Arkansas Statute on Disorderly Conduct, which reads, in part, as follows "The person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm, or wrecklessly creating a risk thereof, he, in a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response." City Prosecutor Jones, who was present, concurred that unless the conduct falls within the purvue of that statute, the City does not have control. 494.5 Another resident of the Wilson Park area, Mr. Bob Brandon, stated that he was witness to the use of profanity over the public address system at a previous concert held at the Park. City Attorney McCord stated that each case of alleged disorderly conduct would be determined individually by the arresting officer and the court, if a charge were made. Mr. Adams, of Rock Against Racism, stated that he was not necessarily responsible for the irresponsible acts of a person using an unguarded microphone at these concerts, adding that no member of Rock Against Racism authorized any such statements. He apologized for this conduct. Mr. Adams then stated that a professional sound technician was being hired to insure that the microphones are protected. 494.6 Mayor Noland then discussed the time requested for this variance, which would be 11 1/2 hours from parade assembly until completion of the concert. He compared the request to the number of hours scheduled in other cities for 495 concerts of this nature, which range from two to four hours. Mr. Adams felt that some of the other events might last longer than the two to four hours listed. 495.1 He had requested this number of hours in order to have sufficient time to end their event around 7:00 p.m. -7:30 p.m., break down their equipment, and disperse. He felt this additional time would eliminate the possibility of "harassment." Mayor Noland stated that if the full time period were granted, as the application had indicated, it would be the longest variance ever granted. To date, the longest variance granted for a concert in the park had been for two and one-half hours. Mr. Bob Brandon then suggested the possibility of the assembly taking place at another area which he felt would be more appropriate, such as the County Fairgrounds. Mr. Adams stated that Wilson Park had been chosen because it was the scene of various public demonstrations since 1978, and also because it was easily accessible and a) centrally located. CO When Director Johnson asked whether the group would meet the 80 decibel limit, h Mr. Adams said he assumed the variance granted was a reasonable one under which they ( ) could maintain this limit. Mayor Noland reminded the group that the purpose of CO this meeting was to attempt to reach a compromise to satisfy both the residential opposition and to satisfy the rights of the Rock Against Racism group. Officer Roger Loge of the Police Department was present and stated that at a previous concert he had taken decibel readings at the receiving point of complaint. He stated, however, for the Board's information, that each 10 decibel limit increase would, in fact, double the noise. Therefore, a variance raising the decibel level from 60 to 80 decibels would effectively quadruple the noise level. 1 To clarify the current Noise Ordinance, as amended, City Attorney McCord stated that the original Noise Ordinance was adopted in December, 1979, and was amended in November, 1982, so that it applied to sound emanating from public property, as well as private property. The amendment made on April 5, 1983, did not change the substance of the ordinance, it just removed an ambiguity that, because of exception, could possibly have been construed as applied to public property, and that exception was deleted to be consistent with the amendment made in November, 1982. He reit- erated that the City cannot absolutely prohibit the use of sound amplifying apparatus irrespective of the volume of sound or time and place. Director Lancaster made a motion to grant a variance of the Noise Ordinance for a period of four hours, at a 70 decibel limit. There was no second to this motion. In further discussion, Director Lancaster asked that the motion include an amendment to insure the enforcement of the prohibition of the use of alcohol and drug useage in Wilson Park. There was no second to this amendment. Director Orton, seconded by Director Lancaster, made a motion to grant a variance of the Noise Ordinance for a period of four hours, with the provision that the decibel limit be set at 70 for the duration. No specific hours were noted. In discussion, Director Osborne stated that he would vote for a larger variance if the chosen location were other than at Wilson Park, but perhaps at a location away from residences, such as the County Fairgrounds. Director Osborne, seconded by Director Johnson, made a motion to amend the motion of Director Orton, to specify the variance be granted for a period of 2:00 p.m. until 5:30 p.m., at 75 decibels, at the receiving point in the residential areas. Upon roll call, the amendment to the motion of Director Orton passed by a vote of 4-1, with Director Orton voting in the minority: 495.2 495.3 495.4 495.5 495.6 495.7 495.8 495.9 495.10. 491; In further discussion, Director Lancaster asked who would be responsible if the Police Department takes readings at the receiving end of complaint calls and finds those readings exceed the decibel limit. Mayor Noland said that the person who has filed for the variance would be accountable. Officer Loge of the Police Department volunteered to accept duty on April 17, 1983, 496.1 his day off, and take meter readings every time a complaint is registered. He asked if Mr. Adams would accompany him to the source of complaint. Mr. Adams stated that he would. With regard to the enforcement of the prohibition of the use of alcohol and drugs in the Park, Mr. Adams said he would designate someone from the group to caution the group against this useage. Mayor Noland then called for a roll call on the motion by Director Orton, 496.2 as amended by Director Osborne, to grant a variance from the Noise Ordinance for the period of 2:00 p.m. until 5:30 p.m., at 75 decibels. Upon roll call, the motion passed by a vote of 5-0. 496.3 Director Orton then stated that she was concerned that the parade may inter- fere with the traffic in and around several of the downtown churches. Mr. Adams stated that he had consulted with the Police Chief and that the parade route had been authorized by the Police Chief concerning time and route. The group had received a permit from the Federal government to assemble at 11:00 a.m. at the Federal Building. Assistant Police Chief Surles indicated that the parade permit was authorized by Chief Jones. It was felt that the traffic flow would not be disrupted by this planned parade route. Director Lancaster made a motion, seconded by Director Osborne, to auth- 496.4 orize the parade to begin at 12:30 p.m., and allow the group one and one-half hours to travel to Wilson Park. Director Osborne then determined to withdraw his second, based on some case law reviewed with the City Attorney which might cause some legal problems if this motion were passed. City Attorney McCord reminded the group that the Noise Ordinance would not apply during the time of the parade. In conclusion, one resident of Wilson Park, who did not identify himself, 496.5 asked how many violations of the variance would be tolerated before the demon- stration was disbanded, and the City Manager stated that the officers would not be instantly arbitrary, because the violator may not necessarily realize he was in violation. It would be called to their attention and if the violation is repeated, the officer would make the decision on how to proceed. 496.6 There being no further business, the meeting was adjourned at 10:25 a.m. 1 1 1 •