A special magistrate on Wednesday upheld the city’s claim that a Fernandina Beach restaurant owner violated the city’s noise ordinance in August when music was “plainly audible” from a distance of 100 feet from the Patio Place on Ash St.
But in her decision Miriam Hill converted the $250 violation to a written warning and said the fine and $75 fee to appeal the citation must be returned to Amy Petroy.
According to the magistrate, the city did not properly convert a previous citation issued to Ms. Petroy in February from “void” to “written warning.” At the Oct. 24 hearing, Ms. Petroy testified that she was entitled to the warning and the judge agreed.
But the clock is ticking on future violations.
According to the magistrate, Ms. Petroy may face financial penalty if she violates the noise ordinance again within 12 months.
“Your next violation may result in a fine of $250. A separate citation may be issued once every hour if a violation has occurred any time within that period,” said the magistrate.
The 12-month time period started Aug. 9, 2017, according to the decision.
City Attorney Tammi Bach said by phone Thursday that she is pleased with the ruling.
“I’m pleased the magistrate upheld the city’s position that a violation had occurred,” she said. “I also think the magistrate in this order did a good thing with the warning. The city is not looking to collect fines for compliance.”
Ms. Petroy’s attorney Stephanie Nicole Jamieson had a mixed reaction to the decision.
“I’m obviously happy the violation was dismissed and the argument that a written warning had not been issued in February was supported,” she said by phone Thursday. “But I’m disappointed that there’s potential for violations moving forward.”
Ms. Jamieson said the city’s noise ordinance is driven by complaint, arbitrarily applied and, in her opinion, violates the U.S. Constitution.
“The magistrate’s order doesn’t solve the overarching issue that the city has a noise ordinance that violates the constitution…the ordinance doesn’t apply to the mills, to churches, to political events,” she said. “Have (the ordinance) based on time so it’s not arbitrarily enforced.”
Ms. Jamieson, a criminal attorney who lives in Fernandina Beach, said her client typically closes her business by 9:30 p.m., a “reasonable hour” for people living in an urban area to hear music at bars and restaurants. She said she took the case on a pro bono basis because she would like to see more downtown businesses have live music.
“I go to St. Augustine where they have figured out at the Amphitheater to start shows early so they can end early,” she said. “It would be in the city’s best interest to reach some meaningful compromise.”
Ms. Jamieson said if Ms. Petroy decides to take the case to federal court, it will be an expensive fight. She said she has given her client the names of several attorneys qualified to take the matter to federal court.
“Those attorneys can be $350 bucks an hour,” she said. “That’s out of Miss Bach’s scope and that means the city will have to hire a law firm. That’s expensive and that will be on taxpayers.”
City taxpayers are paying for the magistrate’s time at $135 per hour, according to Ms. Hill’s request for proposal to the city.