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City of Wichita v. Smith8/22/2003
.)
Smith argues the club was providing live entertainment for its guests on the night in question and the City should have applied subsection (b)(1) instead of (a) to charge him with the violation.
Smith further argues he held a cabaret license which allowed the business to play live amplified music; therefore, he could not be found guilty of loud noise ordinance violation under the exception of (b)(1).
The City argues Smith failed to establish or present evidence in the record on appeal to show that he in fact had a cabaret license at the time of his alleged violation of the city ordinance. The City claims this issue is not properly before the court and must be disregarded. We disagree with the City's argument on this issue. Smith raised this issue in his trial brief before the district court. We will, therefore, address it.
The cabaret license on its face states:
"The person, firm or corporation named below is granted this business certificate pursuant to the provisions of the City Business License Ordinances to engage in, carry on or conduct the business, trade, calling, profession, exhibition or occupation described below. Issuance of the certificate is not an endorsement, nor certification of compliance with other ordinances or laws."
(Emphasis added.)
Just because the club obtained a cabaret license to provide live entertainments for guests does not mean it has a total exemption from the enforcement of the loud noise ordinance. The licence itself makes this clear. No law supports Smith's claim that the holder of a cabaret license could not be found guilty of violation of the noise ordinance while engaging in activities which were permitted under the license.
Also, the exception in (b)(1) which Smith claims is applicable refers to an authorization "for the event" in which some sound producing device is utilized. This appears to refer to a single, special occurrence for which permission is needed. The cabaret license is issued for operation an of ongoing business and (b)(1) is not applicable here.
Smith also argues that 7.41.020 (2003) and 7.41.030 (2003) of the overall "noise" ordinance, Chapter 7.41, were not complied with in determining whether the noise in question was too loud.
The ordinance provisions cited read as follows in pertinent part:
"7.41.020 Classification and measurement of noise
"For the purposes of determining and classifying any noise from a fixed, stationary source as loud, unusual or unnecessary as declared to be unlawful and prohibited by Section 7.31.010(a) herein, the following test measurements and requirements may be applied:
"(a) Noise occurring within the jurisdiction of the city shall be measured at a distance of at least twenty-five feet from a noise source if located within the public right-of-way, and if the noise source is located on private property or property other than the public right-of-way, at least twenty-five feet from the property line of the property on which the noise source is located.
"(b)(1) The noise shall be measured on the 'A' weighing scale on sound level meter of standard design and quality and having characteristic established by the American National Standards Institute.
(2) For purposes of this section, measurements with sound level meters shall be made when the wind velocity at the time and place of such measurement is not more than five miles per hour, or twenty-five miles per hour with a wind screen.
(3) In all sound level measurements consideration shall be given to the effect of the ambient noise level created by the encompassing
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