HomeMy WebLinkAboutA011 - cover letter for ordinance jm%%FA CITY IF wo 50010
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March 31, 1983 FILED
Honorable F. Paul Goodland, Mayor APR 1983
and Members of the City Council wa
of the City of Ames, Iowa CITY CLERK
CITY OF AMES, IOWA
In Re: "Noise" Ordinance
Dear Mayor Goodland and Council Members:
With this is the form of ordinance to enact the changes to the "noise"
ordinance that have been recommended by the "ad hoc" group. Regardless
of whatever other policy implications may be involved with this matter,
the changes being considered will at least have the good effect of
tending to clarify and simplify some aspects of the ordinance. In that
regard, your attention is invited to Section 16.7 of The Code which very
clearly states that: "When a permit has been issued. . . the sound level
shall be measured at a distance of fifty (50) feet." in view of which
the balcony incident, as it was recounted, should not have occurred.
If the ordinance is enacted, there will be three measurement distances
provided as follows:
1. 25 feet for vehicle sounds
2. 50 feet for sounds under permit
3. From the apparent nearest point on the street for
non-vehicular sounds without a permit.
No officer should ever have any reason again to think he should take the
measurement from a balcony or the corner of a backyard.
Finally, some remarks on the notion of writing into the ordinance a
provision that it will only be enforced when a person other than a
police officer is willing to make a complaint for the record. I
strongly urge anyone making a complaint of what they regard to be
unlawful conduct to identify themselves for the record since they may be
the best if not the only source of the testimony and evidence needed for
successful prosecution. However, if the written law is, on its face,
conditioned on citizen complaint there are likely to be persuasive
arguments that the ordinance is contrary to fundamental concepts of
substantive due process of law and the equal protection of the law.
` • 2 M
Admittedly, the defense of discriminatory enforcement is often raised
but seldom sustained. Nevertheless, the defense exists in legal theory,
its elements being intentional selectivity in enforcement that is not
based on any justifiable standard. State v. Olson 297 N.W.2d 297 (Minn.
1980) . (The mere fact that some others who could have been prosecuted
were not or that enforcement has been lax or nonexistent in the past is
not a defense. State v. Apt 244 N.W.2d 801, 804, (Iowa 1976) . Oyler
v. Boles 368 US 448, 456, 82 S. Ct. 501, 506, 7L.Ed.2d 446, 453 (1962) ;
9 McQuillin, Mun. Corp. Sec. 27.57a.) A "complaint only" policy is not
a justifiable standard for selectivity in enforcement. It is instead an
abandonment of legislative responsibility to the caprice and whim of
complainants. Ideally, the City should have no ordinances for which it
is not prepared to commit the resources of personnel and equipment
needed to establish a regular program of evenhanded, routine and un-
biased enforcement. To write in a "complaint only" policy is to declare
a policy of capricious selectivity that will invite legal problems for
which there is nothing to be gained worth considering.
Respectfully submitted,
John R. Klaus
City Attorney
JRK/bw
Encl. 1
cc: Charles Sage
ISU Office Student Life
City Manager
Police Chief