Do you love freedom? I do. Do you love the constitution? I do too! We have so much in common.
Before diving into case law, let me tell you about my trip to Germany last summer. Beautiful country, great beer, etc. But, Germany is a tad reserved. My girlfriend and I stayed with her family, and one cousin builds custom motorcycles. His dream is to, one day, bring his custom bike to Daytona for Bike Week. But, under German law, his bike’s exhaust system is extremely muffled. It sounds like my moped, seriously. As a matter of fact, Harley’s sold in Germany don’t sound like Orlando’s Harley’s, they sound like mopeds. So, why should you care? Well, here in Orlando (and all of Florida), we have Florida Statute 316.3045, a statute governing noise, specifically, amplified sound from a vehicle.
Freedom loving citizens everywhere may now celebrate because the noise statute found in 316.3045 was, as of yesterday, declared unconstitutional by the Second District Court of Appeals. This is the first time this new, 2007 statute, has been addressed by an appellate court (the old statute was addressed by Davis v. State, 710 So.2d 635 Fla. 5th DCA 1998), The victory was successfully argued by a great attorney, a great guy, and–defendant in the case–Richard Catalano (Fla. 2nd DCA 2011, 2D10-973, May 11, 2011). Richard was driving one day and received a ticket under 316.3045 for his loud stereo, and took it all the way up to the Second District Court of Appeals. The Second DCA struck down the noise statute for more reasons than we have space to type here, but let’s review the highlights.
Our constitution requires noise ordinances to be content neutral, applying equally to music, political speech, and advertising. The court of appeals noted that the current statute is not content neutral, as it exempts commercial and political vehicles from the statute. Basically, an ice cream truck will not violate the noise statute, but the same music coming from a citizen’s car will violate the statute because the citizen is not blaring his music for “commercial purposes”. “We the people” have always been afforded more free speech rights than commercial entities, so a statute such as this, that affords more privileges to commercial entities, is invalid (yes, I glossed over at least 10 pages of analysis in three sentences–read the opinion yourself for further details!).
The court gave the following example “an individual using a vehicle for business purposes could, for example, listen to political talk radio at a volume clearly audible from a quarter mile; however, an individual sitting in a personal vehicle that is parked next to the business vehicle is subject to a citation if the individual is listening to music or religious programming that is clearly audible at 25 feet”. (Catalano, p. 11-12).
As an Orlando criminal defense attorney, I wish this case came down years ago. Basically, this statute has been used arbitrarily to stop and search cars that police suspect possess cocaine, marijuana, or whatever. These cars are ‘the cars that go boom’. And….we like the cars, the cars that go boom (yes, a lame ’80’s rap reference, my first in over a month). Now, police will have to make up some other reason to search these cars. Congratulations Richard Catalano, great work!!! PS: Richard, can you get to work on the “odor of cannabis” issue? Thanks.