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LPA discusses two ordinance issues

October 16, 2013
By BOB PETCHER ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

The Town of Fort Myers Beach Local Planning Agency held two workshop-style sessions during their meeting on issues relating to a proposed amendment to the noise control ordinance and a draft outdoor display ordinance last week.

Regarding the noise ordinance, the LPA listened to a report presentation by LaRue Planning & Management about the concept of creating a designated entertainment district in the downtown zoning district and amending an existing noise ordinance by way of a combined ordinance. Afterwards, board members received public comment before holding a discussion.

"If you do an entertainment district, we would recommend it to be like an overlay district," said Jim LaRue. "It would be more of a zoning. It wouldn't be more of a Comprehensive Plan."

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Joni's Gallery has an outdoor display with a table and spinners to attract customers. Town officials are looking into disallowing such “patio” displays and only allowing “porch” displays.

The proposed district would encompass as far south as Lani Kai Resort to the area from Old San Carlos Boulevard to Crescent Street.

Advantages listed for an entertainment district include synergy, vibrancy, a greater impact then scattered entertainment establishments, attraction for residents and tourists alike, an increase entertainment options, walkability, easier to patrol/enforce and higher revenues and profits. Disadvantages involve a single-use district may experience a lack of use during weekdays, excessive noise may affect nearby residents, parking and traffic issues, crowded atmosphere and a negative perception.

Larue team's report also encapsulated proposed boundary of an entertainment district, special exception approvals and impacts with alcohol consumption, community noise from live entertainment, hours of operation, special exception approvals and possible conflicts with the Town's Comprehensive Plan.

More than a dozen interviews were conducted, and LaRue officials checked out 15-20 entertainment districts and reported on successful noise and outdoor entertainment regulations in Orlando, Wilmington, N.C. and Ocean Springs, Miss.

Some concerns deal with open container issues, competing music volume from neighboring establishments, public drunkenness and enforcement, judgment in appropriate noise decibel levels and its methods and location of where to take measurements.

During public comment, a representative from Marina Village at Snug Harbor asked for the resort condominium to be excluded from the proposed entertainment district, while Beach businessman John Richard stated the existing noise ordinance is not clear. Nervous Nellies owner Rob DeGennaro also said his establishment has "experienced a lot of inconsistencies with noise levels" and has cut back his entertainment format to more of an acoustic type of music setting to be more community oriented.

"I think you are opening up a hornet's nest," he said. "We tried to limit our outdoor activities because we are part of a community."

DeGenarro, who stated he is against open containers and that permitting needs to be streamlined, compared entertainment districts in Key West and Down East, Maine. The former is a party atmosphere with mostly drinking establishments, while the latter is more of a mixture of retailers, ice cream shops, art galleries and cafes.

"I think that's probably more what we are looking for," he said in referencing Maine. "The idea is to make it a destination for people to come."

LPA members asked questions and weighed in. Jane Plummer and Al Durrett stated they are against an open container policy unless there is an event with a special exception. Chuck Bodenhafer agreed permitting needs to be streamlined for everybody. Jim Steele believes there should be a maximum decibel limit and mentioned decibel measurements should be taken at a point 100 feet away from the source of sound and beyond the boundary line of the premises of the sound source.

The current noise ordinance that was passed in September 1996 lists commercial/business sound level limit at 72 dba (A-weighted decibels) between 7 a.m. and 10 p.m. and 65 dba between 10 p.m. and 7 a.m.

Joanne Shamp agrees with the concept of an overlay for a "level playing field" with reasonable decibel levels and hours, while John Kakatsch is puzzled how to enforce a noise ordinance. Chair Hank Zuba would like changes to the current noise ordinance for better enforcement as well as disallowing open containers.

"I do agree with the idea that open containers are not allowed, and there should be a consistency in terms of noise levels," he said.

Town Community Development Director Walter Fluegel would like to see amendments to the noise ordinance for more effective enforcement.

"One of the enforcement tools we are looking at is the Sheriff's Office would go out, take a complaint, take a decibel reading and report it back to us," he said. "Then we would take it as a code enforcement issue."

LaRue Planning & Management's presentation will now go in front of Town Council during a future workshop. LaRue will craft a draft ordinance with input from the LPA meeting, and the issue will return to the LPA for hearings.

Regarding a proposed Outdoor Display draft ordinance, an August workshop was held to establish better clarity with beach merchant outdoor displays in the downtown zoning district and zoning sections in the Town Land Development Code. There have been cited issues involving enforcement and lack of permits. The draft ordinance involves merchandise being within a more enclosed area like an outdoor porch instead of a "market" style patio area.

Town staff has been working with a small group of Beach retail merchants to address what changes they would like to see within an ordinance with hopes that it could be approved by Council before the upcoming tourist season.

"What we have here is the draft changes that came from that discussion," said Town Zoning Coordinator Leslee Dulmer. More feedback was sought.

"Now, we have a definition for this enclosed merchandise area that would, by some definition, be treated almost the same as inside the building," said Fluegel.

Some attending merchants that have displayed product on patio-style areas believe the draft ordinance may cause harm to their business.

"My table really draws people," said Joni Hermansen of Joni's Gallery at 1188 Estero Blvd. "I have obstacles on both sides so it's tough for people to see me since I am set back. Eighty-five percent of people who purchase from me do so because they see the table and spinners."

One Times Square sunglass kiosk business, cited as nonlegal, nonconforming, may not be allowed to continue operations if the ordinance is passed.

"We have not been able to find anything to show that is was ever legally permitted," said Town Attorney Marilyn Miller.

Permits for outdoor displays, which were due Oct. 1, have been extended for 90 days, says Councilman Dan Andre. Annual permits cost $200 per business.

During last tourism season, Town code enforcement performed a sweep of outdoor display establishments.

"We found that several retailers had not brought in their annual outdoor display permit," said Fluegel. "We also got a lot of calls and complaints about the proliferation of outdoor display within the downtown district. When we began working with the retailers, we found they were very frustrated by the ordinance. Staff responded to that and started working with them very quickly."

Some LPA members believe the proposed ordinance is too much to swallow for small businesses on the island.

"Fort Myers Beach has a hard enough time keeping businesses as it is," Durrett said. "I would rather see it become easier so that small business can stay in business. It's not fair. It's not what Fort Myers Beach is about."

LPA members decided to continue the discussion on outdoor displays next month when they meet on Nov. 12. In between, another public workshop will be held to further discuss the matter on Tuesday, Oct. 22, at 2 p.m.



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