§ 38-160. Enforcement.

(a)

Determination of violations. The city's law enforcement officers, the city manager, code enforcement officers, code inspectors, and their agents are empowered to investigate any situation where a person is alleged to be violating section 38-155, section 38-156 or the terms of any variance. These individuals shall have authority to issue citations for all violations of this article. If any of these individuals encounters a circumstance which reasonably indicates that a person is violating a provision of section 38-155 or 38-156, the following standards shall apply depending upon the provision alleged to have been violated:

(1)

Violations of section 38-155(a). If a violation of section 38-155(a) is alleged, a sound level pressure test may be utilized to establish the violation. The city may, through agreement with other local governments or other entities, provide for the measurement of sound and noise and for the performance of sound level pressure tests and other matters as such may be used in the enforcement of this article and the enforcement of section 118-1339. Additionally, the city's law enforcement officers, the city manager, code enforcement officers, code inspectors, and/or their agents, may assess whether a particular sound constitutes a noise as to the receiving land use listed in section 38-156. In assessing whether a noise has been or is continuing to be created, the investigating agent shall investigate the matter and be entitled to rely on his or her observations, witness statements, and any other evidence available. In determining whether a sound constitutes a noise, the investigating agent shall objectively evaluate the alleged noise by considering several environmental and contextual factors, including, but not limited to, the criteria set forth in section 38-160(a)(2)(i)—(ix), inclusive.

(2)

Violations of section 38-155(b). If a violation of section 38-155(b) is alleged, then the city's law enforcement officers, the city manager, code enforcement officers, code inspectors, and/or their agents, in assessing whether a noise has been or is continuing to be created shall investigate the matter and be entitled to rely on their observations, witness statements, and any other evidence available. In determining whether a sound constitutes a noise, the investigating agent shall objectively evaluate the alleged noise by considering several environmental and contextual factors, including, but not limited to, the following:

(i)

The intensity of the alleged noise.

(ii)

The duration of the alleged noise.

(iii)

The relationship of the alleged noise to the intensity of background or ambient sounds, if any.

(iv)

The uses permitted within the zoning district in which the alleged noise emanates or emanated and the uses permitted within zoning districts that lie within 500 feet of the source of the alleged noise.

(v)

The time of the day or night at which the alleged noise occurs.

(vi)

The proximity of the alleged noise to facilities customarily utilized for sleeping purposes.

(vii)

Whether the alleged noise is continuous or impulsive.

(viii)

The existence of additional complaints concerning the alleged noise from additional persons who claim to be affected by the alleged noise.

(ix)

Whether the alleged noise is due to natural occurrences or human-made activities.

(b)

Enforcement. In the event that a violation of this article has occurred or is occurring, the city shall have the right to one or more of the following remedies or actions:

(1)

Code enforcement proceedings. The city may initiate a code enforcement proceeding against the person(s) or entities in violation and/or the property owner of the real property where the violation occurs. A violation of this article may be prosecuted as a violation of an itinerant or transient nature and one that is irreparable and irreversible.

(2)

Civil citation. A civil citation may be issued against the person(s) or entities in violation as set forth in chapter 2 of the Winter Garden Code of Ordinances. The city's law enforcement officers or code enforcement officers are authorized to issue notices to appear to the violator(s).

(3)

Criminal penalty. The city may prosecute the violator for a criminal misdemeanor punishable by a fine not exceeding $500.00 or imprisonment for a term not exceeding 60 days, or by both such fine and imprisonment in the discretion of the court.

(4)

Other remedies. The city may institute any appropriate action at law or in equity to bring about compliance or remedy, including but not limited to, instituting an action in court to enjoin violating actions, in which case the violating person(s) or entity shall be liable to the city for reimbursement of the city's attorneys' fees and costs concerning such action.

(Code 1988, § 11-56; Ord. No. 05-36, § 8, 7-14-05; Ord. No. 12-33, § IV, 6-28-12)