§ 10.5-41. Outdoor concert ordinance.

(a)

Title. This section shall be known and may be cited as the Polk County Outdoor Concert Ordinance.

(b)

Definitions. As used in this section, the following terms shall have the following meanings:

(1)

Outdoor concert shall mean a public or private performance of singers, instrumentalists, and/or recorded/electronic music using amplified speakers on a temporary or permanent stage in the open air, or in a partially enclosed (less than four (4) sides of a quadrangle or two hundred seventy (270) degrees of circular or polygon enclosure) building, or in a tent, or other similar temporary or permanent structure.

(2)

Event shall mean a single outdoor concert conducted at a specific location starting with the first performance of singers, instrumentalists, and/or recorded/electronic music and concluding with the last performance of singers, instrumentalists and/or recorded/electronic music.

(c)

Findings. The foregoing findings are incorporated herein by reference and made a part hereof.

(d)

Authority. This section is enacted under the home rule power of Polk County, specifically Section 125.01(1), Florida Statutes, Article II, Section 7, Florida Constitution, which provides that adequate provision shall be made by law for the abatement of excessive and unnecessary noise, and the First Amendment to the U.S. Constitution that permits reasonable, content-neutral, narrowly tailored, time place, and manner regulations.

(e)

Scope. This section shall be effective throughout the unincorporated areas of Polk County, Florida. This section is limited to the regulation of outdoor concerts. Nothing herein shall be deemed to waive the requirements of other county ordinances, including, without limitation, the Polk County noise control Ordinance No. 14-030, the Polk County Land Development Code, and the Polk County Comprehensive Plan.

(f)

Prohibition Outdoor concerts shall not be conducted after the hours of 11:00 p.m. and before 10:00 a.m.

(g)

Enforcement. The Polk County sheriff's office, Polk County's code enforcement officers, and any other person authorized to enforce county ordinances may enforce the provisions of this section. Violations of this section shall be prosecuted in the same manner as a misdemeanor with a fine not exceeding five hundred dollars ($500.00) or by imprisonment in the county jail for a term not exceeding sixty (60) days or by both fine and imprisonment. When enforced by a code enforcement officer, the enforcement provisions and procedures contained in the Polk County code enforcement special magistrate ordinance, as may be amended, are incorporated herein by reference and will apply. Nothing contained herein shall prevent the county from taking such other lawful action in law and equity as may be necessary to remedy any violation of any part of this section, including, without limitation:

(1)

Pursuit of injunctive and/or declaratory relief in a court of competent jurisdiction; and

(2)

Utilizing any other action or enforcement method permitted by law.

(h)

Variances.

(1)

Authority to grant of variances. The board may grant a variance from the strict application of this section, on a "per event basis," if the following procedures are followed and findings made. Variances under this section shall be heard solely by the board, and not by either the board of adjustment, or the planning commission.

(2)

Application. Applications for a variance from this section shall be filed with the county's planning and development division and shall be accompanied by the applicable fee established by resolution of the board for variances. All such applications must contain:

a.

The name, address, and telephone number of the applicant;

b.

A reasonably detailed description of the event for which the variance is requested; including, without limitation: date and times; what is proposed; how many attendees expected; public health, safety, and welfare precautions; safety plan; and, noise attenuation utilized.

c.

Applicant's reasonably detailed statement addressing applicant's position that the criteria for granting variances, subsections (g)(4)b—f, will be met.

(3)

Notice. Public notice of the board hearing shall be given pursuant to section 960, of the land development code. The applicant shall bear the actual cost of such notice, paid in advance at the time of application.

(4)

Criteria for granting variances. In order to authorize any variance from the terms of this section, the board shall consider the following factors:

a.

The findings in the staff report;

b.

Whether granting the variance will be in accordance with the general intent and purpose of the section, is in compliance with other applicable county regulations, and that the variance will not be injurious to the area involved or otherwise detrimental to the public health safety and welfare;

c.

Whether special conditions and circumstances exist which are peculiar to the particular event, land, structure, or building involved and which are not applicable to other events, lands, structures, or buildings in similar areas;

d.

Whether the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure;

e.

Whether the variance, if granted, will result in a prohibited change of land use that would not be permitted in the land development code and the comprehensive plan; and

f.

Whether the granting of the variance circumvents previous in force approvals of the applicant, or an in force condition of approval placed on the development by the planning commission or the board.

(5)

Conditions, restrictions, and safeguards. The board may approve, approve with conditions, or deny the request. The board may prescribe appropriate conditions, restrictions and safeguards in granting a variance. Violation of any conditions, restrictions, and safeguards, when made a part of the terms under which the variance is granted, shall be considered a violation of this section.

(6)

Appeals from decisions of the board. Any person or persons aggrieved by any decision of the board shall be entitled to a review of the decision by the 10th judicial circuit court of Polk County by filing an appropriate petition with the clerk of the court within thirty (30) calendar days after the board's decision.

(7)

Re-application for an exception to the land development code. A variance may be denied without prejudice by the board and re-application for such variance may be submitted without waiting the one-year period.

(i)

Narrow construction. The provisions of this section shall be narrowly construed such that its purpose is effectively rendered in the interest of the health, safety, and welfare of the citizens and residents of Polk County and the First Amendment rights of everyone.

(j)

Separate violations. Each separate occurrence shall be a separate violation.

(Ord. No. 98-22, §§ 1—4, 3-3-98; Ord. No. 17-011, §§ 1—10, 3-21-17)