IN THE COUNTY COURT OF THE EIGHTH JUDICIAL CIRCUIT,

IN AND FOR ALACHUA COUNTY, FLORIDA

STATE OF FLORIDA/ALACHUA COUNTY 1 CASE NO. 2019-CO-2627-A

Plaintiff
vs. DIVISION I

WILLIAM EUGENE CAUDLE

Defendant.
___________________________/

AMENDED MOTION TO DISMISS AND DECLARE ALACHUA COUNTY’S NOISE

CONTROL ORDINANCE (§ 110.03) UNCONSTITUTIONALLY OVERBROAD
AND § 110.03(b)(2) STATUTORILY PREEMPTED AS APPLIED

Defendant, William Eugene Caudle, hereby files this Amended Motion for the Court to

dismiss the charge against him in the instant case. A previous version of this Motion was filed by

the undersigned attorney, Assistant Public Defender Scott T. Schmidt, on November 25, 2019.

This Amended Motion is filed in order to amend references to parties and court dates, as well as

to make a few non-substantive changes to spelling and grammar.

I. BACKGROUND & FACTUAL ALLEGATIONS

Defendant, Mr. William Caudle, is charged in the instant case via Notice to Appear with a

criminal violation of section 110.03(b)(2) of the Alachua County Code of Ordinances (hereinafter

“Noise Ordinance”). The Notice to Appear was completed and issued by Detective Jack Lance

Yeager of the Alachua County Sheriff’s Office on October 21, 2019. The Notice to Appear alleges

that Det. Yeager was stationary in the Tower Oaks neighborhood when he heard loud music. Det.

Yeager claims that, while more than 50 feet away from Mr. Caudle’s vehicle, he noticed that loud

music was coming from the vehicle. Det. Yeager signaled for Mr. Caudle to turn the music down

1
It is unclear what the proper caption for this case is. The statutes state that “violations [of county ordinances] shall
be prosecuted in the name of the state in [county court] by the prosecuting attorney thereof.” Fla. Stat. § 125.69(1)
(emphasis added). However, the rules state that the caption should read “[Name of County] versus (name of
defendant).” Fla. R. Crim. P. 3.140(c)(1). Cf. Fla. R. Jud. Admin. 2.265(e).

1
and perceived that Mr. Caudle refused. Det. Yeager initiated a stop of Mr. Caudle’s vehicle. In

addition to citing Mr. Caudle for five (5) separate traffic infractions, 2 Det. Yeager charged Mr.

Caudle with the Noise Ordinance violation based on the music emanating from the speakers in Mr.

Caudle’s vehicle, referring to the offense as a “music violation.”

Since Det. Yeager decided to turn the incident into a criminal prosecution by issuing a

Notice to Appear, the Office of the State Attorney is now statutorily tasked with handling the

prosecution of this case. See Fla. Stat. § 125.69(1) (“Violations of county ordinances shall be

prosecuted in the same manner as misdemeanors are prosecuted. Such violations shall be

prosecuted in the name of the state in a court having jurisdiction of misdemeanors by the

prosecuting attorney thereof . . .”). Therefore, the State Attorney is vested with the power and

power to prosecute this case. However, the Office of the State Attorney indicated in court that it

generally does not handle county ordinance violation cases and that it specifically does not have

Mr. Caudle’s case in its system.

On or about November 25, 2019, undersigned counsel spoke with Senior Assistant County

Attorney Corbin Hanson, Esq., who indicated to undersigned that the Alachua County Office of

the County Attorney will be assuming prosecution of Mr. Caudle’s case, in place of the Office of

the State Attorney. Undersigned counsel expressed his intent to file a Motion to Dismiss, and

discussed with Mr. Hanson the legal arguments contained herein. Both parties agreed to the filing

of a Motion to Continue this matter to the Pretrial Conference on Thursday, December 19, 2019,

and this Court granted the Motion. At this time, speedy trial has not been waived by Defendant.

II. THE NOISE ORDINANCE

2
See Alachua County Clerk case numbers 2019-TR-20789, 2019-TR-20790, 2019-TR-20793, 2019-TR-20794, and
2019-TR-20799.

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 Section 110.03 of the Alachua County, Florida Code of Ordinances concerns “Specific

noise prohibitions” and reads as follows:

The following acts, and the causing thereof, are declared to be a violation of this
chapter.
(a) Horns and signal devices.
The sounding of any horn or audible signaling device of a motor vehicle, boat,
engine, machine, or stationary boiler, within the jurisdiction of Alachua County,
continuously or intermittently for a period in excess of 60 seconds, except as a
danger or emergency warning.
(b) Radios, televisions, electronic audio equipment, musical instruments, and
similar devices.
(1) The use, operation or playing of any radio, television, phonograph, stereo set,
tape player, sound amplifier, musical instrument or similar device which produces
or reproduces sound in a manner as to be plainly audible at a distance of 15 meters
(50 feet) or more away from the real property line of the source of the sound, to any
person in a commercial, industrial, or residential area, or public space.
(2) The operation or playing of any radio, musical instrument, or similar device
which produces sound on the public right-of-way in such a manner as to be plainly
audible to any person at a distance of 15 meters (50 feet) from the source of the
sound.

Alachua County Code § 110.03 (emphasis in original). While subsection (b)(1) covers sounds

emanating from “real property,” subsection (b)(2) concerns the production of sound “on the public

right-of-way.” This explains why Detective Yeager charged Mr. Caudle with a violation of

subsection 110.03(b)(2) for music emanating from the radio speakers in Mr. Caudle’s vehicle,

which was located on a public road.

Section 110.06 (“Penalties”) provide the option of prosecuting a violation of the Noise

Ordinance as a criminal offense carrying the possibility of incarceration. It reads:

Any person or persons, firm or corporation, or any agent thereof who violates any
of the provisions of this chapter shall upon conviction be guilty of a second degree
misdemeanor offense punishable as provided for under F.S. §§ 775.082 and
775.083. Violations of this chapter may also be processed in accordance with F.S.
ch. 162, including but not limited to appearance before the Alachua Codes
Enforcement Board.

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Alachua County Code § 110.06 (emphasis added). Therefore, violations of the Noise Ordinance

are punishable by a maximum of 60 days in jail, six (6) months of probation, a $500 fine, and the

numerous other mandatory and permissible fees, costs, and probationary conditions provided by

statute. See Fla. Stat. § 775.082(4)(b) (“term of imprisonment not exceeding 60 days”); §

775.083(1)(e) ($500 fine); § 938-939 (chapters covering additional costs); and Sloan v. State, 10

So. 3d 686 (Fla. 2d DCA 2009) (six months probation). See also Fla. Stat. § 125.69(1) (“Violations

of county ordinances . . . upon conviction shall be punished by a fine not to exceed $500 or by

imprisonment in the county jail not to exceed 60 days or by both such fine and imprisonment.).

The Noise Ordinance provides the Alachua County Sheriff’s Office with unfettered

discretion to decide whether to treat an alleged violation as civil code violation or as a criminal

act. See Alachua County Code § 110.08 (The “Alachua County Sheriff’s Office” has “primary

responsibility for the enforcement of this chapter”). After an agent of the Sheriff’s Office

investigates and determines that “any noise is in violation of the specific noise prohibitions

provided in section 110.03,” he or she has the option of initiating a noncriminal code enforcement

proceeding against the alleged violator. § 110.06(a), (c). See also Fla. Stat. § 162 (“County or

Municipal Code Enforcement”). However, the Noise Ordinance also provides the law

enforcement agent with the ability to initiate a criminal prosecution of an alleged violator, through

the following language:

If the noise level is found to be in violation of this chapter by the Alachua County
Sheriff's Office, the ACSO may issue a warning, a notice of violation, or arrest the
person in possession or control of the cause of the excessive noise and charge them
with violating this chapter.

Alachua County Code § 110.08(d).

III. ARGUMENT

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 The Noise Ordinance is unlawful for two independent reasons. 3 First, the entire Noise

Ordinance is unconstitutional because it regulations speech in a manner that is not content-neutral,

in contravention of the First Amendment of the United States and Florida Constitutions. Second,

the specific subsection of the Noise Ordinance Mr. Caudle is charged with, as applied to the factual

allegations in his case, is preempted by Florida Statutes.

A. NOT CONTENT-NEUTRAL

The Noise Ordinance is unconstitutionally overbroad because it criminalizes conduct

generally protected by the First Amendment and it does so in a manner that is not content-neutral.

It fails to be content-neutral because it carves out an exception from the noise prohibition certain

vehicular noises produced for commercial, profit-making purposes.

Section 110.05 of the Noise Ordinance, entitled “Exceptions,” lists eleven (11) individual

types and sources of noise that are “exempt from noise level regulations.” Most of these exceptions

are understandable and legally justifiable. For example, emergency vehicle sirens, burglar alarms,

and noises from properly maintained and operated air conditioners, lawn mowers, trains, and

aircraft are exempt from the ordinance. Alachua County Code § 110.05(a)-(e), (g)-(h). Also

exempted are noises “from motor vehicles as regulated by [Florida Statutes] §§ 316.272 and

316.293.” Alachua County Code § 110.05(i).4 While the above exceptions appear to pass

3
Although not the premise of this Motion’s legal argument, Alachua County’s criminalization of the playing of
music within earshot of persons 50 feet away is disconcerting. Even if the regulation of sound heard at or below that
distance was necessary to ensure peace and quiet for citizens, there are alternatives to using the criminal justice
system to remedy the social ill of citizens playing loud music. The Board of County Commissioners should give
serious consideration to amending this and other ordinances that expand the reach of the criminal justice system.
4
These cited sections of Florida Statutes do not address amplified sounds coming from speakers, such as music or
spoken word. Instead, they concern engine, exhaust system, and muffler sound levels. However, it is telling that the
Noise Ordinance recognizes its regulation in these areas are preempted by state law.

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constitutional muster, an exception listed under subsection (f) renders the Noise Ordinance not

content-neutral. The exception reads as follows:

Noises from motor vehicles engaged in a professional or amateur sanctioned,

competitive sports event for which admission or an entry fee is charged, including
practice or time trials for such event.

§ 110.05(f). Therefore, the Noise Ordinance offers preferred treatment to noises emanating from

cars, so long as the noises are associated with a “sports event” and revenue is collected through an

“admission or entry fee.”

The United States Supreme Court has held that “an exemption from an otherwise

permissible regulation of speech may represent a governmental ‘attempt to give one side of a

debatable public question an advantage in expressing its views to the people.’ City of Ladue v.

Gilleo, 512 U.S. 43, 51 (1994) (quoting First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 785–

786 (1978)). The Court added that, similar to “other classifications, regulatory distinctions among

different kinds of speech may fall afoul of the Equal Protection Clause.” Id. (citing Carey v.

Brown, 447 U.S. 455, 459–471 (1980), and Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98–

102 (1972) (both involving ordinances that forbade certain kinds of picketing but exempted labor

picketing)).

However, this requirement of content-neutrality expands beyond political speech. The

Supreme Court has made it clear that music is a protected form of speech under the First

Amendment. In Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989), the Court wrote:

Music is one of the oldest forms of human expression. From Plato's discourse in
the Republic to the totalitarian state in our own times, rulers have known its
capacity to appeal to the intellect and to the emotions, and have censored musical
compositions to serve the needs of the state. The Constitution prohibits any like
attempts in our own legal order.

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Id. at 790. Relatedly, it is recognized that the law makes little distinction between expressive

conduct made voluntarily without a profit-motive and that produced for money or compensation,

nor between political speech and entertainment. See, e.g., Riley v. Nat'l Fed'n of the Blind, 487

U.S. 781, 801 (1988) (“It is well settled that a speaker’s rights are not lost merely because

compensation is received; a speaker is no less a speaker because he or she is paid to speak.”);

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment, as well as political

and ideological speech, is protected; motion pictures, programs broadcast by radio and television,

and live entertainment, such as musical and dramatic works fall within the First Amendment

guarantee.”).

By carving out an exception for sound emanating from vehicles producing noise because

they are involved in a “competitive sports event for which admission or an entry fee is charged,”

the Noise Ordinance specifically and unjustifiably favors one form of speech over another.

Commercial, for-profit entertainment noise is favored over music played simply because a citizen

wants to play music.

This is the same issue that caused the Florida Supreme Court to invalidate section 316.2045

of Florida Statutes as unconstitutionally overbroad. See State v. Catalano, 104 So. 3d 1069 (Fla.

2012). Specifically, the Court found that one of the exceptions was “an impermissible content-

based restriction.” Id. at 1074. The section reads as follows:

(1) It is unlawful for any person operating or occupying a motor vehicle on a street
or highway to operate or amplify the sound produced by a radio, tape player, or
other mechanical soundmaking device or instrument from within the motor vehicle
so that the sound is:
(a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or
(b) Louder than necessary for the convenient hearing by persons inside the vehicle
in areas adjoining churches, schools, or hospitals.
(2) The provisions of this section shall not apply to any law enforcement motor
vehicle equipped with any communication device necessary in the performance of

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 law enforcement duties or to any emergency vehicle equipped with any
communication device necessary in the performance of any emergency procedures.
(3) The provisions of this section do not apply to motor vehicles used for business
or political purposes, which in the normal course of conducting such business use
soundmaking devices. The provisions of this subsection shall not be deemed to
prevent local authorities, with respect to streets and highways under their
jurisdiction and within the reasonable exercise of the police power, from regulating
the time and manner in which such business may be operated.
(4) The provisions of this section do not apply to the noise made by a horn or other
warning device required or permitted by s. 316.271. The Department of Highway
Safety and Motor Vehicles shall promulgate rules defining “plainly audible” and
establish standards regarding how sound should be measured by law enforcement
personnel who enforce the provisions of this section.
(5) A violation of this section is a noncriminal traffic infraction, punishable as a
nonmoving violation as provided in chapter 318.

§ 316.3045, Fla. Stat. (2007) (emphasis added). The Florida Supreme court was not concerned

with the exceptions for law enforcement or emergency vehicles, or with the exceptions for car

alarms and car horns. However, it found that subsection (3) offended the constitution.

The Court elaborated that, even if protecting the public from excessive noise on public

streets were a compelling government interest, it remained “unclear how the statute advances those

interests by allowing commercial and political speech . . . but not allowing noncommercial speech

to be heard at the same distance.” State v. Catalano, 104 So. 3d 1069, 1080 (Fla. 2012). The Court

also dismissed the State’s argument “that noncommercial vehicles are more dangerous to the

public because they are ubiquitous.” Id. In response, it wrote:

This argument, however, fails to explain how a commercial or political vehicle

amplifying commercial or political messages audible a mile away is less dangerous
or more tolerable than a noncommercial vehicle amplifying a religious message
audible just over twenty-five feet away from the vehicle.

Id. The Court also pointed out that, if anything, the nature of speech as commercial would

normally subject it to more – not less – regulation:

Further, the statute protects commercial speech to a greater degree than

noncommercial speech; commercial speech, however, is generally afforded less
protection.

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Id. (internal citations omitted). See also Montgomery v. State, 69 So. 3d 1023, 1032 (Fla. 5th

DCA 2011) (“We fail to see how the interests asserted by the State are better served by the statute’s

exemption for commercial and political speech.”); and U.S. v. Edge Broad. Co., 509 U.S. 418, 430

(1993) (noting that commercial speech is afforded less protection than other forms of speech).

Therefore, for the same reasons as provided by the Florida Supreme Court in Catalano, this

Court should declare section 110.03 of the Alachua County, Florida Code of Ordinances

unconstitutional due to its failure to provide for a content-neutral regulation of speech, in

contravention of the United States Constitution and the Florida Constitution.

B. PREEMPTED BY FLORIDA STATUTES

Separate from issues with content-neutrality, the section of the Noise Ordinance Mr.

Caudle is charged with is also invalid because it is preempted by Florida Statutes. The ordinance,

as applied to Mr. Caudle, regulates sound emanating from a vehicle driven on a public road. As it

turns out, it provides criminal sanctions for an activity already regulated by the Legislature as a

noncriminal traffic offense.

Although the Florida Supreme Court found section 316.3045 unconstitutional for the

reasons described above, the Legislature has not taken it off the books. It still contains the

following language: “A violation of this section is a noncriminal traffic infraction, punishable as

a nonmoving violation as provided in chapter 318.” Fla. Stat. § 316.3045(5) (2019) (emphasis

added). Thus, it remains the Florida Legislature’s intent that it dominate the field of regulating

sound emanating from vehicles. Furthermore, the reason it was found unconstitutional has nothing

to do with the classification of a potential violation as an infraction rather than a crime. Therefore,

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the continued existence of the statutory section demonstrates the Legislature’s intent to occupy the

filed of vehicular noise violations and categorize them as noncriminal.

Florida law recognizes two categories of preemption: express preemption and implied

preemption. D'Agastino V. City of Miami Beach, 220 So. 3d 410, 421 (Fla. 2017) (citing Sarasota

Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 885-86 (Fla. 2010)). Express

preemption occurs when there is a specific legislative statement evincing an intent to preempt,

“accomplished by clear language.” Id. Implied preemption occurs “when the state legislative

scheme is pervasive, and the local legislation would present a danger of conflict with that pervasive

scheme.” Id. It is also considered implied “where strong public policy reasons exist for finding

such an area or field to be preempted by the Legislature.” Id. The test for implied preemption

requires looking “to the provisions of the whole law, and to its object and policy.” Browning, 28

So. 3d at 886 (internal citation omitted). In making this determination, courts will review, “[t]he

nature of the power exerted by the Legislature, the object sought to be attained by the statute at

issue, and the character of the obligations imposed by the statute.” Id.

The most analogous Florida case to Mr. Caudle’s situation is State v. Smith, 584 So. 2d

145 (Fla. 2d DCA 1991). In that case, the Second District addressed the question of whether

Sarasota County Ordinance 87-41, making possession an open container within a vehicle

punishable as a misdemeanor, was superseded section 316.1936 of Florida Statutes, which makes

the same activity a “noncriminal moving traffic violation.” Id. at 146. The court found that it was.

Id. at 146-47.

The court made this determination despite the fact that section also permits a county or

municipality to “adopt an ordinance which imposes more stringent restrictions on the possession

of alcoholic beverages in vehicles than those imposed by this section.” Fla. Stat. § 316.1936(7)

10
(1989). The court interpreted this particular language as permitting a local government to prohibit

more conduct related to open containers that is otherwise permitted by the state. However, it did

not permit “an increase in penalty or a shift to criminal sanctions for conduct already restricted by

state statute.” Smith, 584 So. 2d at 147. The court provided the following analysis:

It is well established that a state statute prevails over a conflicting local ordinance.
It is not, however, always an easy task to determine whether a conflict exists. This
court has held that a municipality cannot adopt a criminal ordinance which creates
a penalty more severe than a state criminal statute regulating the same conduct. On
the other hand, local governments can sometimes create local ordinances which
criminalize conduct not governed by state statute. The question in this case is
whether the county can create a criminal offense when the state has expressly
created a noncriminal infraction to govern the same conduct. We conclude, at least
in the context of this case, that it cannot.

The legislature has placed its recent enactment regarding open container violations
within the Florida Uniform Traffic Control Law. This chapter is generally intended
to create a uniform, statewide traffic control system. This uniform system treats
many violations as noncriminal infractions rather than criminal offenses. Local
governments are authorized to create additional traffic regulations in limited
circumstances, but chapter 316 does not appear to permit local governments to
criminalize conduct which the state has expressly declared to be noncriminal.

Id. (citing Fla. Stat. §§ 316.002, 316.008, and 316.655) (other internal citations omitted).

In light of is reasoning, it is irrelevant that Alachua County’s Noise Ordinance provides for

a restriction on noise that is potentially louder than under the Statutes. The Ordinance prohibits

noise plainly audible from at least 50 feet away, while the Statute applies to noise audible from 25

feet away. In this case, the Ordinance is actually less stringent than the Statutes; noise audible

from 50 feet away is obviously louder than that audible from just 25 feet away. Of course, an

argument could be made that the ordinance therefore covers conduct more egregious than the

Statutes, and that justifies a higher penalty. However, “25 feet or more” undeniably encompasses

distances of 50 feet and beyond.

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 About two years after the Smith decision, the Florida Supreme Court used the same

reasoning when it invalidated an Orlando municipal ordinance that made it a criminal offense to

not have bell on one’s bicycle. Thomas v. State, 614 So. 2d 468 (Fla. 1993). As a threshold issue,

the court first held that bicycles are regulated under chapter 316 of Florida Statutes and that the

“stated purpose of chapter 316 is to ‘make uniform traffic laws to apply throughout the state and

its several counties and uniform traffic ordinances to apply in all municipalities.’” Id. at 470

(quoting Fla. Stat. § 316.002 (1989)). The Court did note that bicycles are listed in another section

“as one of those subjects that municipalities are permitted to regulate on the streets and highways

under their jurisdictions within the reasonable exercise of the police power.” Id. (citing Fla. Stat.

§ 316.008(1)(h)). However, the Court continued:

Although municipalities and the state may legislate concurrently in areas that are
not expressly preempted by the state, a municipality's concurrent legislation must
not conflict with state law. While a municipality may provide a penalty less severe
than that imposed by a state statute, an ordinance penalty may not exceed the
penalty imposed by the state.

Id. (citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA 1981); Edwards v.

State, 422 So.2d 84 (Fla. 2d DCA 1982)). The Court concluded:

As discussed above, the Legislature in chapters 316 and 318, Florida Statutes, has
determined that traffic violations, including those relating to bicycles, should be
punished by civil penalties. A city may not enact an ordinance imposing criminal
penalties for conduct essentially identical to that which has been decriminalized by
the state. Therefore, we find that the penalty imposed by the Orlando ordinance is
in conflict with state law.

Id.

In the case of Mr. Caudle, a violation of section 110.03(b)(2) of the Alachua Code was

charged. While the section does not specifically restrict its application to sound emanating from

a “radio, musical instrument, or similar device” within a motor vehicle, in Mr. Caudle’s case it

was. It was Mr. Caudle’s motor vehicle speakers that allegedly produced “sound on the public

12
right-of-way in such a manner as to be plainly audible” from 50 feet away. Therefore, in regards

to Mr. Caudle, the County Noise Ordinance is preempted and superseded by Florida Statutes.

THEREFORE, Mr. Caudle, by and through undersigned counsel, respectfully requests

that this Court issue an Order declaring Alachua County’s Noise Ordinance unconstitutional and/or

superseded by Florida Statutes.

I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Motion to

Dismiss has been furnished to the Office of the State Attorney, at eservice@sao.org, via E-Service,

and/or to Corbin Hanson, Esq., Office of the Alachua County Attorney, at

cfhanson@alachuacounty.us, on this the 17th day of December, 2019.

______________________
Scott T. Schmidt, Esq.
Assistant Public Defender
Fla. Bar No. 92534
Law Offices of Stacy A. Scott,
Public Defender
151 SW 2nd Avenue
Gainesville, FL 32601
(352) 374-5277
Email: schmidts@pdo8.org
Eservice: eservice@pdo8.org

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