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TC Ord. No. 2015-07 Amending Chapter 5.24 Section 9.12.080 and Chapter 9.40 of the Avon Muni Code and Repealing Resolution No. 88-20 Concerning amplified sound permitsTOWN OF AVON, COLORADO ORDINANCE NO. 15-07 SERIES OF 2015 AN ORDINANCE AMENDING CHAPTER 5.24, SECTION 9.12.080, AND CHAPTER 9.40 OF THE AVON MUNCIPAL CODE AND REPEALING RESOLUTION NO. 88-20 CONCERNING AMPLIFIED SOUND PERMITS, PERMITTING OF PRIVATE EVENTS ON TOWN PROPERTY AND PROHIBITING SMOKING IN OPEN SPACE AREAS WHEREAS, the Avon Town Council finds that amendments to Chapter 5.24, Section 9.12.080, and Chapter 9.40 will improve and clarify the administration of Amplified Sound Permits, procedures for approving private events on public property, and will enact appropriate restrictions on smoking in Town open space areas; and, WHEREAS, the Avon Town Council has authority to adopt and amend regulations concerning amplified sound and use of Town property, parks and public right -of -ways based on its home rule authority and under general municipal statutory authority; and, WHEREAS, it is the Town Council finds that amendment to Chapter 5.24, Section 9.12.080, and Chapter 9.40 of the Avon Municipal Code will promote the health, safety and welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the proposed legislation and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies the proposed amendments to the Avon Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Repeal and Re- enactment of Avon Municipal Code Chapter 5.24. Avon Municipal Code Chapter 5.24 Amplified Sound Systems is hereby repealed in its entirety and re- enacted to read as follows: CHAPTER 5.24 AMPLIFIED SOUND SYSTEMS 5.24.010 Amplified Sound Permit required. (a) These regulations concerning amplified sound systems are adopted to prevent noise nuisance in the Town of Avon while allowing for amplified sound for public and private events, establish Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL — June 9, 2015 Page 1 of 9 minimum standards for the permitting of amplified sound, and adopt procedures for public notification and input for certain categories of amplified sound. These regulations shall be interpreted and applied so as not to infringe upon the reasonable constitutional right of free speech and right of assembly. (b) The following activities and uses of amplified sound shall not require an Amplified Sound Permit: (i) Amplified sound related to any governmental emergency building, vehicle or response activity; (ii) Use of amplified sound by an officer, employee or agent of any local, state or federal government; (iii) In Nottingham Park, including the Avon Performance Pavilion, for The Salute to the USA held on July 3 of each year; and, (iv) Small low wattage personal sound amplification devices that do not disturb others. (c) Unless expressly exempt as set forth in Sub - Section (b) above, an Amplified Sound Permit shall be required and shall be obtained prior to the use and operation of amplified sound outdoors in the Town of Avon, including use and operation of a loudspeaker or sound - amplifying equipment in a fixed or movable position or mounted upon any sound truck or other mobile vehicle or equipment. (d) It is unlawful for any person to use or operate amplified sound outdoors in the Town without an Amplified Sound Permit when an Amplified Sound Permit is required. 5.24.020 Administrative Approval. (a) The Town Manager may approve an Amplified Sound Permit for outdoor use of amplified sound use at following locations and times: (i) In Nottingham Park, including the Avon Performance Pavilion, on Sunday through Wednesday between the hours of 9:00 a.m. and 8:00 p.m. and on Thursday through Saturday between the hours of 9:00 a.m. and 10:00 p.m. (ii) In any non - commercial zone (including any planned unit development area allowing non- commercial use, but not including Town properties, parks and the Main Street Mall) between the hours of 9:00 a.m. and 8:00 p.m. (iii) In any commercial zone (including any planned unit development area allowing commercial, but not including Town properties and the Main Street Mall between the hours of 8:00 a.m. and 10:00 p.m.). Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL —June 9, 2015 Page 2 of 9 (b) No public hearing shall be required prior to review and approval of an administrative approval of an Amplified Sound Permit. The Town Manager may elect to solicit public comments or may refer an Amplified Sound Permit application to the Avon Town Council to be considered after conducting a public hearing in accordance with Section 5.24.030 below. (c) Any outdoor use of amplified sound outside the hours and in the locations established in this Section shall require review and approval by the Avon Town Council. (d) An applicant for an Amplified Sound Permit can appeal the decision of the Town Manager to the Avon Town Council. An appeal must be submitted by an applicant in writing to the Town Clerk within fourteen (14) days the date of the decision by the Town Manager. The Town Council shall conduct a public hearing within forty -five (45) days of receipt of a written request for appeal. Written notice of the public hearing date, time and location shall be mailed to the appellant via first -class U.S. mail at least ten (10) days prior to the public hearing, unless the appellant agrees to a shorter time frame and a different notification method. The Town Council shall review an appealed Amplified Sound Permit application de novo. 5.24.030 Town Council Approval. (a) Any Amplified Sound Permit application that is not subject to administrative approval or that is referred by the Town Manager to the Town Council shall be subject to review and approval by the Town Council after conducting a public hearing. (b) A public hearing for an Amplified Sound Permit shall be posted and published at least six (6) days in advance of the public hearing on the Town's website; in a newspaper of general circulation in Avon; at the Avon Town Hall, Avon Library and Avon Recreation Center; and, with regard to an Amplified Sound Permit on the Main Street Mall, posted at the proposed location of the amplified sound. 5.24.040 Amplified Sound Permit Applications. (a) An application for an Amplified Sound Permit shall be submitted to the Town Manager on forms established by the Town Manager, which shall include the minimum information set forth in this Section 5.24.040 and which shall include an application fee determined by the Town Manager not to exceed $100.00. (b) Name, physical address, mailing address and e-mail address, phone number. (c) Proposed location for the amplified sound event(s). (d) Proposed dates and times for the amplified sound event(s). (e) Map or diagram depicting the location of the sound amplifying equipment, proposed direction of sound projection, and potential sound projection distance. (f) Description of sound amplifying equipment. Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL —June 9, 2015 Page 3 of 9 (g) Description of any sound screening or other measures to mitigate the adverse impacts of amplified sound. (h) Description of event and purpose of sound amplification. (i) Amplified Sound Permit applications shall be submitted at least sixty (60) days prior to the proposed event(s) using outdoor amplified sound provided that the Town may waive or reduce this minimum application submittal deadline at the Town's sole discretion. 5.24.050 Standards for Amplified Sound Permits. Amplified Sound Permit applications shall be evaluated according to the following review criteria: (a) Whether the proposed amplified sound, date, time, and associated event is compatible with other uses and activities in the vicinity. (b) Whether the potential adverse impacts of the sound and noise generated upon community and surrounding neighborhood are unreasonable or if the negative impacts exceed the potential benefits to the community of permitting the event. (c) The approving person or body may prescribe any conditions, limitations, requirements or mitigation deemed necessary to minimize the potential adverse impacts on the community and /or surrounding neighborhood; which include but are not limited to: limiting the time and /or duration of amplified sound, determining the direction of the amplified sound, and requiring sound screening. (d) Amplified Sound Permits may be granted for a specific event, which shall include designation of the date or dates of the event, or may be granted for re- occurring events provided that such approval shall not exceed a duration of one year. (e) Amplified Sound Permits shall be subject to suspension and revocation for any violation of the terms and conditions set forth in the Amplified Sound Permit. The Town Manager may summarily suspend an Amplified Sound Permit based upon a preponderance of evidence that the terms and conditions of the Amplified Sound Permit have been violated and shall refer the permit to the Town Council for a public hearing and consideration of revocation. The Town Manager may refer an Amplified Sound Permit to the Town Council for a hearing and consideration of revocation based upon probable cause that the terms and conditions of the Amplified Sound Permit have been violated. At least three (3) days written notice shall be provided to the Amplified Sound Permit holder prior to the hearing, which notice may be emailed to the email address provided in the permit application and which notice shall state the nature of the violation of the terms and conditions. 5.24.060 Penalty. Any person violating any of the provisions of this Chapter shall be deemed to have committed a civil infraction for each and every day or portion thereof during which any infraction is committed, continued or permitted and shall be subject to the penalties contained in Chapter 1.09 of this Code. Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL —June 9, 2015 Page 4 of 9 Section 3. Resolution 88 -20 Repealed. Resolution 88 -20 Adopting Administrative Procedures for Outdoor Use of Amplified Sound Equipment is hereby repealed in its entirety. Section 4. Amendment to Section 9.12.080. Section 9.12.080 of the Avon Municipal Code is hereby repealed in its entirety and re- enacted to read as follows: "9.12.080 - Drinking on public property and public right -of -ways without permit prohibited. (a) It is unlawful for any person to consume any malt, vinous or spirituous liquors or fermented malt beverages upon any street, alley, sidewalk, park, public property, public building or public parking lot in the Town or in any vehicle upon such places unless authorized in this Section 9.12.080. (b) It is unlawful for any person to possess or have in his or her possession or under his or her control in or upon any street, alley, sidewalk, park, public building or public parking lot in the Town, any malt, vinous or spirituous liquors or fermented malt beverages in any container of any kind or description which has been opened or which is not sealed or upon which the seal is broken, except in areas permitted pursuant to Sub - Section (c) of this Section. The word sealed means the regular seal applied by the United States Government over the cap of all malt, vinous or spirituous liquors or fermented malt beverages. It shall not be unlawful for any person to have in his or her possession or under his or her control one (1) opened container of vinous liquor removed from a licensed premises pursuant to Section 12 -47- 411(3.5), C.R.S. (c) Consumption and possession of malt, vinous or spirituous liquors or fermented malt beverages on public property and /or public right -of -ways is permitted under the following limited circumstances: (1) pursuant to the time, location and limitations of a special events permit that has been issued pursuant to Article 48, Title 12, C.R.S.; (2) pursuant to a private event permit when such person is a member or guest of a qualifying organization and which event meets the qualifications for exemption from special event permits pursuant to Section 12 -48 -108, C.R.S., except that the consumption of spirituous liquors shall not be permitted by any person at an event which meets the qualifications for exemption from special event permits pursuant to Section 12 -48 -108, C.R.S.; and, (3) pursuant to a private event permit that meets the minimum requirements of Section 9.40.040." Section 5. Amendment to title of Chapter 9.40. The title of Chapter 9.40 is hereby amended to read as follows: "CHAPTER 9.40 — Public Property, Parks and Special Event Areas" Section 6. Amendment to Section 9.40.010 — Definitions. Avon Municipal Code Section 9.40.010 — Definition is hereby amended to add the following definition: "Private event means an event held on Town owned property, park or public right -of -way that is not open to the general public." Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL —June 9, 2015 Page 5 of 9 Section 7. Amendment to Section 9.40.040. "9.40.040 Permit and license procedures and standards. (a) An application for any use and activity which requires a permit or license under this Chapter 9.40 must be submitted to the Town no later than sixty (60) days prior to the proposed use or activity to be considered for approval, provided that the Town may waive or reduce such requirement at the sole discretion of the Town. (b) Applications shall be on forms prescribed by the Town Manager and shall be reviewed and determined by the Town Manager. (c) A special event or private event permit may be issued by the Town Manager upon the determination that the proposed event: (1) does not unduly conflict with any previously scheduled use; (2) will not harm Town property; (3) will not create a clear and present danger to the public; (4) will not present a probable conflict with the reasonable enjoyment of park by the general public; (5) will not present a probable conflict with the use of Town owned property or public right -of -way; and (6) provides mitigation, conditions and/or limitations to minimize or prevent potential adverse impacts, as determined necessary and adequate by the Town. (d) Special event permits shall comply with the following minimum standards: (1) Special event permit holder shall provide general liability insurance naming the Town as additional insured and shall indemnify the Town in a form acceptable to the Town Attorney. (2) Special event permit holder shall abide by the terms and conditions of the special event permit and shall execute such other agreement or agreements deemed appropriate by the Town. (3) If alcohol is to be served at the special event, the special event permit holder shall comply with Section 5.08.170 and other applicable regulations of the Town and State of Colorado. (e) Private event permits shall comply the following minimum standards: (1) Private event permit holder shall provide general liability insurance naming the Town as additional insured and shall indemnify the Town in a form acceptable to the Town Attorney. (2) Private event permit holder shall execute a license agreement for use of the public property in a form acceptable to the Town Manager and Town Attorney. (3) If alcohol is to be served at the private event, the private event permit holder shall comply with the following additional standards: (1) the private event permit holder shall comply with all Colorado State Liquor laws. Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL — June 9, 2015 Page 6 of 9 (ii) Private event shall admit only invited guests. (iii) Alcohol must be purchased by permit holder and not a caterer or third party. (iv) Alcohol must be served by a TIPS trained person who is not a guest at the event. (v) Alcohol must be consumed at the private event area during the private event times. Consumption of alcohol is not permitted during set -up and break -down of the private event. (vi) Private event permit holder shall not permit guests to leave with open containers of alcohol. (vii) Private event permit holder must abide by an alcohol management plan submitted to and approved by the Town Manager." Section 8. Amendment to Section 9.40.050 — Restrictions on uses and activities. Avon Municipal Code Section 9.40.050 is hereby amended to add a subsection (20) to read as follows: "(20) Smoking. Smoking is not permitted in any Town owned property designated as Open Space, Landscaping and Drainage, including the West Avon Preserve as defined in Section 9.40.010." Section 9. Codification Amendments. The codifier of the Town's Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 10. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 11. Effective Date. This Ordinance shall take effect thirty (30) days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 12. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL — June 9, 2015 Page 7 of 9 promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 13. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 14. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [EXECUTION PAGE FOLLOWS] Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL —June 9, 2015 Page 8 of 9 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on May 26, 2015 and setting such public hearing for June 9, 2015 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. BY: A a F�iw Jennie ,ancher, Mayor ATTEST: 0'66c� /./" " �0 Debbie Hoppe, Town Uldrk ADOPTED ON SECOND AND FINAL READING on June 9, 2015. B�: -n V _ . ATTEST: ancher, Mayor Debbie Hoppe, TowA Clerk APPROVED AS TO FORM: O Eric J. He wn Attorney Ord. No. 15 -07 Amending Chapters 5.24, 9.12.080 and 9.40 FINAL — June 9, 2015 Page 9 of 9