[HISTORY: Adopted by the Town Council of
the Town of Bar Harbor as indicated in article histories. Amendments
noted where applicable.]
[Adopted 10-2-1990 as § 08.04 of the 1990 Code; amended 5-21-1996; 10-5-1999; 6-4-2003 by Ord. No. 2003-2]
A.
Title. This article shall be known and may be cited
as the "Special Amusement Permit Ordinance of the Town of Bar Harbor."
B.
Purpose. The purpose of this article is to control,
as required by 28-A M.R.S.A. § 1054, the issuance of special
permits for music, dancing or entertainment in facilities licensed
by the State of Maine to sell liquor or malt liquor in the Town of
Bar Harbor.
The following definitions apply to this article
and do not affect the meanings of words or terms in any other article
of this Code. As used in this article, the following terms shall have
the meanings indicated:
Any musical instrument designed to be played without mechanical
amplification but that can also be connected to an amplifier; these
may include, but are not limited to, acoustic guitars, violins/fiddles,
upright/acoustic bass, mandolins, banjos, etc. Instruments designed
to be played only with mechanical amplification are excluded.
[Added 5-18-2021 by Ord. No. 2021-04]
A verbal or written notice received by the Police Department
from a member of the public or from a police officer that, in the
opinion of the complainant, the licensee violated this article.
The practical unit of measurement for sound-pressure level.
The number of decibels of a measured sound is equal to 20 times the
logarithm to the base 10 of the ratio of the sound pressure of the
measured sound to the sound pressure of a standard sound (20 micropascals),
abbreviated dB. The abbreviation dB(A) shall refer to readings taken
on the A-weighted scale.
Any amusement, performance, exhibition or diversion for patrons
or customers of the licensed premises, whether provided by professional
entertainers or by full-time or part-time employees of the licensed
premises whose incidental duties include activities with an entertainment
value.
The physical location described in the special amusement
permit application.
The holder of a license issued pursuant to the provisions
of 28-A M.R.S.A., Liquors, as amended, or any person, individual,
partnership, firm, association, corporation or other legal entity
acting as agent or employee of any holder of said license.
Person in charge of the licensed premises, including, by
way of example and without limitation, manager, partner, agent, employee
or person otherwise authorized to oversee the operation of the licensed
premises in the absence of the licensee.
One who performs music, whether instrumental or vocal.
The person or persons having the right of legal title to
or the beneficial interest in a building or parcel of land, as their
interest is recorded in the tax records of the Town of Bar Harbor.
A first violation is deemed to have occurred if a police
officer concludes that there are reasonable grounds to believe that
a violation of this article has occurred and within the immediately
preceding 12 months a licensee has received no summonses and no written
warnings for violation of this article. Special amusement warnings
and summonses issued prior to January 1, 2003, shall not be considered
as within said twelve-month period.
A second violation is deemed to have occurred if a police
officer concludes that there are reasonable grounds to believe that
another violation of this article has occurred, less than 12 months
have elapsed since the first violation, and the licensee has received
written warning of a first violation; provided, however, that if a
second violation occurs within five calendar days after the first
violation, the verbal warning previously issued to the licensee or
licensee's manager shall be sufficient.
A subsequent violation is deemed to have occurred if a police
officer concludes that there are reasonable grounds to believe that
another violation of this article has occurred, less than 12 months
have elapsed since the first violation, and the licensee has received
written warning of a third violation; provided, however, that if a
subsequent violation occurs within five calendar days after the third
violation, the verbal warning previously issued to the licensee or
licensee's manager shall be sufficient.
A third violation is deemed to have occurred if a police
officer concludes that there are reasonable grounds to believe that
another violation of this article has occurred, less than 12 months
have elapsed since the first violation, and the licensee has received
written warning of a second violation; provided, however, that if
a third violation occurs within five calendar days after the second
violation, the verbal warning previously issued to the licensee or
licensee's manager shall be sufficient.
A.
No licensee for the sale of liquor or malt liquor
to be consumed on his/her licensed premises, situated in the Town
of Bar Harbor, shall permit on said licensed premises any music, except
a radio or other mechanical device, or any dancing or entertainment
of any sort unless the licensee shall have first obtained from the
Town Council of Bar Harbor a special amusement permit approved by
at least a majority of the members of said Town Council.
B.
Applications for all special amusement permits shall
be made in writing to the Town Clerk on forms provided by the Clerk
for that purpose and shall state the name of the applicant; his/her
residence address; the name of the business to be conducted; his/her
business address; the nature of his/her business; the location to
be used; whether the applicant has ever had a license to conduct the
business therein described either denied or revoked and, if so, the
applicant shall describe those circumstances specifically; whether
the applicant, including all partners or corporate officers, has ever
been convicted of a felony and, if so, the applicant shall describe
specifically those circumstances; the type of music and entertainment
intended by the applicant to be permitted on the licensed premises;
whether dancing is permitted, and any additional information as may
be needed by the Town Council in the issuing of the permit, including
but not limited to a copy of the applicant's current liquor license.
C.
The Town Council may revoke or refuse to issue a special
amusement permit if the premises or building to be used for the purposes
do not fully comply with all ordinances, articles, rules and regulations
of the Town of Bar Harbor.
D.
The Town Council shall set the fee for the special
amusement permit from time to time.
E.
Within 15 days of the Town Clerk's receipt of a complete
application for a special amusement permit, the Town Council shall
hold a public hearing, at which time the testimony of the applicant
and any interested member of the public shall be taken. Prior to the
hearing, reasonable notice of the same shall be given to all owners
of land within 300 feet of the applicant's premises as provided below.
(1)
For purposes of the issuance of a new permit for an
applicant for a particular location, reasonable notice to owners of
land within 300 feet of the applicant's premises shall include written
notice sent by United States Mail, first class postage prepaid, which
notice shall be mailed at least five days prior to the hearing.
(2)
For purposes of renewing a permit for an applicant
against whom no complaint, warning or summons has been lodged in the
preceding year, reasonable notice to all persons may be achieved by
giving notice of the hearing in a newspaper of general circulation
in the Town of Bar Harbor at least three days prior to the hearing.
(3)
For purposes of renewing a permit for an applicant
against whom one or more complaints, warnings or summonses (in any
combination) have been lodged in the preceding year, reasonable notice
may be achieved by sending a written notice by United States Mail,
first class postage prepaid, which notice shall be mailed at least
five days prior to the hearing.
F.
The Town Council, after hearing and upon such terms
and conditions as it reasonably deems necessary to protect the public
interest and to fulfill the purposes of this article, shall grant
or renew a permit unless it finds that issuance of the permit will
be detrimental to the public health, safety or welfare or would violate
municipal ordinances or rules and regulations, articles or bylaws.
G.
A permit shall be valid only for the license year
of the applicant's existing liquor license.
A.
B.
Any permit granted shall be for one of the above-noted
classes. A licensee shall not permit on the licensed premises any
music, dancing or entertainment which exceeds that permitted by the
class of his/her permit, during the period for which his/her permit
is valid as otherwise determined by this article.
C.
During the period for which a license is valid, the
licensee may reapply for a new special amusement permit, if he/she
elects to permit dancing, music or entertainment which exceeds that
permitted by the current permit. Said reapplication shall be governed
by all the provisions of this article with respect to applications
for a special amusement permit in general, including the payment of
the usual permit fee.
D.
A violation of this section by a licensee shall be
grounds to revoke or suspend his/her permit and/or to refuse to grant
a permit upon subsequent application by the same licensee.
A.
Enforcement authority. The provisions of this article
shall be enforced by the Bar Harbor Police Department.
B.
Violations. Each violation of this article following
a warning or summons issued by a police officer shall constitute a
separate violation.
C.
Delivery of notices. Any notice mailed or delivered
to any licensee as provided in this article shall be effective as
to the licensee identified in the notice notwithstanding such licensee's
refusal to accept delivery of the notice and notwithstanding any failure
of any other licensee to actually receive notice. Any notice required
under this article to be sent to the applicant or licensee shall be
mailed or hand delivered to the applicant's address as shown on the
application form filed with the Town Clerk, unless the licensee or
applicant has provided written notice to the Town Clerk of a change
of address.
D.
Warning for first violation. Should a police officer
conclude that a first violation of this article has occurred or is
occurring, the officer shall immediately give a verbal warning to
the licensee or the licensee's manager on the premises. Within not
more than five calendar days of this warning, the Police Department
shall deliver in hand to the licensee, or send by first class mail,
a written narrative report of the incident, a copy of this article
and a written notice advising the licensee that the Police Department
has substantiated a violation on the licensed premises.
E.
Warning for second violation. Should a police officer
conclude that a second violation of this article has occurred or is
occurring, the officer shall immediately give a verbal warning to
the licensee or the licensee's manager on the premises. Within not
more than five calendar days of the second violation, the Police Department
shall deliver in hand to the licensee, or send by first class mail,
a written narrative report of the incident, a copy of this article
and a written notice advising the licensee that the Police Department
has substantiated a violation on the licensed premises.
F.
Summons for subsequent violations. Should a police officer conclude that a third violation or subsequent violation of this article has occurred or is occurring, the officer shall immediately give verbal notice to the licensee or the licensee's manager on the premises. Within not more than five calendar days of this violation, the Police Department shall deliver in hand to the licensee, or send by first class mail, a written narrative report of the incident, a copy of this article and a written notice advising the licensee that the Police Department has substantiated a violation on the licensed premises and requesting the licensee to present himself or herself at the Police Department to accept service of a summons. The police officer shall write a summons for the licensee to appear in the Maine District Court to answer therefor. The Police Department shall also provide a copy of all pertinent documentation to the Town Clerk, who shall place the matter on the next available Town Council agenda for action under § 14-5F(2) below. Court action under Subsection F(1) below and Town Council action under Subsection F(2) below are separate, independent remedies which the Town may pursue concurrently, and neither is a prerequisite to the other. Failure of the licensee to present herself or himself to accept the summons shall not be cause for postponement of the Town Council hearing nor negate possible suspension or revocation of the license.
(1)
Court action. A third violation or subsequent violation
shall constitute a civil offense. The penalty for the conviction of
said third violation shall be a fine of no less than $100 and no more
than $1,000. The penalty for the conviction of a subsequent violation
shall be no less than $100 more than the penalty assessed for the
previous conviction but no more than $1,000. Any penalties assessed
hereunder shall inure to the benefit of the Town of Bar Harbor. Any
violation of this article shall be deemed a public nuisance and may
be subject to abatement by a restraining order or injunction issued
by a court of competent jurisdiction, irrespective of whether a summons
has been issued or a civil penalty has been sought.
(2)
Town Council action.
(a)
Upon being informed of a third or subsequent violation,
the Town Clerk shall provide written notice to the licensee, either
in hand or by certified mail, return receipt requested, and to all
owners of land within 300 feet of the licensee's premises, by first
class mail, that, in not less than seven days after the date of the
notice, the Town Council shall conduct a public hearing to consider
whether the licensee committed a violation. Neither the failure of
any landowner actually to receive notice nor the licensee's refusal
to accept certified mail shall necessitate another hearing or invalidate
any action taken by the Council at such hearing.
(b)
Following a hearing the Council, by a preponderance
of the evidence, shall make a determination of whether the licensee
committed a violation of this article.
[1]
If the Council finds the licensee committed
a third violation, Council shall suspend the licensee's special amusement
permit for a period of 30 days from the date of the hearing.
[2]
If the Council finds that the licensee committed
a subsequent violation, it shall revoke the licensee's permit for
a minimum of 30 days, but not more than one year, at the discretion
of the Council, and the Council may refuse to approve future licensee
applications for a special amusement permit.
[Amended 11-20-2012 by Ord. No. 2012-07; 5-18-2021 by Ord. No. 2021-04]
An applicant for a special amusement permit
hereunder shall, as part of his/her application, demonstrate his/her
ability to prevent the emanation of excessive noise from the premises
sought to be licensed brought about by music, dancing or entertainment,
except for a radio or other mechanical device excluded under 28-A
M.R.S.A. §1054 or amendments thereto. Amplified outdoor music
shall be limited to "amplified acoustic instruments" as defined in
this chapter and one vocal microphone per performer; all outdoor amplification
must adhere to this chapter. The performance of nonamplified music
out of doors by licensees is prohibited between the hours of 10:00
p.m. and 9:00 a.m. The performance of amplified music out of doors
by licensees is prohibited between the hours of 9:00 p.m. and 11:00
a.m.
A.
Sources of noise. Sources of noise contemplated by
this section shall include musical instruments, sound modification
or amplification devices used in connection with musical instruments
and/or other similar devices which produce, reproduce or amplify sound
created by musical instruments. Sources of noise shall further include
any noise or sound produced directly or indirectly by the applicant's
music, dancing or entertainment except for those mechanical devices
specifically excluded under 28-A M.R.S.A. § 1054 or amendments
thereto.
B.
Noise. Sources of noise shall be required to be muffled
so as not to be objectionable due to intermittence, beat, frequency,
shrillness, intensity or volume.
C.
Noise control. The maximum permissible sound-pressure level of any continuous, regular, frequent, intermittent or periodic source of noise produced by any activity regulated by this article shall not exceed 71 dB(A) at any time at the measuring locations specified in § 14-6D(3)(e) below.
D.
Measurement procedures. For the purpose of determining
noise levels as set forth in this article, the following procedures
shall be used:
(1)
All personnel conducting sound measurements shall
be trained in the current techniques and principles of sound-measuring
equipment and instrumentation.
(2)
Instruments used to determine sound-level measurements
shall conform to the standards of ASI Type I or Type II meters.
(3)
The general steps listed below shall be followed when
preparing to take sound-level measurements:
(a)
The instrument manufacturer's specific instructions
for the preparation and use of the instrument shall be followed.
(b)
The sound-level meter shall be calibrated before and
after each set of measurements. The calibrator itself shall be recalibrated
at least once every year.
(c)
When measurements are taken out of doors, a wind screen
shall be placed over the microphone of the sound-level meter as per
the manufacturer's instructions. No sound-level measurement shall
be taken at wind speeds greater than 12 miles per hour; neither shall
measurements be taken during periods of precipitation.
(d)
The sound-level meter shall be placed as specified
by the manufacturer's instructions and at least four feet above the
ground. It shall be placed so as not to be interfered with by individuals
conducting the measurements.
(e)
Measurements shall be taken at points outside the
licensed premises which are no less than five feet and no more than
10 feet from the lot lines of the licensed premises.
(f)
No less than two readings taken by the sound-level
meter within a fifteen-minute period shall constitute a reasonable
basis for averaging a set of measurements. A simple arithmetic average
may be taken, summing all the measurements and dividing the sum by
the number of measurements taken. This is known as "L50 descriptor,"
representing the mean sound-pressure level which is exceeded 50% of
the time.
Regardless of whether or not the mean sound-pressure level limit as set forth in § 14-6C is exceeded, the licensee or his/her authorized representative shall not permit the use of the premises to result in any continued, excessive or loud and unreasonable noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health or safety of individuals or which results in disturbing the peace and tranquility of the neighborhood.
Any applicant requesting a special amusement
permit from the Town Council shall be notified in writing of its decision
no later than 15 days from the date his/her request was received by
the Town Council. In the event that an applicant is denied a permit,
the applicant shall be provided with the reasons for denial in writing.
The applicant may not reapply for a permit within 30 days after an
application for a permit has been denied, except with the consent
of the Town Council.
Any applicant who has requested a permit and
has been denied or licensee whose permit has been revoked or suspended
may, within 30 days of denial, suspension or revocation, appeal the
decision as provided by Title 28-A MRSA § 1054.
A licensed hotel, Class A restaurant, Class
A tavern or restaurant malt liquor licensee who has been issued a
special amusement permit may charge admission in designated areas
approved by the municipal special amusement permit.
The invalidity of any provision of this ordinance
shall not invalidate any other part.
