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HomeMy WebLinkAbout11-17-2011 Minutes THE CITY OF OCOEE POLICE INFRACTION HEARING BOARD MEETING NOVEMBER 17, 2011 CALL TO ORDER Chairman Chinelly called the City of Ocoee Police Infraction Hearing Board meeting to order at 6:55 p.m. in the Commission Chambers of City Hall with the pledge of allegiance. The roll was called and a quorum declared. MEMBERS PRESENT: Chairman Chinelly, Members Amey, Ball, Laney and Zielinski (6:59 p.m.). Also present were Staff - Liaison Sgt. Wagner, Ofc. Whiting, and Recording Clerk Turner. ABSENT: Vice -Chair Garland (excused) and Member Lopez - Anderson (unexcused). Chairman Chinelly welcomed everyone and explained the procedures for the hearing. He swore in the officers and the complainants who were present. PRESENTATION OF CASES 2011- 0003 -4886 Masih -Das— Chairman Chinelly explained that the Police Infraction Hearing Board is an Administrative Board comprised of volunteer members charged to determine whether an infraction has been committed based on information provided by the officer and appellant. Ofc. Whiting presented his evidence as to why a citation was issued to Mr. Masih- Das. Mr. Masih -Das submitted an affidavit to contest the citation. Mr. Masih -Das was represented by Attorney Lafe Purcell. Ofc. Whiting explained to the board that he was parked between Clarke and Johio Shores Road on Silver Star Road to conduct noise ordinance enforcement. He continued to explain that while parked there, he heard a vehicle with loud music drive by. Upon identifying which vehicle the loud music was coming from, he initiated a traffic stop, and wrote the driver a citation. Attorney Purcell stated that the citation was written pursuant to Chapter 116; however, Chapter 116 does not exist. He continued to say that the citation should have been written pursuant to Chapter 113, and due to this technical issue, the citation should be dismissed. Attorney Purcell further stated that assuming the citation was written correctly, the chapter indicates that loud noise ordinance violations will be enforced between the hours of 12:00 a.m. and 7:00 a.m., and Mr. Masih -Das' citation was issued at 6:30 p.m. Ofc. Whiting read in the record: § 113 -6. - Additional noise prohibited. The following acts are declared to be loud, unnecessary or disturbing noise, but the enumeration of the particular offenses hereinafter particularly defined shall not be construed as limiting the generality of this Chapter, or limiting the offense hereunder to the particular offense hereinafter enumerated: Ofc. Whiting explained to the board that the initial paragraph of Chapter 113 -6 (above), states that any violation of this chapter is not limited by the sections included within the chapter. Ofc. Whiting continued to say that each subsection is limited to itself, and does not apply to the following subsections. Attorney Purcell stated that Ofc. Whiting's interpretation is incorrect, because all statutes or codes are meant to be read in their entirety and not piecemealed. Ofc. Whiting explained that the opening remarks in this chapter clearly explain that the subsections will not limit the generality of the chapter. Member Laney stated that there are specific hours in some paragraphs, but not all paragraphs are so specific; therefore, it seems as though it only Page 1 of 5 applies to the paragraph indicated. Attorney Purcell stated that the citation does not reference the correct chapter or subsection, and if enforcement is to be piecemealed, then the citation should be specific. Ofc. Whiting stated that he applied the code number from memory, and wrote the wrong number as a scrivener's error. Board discussion ensued on the location of the where the infraction occurred. Chairman Chinnely asked Attorney Purcell for clarification about what the citation should include, and Attorney Purcell stated that when citing a statute or code on a citation, the correct chapter and subsection should be denoted on the citation, especially if the statute or code is to be piecemealed. Chairman Chinelly stated that the citation includes boxes that can be checked relating to the offense. Member Amey asked Mr. Masih -Das if he was playing his radio loudly, and respondent stated that he did not feel as though he was. Member Amey asked Ofc. Whiting if the respondent was playing his radio loudly, and Ofc. Whiting stated that he was, because he heard it at a much greater distance than twenty -five (25) feet. Board discussion ensued regarding Chapter 113 -6. Member Laney stated that she was concerned about Ofc. Whiting scrivener's error. Member Amey asked Ofc. Whiting if he had resources available to him that would provide him with code numbers. Ofc. Whiting stated that with some effort, he could use his laptop. Member Laney stated that the Red Light Infraction Ordinance was very particular as to the requirements of the citation, and Staff - Liaison Sgt. Wagner stated that Chapter 113 -6 does not require that the number be included on the citation. Ofc. Whiting stated that when he was issued the citations, he was not instructed to include statute or code numbers; however, felt it would be beneficial to anyone receiving the citation so that they could look it up when they go home. Member Amey made a motion to deny Mr. Masih -Das' appeal, seconded by Member Zielinski. Motion passed unanimously. 2011- 0003 -6528 Williams— Ofc. Whiting presented his evidence as to why a citation was issued to Ms. Williams. Ms. Williams submitted an affidavit to contest the citation. Ofc. Whiting stated that he was parked at the CVS located at the intersection of Clarke and Silver Star Road when he heard loud music coming from a vehicle stopped at a red light. Upon identifying the vehicle, he initiated a traffic stop and issued Ms. Williams a citation. Ms. Williams stated that she did have music playing, but it was not playing loudly. Member Amey asked if she was certain that her music was not playing loudly, and Ms. Williams stated that she was sure. Ofc. Whiting explained that he encounters this situation often when he pulls people over for noise violations. He continued to explain that people do not tend to realize how far their music carries. Ofc. Whiting stated that the music was so loud that it caused his patrol vehicle to vibrate. Member Zielinski asked if when he reached Ms. Williams' vehicle, if the music was still playing loudly, and Ofc. Whiting stated it was. Ms. Williams declared that the vehicle information on the citation states that her vehicle is a 4 -door vehicle; however, her vehicle is a 2- door. Member Laney asked Ms. Williams if all other vehicle information on the citation is correct, and Ms. Williams indicated that it was. Chairman Chinelly asked Ms. Williams if she is familiar with the City of Ocoee Noise Ordinance, and Ms. Williams stated that she was not. Member Amey made a motion to deny Ms. Williams ' appeal, seconded by Member Zielinski. Motion passed unanimously. 2011- 0003 -6965 Shakes- Ofc. Whiting presented his evidence as to why a citation was issued to Mr. Shakes. Mr. Shakes submitted an affidavit to contest the citation. Ofc. Whiting stated that he was parked in front of the daycare by the Municipal Complex when he heard music playing loudly from a vehicle. Upon identifying the vehicle, he initiated a traffic stop and issued Mr. Shakes a citation. Ofc. Whiting continued to say that the music Mr. Shakes was playing used Page 2 of 5 derogatory language. Staff - Liaison Sgt. Wagner explained to the board that Ofc. Whiting's last statement should not be taken into account as it is considered freedom of speech to listen to any type of music. Mr. Shakes stated that at the time that Ofc. Whiting indicated he was playing his music loudly he was on the phone with his wife. He continued to say that if his music was at such an audible level, he would not have been able to have a phone conversation. Mr. Shakes stated that he was not listening to the type of music that Ofc. Whiting described; instead, he was listening to Reggae music. He further indicated that he felt he was being racially profiled by Ofc. Whiting. He then proceeded to say that he was so upset that he went to the police department so that he could speak with someone about his citation. He indicated that he was advised by a sergeant that it is his right to appeal his citation. Member Zielinski stated that during his tenure on the board he has seen people of many different backgrounds and believes that Ofc. Whiting was not profiling. He also asked Mr. Shakes if his windows were down, and Mr. Shakes stated that they were cracked open. Ofc. Whiting stated that there are many discrepancies in Mr. Shakes stories, and has an audio tape from a personal recorder of the traffic stop that he would like for the board to listen to. Staff - Liaison Sgt. Wagner cautioned the board from hearing the audio of the traffic stop, as it does not pertain to the reason the citation was issued. Member Laney stated that due to the discrepancies, hearing the audio may help clear up the story. Staff - Liaison Sgt. Wagner asked the board what kind of information they feel they will receive from the tape, and Member Laney stated that it will help to hear the lyrics of the music. Member Amey and Member Zielinski agreed that by listening to the audio, discrepancies could be resolved. Ofc. Whiting explained that the audio is from the traffic stop and does not include the music that Mr. Shakes was playing. Vice - Chair Chinelly stated that if the audio is only from the traffic stop it will only portray Mr. Shakes' conduct, but not the discrepancies mentioned. Member Laney asked Ofc. Whiting if the board will hear the lyrics of Mr. Shakes' song, and Ofc. Whiting stated that they will not be able to hear the lyrics. Mr. Shakes stated that he brought his Reggae CD and would like to play it for the board. Chairman Chinelly stated that he has not expressed if he would like to hear Ofc. Whiting's recording. He also asked Ofc. Whiting if the personal recorder was issued by the City. Ofc. Whiting explained that the personal recorder was not City issued, but he has received authorization to use it. He continued to explain that the audio recording is kept in the police department's evidence folder on the O:drive. Member Ball stated that he is unsure of whether he wants to hear the recording, because it will not provide the answer as the whether the music was playing loudly. Chairman Chinelly asked Mr. Shakes if he objected to the board hearing the recording, and Mr. Shakes stated he did not object. Chairman Chinelly stated the board's purpose is to discern if the volume was too loud and not the content of the music. Mr. Shakes stated that he does not object to playing Ofc. Whiting's recording; however, would like for the board to hear his CD. Member Zielinski explained to Mr. Shakes that playing his CD would only prove that the lyrics were different than what Ofc. Whiting indicated, but not how loud the music was. He further explained that it is not the content of the lyrics that is in question, nor will the board judge him for the lyrics. Member Laney stated that playing Ofc. Whiting's audio would establish credibility only. Chairman Chinelly again asked Mr. Shakes if he objected to listening to Ofc. Whiting's recording, and Mr. Shakes confirmed that he did not object. *Ofc. Whiting played the audio from the traffic stop contained on the police department's 0: drive. Mr. Shakes again stated that there is no way that Ofc. Whiting heard loud music coming from his vehicle as he was on the phone with his wife. Member Zielinski stated that Mr. Shakes' initial comment to Ofc. Whiting regarding why he was pulled over was to ask, "Was my music too loud ?" Ofc. Whiting stated that his point about discrepancies is evident in this excerpt of the Page 3 of 5 audio. Chairman Chinelly asked Ofc. Whiting if the traffic stop was initiated because of the content of the lyrics, and Ofc. Whiting stated that it was not. Ofc. Whiting explained that the reason he described the content of the lyrics was as evidence that the music was too loud. He continued to say that if the content of the lyrics was discernible, then the music was too loud. Mr. Shakes stated that he brought his phone bill to prove that he was on the phone with his wife at the time that Ofc. Whiting stated the music was playing too loudly. Chairman Chinelly stated that showing a phone record will not disprove if his music was too loud. He also stated that Ofc. Whiting's audio recording did not determine whether the music was playing too loudly, and suggested that the board only rely on Mr. Shakes' and Ofc. Whiting's testimony. Member Amev made a motion to deny Mr. Shakes ' appeal, seconded by Member Ball. Motion passed unanimously. Mr. Shakes asked the board if he could take his case further. Staff - Liaison Sgt. Wagner stated that he would speak with the City's attorney, and if Mr. Shakes wanted to call him, he would give him more direction. ADJOURNMENT Meeting adjourned at 7:47 p.m.; board resumes for new business. REGULAR AGENDA A. Approval of Minutes for October 20, 2011 Member Amey stated that a correction to the October 20, 2011, minutes should be made to include the presence of Member Laney for that meeting. Member Ball made a motion to approve the minutes with correction for October 20, 2011, seconded by Member Amev. Motion passed unanimously. BOARD OR OFFICERS COMMENTS OR QUESTIONS Staff - Liaison Sgt. Wagner stated that Member Lopez - Anderson was absent this meeting and the previous meeting, and directed Recording Clerk Turner to reach out to her. Member Laney asked if all the elements required by the ordinance are contained on the citation. Staff - Liaison Sgt. Wagner stated that the citation is a multi - purpose citation used for parking tickets and noise tickets as well. He continued to say that as it stands, the citation is well laid out, but will discuss it with Lt. Dreasher. Chairman Chinelly stated that the board should see that the box for the particular offense is checked and that all nine items in the ordinance are covered on the citation. Staff - Liaison Sgt. Wagner stated that he will discuss this with Lt. Dreasher. Member Zielinski stated that Attorney Purcell did raise doubt in his mind. Staff Liaison Sgt. Wagner stated that the radio is a part of a motor vehicle; therefore can be applied in that case, but it is for the board to decide. Staff - Liaison Sgt. Wagner also stated that what is important is the testimony of the officer. Member Zielinski stated that if the wording was more precise, then there would be no question raised. Chairman Chinelly suggested that the wording be reviewed by the City's attorney, but agrees with Staff - Liaison Sgt. Wagner's interpretation. Member Zielinski asked if it was illegal to record without the person's knowledge, and Staff - Liaison Sgt. Wagner stated that police officers are exempt. Staff - Liaison Sgt. Wagner stated that he does caution using personal recorders. He continued to say that the audio recording was not properly evidenced by storing it on the O:drive as it is not a secure location. He continued to say that the tape was not played in its entirety, and in a regular court proceeding, the audio would not have been played as the respondent did not have a chance to review the evidence and prepare a response. Member Page 4 of 5 Zielinski stated that the Chairman did ask the respondent if he had any objections. Staff - Liaison Sgt. Wagner stated that the respondent may not have had the knowledge on how much weight the audio tape could provide. He continued to say that the officer's testimony should suffice, and listening to audio is not a precedent to set. Member Amey stated that if the officer was able to hear the lyrics of the song, then it was playing too loudly. Member Laney stated that there is a device used by other law enforcement agencies that is a decibel meter, and is admissible in court. She continued to say that the City of Ocoee could possibly benefit from this device. Staff - Liaison Sgt. Wagner stated that the mentioned device is called an Ohm Reader, but the ordinance does not speak to how loud the noise is; instead, how far away you can hear it. Board discussion ensued regarding tint meters. Ofc. Whiting explained that the legal level for the front windshield of a vehicle is twenty -seven percent (27 %) or higher, and the back window is fifteen percent (15 %) or higher. Board discussion ensued regarding the safety issues of playing music too loudly while driving. Chairman Chinelly stated that when making motions, it is important to have board discussion so that questions are answered and proper conclusions reached. Member Laney stated that it is important that respondents feel as though they are heard. Chairman Chinelly stated that he would like to reference the evidence on the screen as in the past. Staff - Liaison Sgt. Wagner stated that there was a miscommunication in the office, and was not given the external drive, but will ensure to be equipped with it at the next meeting. Member Ball stated that he is concerned about having fairly heard the respondent. He continued to say that Mr. Shakes requested several times to play his CD, and the board did not oblige. He also stated that Mr. Shakes' CD was a part of his credibility. Member Zielinski stated that he could have brought any other CD that was in his house. Member Ball stated that he did not want to hear the audio recorder, because it would not be fair to Mr. Shakes, and would have been satisfied with the testimony of the officer and respondent. Chairman Chinelly and Member Laney stated that board discussion is important so that items such as these can be addressed during deliberation. ADJOURNMENT Meeting adjourned at 9:05 p.m. Respectfully submitted, u I �� A. • 1 r � . a Turner, Recording Secretary Joe 'nelly, Chairman Contact the City Clerk's Office to listen to an electronic copy of these minutes. Page 5 of 5