Council Rejects Noise Ordinance Changes


A split Fort Myers Beach Town Council rejected a Noise Ordinance Amendment in a tie vote and approved a controversial and unplanned contract extension for Town Manager Roger Hernstadt 3-1 before roughly 20 people on Monday morning, March 4, 2019. The meeting marked the final time this Council would convene, with two seats on the Tuesday, March 5 election ballot, with Mayor Tracey Gore not running and Council member Dennis Boback facing three challengers. (Boback would lose his seat in the Tuesday election.) Council member Bruce Butcher was on an excused absence. Gore, Boback, Vice Mayor Joanne Shamp and Council member Anita Cereceda were present for the meeting.

Under Public Hearings: Noise Control Amendments Ordinance, Town Manager Roger Hernstadt explained that “this originated with Council, to provide an alternative to the current Ordinance and not a replacement, to handle the situation in the absence of a decibel meter to determine if a source noise is too loud from 1,000 feet from the property line. From studying engineering websites, this does not make it more restrictive, but more helpful to the Town, to augment the decibel meter system in place for many years.”

“I labored over this,” said Vice Mayor Joanne Shamp. “I appreciate the Town Manager and Town Attorney getting legal opinions as well as Lee County Sheriff Carmine Marceno’s letter regarding enforcement, but our current Ordinance has a Part B that clearly defines noise disturbances as nonharmonious sounds beyond reasonable standards, so I do not think we need to enhance the Ordinance with another set of standards that are not decibel meter-based. I also do not want to subject our Beach and Street Enforcement (BASE) Officers to go to a door for a civil disturbance or unsafe situation after 10 p.m., as that is the role of a police officer. Finally, 1,000 feet is not a good standard; if the unharmonious noise is two or ten doors down or 500 or 1,000 feet away, those are already covered in here. Enforcement is the problem; I would like to table this and meet with the Lee County Sheriff’s Office (LCSO) to see how to best enforce the Noise Ordinance, so I am not in favor of this change at this time.”

“I do not want BASE in that position after 10 p.m.,” agreed Boback, “but I support the Amendment because the decibel meter standard does not work. They are never available 99% of the time, so the Sheriff’s hands are tied, with the person suffering the brunt of this being the person who makes the complaint. If sheriffs do not have the paraphernalia, it muddies the water, and our job is to protect residents. I think this is a great tool for the LCSO and the reason I will vote for it.”

Tie Votes Fail

“This community worked very hard with the LCSO on an enforceable Noise Ordinance,” said Council member Anita Cereceda. “I believe the Noise Ordinance is strong; the problem is enforcement, so we need to further discuss this with the West District Captain, because I hear too many times people complain they do not call the LCSO because they never have a decibel meter. I did not support this Amendment the last time and will not now.” “I did support it then, so will now,” disagreed Gore. “Unfortunately the vote will be two to two, so it will fail.”

Shamp suggested tabling the Noise Ordinance vote to continue enforcement discussions with the LCSO, “to explain our expectations to improve our quality of life.” “Tabling it will not solve anything,” countered Cereceda. “The LCSO says the Amendment is enforceable,” stated Gore, “as we have a noise issue on this island,” with Cereceda agreeing. “Noise on Fort Myers Beach will always be contentious,” continued Gore. “We need a strong Noise Ordinance to protect our citizens, as that is our #1 job, but I will not prolong this anymore.” The Motion failed two votes to two, with Cereceda and Shamp Against, with Gore commenting, “Sorry, everyone!”

In another Public Hearing, Council considered the Lynn Hall Park Dune Walkover Special Exemption & Variances. Lee County is requesting these to build four dune walkovers in the Environmentally Critical (EC) Zone at Lynn Hall Park near Times Square. Currently, there are four at-grade entries to the beach and Lee County would like to reconstruct these, with the new elevated ones less than 2 feet over the dune and vegetation level, and more than 6 feet wide for ADA-accessibility and Times Square foot traffic. Variances are necessary, as that height and width are outside the Town Code, with a Special Exemption for the EC Zone construction.

Shamp wanted to condition Town approval to Lee County providing at least two ADA-accessible wheelchairs to Times Square or contracting with an area vendor for a similar service. Town Attorney John Herin, Jr., however, cautioned that adding a wheelchair restriction is outside Council’s scope of action on this matter. Shamp struck her request, but Lee County representatives said they will investigate wheelchair accessibility. Cereceda asked if construction would impede access, with Lee County staff replying they will do just one walkover at a time. The motion passed 3 to 1, with Boback Against; work will commence after season.

Citizen of Distinction Award

Council presented its 2019 Citizen of Distinction Award to Tom Babcock, who previously served on Town Council, the Local Planning Agency and Historic Preservation Board. Since 2013, on the Air Intrusion Relief (AIR) Committee, he evaluated Southwest Florida International Airport arrival flights, along with attending numerous meetings with the Lee County Port Authority, airport management, Air Traffic Control and Federal Aviation Administration representatives to reduce flights over Fort Myers Beach. Tom will be Grand Marshal of the Town’s Fourth of July Parade.

town council meeting, fort myers beach
Roger Hernstadt and Town Council members in April 2017.

In accepting, Tom stated, “Thank you for this honor and to the many people who help me on the aircraft issue. Many residents told me they could look out their window and see passengers in aircraft windows because they fly so low. Airplanes keep them up at night, with oily films on their lanais, so making these improvements is important to our citizens.”

Manager Pay & Benefits Raised

Under their Administrative Agenda, Council submitted their annual Performance Evaluations of the Town Manager. Shamp initiated a discussion and provided a draft amendment to the existing four-year Employment Contract signed in 2017. Her proposal included an increase in base pay from $162,750 to $180,000, a 5-year contract extension, the removal of a decreasing severance pay clause under Termination Without Cause and a clause that allows him to work remotely for 15 days annually from June 1 to July 15.

Cereceda adamantly opposed the contract conversation, saying the meeting’s stated objective was for Council “to provide their Performance Evaluations and not a contract renegotiation. People will be highly critical of us if we change his contract on the eve of an election, so I am not comfortable with this, especially with (Council member) Bruce Butcher not here.”

Shamp, however, said she viewed the Town Manager’s initial contract “as a probationary period, to see if we wanted him to stay, but he earned these terms.”  Hernstadt was hired April 10, 2017 and his first contract signed on April 25, 2017 for a term of four years. That contract provided initial annual pay of $140,000 for his first 90 days, with an increase to $155,000 after 90 days. Benefits included family Medical, Dental and Vision Insurance, $600/month vehicle allowance, free cell phone and laptop/tablet, Paid Annual Leave, retirement account and up to $2500 of his moving expenses.

The contract calls for an annual Performance Evaluation between February 1 and May 31. After one year, on May 7, 2018, Council discussed their Manager Performance Evaluations and voted unanimously to give Hernstadt a 5% increase in base salary, taking his pay from $155,000 to $162,750, without making any other changes to the contract.

Following the termination of Town Manager Don Stillwell in 2016, initiated by then Mayor Dennis Boback, and the nearly $100,000 it cost the town in severance, back pay and legal fees, the decreasing severance pay clause was put in the new manager’s contract the next year and agreed to by Hernstadt, but removed this week at the same time the contract which was valid through 2021, was reset for five years, now ending in 2024.

Shamp insisted that the timing of her proposed contract amendment the day before a council election was proper. “This Council is the one to do this, because we are the five who worked with him.” “I agree,” said Gore: “We’ve been dating long enough; it is time to marry this guy!” “I will not approve,” responded Cereceda. “This process makes me feel heebie-jeebie.” Boback confirmed that the contract amendment was for 5 years and that Shamp had proposed an $18,000 increase, with Gore counter-proposing a 5% raise to $170,887.50 “as Roger is amazing and still does not make enough!” The Motion passed 3 to 1, with Cereceda Against.

From initial hiring not quite two years ago, Hernstadt has received pay raises totaling $30.887.50 or 22% more than his initial $140,000.

Other Business

In other “Administrative Agenda” items, Council unanimously approved a Lani Kai Resort Temporary Stage Special Event Permit; a Lani Kai Special Event Permit for an April 13 Classic Rock Benefit; Fiscal Year 2018-19 Fee Schedule Amendments; $45,370 for the Fort Myers Beach Community Pool Kiddie Pool Resurfacing; and $89,436 for a new Kiddie Pool Play Structure, with the final two to be done prior to the beginning of school summer vacation.

In other business, Council heard an Audit Committee update; unanimously passed its “Consent Agenda” for a March 5 Election Canvassing Board Substitution; a Telephone System Replacement Resolution; Professional Services Employee Contract Renewal for part-time Water & Stormwater Inspector Wayne Flickinger at $54.48-per-hour; the 2019 Mound House March 14 Membership Event; the Saturday, March 16, St. Patrick’s Day Parade; and Fort Myers Beach Woman’s Club St. Patrick’s Day Post-parade Party but without alcohol over incomplete paperwork.

Under “Council Member Items,” Shamp said Town volunteer committees have three openings on CRAB, two on Historic Preservation, and one each on BORCAB and Public Safety, and encouraged residents to apply through the Town Clerk. Gore said the Short-Term Rental 24-hours-a-day, 7-days-a-week Hotline is 1-435-787-4357; and as this was her final Council Meeting, added, “Thank you to this community for trusting me the past three years!” Council adjourned at 10:50 a.m.; its next session is Monday, March 18, at 9 a.m. Newly elected Town Council members Ray Murphy and Rexann Hosafros will be sworn in at that meeting.


Gary Mooney

Missy Layfield contributed to this article.