The city of Holmes Beach is looking to head off another complaint about noise.
Holmes Beach filed a motion to dismiss Richard and Marjorie Motzers’ amended complaint and the Motzers’ attorney set up an Aug. 1 court date to hear the dispute.
Anthony Manganiello III, of Icard Merrill in Sarasota, filed the Motzers’ new complaint, alleging the city failed to prevent residents “from being effectively driven out of their quiet neighborhood by excessive noise emanating from an ever-increasing number of short-term rental properties.”
He argued Holmes Beach police should be ordered to perform non-discretionary, administrative portions of the ordinance.
Thomas Thanas, of the city’s law firm of Dye Harrison, argued against the new complaint saying, “The amended complaint alleges no new facts. The amended complaint cites to no new cases.”
He also said Manganiello’s new argument asks the court to “dissect the city’s noise control ordinance” and separate the discretionary functions from non-discretionary/administrative portions,” which “misses the whole point” of a prior court order.
Twelfth Circuit Judge Charles Sniffin dismissed a prior Motzer complaint March 14, ruling the judiciary cannot interfere with discretionary functions of other branches of government, including an officer’s power to enforce criminal laws or issue civil citations.
An April 1 order in the case clarified that the prior dismissal was “without prejudice,” allowing the Motzers to submit an amended complaint.
The Motzers live in a residential district zoned for duplexes in the 400 block of 56th Street in Holmes Beach, where short-term rental properties on Holmes Boulevard and 55th Street border their home.
The couple first sued the city in June 2018, asking the court to mandate that Holmes Beach and its police department enforce the city noise ordinance, which restricts noise to no more than 65 decibels before 10 p.m. and no more than 50 decibels between 10 p.m. and 7 a.m.
The city’s motion to dismiss the Motzers’ second complaint is set for 1:30 p.m. Aug. 1 at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.