FAIRHOPE, Ala - The first noise citation issued this year will not be prosecuted by the city because it was written under an old law that has been repealed.

“My political science is a little rusty but my understanding is that when there’s a new law in place there’s no ‘old law’ that can be enforced by police,” said Tricia Niemeyer, owner of Fly Creek Cafe. “You don’t get to choose which law you’re going to enforce.”

Fairhope police officers answered a complaint on Feb. 10 about loud noise at the Fly Creek Cafe and issued a citation that night based on a city ordinance that had been replaced Jan. 1 by a new law, following public hearings and discussion at City Council and community meetings last year.

“Ms. Niemeyer brought to the administration’s attention that there was a problem with the citation issued to her,” City Administrator Gregg Mims said. “The citation was written to Ms. Niemeyer using the ordinance that was repealed by the new noise ordinance. Therefore, in consultation with (Fairhope Police Department) Assistant Chief (Terry) Sanders, the ticket was not prossed. We cannot write a ticket under an ordinance that does not exist.”

The new noise law requires the use of a decibel meter to determine violations, while violations under the old law were based on a subjective determination by police listening from the location of the complainant to decide whether a violation had occurred.

In general, the new law prohibits “noise” in the city, which is defined as exceeding 85 decibels from 6 a.m. to 10 p.m. and 50 decibels from 10 p.m. to 6 a.m.

”My staff and I were equipped with a decibel meter and taking measurements all night,” Niemeyer said. “I got (Police Chief Bill) Press on the phone, and he said they were still following the old law and didn’t have equipment and their staff wasn’t trained yet.”

Niemeyer said the responding officers told her that night that Press had ordered the citation to be issued under the old law, which led to her phone call to him with their assistance.

“Chief Press did talk to Ms. Niemeyer the night of the incident and did acknowledge that the officers were using the repealed ordinance,” police spokesman Sgt. Craig Sawyer stated Thursday. “He did not, however, instruct the officer to issue the citation. He told the officers on scene that they were better able to assess the situation since they were there, and to take the appropriate action.”

Fly Creek Cafe, which features live music some nights during the week and on weekends, has been the primary focus of several residents who live nearby, resulting in the original law and the new one that replaced it.

“I’ve spent $10,000 in legal fees trying to change a law that is totally unconstitutional,” Niemeyer said. “I’ve been through hell backwards with the community so we can have a law in place that does use decibel measurements. Whether it’s going to work great or not I have no idea.”

Fairhope police responded to six complaints of loud noise this month, but the Fly Creek Cafe was the only one in which a citation was issued, Sawyer stated.

At the time of that Feb. 10 incident the department did not have decibel meters but they have since arrived and staff has been trained on them, he said.

“We responded to the loud noise complaint, and the officers did handle the call in compliance with the ‘old’ ordinance,” Sawyer stated. “We were aware of the new ordinance and were awaiting the arrival of the decibel meters. However, the officers were unaware that at the time the new ordinance was passed, it repealed the old version. They had received a valid complaint and were acting in the public’s best interest in attempting to end the disturbance.”

Niemeyer said that the decibel meter her staff used that night had been provided to her by her attorney and met applicable standards under the new law, and that they were in compliance throughout the night according to their measurements.

“I was furious because in the six weeks since the ordinance had passed, I had managed to get the equipment and train my staff,” she said. “My frustration came with the complete lack of any spirit of cooperation from Bill Press.”

Penalties for violating the new law include a fine of not less than $200 for a first offense and $500 and/or six months in jail for repeated violations.

“All incidents occurring after the new law took effect would be enforced under the new law,” City Attorney Marion “Tut” Wynne stated this week.