City of Houston 2023Legislative Report

Preemption

Bill Sponsors / Authors:

Cody Harris   Rep. Cody Harris
  R - Palestine

Drew Springer   Sen. Drew Springer
  R - Muenster

 

Supporting Documents / Links:

Preemption GraphicHouse Bill 1247 / Senate Bill 577 – Noise Ordinance Preemption

Houston families depend on the safety of the food we eat at food service establishments. Food safety inspections protect the community from disease, disability, and death resulting from food-borne and waterborne illness. By administering the public health ordinances of the City of Houston and the State of Texas through enforcement and education, food safety inspectors ensure that the food provided by food service establishments is safe for our families and our community.

Senate Bill 577 dealt with the regulation of food service establishment, retail food stores, mobile food units, roadside food vendors, temporary food service establishments, and food managers.

In addition, Section 437.027of the bill impacts noise and sound regulation for food establishments.

Houston had recently gone through a two-year process developing and fine-tuning noise and sound regulations for the City. As part of those regulations, there is a permitting structure with 4 different types of permits, which the City would no longer be allowed to require for food establishments. It will also void Section 30-5 of the City’s ordinance setting maximum sound limits for food establishments. Chapter 30 of the code of ordinance also provides maximum noise levels if there is not a permit. They are:

Residential

  • 65 dB(A) during daytime hours
  • 58 dB (A) during nighttime hours

Non-Residential

  • 68 dB(A) at all times

House Bill 1247 would have removed Houston’s enforcement powers for food service establishments exceeding the 75 d(B)A statutory standard. Cities would only be able to address excessive noise greater than 85 d(B)A through use of the penal code for disorderly conduct.

The language of the bill:

Sec. 437.027. SOUND REGULATIONS. Prohibits Dept. of State Health Services, a county, a municipality, or a public health district, notwithstanding any other law, from requiring a food service establishment to obtain a sound regulation permit, charging a sound regulation fee to the establishment, or otherwise prohibiting sound-related activity at the establishment if the establishment:

(1) accepts delivery of supplies only for one hour or less between 5 a.m. and 11 p.m. and delivery of food, water, or ice only after 11 p.m., provided the sound level from the deliveries does not exceed 75 dBA when measured from the residential property closest in proximity to the establishment, excluding traffic and other background noise that can be reasonably excluded; and

(2) limits the use of amplified sound for playing music or amplifying human speech within the establishment's indoor or outside property boundaries to ensure:

  • the amplified sound is not used after 10 p.m. on Sunday through Thursday and 11 p.m. on Friday and Saturday; and
  • the amplified sound level does not exceed 75 dBA when measured at the establishment's outermost property perimeter, excluding traffic and other background noise that can be reasonably excluded.

Council Member Sallie Alcorn provided written testimony regarding how inclusion of the sound ordinance preemption would undermine efforts by the City of Houston to protect neighborhoods and provide certainty for businesses:

For two years, I worked with staff from relevant city departments and stakeholders including civic club/super neighborhood leadership and industry members from the Houston’s Neighborhood Beer Garden and Bar Association. Stakeholders worked together to strike the right balance and find the most effective way to protect both our residential neighbors and local businesses.

The implementation of HB 1247 would put the recent hard-earned changes to the noise ordinance in jeopardy thereby having a detrimental effect on many Houston neighborhoods. As a city with no zoning, Houston must maintain its control over setting its own rules to protect residents.

Working with Senator Drew Springer, the City of Houston was able to successfully advocate for the removal of the sound ordinance preemption. Rep. Gene Wu helped keep language out of the bill as it moved through the House.

SB 577 was signed by the Governor and will take effect September 1, 2023.