Ice-cream vendor savors federal-court victory

To some Stafford Township residents, Jeffery Cabaniss' ice cream truck plays music that's utterly intrusive. To others, the amplified jingles are a charming step back into childhood memories.        To U.S. District Court Judge Mary L. Cooper, the ice-cream music is a form of commercial speech that's protected by the First Amendment.        Cooper granted on Monday a restraining order that bars Stafford Township from enforcing its ban on the amplified jingles that vendors like Cabaniss play when driving through neighborhoods.        "I felt going in that it was pretty much of a slam dunk," Cabaniss said after the judge's ruling. "I'd say 90 percent of the town likes ma and likes the music... For the 10 percent who don't, I'm sorry."        The judge said in her ruling that the township has a "legitimate interest in protecting citizenry from 'incessant' noise emanating from vendors' trucks," but she found "there is a likelihood that the ordinance at issue will be found to be violative of the First Amendment."        The ordinance - which would ban amplified music and allow vendors to attract customers only by ringing a hand bell - was too restrictive and it unfairly targeted ice cream vendors, she ruled.        "It is commercial speech," Cooper said to the lawyers.        "There are ways for the public to express dissatisfaction without an ordinance," she said. "If enough people in town are sufficiently offended by the vendors ... then the law of supply and demand could operate."        Stafford Township officials have already said they would not enforce the ordinance and would instead seek a compromise.        Cabaniss didn't trust them. "If I didn't pursue this and tool their word at it, nothing's stopping them from switching their minds again," he said.        Local officials are considering guidelines proposed by the state Department of Environmental Protection, in which sound would be regulated by decibel levels - rather than the type of business creating the sound.        Stafford Township Police will be trained next month on how to operate the equipment that gauges the loudness, said Township Attorney Annemarie Schreiber.        "They found 65 decibels of noise to be acceptable," she said of the state's model guidelines. "From what I understand, it's almost like yelling."        If the township adopts the DEP's model ordinance as it's written - and not alter it in any way - the state will defend any court challenges, said Township Attorney Thomas E. Monahan.        The ice-cream jingle story has garnered nationwide attention ranging from CNN to The New York Times, and its effects might spread outside of Stafford.        For instance, nearby Long Beach Township also has a similar ban on vendors playing amplified music.        "If they don't revise that ordinance pretty quickly," said Cabaniss' lawyer, Gilbert Farr, "we're going to see them here (in court)."

~ fin ~