DEP turns a deaf ear to noise rule compromise

Despite township efforts to negotiate alternatives to a complete ban on music played by ice cream vendors, an official from the state Department of Environmental Protection would not commit to a compromise with township officials, according to Mayor Carl Block.        Block has been asking DEP officials to allow the township to amend its DEP-certified model noise ordinance so that restrictions can be placed on the volume and frequency of vendor music, which has sparked complaints by some residents in the township.        The complaints resulted in the Township Council's adoption of an ordinance last month prohibiting vendors from using amplified mechanical or electronic sounds to attract business.        Enforcement of the ordinance has been delayed pending results of a U.S. District Court hearing Monday in Trenton in which ice cream vendor Jeffery Cabaniss and his attorney, Gilbert Farr of Manahawkin, will seek an injunction from Judge Mary Cooper to prevent the ordinance from taking effect.        Cabaniss contends that the ordinance is a violation of his First Amendment right to play "The Turkey in the Straw" through the streets of Stafford to attract customers to his soft-serve ice cream truck.        "While government has the right to regulate noise, they have no right to dictate the only way I can be identified," he said.        Attorney Thomas Monohan, who will represent the township at Monday's hearing, has said the lyric-less music is not a message but a type of noise that would be regulated under the ordinance.        Nevertheless, township officials still are attempting to formulate a compromise, which has proven to be an arduous task.        Block was told the DEP will not certify the noise ordinance if it is changed or cross-referenced to include decibel limitations or any other regulations aimed at ice cream vendors.        "They said the options are to either ban the music or ignore it," he said.        Last week, Block asked DEP Assistant Commissioner Mark Smith whether the township could amend the ordinance to include a provision for ice cream vendors and take legal responsibility for defending only the amended section, with the DEP upholding the remainder of the ordinance if it is challenged legally.        Smith was "noncommittal" in his response, saying he would provide an answer in two weeks, according to Block. "Hopefully, he'll give us something we can use," the mayor said.        Cabaniss, who took his ice cream and his music to Tuckerton and Barnegat last week, said he is supportive of the mayor's attempts at compromise but wishes the township had made those attempts prior to adopting the ordinance.        "I also wish they had taken some input from the vendors like they did when this issue came up in Long Beach Township," he said.        If a compromise is reached and the ordinance is rescinded, Cabaniss has been advised by his attorney that he still will need to receive a favorable ruling in U.S. District Court to prohibit the ordinance from being reintroduced.        Cabaniss received his Stafford vending permit yesterday and once again was toting his treats through the Ocean Acres section of the township at press time, according to reports.        He still is waiting to receive vending permits from Little Egg Harbor, Surf City, Beach Haven and Long Beach Township.

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