There Are No Guidelines

Pushing the issue: Steamboat's Danny Crooks leans over a speaker blaring music out over Sixth Street. photograph by Jana Birchum

It wasn't exactly noble, but it was a tactic the City of Austin apparently thought worth trying. Throw two little old ladies out in front of the battle, and dare your opponents to run over them to victory. Well... ahem, they were stomped. And afterwards, 11 club owners and one club manager celebrated their first significant skirmish in the Sixth Street noise war.

Last Friday, in response to their lawsuit filed against the City of Austin, Travis County Court Judge David Phillips granted the clubs' request for a temporary injunction on the city's sound ordinance as well as a temporary restraining order on another tool the police use to enforce sound limits on clubs, the state penal code section dealing with "unreasonable noise." The case goes to trial in March for the city ordinance, and in April for the state penal code. In the meantime, sound meter checks have stopped on Sixth Street, according to the Austin Police Department.

Judge Phillips agreed with the clubs that the city's sound ordinance is vague and without sufficient guidelines for club owners and police alike, and that a remedy is in order. He then delivered another blow to the city's enforcement methods, declaring that the state had done an even worse job writing the penal code on noise disturbances. He granted a temporary restraining order (the precursor to a temporary injunction) of the state law, because, he said, it "seems to suffer from the same deficiencies, or worse, as the city ordinance." To add to city attorney Bill Deen's visible upset, Phillips added that "the city's law seems pre-emptive of the state penal code," a situation not allowed under our state constitution.

The ruling came over the objections of police and three longtime East Sixth Street brownstone homeowners, including the two ladies who testified for the city. The victory was sweet for the plaintiffs, all members of the powerful East Sixth Street Community Association (ESSCA), a group dominated by the owners of such clubs as Flamingo Cantina, Bob Popular, Fat Tuesday's, and Blue Flamingo, since it ends what most of them have described as a police "siege" on live music clubs. The hearing was a swift response to a problem brewing since the first weekend of October, when, ESSCA club owners say, East Sixth Street residents Dr. Emma Lou Linn, retired architect David Graeber, and Graeber's wife Jean, complained to city officials that the police department wasn't enforcing local laws on noise levels. (Yes, there are actual residents living smack in the middle of our own little Bourbon Street frat strip, and no, they don't sleep very well on the weekends.) Dr. Linn's brownstone is between The Ritz and Shakespeare's Pub, and the Graebers live in a three-story building close to Bob Popular and across the street from Steamboat.

"I've lived there for almost 30 years," Dr. Linn recounted in an interview before the hearing. "In 1968, when I moved in, the area was basically burned out, deserted, and neglected. I thought renovating it would probably help save downtown; in fact several of us went down there about the same time. Sixth Street goes through cycles where I get excited about new shops and restaurants, and then you see the area take a downturn again. It's very disturbing to me. When we had more diversity in the businesses, more shops and restaurants, and a different type of club, you saw a nicer kind of clientele -- people were better dressed, and there were more tourists.

"Within the last several years, though, the crowd has gotten much younger and is pretty rowdy, but with not a lot of money to spend," she continued. "My worry is that the other places that don't keep the buildings up, that don't offer good food, and yet have cheap drinks, they attract a type of people that won't be in the best interest of Sixth Street."

Dr. Linn and Jean Graeber want a more mixed-use plan for Sixth Street, and view the greater concentration of bars and clubs there in the last 15 years as a sign that the area -- and their property -- will decline with the sleaze factor and ensuing neglect. More importantly, perhaps, and on a personal note, both women complain of health problems they associate with the noise that won't let them sleep at night; Dr. Linn points to her high blood pressure as a direct consequence of the deep bass beat coming from The Ritz Upstairs.

"It's so bad that every morning I have to sweep up mortar off the floor next to the wall I share with that club, and then of course, there's the cigarette smoke that seeps through the cracks every night."

So, what about the residents' right to peace and quiet? The response from club owners is what might be expected. "I think they're nuts to live on Sixth Street," zings the Flamingo Cantina's Angela Tharp. "If I lived down here and had to put up with the crowds and the weekends, I'd have to eventually say, maybe I'd be happier off in the country."

And yet, the city wants to subsidize more downtown living, some of it near "entertainment districts" such as in the West End area -- such as right where Liberty Lunch sits. "Apartments downtown -- I think that's fine," Tharp responds, "but I think they need to realize that there are conflicts like this before they do plunk them down."

Downtown residents on Sixth Street have, for now anyway, some amount of pull with city officials who are pushing for compact living. Several phone calls to the city manager's office in late September got Dr. Linn what she and the Graebers wanted. Police dragged out their moldy sound meters -- which they admitted hadn't really been in consistent use for over a year -- and began twice-nightly checks on all clubs on Sixth Street, issuing a rash of warnings and citations to surprised club owners and managers. Sixteen tickets were given out in the month of October alone (out of 42 for the year), and the end was definitely not in sight.

"I distinctly remember the night it started," recalls Tharp. "David Thompson [former manager of Emo's and Electric Lounge] and I were talking about how the [sound] ordinance was such a pain to deal with and how nice it was that things had settled down since even before South by Southwest this year. That very night, [the police] came by with their meter."

While people tend to get upset when the good times suddenly end, club owners and managers started realizing that police didn't really know how to enforce the law consistently, therefore, how could the club owners possibly know how to keep clean?

Court testimony and interviews all tell the same story: It's Saturday night, there's 15,000-20,000 people on the street drinking and shouting; your door's being held open by the crowds coming in and out, and your music is spilling out onto the people passing by; the club next door's got a very loud band; and then the police come by to check your sound level.

The city ordinance instructs them to make their measurements from your "boundary line," wherever that is, and if you're higher than 85 decibels before 10pm, or 80 dbs after 10pm, you're in violation. You ask them not to, but the police keep sticking their meter inside your door, or holding it on your window, or too close to their bodies which causes reflective vibrations on the meter. And they keep aiming it too close to that other bar that's definitely louder than you.

Unfortunately, it's already too late, the APD doesn't want any arguments on the street -- unless of course, you'd like to be arrested. No thanks. So you take the warning, or even the ticket that follows later in the night. And some nights you don't even get a warning. It's a $200 maximum fine, and, the police say, any more of those and you might just be looking at jail time.

Repeated offenses did land two club representatives in jail, one from the Black Cat Lounge (which did not join the lawsuit), and one from the Blue Flamingo (which did). Both locations were cited in police reports as clubs with "attitude problems." The Blue Flamingo has since been taken over by Finsky Enterprises, and things are being kept really quiet down there. The club happens to be one block away from the police station, and one of their bartenders reluctantly admitted over the phone that the new tactic at the club is to "get along with the police." The new owners, however, did not return phone calls for this story.

Dr. Linn's Buliding photograph by Jana Birchum

Asked about the arrest last month of Jose Hammon of the Blue Flamingo, APD Lt. Harold Piatt, who is in charge of the sound ordinance enforcement on Sixth Street, pointed out that "attitude" makes a huge difference in how the police proceed in these cases. "Some people refuse to turn music down, and their position is, `Well, give me a ticket,'" says Piatt. "Well, we get to the point where we've got to go farther. You just can't keep giving tickets. If they keep violating the law, we arrest them."

It was those threats of incarceration from the APD against the owners and/or managers of Flamingo Cantina, Blue Flamingo, Fat Tuesday's, and Shakespeare's Pub -- all of whom had occasionally broken the city's maximum noise level of 85 dbs -- that was enough to make them file a group lawsuit with seven other clubs and declare war on the city.

"The city needs to make up their minds about Sixth Street and realize how much revenue it means for them and decide whether we're the `Live Music Capital of the World,' or not," argues Tharp. "This conflict with residents has been going on since I got here [six years ago.] Basically, there are three people on Sixth who are extremely vocal, and seem to run things. This lawsuit is the only way we felt that we could deal with it."

Tharp doesn't want to name names, but it quickly becomes obvious who she's talking about. "Listen, when the Graebers decided to move to Sixth Street 30 years ago, it was a commercial area even then -- and it wasn't near as nice as it is now. They need to be aware that things have changed.... They'll argue with you and say it's a historical district, but it's an entertainment district that brings in a lot of money."

For Fat Tuesday's, a bar masquerading as one big open-air patio, the lawsuit means much more than some political or principled stand -- it's their attempt to survive. "We've lost nearly 50% of our business, because we had to shut down our live music program after this crackdown started," says general manager Frank Alterman. "We've done everything that we can -- we've remodeled, put the band back behind a wall and window, and put a roof over the band area so the sound doesn't go up [to the hotel rooms at the Omni on Seventh Street]."

Nothing helped. The bar was consistently over the maximum db level, and had to stop putting on live music to avoid tickets and incarceration of its employees. Before last Friday's hearing, Alterman said the bar's owner was thinking of moving Fat Tuesday's to the warehouse district where the sound ordinance is never enforced. "We wouldn't have to worry about it then, at all," resolved Alterman. Forcing clubs to move, or close their doors completely, was probably not what the city council intended when it wrote the ordinance back in the Seventies.

Certainly the police are not interested in shutting down business in the area, and Lt. Piatt says they've attempted to be consistent in enforcing the law. During the last month and a half, Piatt ordered his walking beat officers to do sound meter readings twice nightly at every club on Sixth Street, once before 10pm, and once after. "If the noise is extreme, we ask them to keep the doors closed, or turn the volume down," he says. They try, says Piatt, to work with all the clubs in the area, but inevitably tickets get issued, and therein lies the point of contention that helped win the ruling for the plaintiffs on Friday.

About half the tickets issued recently list the violation under city ordinance, while the other half list the offense under state law, with Piatt contending that all the tickets would be prosecuted under state law as ordered by the city prosecutor's office. The confusion as to what the actual charge was provided ammunition for the plaintiffs in court since they never knew which law to follow. And that's not even taking into consideration the subjective nature of the state law. "We've enforced the state law since July 26 last year," says Piatt, "that anything over 85 decibels is considered loud and unreasonable. And under that law, we don't have to use a sound meter. It's not a prerequisite."

Nor does state law determine any "boundary line" from which to read the meter, or require warnings. So how do APD officers determine what is "unreasonable" without the meter? And how do they know how to properly use the meter if they decide to measure the noise?

Under cross examination by ESSCA attorney Jim Ewbank, Piatt admitted that he had only given oral instructions to his officers on how to use the sound meters. He himself had never had training, but had "read the manual," arguing later that "few ordinances set out the institutional guidelines on enforcement -- they only set standards."

Ewbank pressed on, bringing to light several ordinances from smaller cities like Garland and even New Orleans, that had detailed sound ordinances listing how far away from the source the meter must be held and for how long the readings must take place before the source can be considered in violation. Austin's city ordinance has no such instructions, only the decibel level maximum, and a recommendation that a reading take place from the "boundary line." During questioning, Piatt could not define the location of the "boundary line" for any club.

"Do you have, then, unbridled discretion?" asked Ewbank.

Piatt demurred.

"And any changes you wanted to make in how you enforce the ordinance," continued Ewbank, "or even which law you want to use at any time, you could do because there are no restrictions. Is that correct?"

"There are no guidelines," agreed Piatt.

"We recognize the city's right to regulate sound on Sixth Street," Ewbank told the judge in his final comments, "but we want something that is constitutional and that will help my clients self-police their own clubs.... The state law lacks any details at all, and we have heard nothing today from the City Attorney defending the city ordinance for its guidelines, because there are none."

Judge Phillips went along with a recommendation from Ewbank that he send the interested parties into mediation; representatives from the city council, the city manager's office, the police department, and ESSCA members involved in the lawsuit will all sit down and try to hammer out better language for the city's ordinance before March.

In the meantime, the 11 clubs from the suit must "not exceed 85 decibels, on an A-weighted band, shot once per minute for five minutes from the curb," ordered Phillips. The highest and the lowest peak readings from the meter will be thrown out, and the rest averaged together. If they are found in violation, they are to be warned during the first minute, and if they don't turn it down, they can be found, Phillips concluded, in "contempt of this court."

While the ruling only applies to the 11 clubs in the lawsuit, after the hearing Piatt told this reporter that he would order a stop to all meter readings on Sixth Street of all clubs. "We would just end up back in court with another lawsuit, and nobody wants that," he concluded. What about the rest of the city, and what about car boom box readings? "We won't be doing any meter readings, at all," he responded.

That was Friday. On Saturday night, Sixth Street was loud, but not as loud as one might imagine considering the new freedom from police checks. It seems that, as ESSCA president Bob Woody, who owns Old Pecan Street Cafe, The Ritz, Shakespeare's Pub, and The Copper Tank, said in court: "We want a sound ordinance, a fair sound ordinance, because we realize the importance of it. We don't want Sixth Street to be so loud as to chase away our customers."

It may be a lawsuit that all clubs will benefit from, but one Sixth Street club owner isn't particularly interested in the lawsuit, or ESSCA, or the police, or, apparently, Mrs. Graeber, who lives across the street. Steamboat's Danny Crooks took this reporter on a tour of the club's upstairs loft, where he's propped stage speakers in two open windows overlooking the street. The sound emanating from those speakers makes you think you're in the middle of the club even though you're standing across the street. It's loud, and he knows it.

Louder than the law allows?

"Definitely," says Crooks. "But the police can't measure the upstairs speakers with their meters," he says with a smile. And surprise, surprise, Crooks has a cause -- a method to his madness. Despite the gripe he holds against ESSCA for pushing street closings -- which he thinks will eventually kill Sixth Street -- he's actually doing this "to push the issue to the very edge.... Once the police figure out how to make me stop, they'll have figured out a way to make other clubs stop."

Guess that's one way to solve a problem.

Naturally, the judge's order wasn't based on the fact that Steamboat's live bands, or Bob Popular's pounding bass beat, is a bigger economic draw for the 15,000-20,000 weekend visitors than Mrs. Graeber's living room. But the ruling also brings to a near conclusion the debate over what Sixth Street really is to this city. Forget the little brown signs on the highway: What brings people down to the district is not its national historical district status, as Dr. Linn and Jean Graeber attest. It's live music and alcohol. Shocking, but there it is.

"It's a kid zone. And it's a drinking zone," concluded Judge Phillips in his decision from the bench. "No one wants to kill the goose that laid the golden egg," he joked, "or hurt this distribution of ethanol that we have going on down on Sixth Street."

No, you gotta shake your money maker.