Reasonably Offensive

The Litigious Music Capital of the World: Live Music v. Live People

Joseph Rhode just outside his front door. The Red Eyed Fly is under the billboards in the background.
Joseph Rhode just outside his front door. The Red Eyed Fly is under the billboards in the background. (Photo By John Anderson)

Joseph Rhode says he used to have great stereo equipment. Then he tried to drown out the noise coming from one of his neighbors.

"It fried my speakers," says Rhode, who rents a home at corner of Eighth St. and Red River. "I simply couldn't turn them up loud enough."

Rhode knows you're thinking -- that he's a whiner and a killjoy. He also knows that by suing the neighbor in question, the Red Eyed Fly, he's likely to be pegged as anti-music. And particularly because court documents reveal Rhode pays just $300 a month for a 1,200-square-foot house next to Jamie's Spanish Village on Red River, he knows you're thinking, 'What could this guy possibly have to complain about?' Better yet, if peace and quiet are the issue, what's he doing living in the heart of Austin's downtown entertainment district?

Actually, Rhode says he lives downtown precisely because of the area's entertainment opportunities. Rhode and his wife helped turn what was once a dilapidated drug den into a livable rental 11 years ago, and the couple has been seeing live music as often as five times a week for much of that span. They also contend they don't mind hearing as many as 12 nightclubs while sitting on their porch.

"I'm against vibration and music so loud you can't carry a conversation or sleep inside, not music," explains Rhode. "I hear Beerland, Stubb's, and Room 710 wafting through my porch all the time. It's part of the reason I live down here. And I realize most people couldn't."

Chris Riley, president of the Downtown Austin Neighborhood Association, says that Rhode and wife Annette Harrelson-Hensz are exactly the kind of tenants downtown needs.

"They're the perfect fit for that community -- a long-haired hippie dude and a punk type," he remarks. "But there's a big difference between expecting some background noise from a vibrant music scene and winding up with the kind of noise you have to experience to understand. It can be like somebody walking into your living room with a boombox and cranking it up to full volume. It's like having someone take over your house."

Is live music, in fact, akin to home invasion or simply a reasonable expectation for urban living? Questions and conflicts over the rights and expectations of downtown residents vs. downtown business are hardly unique to Austin. "Noise Pollution Clearinghouse" at nonoise.org has posted hundreds of articles about similar controversies across the country. Moreover, it was less than four years ago that 10 local nightclubs, in conjunction with the East Sixth Street Community Association, sued the city of Austin over the municipal noise ordinance.

And yet two new civil suits, one that pits Rhode and his wife against the Red Eyed Fly, and another involving the Sheraton Hotel and music venue/eatery the Empanada Parlour , are poised to raise local noise issues toward the top of the city's downtown agenda. How could they not? It's no secret the city's powers-that-be would like to see more people living downtown. Yet while Austin calls itself "the Live Music Capital of the World," a lawsuit between a hotel at the heart of the tourism industry and a club that helped revitalize a once-sketchy part of Sixth Street obviously puts the Austin Convention and Visitors Bureau (ACVB) between a rock and a hard place.

"There's an obvious set of conflicts," says Austin City Council Member Will Wynn. "And frankly, I think we've been lazy. We, as in the city of Austin. We, as the private sector, landlords, music venues, and downtown residents. We haven't been proactive. And if we don't look at these issues closely, a growing number of conflicts is inevitable."

Wynn is just one of a half-dozen or so non-parties to the suits who have recently weighed in on the sound issue and have made steps toward mediation attempts. The list of interested parties also includes the Austin Police Department, the ACVB, and a host of neighborhood and homeowner associations. Like their definitions of what actually constitutes undue noise, opinions and ideas on solutions are varied. What nobody seems willing to dispute, however, is the notion that something's about to give; the city's noise ordinance and the current standards for presenting live music outdoors aren't likely to stay the same for long.


Disturbing the Peace

When word of both the Red Eyed Fly and Empanada Parlour lawsuits began circulating last month, there was one obvious question that jumped out of the legal papers: How can nightclubs that have never been ticketed for sound violations by the APD find themselves at the wrong end of lawsuits? True enough: At the date of filings, neither the Red Eyed Fly nor the Empanada Parlour had received a single noise-oriented ticket or citation.

The easiest answer is that these are civil cases; plaintiffs could sue club owners for being Martians if they so wished. But APD Commander Harold Piatt, who heads the Central West command unit, which patrols both Red River and Sixth Street, has his own explanation.

"Not having a ticket doesn't mean you're not breaking the law," he posits. "It means the way the law is written doesn't allow us to detect the violation. I believe the requirements on the police to show a noise violation are excessive. The municipal noise ordinance is useless."

To understand the noise situation downtown is to be conversant with Chapter 10-5 of the city's codes on Offenses Against Persons or Property. According to the code, "amplified sound in excess of 85 dB between 10am-10pm, and 80dB between 10pm-2am, as measured at the boundary line of the business, is reasonably calculated to disturb the peace and be unreasonably offensive to the public." Easy enough. Problem is, according to Piatt, the settlement reached between the city of Austin and downtown club owners in the 1998 lawsuit forces officers to take a five-minute sound reading before determining whether a club is in violation of the noise code. Because of this, clubs are able to lower the volume and skirt ticketing as soon as they see the APD arrive with a meter.

Piatt also says the ordinance doesn't do itself any favors by measuring from the boundary line of the business -- a line generally interpreted as the club's primary entrance. He notes that the point of entry is often a considerable distance from the source of the noise. State law, on the other hand, doesn't require a meter reading, but rather a judgement that property rights are being interfered, explains Piatt, and while he believes state law is a better option, he's been instructed to use the city ordinance instead. As a result, his department fields complaints about downtown clubs, but his hands are tied.

"We'll respond, but whereas we used to go out metering a lot on our own, that it's so hard to make a case has made it not worth the effort when there's so many other things going on downtown," Piatt says.

While tickets generated by APD are typically filed by the APD themselves after they've conducted their own meter readings, at least one nightclub has found out that's not always the case. Although the Empanada Parlour hadn't been ticketed for noise violations when the Sheraton Austin Hotel filed its suit in July, they've since been cited, with three other criminal complaints pending. The tickets are sworn complaints, filed by the Sheraton, with attached affidavits contending that a sound expert hired by the hotel found evidence of noise as loud as 99db on June 27.

Naturally, the Empanada Parlour has questioned how the readings were taken, if they comply with the city ordinance, and whether they're merely a ploy to bolster the hotel's civil case, but there's little question that the Sheraton's lawyers have upped the ante by using a different section of the ordinance. Section C of the noise prohibition, as cited in the Sheraton's criminal complaint, says that between 10:30pm 7am it's unlawful to "create, make, or cause to be made upon musical instruments, horns, or bugles, or by any other means, any loud noise which is reasonably calculated to disturb others in the vicinity."

At this point, according to Piatt, the plaintiffs, and the defendants, exactly what's "reasonably calculated" is increasingly looking like a question for the courts.


Emotional Distress

John Meyer says he's not sure how his dispute with Joseph Rhode and Annette Harrelson-Hensz became a question for the courts. Meyer owns the Red Eyed Fly and dismisses his neighbor's suit as "entirely frivolous." He says he only began presenting outdoor music at his club on a regular basis starting in mid-February of this year. Not long after, Rhode came by to complain about noise from the club's patio stage and invited the manager to follow him home.
The Sheraton Austin Hotel rising over the neighborhood.
The Sheraton Austin Hotel rising over the neighborhood. (Photo By John Anderson)

"We stood on the porch and couldn't carry on a conversation," claims Rhode. "We thought they'd understand, but it only got worse."

Meyer disagrees, contending he immediately responded to his neighbor's complaints by adding a canvas covering to the stage, and a sound baffling to the ceiling of the stage and to the fence around the courtyard.

"It didn't happen all at once," admits Meyer, "but it was always our plan to heavily insulate."

Rhode says he reluctantly filed suit only after concluding the city's ordinance didn't properly empower the police to ticket the Red Eyed Fly and that attempts at using other area club owners to mediate the conflict proved equally ineffective. His suit contends that as a result of the Red Eyed Fly's voluntary, intentional, and negligent "annoyance," the defendants have been infringed upon in the "use and enjoyment of their rental property" by denying them sleep, curtailing their social life, and interfering with telephone conversations and television viewing.

Rhode's suit also cites "health problems and emotional distress" as well as additional expenses from having to eat out to avoid the noise at home. In addition to damages "less than $50,000," a calculation that multiplies the cost of their rent, the suit asks for an injunction against the Red Eyed Fly that would prohibit the venue from staging live music until a court decides on the case. At a hearing earlier this month, the judge cited a lack of evidence and denied that injunction without prejudice, meaning Rhode and Harrelson-Hensz are free to come back to court with additional evidence from a sound expert.

Rhode says he expects he'll have an expert take sound reading at his home within the next two weeks, studying both the decibel levels and table-rattling vibrations he says hail from the Red Eyed Fly's music. In turn, Meyer says he'll commission his own study complete with various soundwave analyses, tests on the effectiveness of his baffling, and meter readings from all four intersections both when he's presenting music and not. In addition, he says he'll take readings when Stubb's is presenting music at its Waller Creek Amphitheater.

Meyer has already subpoenaed Stubb's management and contends they're clearly part of the intersection's noise problems. While Commander Piatt says he constantly fields complaints about Stubb's, Rhode says the club has always been responsive and courteous.

"I'm not pointing fingers," contends Meyer, "but I plan to show that we don't have control over what the ambient decibel levels are downtown and don't have a great impact on them. I just think they're having fun making me jump through all the hoops."

Rhode contends he's finding no joy in hiring lawyers and experts, and that he'd actually prefer to settle. He says that if the Red Eyed Fly stops presenting outdoor music, or flips their stage around to the other side of the patio, he'd drop the lawsuit. "Our impetus isn't money, it's having a livable home," he maintains.

Or his part, Meyer says he doesn't think a compromise is likely. He says he's not willing to discontinue outdoor music altogether, can't afford the electrical and foundational work flipping the stage demands, and views the plaintiff's request that meter readings be conducted from within their home, not from the entrance, as unreasonable.

"They're trying to make me out as the evil club owner," accuses Meyer. "But I'm not going to lose this. It will affect every club downtown if we let them set a precedent."


Harassment

If it seems there's a better orchestrated effort to find a reasonable settlement in the case of Sheraton Austin Hotel vs. the Empanada Parlour, it's perhaps because there are so many parties that would be affected by its precedent. Were the case to go to trial, the city itself doesn't stand to win in a battle between what's perceived as a big tourism-related business vital to downtown economy and a small arts-oriented business operating on a shoestring budget.

As with the Red Eyed Fly, this is also a case that's earned significant media attention, mostly following an Aug. 17 press release from the Empanada Parlour warning that the club "may be put out of business immediately." In their suit, the Sheraton asks for damages of $289,953, the value the hotel places on rooms they claim couldn't be rented because of the Empanada Parlour. Like Rhode's suit, the Sheraton claims the club "voluntarily, intentionally, and unreasonably (and/or negligently)" interfered with the use of their property by creating unreasonable levels of noise.

Daman Lange, the Empanada Parlour's manager, says he doesn't deny his club has been presenting live music through 2am since 1999 or that the walls adjoining his venue's three stages butt up against the Sheraton. But he says that since the hotel has called the APD more than 20 times and no ticket has been issued to the Empanada Parlour, he believes his club has not only demonstrated lawful behavior, but that the hotel has been engaging in "harassment." Like Meyer, Lange says his club has been consistently investing in baffling and insulation. Even so, the Sheraton has sworn out four criminal complaints against the club and included graphs of decibel readings in addition to a copy of a page from the hotel's noise complaint log.

Until the Empanada Parlour issued its press release, the Sheraton's lawyer, local attorney David Menchaca, refused comment. Then, in a press release dated Aug. 21, Menchaca promised that the hotel was exploring private negotiations with the Empanada Parlour in search of an "amicable resolution." Even so, the hotel's general manager, Rich Newman, issued a statement saying the hotel's attempts have been to "no avail," but he hopes "reasonable measures" are taken by the Empanada Parlour to ensure a settlement. "Our guests expect a quiet and comfortable room to get a good night's sleep," states Newman.

Lange believes the Sheraton has other motives for the suit. He suggests that through its lawsuit, the hotel is trying to devalue the Empanada Parlour's property in an effort to eventually buy it and gain frontage on Sixth Street.

"They say we're devaluing their property," says Lange, "but we've been instrumental in making it so people aren't afraid of this end of Sixth. People staying at the hotel are in here all the time enjoying the music. For [the Sheraton] to reap the benefits of having nightclubs and live music at their doorstep and then complain about it rubs me the wrong way."


Monitoring Ourselves

As controversial and high-profile as both these cases have become, it's a strong possibility neither will reach a courtroom. Even if the Austin Music Commission succeeds in brokering a deal or either case is passed from the court to arbitration, they're not the only noise cases downtown. Auditorium Shores, for one, remains an issue, while Sixth Street/Red River neighbors say they're unhappy with dance music emanating from Spiros. The Marriott Hotel also complains regularly to the APD about Le Privilege, Stubb's, and Club DeVille.

The Marriott's issue aside, Stubb's Charles Attal believes the key to having downtown's most powerful outdoor sound system yet avoiding conflict with area residents has been a self-imposed curfew. Attal says outdoor shows at Stubb's end by 11pm on weekdays and 11:30pm on weekends (South by Southwest excluded).

"We understand that sound and neighbors are the biggest issues down here," says Attal. "I can understand neighbors wanting to get some sleep. It's why we've taken to monitoring ourselves. It's to the point where if I'm booking a potentially louder rock-oriented show on weekdays, I'll end them by 10:30pm. It's the clubs running music late into the night that bring all the problems."

Attal ventures that because it's so difficult for the APD get reliable meter reading he's open to the idea of a downtown curfew on outdoor live music, citing midnight or 12:30am as the cutoff. It's an idea Piatt doesn't dismiss out of hand, although he prefers an overhaul of the sound ordinance that would dramatically lower the decibel levels and offer careful instructions on taking readings. Meanwhile, Council Member Wynn says he'd like to see a re-drafted ordinance that specifies between indoor and outdoor live music venues. More importantly, he believes some kind of Council action addressing downtown noise is imminent.

"I'd hate to think citizens have to take to the courts to get our attention," says Wynn, "but I think these suits have bumped it up on the agenda. If you read the facts involved, it suggests something has to be done. There are downtown residents and visitors literally not sleeping at night. Yet I think it's knee-jerk to sum it up as downtown residents vs. live music. They're two stakeholders for sure, but I think there has to be obvious place for common ground and complementary uses."

Of course, it's also possible a court opinion on either of the two current cases or the filing of a similar suit from other neighbors against other live music venues could up the ante on the council's timely definition of complementary use. All that's certain is that it's a good time to be a sound engineer and a contentious time to be living in or presenting music downtown.

"They say good fences make good neighbors," Rhode says. "But noise doesn't have fences. Noise is a weird thing, and I'm not sure anybody is going to satisfy everyone. What's reasonable? What's too loud? I don't know. I'm not sure even sound engineers have the answer." end story

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KEYWORDS FOR THIS STORY

Joseph Rhode, Annette Harrelson-Hensz, Chris Riley, Downtown Austin Neighborhood Association, Will Wynn, Red Eyed Fly, Empanada Parlour, APD Commander Harold Piatt, John Meyer, Damon Lange

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