Houston's Cryptic New Noise Ordinance
Tensions had been building between Boondocks' owner Shawn Bermudez and the newly formed Houston Police Department noise-ordinance task force when enforcers paid a visit to the Montrose club on February 25. When police arrived at the edgy little venue on the Westheimer Road curve, they requested that Bermudez escort DJ Spinna, in town from New York City, from his music-making perch so that the out-of-town turntablist could be slapped with a noise citation.
Four and a half months earlier, on October 12, Houston City Council had passed an overhauled sound ordinance by a 13-to-1 margin. Where the old law required the use of a decibel meter to measure sound, the new ordinance gives police officers the authority to write tickets — and without a noise-measuring device — based upon the audible sound that can be heard from the sidewalk.
Bermudez, like many bar owners, musicians and law experts who spoke with Houston Press, says that the ordinance gives HPD officers an unfair advantage when they're interpreting the cryptic concept of loud noise. They add that, in fact, enforcement of the law has become so subjective that neighborhood patrol officers and noise cops have disagreed on how to administer it — in one case, the two groups clashed during a tense public dispute.
Not so, says HPD sergeant and Noise Ordinance Revision Committee member Mike Hill. He insists that the 300 officers he's trained are getting it right. In Hill's opinion, noise-ordinance officers have a firm grasp on a law that also takes into account sound nuisances such as barking dogs and DIY construction noise.
Back at Boondocks, Bermudez, standing toe-to-toe with noise-ordinance disciplinarians, told officers that he should receive the ticket instead of DJ Spinna. "We didn't want to invite someone down from New York and have them get a ticket," says Bermudez. "We didn't want it to get around that stuff like that was happening to out-of-town people booked at our place."
Houston police officers wasted no time handcuffing Bermudez, who was transported to the central jail and charged with a Class C misdemeanor. Though he was initially told by cops that he was interfering with an investigation, Bermudez would only be charged with "generating sound causing others to be aware of vibrations or resonance."
Boondocks isn't the only club busted under the revised ordinance: The reprimanded include businesses in the Montrose (Mango's, AvantGarden, Royal Oak, TC's), the Heights (Fitzgerald's), Midtown (Hefley's, Junction), the Washington Avenue corridor (Brixx, Fox Hollow, Roosevelt Lounge) and a venue located off Southwest Freeway outside of 610.
A number of small-business owners think that the new sound ordinance is a way for the cash-strapped city to make up for revenue lost by its red-light cameras, a program that the City of Houston botched last fall. (See "Red-Light Camera Circus," Mandy Oaklander, September 15, 2011) Before the October amendment, fines topped out at $500. Now, noise violations can leave a bar or club owner $1,000 in the hole.
Some bar owners, who claim that cops are sometimes showing up at their venues without citizen complaints, continue to be cited, even after they go to great lengths to soundproof their venues.
At the same time, the pro-ordinance side, which includes homeowners and apartment dwellers trying to coexist in mixed-use neighborhoods, has grown tired of finding used crack vials and condoms on their lawns. (According to a City of Houston Administration and Regulatory Affairs report, HPD annually spends $2.3 million responding to an estimated 58,000 noise complaints.)
Houston City Council member Ed Gonzalez suggests the establishment of entertainment districts akin to those found in New Orleans. Whether that would ever fly in fast-growing Houston, which lacks zoning restrictions, is another question.
While club owners and city officials continue to disagree on the law's execution — in January, an HPD officer responded to a noise complaint with shotgun in hand — Bermudez has tried another approach to monitoring sound: He sometimes parks his car in the church lot behind Boondocks, rolls down his windows and listens into the late-night hours, trying to determine if he's safe. Or not.
One of the most curious post-October 12 ticketing events involved an open-mike night at a Midtown venue with virtually no housing nearby. The host was playing a song on his acoustic guitar through a small club PA when an officer came in and told him to turn down the volume.
"My guy may not have handled the situation with the delicacy he could have," says the bar's owner, who wishes to remain anynomous. "But still, what's going on here? It was an open-mike night, for Christ's sake.
"Everyone deserves peace and quiet, especially late, but this seems to be more about harassing people. And until we get some real standard for what is too loud and what is not, the police are going to be free to mess with any venue they have it in for. What's next? They're going to come in and tell me my jukebox is too loud? My radio's too loud? The basketball game is on too loud?"
Another opponent of the noise ordinance is Treaty Oak Collective's Brandon Lemons, who books and promotes shows at Mango's, Fitzgerald's and Rudyard's. Lemons thinks the noise ordinance is damaging Houston's reputation outside Texas.
"[The noise ordinance] sends a pretty bad message to touring bands, agents and labels," says Lemons. "From an out-of-state agent's perspective, why would you run the risk of driving your roster into the ground or in debt over something like this?"
Thanks to the passage of the United States Noise Pollution and Abatement Act of 1972, Houston, like hundreds of other cities around the nation, has legislation that specifies the allowable amount of sound (usually measured in decibels) that can cross property lines. Unlike laws in other cities, however, the Bayou City's version has experienced its share of controversy.
On October 13, 2006, following a noise complaint from neighbors, a fiery melee went off at the old Walter's on Washington between HPD officer G.M. Rodriguez (who allegedly discharged his Taser at three people), Adam Stephens of the kick-back, San Francisco-based folk band Two Gallants and several crowd members.
Today, Joshua Sanders, a registered lobbyist who's the official consultant and spokesman for the Greater Houston Entertainment Coalition Political Action Committee, views Houston's situation as "not working for anyone."
"Club owners don't know what they need to do, there are no objective measures for either the clubs or the police to go by and the police have to be frustrated that these things are taking up so much of their time," says Sanders. "Some of these complaints eat up 45 minutes for two officers. They've got more important things to do."
Critics are also up in arms over what they call unnecessary and heavy-handed crackdowns. This includes the February 8 detainment of DJ Badbwoy BMC at Mango's, as well as a disturbing incident on January 27 outside a private venue — while addressing a noise complaint, an HPD officer cocked his shotgun and advanced toward the crowd.
Sanders, who has worked with City of Houston agencies in the past, says the ultimate goal of the PAC, which formed in late January in response to the revised ordinance, is to draft new legislation and pass it.
"One of the things we realized almost as soon as we started looking at the problem is that we need to be a resource for the city," explains Sanders. "I think the city understands the situation is far from perfect. So if we want to see a change in the ordinance, we have to do some homework for the city."
According to Sanders, some tutelage is definitely needed for local police officers, especially after an HPD captain told Sanders that bar owners "will understand what compliance is when they get enough tickets."
"It was almost surreal," says Fitzgerald's co-owner Omar Afra. "The doorman came and said the police were outside wanting to talk to me. When I got out there, they asked if we had live music tonight and I said 'yes.' They handed me a ticket through the window — already had it ready — and never even got out of the car. No investigation, no nothing."
"They're attacking our livelihood," adds Afra, who is in no mood to mince words or play nice after receiving a drive-by ticket on March 9 during an "absurdly quiet" night at the 35-year-old music venue in the Heights.
Afra, who is active in the PAC and plans to plead not guilty, says that he's spent more than $10,000 on soundproofing improvements, including construction of a short hallway and a second door leading to the back patio.
Like other club owners, he is baffled by the meaning of "compliance." In his words, he also hates that police don't need a formal complaint to issue a ticket based on what Afra calls "probable cause."
"You could be bothering nobody," says Afra. "Fitzgerald's has been here a long time and we have made a point of having a close relationship with the residents around us. I don't think it's our neighbors filing complaints."
Ethan Minshew, general manager of Kung Fu Saloon, is also stupefied on the meaning of compliance. He says that on October 13 — the day after the ordinance passed — cops nailed the Washington Avenue bar for a noise violation. Not for a live band, a DJ or for loud music on the venue's outdoor seating area (Kung Fu doesn't boast exterior speakers), but for the collective volume of people talking on the patio.
"It wasn't and still isn't entirely clear as to why we got the ticket that evening," says Minshew, who went to court, paid the fine and accepted deferred adjudication instead of fighting the ticket.
"We don't want anyone to plead guilty," explains the PAC's Sanders about the post-citation legal route he's telling each violator to take. "We've learned that neighbors will be able to use any guilty pleas to contest liquor licenses. So we're recommending that anyone who gets a ticket ask for a deference."
Matthew Festa, a professor at South Texas College of Law who has expertise in noise-ordinance issues, adds that due to the law's troublesome language, it would be difficult to convict an offender in court.
"The law isn't so over-broad that it's plainly unconstitutional, but it does give a concerning amount of discretion to the enforcers," he says.
While some venues seem to have adapted to the new way of doing things — Westheimer's Poison Girl and Etro Lounge and Rudyard's on Waugh Drive have avoided noise citations — other sound-ordinance dissenters are hoping that city officials will take another look at the law. If and when they do, Festa explains, figuring out a compromise will be difficult due to the special circumstances here in Houston.
"In most cities, they'll say in a residential zone the noise level is X and it's Y in a commercial zone," says Festa. "In Houston, with the lack of zoning, you can't say that noise is okay in one neighborhood but we're going to prevent it in another neighborhood. That's because we're all next to each other a lot more. There's no way you can draft a standard."
In agreement is Afra of Fitzgerald's, who says, "One day you live in a quiet neighborhood, the next month you're living in the hippest part of town. Welcome to no zoning."
Dennis Haskin was fast asleep when he was summoned to Swagger Lounge, located just outside of Loop 610 between Westpark Drive and the Southwest Freeway. Haskin is the owner of the predominantly African-American middle-class bar that features DJs, plenty of free parking and not much in the way of residential neighbors.
When he arrived at Swagger around midnight on a busy Friday in late March, he found "six or seven cruisers, at least a dozen officers and my manager in handcuffs in the back of a squad car."
This wasn't the first sound raid at Swagger, according to Haskin, who says that since the new ordinance went into effect, his club has been ticketed ten times. Most often it's been the manager who has taken the heat — Haskin tends not to be on the premises late — but disc jockeys have also been busted.
Keith Heaton, the night manager at Swagger, who was handcuffed, says that he tried to settle a dispute between officers and the disc jockey, who refused to come to the door.
"We talked a bit, and I told them I'd go back in and try to get him to come out. We were so crowded it took me a good ten minutes to get to the DJ and talk to him," says Heaton. "I guess they thought it was taking too long, so when I came out without the disc jockey, they cuffed me and put me in the backseat for impeding an investigation."
Episodes like this baffle Swagger owner Haskin, who says that HPD had never visited the four-year-old club.
"It's not like we're some trouble spot," explains Haskin, who has installed a short entry hall, a second entry door and a soundproofed back wall to limit noise pollution. "And we really don't have that many people who can hear anything anyway. The freeway makes more noise than anything around here."
Unlike living spaces that hug busy roads or acres of residential-only suburbs, some inhabitants of densely packed neighborhoods like the Montrose have constantly battled loud noise for years.
Frank Inselbuch and his wife once owned a newly constructed townhouse on Lovett Boulevard behind Brick Oven (now Mango's). At the time, the all-ages pizza joint featured young bands who could score a show long before they were ready for prime time. After a while, Inselbuch's homebuying experience went south.
"Even when the bands were inside, you'd get blasted every time the door would open. And they didn't shut it down at a reasonable hour, either," says Inselbuch, who adds that on some mornings, "I'd go out to get the paper and there'd be empty crack ampules in my yard, needles, condoms. It was crazy. And people were always peeing in the yard."
Inselbuch, along with other urban dwellers, called HPD so much that he can still reel off the direct-line number of the Westheimer police storefront. After a while, Inselbuch began to feel a backlash from local businesses.
"We were closest so it wasn't hard for them to figure out who was filing the complaints," says Inselbuch, who has since hightailed it out of the area. "Once they figured out it was us, it got very confrontational...I eventually got tired of calling and filing. In spite of some tickets, nothing seemed to be changing."
District H Council member Gonzalez, a former musician who voted in favor of the law, says that the ordinance's impetus was based on the high volume of noise complaints the city receives each year. (District E Council member Mike Sullivan, who cast the only "no" vote, did not respond to the Press's interview request.)
However, Gonzalez, who believes that the ordinance was well intended, says, "I think we need to review this once more."
When the ordinance turns six months old in May, he'd like city council to try to find the tricky balance between a pumping nightlife scene and the rights of property owners, who want to sleep without some blistering noise waking them up. As of press time, no such meeting had been set.
Gonzalez also suggests that Houston create entertainment districts — like those in New Orleans and Jacksonville, Florida, he says — to help alleviate the potential butting of heads between commercial and residential areas in no-zoning Houston.
As for the theory that the law was passed to find replacement revenue for the red-light camera debacle, Gonzalez says, "That's totally false. The discussion [about amending the noise ordinance] came way before" the shuttering of the red-light camera project.
In March, the owner of a gay bar in the Montrose, who didn't want his name used (we'll call him Theo), says that he witnessed a tense dispute between HPD officers and sound-ordinance enforcers — each group vehemently disagreeing with the other on how to carry out the new law.
Says Theo, "A [sound ordinance] officer, who wasn't carrying a decibel meter, told me it was 68 decibels in my bar. I said, 'We're talking and we're in the 60s right now and I can hear you over my bar. He took offense to that. He said, 'Well, it's by decibels and that's up to our judgment.'
"That's when the local officers told them, 'You asked for his ID, you told him to turn the music down, but you're still treating him like a criminal. Why don't you back off the bar because he's doing what you've told him to do,'" remembers Theo. "It's a real bad situation when I have local cops protecting me."
"As a neighborhood bar, if I get a few more tickets, I've got no choice but to go under," says Theo, who received a citation that he's currently disputing. "If bars keep getting tickets, a lot of them are going to go out of business, which means you're only going to have mega-bars that can afford to pay these fines."
HPD's Hill explains that noise-ordinance officers aren't required to carry decibel meters when responding to initial noise complaints. During follow-up visits, it's up to the individual officer whether he or she wants to use one of the department's 85 sound-measuring devices when trying to determine whether or not to issue a ticket.
"We simplified some of the language for ease of understanding. Other than that, there weren't a lot of changes," says Hill, who disagrees with critics who think the ordinance is a subjective nightmare for everyone involved.
Meanwhile, despite Bermudez's adjustments to Boondocks — he recently soundproofed the ceiling to reduce previously heard noise — the venue is still receiving citations. The last one came minutes before closing time on a Friday night in early April while Bermudez was out of town.
"It was at 1:58 in the morning," says Boondocks manager Ryan Hughes, who accepted the ticket that night. "It had been awhile since they were here, so there was none of the previous aggressiveness. It was real low-key, just business as usual."
The constant scrutiny doesn't sit well with Bermudez, who is fearful that some of the complaints are based upon rowdy drunks who sometimes roam the streets after leaving one of the other area bars.
"Off-premises behavior is almost beyond our ability to control," says Bermudez, who wants some sort of resolution. Until then, he'll continue to hope for the best, oftentimes while camped in his car in the church parking lot.
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