Wax Trax’s beloved summer sidewalk shows, and the 13th Avenue Flea are on pause this year as we await the city’s final revisions to its noise ordinance and as the store goes through the courts again on the one complaint we’ve received in three years of weekly summer shows (see below). We will be hosting the occasional event this year, but the decision to hold each one is now a much harder one given the city’s proposed ordinance that does not consider free live music a public benefit worth protecting.
Last month Judge Andrew P. McCallin of the Denver District Court handed down a judgment on Wax Trax’s appeal of the noise citation the city gave us back in October of 2022. His decision had good news and bad news.
On the good news side, the judge pointed out the error in our original hearing in that we didn’t get to present all of our evidence about how the neighborhood loves the shows, or how music rarely has negative health effects and is actually often beneficial.
The bad news is that the judge sided with the city that neither the complainant nor the city needs to prove there was any harm from the sounds of music. Basically a complainant saying they have harm is enough to assume harm in his view.
So our legal battle goes back to the beginning, a new hearing from the city’s Department of Public Health and Environment (DDPHE), and the outcome of that hearing doesn’t look too rosy given the court’s decision.
In other news, the DDPHE’s new ordinance language made a big show of raising the limit for events like ours to 85 decibels but it also gives the DDPHE rulemaking powers over the ordinance and removes the defense we were using in our case – the whole bit about a noise having to cause “physiological or psychological harm” in order to be out of compliance.
So if this draft ordinance is approved by city council, a noise just has to be unwanted and have a peak above 85 decibels if it’s on private property, and the city also included a limit on the frequency of events at that noise level (8 per year).
The DDPHE’s language seems to largely ignore public feedback about the public’s desire for a more vibrant city, as it provides no provision to consider an event’s benefit to the community as a balance on complaints. Once one complaint comes in, every event following that initial complaint would presumably be policed by the noise inspectors using measurement techniques that remove the peaks in ambient noise measurements, and record only the peaks in the “unwanted” noise. This measurement approach dramatizes the difference between, say, a heavily trafficked street and a street show.
And if DDPHE has rulemaking powers as the draft ordinance currently allows, they can craft the rules however they wish to go after the events they don’t want.
All this is forcing Wax Trax’s hand, and sadly, we must pause the weekly summer events we’ve been holding since 2021 due to the one complaint we’ve incurred in all of those years. One complaint. And because the 13th Ave Flea depended on the shows to draw foot traffic, we’re also suspending the market this year. We’ll be seeking new ideas for both events, and our vintage partners at Broadway Bazaar are cooking up a new market on South Broadway (stop by the shop to speak with them).
Does this mean that we’ll never hold a sidewalk show again? No! But that may come to pass. In the meantime we’ll have to be far more conservative in choosing events (see our calendar for upcoming shindigs). If we lose our current case and receive any future complaints whatsoever, the stakes will be higher (fines double for each citation) and that may cause us to never again hold a sidewalk show.
Simply put, the ordinance makes no mention of finding a balance between any event’s public benefit and any complaint against it, nor does it define either, so there is no guarantee we can continue holding events.
In our view, the City of Denver needs to ask itself what kind of place it wants to be. If it wants to be a quiet sleepy place with no public gatherings, it’s on a good track. But if it wants to be a vibrant place with many civic events, thriving local businesses and a strong music culture– it simply needs to craft its policy with that goal in mind. So far it is not doing so.
0 comments