Aspen Brewing Co. prevails in noise trial

Andre Salvail
The Aspen Times

A six-person jury took about 10 minutes Wednesday to decide that Aspen Brewing Co. was not guilty of violating the city’s noise ordinance last summer.

The city of Aspen’s case against the local brewer was based on three separate citations alleging that live music in the company’s East Hopkins Avenue tasting room exceeded maximum allowable sound levels on two occasions in August and one in September. The restaurant-row area where the bar is located is zoned as commercial, and the noise limit after 9 p.m. is 60 decibels, a restriction many musicians and downtown business owners view as ridiculously low for a town that thrives on tourism and nightlife.

The city’s allegations stemmed from numerous complaints last year by Michael Sedoy and Natalia Shvachko, who reside in a penthouse in the Ute City building adjacent to the space that houses Aspen Brewing Co.’s tasting room. Attorney Lucas Van Arsdale, who represented brewery owner Duncan Clauss at trial, said during closing arguments that the couple phoned police 23 times between late December 2012 and early September to complain about the sounds coming from the club.

Van Arsdale said that while the city technically lost at trial, both the city and brewery can claim victory.

“We think this was a win for the city,” he said after the verdict was announced at 4:30 p.m. Wednesday. The Aspen Municipal Court trial — the first in at least five years, according to Judge Brooke Peterson — began at 9 a.m. with jury selection.

“It shows that the citizens of Aspen believe that it’s reasonable for businesses on restaurant row to do business the way they’ve always done business,” Van Arsdale continued. “This case was about reasonable doubt. The evidence showed the brewery wasn’t unreasonable, and they weren’t too loud. That’s what we made it all about, and that’s what the jury decided.”

Clauss said he’s glad he took the matter to trial.

“This has implications to the bigger issue at hand,” he said, referring to local outcry from nightspot owners and musicians who want the City Council to update its noise ordinance in a way that fosters vibrancy in the commercial core. “We felt compelled to fight this for the longevity of our business and the vitality of our tasting room.”

During the trial, Clauss said he had been willing to work with Shvachko to compromise on the sound issue, but instead of calling him, she and Sedoy preferred to phone police. He said after the trial that he is still willing to talk with them.

Shvachko testified that noise from the brewing company and other restaurant-row businesses has led to loss of sleep and health issues for her and her child.

“The police were doing their job, trying to enforce the noise ordinance,” Clauss said. “But I think there’s a larger issue about business vitality and that the city should revisit the ordinance.”

Van Arsdale said the trial boiled down to the city having to prove that Aspen Brewing Co. broke the law. Two police officers testified that they used decibel meters to determine that the noise — as measured from the sidewalk property line in front of the club and also inside Shvachko’s residence and on her outside porch — exceeded the limit.

Aspen policeman Roderick O’Connor said that inside the residence he could “feel” the sound rather than hear it, suggesting that the bass guitar caused a vibration on Shvachko’s wall. O’Connor and officer Kirk Wheatley said they often would first warn the workers at the tasting room about the noise but that when the complaints persisted, they resorted to citations. The meter readings they took outside the club often showed decibel ranges in the middle 60s to upper 70s, sometimes spiking into the 80s, they testified.

But upon cross-examination by Van Arsdale, both said they could not recall having to respond to a noise complaint at the tasting room before last year. Sedoy and Shvachko moved into their penthouse in late 2012.

“Reasonableness is measured by what citizens of the community, and you as representatives of the community, feel is reasonable. Not what one particularly sensitive member of the community thinks should happen for her,” Van Arsdale told the jury during his close.

Also during the trial, an expert witness for the defense, Salvatore Sidoti, who is an audio engineer for Belly Up Aspen, spoke of how decibel meters pick up sounds from all around and cannot isolate noise coming from a particular venue.

“It’s not like a radar gun,” Sidoti said.

He said he has used his decibel meter to gauge noise levels all around the city. In some houses, a level in the high 60s might be reached even with the television off and no one talking because of “mechanical noises” such as a running refrigerator and heating and cooling systems.

On restaurant row, all of the nightspots contribute toward a baseline noise level on the street that is in the middle 70s at any given time, even if live or pre-recorded music is not being played, Sidoti said.

Decibel readings on the Cooper and Hyman pedestrian malls downtown, during the day or night, register in the high 70s, just from people walking, talking and going about their normal business, he said. The city’s 60-decibel limit downtown after 9 p.m. is low and “unreasonable,” Sidoti added.

The jury also heard from another resident of the Ute City building, Leticia Hanke. She testified that noises along restaurant row at night have never prevented her from sleeping and that she “knew what she was getting into” when she moved there. She said the morning sounds of garbage trucks in the alley behind the building are louder and more bothersome than the hum of nightlife along restaurant row.

In the wake of the verdict, the city’s Environmental Health Department plans to schedule a City Council discussion on the noise ordinance sometime in the next few months.