Noise ordinance controversy continues in federal court system

Chelsey Fisher

Since March, owners of Boone Saloon and Char are working to find middle ground with the town about the noise ordinance that was passed in February. Although, the owners began trying to sue the town on March 22, they’re still working to compromise.

Currently, the noise ordinance restricts sound measured at or within 10 feet of a venue’s property line to 70 decibels from 10 p.m. to 12 a.m. Friday and Saturday evenings and to 60 decibels from 12 a.m. to 2 a.m. Saturday and Sunday mornings. On weeknights, the standards are 70 decibels until 11 p.m. and 60 decibels after that.

Co-owner of Char Colton Lenz said Char wants the ordinance to be complaint-based instead of the current decibel level-based.

A temporary restraining order and preliminary injunction has been filed, to keep the town from imposing penalties for violations of the noise ordinance until its validity can be determined, Anné Wright, attorney of Walker & DiVenere who represents Boone Saloon and Char, said.

“We feel that the enactment of this ordinance was unconstitutional on many different grounds,” Wright said.

Wright said their clients want the ordinance to be overturned and that their rights be protected.

The original action filed was a petition for writ certiorari to the Civil Superior Court of Watauga County. The case moved to federal court where it is still pending, Wright said.

“We felt like the noise ordinance, as it stood, didn’t meet the needs of the town in the terms of its cultural diversity and our ability to play music at a reasonable level,” Lenz said.

The current decibel levels are too low, Lenz said.

Boone Saloon and Char sued the town during the trial period, which began in March, and sought to test if live music in Boone was able to adhere to decibel levels provided, Sam Furguiele, the town’s attorney said.

During the trial period, fines could not be issued.

The town filed a motion to dismiss the case, which is still pending, Furgiuele said.

“You want a vibrant music and business community, but you also want people to be able to live in the community and have some peace,” Furgiuele said.

During the seven months of revisions and discussions of the noise ordinance, accusations were made that the town wanted to eliminate live music, Furgiuele said.

“That is utterly nonsense,” he said. “No one on town council expressed any interest in stopping music.”

The town voted 3-2 in February on the noise ordinance.

After four written warnings, subsequent violations of the ordinance result in $100, $200 and $500 fines.

The suggestion for decibel levels came from one of the owners of Boone Saloon, Furgiuele who drafted the ordinance said.

Previous modifications to the noise ordinance did not include decibel levels, he said.

 

Story: KELLI STRAKA, News Reporter