As City Works on Noise Ordinance Revisions, Number Thirty Eight Set for Another Hearing

Number Thirty Eight, the RiNo music venue that has faced administrative action by the city over noise violations, will argue for changing some of the current restrictions put on the business at an April 11 hearing.

The Denver Department of Excise & Licenses hearing is a continuation of one that began on January 9 but was cut short when the hearing officer, Macon Cowles, asked for more documentation from Number Thirty Eight showing that the venue would be able to abide by the city's noise rules as spelled out on the conditions attached to its license.

"We are looking forward to presenting our plan, and have worked diligently to ensure it meets the standards set forth by Mr. Cowles," says Haleigh Watts, a spokesperson for Number Thirty Eight.

Since May 2022, Number Thirty Eight has only been able to host live amplified musical performances and acts with drums indoors, when the establishment's windows and doors are shut. And before any outdoor performances could occur, Number Thirty Eight had to finish construction on a wall, which the owners said they did; with that wall now in place, the venue can host acoustic music outdoors, but not any amplified music or acts with drums.

Molly Duplechian, executive director of Excise & Licenses, put these conditions on the venue's cabaret license in a ruling issued last spring, which followed complaints by neighbors about what was at times illegally loud noise emanating from Number Thirty Eight.

In the venue's application for a modification of those conditions filed in October, Number Thirty Eight asks to replace those conditions with a specification that the garage doors must be closed when bands with a drum set are playing indoors, but can be open when a band is performing without a drum set.

Other suggested modifications include specifying that recorded entertainment, TVs and recorded background music are permitted through the house system when the garage doors are open.

The application also asks that live entertainment without drums be allowed outdoors as long as performers use the house speaker system and do not bring "musician-supplied amplifiers." And it requests that recorded entertainment, TVs and recorded background music outdoors also be approved for the house speaker system.

"More succinctly stated, the only restrictions on inside entertainment are when bands with a drum set or musician-provided amplifiers perform; the performance must be inside with garage doors closed. All outdoor entertainment must be provided through the house PA system, and no drum sets are permitted outside," the application states.

The January 9 hearing did not entertain arguments for or against the modifications, as Cowles said that the application was incomplete without a formal "plan describing how they will comply by the noise code, which must be reviewed and commented upon by the Denver Department of Public Health."

Robert Runco, an attorney representing Number Thirty Eight, attempted to argue that the venue had submitted documentation showing a plan and would expand upon that during the hearing. But Cowles wasn't having it.

"A report has goals, it has objectives, it has specific parameters in it about what’s going to be observed in the operation of the facility. And in this case, I think it needs to have logbook features so that people who are operating the soundboard at Number Thirty Eight are signing off every time there’s music outside, whether they’re complying with the plan," Cowles said, before moving to continue the hearing to a later date. "I believe that we can arrive at a place where the venue can have its musicians and the residents will have peace and quiet."

Since then, Number Thirty Eight has submitted a formal plan demonstrating how it will mitigate noise issues, and noting that the venue installed an "overall limiter on both the outdoor and indoor sound system." Number Thirty Eight also had the City of Denver's sound expert and other officials come to the venue to confirm that the noise limiter was keeping noise below the legal limit, the plan states.

The 31,000-square-foot venue, which opened in October 2020, quickly won Best New Venue honors in Westword's Best of Denver 2021. But while Number Thirty Eight was winning awards, residents were complaining about noise that was so loud it sometimes surpassed the legal limit, according to measurements by the city's sound expert.

Early last year, Cowles oversaw a hearing regarding the initial complaints about Number Thirty Eight and recommended that Excise & Licenses not renew the venue's cabaret license because of the noise. But Duplechian overrode that decision, allowing Number Thirty Eight to keep its license, with new conditions in place.

The neighbors, who have been represented by liquor license attorney Tom Downey, were unhappy with that decision. And not long after the ruling came down, they began documenting new violations.

Late last year, Excise & Licenses sent a notice of potential licensing action based on the violations to the venue. The department and Number Thirty Eight subsequently arrived at a settlement agreement, in which Number Thirty Eight admitted to thirteen violations of the noise conditions attached to its cabaret license and agreed to pay a fine of $1,998 and have its cabaret license suspended on six separate days in November 2022.

The venue hopes to have some of those conditions lifted at the April hearing.

In the meantime, the City of Denver is in the process of revising its noise ordinance, and the Denver Department of Public Health & Environment held public meetings early this year to collect input from residents. According to Amber Campbell, a DDPHE spokesperson, such an ordinance update would be designed to keep up with a rapidly growing Denver.

"Referring to a situation like Number Thirty Eight," she says, "a revised noise ordinance could strike a balance between development needs and desires and longstanding residential, and vice versa. Allowable decibel levels could vary depending on what was constructed first."