In February, a hearing officer had tossed the citation and accompanying $250 fine that the Denver Department of Public Health & Environment had handed Wax Trax last fall, saying that the department had failed to produce evidence that the complainant — there was only one — or anyone else had been harmed by the free shows last summer. But the city appealed that action, and during a May 11 hearing before the DDPHE's board, both the citation and the fine were reinstated — even though the complainant did not make an appearance. Again.
"The department is pleased with the outcome of the hearing," says DDPHE spokesperson Amber Campbell, "and believes that this decision may have lasting effects on witness participation requirements for future noise hearings."
But Pete Stidman, manager of Wax Trax and son of co-owner Dave Stidman, thinks that the board's action could backfire.
"You can't cite an administrative hearing as a precedent in any kind of court I've ever heard of," Stidman says. "It's not a thing. But the city is accelerating this to a place where a precedent could be set a couple of appeals down the road."
And yes, Stidman and Wax Trax plan to appeal — to Denver District Court.
The roots of the controversy can be traced back to the pandemic. Stidman, a former city planner for communities in the Boston area, moved back to Denver on March 3, 2020, shortly before businesses citywide were ordered to close in an attempt to slow the spread of COVID-19. Even after Wax Trax was allowed to reopen, most concert venues remained shuttered — so Stidman launched a series of free Sunday afternoon gigs (they typically ran from 1 to 3 p.m.) designed to give people a chance to see live performances again.
The events became weekly in 2021, running from May to October that year and the next, with two or three groups typically playing 45-minute sets — and the feedback Stidman received from residents was positive, he says.
But there was a notable exception. The "Allegations" section of the noise complaint, filed in September 2022, included a quote from an anonymous neighbor griping about "punk band concerts playing on the sidewalk with full drum kits, amps and band performance. The concerts go on for hours and now every weekend that shakes the windows to our apt across the street. I've been patient and can handle loud music, but it's escalating and moved to weekly instead of monthly. It triggers migraines with how loud it is since they're right outside in a residential area. The cherry on top is that often these bands are playing to a crowd of less than 10 people and instead just cause hours of hell every weekend for their neighbors."
Wax Trax received a citation from the city the next month, asserting that an inspector had measured the sound level at a show at 76 decibels, considerably over the 55-decibel limit established in Denver's current noise ordinance. However, Stidman contends that ambient sound in the part of Capitol Hill that Wax Trax calls home averages 58.5 decibels on its own, and he questions whether medical data supports the notion that loud music can cause migraines. Just as important, he says, the shows had taken place for two years without generating a single gripe prior to the complaint that led to the citation.
Juliet Mission playing outside Wax Trax in June 2021.
Courtesy of Wax Trax
The board's May 11 meeting was its first since the previous November, and the Wax Trax case was one of the few items on the agenda. Moreover, the session had been changed from in-person — a format Stidman preferred — to Zoom, with only a day's notice.
Since the board doesn't comprise legal experts, Stidman admits that he expected it to rule against Wax Trax. But some of the exchanges still left him slack-jawed, he says, including one boardmember's argument that since evidence doesn't have to be presented in work settings in order for a human-relations department to mete out punishment against employees, the department shouldn't be required to present it, either.
Stidman, who emphasizes that he is only calling for evidence of harm and not demanding witness testimony, hopes for a more reasoned analysis in an actual court of law. But while he plans to appeal, he's also working with Denver officials on a revision of the noise ordinance.
"We recently completed two additional public stakeholder meetings, focused solely on recreational activities," says the DDPHE's Campbell. "The current noise ordinance does not speak to recreational activities specifically. Therefore, the intent of the meetings was to gather input about all types of recreational activities that occur in various settings."
Adds Campbell: "As we work to inform updates to a revised ordinance, it’s important we hear from residents about a variety of noise-creating activities. We hope to advance it and bring the proposed revisions before city council for a vote before the end of the year."
According to Stidman, one of the proposals involves the current ordinance's exemption for festivals, which allows the decibel limits to be exceeded for specific events; it "would change to allow for a series of shows, where you could do four shows in a three-month period — and then do it again and again all year," he notes.
To that end, Wax Trax is now staging shows at different settings over the course of a month, with one Sunday performance on the sidewalk, the next inside the store, and two others at Bang Up to the Elephant!, a vegan restaurant at 1310 Pearl Street.
Forcing businesses like Stidman's to navigate festival paperwork doesn't strike him as the ideal solution, though. "I wish they would create an exemption that was more based around free, DIY-type events that wouldn't require us to go through a permitting process," he says. "But if we can do it, we'll do it. We're trying to be good citizens here."
Still, he feels that continuing the fight over the noise complaint, and pressing the city to provide evidence that actual harm was done, is a worthy cause. "And if it sets a precedent," he concludes, "it'll be because of them, not us."
