Number Thirty Eight at Risk of Losing License Over Alleged Noise Violations

Number Thirty Eight, a popular RiNo music spot that won Best New Venue honors in Westword's Best of Denver 2021, could soon lose its liquor and cabaret licenses over alleged violations of a noise agreement with the city.

"The licensees at Number Thirty Eight, they're doing this to themselves," says Tom Downey, a liquor license attorney representing neighbors who opposed a renewal of the venue's cabaret license. "I'm thrilled for the neighbors who have had to put up with so much, and hopefully they're finally getting justice here."

On September 15, the Department of Excise and Licenses sent a show-cause order to the three co-owners of Number Thirty Eight — Spencer Fronk, Andrew Palmquist and Brad Arguello — that informed them they had to appear at a hearing on October 14 to argue why the venue at 3560 Chestnut Place shouldn't lose its dance cabaret and hotel and restaurant liquor licenses.

According to the department, it sent out the order because Number Thirty Eight had violated the terms of a noise agreement with the city on at least fourteen occasions.

"As we’ve done for the past seven months, we’re continuing to work in partnership with the Denver Department of Excise and Licenses and our neighbors to find resolution so we can continue to offer a unique gathering place for our RiNo community, Colorado residents and visitors," Palmquist says in a statement.

Under an order issued by Excise and Licenses executive director Molly Duplechian in May, Number Thirty Eight can only host live amplified musical performances and acts with drums indoors, when the venue's windows and doors are shut. Before there are outdoor performances, the venue is required to finish construction on a cement wall to help with noise mitigation, according to the order. Once that wall is completed — and the owners say that it's finished — Number Thirty Eight can host acoustic music outdoors, but still cannot offer amplified music or music with drums outside.

The ruling by Duplechian came after neighbors complained about unbearable — and, at times, illegal —noise levels emanating from Number Thirty Eight, which opened in October 2020. The noise that drew the ire of neighbors came from both live performances and also pre-recorded music played through outdoor speakers at the 31,000 square-foot venue.

The May order overrode a recommendation by Macon Cowles, a hearing officer hired by the City of Denver, who'd concluded that Excise and Licenses should not renew Number Thirty Eight's cabaret license.

The handful of neighbors who had originally complained to the city about the noise and opposed the renewal of Number Thirty Eight's cabaret license were unhappy with the Duplechian's ruling, and continued monitoring the venue, checking for alleged violations of the new agreement. They soon found some.

"Less than three days later, Sunday, May 8, Licensees played pre-recorded music, amplified through indoor and outdoor speakers on the licensed premises, while the garage doors were open. The blaring music disturbed the neighbors, as it has done for the last twenty months," Downey wrote to Duplechian.

The latest show-cause order notes that violations were observed and reported by various residents on four occasions in May.

"Furthermore, it should be noted that on June 3, 2022, Respondent and their counsel met with staff from the Department as well as the City Attorney’s Office to discuss permissible conduct. At this meeting, Respondent was specifically told they were not permitted to amplify music over their outdoor sound system in any fashion. Nevertheless, nine (9) of the alleged violations occurred after this meeting," Duplechian wrote in the September 15 order.

"The neighbors have never been anti-music or anti-commercial. They wanted this vibe. They wanted this to be here. [Number Thirty Eight] just never constructed the way they were supposed to and followed the rules the way they were supposed to," Downey says.

The worst-case scenario for Number Thirty Eight would be a full revocation of its licenses to offer live music and serve alcohol. An alternative would be a temporary suspension of the licenses.

After the October hearing, an administrative officer will issue a recommended decision. But Duplechian will again have the final say on the matter.

Read the full order below: