Number Thirty Eight and Nearby Neighbors Meet to Discuss Noise Complaints, Cabaret Status

The city's never-ending Number Thirty Eight saga — which has seen a handful of neighbors criticize the indoor-outdoor venue in RiNo, which just won Westword's Best Free Entertainment award — appears to have finally hit a crescendo, with ideas for a permanent solution brought forth at an April 11 hearing.

“We're doing our best here, and we want to see a reasonable solution between us and Number Thirty Eight,” said Daniel Ritchie at the Department of Excise & Licenses hearing, where he spoke on behalf of the residents who live by the popular venue.

“But our circumstances are unique," he continued. "We have bedrooms which are closer to the stage than the audience numbers are. That is not true for any other residence or business in this area. … We're looking forward to not having this be a problem, but I do want to clarify that it needs to be clear and unambiguous.”

Some neighbors living by Number Thirty Eight, which opened in 2020 at 3560 Chestnut and won the Best New Venue award a few months later, have complained from the start that music can be heard late at night, and sometimes even shakes their homes.

At the latest hearing, both sides of the sound war presented testimony arguing for changes to Number Thirty Eight's cabaret license in hopes of finding a middle ground between what the business needs to operate and what neighbors need to be comfortable in their homes — and they finally appear to be on the same page.

Macon Cowles, the Denver hearing officer who oversaw the proceedings, is expected to issue a recommendation in the coming week.

When Number Thirty Eight applied to renew its cabaret license in 2021, neighbors lodged a complaint alleging that noise from the venue was ruining their quality of life. Paul Riedesel, the City of Denver's noise and acoustic expert, measured noise from a concert in June 2021 and found that the peak noise measurement reached 76.7 decibels.

That’s about three times what's allowed by Denver's noise ordinance.

In February 2022, Cowles recommended that the venue lose its cabaret license. However, Molly Duplechian — executive director of the Denver Department of Excise & Licenses — decided on May 5, 2022, that Number Thirty Eight could keep it, with restrictions designed to combat the problems for neighbors.

Those restrictions specified that Number Thirty Eight could only host live music with drums indoors, as long as its doors and windows were closed. It also declared that the venue must finish construction on a wall to provide a sound barrier before hosting acoustic music outdoors.

But in a letter sent to Duplechian on May 11, 2022, residents claimed the venue had violated those new terms.

The city and Number Thirty Eight settled those claims in September 2022. The venue wound up paying a nearly $2,000 fine, had its license suspended for six days in November, and admitted to thirteen violations of the conditions Duplechian had instituted on its cabaret license.

The April 11 hearing stems from Number Thirty Eight’s October 2022 request for a modification of its cabaret license, asking that the license specify that its garage doors can be open when bands playing indoors don’t have a drum set — or when recorded entertainment like TVs and background music is played through its sound system. It also asked that live entertainment without drums be allowed outdoors if performers use the venue’s sound system, which was designed to fit within Denver’s noise ordinance under a sound plan Number Thirty Eight developed over the past year.

This was a continuation of a hearing that began on January 9, but Cowles then asked for more evidence that Number Thirty Eight would be able to abide by the city's noise rules as spelled out on the conditions attached to its license.

Between then and this week's continuation of the hearing, liquor-license attorney Robert Runco worked on behalf of the venue to create a solution that would work for both the facility and nearby neighbors.

Should Runco’s proposal move forward, the venue's sound wall will not be removed or modified without notice to neighbors or a public hearing; the volume-limiting sound system — which the venue has installed to ensure its amplifiers don’t allow noise over the noise ordinance — will not be removed or modified without notice to neighbors or a public hearing; all garage doors separating the outdoor and indoor parts of the venue will be closed by 10 p.m.; and outdoor entertainment will end by 10 p.m.

“At this time, the request would be to remove the current conditions on licensees’ cabaret license and replace them with these,” Runco said. The license would also specify that Number Thirty Eight must abide by the Denver noise ordinance.

“I'm likely to add another one, which is that the applicant comply with the sound plan,” Cowles noted.

Ritchie, whose rooftop deck overlooks Number Thirty Eight’s outdoor stage, requested that a few additions be made to those conditions to make the plan more secure for himself and the other impacted residents. “We do want to be very careful about the specific language that's being used,” Ritchie said.

He asked to have all windows and doors, in addition to the garage doors, be closed by 10 p.m. He also asked that the license address noise other than live music. “Our experience has not been limited to live music,” he said. ”In fact, the primary concern that the neighbors have had — in addition to live music, but the primary concern — is the pre-recorded music.”

Cowles noted that pre-recorded music must also go through the noise-limiting electronic system in the plan.

Mat Bauer, an audio-visual expert who consulted with Number Thirty Eight on that system, explained that as of January, both of the venue's stages were equipped with a system that will keep sound below noise limits. Even if the venue wanted to make the noise louder, it physically can’t.

“We set a value, and the electronic signal going to the amplifiers cannot exceed that value, no matter what,” Bauer said. “That limiter exists in a digital signal processor that is password-protected. You would have to really know what you're doing to access it. You would have to have the password in order to access that and change it. … At the direction of Number Thirty Eight, we were to set the limiter alongside the city and then throw away the key.”

According to Bauer, he's the only one who can change the limits — which apply to any noise that goes through the venue’s system, including pre-recorded music and TV noise. In cross-examination, Ritchie made it clear that it’s important to the neighbors he was representing that this sort of ambient noise also go through the limiting system.

Ritchie added that should the sound wall on the edge of the venue somehow break, outdoor entertainment should stop until it is repaired or replaced. Runco said Number Thirty Eight would be all right with that, as long as it was only in the case of substantial damage.
One area where Number Thirty Eight and the neighbors still disagree: whether the license should specify that all indoor entertainment cease by 11 p.m.

While Andrew Palmquist — chief operating officer and co-owner of Number Thirty Eight — said the intention is for the operation to close at 11 p.m., Number Thirty Eight was not amenable to making that official. “Given all of the equipment and protocols put in place, they can still abide by the noise ordinance after 11 p.m. with those garage doors closed as included in the plan,” Runco said.

Palmquist noted that Number Thirty Eight has also invested in additional staff to manage the noise, including an in-house sound engineer. He said the venue hopes that under these changes, it can host watch parties for sporting events and play ambient music outdoors — but legally.

When it comes to music being performed outside, Number Thirty Eight is mainly looking for bands that would plug into their system rather than bringing in their own equipment.

“We know from testing, as well as just conversations…anything that uses its own amplification as a whole cannot be well contained and not well managed,” Palmquist said. “Our request is to have entertainment outside that utilizes only sound amplified through our system because we have full control over that.”

Under the venue's preferred licensing outcome, indoor bands could use their own sound system if all the garage doors are closed.

Although the venue hasn’t had any complaints since October, after it settled with the city, Ritchie said he was concerned because that time period didn’t include the summer months, when more problems tend to occur during patio season.

In his closing statement, Ritchie asked Cowles to consider that the neighbors aren’t trying to force Number Thirty Eight out, and are just people who want to live comfortably in their homes.

“We want this to be long-lasting, as do many people who have spoken today, a long-lasting asset to this neighborhood,” Palmquist said. “Any discourse and conversation about how things can be improved, mitigating impact, things that even fall outside of the cabaret license, we want to make sure we have an open dialogue for those so that we are successful as well as people are comfortable and safe in their homes.”

According to Cowles, testimony had indicated that Number Thirty Eight will be able to comply with Denver’s laws if it keeps its noise plan in place. After comparing Runco and Ritchie’s proposals, he will issue a recommendation within a week.

“I will be recommending some hybrid version of those, taking into account the evidence that has been provided on both sides,” Cowles said. “I'm just going to have to carefully consider the evidence and come up with the conditions I think that are supported by the evidence.”

After Cowles issues his recommendation, Duplechian will make the final decision about license conditions.