Number Thirty Eight Gets New Noise Conditions in Resolution to Years-Long Conflict

Just as the summer music season begins to heat up, Number Thirty Eight has received five new conditions on its dance cabaret license that will give both the entertainment venue and neighbors who've complained about late-night noise the chance to go about their business in peace.

Since 2021, neighbors living by 3560 Chestnut Place have said that music from the indoor-outdoor venue could be heard inside their homes late at night. Some have even alleged that beats from the amped-up tunes physically shook their apartments.

Now, the neighbors and Number Thirty Eight have reached an agreement with the city that aims to prevent those problems while still giving the music venue the leeway it needs to be successful.

"The neighbors are quite tired of this whole thing and they hope that this will lead to [Number Thirty Eight's] compliance moving forward," says Tom Downey, the attorney for the plaintiffs who used to run Denver's Excise & Licenses department. "But that is all up to them. All along, all the neighbors have wanted is to have a vibrant, engaged neighborhood that includes music, live music, people gathering. ... They attend all the other places around, it's just been Number Thirty Eight that has had issues following the rules."

Molly Duplechian, executive director of Excise & Licenses, specified in her June 2 decision that Number Thirty Eight can’t remove or modify the several noise mitigation methods it has installed without officially applying for a substantial modification through the city. It also must end all outdoor acoustic entertainment and most outdoor amplified entertainment by 10 p.m., which is when the venue is required to close its garage doors, sealing off the indoor space from the outside.

Number Thirty Eight is also not allowed to prop exterior doors open and must make every effort to ensure that doors are only open when they’re being actively used by patrons, Duplechian stated in her decision.

Furthermore, the license conditions specify that all forms of entertainment must comply with the noise ordinance and that Number Thirty Eight will follow the sound plan it developed as part of the hearing process. That plan details the methods that the venue — which earned Westword's Best Free Entertainment award this year — will take to operate under the law, and without putting an undue burden on nearby residents.

"We've been very appreciative and respectful of the Department of Excise & Licenses process during this entire ordeal," says Spencer Fronk, one of Number Thirty Eight's owners. "It's been unfortunate to have a neighbor who has expressed such concern about us and be blown out of proportion that has come with that."

Many neighbors testified throughout the course of the process, which has seen three city hearings from start to finish. Before this resolution, Paul Riedesel — the City of Denver's noise and acoustic expert — measured noise from a concert in June 2021 and found that the peak sound measurement reached 76.7 decibels. That’s about three times what's allowed by Denver's noise ordinance, though Fronk notes the venue was never cited for violating the noise ordinance.

Those problems caused Denver Hearing Officer Macon Cowles to recommend that Number Thirty Eight lose its cabaret license in February 2022. However, a few months later in May 2022, Duplechian decided the venue could keep its license with restrictions.

Her latest decision, issued on June 2, was prompted when the venue applied for a modification of those conditions last October 2022. It asked that the license specify 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. Additionally, the request 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.

The final result is the five new conditions, which largely follow what Cowles recommended on April 19 after an April 12 hearing on the new conditions.

“Taking into consideration all of the evidence, I find that the following conditions likely will enable Number Thirty Eight to provide entertainment to its customers while not violating the Denver sound ordinance,” Cowles said.

Those conditions are ultimately the same as what ended up in Duplechian’s decision, save for changes to technical wording regarding the specific entertainment that must end outside at 10 p.m., which Number Thirty Eight asked for on May 2.

"We are pleased that the Director of Excise & Licenses retained nearly everything in the original order from the recommended decision," Downey says. "My concern is that by having the definitions in their plan rather than simple, objective words, there's more subjectivity in this and they're setting themselves up to violate again."

Duplechian's decision doesn't share that concern. “The Director further finds that the conditions that will be placed on the license will ensure that the Applicant will continue to operate lawfully,” it reads.

And operate it will, with plenty of events planned throughout the summer — including NBA finals watch parties. The franchise is also planning an expansion to Littleton next summer.

"The plan is simple," Fronk says. "Continue to abide by the Denver noise ordinance and allow a thriving business endeavor to continue to provide free entertainment to its consumers."