News Column

Residents file complaints on restaurant's outdoor music

May 24, 2014

By James Draper, Kilgore News Herald, Texas

May 24--The ongoing dispute between the Back Porch restaurant and its neighbors escalated further this week after two homeowners filed criminal complaints against the restaurant, alleging its live music violates the City of Kilgore's noise ordinance.

The latest development in a voluble back-and-forth of about four years, the filings spotlighted a potentially problematic typographical error in the city code.

A violation of the noise ordinance is misdemeanor offense punishable by a fine of up to $500. Back Porch owner and operator Jackie Clayton says he'll fight the matter -- but for one instance, long-resolved, he hasn't violated local noise restrictions, and he won't simply submit to a select group's criticism.

"What are they going to fine me over? I'm going by the laws of our city. They have set a decibel reading. I follow that. I follow that every week," Clayton said, countering ongoing complaints by neighbors Edward Petty and, in particular, Charles Woods. "What right does he have to file that on me?"

Woods, who could not be reached for comment Thursday, regularly calls the Kilgore Police Department when bands take Clayton's outdoor stage, sometimes making complaints several times per night.

Appearing before the Kilgore Planning & Zoning Commission on a related issue Thursday morning (see separate story, above), Woods said the restaurant's music, whether it is measured in violation of decibel restrictions or not, disturbs the "peace, comfort and repose" of its neighbors, language pulled from the noise ordinance.

"Your peace and repose is your sleep at night," he said, thumping on the podium to illustrate the bass beat that reaches his walls. "Can you sleep with somebody beating on the outside of your house?"

Responding to Woods' calls and taking decibel readings near the Back Porch, Kilgore police officers have once cited Clayton for a noise violation, last August. The measurement registered at 92, seven decibels above the maximum allowed between 10 p.m. and 7 a.m. when measured 50 feet from the source's property line.

According to Kilgore Municipal Court Judge Glenn Phillips, Clatyon resolved the matter in consultation with city prosecutor Angie Konczak.

"They had a reasonable conclusion," he confirmed Thursday. "Mr. Woods was involved in that."

According to Clayton, the ultimate resolution to the misdemeanor violation was the construction of a gateway, at his expense, across the opening of a gap between the former Kilgore Crisis Center building and adjacent commercial properties on Broadway Boulevard, dampening the noise that enters the space behind Woods' home.

Instead of the $500 maximum fine, "I built a $1,400 door in that alleyway. He said 'OK,'" Clayton said. "The day it was finished, he walked up in the alley (and said), 'It's a mighty fine door, they did a good job, but I can still hear the music.'"

The already-resolved violation from August falls in the same period as the fresh complaints filed this week -- Woods, filing Wednesday, restricts the alleged noise violations to July 9, 2010 through April 11, 2014 while Petty's complaint, filed Thursday, encapsulates the entirety of 2010 through 2014.

Putting a call in to his attorney Thursday, "I don't know what I'm going to do yet ... I'll fight it as best I can," Clayton said. "I've done things that were supposed to have been approved by the court and (Woods) agreed on it last year. We haven't done anything to cause us to have another ticket this year and yet he's still doing what he does."

Per the summons issued Wednesday, Clayton is scheduled to appear before the city's municipal court at 7:30 p.m.June 2.

A pre-trial hearing to organize the case, Phillips allowed the appointment hinges on Clayton's decision: he could choose to plead guilty and accept up to a $500 fine, for one. He might request a jury trial.

A criminal issue, the city is prosecuting the matter, Phillips emphasized. After filing their complaints, Woods' and Petty's involvement will be as witnesses as necessary.

"It's an interesting situation," Phillips mused. "You have a business that is successful, provides what appears to be a needed service in this community, but you also have residents in their homes who appear to have some distress with it."

Complicating the issue is the current wording of the ordinance, adopted on Aug. 9, 2011: Under 'Prohibited Acts,' number one is "Operating or permitting to be operated any radio receiver set, musical instrument, television, phonograph, car or other stereo, CD or tape player, drum machine or other such device at a level in excess of 85 decibels at a distance of 50 feet from the property line particularly between the hours of 10:00 p.m. and 7:00 a.m. in a manner than unreasonably disturbs or interferes with the peace, comfort and repose of people or ordinary sensibilities in the vicinity."

Konczak pointed out an apparent typographical error, Phillips explained: the final "or" of the section was "of" in the previous version of the ordinance.

"You can tell they meant to put 'of' but they put 'or,'" he said, as in similar ordinances in other communities.

While the court has original jurisdiction over the city's ordinances to hear cases, correcting the troublesome typo falls to Kilgore City Manager Scott Sellers and the votes of Mayor Ronnie Spradlin and the other members of the Kilgore City Council.

For now, the ordinance is what it is: the misplaced 'or' muddies the issue beyond the two-pronged qualification of a violation.

In addition to the objective, measurable 85-decibel limit, "As it's written, you have a second test," Phillips said, the "peace, comfort and repose" Woods and Petty contend is being disturbed.

It's vague, Clayton contends.

"It's like, what's peace to one is not peace to another," he said. "It's amazing we get as many people as we do that come inside to hear music and love it, but we've got one or two that don't like it. I'm stuck."

For Phillips, it's a difficult question to answer: "What are ordinary sensibilities in the vicinity?"

Before the technology evolved, "It was very difficult to measure noise," he noted. Today, with objective measuring available, "I'm told that the majority of the communities in the United States do not have the 'people of ordinary sensibilities in the vicinity,' they just have the decibel standard."

Vicinity, too, is undefined -- within range of the Back Porch are residences (occupants ranging from young families to college students and older homeowners), other commercial properties and Kilgore College's educational facilities.

"What would make things easier is if we had an ascertainable standard," Phillips said, such as the decibel-reading alone. In the end, however, "Our jurisdiction, basically, is fine only ... It's not my role to get involved in writing ordinances, obviously."


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Source: Kilgore News Herald (TX)

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