2010 Spring Arts Preview — The Noise Issue: Inane regulations have prevented Sarasota from becoming a great live music town, but the times might be a-changin’
Published in Creative Loafing Sarasota, January 27, 2010
In 1996, Phil Dasher, at the time president of the Condominium on the Bay Association, was determined to have noise from The Quay, a now-demolished outdoor mall across from the condos, shut down. After the nightclub In Extremis opened, Dasher says the area quickly went downhill. “There was rape, robberies, riots,” he says. The city — which had regulations about how loud venues could get — didn’t do much to help. “The city at the time had noise ordinances that were subjective and objective. Neither of them worked. The police weren’t interested in enforcing them. What’s loud and raucous to a policeman who is 25 years old is a lot different than how the older people think,” Dasher says.
Dasher lodged hundreds of complaints about noise emanating from The Quay. Little did he know, his effort to shut down one rowdy nightspot would have far-reaching consequences for the city of Sarasota for more than a decade to come. The restrictions the city implemented at least partially as a result of Dasher’s campaign (commonly lamented simply as “the noise ordinance”) have put countless local musicians out of work, handcuffed local businesses’ efforts to draw crowds and harmed Sarasota’s reputation as a destination amongst younger tourists.
Not that Dasher cares. “Let me tell you something: There’s a great deal of difference between culture and tribalized behavior,” he says. “‘We need music,’ ‘we need,’ ‘we need,’ and I just don’t buy it. Mattison’s has been very successful. I’m not thrilled with al fresco dining but he’s entitled to make money and have a nice operation, but noise at the expense of thousands of residents? It’s not Orlando, or Tampa, or St. Pete.”
It’s not. But it could be. And after more than a decade of arguments, citations and lawsuits, both the City and County Commissions are currently rethinking how they regulate entertainment, and a popular upswell is pushing for change. With Suncoast music talent at an all-time high, musicians, fans and promoters are starting to get organized after years of defeatism.
Right now is the most promising moment for fans of live music in a long time. But that begs the question: How did we get here?
ON SEPT. 13, 1996, the Bradenton Herald ran a column with the headline “Ordinance Could Lead to Lame Bar Scene in Sarasota,” addressing rumors that had been buzzing for weeks. The story revealed that the Sarasota City Commission had asked Mark Singer, an attorney in the Sarasota City Attorney’s office, to draft a noise ordinance that would place time constraints and/or decibel limits on live music. The proposed changes originally were designed to only affect downtown and The Quay, after condo residents in those areas complained about noise — the majority coming from Dolphin Towers and Dasher’s residence, Condominium on the Bay. According to the Herald, the commissioners wanted to be “very deliberate” about setting rules for how long and loud bands could play and how cops would enforce those rules.
Local musician and audio engineer Gary Drouin decided to strike back. He quickly founded Save Downtown Outdoor Music (SDOM), bringing together fans of outdoor music to encourage the city to craft an ordinance that was fair for everyone. “Instead of the city wanting to work, they just wanted to throw the baby out with the bath water,” says Drouin. “We actually got two more years out of those venues by fighting it.” Drouin’s grassroots organization, fearing an all-out ban on outdoor music downtown, collected 1,500 signatures within weeks.
While support from music fans was abundant, Drouin was surprised and troubled that few area musicians and bands came forward to help with the effort, or even sign the petition. Still, he invited music lovers from across the area to come to shows at the Main Street Depot (then located where Mattison’s City Grille now sits) the weekend before the first reading of the proposal to sign the SDOM petition and to pick up a bright yellow promotional button. Drouin wanted to see Sarasota adopt an ordinance similar to St. Pete’s, which stipulates that residents must sign a complaint form to keep them from filing multiple times, and that the decibel level must be exceeded at the location of the person complaining — not at the offending nightspot’s property line.
On Oct. 21, 1996, the commission held its first public reading of the propsal. Then-Vice-Mayor Gene Pillot began the citizen’s input portion of the meeting by reading Drouin’s letter on behalf of SDOM. He called it “the most eloquent” letter he had received as a political figure.
More touching testimony came from 52-year-old musician B.C. Hathaway, who was fired from his regular gig at a Quay venue after one man’s (presumably Dasher’s) complaints became a nuisance to the venue owner. The move stripped him of $10,000 in yearly income. “That’s the danger” an unfair ordinance might bring, he told the commissioners. The meeting ended with citizens on both sides agreeing that the key was to “work together.”
CONDO OWNERS SEEMED willing to reason in the beginning. The minutes of an August 1996 commissioners meeting show a representative of Dolphin Towers saying residents there would not mind a 78-decibel limit. But after the city’s paid noise consultant, Ian Caddie, suggested a 70-decibel limit later that year, Dolphin Tower residents said that was too loud. “In my opinion, what I would like to see accomplished is the banning of outdoor music,” Dolphin Towers penthouse owner Chuck Stender said to the Sarasota Herald-Tribune at the time.
Working almost single-handedly, Drouin turned SDOM into a nonprofit, hired attorney Regina Tebrugge and threw numerous benefit concerts held at The Gator Club, Lemon Coast Grill (where Hyde Park now resides) and Main Street Depot, during the months leading up to the May 5, 1997 public hearing on the proposed ordinance. That hearing turned out to be one of the longest and most attended in commission history. The room’s 200 seats were filled, and 50 more attendees stood in the back, all while SDOM orchestrated a rally in front of City Hall.
Even with such vocal support, Tebrugge didn’t feel confident about their chances. “It became apparent to us that it had already been decided before the hearing,” she says. “I just had that feeling.” Drouin had spent weeks researching how sound traveled from the Main and Lemon music venues and presented his findings to the commission. “I did all of that research. If a band was playing at Main Street Depot at 105 [decibels], by the time it traversed 1,000 feet to the condo it had dropped to 65 [decibels]. I would stand in front of the band and then take a reading from the parking garage. My research showed that the volume of the bands did not increase ambient noise level, but they totally disregarded anything I had to say, just like Gina said they would.”
Tebrugge argued that Sarasota’s restrictions would be the harshest on Florida’s west coast, and Drouin presented a music demonstration in which different musicians played 28 seconds of “Amazing Grace.” All instruments, not amplified, hit a decibel reading of more than 70. When a solo violin registered 73 decibels, an elderly man in the room shouted, “Oh, that can’t be! They probably rigged the meter!”
After more than four hours and arguments from over four dozen people, the Sarasota City Commission voted 4-1 to set levels for outdoor amplified music downtown at 70 decibels, with music required to stop at midnight on Fridays, Saturdays and holidays, and at 10 p.m. every other night. Readings would be taken from the offending business’s property line.
Then-City Commissioner and current County Commissioner Nora Patterson had motioned for the 70-decibel limit. “The city sound ordinance is not the same as it was when I was there,” says Patterson. “We set a decibel level with Ernie Ritz [who owned Main Street Depot]. Now it’s more restrictive and more restrictive than the county as well.” After the vote, the commission discussed complaints from Lido Key residents about loud music at Cha Cha Coconuts and other venues, and asked the city attorney to write a noise ordinance for St. Armands Circle, as well as examine the usefulness of restrictions in other areas of the city.
SARASOTA’S NEW NOISE ordinance went into effect on May 19, 1997; it didn’t take long for enforcement to begin.
Police issued seven noise citations by the first week of June, four to Main Street Depot and three to Lemon Coast Grill, two of those apparently due to noise from patrons. Lemon Coast’s owner told the Herald-Tribune that on two consecutive nights the bar was cited there was no live music playing, and the venue had even turned the stereo off to quell noise on the second night. Owners of both Lemon Coast and the Depot conducted their own sound tests and disputed the validity of those done by police. The commissioners acknowledged that the ordinance needed some work at a June 10 meeting, and voted unanimously to bring back Caddie for further tests, noting that ambient noise alone downtown often hit more than 70 decibels. But after one commissioner’s motion to temporarily raise the limit to 76 decibels failed on a 3-2 vote, the commission decided the law would stand until the new tests were completed.
A month later, on July 10, the owners of Lemon Coast Grill filed a lawsuit against the city, asking a judge to declare the noise ordinance unconstitutional because it violated the venue’s property rights and right to free speech, and selectively targeted downtown businesses. The suit also alleged that the city failed to give proper notice to the public. Lemon Coast had been cited six times at that point. It was located more than 1,000 feet from any residences. Commissioner Patterson was quoted in the Herald-Tribune saying that if the bar had been “more cooperative” with the city, there would have been no need for an ordinance. Drouin agrees: “It started out very innocently and then Lemon Coast opened. That was the problem. They basically gave the finger to the city and the city got mad.”
After the court ruled the city hadn’t followed proper procedures before the ordinance was implemented, Sarasota’s city attorney revised it, and unveiled the new proposed changes at a Dec. 9 public hearing. A month later, the city commission voted 4-1 to adopt the revamped noise ordinance, which raised the decibel limit to 75, established a panel of five business owners and five residents tasked with studying the noise problem, and instituted new restrictions for St. Armands and Newtown. A second ordinance prohibiting “unreasonable noise” after specified hours was also approved.
By summer 1998, downtown Sarasota had all but returned to the ghost town it had been a decade earlier. After years of revitalization, during which downtown had developed a reputation as a place for great live outdoor music, the businesses and the people vanished. The Main Street Depot closed on July 4 after the city negotiated a buyout with owner Ernie Ritz. Lemon Coast closed a few months later because of their battle with the city over the noise ordinance — they spent too much money fighting it — and thinning crowds. The newly built Hollywood 20 movie theater brought the masses to the east end of Main Street, but the west end of Main, a vibrant pedestrian hub only one year earlier, was a void. For the city that meant less tax revenue from businesses; for musicians that meant fewer places to find work. The condo owners had gotten their wish. Downtown was quiet.
Over the next two years, the city noise ordinance would draw two more lawsuits, one from Arthur Daley, a Newtown restaurant owner who was cited for having his doors open, the other from Sarasota Blues Festival organizer Barbara Strauss after she was ticketed for the annual concert. In both cases, the judge ruled the ordinance unconstitutional and dismissed the charges.
“After the ordinance went into effect I was contacted by musicians that were losing their gigs because there were no longer places to perform,” Tebrugge remembers. “That ordinance pretty much banned outdoor music. We tried to sway the commission to come up with something reasonable.” She says the issue wasn’t just volume. “I think it was more the type of music. I believe that was part of what bothered the people in the condos.”
Drouin dissolved SDOM because he said no one seemed interested in fighting anymore. “My effort is over,” he told the Sarasota Herald-Tribune in an Aug. 23, 1998 article. “We gave people plenty of opportunity to rise to the occasion. I am disappointed; I didn’t believe it could happen.”
MEANWHILE, OUTSIDE THE city limits, Sarasota County was tossing around some noise ordinance changes of its own. Two rules restricting entertainment had been in play since the 1970s. One was a vague sound ordinance that didn’t include stop times or decibel limits. The other was an entertainment ordinance, which restricted all forms of entertainment after 10 p.m. for establishments lacking a special exception. The Sarasota County Code of Ordinances currently defines “entertainment” as “live vocalists, musicians, disc jockeys (whether speaking or not), comedians, karaoke, performers (paid or otherwise, including contestants) and the like, provided at a bar, restaurant, nightclub or other similar commercial establishment also providing food or beverages.”
For decades, this entertainment ordinance had been rarely enforced. But as the Siesta Key Village started to become more lively and popular, some nearby condo residents began to complain about noise from the crowds and bands at the Ocean Boulevard beach bars. The ringleader of those residents was Peter van Roekens, then president of the Terrace East Condo Association. “It started when the bars started expanding on Siesta Key,” says van Roekens. “It used to be the bars were small places and didn’t have bands and such. Over the years it’s grown, but it really got out of hand around 2002.”
After the City Commission panel completed its two-year quest to study the city’s noise problems, the commission voted to adopt a new “sound” ordinance, which would extend the rules citywide and regulate noise on the “C” scale (low-end bass sounds) along with the current “A” scale restrictions. Van Roekens wanted to see this change, and the city’s point of measurement rule, be adopted by the county as well, which they eventually were.
“I knew the county ordinance at the time measured all sound at the receiving property, and basically the County Commission said, ‘No problem,’” says van Roekens. “I presented [the generating-point argument] to them and they didn’t listen, but [County Commissioner] Nora Patterson was the one who started to see there was a problem, and that we should change the ordinance to measure at the generating point. If you measure at the receiving point everybody points fingers, so I had it changed to the generating property line.”
Troy Syprett — who purchased Daiquiri Deck in 1993, the Speakeasy (then Peanut Gallery) a year later, and Siesta Key Oyster Bar and Pastimes Pub (then Octave) shortly after that — carries fond memories of Patterson and van Roekens’ appearance on the Village scene. “The first thing that occurred when Nora Patterson came into office [as a County Commissioner, after her time on the City Commission] was they created an ordinance that limited outdoor dining so you could only have outdoor dining and drinking until 10 p.m.,” says Syprett. “It’s a rule that’s still on the books, but the county will say they’ve never enforced it because nobody complained.”
Between 1996 and early 2000 business had steadily risen at Syprett’s Village establishments, and he was enjoying an influx of new patrons. “Then in the early 2000s, the next set of people moved into Terrace East, including Peter van Roekens,” Syprett says. “At that point the county recognized that they had an ordinance on the books that they hadn’t been enforcing.” That decades-old, ever-ignored set of regulations was the county’s infamous entertainment ordinance. “At that point the county said all the businesses had to have special exceptions if they were having live music. It had nothing to do with entertainment, just capping noise of activity from people.” Patterson agrees: “The purpose of it is not to allow too much attraction to one small area.”
Syprett was granted special exceptions (that still stand) for all the properties he owned except Daiquiri Deck. He withdrew that application for fear of denial. “The thing that is important with the sound ordinance is whether you measure at the point of origin or receiving property,” says Syprett. “Most communities measure at the receiving point. If a tree falls in the woods and nobody hears it does it make a sound? If a business is making noise and nobody is complaining, should they be in violation at the generating point? The problem is there are multiple factors that can impact how sound and noise travel, from ambient background noise, to the humidity in the air, the direction of the wind, the direction of the music, if you’re [measuring] A or C [scales], so it’s not something that’s black or white. You’re dealing with a lot of gray.”
IN 2004, THE county cited Siesta Key hotspot Gilligan’s for violating the revived entertainment ordinance. The code had originally stated that prerecorded music was allowed anytime, so Gilligan’s interpreted that to mean a DJ was OK as long as he or she didn’t talk. Code enforcement officials agreed and didn’t cite Gilligan’s for three years, but they updated the rules, expanding the definition of “DJ” to include the wording, “whether speaking or not,” and the language allowing prerecorded music was omitted. Gilligan’s owner Scott Smith started SaveSarasota.org to rally music lovers and collected over 1,100 signatures on a petition to present to the County Commission. Zoning Administrator Mary Beth Humpheys said the language allowing prerecorded music anytime would be reinserted into the ordinance, saying its omittance was “just an oversight.”
Smith knows how hard it is playing the county’s entertainment game, and would love to be able to provide some work for musicians: “The previous owner applied for an exemption and got denied so I didn’t even try. I bought the place with the understanding that I was allowed to have a DJ. We started getting busy and they said, ‘This must be entertaining; you can’t do it.’ Then they rewrote the law saying, ‘DJ speaking or not.’ I can’t have a microphone. We record a DJ onto a CD as opposed to speaking through a mic. We have to be able to announce last call. To have some kind of control on noise, I appreciate that. But why the hell is there an entertainment ordinance? How many musicians are out of work because I can’t hire them? This is supposed to be an arts community. How can they discriminate against music?”
One bar owner who shares Smith’s pain is Paul Duffy, owner of The Irish Rover in Gulf Gate. He is drowning in competition from neighboring establishments that have been granted special exceptions, freeing them from the entertainment ordinance. “The cornerstone of this whole organization was music — good Guinness and good Irish music,” says Duffy. “After six months we got a notice on the door.” That notice said a second offense could cost Duffy $2,500. “We were told that if we had a mime we were breaking the law,” Duffy says. “10 o’clock is unreasonable. … How do you run a business like that if you do music? It just sucks as a business owner to have sunk so much money into the business and we had our wings clipped so early. [An exception] would be $25,000 and a six-month process. We looked into laying that money out and if you don’t get it you have to sell a lot of Guinness to recoup. We’re hanging on by the skin of our teeth as it is. My partner and I do most of the music. If we were paying out to musicians we would really be in the hole.”
And Duffy’s Gulf Gate competition grew this past summer, when Boar’s Head Lounge became the second neighborhood bar after Pastimes to be granted an exception after a yearlong approval process. Each application requires the venue to put a substantial amount of money in escrow for the county’s sound tests, neighborhood surveys and other procedures, which ultimately cost the business between $5,000 and $10,000 just for the approval, with attorney and consultant fees on top of that. “We had to go in front of the county and prove that we wouldn’t infringe on any ordinance or neighborhood,” says Boar’s Head owner Ken Chester. “You’re dealing with a bunch of neighbors that say, ‘Not in my backyard.’ It’s supposed to be a town that claims to be entertainment-friendly. But those that don’t have the money can’t have entertainment. We were fortunate. We might have been the last of the Mohicans. I don’t see any others [in Gulf Gate] getting it.”
Chris Brown — who owns The Hub and Beach Club on Siesta Key — doesn’t have to worry about fighting for the right to have entertainment. After he purchased the property that was once Fandango’s and is now The Hub, he looked through county records and discovered an old special exception that was granted to Fandango’s in 1992, that allowed entertainment until 1:30 a.m. at 85 decibels. The county tried to say that it had been revoked because no live music had been played during an 18-month period after Fandango’s closed, causing the exception to lapse. But Brown was able to obtain a signed affidavit from the owner of Tropical Breeze Resort, which replaced Fandango’s, stating that they had booked live music on occasions. “They had bands for wedding parties every once in a while,” says Brown. “Thank God. If not, I’d be closing down at 10 o’clock.”
Brown’s other venue, The Beach Club, was grandfathered in, allowing the bar to have entertainment until 2:30 a.m., giving Brown the two latest cutoff times in the Village.
BUT WHO SHOULD enforce the county restrictions?
The sheriff’s office has admitted that measuring noise levels is difficult due to ambient noise from vehicles and general foot traffic in the Village. Sheriff Tom Knight has stated that it is more practical for County Code Enforcement to regulate noise. “I would probably prefer code enforcement people to do it,” says County Commissioner Jon Thaxton. “I think it’s more a code issue than a criminal issue. I don’t need a person running around with a Glock to run a sound meter. I pay a lot more to train that person for that Glock than I pay for a code enforcer.”
Both the code enforcement and the sheriff’s departments have decided to make noise violations a civil offense rather than a criminal one, and the rule can now be enforced by either department. A working copy of a civil infraction warning/citation notice is currently being passed around for public input. The County Commission will review new enforcement measures in the coming weeks.
As for outdoor music on Main Street, Mattison’s City Grille was recently forced to adhere to the 10 p.m. cutoff rule after the city received an anonymous noise complaint. Music had been going till 11 p.m. for years at the venue, in direct violation of the law. Owner Paul Mattison presented a compelling case detailing why the crackdown on live music has hurt his business to the City Commission, and the commissioners heard his call on Jan. 19, when they voted unanimously to extend his cutoff time by an hour.
The downtown landscape has shifted dramatically since the city’s first noise regulations were enacted. New condo towers have sprung up, The Quay is gone, high-end national retail shops have replaced low-budget mom-and-pop ones. In short, Sarasota’s downtown has turned into a compact urban core. And maybe it’s time for city regulations to catch up.
“There’s been such a change in the downtown environment because there are more condos around,” says Lt. Jeffrey Karr, a 24-year veteran of the Sarasota Police Department. “Now they have the Rivo and 1350 and they get a lot more complaints. You basically have people living in a business district that weren’t there years ago. I might get in trouble for saying this, but shame on people for selling condominiums without telling people that it’s an urban environment. If they’ve never lived with that before it’s going to be a shock.”
A change in regulations would help generate jobs and income, and could even convince people to move here. “If we have a number of places [bands] can play and foster creativity, that will attract young professionals,” says Vice-Mayor Kelly Kirschner. Not everyone thinks that would be a good development. “Part of the problem when you talk about young professionals is they can’t afford to live here,” says Phil Dasher, whose efforts almost 15 years ago helped silence Sarasota’s music scene in the first place. “There’s a lot of people that live in this city that want and want and want and they never pay for it.”
But Dasher’s views don’t necessarily reflect the views of leaders in other condo buildings. “To be honest, in my time I’ve only heard anecdotal things about it,” Kirschner says. “Recently with Mattison’s coming before us, it’s come up, and people from condo associations have come forward and said it is too stringent. … Hopefully we might be able to sing from the same hymnal.”