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Whiskey River InfractionsMEMORANDUM September 11, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Whiskey River- Municipal Infractions In response to a letter from Bitter Law Offices, representing Chad Streff of Whiskey River Tavern, Chief of Police Kim Wadding has provided an explanatory memo on the enforcement of municipal infractions for noise/disturbance complaints. I believe the Police Department is enforcing the law consistent with the City Ordinance and I respectfully request that Mr. Streff be so advised. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Klm B. Wadding, Chief of Police THE CITY OF DUBUQUE DATE: September 7, 2001 TO: Mike Van Milligen City Manager FROM: Klm B. Wadding Police Chief Whiskey River - Municipal Infractions INTRODUCTION: Since 1998, the Dubuque Police Department has formalized its approach in handling noise/disturbance complaints through the civil process of municipal infractions. The use of municipal infractions is used in conjunction with voluntary compliance through personal notification using personal officer contact and written correspondence. If personal and written notification does not achieve sufficient and ongoing compliance, the next step includes the issuance of a municipal infraction. BACKGROUND: With regards to the July 11, 2001 written correspondence from Joseph Bitter concerning Whiskey River 1064 University Avenue, Whiskey River was cited with two municipal infractions, the first occurring on April 20, 2001 and the second May 14, 2001. Both times officers verified the noise prior to issuing the infractions. In a follow up letter dated April 24, 2001 Whiskey River was warned about loud music on March 23, 2001. On May 14, 2001 officers again responded to a noise complaint and after observing the noise level issued the second municipal infraction. As with the first municipal infraction a follow up letter dated May 15, 2001 was again sent to Chad Streff, the owner of Whiskey River. Since that time no other municipal infractions have been issued to Whiskey River. DISCUSSION: Since 1998 the police department has used the municipal infraction to gain noise and general compliance for ongoing concerns. From that time 35 municipal infractions have been issued to residences and local taverns. Of the 35, 22 have been written to residences, one to a pawn shop, and 12 to taverns. The tavern infractions include five taverns with one receiving four infractions, three receiving two infractions, and two receiving one infraction. ACTION REQUESTED: Municipal infractions have proven to be a useful tool to gain ongoing compliance for quality of life issues facing our community. The issuance of a municipal infraction ensures attention to a specific concern while allowing recourse to the defendant through a court appearance should the defendant disagree with the issuing officer assessment. The requested action would be to continue to use the municipal infraction in seeking compliance to loud noise and music concerns and other quality of life issues for both residential and tavern properties. Municipal Infractions Bodine's 08/12/2001 Whiskey, River 05/14~2001 Whiskey River 04/20/2001 Idle Hour 01/29/2001 Private Individual 09/20/2000 Pdvate Individual 07/0672000 Pdvate Individual 07/06/2000 Private Individual 07/06/2000 Pdvate Individual 01/16/2000 KnickeCs, , 01/08/2000 Private Individual 11/12/1999 Pdvate Individual 11/05/1999 Pdvate Individual 09/24/1999 Pdvate Individual 09/24/1999 Bodine's 09/08/1999 Bedine's 08/28/1999 Fat'Tu~,ay's ' ' 08/27/1999 Knicker's 08/11/1999 Hooli~lan's 06/24/1999 Hooligan's 06/18/1999 Pdvate Individual 05/2311999 Private Individual 04/10/1999 Pdvate Individual 02/06/1999 Pdvate Individual 01/25/1999 Private Individual 01/17/1999 Bodine's 01/16/1999 Private Individual 01/14/1999 Pdvate individual 10/06/1998 Private Individual 09/19/1998 Pdvate Individual 09/14/1998 Private Individual 08/15/1998 Private Individual 07/27/1998 Private Individual 07/14/1998 Private Individual 07/08/1998 Pawn Shop 01/16/1998 September 07, 2001 Joseph J. Bitter* Thomas A. Bitter *Also licensed in Illinois Client parking fn rear TO: BITTER LAW OFFICES 485 LOCUST STREET DUBUQUE. IOWA 52001 Office: 563-5884608 Fax: 563-588-0I 03 July 1 I, 2001 The Honorable Terry M. Duggan and Members of the City Council of Dubuque RE: Chad Streff, d/b/a Whiskey River © Residence Joe:563-582-1768 Tom:563-582-7545 1 am writing this letter on behalf of Chad Su'eff who owns the Whiskey River establishment at 1064 University Avenue in Dubuque, Iowa. Mr. Streff has operated this business for 12 years. Prior to that, the business was operated by Gary Kupferschmidt for some time, and prior to that the business was owned and operated by Greg Adams. In the 12 years that he has owned the building, Mr. Streff has attempted to operate a decent establishment and one that complies with the law. Approximately 2 years ago, for the very first time, Mr. Streff was contacted at home by a police officer who asked him to return to the bar. Mr. Streffwent to the bar and met the police officer. The officer told him that because you could hear music outside of the bar, this meant the music was too loud. Mr. Streffindicated that he would attempt to comply with the officer's request and he significantly lowered the volume of the music. This was the end of'the "problem" until April 20, 2001. On that date, police officers came to the bar and told Mr. Streff that he was getting a ticket under Section 33-46(12). They told him that a person had complained, but they indicated that they were unable to give him the name of the complaining person. They said that they were there as the result of an anonymous call. A ticket was issued and the City Attorney agreed to reduce the charge to a lesser fine, and Mr. Streff made significant changes to the inside of his establishment by insulating and closing all of the windows to reduce the possibility of sound escaping through the windows. The bar is air conditioned so the doors would be kept closed. Further, Mr. Streff remodeled the bar completely 3 years ago which included new insulation, etc. See the April 24, 2001 letter attached. As indicated in this letter, Mr. Streff attempted to satisfy the police officers, but of course he continued to be completely in the dark as to who the person was who complained. When the officer was at the bar on April 20, 2001, he told Mr. Streffthat if you could hear any music outside the building, this was a violation. This is when Mr. Streff made the changes to try to satisfy the City and the anonymous complainer. On May 14, 2001, the police went to Mr. StreWs establishment again. Again, this was the result of an anonymous complaint. They talked to Mr. StretTs bartender but they did not talk to Mr. Streff who was not present at the time. They issued another citation and followed it up with a May 15, 2001 letter. That citation is now pending. We met with Attorney Bill Blum who was most polite and was an intent listener. Mr. Streffrecited the 12 year history which included 11 July 11,2001 Page 2 years without problems and his efforts to further insulate the bar. Mr. Blum indicated that he would do further checking, and the matter was set for a trial for July 26, 2001, at 1:00 p.m. After the issuance of the first ticket, Mr. Streff spoke with Mr. Blum and told him in detail the efforts he was making to be a responsible citizen. I believe Mr. Blum was impressed by this because he advised Mr. Streff to talk to the Chief of Police to see if they could work out a solution. Chad Streff talked to the Chief of Police and the Chief told him that the caller was anonymous and there was no way they could learn of his/her identity. Mr. Streff again indicated to the Chief that he wanted to get along with the City Fathers and was receptive to suggestions. There has been a bar located on this same location for many years, probably 75 years at least. You may recall this business as having been known as Tom's (McDonough) Tap, Doffs (Birkett) Tap, The Magi, and possibly other names as well. We enclose a copy of the Ordinance which is so broad that we question its constitutionality. Nevertheless, our only interest is trying to resolve this matter in a way that is reasonable. For a ticket to be issued any time sound can be heard outside the walls, or even within 50 feet of the walls sounds to me to be an extremely stringent requirement. This would seem to eliminate all music, shouting, cheering, in all parks. Would festivals, stock car races, outdoor concerts, sporting events, etc., be outlawed? From my residence, I am able to determine who is scoring touchdowns at the Senior High School football field by crowd noise. It seems to me that common sense must prevail, and the way this Ordinance is being strictly used against Mr. Streff could put just about any business establishment or any public gathering out of existence. We call on the Council to give some direction so that common sense prevails. Should you desire to discuss this matter, I am available to discuss this with you at any time, day or evening. In addition, Mr. Streff is also available, and can be reached at his business establishment, 1064 University Avenue, or on his business phone number which is 543-1204, or at his residence phone number of 557-1204. Thank you for your attention. We urge you to read the language of the Ordinance carefully. JJB/km(6) Very truly yours, inc. Dubuque Police Depar~nent Law Enforcement Center P.O. Box 875 Dubuque, Iowa 52004-0875 Phone (319) 589--4410 Fax (319) 589-4479 24 April 2001 Whiskey River % Chad Streff 1064 University Dubuque, Iowa 52001 Dear Mr. Streff: On the 20th of April, 2001, officers from the Dubuque Pol/ce Department were called to the Tavern you own at 1064 University for a complaint of loud music disturbing the neighborhood. Upon arrival, officers verified the loud music and met with employee Mark Osterhans DOB. 08/30/67. Police department records also indicated that the tavern had been warned about loud music on 03/23/01. As you know, you have been cited with a civil violation for disturbing the neighborhood. As the owner of the property, k is your responsibility to insure the noise levels coming form the tavern are acceptable. The civil fine has a court order attached and will require the tavern to take measures to insure there are no more disturbances. Any further calls of the same nature can result in more dill/criminal charges~ The purpose of this letter is to inform you of this police call for service at a property you own/manage. As is often the case, property owners are unaware of problems until they become large problems. Our hope is that by working together and addressing this problem now, we will avoid any future problems. If you have any questions, please feel free to contact one of our Community Policing Officers at 58%7883. ~S.~. cerely? Kin/B. Wadding Chief of Police Dubuque Police Department Law Enforcement Center P.O. Box 875 Dubuque, Iowa 52004-0875 Phone (319) 5894410 Fax (319) 589-/479 15May 2001 Chad A. Streff 1064 University Ave. Dubuque, Iowa 52001 Dear Mr. Streff: On May 14, 200t, at about 1:08 A.M., Officers from the Dubuque Police Department were dispatched to a property you own at the Whiskey River, 1064 University, on a report of loud music and people disturbing the peace and quiet of the neighborhood. Upon arrival, officers did verify the complaint and noted that the music - and the sound of people inside the bar singing could be heard a very si~ificant distance away and that it was in fact loud enough to disturb the peace of this neighborhood. Identified as the bartender for this night was a Mark J. Osterhaus, who did cooperate with police by turning the music down. The purpose of this letter is to inform you of this police call for service at a property you own. As you recall, in a letter sent to you by the Police Department not too long ago, we identified loud music coming fi-om this establishment as a potential problem for your business. We understand that by the very nature of this business, music and the sound of people talking will be something that is expected; however, when the noise level reaches the point where it is generating complaints from the neighbors, we have to intervene and try to work together to address this problem. As is often the case, property owners are unaware of problems until they become large problems. Our hope is that by working together and addressing th/s problem now, we will avoid any future problems. If you have any questions, please feel free to contact one of our Commtmity Policing Officers at 589-7883. Community Oriented Policing Sincerely, Kim B. Wadding Chief of Police OFFENSES AND MISCELLANEOUS PROVISIONS § 33-46 Sec. 33-34. Notification. (a) The first city employee who arrives at the scene of an incident involving hazardous sub- stances shall notify the director of public works. (b) The city employee, if not a police officer, shall also notify the police depa~ £ment which shall notify the proper state office in the manner as required by law. (Code 1976, § 26-72) Sees. 33-35-33-45. Reserved. ARTICLE IV. NOISES* Sec. 33-46. Prohibited noises. No person shall cause or permit any loud and excessive noise that results in annoyance or dis- comfor~ to a reasonable person.of normal sensitiv- ities. Without limiting or precluding enforcement of any other provision of this article or this Code, the' following are hereby prohibited: (1) Horns, signaling devices, etc. The sounding of any horn or signaling device such as that on any automobile, motorcycle, bus or other vehicle on any street or public place of the city, except as a danger warning, or the sounding of any such device for an unnec- essary and unreasonable period of time. (2) Crying of wares. The sale by outcry within any area of the city zoned for residential uses. However, this paragraph shall not be construed to prohibit the selling by outcry of merchandise, food, and beverages at Ii- ceased sporting events, parades, fairs, cir- cuses, and other similar licensed public eh- ter~ainment events, nor to prohibit the seli/ng of newspapers by outcry. (3) Animals and fowl. The keeping of, upon any premises, owned, occupied or controlled by any person, any animal or fowl otherwise permiL-~.~d to be kept which, by any sound or cry, shall cause annoyance or discomfort *Cro~s reference--Noise control in regard ~o traffic and motor vehicle~, § 32-58 et seq. to a reasonable person of normal sensibili- ties. (4) Loading, unloadi~zg, opening boxes. The ere- ation of any loud and excessive noise in con- nection with loading or unloading any ve- hicle or the opening and destruction of bales, boxes, crates and containers. (5) Schools, courts, churches, hospitals. The cre- ation of any loud and excessive noise on any street adjacent to any school, institu- tion of learning, church or court while same is in use, or adjacent to muy hospi~,al, which unreasonably interferes with the workings of such institution, or which disturbs or un- duly annoys patients in the hospital. (6) Ccnstructionorrepairofbuildings. Thecre. ation of any loud or excessive noise re- sulting from erection, excavation, demoli. tion, alteration or repair of any structure or building except between the hours of 7:00 a.m. and 8:00 p.m., Monday through Friday, and 9:00 a.m. and 6:00 p.m. on Saturday and Sunday. (7) Pile drivers, hammers, etc. The operation of any pile driver, pneumatic hammer, der- rick, power hoist or other construction equipment, except between the hours of 8:00 a.m. and 6:00 p.m., Monday through Friday, and 9:00 a.m. and 6:00 p.m, Saturday and Sunday, and when so permitted, only if equipped with an effective muffling device. (8) Refuse or recyclables collection. The collec- tion of garbage, trash, refuse or recyclables in any area zoned residential except be- tween the hours of 6:00 a.m. and 9:00 p.m. of any day and, when so permitted, only in a manner so as not to create a loud or ex- cessive noise. (9) Vehicle repairs. The creation of loud and excessive D, oise resulting from the repair or rebuilding of any motor vehicle within any residential area of the city except between the hours of 9:00 a.m. and 9:00 p.m. dally but only in such a manner that a reason- able person of normal sensitivities residing in the area will not be caused discomfort or annoyance. Supp. No. i3 2123 § 33-46 DUBUQUE CODE (10) Exhausts. The discharge into the open air of the exhaust of any engine, including a steam engine, internal combustion engine, motor boat or motor vehicle or the discharge of air or other gases except through a muf- fler or other device that will effectively pre- vent loud or explosive noises therefrom. (11) Stationary machinery, equipment, and fans. The operation of any immobile machine, ,/~,, FY 1,°ud and excessive n°ise'' / u cessary.?r unus,,, Z noise. Not- _ m g 'othar provision oft s ar- cl?,,or Co?e, ?. in addison thereto, it \ sh~l,, be unlawful for .any person to make or continue or cause to be made or continued any loud, unn.ecess .a~., or unusual noise in an _ othe pubUc pla or hich ms- / ,~urb, s them ~esce or qu~et of any neighbor- hood or which causes discornfor~ o.r annoy.- ance~ to any reasonable person-o-f- ~o~1 /(4) ~ sensitivities. / No person owning or in peesession of or in con- trol of any build/rig or premises shall use the same, (6) permit the use o£the same, or rent the same to be used by any business, employment or other use, or for any purpose of pleasure or recreation, if such use shall, by the noise generated therefrom, disturb or interfere with the peace of the neigh- borhood in which such building or premises is sit- (7) uated. (Ord. No. 88-92, § 2, 11-16-92) Sec. 33-48. Exempt no/scs. [The fo]lowing noises are exempt from the pro- visions of this article:] (1) Emergency operation~. E~ergency short- term operations that are necessary to pro- tect the health and welfare of the citizens; such as emergency utility and street re- pair, fallen tree removal or emergency fuel off delivery, §hall be exempt from the pro- hibition of section 33-46, provided that rea- sonable steps shall be taken by those in charge of such operations to minimize noise emanating from the same. (2) Noise required by law. The prohibition of section 33-46 shall not apply to any noise required specifically by law for the protec. tion or safety of people or property. (3) Lawn mowers, garden tools, etc. Powered equipment, such as lawn mowers, small lawn and garden tools, riding tractors and snow removal equipment that is necessary for the maintenance of nroper~y, if kept in good repair and maintenance, shall be ex- erupt from the prohibition of section 33-46. No person shall operate such equipment, however, with the exception Of snow re- moval equiPment, except between the hours of 8:00 a.m. and sunset, Monday through Friday and 9:00 a.m. to sunset, Saturday and Sunday. Residential air conditioners. Noise emitted bY residential air conditioners shall be gev- erned by section 33-49. Airplanes. Aircraf~ operations that are con- trolled specifically by federal law shall be exempt from the prohibition of this article. Disorderly conduct. Noise created by human behavior and generally considered to be dis- orderly conduct shall be exempt from the provisions of this chapter and regulated under sections 33-1 through 33-5 of this chapter. Bells, chimes. Bells, chimes, and similar de- vices that signal the time of day and op- erate during the daytime hours for a dura- tion of no longer than five (5) minutes in any given one-hour period shall be exempt from the prohibition of section 33-46. (Ord. No. 88-92, § 2, 11-16-92) Sec. 33.49. Residential air conditioners. No person shall instell, operate or use any res- idential air conditioner, or combination of residen. rial air conditioners, that creates a loud and ex- cessive noise level at a lei line of any dwelling until located on any adjacent premises. (Ord. No. 88-92, § 2, 11-16-92) Supp. No. 13 2124