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Rock and Roll is Noise Pollution

by | Jun 2, 2019

The back deck of The Thirsty Pig during a recent Old Port Festival. photo/Adam Francis

While the forces of boredom have been snuffing out fun on public property, a parallel fight is heating up over entertainment hosted on private property downtown: in Portland’s bars, restaurants, music venues and event spaces. This clash is also a direct result of gentrification.

City officials have been battling Portland’s insurgent entertainment industry for well over a decade. In 2007, the City Council imposed the so-called “100-foot rule,” which prohibited new entertainment licenses for any liquor-licensed establishment whose front door is within 100 feet of the entrance to another place licensed to offer both booze and music (see “‘Footloose’ in Portland,” The Bollard, April 5, 2007). With about 50 businesses on the peninsula holding both liquor and entertainment licenses, the 2007 ordinance effectively made hundreds of thousands of square feet of prime commercial space off-limits to anyone interested in offering alcohol and entertainment under one roof. The law is still on the books today, and recently prohibited the owners of a new function room on Wharf Street from hosting entertainment there on a regular basis.

This past February, the City Council voted unanimously to prohibit The Thirsty Pig, a bar and eatery on Exchange Street, from hosting any live music on its back deck that involved the use of an amplifier. The establishment typically booked local singer-songwriters to play there — performers who used a speaker to amplify their vocals, not rock bands with Marshall stacks.

A special task force, called the Nightlife Oversight Committee (NLOC), was formed years ago by Portland Downtown and city officials to set measurable, enforceable rules for live music, including decibel limits. The Thirty Pig, which opened in 2011, hosted live music on its deck for six years and was never cited for breaking any of those rules. The music always ended before 10 p.m.

But a handful of complaints from a few condo owners around the corner was enough to convince Mayor Ethan Strimling and city councilors that this amplified “noise” — as both complainers and councilors called the music — must be silenced. (Bagpipers, steel-drummers, brass bands and didgeridoo players would still be allowed to jam there, but thus far the Pig’s owner and its operations manager — Allison Stevens and her husband, Dave Nowers — have resisted the temptation to take advantage of that gaping loophole.)

City officials contend that The Thirsty Pig should never have been allowed to have music on its deck in the first place, but Stevens said she checked the box on her original license application that indicates live music outdoors is permitted. And for the next half decade, no one challenged them on this point.

Police records submitted as part of last February’s Council meeting materials show a total of six noise complaints between September of 2017 and May of 2018. Half of the calls made to police were received before 7 p.m. All of them apparently originated from the same building, on the corner of Middle and Silver streets, that has condos on its upper floors. None of them resulted in a citation for excessive decibel levels.

Stevens and Nowers hired a lawyer, Brandon Mazer, to help them work on a solution with neighbors and city officials. In January, Mazer submitted a letter to the City Council outlining nine steps his clients were willing to take to help mitigate the volume and address neighbors’ concerns. Those include limiting live music on the deck to four events per week (and ending any event before 7 p.m. Sunday through Wednesday, and by 9 p.m. Thursday through Saturday), voluntarily keeping the decibel limit substantially below the allowable level, maintaining a log book with decibel readings made by staff during every performance, buying a new in-house sound system that all performers must use, and giving neighbors Nowers’ personal cell phone number so they can call him directly with any complaints.

Although the condos are not directly across from The Thirsty Pig’s deck, neighbors claim the buildings in the Old Port create a “natural amphitheater” that further amplifies the music. Mazer offered to have decibel readings done at the condo building to verify this, but like every other compromise he proposed, it was shot down.

That’s not the way the city’s process is supposed to work, said Doug Fuss, owner of the Old Port pub Bull Feeney’s, who’s served on Portland Downtown’s board and NLOC. Both parties in disputes like this are expected to take some steps to mitigate the problem, “because if you’re buying a condo in the middle of an entertainment district, you definitely moved here for a reason,” Fuss said, “or you were naïve.”

“Maybe putting in some triple-paned windows and making sure you have enough insulation in your walls would help the situation,” Fuss continued. “You can do amazing things even with old buildings to mitigate noise, so this can be done. There are hotels that are built literally next to airports and they have people sleeping overnight where flights are coming in at all hours.”

The Feb. 20 Council meeting was brutal. “It was like the roast of Allison Stevens,” Stevens said. A parade of condo owners stepped up to the podium to share horror stories. One even blamed The Thirsty Pig, without offering any evidence, for public urination and graffiti elsewhere in the Old Port.

“Let me tell you what it’s like to spend an evening in your condo with the music,” one woman began. “In my condo, when they have music, my husband and I cannot have a conversation ’cause we cannot hear each other. Even if we close the windows, we cannot watch our television set, and you’re proposing this music from noon until 9 o’clock, four-plus days a week. … It is very disconcerting, and if this is granted it really makes our condo unlivable.” (Like this resident, Mayor Strimling also seemed to think the limited timeframes proposed by The Thirsty Pig would be entirely filled with live music, as if Stevens and Nowers were proposing to produce four Old Port Festivals’ worth of entertainment every week. Mazer, having already been granted his three minutes to make his case at the meeting, was not allowed to correct this absurd characterization of his clients’ intentions.)

The Thirsty Pig had made a substantial investment in live music on its deck, spending about $5,000 per week to promote the events and pay the performers (there was never a cover charge). One performer was a homeless busker Nowers saw playing Beatles songs on the street, a guy in his 60s who’d fallen on hard times and was struggling with alcoholism. “All he wanted was a chili dog, an orange juice and some money to get his living going,” said Nowers. So although he and Stevens usually booked acts playing original material, they gave the guy a three-hour slot on Sunday afternoons. The customers loved him, and “that one paycheck got him into a sober-living house, because he had a job once a week,” said Stevens. The man has since found gainful employment elsewhere.

The Thirsty Pig still books performers to play inside, but if it’s a nice day, they end up playing for the employees, since most of the customers are on the deck. Between legal fees and decreased revenue, the establishment has lost a “significant amount” of money since amplified music was outlawed outside its walls, Stevens said.

The city’s crackdown on live music (including its antagonistic approach to Waterfront Concerts, whose shows last summer on the Maine State Pier were a boon to bars in the Old Port; the company has taken that business to Westbrook) and Portland Downtown’s recent decision to end the Old Port Festival leave Stevens wondering, “Do they want us here anymore? If they don’t, then let us know that too. You don’t want vibrant businesses downtown paying this much for rent? OK, let me know. That’s how I feel — like, if this was a hard ‘no’ from the beginning, let me know, because you know how much I’ve been paying in rent for the last two years because I was counting on this? I have to save from the summer, I have to have those days or I could not be here.

“And I’m a fool to do it,” she continued. “But I do it because I believe in the volume [of business possible there], I believe in the space. It’s not the smartest business thing, and that’s why no one touched this but a stupid woman like Linda Bean” — the L.L. Bean heiress who tried, and ultimately failed, to run a successful restaurant in the space prior to The Thirsty Pig. “And here I am, another stupid woman, but I’m just working really fucking hard and playing the odds. It is a little bit like gambling — you have to load up in one season to save for the rest. But that’s still a business model that works if I’m profiting, so it’s fine.”

Last month, the City Council’s Health & Human Services Committee formally began work on a new licensing regime for live music. The current system makes a distinction between entertainment “with or without dance.” This technically turned Portland authorities into the boogie police, charged with ensuring that establishments offering low-key entertainment, like cocktail-lounge piano, didn’t allow customers to get up from their chairs and break into an illicit foxtrot.

The new rules would eschew this Puritanical distinction in favor of licenses for indoor or outdoor entertainment, or both. The legal volume level would be lowered from 92 to 85 decibels, with further restrictions possible for low-frequency bass sounds. And new restrictions are being proposed to limit the days and hours when music can be played anywhere in the city, indoors or out.

A vote on the proposed changes by the full Council is expected to take place as early as this month.

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