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Genco Importing Inc. v. City of New York

March 31, 2008

GENCO IMPORTING INC., ET ANO., PLAINTIFFS,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

Plaintiffs Genco Importing Inc., d/b/a Manitoba's, and Richard Manitoba operate a bar in Manhattan's East Village. They bring this action against the City of New York, alleging that certain noise provisions of the New York City Administrative Code (the "Code") violate the First and Fourteenth Amendments of the United States Constitution facially and as applied. Defendant moves to dismiss the amended complaint for failure to state a claim upon which relief may be granted.*fn1

Facts

I. The Underlying Events

The following facts are taken from the amended complaint*fn2 and assumed true for the purposes of this motion.

Manitoba's is a bar that operates in space leased on the ground floor of a multi-story building at 99 Avenue B between 6th and 7th Streets.*fn3 It is surrounded by bars, restaurants, and other commercial establishments, as well as residential units.*fn4

Since its opening in January 1999, Manitoba's has presented and promoted live and pre-recorded performances of punk rock music.*fn5 Until approximately 2002, it offered live musical performances several times a week, but subsequently limited them primarily to Monday evenings.*fn6 Performances typically began at 8:00 p.m. and concluded before 10:00 p.m.*fn7 Manitoba's installed double-paned windows and two doors to lessen the sound that emanated from the bar.*fn8 On October 23, 2006, an inspector from the City Environmental Control Board (the "ECB") investigated a noise complaint made by a resident living on the second floor of the building in which Manitoba's is located.*fn9 He noted that the ambient sound level was 35 dB(A) and measured a sound level of 53 dB(A) in the apartment,*fn10 which exceeded the 45 dB(A) maximum permitted under Code Section 24-241.1.*fn11 The inspector informed staff members at the bar that the sound level in the apartment was attributable to the live musical performance occurring within Manitoba's and issued a notice of violation and hearing.*fn12

On February 12, 2007, an inspector investigated another noise complaint from a resident in the same building.*fn13 The ambient noise level was 48 dB(A) and the sound level "in complainant's hallway" was 65 dB(A).*fn14 The inspector informed staff members at Manitoba's that the noise level was attributable to its live musical performance and that the bar would be issued a notice of violation if the volume of the performance were not lowered because 65 dB(A) was unreasonable noise within the meaning of Code Section 24-218.*fn15 The musical performance had concluded by that time, but Manitoba's received a notice of violation and hearing two weeks later.*fn16

After receiving the second notice, Manitoba's ceased live musical performances altogether.*fn17 Its average revenues on Monday nights subsequently dropped 47 percent.*fn18

II. The Statutes*fn19

A. Commercial Music Prohibitions

At the time plaintiffs received the first notice of violation and hearing, Old Code Section 24-241.1 (the "Old Commercial Music Prohibition") provided that

"No person shall make or cause or permit to be made or caused any music originating from or in connection with the operation of any commercial establishment or enterprise when the level of sound of such music, as measured inside any residential unit is in excess of either[:]

"(a) 45dB(A) as measured with a sound level meter; or "(b) 45dB in any one-third octave band having a center frequency between 63 hertz and 500 hertz inclusive (ANSI bands numbers 18 through 27, inclusive), in accordance with American national standards institute standard S.1.6-1984."*fn20

Violators were subject to a fine ranging from $2,000 to $8,000 for a first violation.*fn21

The Old Commercial Music Prohibition was replaced by New Code Section 24-231 (the "New Commercial Music Prohibition"), effective July 1, 2007, which provides in relevant part that

"(a) No person shall make or cause or permit to be made or caused any music originating from or in connection with the operation of any commercial establishment or enterprise when the level of sound attributable to such music, as measured inside any receiving property dwelling unit:

"(1) is in excess of 42 dB(A) as measured with a sound level meter; or "(2) is in excess of 45 dB in any one-third octave band having a center frequency between 63 hertz and 500 hertz (ANSI bands numbers 18 through 27, Inclusive), in accordance with American National Standards Institute standard S1.6-1984; or "(3) causes a 6 dB(C) or more increase in the total sound level above the ambient sound level as measured in decibels in the 'C' weighting network provided that the ambient sound level is in excess of 62 dB(C)."*fn22

The fines for violating New Code Section 24-231(a) are the same as those under its predecessor*fn23 but may be avoided if an offending party makes permanent improvements to bring it within permissible sound levels or obtains a variance from strict application of the decibel limits.*fn24

B. Unreasonable Noise Prohibitions

At the time plaintiffs received the second notice of violation, Old Code Section 24-218 (the "Old Unreasonable Noise Prohibition") provided that "No person shall make, continue or cause or permit to be made or continued any unreasonable noise, except that this section shall not apply to any sound from any source where the decibel level of such sound is within the limits prescribed by another section of this title and where there is compliance with all other applicable requirements of law with respect to such sound."*fn25

"Unreasonable noise" was defined as "any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities or injures or endangers the health or safety of a reasonable person of normal sensitivities, or which causes injury to plant or animal life, or damage to property or business."*fn26

Violators of the Old Unreasonable Noise Prohibition were subject to fines ranging from $220 to $875 for a first violation.*fn27 Section 24-218 was amended, effective July 1, 2007 (the "New Unreasonable Noise Prohibition"), and now provides in relevant part that

"(a) No person shall make, continue or cause or permit to be made or continued any unreasonable noise. "(b) Unreasonable noise shall include but shall not be limited to sound, attributable to any device, that exceeds the following prohibited noise levels:

"(1) Sound, other than impulsive sound, attributable to the source, measured at a level of 7 dB(A) or more above the ambient sound level at or after 10:00 p.m. and before 7:00 a.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way. "(2) Sound, other than impulsive sound, attributable to the source, measured at a level of 10 dB(A) or more above the ambient sound level at or after 7:00 a.m. and before 10:00 p.m., as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way. "(3) Impulsive sound, attributable to the source, measured at a level of 15 dB(A) or more above the ambient sound level, as measured at any point within a receiving property or as measured at a distance of 15 feet or more from the source on a public right-of-way. Impulsive sound levels shall be measured in the A-weighting network with the sound level meter set to fast response. The ambient sound level shall be taken in the A-weighting network with the sound level meter set to slow response. "(c) Notwithstanding the provisions of subdivision b of this section, where a particular sound source or device is subject to decibel level limits and requirements specifically prescribed for such ...


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