New Mexico operators sound off and win noise law exemptions

ALBUQUERQUE, N.M. -- After a protracted battle to preserve outdoor speakers for drive-thrus and dining patios, restaurateurs here are assessing how they will comply with a new noise-abatement ordinance passed by the City Council.

The new law, approved in late February, was the result of a nearly two-year-long series of hearings and meetings over a proposal that at one time sought to ban all outdoor speakers in Albuquerque.

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"The result is something that we can live with," said Ken Morris, executive vice president of the New Mexico Restaurant Association, which was involved heavily in working to spare alfresco amplification in foodservice settings.

"A lot depends on how they go about enforcing it," Morris said. "As it pertains to restaurants, the wording is kind of vague, and that leaves interpretation to enforcement."

The new ordinance bars "plainly audible" noise from areas that are noise sensitive, such as residential neighborhoods and areas around hospitals and schools. It will be enforced by the city's Department of Environmental Health.

Jerry Wright, bar manager at the 6-year-old Great American Land & Cattle Co., a restaurant next to a residential area in northeastern Albuquerque, said: "It's not the best of worlds, but it's the best we can expect at this time. The final draft of the ordinance looked pretty good. It's a compromise with the zoning appeals board and the neighborhoods. The standards are definitely stricter than the previous noise ordinance."

For Great American Land & Cattle, a 180-seat casual-dining restaurant with 50 additional seats in a waiting area outside, the problem will be keeping a live band within the new guidelines, Wright said. "Basically, we walk around with a little Radio Shack noise-measuring device, a decibel meter, to make sure we are in compliance."

Albuquerque Mayor Jim Baca said the updating of the city's 19-year-old noise ordinance fulfilled a pledge he made to voters during his campaign. "I vowed that when I took office, I would do something to make our city both more vibrant and more enjoyable," he said. "I believe that people should be able to enjoy life and the reasonable noise that goes along with life's activities. They are also entitled to the peaceful enjoyment of their property and of areas throughout the city."

The revision in the noise ordinance came after Environmental Health Department Director Sarah Kotchian held three public hearings and conducted a noise survey that found 89 percent of those polled considered noise a problem. Another 87 percent believed that noise levels have increased significantly in the past five years, and 72 percent supported additional public education to increase noise awareness.

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Baca said the updated ordinance sets specific daytime and nighttime limits for noise, reinforces quiet hours from 10 p.m. to 7 a.m. in residential neighborhoods, adds time restrictions for noise from such activities as construction and phases out commercial outdoor public address systems, such as those at car dealerships. The law also requires that amplified vehicle sounds, such as those from boom boxes and ice cream trucks, not be plainly audible from 25 feet away

"Noise is one of the quality-of-life issues we can all do something about," the mayor said.

Morris of the NMRA said: "As I went through the council meetings and the hearings, there are a lot of people out there who appear to be noise sensitive. If noise bothers them, they'll make an issue out of it."

Critics say that "plainly audible," rather than specific criteria, makes the ordinance difficult to enforce.

"'Plainly audible' is kind of a squirrelly way to define that," Morris said. "It isn't defined exactly, and there really aren't any criteria for how many decibels over the ambient noise level is a violation. I think they could have made a more enforceable ordinance, but we had come a long way from the first draft, which said you couldn't have any two-way speakers.

"There's also nothing in the ordinance to make a restaurant comply," Morris added. "You aren't going to shut it down. During the hearings McDonald's said it does 60 percent of its business in the drive-thru, so if you tell it it can't have any drive-thru business, that would take away 60 percent of that unit's volume."

Sonic Corp., whose drive-ins have two-way speakers, also was involved in lobbying for a reasonable ordinance.

Mike Paulowsky, who represented Sonic's New Mexico franchisee, Merritt Group of Las Cruces, which has eight units in the Albuquerque market, said: "The city did make an effort to recognize our particular types of service venues, because the original draft of the ordinance was to ban all outdoor speakers, which would have done away with all drive-thru speakers.

"We were able to convince them to recognize the difference between broadcast speakers, like those at car dealerships, and two-way, customer-service speakers, like ours and those at banks."

The future of enforcement is uncertain, Morris said. "We don't know what's going to happen until they get out there and start interpreting it," he said.

Historically, the New Mexico Restaurant Association found that few restaurants were among the businesses drawing noise complaints. "We went through the stacks of complaints about noise from past years and found only two restaurants with noise complaints," Morris said. "Most complaints against the hospitality industry were about places that sold liquor and were nightclubs, but not places that were foodservice."

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He said his advice to other foodservice organizations and representatives is to remain aware of such local-level ordinances.

"Sometimes these things get so far down the road that there's nothing you can do about them," he said, noting that the process whereby restaurants won their speaker exemptions "took more than a year and a half"