HomeMy WebLinkAbout2008-05-15MINUTES
ADJOURNED REGULAR MEETING OF THE
PALM DESERT CITY COUNCIL
THURSDAY, MAY 15, 2008
10:00 A.M. - CIVIC CENTER COUNCIL CHAMBER
73510 FRED WARING DRIVE, PALM DESERT, CA 92260
I. CALL TO ORDER
Mayor Benson convened the meeting at 10:05 a.m.
II. PLEDGE OF ALLEGIANCE TO THE FLAG OF
THE UNITED STATES OF AMERICA - Mayor Jean M. Benson
III. INVOCATION - Councilmember Cindy Finerty
IV. ROLL CALL
Present:
Councilman Jim Ferguson
Councilmember Cindy Finerty
Councilman Richard S. Kelly
Mayor Pro Tem Robert A. Spiegel
Mayor Jean M. Benson
Also Present:
Carlos L. Ortega, City Manager
David J. Erwin, City Attorney
Martin Mueller, Assistant City Attorney
Stephen Y. Aryan, Assistant to the City Manager
Rachelle D. Klassen, City Clerk
Bo Chen, City Engineer
Russell Grance, Director of Building & Safety
Lauri Aylaian, Director of Community Development
Mark Greenwood, Director of Public Works
Hart H. Ponder, Jr., Code Compliance Manager
Frank Taylor, Asst. Chief, Palm Desert Police/Riverside Co. Sheriffs Department
V. ORAL COMMUNICATIONS
None
MINUTES
ADJOURNED REGULAR
PALM DESERT CITY COUNCIL MEETING
VI. PUBLIC HEARINGS
MAY 15, 2008
A. CONSIDERATION OF AN APPEAL OF A PLANNING COMMISSION
DECISION, AMENDING AN APPROVED CONDITIONAL USE PERMIT TO
ELIMINATE NIGHTLY MUSICAL ENTERTAINMENT IN THE OUTDOOR
PATIO DINING AREA OF AUGUSTA'S RESTAURANT (AUGUSTA'S)
LOCATED AT 73-995 EL PASEO (APN 627-272-005) Case No. CUP 96-15.
Amendment #3 (Denise Roberge, Augusta Restaurant, Appellant).
Please see the attached court reporter's transcript (Exhibit "A") for all of the
testimony, discussion, and action in this hearing.
With City Council concurrence, recess periods were observed from 12:04 p.m.
to 1:16 p.m., 2:26 p.m. to 2:35 p.m., and 4:03 p.m. to 4:15 p.m.
For purposes of clarification, the action taken was: Councilmember Finerty
moved to, by Minute Motion: 1) Stop the amplified music at Augusta's Restaurant;
2) authorize staff to prepare such a resolution to be presented at the next regular
City Council Meeting. Motion was seconded by Benson and carried by a 4-1 vote, with
Ferguson voting NO.
VII. ADJOURNMENT
With City Council concurrence, Mayor Benson adjourned the meeting at 5:32 p.m.
ATTEST:
RICHELLE D. KLASSEN, CITY CLERK)
CITY OF PALM DESERT, CALIFORNIA
BENSON, M
2
MINUTES
ADJOURNED REGULAR
PALM DESERT CITY COUNCIL MEETING
EXHIBIT "A"
CERTIFIED COURT REPORTER'S TRANSCRIPT
MAY 15, 2008
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Hearing -Augusta Restaurant 5/15/2008
Page 1
PALM DESERT CITY COUNCIL
POSTED AGENDA
Hearing re:
Consideration of an appeal of a Planning
Commission decision in the matter of an existing
Conditional Use Permit to allow amplified music in the
outdoor dining patio are of the Augusta Restaurant
CIVIC CENTER COUNCIL CHAMBER
73-510 Fred Waring Drive
Palm Desert, California
Thursday, May 15, 2008
10:04 a.m. to 5:32 p.m.
Reported by:
Brenda S. Kroger, C.S.R. No 10212
w
CO
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Hearing -Augusta Restaurant 5/15/2008
1 APPEARANCES:
2 Palm Desert City Council:
lean M. Benison Mayor
Robert A. Spiegel. Mayor Pro Tenpore
4 Jim Ferguson Councilman
Cindy Finerty, Council Member
5 Richard S. Kelly. Caunciknan
6
7
8
9
10
For the City of Palm Desen.
BEST. BEST & KRIEGER
BY: DAV ID 1. ERWIN. ESQ.
74760 Highway I I 1
Suite 200
Indian Wells. California 92210
-and-
11
REST. BEST& KRIEGER
12 BY: MARTIN A. MUELLER. ESQ.
74760 Highway 1 I 1
13 Suite 200
Indian Wells. California 92210
14
15
16
In Pro Per
DENISE ROBERGE
73-995 El Preo
17 Palm Desert, California 92260
18 Also Present-
1 9 Carlos L Ortega. City Manager
Lauri Aytanan, Director of Community
2 0 Derekiprnent
Rachel* D Maven. City Clerk
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1 INDEX
2 Page
3 Opening statement by Mr Mueller
Opening statement by Ms. Roberge
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25
4
5 WITNESSES ON BEHALF OF THE CITY.
6 HART PONDER. JR
Examination by Mr. Mueller 46
7 Examination by Ms. Roberge 59
Examination by Mr. Ferguson 72
8 Examination by Mr. Spiegel 76
Examination by Mr Kelly 77
9 Examination by Mr. Mueller 78
Examination by Ms. Rabergr 80
10
11 RYAN B STENDFIL
Examination by Mr Mueller 84
12 Examination by Ms. Robergc .... 89
Examination by Mr. Ferguson 94
13 Examination by Ms. Roberge 97
14
CHARLES HAZARD. JR
15 Examination by Mr. Mueller 99
Examination by Mr Ferguson 103
16
11 BRIAN HARNIK
Examination by Mr. Mueller
18 Examination by Ms Roberag
F-xaminarion by Mr Ferguson
19 Examination by Ms. Roberge
Examination by Mr Mueller
20
21 DAVIDJ FLORE2
Examination by Mr. Mueller
22 Examination by Ms. Roberge
Examination by Mr. Mueller
23
24 ///
25 / / /
104
I12
117
121
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124
130
132
Page 2
Page 3
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2 (Pages 2 to 5)
Page 4
1 ROBERT RAMIREZ
Examination by Mr Mueller
2 Examination by Ms. Roberge
Examination by Mr Spiegel
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5
6
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MARIAN ROYSTON
Lxaminarion by Mr Mueller
Examination by Mr Ferguon
133
136
137
138
147
JOHN MORRIS
Examination by Mr. Mueller .. 149
Examination by Mr. Ferguson 154
9 JOHNNY TERFEHR
Exannnation by Mr Mueller 135
10
11
DON MELVIN
Exammaiion by Mr Mueller
12 Examination by Ms Roberge
Examination by Mr. Spiegel
13
14 JOE LITJENS
Examination by Mr. Mueller
Examination by Mr Spiegel
15
16
BEVERLY BURIES
17 Examination by Mr Mueller
Examination by Ma. Roberge
Examination by Mr. Ferpr.on
JOHNNY TERFEHR (coot.)
20 Examination by Mr Mueller
Examination by Mc Roberge
21
22 SHAWN KILPATRICK
Examination by Mr Mueller
2 3 Examination by Ms Rabble
Examination by Mr Spiegel
24 Examination by Mr Ferguson
25 ///
.. 156
159
159
.-. 160
164
165
170
175
173
176
178
184
189
191
1 Statement by Brendon Thtelman 197
2 Witnesses called on behalf a( Aught
3 JAMES McINTDSH 198
Examination by Ms. Rneny 200
4 Examination by Mr. Spiegel 206
Examination by Mr. Ferguson 210
5 Examination by Mr. Mueller 215
Examination by Mx. Roberge 220
6 Examination by Ms. Finerty 222
7
TED RL'THERFOR D 225
8 Examination by Ms. Rabcege 226
9 Statement by Earl Wallace 227
Statement by Jasenka Sabanovic 229
10 Statement by Cyma Cohen 231
Statement by Linda Riggi 232
11 Statement by Karen Moller 234
Statement by Rick Sonletter 235
12 Statement by Susan Chmalogar 236
Statement by Walter Green 237
13 Statement by Ann Barrington 242
Statement by Mark Axe 243
14
DENISE ROBERGE
15 Examination by Mr Mueller .. 246
16 Closing Statement by Mr. Mueller 249
Cloning Statement by Ms. Roberge 252
17 Discussion 255
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1 THURSDAY. MAY 15. 2008. PALM DESERT. CAI JF RNIA 1 to decide whether there is sufficient evidence to
2 1004 a.m 2 determine, one, if there has been a failure to comply
3 3 with the approved conditions of approval, and/or if the
4 4 authonzeh use is being operated in a manner to cause
5 5 disturbing. excessive. or offensive noise, causing
6 6 discomfort or annoyance to reasonable persons of normal
7 7 sensitivity residing in the area.
8 8 The City Council has received and reviewed
9 9 the agenda report pertaining to this CUP modification.
10 held.) 10 We have also been provided with copies of the documents
11 11 that will be presented and/or discussed today. including
12 12 the original CUP documents and the corresponding
13 13 Conditions of Approval.
14 14 The Council is prepared to listen to all
15 15 witnesses and evidence and render an impartial decision
16 16 based only on the evidence before rat at this hearing.
17 17 The hearing will be conducted as follows:
18 18 FirsL Mr. Mueller will be called upon to make an
19 19 opening statement of no longer than throe to five
20 2 0 minutes, followed by an opening statement, if any. by
21 21 the representative of Augusta's Restaurant.
22 2 2 Mr. Mueller will then present witnesses
23 2 3 and documentary evidence on the City's behalf. The
24 24 representatives for Augusta's will then be called upon
25 ; 2 5 to ask any relevant questions of the witnesses.
MAYOR BENSON: I'll call to order the adjotmKd
regular meeting of the Palm Desert City Council for
Thursday. May 15th The Pledge of Allegiance will be
led by myself. and invocation by Council Member
Cindy Ftrcny.
(Whereupon the Pledge of Allegiance was
(Whereupon the invocation was held.)
MAYOR BENSON: Roll call. please
CITY CLERK: Councilnon Ferguson.
MR. FERGUSON Here.
CITY CLERK: Council Member Finery.
MS. FINERTY: Here.
CITY CLERK: Councilman Kelly.
MR. KELLY: Here.
CITY CLERK: Mayor Pro Tem Spiegel.
MR. SPIEGEL: Here
CITY CLERK: Mayor Benson.
MAYOR BENSON: Here.
Next item is oral coriaraurications. b
dine anyone in the audience that would like to .peak on
anything that is not on the agenda?
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1 Seeing none. the first item of business is
2 the consideration of an appeal of a Planning Commission
3 decision amending an approved Condntonal Use Permit to
4 eliminate nightly musical entertainment in the outdoor
5 polo dining area of Augusta's Restaurant located at
6 73-995 El Paseo. APN 627.272-005. Case Number CUP 96-15. '
7 Amendment Number 2. Denise Roberge, Augusta Restaurant.
8 applicant.
9 The, agenda item is an administrative
10 hearing to determine whether to modify the existing rise
11 permit issued to Augula s Restaurant to eliminate
12 outdoor amplified music on property located on
13 73-951 El Paseo in the City of Palm Desert. California
14 It will be conducted according to the
15 requirements set forth in the Palm Desert Municipal Code
16 and will be presented by Special Legal Counsel
17 Martin Mueller and City staff. with City Attorney Dave
18 Erwin acting as anorney for City Council in its
19 capacity as the administrative body responsible for this
20 hearing.
21 My role as Maya will be to an as the
22 presiding officer of this hating and render any
2 3 necessary procedural rulings concerning the conduct of
24 these proceeding..
2 5 The City Council, role in this trotter is
Page 9l
1 Following the presentation of
2 Mr. Mueller's witnesses, representatives of Augusta's
3 will be allowed to call their own witnesses and produce
4 documentary evidence. and Mr. Mueller will then have an
5 opportunity to ask relevant questions.
6 The City Council may ask questions of any
7 of the witnesses called at the conclusion of their
8 questioning by the attorneys and/or representatives.
9 Once all the witnesses have been heard, 1
10 will solicit testimony from any members of the public
11 who wishes to address the City Council conceming this
. 12 issue
1 3 At the conclusion of the testimony from
14 the public, I will close the public hearing. and both
15 Mr. Mueller and the representative of Augusta's will be
16 allowed a brief closing statement.
17 Following the closing statements. the City
18 Council will then have an opportunity to discuss and
19 deliberate concerning the modification of this
2 0 Conditional Use Permit.
21 1f, at the conclusion of the hearing, the
2 2 City Council determines based upon a preponderance of
2 3 the evidence that certain conditions are not being
2 4 complied with or that the use authorized by this
2 5 Conditional Use Permit has caused discomfort or
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1 annoyance to residents. then the City Council may decide 1
2 to modify this Conditional Use Permit such that outdoor 2
3 amplified music is prohibited. 3
4 Alternatively. if the City Council 4
5 determines that there is not sufficient evidence to find 5
6 that there has been a noncompliance with conditions or 6
7 that the use is not a problem, then there will be no 7
8 modification. and Augusta's will be permitted to operate 8
9 in accordance with the Conditions of Approval previously 9
10 attached to the Conditional Use Permit for this 10
11 facility, as well as City Code requirements. 11
12 The City Council may also determine that 12
1 3 revisions -- may also detemrine that revisions to the 1 3
14 existing conditions are appropriate, which revisions 14
15 would permit this use to operate in accordance with the 15
16 Citys requirements. The City Council then would have 16
17 the opportunity to impose such revised conditions 17
18 At this time 1 would like to ask Catty 18
19 Attorney Dave Erwin to make an announcement concerning 19
2 0 his role in this matter and to review the burden of 2 0
21 proof and any other procedural standards which the City 21
22 Council must follow in this hearing. 22
23 Dave 23
2 4 MR. ERWIN: Madam Maya, members of the Council, ; 2 4
2 5 this proceeding is technically an appeal from a Planning 2 5
Page 11
1 Commission decision of January 15. 2008, but because the •
2 information provided to the Planning Commission was, by
3 stipulation between the attorney for Augusta's
4 Restaurant. Tom Slovak and my office al the time, this
5 Council -- the Council should, at this time. conduct a
6 de novo hearing or an entirely new hearing on the issues
7 presented here. Thus. there should be no presumption
8 against Augusta's Restaurant arising from the
9 proceedings before the Planning Commission. In fact,
10 the City bears the burden of proof at this time that
11 there is a sufficient factual basis for a modification
12 of the Conditions of Approval of Augusta's CUP.
1 3 The burden in this proceeding IS the same
14 one that applies in a civil lawsuit: thus. Madam Mayor
15 and members of the Council. the city attorney handling
16 the presentation of this matter on behalf of the City
17 must persuade you, by the evidence presented at this
18 hearing, that what he is required to prove is more
19 likely to be true than not true. This is referred to as
2 0 'the burden of proof.-
21 My role. as city attorney. at this hearing
2 2 is to assist the Council with any questions concerning
2 3 procedure or any other aspects of the process as they
2 4 may arise.
2 5 I would indicate for the record that we
4 (Pages 10 to 13)
Page 12
have discussed with Mn. Robcrge whether witnesses at
this proceeding should be sworn or not. Her
determination is that she does not require the witnesses
to be sworn. So there will be no swearing in of the
witnesses.
Maya Benson. it is now ready to proceed.
MAYOR BENSON! All right. We are now ready to
proceed on this natter.
Mr. Mueller, will you give us your opening
statement. piease.
MR. FERGUSON. Can 1 ask a question before we get
to Mr. Mueller's opening statement?
In the instructions the Mayor read. there
was a repeated reference to discomfort or annoyance of
the neighbors Where in our municipal code is that
verbiage?
MR. ERWIN: That is taken from the code
section fill give you the section in just a second.
MR FERGUSON: Okay. Thank you. I apologize for
interrupting.
MR ERWIN: Basically, the section is 9.24.040.
They are further defined in 9.24.050.
MR. FERGUSON: Thank you
MR. MUELLER: Are you ready to proceed? Thank
You.
Page 13
1 Madam Mayor, members of the Council, my
2 name is Martin Mueller. rm a partner of Mr. E wm's al
3 Best, Best & Krieger. I'm the attorney presenting the
4 information gathered by staff. and 111 be calling the
5 witnesses who are complainants or objectors relative to
6 the issue of outdoor amplified music at Augusta's today.
7 I want to make a just very brief and some
8 opening remarks and give you an overview, maybe touch on
9 the point that Mr. Ferguson just raised about the
10 ordinances and how things kind of fit together.
11 Were here to talk about two aspects of
12 the failure of Augusta's to comply with the conditions
13 imposed at the time their Conditional Use Permit was
14 obtained and was granted by resolution of this Council
15 back in January of 2001, 1 believe. And those
16 conditions obligated Augusta's to comply with the City
17 ordinances relative to noise as relates a residential
18 noise knits
19 Now, your ordinances have a couple of
2 0 components to them in terms of regulating noise.
21 lucre's the actual decibel limitations themselves. And
22 with respect to residential areas, the actual decibel
2 3 limits after 10:00 p.m. are 45 dba, decibel limitation.
24 Now, in the history of the file of this
2 5 matter. you'll see that there's persistent reference to
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1 a 55 decibel limit after 10:00 p.m. And what we're 1
2 presenting today. though an argument could be made that 2
3 Augusta's should comply with a lower residential limit 3
4 of 45, we're presenting information. evidence. rather a 4
5 lengthy history of instances where Augusta's outdoor 5
6 music contributes to noise in the adjacent residential 6
7 neighborhood in excess of 55 decibels after 10:00 p.m. 7
8 And that's a violation. If you find that those 8
9 instances -- that those violations occurred. that noise. 9
10 indeed. was found and metered to be above 55 decibels 10
1 repeatedly over a period of time. those are violations 11
12 of the raise ordinance. and that would be a basis for 12
13 going back in and modifying the CUP. eliminating outdoor 13
14 amplified music. 14
15 A second thing were here to talk about 15
16 and prove and a second set of violations of your 16
17 ordinances are the occasions where reasonable people in 17
18 the community are disturbed or annoyed by excessive 18
19 noise. excessive music in this instance coming from
2 0 Augusta's. And if you find that to have occuned, under
21 9.24.040. there's a separate standard which exists in
2 2 addition to. separate from. the actual 55 decibel
2 3 limitation. And you'll hear from members of the
24 community on that issue.
25 City staff -- Mr. Ferguson?
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1 MR. FERGUSON: Yeah, I'm confused. 9.24.040
2 makes reference to disturbing, excessive, and offensive
3 noises which cause discomfort or annoyance. That was
4 Mr. Erwin's answer to my earlier question. The
5 definition says. Disturbing. excessive. or offensive
6 noises are defined by 9.24.030. which says it has to be
7 55 decibels. So it seems to me. unless I'm missing
8 something, there's one standard not two. Or maybe you
9 could help me out here.
10 MR. MUELLER: The -- one way that you can
11 determine that noise is excessive or offensive would be
12 in reference to the numerical limits in .030. But even
13 in the absence of objective measurements. even in the
14 absence of readings one way or another over or not over
15 the 55 limit -- and this is what .040 speaks to -- m
16 the absence of an objective measuretrent, you can still.
17 and you should still, apply the test of whether or not
18 there's excessive and offensive noise that causes a
19 reasonable person to be disturbed or annoyed. And
20 that's an entirely subjective description. And it would
21 have been if the entire answer to whether or not a code
22 violation existed under .040 was answered by whether a
2 3 code violation existed under .030. there would have been
2 4 no purpose to that separate section.
25 MR. FERGUSON: Exactly
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MR. MUELLER: That's right. So -- and the
ordinance must read to be -- to have meaning. You can't
read it out of existence by saying it simply is a
redundancy to .030. It would mean nothing if it didn't
add some separate description or analysis or standard to
be applied. And 1 think, by its terms. it seeks to.
MR. FERGUSON: Okay.
MR. MUELLER: Certainly, that's the way that we
read the ordinances as supplying both an objective test.
are the sound measurements above 55 decibels. and a
subjective analysis. are reasonabk people in the
community annoyed and disturbed.
And I'm probably geeing close to going
over the three to five already. but let me just say this
briefly. As far as staff is concerned, the more
importam test is that second one. It's what the
members of the community observe. feel. have felt. and
have experienced, and what they're here to tell you
about.
And the reason is simply this: If
Augusta's was over a 55 decibel limit periodically --
and the evidence is going to show they were. But even
assunung they were, and, in fact, people in the
conlmumty in the nearby neighborhoods really weren't
disrupted or annoyed. then what really would be the
Page 17
point of coming in here with the technical violations
and saying. Flee are. you know. 10 instances or 20 where
Augusta's is over 55 if then: really wasn't that element
of disruption in the community.
And it was -- ifs staffs belief. and
its my belief, that the far more important
consideration is the impact on the community. And so on
that pant again. just very. very briefly. what staff
did not do. staff did not go out to swhcit objectors.
We didn't go out -- 1 didn't have staff, and they
haven't gone out into the community to drum up
opposition to music at Augusta's. to encourage people to
object
There's a record over the years of
objections, calls and letters coming in. The people
that have had — that have voiced objections in the past
were contacted and advised of this hearing and invited
to come because those people that have objections should
come here. They should tell you about it. should look
you in the eye. and either persuade you that they're
reasonable people who were disrupted and annoyed over a
period of months and years by their experiences with
this music or not.
And I believe. and staff believes that
that's really the important test here today. though
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we'll present both aspects of il. the data and the
residents.
MR. FERGUSON: lust a quick follow-up question.
Wouldn't it seem somewhat kngical, though. that our own
staff would go out and make their own determination? Or
stated another way. because we have had instances in the
past. What do you do with the. quote. 'eggshell
neighbor" that is unduly susceptible to noise! A mere
complaint can establish reasonableness. Wouldn't we
need some independent ascertainment of that by our staff
or some objective neutral third party? Or do we just
simply count the number of people who don't like
Augusta?
MR. MUEIIER: I don't think it's a counting at
all. 1 totally agree with your point. And on that
point, staff -- and I'll present the information. We
have bah written reports. and you'll hear from them.
They did go out to do just that. Mr. Ferguson, to test
themselves. to ask yourself the question. Would a
reasonable person hearing the music be disturbed or
annoyed or not? Go out into the neighborhoods. go out
to the location where complaints have occurred and test
that.
And staff has done that. And those staff
persons will all be here to tell you about that. And
Page 19
1 that's an Important put of this.
2 The true test is whether residents in the
3 nearby area were disrupted and annoyed. But you're
4 right. Other than just hearing from them. how do you
5 understand, you know. somewhat objectively whether those
6 objections are reasonable or not reasonable? And so
7 you'll hear from staff on that issue.
9 Any other questions^
9 I'm sure rve taken more than three to
10 five. 11I. when I have my next opportunity. kind of
11 walk you through the written materials. which seem
12 voluminous, but are easier to get duough that. But
13 well do that in a minute
14 MS. ROBERGE: Mr. Mueller. 1 have a few questions
15 for you.
16 MR. MUELLER. For me'!
17 MS. ROBERGE: Yes.
18 MR. MUELLER I'm not a testifying witness. but
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20 MS. ROBERGE: Well —
21 MR. MUELLER: Go ahead.
22 MS ROBERGE: Who is the reasonable person that
23 decided that the music was offensive and abusive and
24 Augusta's was a public nuisance?
25 MR. MUELLER. Each person who has made complaints
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would either be a reasonable person or an unreasonable
person. And that determination of whether their
complains are reasonable and whether they're
essentially a person of ordinary sensibilities. if
they're a -- if they're a reasonable person or if their
sensibilities are reasonably offended. !hose are
decisions for the Council. I haven't made that
decision. I'm going to call members of the community.
residents who have objected. And one of the decisions
for this Council will be the reasonableness of the
objections and of the sensibilities of those peopk.
So essentially. that is --
MS. ROBERGE: You did state that a reasonable
person had made that decision.
And the other question I have for you is
you made the statement that the City and its code
officers have solicited other people in the neighborhood
and asked their concerts about the music other than the
people that have complained.
MR. MUELLER: No. I actually said what we did
not do was go out in the community to solicit objections
to —
MS. ROBERGE: Well. then --
MR. MUELLER: -- to the CUP.
MS. ROBERGE: -- that even states my case more.
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1 Dont you think it would have been wise to go out to the
2 neighborhood as Channel 2 did? CBS News went to the
3 neighborhood. It was on TV last week And their exact
4 words are — let's see. Channel 2 did take the time to
5 go into the neighborhood and canvass the neighbors
6 behind us. Their quote on the news was. Most people we
7 spoke to tonight along the streets, and they didn't mind
8 the music.'
9 But the City has not gone out to solicit
10 any opinions from the other neighbors other than the
11 complainers. I would think, you know. before you came
12 and made a judgment that Augusta is a public nuisance.
13 that you would have done this.
14 MR. MUEUER: That's an interesting question.
15 And I've thought that one through and have thought about
16 what about surveying. 'flue's a couple of aspects to
17 that. One. if I went out --
18 MS. ROBERGE: Why didnt you do it?
19 MR. MUELLER: Well. rm going to explain that to
20 you. Because rve thought through this. And here was
21 my thinking. If I go out in the community and survey.
22 ale thing I know, though, rm not a professional
23 surveyor in that sane. I do know that the manner in
24 which you asked those questions. the order of them. the
25 specific wording is such that you can bias the response
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1 easily by the type of question you asked. The person 1
2 you asked. in the context, with the type of question is 2
3 going to contribute greatly to the answer. 3
4 And so I thought, How is this going to 4
5 work? I'II he seen by you as manufacturing objections 5
6 if 1 do it wrong. Basically. however I might fashion my 6
7 survey. 1'II be open to critique for having biased the 7
8 information. And if. instead, I simply look into the 8
9 community, look into the history of the relationship 9
10 between the community and Augusta's and say who has 10
11 objected, let's hear fmm them, let's not try to invite 11
12 additional opinion. if someone is not disturbed. it 12
13 really doesnt answer the question of whether reasonable 13
14 people in the community. other reasonable people are 14
15 disturbed. 15
16 The fact that Marty Mueller might live in 16
17 the community and might not he disturbed wouldn't tell 17
18 you whether Joe Smith right next door was annoyed or 18
19 disturbed. 19
2 0 And so 1 thought about it and thought 2 0
21 against proposing to Council that there be a survey 21
22 because 1 was worried about bias. Because 1 thought . 22
2 3 that it doesn't answer the question of whether there art 23
2 4 reasonable objectors out there. and that it ukimately 2 4
2 5 didn't really contribute to this hearing. to the issues 25
Page 23,
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before the Council today. So that's my thinking. 1
MS. ROBERGE: Well, Mr. Mueller, I consider 2
Channel 2 to be. probably. one of the most unbiased 3
surveyors. It would give everyone the opportunity to 4
state on public television how offensive the music was. 5
if it was. There is no more unbiased person to 6
interview the neighbo tioods than the TV station.
MR. FERGUSON: Mr. Mueller, before we get into 8
the arguments of the case. l m sill -• one last 9
question. if you would indulge me?
MR. MUELLER: Absolutely.
MR. FERGUSON: It seers to ire that we have
questions of fact and questions of law here. The
questions of fact, under the objective standards. ate
fairly easily ascertainable. The meter readings are
what they are. and we can interpret them how we
interpret them. My concern is discomfort or annoyance
can be susceptible to being vague and overbroad. overly
subjective, which is a question of law. Are we here to
decide just the questions of fact and kave the
questions of law for a legal challenge, or are we here
to decide both?
MR. MUELLER: Well, the -- you're here to decide
questions of fact. You're not really deciding questions
of law. I acknowledge that imerpreling the ordinance
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and interpreting the facts in Tight of the ordinance is
your role And there is with it an aspect of legal
interpretation, if you will. There's no briefing here
by the city attorney on kgal issues or no instructions
to you on how to interpret those words.
I believe that you're likely to, and will,
take them in their ordinary usage. But I certainly
acknowkdge -- I agree with you, Mr. Ferguson — there
is an element of legal analysis in the Council's
decision today.
Ms. Roberge, this is actually an
opportunity for you to make some opening remarks, pat
of which has already occurred. But do you have any
other questions for me. though. before 1 leave the
podium?
MS. ROBERGE. Yes. Our music permit didn't start
in 2001. it stand in 2004. And our CUP is not for 45
decibels. it's far 55.
MR MUELLER. You're —
MS. ROBERGE: Just correcting a few —
MR MUELLER You're welcome to have — to take
the stage.
MS. ROBERGE: Well. do — let me just think here
fix a minute. Well. rm happy to present my case now.
MAYOR BENSON:_Could you step down -- could you
Page 25
step down to the podium. because 1 can't quite hear you?
MS. ROBERGE: Okay.
Good morning. First of all, rd like to
deliver our signed petition of approximately 1500 people
to the City Council. This was a kit of work.
MAYOR BENSON: Give it to the City clerk.
MS ROBERGE: And then 1 feel the need to clean
up a misquote by The Desert Sun. On their Sunday paper.
1 did not say 'Yes. we will wm this.- What 1 said was.
-I hope we will win this. -
First of all, I want to apologize to my
neighbors for not taking action sooner. I should have
reacted earlier and with more conviction to help solve
the nonce problem created by the music. But we have
solved it today.
1 remember some years ago hearing
Mayor Benson say that the city needs and wants to
encarage and nurture mdividtal, unique businesses to
come to the city. as the city needs it to survive and
maintain its prosperity. 1 thought. This woman really
knows what she is saying and doing. Thus is even tier
today.
A few years ago we lost a great restaurant
named Doug Arango's. The City and us did nothing to
save this great restaurant. People are still talking
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1 about the loss of Doug Arangos Restaurant. as everyone
2 that knew anyone coming to Palm Desert said. You must go
3 to Doug Arango's. Now, that space is sitting dark
4 empty. and ugly in the middle of El Paseo.
5 The sane thing is happening today with
6 Augusta's Restaurant. Augusta is a great attraction for
7 the City of Palm Desert. The word out there is if
8 you're going to Palm Desert, you need to go to Augusta.
9 Augusta's fabulous outdoor setting is a big attraction
10 for the tourists from all over the country.
11 Imagine someone from Wisconsin. Minnesota,
12 Chicago, Seattle. Oregon. Canada, where the weather is
13 cold and miserable, landing in a beautiful city like
14 Palm Desert and being able to eat. drink, and dance
15 outside. At Augusta they feel like they have died and
16 gone to heaven. They will continue to come back to Palm
17 Desert every year because of the fond armories that they
18 have from their last visit to the desert. People don't
19 come to experience a chain restaurant.
20 Along with all of Augusta's supporters
21 here today and the support of the 1500 signed.
22 approximately. petition. they all agree that to take
2 3 away Augusta's music would be a great loss to the City
2 4 of Palm Desert Augusta represents all that is unique
25 and exciting about the desert.
Page 27
1 I've decided there is no need for me to go
2 through all the dirty laundry, so to speak between the
3 City of Palm Desert and myself. Their are just a few
4 pants I would like to make. I'm assuming that the
5 binder -- I guess that's a staff report -- delivered to
6 me on Monday is complete.
7 According to the staff report, Exhibit D.
8 page 17. there hasn't been any complaints since November
9 2007, which is the beginning of this past season. This
10 must be the results of Augusta investing approximately
11 S60.000 to add a ceiling for the patio. curtains on the
12 wall, our great mattresses, large 60-plus feet of
13 theater curtains. sound monitoring equipment. Plexiglas
14 around the drummer. carpet an the stage. and more. This
15 would lead one to believe that the problem has been
16 solved.
17 Two, I've been in the home of our of the
18 complainers a few years ago. and you cannot hear the
19 music inside the house. I asked him why he continued to
2 0 complain. and he said. `That's devil music.' I have
21 requested the code officers to do the same. to go inside
2 2 to see if any music coukl be heart. but this was never
2 3 done.
2 4 As I told you. Channel 2 did do a survey.
2 5 and most of the people do like the music.
8 (Pages 26 to 29)
Page 28
1 We have managed to get the decibel level
2 down to 55 as per code. Its hard to keep the decibel
3 at this absolute level, as the weather does playa part
4 on how the sound travels. On a humid night. the sound
5 is dampened and doesn't travel as well as a dry night.
6 We've gotten it under control, and we do promise to
7 continuo to work on twinging the sound level down
8 further.
9 If you stop the outdoor music. you will
10 have seriously damaged a great rrstaurant 1 know -- I
1 1 know Augusta cant survive without its music, as our
12 clientek s made up of music lovers. So if you vote
13 out the music. you will have destroyed a unique and
14 prosperous business in Palm Desert. So 1 request, along
15 with 1500 people, "Let it be.`
16 MAYOR BENSON: 111 now open the public hearing.
17 And Mr. Mueller. do you have documentary evidence that
18 you wish to present at this time?
19 MR MUELLER. Yes, Madam Maya. 1 do. And la me
2 0 just walk you at this time through the binder which. in
21 essence. is a staff report. though it was prepared by my
22 office with the cooperation of staff And let me just
2 3 walk you through the materals which are somewhat
24 voluminous. But we have them tabbed. Of cause.
2 5 Ms. Roberge has got a copy of this hinder as well.
Page 29
1 MS. ROBERGE: Now. is this a staff report or not?
2 MR. MUFF I FR: This is a -- these are the written
3 materials, the written evidence that relates to
4 violations of Augusta's of the noise ordinance. So it
5 is not a staff report. This is written documentary
6 evidence.
7 So Exhibit --
8 MS. ROBERGE: Then 1 never got a staff report.
9 MR. MUELLER: You have in front of you --
10 MS. ROBERGE: That this is the staff report?
11 MR. MUELLER: -- all of the written materials
12 that are being presented here. There's no --
13 MS. ROBERGE: Yeah.
14 MR. MUELLER: -- separate staff repot.
15 MS. ROBERGE: Was there a staff repon done for
16 City Council?
17 MR. ERWIN: Yes, dire was. There was a staff
18 report. I can read it. It's very short
19 Staff report is the recommendation: Waive
2 0 further reading and adopt the Resolution Number 08-31
21 denying the appeal. reaffirming the decision of the
22 Planning Commission dated January 15. 2008. The
2 3 discussion indicated at the meeting of January 15, 2008.
2 4 the Planning Commission approved a modification to the
2 5 existing Conditional Use Penmt for Augusta's Restaurant
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which eliminated outdoor amplified music. Augusta's
Restaurant appealed the decision to the City Council for
review. There is a detailed package of all
correspondence relating to the case attached. And that
is the documents.
MR. MUELLER: Okay. if I could then?
Tab A is very sirrple. It's the resolution
dating back to January 25, 2001. which authorized the
outdoor amplified music and opposed certain conditions.
specifically at page 0003. And in this binder, all of
the pages are continuously numbered at the bottom So
well be able to reference both to a tab. in this
case A. and a page number so we can move in and out of
this document without getting too bogged down trying to
flip pages.
But just for your reference. page 3 then
would be the conditions which authorized Augusta's and
placed as a condition their compliance with noise sound
level limits for residential properties described in
Chapter 9.24 of the City Municipal Code.
B, Tab B. is a recent printout. You can
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see the date it was run on the computer there, 5/9/2008. , 2 2
This is a printout of the ordinance. And just to 2 3
make -- we've been talking about several of these 2 4
provisions already. You can see. of course, the very 2 5
Page 31
1 first part under .0I0 describes the purpose of the noise 1
2 ordinances. On the second page. which is on 0005. at 2
3 .030, we set the sound level limits. 3
4 Very quickly on that. the way your 4
5 ordinance is currently framed, it speaks to noise level 5
6 limits used on readings of ten-minute averages. And 6
7 you will see in these written materials that you've been 7
8 supplied with ten-minute readings and one -hour readings. 8
9 A quick aside on this ten-minute versus 9
10 one -hour. On a ten-minute reading. you have an 10
11 opportunity for a short incident of sound that may not 11
12 be at all associated with the operation of a restaurant 12
13 or the music. A horn beeps. you know. a truck drives by 13
14 the monitor, and in a ten-minute reading you'll get a 14
15 peak of sound. So ten-minute readings could appear 15
16 substantially in excess of an actual amount of noise 16
17 emanating from. in this case, outdoor amplified music. 17
18 And so while those — that data has been 18
19 supplied. we are net recommending or suggesting that the 19
20 analysis focus on ten-minute readings. The fair 20
21 evaluation to look at would be a one -hour average. And 21
2 2 well speak to that. All of the data is supplied. I 22
23 just wanted -- as you look at your ordinance, you'll set 2 3
24 a reference to ten-minute readings, and yet all of what 24
25 well be talking about today are one -hour readings. And 25
Page 32
all of what I suggest you should focus on are the
one -hour readings. not the ten-minute peaks.
And than, of course, .040 includes. at
paragraph A. the language we were talking about which
creates that subjective standard of whether excessive or
offensive noise has caused discomfort or a noise to
reasonable persons who reside in the area.
So your ordinance is under Tab B.
Tab C is a one -page document. It's a map
the staff has prepared. You can see the green square is
Augusta's. You can see several sections of land
surrounding Augusta's are reflected on the map. And
Mere are red stars indicating the locations of
complaints or complainants. And so well be making
reference at times to the map. Of course, it's the same
map that's on the easel in front of you.
Exhibit D. which Ms. Roberge made
reference to, is not a -- as she assumed, a report or
summary of all objections or events. It was an activity
report that chronicled a long period of time, different
pieces of information, the history up and including
through November of 2007.
Of course, when this was prepared in
anticipation of the Planning Commission hearings. which
ultimately were heard on January 15. it chronicled
Page 33
certain historical information. And it's there for that
purpose. This is — this gives you one vehicle to look
into the history over a certain period of time.
But as Ms. Roberge mentioned. they had
made - in its acknowledgement. they made substantial
efforts to reduce the noise. And. really. the question
then is. So what have we seen since the Planning
Commission hearing? What have we seen in the community?
What have we seen in tumid recorded records? And
those areas reflected on Exhibit D. It's historical
It coves a long period of time, up through November.
and it doesn't tell you anything about recent reports or
objaYrats.
Exhibit E is a rather bulky part of this
binder. And it's got tabs for each month, front November
2007 through May 2008. And it includes primarily
reports from staff concerning each —
MS. ROBERGE. Mr. Mueller. an I interrupt you
for a minute? I just want to ask you a Question. Are
you gang to go ugh this whole book? Because a lot
of these people have left their jobs today to come down.
Is there any way that we dent have to have them sit
here for a couple hours?
MR. MUELLER: 1 dont know what to tell you about
that. I need to -- and of course. if I'm able to get
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1 through it. the quicker I can do it. the better. I'm
2 going to need to go ahead and describe to the Council
3 what they have in front of them. It's a volume of
4 material. And then there's going to be a number of
5 people spcak. I anticipate. Ms. Rotierge, probably
6 calling four staff persons, a couple of officers from
7 the Sheriffs office. and eight or ten members of the
8 community. local residents.
9 So it will take a period of time to get
10 through that. And I'll try to move as quickly as I can.
11 Though if I talk too fast, and I'm probably already
12 going too fast, the court reporter will struggle. But I
13 will try to move it along.
14 These are month -by -month reports.
15 MR. FERGUSON: Just --
16 MR. MUELLER: Yes. Mr. Ferguson.
17 MR. FERGUSON; Just by clarification. 1 think we
18 also have a scheduled break. for Zack of a better word,
19 for the court reporter at noon. So would it be fair to
20 say Ms. Roberge's case would occur after lunch possibly''
21 MR. MUELLER: In terms of the presentation of --
22 MR. FERGUSON: Of her witnesses?
23 MR. MUELLER: Absolutely. I think it will be
24 after lunch.
2 5 MR. FERGUSON: Does that help?
Page 35
1 MR. MUELLER: It will be after lunch.
2 MS. ROBERGE: Not really because people have to
3 work, and. you know, the City code officers --
4 MR. MUELLER: Let me say this.
5 MS. ROBERGE: -- are here all day.
6 MR. MUELLER: Let me say this and offer this.
7 Certainly. if there are people that have time
8 restrictions, we can take this out of order. however you
9 proceed. I'm not. you know, stuck on any particular
10 time frame or order that things have to occur in.
11 Whatever needs to happens to be fair to people -- they
12 should all be heard. If someone needs to lave and
1 3 cannot be available after lunch, then they should have a
14 forum before then. And I'm happy to do that.
15 MR. FERGUSON: Change the order.
16 MR. MUELLER: Whatever you need to do on that
17 front.
18 MR. SPIEGEL: Let me ask our attorney. Would it
19 be appropriate to change the order of presentation?
20 MR. ERWIN: Certainly. If the Council wishes to
21 do that. we can do that.
22 MR. FERGUSON: I guess my only concern. and I
23 know people have schedules. is the City does have the
24 burden of proof. Ms. Roberge, and Augusta's does have a
2 5 Conditional Use Permit. It's up to us to prove that
10 (Pages 34 to 37)
Page 36
1 that ought to be revoked, modified. or left alone. And
2 evidence that you might hear and might otherwise want to
3 respond to, if you go ahead of that, you wont hear any
4 of that evidence, so ...
5 MR. MUELLER: That's nght.
6 MR FERGUSON: So it's up to you.
7 MS. ROBERGE: Who wants to stay. and who wants to
8 talk now' Or who wants to talk later? Just show your
9 hands far now.
10 Who wants to stay?
11 Oh. 1 guess we have some true. die-hard
12 supporters Thank you.
13 MR. MUELLER. Let me try to do this.
14 MR KELLY. I have a concern.
15 MR MUELLER: Mr. Kelly?
16 MR. KELLY Because there we folks that art here
17 that are scheduled for another part of the hearing. but
18 we also have folks here that are depending on being here
19 for this part of the hearing. So when we hake a
2 0 decision to accommodate one group. we're then putting
21 the burden on another group.
2 2 MR. MUELLER: I agree with you.
2 3 MR. KELLY: So this was published this way. I
2 4 don't understand why we wouldnt stick to it.
2 5 MS. ROBERGE: I agree with you. Mr. Kelly. 1
Page 37
1 just wanted to know if Mr. Mueller was going to spend
2 hours on this book. which --
3 MR. MUELLER: I will move --
4 MS. ROBERGE: -- obviously isn't --
5 MR. KELLY. See, die other thing is --
6 MS. ROBERGE: -- truly correct.
7 MR. KELLY: -- if we give the hearing a
8 benefit -- we should give it the benefit of taking the
9 time that needs to be taken. and to try to make a
10 difficult decision like this and stuff it in a shorter
11 time would be a mistake.
12 MS. ROBERGE: I agree.
13 MR. MUELLER: I will try to do the best to help
14 on all fronts. I'll try not to — I certainly have no
15 plan to waste time. But. I think. if t don't help you
16 by explaining what we have here and get an orientation
17 of it. we slow the process down. If I have to do it by
18 examining witnesses as we go though this. we can do
19 that. but it's going to be slower.
2 0 MR. FERGUSON: As Councilman Kelly is fond of
21 saying. "We can read faster than you can talk."
22 MR. MUELLER: All right.
2 3 MR. FERGUSON: So if you can summarize.
24 MR. MUFI I FR: I will bear that in mind. But it
2 5 won't be hours. It will be just a few minutes to just
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Page 38
1 go over the -- generally what we have in front of us.
2 So we have the month -by -month reports.
3 And where there are e-mails from staff concerning their
4 own observations concerning noise kvels on site and
5 disturbance. those are intermixed chronologically in
6 Exhibit E. So E are your month -by -month reports. And
7 those are by and to staff concerning noise levels.
8 A summary page was prepared as Exhibit F
9 fora portion of that data. If you went page by page
10 though E. you woukl see that the overwhelming bulk of
11 data was gathered through the months of March and April,
12 where Tots of monitonng occurred. lots of data was
13 taken. and many reports were written.
14 That data is summarized on Exhibit F. And
15 there are four colored fines on F. Essentially. I'd
16 encourage you to not pay much attention to the top three
17 lines because those are all ten-minute readings. And
18 you'll see spikes of very high numbers over that time
19 frame that don't necessarily tell you that violations
2 0 have occurred. which, we believe anyways. should be the
21 basis of modifications.
2 2 I think it comes down to -- and the scale
2 3 doesn't help you much on that blue line. But along the
2 4 blue line on the bottom, you can see the summary from
2 5 staff readings of sound levels. And you'll see on the
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map when staff speaks here this morning where they were
at when they took these readings. But you can see that
there are many. many readings. It looks to me that over
the period of March and April. if I have the count
right. something like 18 instances where the readings
were above 55 decibel on a one -hour basis. not a
ten-minute. But those are summarized along the bottom
line. And at times you can see 53.6. you can see a
54.57, you can see a 58.22. As you read along the
bottom, you can see day by day. Fridays and Saturdays,
the readings that staff took.
And so that Exhibit F is a summary page.
if you will. for much of the data. And again. the data
in E covers a broader period of time. but I will tell
you. having personally gone through it page by page. the
bulk of the data is in Much and April. And the data
there is reflective of the same kind of ratios between
violations and not that you'd see in the other months as
well.
G. Exhibit G relates to a question
Mr. Ferguson asked. And that is. What about has staff
done anything to go out and test. essentially. the
reasonableness of the objections? And they have. And
they will tell you about their own -- about why they
undertook this task and what they observed. But their
Page 40
1 reports are Kerr in Exhibit G. There are a couple of
2 e-mails. and there are memos that are called "Augusta's
3 nighttime reasonable person observations.' And they are
4 the observations and reports of staff when they went out
5 to the objectors locations and listened to music.
6 And we have these brief reports.
7 generally, a one- or two -page memo from staff members.
8 But we should also hear from them today. And if you
9 have questions about their observations. you will have a
10 chance to ask them. Exhibit G here. anyways. is the
11 summary of those reasonabk person observations.
12 There are two other bulky sections, which
13 are Exhibits H and I. which are in here for historical
14 reference. And if there's data that you want -- for
15 example. in H. we have the package that. as is its cover
16 page, the application for appeal from the Planning
17 Commission hearing. And there's Planning Commission
18 materials that were submitted there in transcripts and
19 data. And the reality is there is no presumption in
2 0 favor of modification. The action of the Planning
21 Commission should not guide you here at this hearing.
2 2 Mr. Ferguson
2 3 MR. FERGUSON: Just a procedural question
2 4 Mayor Spiegel asked me before the hearing. and I just
25 want to get it on the hearing. Everything that the City
Page 41
1 has ever received in connection with Augusta. right.
2 wrong, indifferent. is included in this packet as part
3 of the record: is that correct?
4 MR. MUEU.ER As far -- well. I don't have
5 personal knowledge of that. but that's a good question
6 for staff.
7 MR. FERGUSON: lI defer to our City clerk who's
8 responsible for our documents.
9 To the best of your knowledge. it's all
10 here?
11 CITY CLERK: Correct. And n has been
12 distributed subsequently as well. We have received —
13 MR. SPIEGEL So if something came in the last
14 few days. that you --
15 CITY CLERK: We have distributed as well. And we
16 also provided a copy to Ms. Roberge this morning when
17 she arrived.
18 MR. FERGUSON: So everything is here?
19 MR. MUEL ER: And that was my goal m putting
2 0 this together.
21 I will say this. Mr. Ferguson: Because
2 2 When it came in to me -- and it was essentially in the
23 form that we're looking at here -- there was still. it
2 4 seems to tare, some duplication in here. Whether it was
25 obvious duplication. I didn't lave in multiple copies
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1 of the same thing because t was worried about Just
2 burdening you with volume. As I got through it. I kind
3 of realized, gee. there's some overlap here. So I
4 generally left things in. 1 think that I tried to avoid
5 duplication where possible. But this was -- my request
6 was for the entire file. and this is what we've ga.
7 And this is -- and rm just breaking it out.
8 The Planning Commission at H and at 1, we
9 see the older historical information back from the
10 original Planning Commission and Council hearings on
11 granting the CUP and the conditions. And that's 1.
12 At the back of the hinder is the
13 correspondence. It includes in the binder up through
14 the most recent May 6. 2008 objection by a Mr. John
15 Alk. or Alk (pronouncing), who sent that -- his letter
16 in. which is received by the clerk. as you can see. on
17 the 8th. There's several other pieces of correspondence
18 there. as far as 1 know. up through the date of
19 preparation of this hinder on the 8th or 9th. The --
2 0 this was -• this would have been a complete inclusive
21 list of all the correspondence 1 think some additional
2 2 things have come in and copies have been supplied to Ms.
23 Rahvrge and will be part of the record. Wait know if
2 4 you have those in front of you. But again. I think
25 there are additional -- a couple pieces of
Page 43
1 correspondence.
2 So with that. that's what we have here in
3 the basher. Do we have -- I guess I should wait for
4 Mr. Ferguson. Do we have any questions. though. about
5 what's in the binder?
6 MAYOR BENSON: Any questions? No questions.
7 MS. ROBERGE: So this is a complete binder,
8 Mr. Mueller?
9 MR. MUELLER: I'm sorry?
10 MS. ROBERGE: So this a complete binder?
11 MR. MUELLER: Yes.
12 MS. ROBERGE: Well. it's missing my letter to
13 City Council. It's missing lots of correspondence from
14 people on our behalf. There's none of that in here.
15 And that if this is a complete binder -- Exhibit D. like
16 1 stated, is the activity report. And if it's a
17 complete birder, it should have all the activity. And
18 if that's the case. there is no activity after November
19 2007.
20 MR. MUELLER: Maam. you'll have an opportunity
21 to ask questions of members of staff --
22 MS. ROBERGE: No. I'm just --
2 3 MR. MUELLER: — who helped compile this. the
2 4 binder. And so you'll have an opponunity to understand
25 what is included in Exhibit D.
12 (Pages 42 to 45)
Page 44
1 MS. ROBERGE: No. I'm just asking you. and you
2 said yes. if this was a complete binder. That's all I
3 want to know.
4 MR. MUELLER: That's fine.
5 MS. ROBERGE: And you said it was.
6 MR. MUELLER. And when I say "complete." 1 don't
7 mean to limit it in any way. If there is correspondence
8 that you believe that the City should consider.
9 absolutely. you should have an opportunity to provide
10 it.
11 MS. ROBERGE: Well. that's like answering is, is.
12 is.
13 MR. MUELLER- No, it's simply to suggest that
14 anything and everything that should be brought before
15 the Council can he today and that this binder. which
16 represents all of the materials that I have been able to
17 gather and accumulate on the issue. pro or con. are
18 presented hertz. And if there is anything else that
19 needs to be provided, absolutely. you have the
2 0 opportunity to do so.
21 MS. ROBERGE: Well. there's not one pro piece in
22 the binder. So I guess we're to assume there was no pro
23 activity within City Hall?
24 MR. SPIEGEL: Ms. Roberge, do you have a copy of
2 5 this?
Page 45
1 MS. ROBERGE: No. No. Oh, Is this mine?
2 MR. SPIEGEL• Yes, that one. If you go in about
3 seven or eight pages. youll see your letter that was
4 e-maned to me and given to the City Council and a
5 response from the Mayor.
6 MR. FERGUSON: I have also seen a number of
7 letters in support of Augusta in the binder. if that's
8 the question.
9 MS. ROBERGE: Where?
10 MR. MUELLER: You know, at this point --
11 MR. SPIEGEL: Could you find it, Denise?
12 MS ROBERGE: rm finding a la of things here
13 that I probably should have a minute to digest because I
14 didn't get this before our meeting today. But there is
15 a Co uecil's letter here. But rm seeing something that
16 is shaking. What's this. all these restaurant
17 rankings?
18 MR. ERWIN: Madam Mayer, I would like to suggest
19 that if Ms. Roberge has other items after she's had an
20 opportunity to go through this that she believes should
21 be part of the record, certainly, we would accept them
2 2 as part of the record.
2 3 MS. ROBERGE: Well. I didn't bring anything with
24 me to be accepted These here were left here right now.
2 5 I Just have one question. I'm not
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following. You have 70 points here with all the
restaurants in Palm Desert. Is this significant for any
reason?
MR. SPIEGEL: No.
MS ROBERGE: Oh. okay. Then I'm line.
So now the record is complete if we add
all this in?
MR. MUELLER; Madam Mayor. can I proceed with
calling a witness?
MAYOR BENSON: Yes.
MR. MUELLER: Mr. Ponder.
HART PONDER. Jr..
called as a witness on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q Good morning. Mr. Ponder.
A Good morning.
Q Could you state your full name for the
record. please.
A My name is Hart Ponder. Jr.
Q And what's your position. sir''
A I'm the code compliance manager for the
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Q And how long have you been in that
position?
A Over 10 years.
Q And have you been in any other positions
with the City?
A Within this City or other junsdictions?
Q Within this City.
A No.
Q The information in the binder, some of
this was gathered and organized and prepared with your
assistance: correct?
A Correct.
Q Let me -- let's go through a couple of the
items. and you can just tell the Council about what they
reflect and what your involvement in their preparation
was.
If you look at Tab C. which is the map --
or you could probably just look at the map here on the
easel -- can you tell me, were you involved in the
preparation of that?
A Ycs. 1 was. in the decision that we would
create a map to give perspective to the situation.
Q And the red Xs that are displayed on the
map. what are those?
Page 48
A Those arc the areas where we received
complaints regarding the Augusta's music.
Q What has been your involvement or
experience on that issue in terms of receiving
complaints concerning August's music?
A What we have done is we have different
areas that are assigned throughout the city. and Officer
Shawn Kilpatrick is the officer who happened to have
this area. So it was my instructions to make sure that
we catalogued and we addressed everything. And in an
efficient manner. 1 directed all the complaints to go to
Shawn in conjunction with him handling the case.
Q Now, Exhibit D in the hinder. we had --
Ms. Roberge has raised a couple of times here this
Augusta's Activity Report. Help me with that. What's
the activity report, and basically. what information
here is provided to the Council?
A What we have here is Code's perspective of
how we've been involved and what dates they've staved.
It could be reporting parties calling. or it could be
contacts from the Sheriff, usually after -hour calls,
disturbing the peace calls. loud noise and parties, and
things like that. After hours are handled by the
sheriffs. But what we do is. as staff. we try to
accommodate the businesses and the residents by giving
Page 49
1 them extra attention. where both of us can try to work
2 at it to help eliminate the disturbance.
3 Q The last entry in this document is shown
4 as November 2, 2007, if you turn to page 0017, the last
5 page of this exhibit. Does that mean there have been no
6 complaints to the City since November 2007 concerning
7 raise of Augusta's?
8 A No. it hasn't. They have continued to
9 come in
10 Q Exhibit E is the month -by -month
1 1 compilation of series reports. And in looking through
12 those, you'll see that many. many of these reports are
13 directed to you.
14 A Yes.
15 Q Can you explain to me what these reports
16 are, and how and why they're prepared?
17 A What these reports are, is we were
18 requested to meta the sound activity at Augusta's for
19 an indefirule amount of time. In order to trtake sure
20 that everything is in place and properly documented and
21 put into our system 1 directed the memos go to me. And
22 then from there, it goes up the chain of command.
23 Q Let's turn to one of these reports. Let's
24 turn to the month of March. since we can see it during
25 March and April there was substantial activity. Why. by
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Page 50
1 the way. is That? Why arc there so many reports
2 prepared in March and April?
3 A Because we were requested that every time
4 that outside amplified music was to be conducted. they
5 would like to get -- the Planning wouki like to get a
6 handk on it on what the decibel readings are because of
7 the reports that we were getting within the community of
8 the noise disturbances.
9 Q 1f you look at the first date in March.
10 March 1st. 2008, at page 50 -- 0057. there's a memo from
11 Mr. Kilpatrick to you. Do you see that?
12 A Yes.
13 Q And then a second page to that memo at
14 0058. Do you see that?
15 A Yes.
16 Q Is that accurate? Is 58 an accompanying
17 page that goes along with 57. part of Mr. Kilpatrick's
18 report?
19 A Yes.
20 Q Help the Council, if you would. with what
21 they should learn or see or observe from page 58. the
2 2 report that is the data from March Ise. 2008?
2 3 A The CUP requires that a one -hour average
2 4 be used when determining the decibel level for
25 Augusta's. And that's what the one -hour average
Page 51'
1 reflects. We were running two meters out there. So
2 when you see a one -hour average. the red is what the
3 average is. And then you have a high and low. And what
4 the sound meter actually does is it takes the hour
5 reading. and it gives you an average based on the noise
6 activity.
7 Q Now. on this page. on page 58. there's a
8 block at the top that says "one -hour reading." and then
9 there's a block at the bottom that says "ten-minute
1 0 readings"?
11 A Right.
12 Q Do you see that?
13 In the block at the top. the one -hour
14 readings. which number should the Council concern
15 themselves with in terms of evaluating whether Augusta's
16 was or was not over that night the 55 decibel limit?
17 A What has been the practice, the lawful
18 practice. the industry standards. is the average. which
19 in this case on this page would be 56.21.
20 Q So this would have been one instance. for
21 example. where Augusta's by the City's metering on that
2 2 night. the noise from the outdoor amplified music was in
2 3 excess of the 55 decibel limit; right?
2 4 A Correct.
2 5 Q On the map. can you -- where was -- do you
14 (Pages 50 to 53)
Page 52
1 know where this reading was taken from'!
2 A Yes. It was -- it was directly across the
3 street going toward going south directly behind
4 Augusta's.
5 Q So this wouldn't have been a reading from
6 out in the neighborhood, but this would have been right
7 behind the restaurant?
8 A Correct.
9 Q And is that your practice. to take
10 readings in that manner? Is that the proper way to do
11 it?
12 A 1t is the proper way. And it was
13 determined that that's where they would like to have the
1 4 readings taken.
15 Q Who is "they"?
16 A That would be the Planning Department. So
17 it would have been a request. Once a determination was
18 made where we would consistently monitor. it was in a
19 meeting, and we came to the conclusion that that would
2 0 be the appropriate place.
21 Q Now. Exhibit F is a -- the first page of
22 Exhibit F says. "Augusta's at a glance." Could you turn
2 3 to that and take a look at that for a minute?
2 4 A Yes.
2 5 Q Am I right that the three colored lines at
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top would all be ten-minute readings and wouldn't
necessarily be pertinent to the Council's decision
today? Is that fair to say?
A Yes.
Q Describe what's shown on -- by the way.
did you put this together. this chart?
A No. I didn't. I directed it he done. And
I had Officer Terfehr and Officer Kilpatrick work on the
data and the map.
Q Okay. And this shows. does it not. during
the period from March I. 2008. through Saturday.
April 19. 2008. on the blue line at the bottom. the
range of the average. the one -hour average decibel
readings outside of Augusta's'
A Correct.
Q So is it fair to say that that blue line
is a recap of the data for March and April that's in
Exhibit E?
A Correct.
Q And so wherever there are numbers in
excess of 55 decibels. what would those illustrate?
A That would illustrate that they're
violating the conditions of the CUP.
Q Now. timing it to Exhibit G -- and I'll
ask you some questions about this -- we have -- the
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first page of this is actually an e-mail from you. Do
you see that?
A Yes.
Q
right?
A Yes.
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Q And can you tell me why that e-mail was 7
done. and what kind of -- what the point of that
information was?
A We were receiving numerous calls from the
residents. some I received personally. and they were
very upset. And even though we were working with
Augusta's to get down to the 55 level. as close as we
could, in fact. we were still getting complaints
generated in the neighborhood. They were saying that
they were still being disturbed on the nights that the
outside amplified music was being played.
So staff determined that we would go out
into the areas, which you can see on the map the areas,
and determine if the complaints have merit. And after
going out and determining what l saw in these different
areas. I decided to relate this information to my
director.
Q Pointing out on the map, can you show the
Council which sites you personally made observations
Page 55
1 from?
2 A Yes. The red crosses or designations is
3 the areas where we had generally gotten the complaints
4 And myself. Shawn Kilpatrick. and Ryan Stendell -- we
5 went out while Officer Terfehr was monitoring to go out
6 and go to these areas and see if we can ascertain the
7 music being played from the areas that they were
8 complaining about.
9 Q Well. aside from ascertaining whether the
10 music was played. did you -- did you seek to -- did you
11 try to evaluate whether or not if it was your residence
12 at those particular sites, if that's whae you lived or
13 if that's where you were staying, if you would be
14 annoyed or disturbed by the level of sound? Did you --
15 was that part of your analysis?
16 A Yes. Yes. That was our intent.
17 Q What was your - just your personal, what
18 were your personal observations? How loud was the
19 music. and in what way did it impact you? Tell the
2 0 Council about your personal observations.
21 A At first I was amazed that blocks away --
22 usually with code enforcement noise complaints. you
2 3 maybe have one or two or three households involved in a
24 very close proximity to a violation. But 1 was amazed
25 that once we arrival at these areas. that the music was
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so audtbk and that you could hear it for blocks away.
So my first was amazement. Because I've been doing this
for 19 years. And for over 10 years I've served as a
hearing officer for the town of Yucca Valky and heard
noise complaints. And I was amazed at how far away we
could heard the music. In fact. we would get out our
Nextels. and we would identify a song. and then we would
call down to Officer Terfehr. who was just right across
the street. and we picked all the songs that were being
played. That's how well we could hear the music.
Q Hearing it. to me. is -- doesn't
necessarily suggest that it world be disturbing or
annoying or that it would be disturbing or annoying to a
reuanabk person. 1 think there's a difference. I
mean. heanng it is one thing. and having it loud enough
to be disturbing is another. What was your
impression •-
A Well --
Q -- on the latter question? That's really
what was important.
A Right. What I did is I thought about the
times aver the years that rye talked to the residents
in the area and how they described to me how they
couldnt sit out on their back patio and enjoy
themselves or that they feel they couldn't crack a
Page 57
1 window open when the weather was nice without the music
2 corning in every single weekend, Wednesday. Thursday, and -
3 Friday - Thursday. Friday. and Saturday. excuse me.
4 And I thought about this. and 1 placed myself in their
5 shoes. And I do not live m the area. but if I did live
6 in the area. and if I did experience it every Thursday.
7 F nday. and Saturday at the lever I heard it. it would
8 disturb me. And based on my past experience in dealing
9 with this, it seemed welt in line that the concerns did
10 have merit.
11 Q The last page of this Exhibit G is another
12 memo done from you. This one - the earlier one was
13 December. and this We one is March 19 of 2008. Do
14 you see that?
15 A Yes.
16 Q And is all the information in that e-mail
17 accurate information?
18 A Yes.
19 Q And one more thing, Mr. Ponder. In your
20 experience. you describe having dealt with these kinds
21 of hearings. noise complaints. and hearings concerning
22 observations of residents. whether they get pothered by
23 raise. Sometimes, I'm imagining. noise complainants may
24 be. however you describe it. kind of just peculiar folks
2 5 that are particularly sensitive or just get bothered by
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Page 58
1 something. and. you know. so they call and complain and
2 maybe even do that persistently. And other times they
3 might just be folks in the community. and you wouldn't
4 have that observation.
5 Is that a fair charactenzation?
6 A Yes. it is.
7 Q Not everybody who complains is necessarily
8 a reasonable person. I guess. is the point; right?
9 A No, that's true. Based on our experience.
10 we go out. and we first determine if it exists. and
11 based on the standards and how we've dealt with it with
12 court, working with the sheriffs department with
13 disturbing the peace. we have a pretty good idea of what
14 stands and what can he reasonable or not reasonable.
15 Q Have you reached your own -- just in
16 terms of your personal analysis and your personal
17 conclusions. have you reached any conclusions. in your
18 mind. about the reasonableness of the objections in this
19 case. that is, Augusta's outdoor amplified music?
20 A Yes. 1 believe that the reporting parties
21 who I've talked to on the phone and the areas where they
22 live and what they've described to me is what I have
23 found it to be in my personal experience, in a personal
24 and professional manner. and 1 feel that their
25 complaints do have merit and something to look at.
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MR. MUELLER: Thank you, Mr. Ponder.
Questions?
MS. ROBERGE: Yes, I have questions for
Mr. Ponder.
EXAMINATION
BY MS. ROBERGE:
Q Mr. Ponder. let's discuss the decibel
reading. We have asked the City to share with us all
their readings. And this was like pulling teeth, but we
eventually got it. And when the readings would come to
us, we are talking averaging, the highs one weekend were
way off the chart. So I looked at than. and I said, We
need to find out the reason for this. Because we also
have recording machines.
And so we called down and spoke to, I
believe it was. you. And the reason the high was so
high was there was someone that had blown their horn.
There were apparently loud noises. So what I'm saying
is it doesn't need to be Augusta Restaurant's music that
throws that high up high. And if you take the
average -- because those highs were off the chart. If
you take the average. then the average of our decibel
level is distorted. And we've had numerous
conversations with you about this.
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Page 60
And our monitoring system shows on the
graph when something is done like that. So we can chart
a big car went by, a diesel truck went by. Even an
airplane distorts that.
So on your readings. they are not accurate
and correct.
A Well. it is --
Q I'm not finished. Sorry.
A Oh. I'm sorry.
Q Okay. That was one major concern that
we've been discussing with Code Enforcement for the last
two or three months. But our readings are as close to
55 as can possibly be with very little up and down.
Okay.
And then. Mr. Han. are you -- I always
call you Mr. Han. fm sorry. I've always done that.
Are you the gentleman responsible for calling and saying
that the music is offensive. abusive, public nuisance?
A I don't understand saying that. I -- all
my reports are in here and my viewpoints.
Q Well, it's just a question.
A I don't recall ever couching anything that
way. I do use the term "public nuisance." and I do use
industry standard terms to communicate certain things.
And I might have said this could pose a public nuisance
Page 61i
it the neighbors' complaints have merit. I remember
making statements like that.
Q Where do you live, Mr. Hart?
A I live in the area of Washington and
42nd Street.
Q Washington and 42nd. Is that Palm Desert?
What town?
A Council. 1 feet my location. because of my
job, is really irreverent here. I ask that 1 not answer
where I live.
Q Well, I'll ask a different question.
Is it really quiet where you live?
A I -- compared to the area behind your
thing. I'd have to say yes.
Q Well. I wasn't making that comparison. I
was simply asking you if it was really quiet where you
live?
A Yes. I've never complained or offered
a—
Q Well. then you -- well. Um lust asking a
simply question.
A Okay
Q If it's very quiet where you live. then
you may be — you choose to live there because you like
it quiet. You may net be the right person that's
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1 deciding how quiet that it is to live in. whether it's
2 obtrusive and offensive. Possibly you're not the right
3 person to be making this derision. And the other
4 thing --
5 A I do agree with you.
6 Q Well —
7 A I do live in a residential zone. and 1 do
8 expect to have the quietness of a residential zone. You
9 are right.
10 Q Thank you.
11 The other thing that we've always had a
12 problem with. you and I, is when I ask you to check
13 further on something. it's never done.
14 A I don't know what you're talking about.
15 Q Well. I've had many discussions with you.
16 "Please go inside their houses." Because I have. I
17 cannot get you to cooperate with me on that. I've asked
1 8 you. "Check with the other neighbors." Nada.
19 A I don't recall you making that request.
2 0 Q Okay.
21 A But after being in the general area. 1
2 2 felt there was no reason to go inside the house.
2 3 Q So you're pretty much the gentleman that
2 4 gets to decide whether you should check it further,
25 whether the noise is obtrusive. offensive, whether I'm a
Page 63
1 public nuisance. and that bothers me.
2 A No. ma'am. I don't have that power.
3 Q Well. how many times have you said -- and
4 it's in your memos -- that you totally disagree that •
5 City with City Council. they should never have given
6 that CUP permit? But Mr. Hart. that was enough --
7 Mr. Ponder. that was enough to you to decide whether the
8 City Council should or should not have given it. And
9 if you go into making your decisions with the
10 pre -decided judgment. they're not -- they're biased.
1 1 And this whole thing has been biased.
12 A Well. I'd like to respond. That -- my
13 current viewpoint. which I stated as such. was done
14 after I went to the residence area and 1 observed the
15 noise coming from the different areas from no less than
16 three blocks away. And yes. it is my opinion. based on
17 what I've heard and what's been going on, that next to a
18 residential area, outside amplified music is not
19 compaubie based on what I've seen on this case. And
2 0 that is my current viewpoint. yes.
21 Q Well. you know. I live in a commercial
2 2 area. If you want to live by a commercial area because
2 3 you love the beautiful street of El Paseo. then there
2 4 are some drawbacks with that. So. you know --
25 A I understand that. I know in close
Page 64
1 conjunction there is. But three blocks away? That -- I
2 have never ran into that
3 Q I have disagreements with you about three
4 blocks away. too.
5 A Okay.
6 Q But kt's discuss how many Zink dots you
7 have on your map up there.
8 A Okay.
9 Q I sot seven. 'They've been the same seven
10 link dots for how many years'
11 A Yes. you're correct It seems like that
12 general area has been affected the most.
13 Q No. no. not general area. All the reports
14 I have. one of them moved away. She went to The
15 Vintage. She thought it was too noisy -- I mean. went
16 to Indian Wells. She thought The Vintage was too noisy.
17 so she moved to Rancho Mirage.
18 So you have seven dots on your map. Those
19 seven dots are the same seven dots that have always been
2 0 there. And the same when it comes to my report. we have
21 analyzed all the information you have given me.
22 A Yeah. that's a good report. 'That's why
2 3 staff decided to make an investigation and go up to
24 these areas and see if you can really hear it and see if
2 5 what's happening is what they describe. And again, it
Page 65
1 is my current viewpoint that what they do — have
2 descnbed and what they're experiencing every weekend
3 while the outside music is going on can be heard and
4 audible there. And based on my past experience in
5 enforcing noise disturbances. it more than qualifies for
6 serious consideration in relationship to the rat of the
7 information.
8 Q Serious consideration when they're living
9 so close to a commercial zone?
10 A Well, 1 let the good Council decide if
11 three blocks or more is reasonable. 'That's not my
12 decision.
13 Q 1 also have done readings three blocks or
14 more away. and we -- their ordinance is 45 decibels.
15 All our readings don't show the noise level at 45
16 decibels.
17 A You bring up a good point. And that's one
18 of the challenges of using a meter. Sometimes a meter
19 does not represent or can capture all the essence of
2 0 sound in an area. That's why our zoning ordinance
21 relies on a state sound ordinance that has guidelines
22 that we can use.
2 3 But she is correct. You cant rely on a
2 4 meter consistently in all situations. Meters can be
2 5 used a lot fora noisy pool pump. It can be used a lot
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for stationary noise surfaces. It's very difficult with
sound because you have a base range and a high rate.
We're using the -- and she's right, when you go three
blocks away. you won't get a bad meter reading. But
it's still audible. and you can still hear it.
I'm no sound engineer. but I have been
through the theories of training in the sound and
recording, and the only thing 1 could figure out is you
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complaints across 111. We never receive it going north. 11
But because of the natural scope. ifs just amazing to . 12
go over here on a clear night and hear the music. 13
So.. 14
Q Mr. Hart -- Mr. Ponder. has the 15
improvements we made since November seriously cut down 16
the noise level in your opinion? 17
A The noise level readings - she has been 18
diligent in using different mechanises to dampen it. 19
She has been. We've peen out a let. and we've worked 20
through different things. And that's what sort of 21
amazes us is that as she got it claw and closer to. at 22
least, the target. the noise complaints were still being 2 3
generated. And that's when we decided to go into the 2 4
community. 2 5
Page 67
1 MR. FERGUSON: Mr Mueller. are we allowed to ask
2 questions!
3 MR. MUELLER. Ahsolutely. I think that
4 procedurally, once Ms. Rnberge has finished. hut
5 frankly. it could be at any time. And I would invite
6 you, actually. any time you have questions of Council to
7 go ahead and jump in.
8 Because there is an opportunity to ask any
9 questions of these witnesses. you know. while they're at
10 the podium.
11 MR. FERGUSON: 17l wait until Ms. Robage
12 finishes. And 1 don't mean to interject a lot. but we
13 are talking about. if I'm to believe what I've been
14 given by Ms. Roberge, taking somebody's business away.
15 which 1 take to be pretty serious. So I'm going to
16 have. probably. quite a few questions But 1 want you
17 to have every right to ask yours first.
18 BY MS. ROBERGE:
19 Q Well. 1 just have one finishing big
2 0 question. By accident. and thank God. we received an
21 email that literally just almost made me sick because I
2 2 had decided to really work hard with the City Code
2 3 Enforcement and everybody to get this music down. And I
24 should have done it earlier, no question. But through
2 5 this e-mail that 1 received, it said. What are we going
18 (Pages 66 to 69)
Page 68
to do'! I'm just doing a synopsis of it.
A To understand. though, who sent the e-mail
and when? I don't recall anything.
Q Well. okay. I'll take you back there.
A Okay.
Q I was getting -- my anomey and us were
all getting e-mails going back and forth. And your
auorney accidentally sett an e-mail to my attorney.
And then he quickly sent it on to me. In that e-mail it
said that you were very uncomforubk that we might get
our noise level down to 55 or below and then what are
you going to do?
So that says everything to us: that you
had no intentions of working with us. If you have
intentions to working with us. you would have said.
whoa. they're getting it down to 55 and maybe below. and
then went to check and see how the sound kvel was with
the people that have complained in the neighborhood.
The Planning Commission meeting was the next day. You
didn't even bother to go check and see what the noise
keel was after 55. You had programmed your mmd so
much that we are closing this restaurant down.
A 1 don't recall -- you didn't state who
sent the e-mail or what was going on. but I do recall
this in my mind. We were getting down to a target.
Page 69
i She did lower it. but we were still
2 getting complaints from the neighbors.
3 Q Mr. Pander --
4 A Let me answer.
5 Q Sorry. No. no.
6 A Let me answer.
7 Q No. No. wait
8 MR. MUELLER: Excuse me. I need to object You
9 can ask him a question. but you do need to let him
10 answer the question. Ms. Roberge. I mean, it's -- the
11 court reporter will not he able to take down everybody
12 talking over each other.
13 MS. ROBERGE: Okay.
14 MR. MUELLER: And so in fairness. you can ask him
15 the question.
16 MS. ROBERGE: I'm with you.
17 MR. MUELLER: And you can have an opportunity to
18 answer. and you can ask another question.
19 THE WITNESS: Anyway, in context, that's very
2 0 realistic. Staff. by no means. wants to go and rush and
21 do something to a business that they feel harmful. We
2 2 realize our admtnistenal duties and what we have to do.
2 3 I've been to Augusta's. I understand that
24 it's a great place. But my worry was/is we were
2 5 reaching the target. and we were focused on, but we were
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Page 70
1 still getting noise complaints. The Shenffs were still
2 getting calls. Neighbors were calling up and saying.
3 "It's still bud." And in that context. you're nght. I
4 was worried. What are we going to do next if we hit 55.
5 but we still have a goodly number of residents still
6 complaining. thinking it's a problem?
7 Now. I don't know the exact time frame of
8 when it happened. but we all agreed that the least we
9 could do is go out there. go to these areas. and see for
10 ourselves what's going on. So that would be the context
11 I'd take it in.
12 BY MS. ROBERGE:
13 Q Mr. Han. let me help -- Mr. Ponder. Id
14 me help you with the time frame. Okay? This e-mail was
15 sent the day before the Planning Commission. And in the
16 e-mail you said. "They're going to get it down to 55 or
17 below. What are we going to do'' How should we deal
18 with this presentation to Planning Commission?"
19 A 1 had never wrote an e-mail that said
20 that. And I would like to see it. please.
21 Q Well --
2 2 A I have not written any type of email that
2 3 ever said that.
24 MS. AYLAIAN: That was my e-mail.
25 MS. ROBERGE: Well. your e-mail of what
Page 71
1 Mr. Ponder said to you. Well. let's have the e-mail. I
2 didn't bring it. It's not in the --
3 MS. AYLAIAN: If it's appropriate. I can answer
4 these questions since 1 am the author of the e-mail.
5 MS. ROBERGE: Well -- but I don't want --
6 MR. MUELLER: 1'd say this --
7 MS. ROBERGE: I don't want my point to be lost.
8 Q My point -- the only point that I'm trying
9 to make here is after we ve got the sound up to 55, you
10 did not go out to see if there were any complaints. You
11 directly took it right to Planning without checking.
12 Maybe this works at 55. Maybe it has to be a little
13 lower. 1t was -- it just proves that you were so intent
14 on shutting the music down at Augusta, you and the other
15 officers weren't working with us.
16 A Our goal was -- our only instructions were
17 to record and report the information. And when we
18 noticed that. as you started to work with it going down.
19 we were still getting complaints. We didn't go out
2 0 there and look for them And phone calls were still
21 coming in. So we had two scts of information that we
2 2 were dealing with. And I'm sure that's the context of
2 3 whoever wrote that e-mail that you're talking about is
2 4 that we have -- one hand, were trying to get to a
2 5 target, but another hand. were still getting complaints
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Page 72
generated And I think that is the context of that, not
seeing the e-mail.
Q Well, we dont need to beat a dead horse.
1 disagree with you.
Q Okay.
MR MUELLER: Any other questions for Mr. Ponder?
MR. FERGUSON: Yes, 1 have — if nobody else
does. I have a few
MR KELLY: When you get through. 1'll ask some.
EXAMINATION
BY MR. FERGUSON.
Q Focusing un page 0125. your memorandum of
December 2I st, 2007. m your rust sentence you say. "I
cant believe what you can hear playing blocks away,
despite what the DB numbers are. The RPs are correct,
and I would be pissed off if 1 lived there."
Is that accurate? Did you say that?
A Idd.
Q Okay. That was dated December 21 u. 2007:
correct?
A Yes.
Q If you rum to Exhibit E for December of
2007 —
Page 73
1 MR. MUELLER: Exhibit E?
2 BY MR. FERGUSON:
3 Q -- page 0032. this is a report generated
4 the day before you wrote that memo that shows the -- and
5 were asked to use the 60-minute intervals, not the
6 10-minute intervals. but the 60-minute interval of the
7 average noise level at Augusta was 53 decibels. So
8 while she was in compliance by at least two decibels,
9 you're saying you war pissed off. fm just quoting.
1 0 A Yeah. To put that e-mail in context —
1 1 Q And by the way. let me lust make a quick
12 statement. This is no a popularity contest. This is a
13 semi-adjudicatory process that does have legal
14 ramifications. There is a record. I am going to ask
15 questions that I sex. whether they're tough for you or
16 tough for Ms. Roberge. k makes no difference to me.
17 A I appreciate that.
1 8 Q I view my role very seriously. I do sex
19 an inconsistency here. fm just simply asking you about
2 0 it.
21 A Sure. By explanation. on the "pissed
2 2 off," 1 should have used quotation marks because I had a
2 3 resident call in and literally screamed at me saying
2 4 they were pissed off. pissed off. And they didn't use
2 5 a -- they didn't give me their name. They just hung up
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on me. And what I was doing is I related that
information that we got another bad one. And not
knowing that this was going to actually go in the real
record. this was just a communication to my supcnor
following up on that conversation.
Q Well. I don't mind your --
A Okay.
Q Well, we can quibble about your use of the
language. but that's not my problem.
A But I was. I said I would be pissed off
too.
20 (Pages 74 to 77)
74 Page 76
Q My problem is your reaction seems to be
rather vehement given that she was in compliance under.
at least. the objective section of our code.
A Council Member Ferguson. 1 agree. It was
baffling that she was in substantial compliance with the
noise. but in the residential area blocks away you're
still receiving the noise.
Q Okay.
A I agree.
Q Okay. Then going to paragraph 2 of that
same memo of December 2I st. second sentence -- and rm
quoting -- "I would declare that no subjective sound
measurements can be achieved."
What did you mean by that?
Page 75
1 A Yes. What I mean by that is certain types
2 of sounds you can objectively use. Usually a pool pump.
3 usually a stationary noise. sounds -- a sound meta
4 works very well. But when you talk about music. which
5 can continuously wave up and un. or a party or a loud or
6 dunking, when officers go out for disturbing the peace.
7 they don't use a sound meter. It's the reasonable mad
8 theory and what they feel baud on the thing. And 1 was
9 stumped that -- and based on my experience, that this is
10 a situation, in my own personal opinion. where a sound
11 meter isn't accurately recording and representing the
12 impact it's having in the neighborhood.
1 3 Q And I guess where I'm stumped -- and this
14 is my last question. And maybe it's for the city
15 attorney. But at the beginning I asked -- .030. I was
16 told, was an objective standard. and Ms. Roberge. at
17 least on December 20th. was two pants below that
18 objective standard. And .040 is a subjective standard.
19 and your e-mail says that's not attainable.
2 0 A Mr. Ferguson, yes. based on my experience,
21 she has complied on certain nights. but yet the noise --
2 2 Q This was for the month of December.
2 3 A Right. Right.
24 Q Okay.
2 5 A So you're correct. The meta is not
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blocks away.
EXAMINATION
BY MR. SPIEGEL
Q My question -- two quick ones. One. was
Ms. Roberge notified from the beginning that we were
8 doing a monitoring of her sound level?
9 A Well. I was not at the decision -making
10 process on how it would be recorded or done, so I don't
11 have personal information to know how -- why Code was
12 ordered or for what duration. I just wasn't in those
13 meetings.
14 We were approached and said we need
15 monitoring. and then we provided that.
16 Q Was the Planning Department at about the
17 saran time reviewing the noise ordinance with any
18 interested business in the city to try to come up with
19 one that we felt was appropriate?
2 0 A 1 have -- I know I can only think of
21 passing comments and desires on certain things that they
22 were working with on a lot of levels. Because we do
23 have a noise ordinance element in the City general plan.
2 4 And I know a lot of decisions have to be based on noise.
25 But I'm not -- I don't have personal information.
Page 77
1 really. specifically.
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MR. SPIEGEL Thank you.
EXAMINATION
BY MR. KELLY:
Q Yes. Mr. Ponder. in your experience as a
code enforcement officer. you get lots of complaints.
That's your business. And what percentage of complaints
would you say you got are legitimate?
A Oh. I would say probably -- I would say
the vast majority. over 90 percent of citizens who call
usually has some level of merit to their complaints. So
I'd say the vast majority at least.
Q Vast majority? Like percentages? Well,
ell accept a ballpark figure.
A 1 would say at least 98 or 99 percent of
the time. Sometimes we do come in. and if we see a
neighbor dispute. we apply the law and the ordinance.
And then our job is not to get involved in the neighbor
dispute. but to determine if there is a violation or
not.
Q But you'd say 98 or 99 percent of all the
code violations that are reported to you are legitimate.
so that would tell us probably at least 90 percent of
those are legitimate?
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Page 78
1 A Well. yes. And actually. in my mind, it's 1
2 100 percent after going out there and actually going 2
3 several blocks away and seeing it and disturbed that the 3
4 noise level is down somewhat through a meter. 4
5 MR. KELLY: Thank you. 5
6 6
7 EXAMINATION 7
8 BY MR. MUELLER: 8
9 Q A couple of just very small follow-ups? 9
10 A Sure. 10
11 Q I think sometimes the words "objective" 11
12 and "subjective" readings. it gets confusing to me. and 12
13 maybe to a lot of people. I want to go to your memo of 13
14 the 21st and make sure we're talking about apples and 14
15 apples here as we reread your memo. 15
16 A Okay. 16
17 Q When you -- and Mr. Ferguson pointed 17
18 out — and this is page 125 -- 18
19 A Okay. 19
2 0 Q -- That you said that "I would declare 2 0
21 that no subjective sound measurement can be achieved." 21
2 2 That statement. did you man to say that you was of the ; 2 2
2 3 opinion that relying on the meter wasn't a valid way to 2 3
24 go or relying on the opinions of neighbors was not a 24
2 5 valid way to go? 2 5
Page 79
1 A It seemed that relying on the noise meter
2 was not a valid way to go based on the complaints.
3 Q And that was because the meter said low,
4 and the complaints were still high?
5 A Correct.
6 Q And that's what you were saying in this
7 e-mail?
8 A Yes. sir.
9 And also, for the record, I'd like to
10 state that we did work with Denise's staff. We would
11 share information. We couldn't share it right on the
12 spot because it has to go through a computer and a
13 software program. But we were -- Lauri gave orders to
14 cooperate fully. And as soon as we got these numbers.
15 we transmitted them to Denise Robcrge s staff.
16 during the times it was metering we'd share things or
17 even give helpful hints.
18 One time they were metering off the car,
19 and just because of the vibrations and stuff, we gave
2 0 the helpful hint that it should be on a more sturdy
21 projector. like a tripod. if they really waded accurate
2 2 information. So we were cooperating with them as best
2 3 as we could.
24 MR. MUELLER: Thank you. Mr. Ponder.
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Page 80
EXAMINATION
BY MS. ROBERGE:
Q Mr. Han — Ponder, this was written on
December the 21 st. and you say that at that time there
was no subjective sound measurement can be achieved —
that's a pretty blunt statement — and that staff and
the residents arc correct that the sound generated is a
public nuisance.
If you felt that way and knew that at that
time. why did you allow me to go on spending more money
when you had already decided that if I got the decibel
level down, you were still going to declare us a public
nuisance? Why would you not come to me at that time and
share this?
A Well, let me say this: My role as the
code enforcement manager is to lake a situation. give an
observation, and give my currant viewpoint. In this
case, 1 was not the one making the decision, but I did
give what my experience was and what I felt was going
on. And though I wasn't in most of the meetings on the
arrangements on what was going on or what you should
spend. I was net -- I was not involved in that. But I
would like to state that at one time your assistant did
call. and !did give her -- shortly after this. I did
give her the same impression as 1 did my director.
Page 81
Q Impression — that's very subjective when
you knew black and white on the 21 st that you had no
intentions of working with us because you did not
believe that it would do any good for us to get into
compliance. All you had to do was share that with us.
If we're supposed to be working with you as the City.
then we deserve to know that.
A Well, then --
Q No. I'm not quite finished.
A Okay.
Q We deserve to know that. So then it was
our decision as to whether we wanted to spend more money
and more money on a moving target that would never
satisfy you.
A I would like to state that we did share
our readings with you.
Q No, no. rm talking about the "no
subjective sound measure can be achieved."
A When 1 communicated this to Lauri, this
was in a time, as I remember, where we were meeting with
your staff. And 1 did give my nxomnYndation and
opinion at that point regarding what 1 fek. But
remember something, please. is that my director gets
many opinions and observations on many different cases.
and mine is just one based on my experience. And !do
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Page 82
1 stand behind it. And I did see my director meet with
2 Denise and/or her staff constantly, sharing the
3 information, trying to work to get it to a level. But
4 when the complaints continued, and we went out there and
5 we saw that it was blocks away. we realized that the
6 meter reading of 55 would not be a panacea to the
7 community in that area as far as 1 could see.
8 MR. MUELLER: Madam Mayor. could I interject
9 something?
10 And let me just tell you in terms of an
11 outline of what we have to do today. 1 have 14
12 witnesses I'm going to call. If we debate the entire
13 case with every witness. instead of getting whatever
14 factual information we need to get from them. we will be
15 here on my side of the case 28 hours. And 1 don't think
16 any of us want to be here that long. And none of us
17 will make it even a third of that, in truth.
18 So what I'm going to try to do is make
19 sure I rein myself in to getting the important facts
2 0 from our witnesses, answering -- making sure you have an
21 opportunity. Ms. Robcrge or the Council. to get
2 2 additional facts from them. but at least I would suggest
2 3 that if we make it a one•an-one debate between
24 Ms. Roberge and each witness about the whole merits of
25 the situation. well get bogged down. We need to get
Page 83
1 the facts out.
2 MS. ROBERGE: Mr. Mueller. 1 don't have any --
3 I'm not going to debate all the people. I'm debating
4 the code enforcement and debating that hard because
5 therein lies my case. It was a deceptive star -- I
6 mean, excuse ruse. the City was very deceptive with me
7 from the very beginning. And that's why I have a lot of
8 questions for Mr. Han. simply because the Code
9 Enforcement did not work with me with any degree of
10 honesty that they were trying to help me solve this
11 problem. So I'm not here to question everybody that
12 comes up. Mr. Ponder was my main gentleman that 1
13 wanted to get some correct answers from.
14 MR. MUELLER: Would you prefer we try to call one
15 more witness before taking a break? It's 10 minutes to
16 noon. It is going to he another staff person. I
17 anticipate calling Ryan Stendell What would your
18 preference be?
19 MR. SPIEGEL How long do you anticipate
20 Ryan Stendell will be there?
21 MR. MUELLER: rii ask him five minutes of
22 questions. 1 was planning on ten. but I'm gang to cut
2 3 everything in half from here on. I'm going to go with
2 4 five.
2 5 MR. SPIEGEL Let's go with Ryan.
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Page 84
MR MUELLER. Thank you.
Mr Stendell.
Thank you. Mr. Ponder.
MR. PONDER: Thank you.
RYAN B STENDELL.
called as a witness on behalf of the City,
was examined and testified as folkws:
THE W tTNESS: Good afternoon, Madam Mayor, and
City Council.
EXAMINATION
BY MR. MUELLER:
Q And your full name for the record. sir.
A Full name is Ryan Bergquist Stendell.
Q Your position with the City',
A I'm an associate planner.
Q Mr. Stendell, you assisted in compiling
the documents that are in front of us in the binder;
correct?
A Correct.
Q I'm going to — I'm not going to belabor
this. I had thought about having you kind of walk us
through some of the different collections of documents
Page 85
1 You heard my description of the different categories of
2 documents that we have before us in the binder here.
3 Anything strike you as being missing in that
4 description? Anything else that the Council needs to
5 know about the material themselves that are here in
6 front of us?
7 A No. We have several cases on this. This
8 is the code action. There was the original CUP for the
9 restaurant and the buildings. and this is a complete --
10 as complete of a report as we can get on the music
1 1 issues that we've had at Augusta's Restaurant.
12 Q In Exhibit E, there are meter readings
13 for -- on a month -by -month basis. and some of those were
14 actually taken by you and some reports were given by you
15 concerning meter readings; correct''
16 A 1 never did meter readings. I'm a
17 planner. I am not an expert on using the sound meters.
18 However. I did participate in several reasonable man
19 studies.
2 0 Q 1 apologize. 1 misstated that
21 The reasonable man studies are in
2 2 Exhibit G. And you actually did a memo to Had Pander
2 3 at page 127. a memorandum reganling your observations:
2 4 correct?
2 5 A Correct.
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Page 86
1 Q Those were taken on a night when meter 1
2 readings were being taken. but you weren't taking the 2
3 readings: is that correct? 3
4 A Correct. 4
5 Q And looking at pages 127 and I28. that's a 5
6 memo, is it not. from you to Lauri Aylaian -- 6
7 A Yes. 7
8 Q -- describing your observations: correct' 8
9 A It absolutely is. 9
10 Q Everything in this memo accurate? 10
11 A Yes. 11
12 Q Now. putting the memo aside. tell me what 12
13 happened that night. Why did you go out there? What 1 3
14 was your mind -set? And then what did you see' What did 14
15 you experience?
16 A fll be as brief as I an. The — when
17 the potential came up in the Planning Department for
18 there to be a modification hearing of the CUP and the
19 case was assigned to me. I asked right from the get -go
2 0 if there were reasonable man surveys done. that 1'd be
21 included in them if I was going to be the person writing
2 2 these reports on any revocatiah modification hearing.
23 At that time there was -- because it's
2 4 typical that we would have the planner simply take data
2 5 from the code compliance department, analyze it. and
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Page 87
1 interpret it. and change it into a report. In this case
2 I felt that it was imperative to make sure that I was
3 included. Neither Mr. Ponder. nor Ms. Aylaian, my
4 director. had a problem with that, and I was allowed to
5 include myself. on several occasions. with the Code
6 Enforcement officers monitoring -- we picked four of the
7 locations closest -- I'll point to them briefly.
8 Q Please. point to them on the map.
9 A This location, this location. this
10 location. and this location (indicating), the four
11 kxations that we used as our four bases for our
12 reasonable man surveys. 1 don't recall which direction
13 we went that evening. but each different direction --
14 each different location has its own characteristics.
15 Some worse than others.
16 I've been out there on some nights where.
17 as a reasonable person. I don't feel it's an issue. On
18 the bulk of the nights, typically Fridays. and Saturdays
19 especially. are the worst nights. and that's when I
2 0 would hear the most of the music. But again. we get to
21 the point at the end of all of my manes that I've
2 2 written. that 1 just come back to the conclusion that I
23 think that. you know. as a city and a planning
2 4 department. we don't have a lot of experience granting
2 5 Conditional Use Permits for amplified outdoor music
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Page 88
especially when they're next to residential zones.
I just believe it's just been a simple
error in judgment. We can't expect outdoor amplified
music to be a compatible use next to an existing single
family zone. And that has been my experience throughout
this visiting different occasions.
rve tried to make -- my assertion is
if -- I feel like I'm a pretty reasonable person -- if I
lived here. and I wont use as strong words as others.
but that I would be very upset if I, on occasions. heard
what Ive heard when I've been out there.
Q Well. let me ask you. first of all, I
mean. do you have an aversion to? Are you against rock
and roll? Are you against loud music? I mean. are you
one of those people that just doesnt -- you know, it
bugs you?
A No. In fact. my previous director had a
saying that 171 be the best friend you've ever had
t'U be the fast to sometimes agree that we need more
entertainment in this town. There isnt a lot of it.
However -- and when I first took on the case. I was kind
of thinking. well. hopefully it's not that bad because
it would be nice to keep that.
The very fust night that we went out
there. 1 was sad -- I was very shocked at what I heard.
Page 89
1 was -- that the residents have to put up with what
they're having to put up with. On the other hand. I
understand that they have a very, you know. what
probably is a very fun atmosphere. It's kind of sad to
see actually.
Q In your personal opinion. if it was you
that lived in the locations that you visited. the four
locations that you described, would yet. in the words of
the ordinance, be disturbed? Would you have been
disturbed or annoyed by the noise on those evenings that
you heard?
A Absolutely. And it's mostly the
frequency. If I had to put up with it Thursday. Friday.
and Saturday night. week in. week out. absolutely. I
would be. fm okay with a neighbor having an occasional
party. I'm okay with a sporadic. you know, noise. but
every — the frequency of music would definitely disturb
and annoy me as a resident of one of those hones.
MR. MUELLER: Thank you.
Questions. Ms. Raberge?
EXAMINATION
BY MS. ROBERGE:
Q Ryan. how many times did you go out?
A l believe we've documented four.
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1 Q No. you. you personally.
2 A Myself'
3 Q Yes.
4 A I believe -- well. I've been out there
5 several times on my own. which I have never documented.
6 but just to listen to see how things were going.
7 Q Can you just give me a rough idea of how
8 many times?
9 A I've been out there probably between eight
10 and a dozen times.
11 Q Have you ever been in any of their homes
12 to see --
13 A No.
14 Q -- to see if you could hear it?
15 A No.
16 Q Wouldn't that change your opinion if --
17 just a minute.
18 A Sure.
19 Q Who goes out after 10 oclock at night in
20 the winter? And I really am shocked you haven't been
21 into one of their homes with such adamant opinions on
22 how terrible the raise is: that that wouldn't have been
2 3 something you would have researched?
24 A 1 occasionally will be out on my patio
2 5 past 10:00. and 1 know there are lots of people in the
Page 91
1 area that are. 1 have stood right next to sliding glass
2 windows where if I were trying to sit there and watch TV
3 or if I were trying to sit there and read a book or even
4 go to sleep. I feel like I could make the reasonable
5 assumption that standing right there versus just on the
6 inside of that. that I could --
7 Q Oh. sony. you're outside. I mean, I take
8 objection to that assumption. Because my question to
9 you was. Have you ever been in one of the homes and
10 heard the music?
11 A No. I've never been in one of the hares.
12 Q Because you can't. And 1 know that And
1 3 so what I'm saying is -- and you say people are sitting
14 out on their patio at 10 o'clock at night''
15 A It's not unheard of.
16 Q Well. you know, nothing is unheard of in
17 the winter. But to make such a profound statement on
18 not able to answer those two questions. in my opinion,
19 it doesn't hold much meat. What it does show is that
2 0 you did not have intentions on really solving the
21 problem or seeing just how had it really was before you
2 2 voiced your opinion.
2 3 A I will answer that we have made every --
2 4 we've worked through every hearing that we've had up to
2 5 the date of the hearings with Tiffany and with your
24 (Pages 90 to 93)
Page 92
1 sound consultants. that you have had. in every attempt,
2 to try and move curtains here. move panels there. and
3 still go out and check. one, the metering. and. two, the
4 reasonable man. And as Mr. Ponder pointed out, as we
5 started coming down to honing in on that 55. we still
6 realized that. hey. there's still a pretty decent
7 problem out there. You're still hearing this music.
8 We're still able to discern exactly what the song is
9 once I step outside of the car and listen for. you know,
10 five seconds.
11 And that speaks to -- you know. my point
12 of reasonable is I feel like if it were just a very
13 faint sound. I wouldn't. probably, have a problem with
14 it. But I've heard it very loud, to the point where
' 15 upon exiting the car you can pick up the sound and then
16 pick up the song. And I find that if I were -- I mean,
17 I find that to be -- if I were that neighbor. to be
18 pretty offensive.
19 Q So you're saying that once we got it down
2 0 to 55, that you're still having -- and you can hear it
21 loud and clear?
22 A Absolutely. I've been out on nights --
2 3 Q Well, you know. we've monitored the same
24 locations. at the same time as you, and we have
25 different results.
Page 93
1 A Monitored with your sound meter or
2 monitored just --
3 Q Both.
4 A -- standing and listening?
5 Q Both.
6 A Okay. Our records ckarty states what
7 our -- what we have seen at every one of those locations
8 at every time we've been there. And that's what we have
9 presented to the City Council this evening -- this
10 afternoon.
11 Q So that's you that's also making the
12 reasonable — you've the man that's making the
13 reasonable opinion that the music is offensive and
14 abusive and we're a public nuisance''
15 A I'm part of City staff. which is a number
16 of different people that have made that reasonable.
17 Q Well --
18 MR. FERGUSON: Mr. Soendell, can I ask you a
19 quick question?
20 THE WrrNESS: Yes. Sure thing.
21 MR. FERGUSON• 1 know it is noon.
22 MAYOR BENSON: Can we finish with Denise font.
2 3 Jim. Council Ferguson?
24 MR. FERGUSON: I'm spry, 1 thought you were
2 5 done.
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MR. ROBERGE: No. You know. because I don't
consider that's reasonable if you haven't been in the
house.
MR. KELLY: She's not asking questions.
making statements.
MS. ROBERGE: What?
MR. KELLY: Shes making statements.
MR. FERGUSON: Are you finished?
MS. ROBERGE: Yes.
MR. FERGUSON: Okay.
I didn't mean to cut you off.
EXAMINATION
BY MR. FERGUSON:
Q What I'm reading from your report. and fm
at the top of the line on page 128 -- is that "In
previous repots we have concluded that 52 decibels
creates a disturbance." Is that your report?
A That's my report. yeah.
Q So it seems implicit to me. plus with your
recommendation. the very last sentence. that, perhaps.
the decibel levels ought to be 55 before 10..00 and 45
after?
A Absolutely.
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MR. FERGUSON: 1:05.
MAYOR BENSON: I:O5. She wants an hour.
MR. MUELLER: I would suggest I :I5. a lick more
than an hour. just to make sure we can all get back
here.
MR. FERGUSON: Does it go faster from here?
MR. MUELLER' Well. you know. Councilman
Ferguson. I will do my best.
MR. FERGUSON: Okay.
MR. MUELLER: I think the slowest thing was going
through the documents. But honestly, depending on the
level of debate with each witness, 1 think these can be
ten-minute witnesses.
MR. FERGUSON: Okay.
(Lunch recess was taken from
12:03 p.m. until 1:16 p.m.)
MAYOR BENSON: fll call to order the afternoon
session of Palm Desert City Council for Thursday.
May 15th.
MR. ERWIN: Madam Mayor, and members of the
Council, I'd like to reiterate the process that we are
doing here.
Witnesses are being called they're being
asked questions. and they're requested to answer the
questions. It is not a place for debate. I woukl ask
Page 97
1 1 any parry that is raising quesuom not to debate it
2 2 with the witness, but ask a question. And I would
3 3 instruct the witneues that they're to answer the
4 4 question that is asked. With that proceeding. which is
5 5 the moonlit process of this proceeding. I think it will
6 6 prove somewhat quicker. Both sides will have an
7 7 opportunity 10 presort anything to the Council that they
8 8 feel is relevant and appropriate al the appropriate
9 9 time.
10 10 MAYOR BENSON. Okay. Do you wart to proceed with
11 11 your witnesses. Mr. Mueller?
12 12 MR. MUELLER: Thank you. At this time I call
13 13 Charles Hazard forward
14 14 MS. ROBERGE: Excuse tree. I have one more question
15 15 for the last speaker. Ryan.
16 16 MR. MUELLER: Mr. Stendell. I dont have a
17 17 problem with recalling Mr. Stendell.
18 18 MR. STENDELL' Absolutely.
19 MR. ERWIN: That's the Couuncifs pleasure. I 19
20 would assume that Council would take a break and 20
21 reconvene at either 1: 15 cc 1:30. It's you choice. 21
22 MAYOR BENSON: And I believe the clerk wanted an 22
23 hour. so 1:15 then.
24 MR. ERWIN: That's fine.
25 MAYOR BENSON: Oh, it's 1 -- excuse me.
Page 95
Q That you. in tenor of our two ordinances.
the objective and the subjective, that the objective
isn't doing anything to help these neighbors. and the
subjective is probably where our problem lies. the —
excusc me -- the discomfort and annoyance?
A Absolutely. The decibel levels is a shot
in the dark as we've kind of gone through over the last
four years. !think the best handle we've gotten out of
it is just gang out and simply listening, w4sat is the
impact to these neighbors?
Q Thank you.
A In this case, absolutely.
MAYOR BENSON: Does Council have any other
questions of Ryan? Okay.
MR. MUELLER: Thank you. Mr. Sterdell.
THE WITNESS: Thank you.
MAYOR BENSON: Now. how king are we recessing
for?
RYAN B. STENDELL.
having been recalled as a witness
on behalf of the city.
23 was examined and testified as follows:
24 ///
25 ///
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26 (Pages 98 to 101)
Page 100
1 EXAMINATION 1 go to the map and point out where your residence is on
2 BY MS. ROBERGE: 2 the map in relation to the green Augusta's Restaurant'?
3 Q Yes. Mr. Stendell. I Just found out over 3 A It would be right about in here
4 lunch that you live on Fairway Drive. right next to one 4 (indicating).
5 of the individuals houses that's on the map. And I'm 5 Q Okay. A little farther away from
6 wondering why you couldn't answer my question about 6 Augusta's than --
7 whether you could hear the music with the doors closed? 7 A It's about two and a half blocks.
8 A I wish I could be on Fairway Drive. I 8 Q So fll tell you, sw. I dont have
9 don't live on Fairway Drive. 9 specific questions for you. but I'm interested in a
10 Q Where? 10 couple of things. One. you came here. obviously. to
1 1 A Excuse me? 11 have something to say. but in terms of kind of a
12 Q Where? 12 specific orientation, the real question. as it relates
1 3 A 1 live on the north side of III. I can't 13 to residents. is what your observations of the music
14 afford South Palm Desert at this time. 1 slowly may be 14 from Augusta's have been and whether -- and the extent
15 soon. but I'm on the north side behind The Chop House. 15 to which you have been disrupted or disturbed or annoyed
16 Q Well, then I'm really sorry. 1 was given 16 by that music.
17 the wrong information. 17 A All right. I bought my house there in
18 A It's okay. I wish some day soon. 18 1996 before Augusta's was built. I bought in a
19 Q Well, I hope you get your wish. 19 resider tial area. which was very quiet. At the time
2 0 A Is that it? 2 0 now. what I'm complaining about now is two or three
21 Q Yes. Thank you. 21 different things. And one is I can hear the music. the
22 MR. MUELLER: Thank you. Mr. Stendell. 22 words. And I don't have a problem with the music.
2 3 Mr. Hazard. 2 3 That's my era of music, a lot of it. But it does get
2 4 / / / 2 4 annoying that every weekend, every two or three days on
2 5 / / / 2 5 the weekend you get the same thing. And my wife and 1
Page 99 Page 101
1 CHARLES HAZARD. JR.. 1 both smoke. We don't smoke in the house. so well go
2 called as a witness on behalf of the City. 2 out on the patio to smoke, and you hear the music.
3 was examined and testified as follows: 3 lve had my daughter -- and it was
4 4 approximately 2004, somewhere in there. I had a
5 EXAMINATION 5 shoulder operation -- corm w live with me for about
6 BY MR. MUELLER: 6 four or five months. She lived and stayed in the font
7 Q Mr. Hazard. 7 bedroom. Even with the windows closed in the front
8 A Yes. 8 bedroom. you could music. All right. We survived all
9 Q Sir. if you would. your name for the 9 this. That's okay.
10 record? 10 What imitates me is the fact that during
1 1 A Charles Hazard. Jr. 11 the Channel 2 news thing it was indicated that they were
12 Q And can you spell your last name for the 12 bringing people in from La Quinta and different areas a
13 court reporter? 13 testify at this meeting. and 1 feel that. where I'm a
14 A H-a-z-a-r-d. 14 Palm Desert resident. that it should strictly be with
15 Q Where do you reside. sir? 15 Palm Desert people and residents with Palm Desert that
16 A At 73-915 Mountain view Avenue, 16 her a say in these meetings.
17 Palm Desert, California. ZJP code 92260. 17 1 was quite imtated when the woman told
18 Q We met for the first time -- 18 one that "Just keep you windows shut. doors and windows
19 A Yes. 19 shut.' Well. there's times during the year that you do
2 0 Q -- just before lunch. and you asked to 2 0 open your windows and doors to cool off the house. as
21 have some priority and have a chance to speak before the 21 well as if you're outside. you have a patio door open
2 2 Council: correct? 2 2 sometimes so that you can hear the phone. if you can
2 3 A Yes. 1 have a doctor's appointment at 2 3 hear it
2 4 2 o'clock. and I need to have a cataract looked at. 2 4 So I have a number of things that irritate
2 5 Q Just for orientation purposes. could you 2 5 me. The fact that it's taken four years to get to the
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Page 102
1 point. this point. when -- if citations should have been 1
2 issued. or if there was problems with code, why wasn't . 2
3 it handled prior to taking this on and getting the thing 3
4 done? 4
5 Q Well. the question for today. though. sir. 5
6 is. So it sounds like you can hear the music from 6
7 outside your home? 7
8 A It's kind of like -- I'm going to give you 8
9 a for instance -- like a yapping dog. If you had a 9
10 yapping dog next door to you. or any one of the Council 10
11 members. and it barked Thursday. Friday. and Saturday 11
12 nights, pretty soon you would get irritated. and you 12
1 3 would see about getting something done about it. It 13
14 wouldn't last long. 14
15 Now. what is the difference? If you have 15
16 an irritation or it bothers you. then 1 think you ought 16
17 to stand up and complain about it. And that's what I'm 17
18 doing today. 18
19 Q So are you saying that the music does or 19
20 does not disturb you/ 2 0
21 A lt's an annoyance. Yes. it's an 21
22 annoyance. Like 1 said, I kind of quote it like a -• ' 22
2 3 not a loud barking dog -- you know, I've heard some that 2 3
24 are petty loud -- but more of a yapping dog. But if it 2 4
25 goes on 12 o'clock. 1 o'clock in the morning from 10:00. 2 5
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it gets old after a while.
Q So their music goes. by condition. only
until 11:30?
A Well, sometimes I hear it a lot longer
than that. And they're the only ones that play it down
there. So I guess it comes from there. 1 haven't drove
down to see if it actually came from there. but it's the
same music. And 1 have heard it later than 12:00.
Q So you think they play later than 11:30?
A Sometimes it runs over. That's about all
I can say about it. I just wanted to give my opinions
en It.
MR. MUELLER: 1 appreciate you coming forward.
Just a second. sir.
Ms. Roberge, do you have questions for
Mr. Hazard?
MS. ROBERGE: No. No, I dont.
EXAMINATION
BY MR. FERGUSON:
Q I do.
A Yes, sir.
Q You said you bought your house in 1996?
A Yes.
Q Were you aware at the time that you bought
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Page 109
your house that we had an ordinance that was passed in
1985 that allowed noised up to 55 decibels in your area?
A No. No. There was no indication of this:
there was no disclosure.
MR. FERGUSON: That's all I have.
THE WITNESS: 1 do have -- I do understand there
is a letter in that orange binder that she has iheie
that one of the Realtors in Palm Desert was complaining
because they were losing rentals because of the noise.
that people weren't coming in to rent again. So I think
there is a Zink bit of background information that is
pertinent to this meeting. Thank you.
MR MUELLER: Thank you. sir.
At this time I call Brian Hamik.
BRIAN HARNIK,
called as a witness on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUFt1FR-
Q Good afternoon, Mr. Hannik. Could you
state your full name for the record and the spelling of
your last name foe the court reporter?
A Sure. Brian Hamik, H-a-r-n-i-k.
Page 105
Q And where do you reside. Mr. Hamik?
A I reside at 73.901 Shadow Lane Drive in
Palm Desert
Q And if you would for us. just point that
out on the reap so we can get orientated to where your
residence is.
A I assume the green is Augusta. and there
are two rod crosses directly south of Augusta. My home
is on Shadow Lake Drive. to the south of Shadow Lake
Drive. right between Shadow Lake Drive and Club Circk
Drive nght here. a link bit between those two crosses
vertically down from Augusta and a link bit to the
kft.
My backyard faces the tennis courts and
basketball court of Shadow Mountain Country Club. And
were a little bit further away from the restaurant than
the previous gentleman.
Q Mr. Hamik, you sent a written
communication in the form of an e-mail to Ryan Stendell
and Laun Aylaian at the City that is located in the
binder at page 314 back under the Tab J. I'd like you
to take a look at that.
A Yes, that's my e-mail.
Q 1 don't know if you need to reread IL
s a rather lengthy page. My question to you is
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whether or not the observations and statements in that
e-mail are accurate and that's your present recollection
of kind of those same observations?
A Yes. Yes. This is an accurate letter. 1
was accurate when I wrote it. I submitted this. knowing
that the Planning Commission was meeting that day. I
would have liked to have attended. I couldn't attend it
so 1 sent this letter in lieu of my personal appearance
at the Planning Commission meeting.
Q Looking at -- if you flip all the way in
the hack of the binder at the ordinance itself, on page
0005 hack under Tab B. the test, when it comes to the
subjective pan of the test. the question for residents
relates to what language you set under 9.24.040 there on
page 0005. And the pertinent part of that ordinance. at
paragraph A, reads. in pan, that "It is unlawful for
any person to make. continue or cause to be made or
continue, within the city, any disturbing, excessive, or
offensive noise which causes discomfort or annoyance to
reasonable persons of normal sensitivities residing in
the area."
Do you see that?
Yes. 1 do.
Of course, you reside in the area; right?
A
Q
A Yes.
Page 107
1 Q Tell the Council. if you would. what
2 experiences you've had. what observations you've had
3 about the -- specifically about the music. the amplified
4 music coming from Augusta as it relates to this code
5 section.
6 A I'd be happy to.
7 I've been living at this location for
8 approximately 10 years. long before the permission was
9 given to give the amplified music. And this has been a
10 problem for many. many years. It's been ongoing. For
11 whatever physical reasons exist. the sound JUSI carries
12 right to our front door. and it carries into our home.
13 Ifs been problematic. And as 1 put in my letter, up
14 until 10 o'clock at night. as other people have said.
15 you can live with it once in a while. The problem here
16 is that it's been repeated, it's repetitive, it's after
17 10 o'clock at night. and it is very loud in our house.
18 is the best way 1 can describe it It impacts our
19 lifestyle. It's annoying. It's troublesome. And it's
20 impacted us in chain ways.
21 A number of years ago -- I'll give you an
22 example. We generally go to bed pretty early, 10:00.
23 11:00 at night. Onc evening -- and this was a few years
24 ago -- my wife woke up -- and we have four daughters.
25 Three are now teenagers. one is 22. My wife woke up to
28 (Pages 106 to 109)
Page 108
1 yell at one of the kids for blasting music in the other
2 room. and their weren't any kids in the other room. We
3 had our windows open, and for whatever reason. the sound
4 just cames so strongly in our home.
5 We have not called the City. We have -- I
6 have called the Sheriffs Department over the past few
7 years. probably between six and ten tines. I have. most
8 of the time, not left my name. Oust said. Please
9 lower the noise. fve been asked. -Do you want to file
10 a report?" and 1 have not wanted to file a report. 1
11 just want the noise to go down. And I've said, "Can you
12 just please do something to address the noise'?"
13 And over time the sheriffs had indicated
14 that, in fact. they've gotten other complaints and that
15 from their perspective it's been a problem. Again, my
16 goal was to get the noise cut down.
17 One of my daughters lives in a bedraorn
18 that is closest to the front of the house. When she was
19 a little hit younger. she was -- would frighten more
2 0 easily. and there were times where the music would
21 frighten her in the bedroom. Wed have to close the
22 windows on nights where we otherwise wouldn't.
23 I can go to the very front of my house
24 when this is going on, and I can hear the exact song:I
25 can hear the words: I can hear the music very loud. k
Page 109
1 just projects in ow home, depending on how the weather
2 is. I think that's right.
3 And I appreciate Ms. Roberge investing
4 money to make this better. I understand that. But it's
5 not working. It's a problem. It's disturbing us. It's
6 not only audibk in our house, but I consider -- you
7 know. my property is. obviously, important. And even
8 outside our house. 1 don't want to be disturbed tate at
9 night.
10 I do know in one instance -- and 1 don't
11 recall ever hearing it or being awake at I2:00 or I :00
12 in the morning. as the prior gentleman said. but 1 do
13 have a specific recollection, again, more than a year
14 ago. where it was after 11:30. and the noise was still
15 going on. I was listening. I called the sheriff. and 1
16 waited. And I checked it about ten to midnight or so,
17 and I heard the band leader saying his Thank Yous and
18 Good Nights. And I was able to -- you can actually bear
19 it and listen to it. It is loud it is ongoing. and
20 it's repeated.
21 You know, we're all neighbors. And it is
22 a lovely place. It is a quiet street where we are, and
23 it is a really good neighborhood. We love being close
24 to El Paseo. We understand that there's a retail
25 component to where we live. and that's fine. And once
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Page 110
1 in a while a neighbor has a party. We're okay with it. 1
2 That's just life when you live with other people. But 2
3 this is something that's been ongoing, it's been 3
4 repeated. and it's still ongoing. 4
5 And despite the efforts. 1 was still able 5
6 to hear the noise coming in from Augusta. And it's 6
7 late, and ifs a problem. I have also checked to be 7
8 sure that it's been coming hum Augusta. Early on, 1 8
9 didn't know where it was coming from. At first. we used 9
10 to think that we were having neighbors throwing wild 10
11 parties nearby. And it absolutely shocked me that the 11
12 sound was traveling from a restaurant so far away. The 12
13 way it's situated. and. again. I don't know if it's the 13
14 topography of the hill or whatever it is. it is having a 14
15 profound impact on me: it's having a profound impact on 15
16 my family. It's been that way for many. many years. arid 16
17 it's been a problem for us. and it continues to he one. 17
18 We want restaurants to do well. I mean. 18
19 we love the city. Were dedicated to being here. We're 19
20 involved in the community. and we want to continue to be 20
21 involved. But this is a problem. And I suspect that if 21
22 all of us knew what this would actually be like. we 22
23 would have all made different decisions some years ago. 23
24 But I don't think anybody anticipated what was going to ' 24
25 be happening with this situation. 25
Page 111
1 And I know there was a question earlier
2 about the decibels. 1 don't know sound numbers from
3 anything, but 1 do know what is intrusive. what is
4 annoying. and what is problematic. This affects my
5 family. You know. my kids love music. and we do too.
6 This is affecting my family, it's affecting my wife and
7 me. and 1 do believe it has an effect on our property
8 value. I think. you know. if you sell a hone -- and we
9 don't intend to sell our home •- you have to notify
10 somebody if you believe you have a nuisance in your
11 property as part of a disclosure statement. 1 believe
12 that unless this is stopped or fixed I would have to
13 disclose that. And 1 think everybody in this particular
14 area would. It's just mind boggling how the sound
15 happens to travel right into our property.
16 Q Let me just focus you on one part of this.
17 Because at times you've talked about — and were
18 talking about an experience than spans years.
19 They've -- at Augusta's, they've made efforts to
20 mitigate There have been different things done.
21 mattresses put up, some foam paneling, some other
22 screens. So they've taken a number of measures. Have
23 you seen an appreciable difference. let's say. during
24 the penod from January I, forward? Is it Tess annoying
25 or not annoying now, and all the annoyance and
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disturbance is in the past? Or what's your current
experience?
A It's Tess annoying than it was. but we
still hear it, we still know it's there, and it's still
a problem from our perspective. And again. part of the
frustration is I kind of personally view this as. well.
now aII the scn,tiny is coming down so everybody is
being on their best behavior. This has been going on
for years. I recognize that it is maybe not as severe
as it has been at other times. but I can still hear the
music. I can tell what the music is. And it's still
out, and it's still late, and it's still very disturbing
to us.
Q In the words of the ordinance. in tams of
its impact on you, it's still a violation in your
opinion?
A To me. it's offensive noise. and it's
excessive, and it's impacting our peace. our peaceful
enjoyment of our home.
MR. MUELLER: Thank you.
Ms. Roberge.
EXAMINATION
BY MS. ROBERGE:
Q Hello. Mr. Harnik.
Page 113
On reading from your letter here, you say.
The one way to stop the problem is for the City to
enforce its existing conditions and ordinances.
So in your letter you're basically
agreeing with the City that if we can keep the decibels
at 55 we are within our existing conditions and
ordinances?
A It's my position that the City has the
responsibility to assure the peacefulness and the
quietness of the neighborhood. And that's what the
ordinance that Mr. Mueller referred me to talked about.
It's the excessive noise. And ifs the impact of an
area that's zoned for single fanny residential homes.
And that's part of the ordinances to be there.
I was not indicating that if the decibel
level got to a particular number and all of a sudden it
was still impacting my hone and my lifestyle that I
would then say. you know, there's nothing I can do about
it. it's --1 believe this is a decision that Council
needs to make as to what effect this is having on the
neighbors. And I do appreciate the efforts and the
expense to make it better. but it's just not succeeding.
It's still a problem where we live.
Q Mr. Harnik, then were you aware of the
decibel level by ordinance when you bought the house?
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1 A No. not al all. It wasn't an issue for
2 me. I researched my home. I knew where 1 lived. I
3 knew it was close to El Paseo. I knew that there were
4 restaurants. I knew it was a very high -end Rodeo Drive
5 kind of experience. I think that's great. I think it's
6 helped the property values. I think South Palm Desen
7 is a wonderful part dour community. I think it's been
8 handled by the Council at a leadership rate. It's
9 continuing to he a wo derful place to live.
10 And again. pan of the long-term issue, as
11 I point out in my letter. is ultimately what do we want
12 to do down the road? What's the vision of the Council
13 down the road. not specific to Augusta at all. But tare
14 of my furs is if this is allowed to happen at
15 Augusta -- and Augusta is high end. It's a beautiful
16 restaurant It's got a great an gallery. It's a
17 beautiful structure. It's -- and Ms. Roberge is
18 invested substantially in the community.
19 One of my concerns that I raise is what happens the next
20 day when some other restaurant says or some other club
21 says 1 want the same ability right next door to Augusta
22 or down the block from Augusta? That's part of the
23 vision of what we're doing here today. And that's part
24 of our concern. We want to maintain that high -end Rodeo
25 Drive feel now and in the future, which I think the
Page 115
1 restaurant itself is temfic, and it's just a
2 wonderfully enjoyed place. And I don't think you'd have
3 this support if it wasn't a great place.
4 Q Mr. Harnik. of another restaurant wanted
5 10 open up and do the same thing. wouldn't they have to
6 get a Conditional Use Permit as I did? And would that
7 not leave the City Council to decide whether they wanted
8 to grant that or net°
9 They are two different things. You're
10 talking about taking mine away and then talking about
11 granting one.
12 A Well. 1 understand. My concern is. in
13 part. as a resident of Palm Desert, pan of the
14 Council's overall view is to take care of the vision of
15 the City moving forward. And one of my concerns is that
16 by allowing this outdoor amplified music to continue --
17 and I understand nobody is taking the business away and
18 taking the CUP away, but this is just an issue as to the
19 amplified music late at night. My concern is that we
20 are setting a precedent to allow El Paseo. you know. in
21 years ahead to tum into something that we don't really
22 want it to become. That was the concern of the future
23 part of it. separate and apart from my experience and my
24 concerns about the impact of the amplified music at
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Q Wouldn't you deal with that situation as
it arose and went to Council?
A Well, in the future, yes. But the point
I'm trying to make is one of the things that the Council
is responsible to do is to look to the vision of the
future as well in their decisions. Although. in this
instance, were focusing on this one matter. you know,
the Council has the responsibility of not only doing
this fairly, but looking ahead as well and having
visions as to what our city should be. That's the
point.
Q Do you believe that the Council has to --
their decision is to make sure the ordinances are abided
by?
A It's not my place to say to anybody what
they're supposed to do. l'11 answer questions about
what I've experienced, my point of view, my position. 1
just -- you know, were here to be sure that they have
full and complete information to make the best decision
they can make. And I support that.
MS. ROBERGE: Thank you.
MR. MUELLER: Any further questions for Mr.
Hamik?
/ / /
/ / /
Page 117
1 EXAMINATION
2 BY MR. FERGUSON:
3 Q Arta quick one.
4 First. and foremast, is to thank you fa
5 your letter. I mean, I can rally see that you are
6 balancing and trying to appreciate the position that
7 were in with the coniane cial district and the
9 residential al district, and each has nghts And. you
9 know, unfortunately, depending on how you look at it,
10 you know, some would have us shut down the business, and
11 if we don't. some would say we just shut down their
12 homes. And that's kind of a lousy position to be in.
13 But one thing I would like to ask you. and
14 it is a problem I'm struggling with, and as an attorney.
15 fm just curiae if you can help arc with it. On the
16 objective standard, perhaps 55 is to high. It sounds to
17 rite like most of the complaints are coming in even if
18 she's below 55. That we drop to this subjective
19 standard, which sounds liks you have to be a 55 unless
2 0 we don't like you. And really, if you read those terms,
21 you know, discomfort and annoyance -• they're kind of
2 2 subjective; they're kind of vague and ambiguous.
23 And the problem I have, looking at those
24 six or seven spots that have constatently heen there. is
25 I don't know whetter they don't like the music. I don't
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Page 118
1 know whether they daft like Ms. Robage. I don't know
2 if they don't like her politics. her jewelry. I mean. I
3 just don't know. You know. and that. to me. seems to be
4 a real kind of squeaky standard. How would you address
5 that?
6 A 1 would -- first of all. this is not about
7 the likes and dislikes of any person. I happen to love
8 the music. That's the irony. Nothing is better than
9 when my kids play my okl music. You know. l hear Bruce
10 Springsteen coming from there. and I hear other things.
11 You know. the music is good. And that's not the issue.
12 And I don't think there would he so many people here
1 3 supporting it if they didn't enjoy it too. And it's not
14 a personal like or dislike. And you said earlier. this
15 is not a popularity contest. nor should it he.
16 When were dealing with the subjective
17 standard. I think you do have a bright line. You know.
18 if this thing is. whatever the decibel is. above the
19 lire, it's an easy call because it's the ordinance says
20 it. But this providing discretion. saying. well. gee.
21 there are situations where maybe it's below 55 and maybe
2 2 52 is. you know, a 3 percent or 6 percent variance.
2 3 maybe that's a lot: maybe it's not.
24 But the point of the statute -- there's
2 5 another kvet. that if. in fact you are not beyond --
Page 119
1 you're not violating the objective standard. but there's
2 still a problem. you. as a Council. have the ability
3 based on the reasonable evidence that's presented to you
4 to make a decision balancing those rights. And that's
5 what were asking you to do without whether you like or
6 dislike me, the homeowners. whether you like or dislike
7 Ms. Roberge, whether you love Augusta, hate Augusta.
8 like the music. don't like the music. That shouldn't be
9 the issue. The issue is -- as you said, we've got some '
10 rights that are colliding, and were talking about the
11 right of single family homes, zoned single family homes
12 to enjoy some peace and quiet near a zone. We're not
13 having this problem with Sullivan's that's running music
14 that's being successful.
15 So the question becomes now that -- if
16 you're in that subjective area, okay -- and again. there
1 7 may be evidence of historic violations over the 55.
18 Maybe that's been fixed. When you're in that subjective
19 area, you do have. 1 think, the discretion to say, gee,
2 0 what are the facts showing here? Are we allowing
21 excessive and offensive noise even thought it's below 55?
2 2 You know. if you have a -- the yelping dog
2 3 was a great idea. If you have a yelping dog that's
24 below 55 decibels but is dnving you insane. you have a
2 5 problem that falls under this subjective standard, and
Page 120
1 it shouldn't be because 1 hate dogs. Which I don't.
2 But if I hated dogs. that shouldn't be the standard. We
3 want some reasonableness appointed there. So if I have
4 a yelping dog under 55 decibels, and I'm not in the
5 objective problem. but I'm in the subjective one. that's
6 where you're going to earn your gray hair because you do
7 have to make a balance.
8 And it's not about wanting to hurt
9 Augusta, shut down Augusta. or cause it any financial
10 harm. To the contrary, I benefit. and we all benefit if
11 restaurants and places succeed on El Pasco. We want
12 restaurants to succeed. The problem is only the effect
13 of this music, which even if it's below 55, you're
14 hurting residents: you're hurting my neighbors.
15 My neighbors and I have talked about it.
16 It's bothersome to us. It's a problem. 1 wouldn't be
17 spending my time here if it wasn't a concern to the way
18 we live. which is tmponant. The people that come out
19 there and check it out. they check it out, and they
2 0 leave. 1 can't leave. This is where I live. And 1
21 love living there. And it's great.
2 2 But it is a problem. and it is an issue.
2 3 And you have a tough decision because you're in that
2 4 area where you're below 55. but you've still got a
2 5 problem. And it's not going to solve it to just say. As
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long as you're below 55. you can keep doing it. You
know. again, if it was screechy. you know. Duane Allman
music that was piercing even though it was helow 55. it
would be a problem.
And so that's the issue here that. I
think. you have to weigh. It's a tough situation. I
don't think you'd be spending the time and energy if
this wasn't an appropriately difficult matter. And I
respect you all spending the time and looking at this as
you are.
MR. MUELLER: Any additional questions?
MAYOR BENSON: Any other questions?
EXAMINATION
BY MS. ROBERGE:
Q Mr. Hamik. do you believe that the
decibel law of 55 was just pulled out of thin air. or do
you believe that people did a lot of research to come up
with that figure for -- and it's the law -- for a
commercial establishment',
A I believe the law says, quite clearly.
under the general prohibitions that its unlawful for
anyone in the City of Palm Desert to cause or continue
excessive or offensive noise that causes discomfort or
annoyance to reasonable persons of normal sensitivity.
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whether it's ten trillion decibels or whether it's one
decibel. You need a reasonable standard, which I think
the City is trying is apply here.
And that's my point. Despite the
reference to get below the 53 threshold. it's still
causing a probkm in my home. it's causing a problem for
my neighbors, and we'd like to see it resolved. That's
what the problem is. So 55. to me. I don't know what 55
means. but it doesn't really matter. I just want to
live peacefully. Whether it's 53.58.2. that doesn't
matter. But what I'm understanding from here is even
though you may technically be below 55. it's still
causing a problem. And that's what I'm here to address.
Q What's reasonable?
A Right.
EXAMINATION
BY MR. MUELLER:
Q Mr. Hamik, one or two more questions.
You haven't had a chance to look at the
binder. but --
A Do 1 have to?
Q No. you don't have to. I'm just
wondering. it doesn't sound like you're aware, hut are
you aware that in March and April of this year. 2008.
Page 123
1 that 18 times -- 18 separate evenings Augusta's sound
2 levels were recorded over 551 But it sounds like you've
3 been making the assumption that what you may have been
4 recently hearing is under 55. Do you realize that there
5 are 18 readings above that ordinance level of 55 just in
6 those two nsonthts?
7 A No But part of the good news is we did
8 replace our windows. so we have better windows when
9 they're closed. And it is true. in the cold winter
10 months we keep than closed. And we've been opening than
11 up lately. and we've been hearing it. I do know that
12 it's still been a problem, but 1 also am aware that
13 there have beat efforts to mitigate it. And it doesn't
14 surprise me that they're still over 55. You can hear
15 it. And you an hear it. and it's lewd, and it's
16 discernible. It's no like some vague noise from a
17 distance. I'm talking about hearing musical
18 instruments. hearing die words of songs. hearing the
19 talk of the brand leader. You can hear what's being
2 0 said.
21 MR. MUELLER: Thank you, Mr. Hamik.
22 THE WITNESS: Thank you
23 MR MUELLER! Nothing further
24 Sergeant Floret
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Page 124
DAVIDJ. FLOREZ.
called as a witness on behalf of the City.
was examined and testified as follows:
Q
record.
A David Joe Florez, F-Io-re-z.
Q And where are you employed. sir?
A I'm currently employed as a sheriff
sergeant with the Riverside County Sheriffs Department.
assigned to the Palm Desert station.
Q And have you had involvement in either
receiving or responding to noise complaints related to
the amplified namc at Augusta's Restaurant?
A Yes. I have.
Q Can you tell the Council about what your
history and experiences have been in that regard?
A I was the watch commander for the night
shift back in early 2007, which would have caused me to
he on duty. Actually. my days were Wednesday. Thursday.
Fnday, Saturday. So unless I calkd in sick or took a
vacation. I was working on those nights that we were
hearing complaints about. And on several occasions, I
EXAMINATION
BY MR. MUELLER:
Sir, could you give your name for the
Page 125
responded either with or without deputies to the loud
music call because the issues that we've been having m
Palm Desert with various other locations that were
playing music that were also getting complaints.
Q Do you have records, do you know, of how
many calls came in in 2007 a 2008 so the sheriffs
office arising from the amplified music at Augusta's?
A We have some. But I think as the
previous speaker noted. that sometimes they didn't leave
us contacts. Sometimes they didn't know where the music
was coming from. So the bat that I was able to look up
on our records was most it happened dung early 2007,
where there were 13 calls for service, which would have
meant we issued a file number and wrote a report or had
some kind of documentation as to the call that
originated from Augusta's and that there were other
calls involving batteries. disorderly conduct. traffic
collisions. arca checks. mid the disturbances with
patrons refusing to pay the bill.
So a lot of the area checks would have
been loud noise emanating from a certain area And they
may not be directly associated with that address. so we
don't have the documentation because it's someplace in
the area. But based on my experience. there's been
several times that I was out there on the evenings that
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Page 126
1 we've been talking about to address the noise issue and
2 help the establishment stay open and provide for the
3 patrons. but, also. appease the people that were calling
4 in. understanding that they have rights also.
5 Q Were any formal complaints filed or
6 recorded against Augusta's?
7 A In my experience, there had not been. to
8 my knowledge. And. I think. the -- if we can delve into
9 this a little bit?
10 Q Sure. I mean. what's your --
11 A lust the previous speaker had noted most
12 people want to be good neighbors. If your neighbor has
13 a party or the guy across the street has a party. we
14 don't want anybody arrested. We just would like them to
15 turn it down.
16 And with Mr. -- I want to call him
17 Mr. Hart now, I heard it so many times.
18 Q Mr. Ponder.
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found in my 24 years of experience of going to hundreds. 20
if not thousands of disturbance calls. is that there's a 21
very, very minority of calls that are crank calls. I 22
think the Council is well awarc of a certain resident up 23
on Heliotrope that calls all the time that wants people 24
arrested. usually wants phantom people arrested, she 25
Page 127
1 wants the smells to stop. and nothing that we can do can
2 ever make that person happy.
3 This is not the case. If someone calls in
4 about a house party. there's a house party. If the band
5 is bring lewd. the band is heing loud. And usually.
6 generally. the position that the sheriffs department
7 has been taking, at least in the case of the nighttime
8 establishments here in the desert, in Palm Desert, is
9 that we respond. And because we don't have a
10 complaining party -- which if somebody wanted to make a
11 complaint and not go to City ordinance. they can go
12 through 415.2 of the Penal Code and tie up the courts
13 with citizens arrests -- we generally go and ask them.
14 Can you please turn it down, we have some complaints?
15 And understanding that Ms. Roberge's case.
16 her Conditional Use Permit allows ha to play music, I
17 think. until 11:30, what l have found with my experience
18 with Ms. Roberge is that oftentimes the music goes up
19 after we leave. We come back and talk to her again
20 because we get more complaints. but we don't have
21 anybody that wants to make a citizen's arrest. And the
22 excuse ur the reasoning for the reason die music goes up
23 again is because her patrons are loud and they can't
2 4 hear the music. And then on several occasions I've had
25 discussions with her very nice door hoot -- that's
Page 128
usually who I've spoken with: a few times Ms. Roberge --
is they're after their Conditional Use Permit time.
And we've asked them. You're past your time. can you
turn it down or turn it otf?
And I've gotten delays, and 1've gaten
pretty much uncooperative response from her until where
one point we were contemplating pulling the plug on the
music and citing the band so that they would stop. But
Laeutenant Taylor decided to let the City Council handle
it. as we are here now.
She just -- at some point she refused to
cooperate with us. And I think Mr. Kilpatrick and
Deputy Ramirez will talk about the night that I was
there and they were char when she was going to be
issued a citation. and she made several comments as to
what her intentions were.
Q So just to be clear. have you personally
been there at Augusta's when the amplified outdoor music
was playing after I I :30?
A Yes.
Q On more than one occasion'
A Yes.
Q And on those occasions. you had asked for
it to be turned off --
A Yes.
Page 129
1 Q -- as of 11:30, and essentially. they
2 asked for more time or kind of begged for more tune?
3 A And because we didn't have somebody who
4 wattled to press charges. generally. our hands were kind
5 of tied. We really had no teeth to do something about
6 it. and then hopefully, you know. everything would work
7 it itself out. Obviously. we've heard from some of the
8 citizens that, I think. they're hoping for us to do
9 something. But again. without their cooperation. we
10 cannot be the victims of the loud and unreasonabk
11 noise. We are only reporters. We're only to respond to
12 deal for the citizens of the United States with these
13 problems. So we couldn't arrest based on what our
14 observations were. We needed a citizen to come in and
15 make a complaint.
16 Q Some of the staff have gone up into the
17 netghborhoods to do their own reasonable person
18 observations. kind of testing the reasonableness of
19 objections that members of the residential public may
20 have made. Did you ever do that kind of thing yourself,
21 go top there to see whether you could hear the manic or
22 whether it would be annoying to you?
23 A No. I didn't specifically go up and test
24 the area. You know. I've served in this city for 24
2 5 years. I pretty much know where the calls are coming
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from and what they are. And so we tried to handle it in
the most neighborly way we could and try to make
everybody happy.
MR. MUELLER: Any questions. Ms. Roberge?
MS. ROBERGE: Yes.
EXAMINATION
BY MS. ROBERGE:
Q Officer. are you saying that you spoke to
me this season. in '07 and '08. about the music or any
problems at the restaurant?
A Yes, in '07, early March. April. and May
we were out there. at least I was out there.
Q I'm asking you from November. this season.
A 1 don't recall. My assignment was •- I
don't recall being out there. But. again. we handle so
many of these calls. there's only a few of them that
stick out in my mind.
Q 1 would think I would stick out in your
mind if 1 was being obnoxious.
A Yes. you did that one night.
Q Well. before that. And we'll discuss
that.
Now. this season. have you ever heen
there? I'm talking about the season being. as this
Page 131
report says. from November the 7th, until current time.
And my question to you is. Have you ever been there
where the music is past 11:30?
A 1 don't recall this season. no.
Q That's a major improvement, which is what
were trying to accomplish.
All right. I'm not getting the connection
with us being so bad to the police officers this last
season.
A Initially, you weren't.
Q I won't — yes, we were. But I'm talking
about November the 7th. since we've all decided to
really clean up our act, have you had any problem with
Augusta Restaurant?
A I cannot say that I was there. But I've
been on different assignments, so l don't recall being
out there during November.
Q From November 7th. to current day?
A Correct. Most of the assignments that I
recall were in early year — in the early year of '07.
specifically March, April. and May.
Q Okay. So then would you agree that we
have cleaned up Augusta tremendously. brought it under
the code? There's no more music after l I :30 this
season?
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A I couldn't say that.
MS. ROBERGE: That's all.
EXAMINATION
BY MR. MUELLER:
Q Just -• I'm confused about something. How
has your -- you're talking about your assignments. and
maybe your assignment changed. Has your area of
responsibility changed from earlier in '07 to later '07
and '08?
A Yes. I was assigned to a SET team. and
I'm now the administration sergeant. So I work 8:00 to
5:00, Monday through Friday. So I'm not out at night.
So I would not have occasions to he out there during
that time. I'm only one of several officers and
sergeants that could have been on duty. and you'd have
to. probably. march every one of them in here and ask
them if they have.
We have other collateral duties. I could
have been out on other calls. This particular
establishment wasn't our only responsibility. And so
specifically. because of the number of incidents. and 1
remember dealing with Mr. Kilpatrick and the night we
tried to issue Denise Roberge a citation and the
confrontation during that. that stuck out in my mind.
Page 133
1 MR. MUELLER. Thank you. sir.
2 Any other questions?
3 MAYOR BENSON: Council have any questions? No.
4 MR. MUELLER: Thank you.
5 Deputy Ramirec
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7 ROBERT RAMIREZ.
8 called as a witness on behalf of the City.
9 was examined and testified as follows:
10
11 EXAMINATION
12 BY MR. MUELLER.
13 Q Could you state your full name for the
14 record, sir.
15 A Robert Ramirez. R-a-m-i-r-e-z.
16 Q And you're with the sheriffs department
17 and a deputy. l take it?
18 A Yes.
19 Q I don't have a lot of specific questions
20 for you. I'm interested in what your involvement has
21 been in monitoring or responding to any complaints of
22 amplified music emanating from Augusta's. and if you
23 could tell us about those experiences?
24 A Okay. Mine, as well as Sergeant Flarez, I
25 worked night shift from the early pan of '07. and the
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Page 134
1 majority of my calls were from April to May. And I
2 responded there probably about six tins.
3 Q So you don't have current experiences in
4 138, in terms of what's going on at Augusta's with any
5 complaints or objections to music. but you do have them
6 from the spring of '07?
7 A Correct. I've been reassigned to the
8 Special Enforcement Team, and that was in the middle of
9 last year.
10 Q What were your experiences in spring of
11 1)7?
12 A Majority of the calls that when I went
13 there. there was anonymous reporting parties. and they
14 just wanted the music turned down. So RI go contact
15 the manager and ask them to turn the music down
16 Because that's all we can do without a victim.
17 The one instance where Sergeant Florez was
18 mentioning with Shawn Kilpatrick. that's the one that
19 also stands out in my mind. when we had Ms. Robage cane
2 0 over. and we tried to issue her a citation. and she
21 refused to sign it. Which is fine. And that was about
2 2 it. She just didn't want to sign the citation.
2 3 Q What did you -• did you ever have occasion
24 to ask Augusta's. anyone. the staff at Augusta's,
2 5 Ms. Roberge or any staff members to tam the music down?
Page 135
1 A Yes. sir.
2 Q And did they respond? And what would
3 happen after that?
4 A The majority of the time. fd say 50
5 percent of the time. they kept the music down. but
6 there's a few instances where it went right back up when
7 we left.
8 Q Do you have any knowledge or infomnation
9 about whether they did or didn't play past the hour
10 specified in their Conditions of Approval of their CUP.
11 I I:30 p.m.?
12 A Yes, a couple times they did. And I went
13 back to ask them to turn it down, and it was -- what was
14 it? The fans or the patrons wanted an encore. so the
15 band could give them an encore song or two.
16 Q Do you have any observations about the
17 reasonableness or unreasonableness of any of the
18 complainants that you've heard complaints from
19 concerning Augusta?
2 0 A Like 1 mentioned. the majority of my calls
21 were ant anonymous. I didn t get to speak to any of
2 2 them. They didn't lave a phone number or an address.
2 3 And there's no way I could know exactly where they lived
24 to go sit in their house and verify that it was loud or
2 5 unreasonable.
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Q The occasion where you attempnxl to cite
Ms. Roberge, can you recall any further detail about
what was said at that time by any of the parties
involved''
A When Officer Kilpatrick tried to get her
to sign a citation, she refused to sign it So he wrote
in the box, -refused." And then she told us. "The City
of Palm Desert needs to stop harassing me. and this is
war." And after that. she turned around and walked
away. and so we left.
Q And the reason no citations have been
issueed by you would be the lack of an actual complaining
party? A resident would have to come forward and demand
an arrest or something?
A Yes. This one was actually -- I'm not
sure. Officer Kilpatrick will have to get with you on
that one, but apparently several people called and
complained that night. and we went out there to sign on
their behalf.
MR. MUELLER: I don't have anything further.
Ms Roberge. any questions?
EXAMINATION
BY MS. ROBERGE:
Q Yes. Sergeannl, have you been to the
Page 137
restaurant between the 7th and current date --
A No. ma'am.
Q -- for complaints?
A No. ma'am.
Q Have you ever? Has the restaurant played
past its I I :30 hour?
A In the time frame you just gave?
Q Yes.
A I'm not sure. I work day shift now.
MS. ROBERGE: Okay. Thank you.
MAYOR BENSON: Council have any questions?
EXAMINATION
BY MR. SPIEGEL.
Q I have one quick one. Deputy.
A Yes.
Q You indicated that the sound was really
noisy, and you went there. and you asked her to tum it
down. And they turned it down, and then when you left
it went back up?
A Yes. sir.
Q Did you go back in and say. 'Turn it down
again"? Or what happened?
A I didn't personally. Other deputies did.
because it's a busy area of the city. and I'd go to
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another call and somebody would take my place. So I'm
nut sure what transpired on that.
MR. SPIEGEL: Thank you.
MR. MUELLER: Nothing further then. Thank you.
MAYOR BENSON: No other questions.
MR. MUELLER: There are a number of residents
that I intend to call. 1 don't know these people
personally. so I don't know who's here and who's come
back after lunch or not.
But is John Cocoran here. or Carol?
How about Marian Royston?
MARIAN ROYSTON,
called as a witness on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q Ma'am. could you give your full name?
A Marian Royston.
Q And spell your last name for us.
A R-o-y-s-t-o-n.
Q Where do you live?
A At the City -owned Candlewood Apartments
for 17 years.
Page 139
1 Q Where on the map there, if you could point
2 it out. are the Candlewood Apartments?
3 A It's the very first one. Just on the
4 other side of Portola. The music comes this way.
5 That's my patio right in that carter. Oh.
6 Well. that's grace. fm sorry.
7 Q This is a public hearing. obviously. to
8 explore the issue of the noise from amplified music at
9 Augusta's Restaurant and its impacts on residents. You
10 and I haven't spoken about this. so 1 really don't have
11 any particular questions for you other than to invite
12 you to share what you would in terms of your experiences
13 with the music.
14 A f11 be happy to. f11 be very brief.
15 I want to thank the City Council. I have
16 been to some of the committee meetings, but it's nice to
17 know it's moving along and gotten this far. I thank you
18 for your time.
19 I don't have an entourage or a pretty
20 T-shirt. but 1 am representing the 30 residents. senior
21 citizen residents of Candlewood. I have letters. I
22 started to copy it all. I made eight copies and ran out
2 3 of paper. But I would like to submit these letters to
2 4 whomever accepts them.
2 5 Q They would go to the city clerk. ma'am.
36 (Pages 138 to 141)
Page 140
1 A These are levers of complaint. repeated
2 complaint. What do 1 do with them?
3 Q Could you go ahead and give those to the
4 clerk? That would be great.
5 A I was hoping to get these here early
6 enough that the Council could look them over. but I'm
7 assuming that they will be given opportunity for that.
8 Q Yes, ma'am.
9 So just to be clear --
10 A We have been -- I'll be very bncf.
11 Q But let hie ask you just a question about
12 what you just provided.
13 A Yes.
14 Q So these are letters front your friends and
15 neighbors who all reside at Candlewood?
16 A At Candlewood Apartments. Only there's
17 one ktter someone handed me because they had to leave.
18 1 think they were from the country club. the top one
19 you're looking at. The rest of them are all residents
20 of Candlewood.
21 Now. understand. these are senior
22 citizens. A good many of them were infirmed. they're in
2 3 wheel chairs. they have to have oxygen. and that's why
24 we don't have a better personal representation and why
2 5 I've encouraged the peopk that felt strongly enough to
Page 141
1 write a letter to do so.
2 Q Thank you. Go ahead.
3 A This has been ongoing. Like I say, I've
4 lived in these apartments. 30-year-old apartments, for
5 17 years. This has been ongoing from the get -go, the
6 very first season. 1 thought it went before 2004. but
7 Ms. Roberge said 2004. and 1 accept her word for that.
8 It's repeated. They have been told again
9 and again to turn it down. I've experienced just what
10 the sheriffs department had said. They rum it down
11 and right back up. They have exceeded the hours
12 repeatedly. It's been worse, probably, the last three
13 years than it was before that.
14 There's been comments about November'07.
15 I don't quite know -- I do realize she's probably put
16 money •- let me say one thing. This is not about the
17 restaurant. I've been in there. It's well located
18 It's a lovely restaurant. There's good service, good
19 food. We don't want the restaurant to close. We've
2 0 lost, what, five in the last -- less than a year. We
21 need that. The contingent is with the music. 1t has
2 2 been a sword in everybody's side. as you are hearing.
2 3 fora long period of time.
2 4 And I have to tell you that some of the
2 5 residents at Candlewood said. There is absolutely no
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Page 142
1 point The City hasn't a done thing in all these years.
2 and they won't going to do anything now.
3 So we're running on not only indifference.
4 but a link bit of resentment I know that is not what
5 you want and 1 know that's not the way that Ms. Benson
6 runs her political affairs. She's very involved, very
7 concerned. So we are very happy to have the opportunity
8 to present this to you.
9 The after hours was a big issue. and it
10 finally came up after lunch. They have repeatedly --
11 two weeks ago it was after 12:00. and they were still
12 going. About two weeks ago. Now. I sleep with my doors
13 and windows open. except for maybe January. February.
14 and July and August The door may be closed more than
15 that, but the windows are almost open all year round.
16 So I may be opening up myself for the unpleasantness
17 that I get. But that came up about the seasons. And as
18 you know. we have extended seasons here.
19 This business of after November. most of
20 the complaints that we've all had have been poor to
21 that. yes. She has invested a great deal of money. yes.
22 We all appreciate that. But it has not solved the
23 problem. as you have repeatedly heard. And I don't know
24 why in the world that CUP. Conditional Use Permit --
25 yeah. CUP was issued to begin with. She faces
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commercial, but she backs up to residential income.
That was not apparently. considered at the time that
pemut was issued. It's all residential. I chink
there's one commercial building at the corner of
Portola, and from there on its all residential. 1 just
don't understand why the permit was issued to begin
with.
I think she can run a very successful
business. and 1 think we would all greatly support her
in her business if it were confined to just the
restaurant. It would avoid all the problems were
having now.
I promised to be brief, and I am going to
do so. But in the weekend paper, I don't know how many
of you saw it. and I'll leave it if you would like,
there is a rally. people rallying complimentary beer and
wine. She submitted a folder with, what, 1500
signatures in it? 1 contend those signatures are just
absolutely worthless. it's only the people around the
area. the immediate area. Take a big step. Go for a
square mile. Those are the people concerted, not the
1200 hauled off the street and given free and beer and
wine to sign a petition. l think that's totally illegal
and an insult to the citizens of Palm Desert and the
Commission and everyone. And 1 promised to keep this
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brief. and that's just about as brief as 1 can get.
Q Let me ask you a couple of questions, if I
could.
A Sure.
Q So let's focus on --
A I'm sorry.
Q I mean. the whole history is important,
and that's important to share, but since January,
recognizing that some measures have been taken to try to
reduce the amount of --
A Yes.
Q -- music. that noise that emanates out
from Augusta's. the question. really. is after January
of this year?
A You moved at up. It used to be November.
Q Well --
A Go ahead. I'm sorry.
Q Because it's not clear to me if some
things were done in December. 1 think they probably
were. So I'm just trying to go in the more recent time
frame. In the past throe to four months. have you still
found the music to be excessive and disturbing?
A Yes.
Q Have -- you want to add something?
A I just thought of something. At the
Page 145
1 beginning of the season, you know, when they closed down
2 for the stunner, everybody breathes a sigh timber
3 And when they start up again. we think. Oh. my God. here
4 it cares. Sure enough, it started up with the noise.
5 1 called the Sheriffs department twice.
6 This was the very early part of the season, October
7 maybe, and two time I was told they were not handling
8 those anymore. to call the City. Now. I dont know what
9 happened with anybody else after that point, but they
10 refused to respond oe acknowledge. And I quit calling
11 at that point 1 figured somebody -- well, 1 wont go
12 into what 1 thought.
13 Q When you're at your — what you're at your
14 home. your apartrne nt, again. in die past several months,
15 since January of 2006, have you farad the music to cause
16 you discomfort or annoyance?
17 A It's been leas, but annoying Yes and
18 yes.
19 Q And is the experiences that you've shared
20 with your fellow residents the se m? Do you believe
21 that they have shared that annoyance and shared the
22 disturbance?
23 A Oh, absolutely. But they are really
24 petty ticked off that it has taken five years and
25 absolutely no action. We've been here repeatedly again
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Page 146
1 and again and again. It's like the City just doesn't 1
2 care about the residents. And I know that that isn't 2
3 true. hut their actions are being interpreted that way. 3
4 Q Now, the ordinance rally talks about 4
5 causing -- it being unlawful to cause that type of 5
6 disturbance? 6
7 A Peaceful enjoyment, yeah. 7
8 Q But the test needs to he people of normal 8
9 sensitivity. Do you feel like you're a person of normal 9
10 sensitivity' 10
11 A I don't know. My family may argue. but 1 11
12 think so. 12
13 Q And what about the other residents? 13
14 You've mentioned it's an older -- 14
15 A It's a senior citizen complex. We have a ' 15
16 couple of them in their 90s there. These people -- 16
17 number one. they're not well, so they're pretty 17
18 sensitive to their sleep needs, as can you imagine. 18
19 Many of than have refrained from opening windows that 19
20 they used to enjoy doing for this very reason. Some of 2 0
21 them are hard of hearing and don't care whether it keeps 21
22 up or not. You have that percentage in there too. But 22
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24 there's a great dal of resentment. Many of them had 2 4
2 5 hoped to he here. That's why the letters. Doctors' 25
Page 147 •
1 appointments. and, again. some of them just think you
2 • dont give a darn. And I know that isn't so.
3 MR MUELLER: Thank you. ma'am
4 THE WITNESS: You're welcome.
5 MR. MUELLER: I dont have any further questions.
6 But Ms. Roberge — no questions?
7 THE WITNESS: Thank you.
8 MR. MUELLER: There may be a couple from Council.
9
10 EXAMINATION
11 BY MR. FERGUSON:
12 Q I have two questions. You said it's been
13 five years?
14 A Approximately. give or take. My memory.
15 about five o six years. Almost from the inception.
16 Q Have you complained during that five-year
17 period?
18 A Yes. every -- yes.
19 Q Ahout how many times have you complained?
20 A Oh. 10. 12 tuna a season, a once•a•ntonth
21 minimum
22 Q Fifty? Sixty?
23 A Thereabouts. And I'm saying not me
24 individually, but collectively. of the ones I know that
25 arc also, I rate enough --
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Page 148
Q I appreciate you speaking for others. but
fm speaking for you.
A Okay. For myself?
Q How many times have you complained?
A 1 have to hit once a month from the very
get -go for myself.
Q So what's that'' Four or five times a
season maybe?
A No. it's a link longer than that. fd
say more like seven.
Q Times five seasons?
A When did they open'! October. November.
December. January. February, Much, April. May -- eight.
Q Times five seasons?
A Uh•huh.
Q So about 40 times?
A Uh-huh. Twice in the original -- in the
beginning when I called the sheriffs, I mean. way back.
and left my name. my God, they said, "Do you want to be
notified:'"
1 said. "Well, sure: Well. they came
knocking on my door at 2 oclock in the morning to tell
me what they had done. So I quit giving my name and
phone number at that point
Q Sounds like you and Mr. Hamik have
Page
149
something to talk about. Okay. Thank you.
A You're welcome.
MAYOR BENSON Anything further?
MR. MUELLER: Thank you, ma'am Nothing further.
Is Sarah Drake here?
How about Al Cordel?
How about Shirley Frazier?
How about John Morris?
JOHN MORRIS.
called as a witness on behalf of the City,
was examined and testified as follows:
MR. MORRIS. How are you doing?
MR. MUELLER: Very well.
EXAMINATION
BY MR. MUELLER:
Q Mr Morris, could you spell your last
name. if you would. for the court reporter.
A M.o-r-r-i-s.
Q And sir, do you reside in the area
immediately around?
A Yes. Shadow Mountain Resort.
Q Could you just point n out in receive
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on the map?
A It's right here. This is our area right
here. this Club Circle Drive. And right between
San Luis Rey and Portola. right there.
Q Sir. have you in the past teen a person
who has reported complaints about the noise emanating
from the amplified music from Augusta's Restaurant?
A Yes. I have.
Q How many --
A Police calls and eventually to the City
code enforcement peopk.
Q And are you associated with the resort
itself. Shadow Mountain Resort?
A
that?
Q
what your experience is.
A All right. Shadow Mountain Resort is a
hotel operation. Okay. We have about 85 to 90 units in
the hotel program ranging from 200 bucks a night to 600
bucks a night. and we pay your nice 9 percent city tax,
which runs about 18 to 54 bucks a night per unit. So we
are a legitimate hotel operation. We have a management
company that operates the hotel for us.
Okay? We advertise very heavily in the
Page 151
1 tennis magazine because we are primarily a tennis
2 resort, if you will. although we do have other guests
3 that do come to our facility for just the enjoyment and
4 the peaceful desert ambience.
5 For several years I called -- going back
6 to at least 2006 when I started keeping records, and
7 probably. maybe. 2005. somewhere in there. calling the
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9 ever really happened. And then they started telling us 9
10 to call the City Hall code enforcement people. which we 10
1 1 did. And then 1 got in touch with -- 1 think it was 11
12 Shawn Kilpatrick was the first man that 1 met with. ' 12
13 1 then -- Okay. My complaint was that the 13
14 noise was injurious to our hotel operation because we 14
15 had hotel guests calling our office and saying. What's 15
16 the noise? What's going on? And that interferes with 16
17 our business aspect. We also had people who lived to 17
18 the south of us on the Shadow Mountain golf course that 18
19 were calling, thinking the notse was coming from us. 19
2 0 And even though we would tell them it isn't. then we 2 0
21 wcrc still getting these calls. 21
2 2 Sol stared working with the complaint -- 22
2 3 or the code compliance people here to try to see if we 2 3
2 4 could do something. This is clear back in 2006. Okay. 24
2 5 Now. the levels did go beyond the I I :30 point. as you ' 25
Page 152
heard two officers testifying. rve got the police
report here. too. which talks about one of them heing
five minutes to 12:00.
The lady that he talked to said. Well. the
peopk wanted an encore. so they gave an encore. And I
can understand that once in a while if it want, maybe,
not a continuous thing. but just to clarify the record.
Then in the spring of 2007, 1 was
informed that measures were being taken during the
summer of 2007 to construct a roof or something on the
outside area and a wall around it and that would abate
the noise. And at that time they were given permission
to go ahead and finish the spnng into the summer with
their music. which was fine, okay. because we thought
something was going to happen.
Okay. In 2007. the noise was as before.
The measures of whatever they did do didn't appear to be
of any help. So 1 attended the Planning Commission
meetings and spoke there. And that's why I'm one of the
red Xs on the board.
Now here we are today. As of this spring.
we here at Shadow Mountain are presently no longer
hearing the loud band noise from Augusta's and have not
received any more complaints from our guests or our
neighbors. So whatever measures they took. whether they
Page 153
turned the volume down. built a roof. padded the walls.
whatever they did -- 1 haven't been over there -- seem
to have abated the noise at least up at ow level of
where we are. Now. theres a wall between us arid the
neighbor here that talked. which may help also. But we
haven't had any more cotplaints. Okay.
So i commend the efforts of the code
enforcement group and the Planing Commission for
hanging in there and trying to correct this issue. My
concern now. from a hotel operation is. is it going to
slay that way? What kind of assurance do we have
that -- if they keep the music down like this. its
fine. What assurance do we have that it won't go back
up and it wait go put 11:30 or whatever?
So I'd like to just summarize it. whatever
they've done seems to have abated the noise at ow level
sufficiently that were not bothered with it. But I'm a
link concerned about the future. And I hope it stays
down like it is now. So any questions?
Q The conditions will remain in effect. sir.
but are you suggesting. or do you think that the
monitoring this spring by staff has had an impact on the
sound. or do you think that the sound measures that have
been built into the premises have had an impact? Or do
you know?
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A Well, 1 would assume they go hand in hand.
I would assume that the material that they hung up and
the abatement that they did had a definite effect on it.
Because we don't really hear it like we did before. I
can hear a little music. hut 1 mean, it's not the loud
blasting like it was before.
So in combination of the code enforcement
people being there to monitor and them working at
getting it correct. I think, has paid off. So yeah.
MR. MUELLER: I have nothing further.
Ms. Roberge.
MS. ROBERGE: No. Thank you very much.
EXAMINATION
BY MR. FERGUSON:
Q I have one question.
A Sure.
Q Regardless whether it was code compliance.
fear of officers showing up. industriousness of
Ms. Roberge, if they continue to operate the way they do
now. would you perceive it to he a problem?
A No.
MR. FERGUSON: Thank you.
MR. MUELLER: Johnny Terfehr.
/ / /
Page 155
1 JOHNNY TERFEHR,
2 called as a witness on behalf of the City.
3 was examined and testified as follows:
4
5 EXAMINATION
6 BY MR. MUELLER:
7 Q Sir. your position?
8 A Johnny Terfehr. code compliance officer
9 with the City of Palm Desert.
10 Q And how long have you been in that
11 position
12 A Six years.
13 Q 1 would ask you to spell your last name
14 for the court reporter.
15 A T-e-r-f-e-h-r.
16 Q If you look at Exhibit E in the book in
17 front of you. you'll see --
18 MR. ERWIN: Mr. Mueller, fin sorry to intemtpt.
19 Ms. Roberge has left the room. 1 think we should wait
20 until she gets back.
21 MR. MUELLER: Thank you.
22 MR. FERGUSON: Well, I'm going to leave the room,
23 too. bnefly.
24 MR. MUELLER: It looks like we're having a
25 five-minute break here.
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MAYOR BENSON: Many. should we have a ten-minute
break here?
MR. MUELLER: Okay.
MAYOR BENSON: Well take a ten-minute break.
(A brief roses was taken.)
MR. MUELLER: Are we ready to proceed?
MAYOR BENSON. Go ahead.
MR. MUELLER: Mr. Terfehr. I'm going to defer you
just for a minute and take this opportunity to call a
few additional residents in the immediate arca.
If I could call Don Melvin. M-c-I-v-i-n
DON MELVIN.
called as a witness on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q Good afternoon. Mr. Melvin
A Good afternoon.
We live on Goldenrod Avenue. which is
beyond any of the red marks. Its a couple hundred feet
below Grapevine. And we hear the music. admittedly. of
late at a lower volume. but a has been so offensive to
us -- and we feel we are reasonable people -- that you
Page 157
cannot hold a quiet conversation on our back patio when
the music is playing. And they're probably a mile from
US.
Q Is this -- how long have you lived at the
residence there. sir?
A We've lived there about seven years.
Q And is it fair to say that over the past
several years when the amplified music on Fridays and
Satunlays is being played at Augusta it has distorted
you --
A Absolutely.
Q -- and annoyed you?
A You can't dine outside and converse
quietly with that music going.
Q What about if you go in your house and
shut all the doors and windows, can you make it go away?
A Possibly. But I don't feel that we live
in South Palm Desert to have to close our doors and
windows to enjoy the temperature, which is one of the
reasons we live here.
Q A fair statement.
Now. since January -- and you're heard.
and 1 think it's true that efforts have been made to
reduce the noise and to mitigate it -- has the volume
reduced to a level this year that it's no longer
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1 annoying or no longer disturbing to you?
2 A Let me say that it is of a lower volume.
3 But I can tell you that if my neighbor was playing a
4 radio as loud as were hearing the music. I would be in
5 his tact.
6 Q So is that to say it's still disturbing'
7 A It's still disturbing.
8 Q Have you in the past been one of the
9 people who has either called the sheriff or called the
10 Palm Desert code enforcement officers?
11 A I have called them. but I did not --
12 simply to ask them if they could find nut the source of
13 this noise and if they could do something about it. I
14 did not leave a name or a phone number.
15 Q Are you here today looking to -- I mean.
16 is it your preference that there not be amplified musk
17 at Augusta's in the evenings? Or what's your position
18 on that?
19 A My position is that they have an area,
2 0 perhaps, three or four tittles the size of this enclosure
21 that they're entertaining. I don't believe that
2 2 amplification is necessary and. certainly. not to the
23 extent that it is.
2 4 MR. MUELLER: Thank you. sir.
2 5 Ms. Roberge. do you have any questions?
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1 EXAMINATION 1
2 BY MS ROBERGE: 2
3 Q Excuse me. Mr. Melvin. if the gentleman 3
4 before you from Shadow Mountain Resorts says that in the 4
5 last - from November that he is very satisfied with the 5
6 level of music. and it's not a problem for him, and he's 6
7 quite a bit closer to the restaurant than you, fm 7
8 surprised that you can still hear it. 8
9 A Are you? 9
10 Q Uh-huh. 10
11 A Well. maybe my hearing is better than his. 11
12 Q Will. he was representing - he said he 12
13 had a resort that was represaning 60 to 80 people. 13
14 A fm just one person. and I can hear it. 14
15 and fd ratter not hear it. 15
16 MAYOR BENSON: Do you have any other questions? 16
17 17
18 EXAMINATION 18
19 BY MR. SPIEGEL 19
2 0 Q I have one quick question. 2 0
21 A Yes 21
2 2 Q Do you feel, Mr. Melvin. that without any 2 2
2 3 amplification it would he any bother at all" 2 3
24 A 1 think it would be a wonderful venue for 24
2 5 music. But my point was that you have - you have an 2 5
Page 160
area -- and it's a beautiful am and restaurant. I
don't feel that amplification is necessary.
Q But without it, would you hear it. the
music. where you live?
A l have no way of knowing that. 1 doubt
it. But inside the home you can hear the base.
Q That's with the amplification?
A Right.
MR. SPIEGEL: Okay. Thank you.
MR. MUELLER: Thank you, sir.
THE WITNESS: Thank you.
MAYOR BENSON: Any other questions?
MR. MUELLER: At this time I call Joe Litjens.
L-i-t-j-e-n-s.
MR. SPIEGEL: I'm sorry. how did you spell your
last name''
JOE LITJENS.
called as a witness on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q Sir. is your name spelled?
A Joe Litjens, L-i-t jon-s.
Q And are you a resident of the area in Palm
Page 161
Desert near the Augusta's --
A For the last 10 years.
Q And where do you live. sir?
A 46 -- on the Goldenrod Lanes. same as the
previous gentleman.
Q And why are you here today. sir?
A I've complained for the last four years.
I've called the City. left my name: nobody returned my
phone calls. I called the restaurant. left my name. I
asked for the owner, no own. 1 asked for the general
ntanager. no general manager. The poor hostess. she had
to take the brunt of my irate phone call. not once. a
half a dozen times.
Q What have your -- were here specifically
talking about, today. the amplified music that cores
from Augusta's on the patio on Friday and Saturday
evenings. What have your experiences been in terms of
hearing that musk at your property?
A When we have -- when we entertain on the
patio. I don't need to hire entertainment. I just tell
the people that we get free entertainment. That's how
loud it is. Al one time in the hospitality industry.
I'm retired. and I thought maybe I'd open up a
restaurant. but 1 don't need to hire a band.
The lady also said "Well, can you hear it
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1 inside the house?' Well. she can come into my house.
2 I'm maned. The minute we go to bed. we hear the music
3 kiwi and clear. We can dance to it if we wanted to. We
4 can listen to the words that are being spoken. She s
5 wekome to that.
6 Q Is the --
7 A It's very offensive. And what it does.
8 you want to skip. and I might sleep only about five
9 hours. But I get upset because my night rest is
10 disturbed forever. last Saturday it was so noisy again.
11 I was about to call. You asked if you heard it past
12 January. Yes.
13 Q Well. that's one very important question.
14 is whether things have gotten better. and. since
15 January. whether or not the music is disturbing or
16 annoying to you. Is it. sir?
17 A Oh. no. I torn the TV up. so I tune them
18 out. So I tum the TV up inside, the volume of my TV so
19 I can't hear. But the minute you walk outside. you
20 might as well start dancing.
21 Q Well, specifically. sir. does the music
22 from Augusta's disturb you?
23 A It is the loud noise that comes from
24 there. The music I have no problem with: however, when
25 Augusta was announced in the papers that they would have
Page 163
1 outside entertainment. we all thought, because a
2 high -end restaurant. a high -end art department down
3 there. they would also have high -end night
4 entenainrnent. Well. like 1 said. I've been in the
5 hospitality industry a long time, and to me, the
6 amplification just destroys the whole ambience of
7 whatever they are creating down there. And it creates
8 our ambience at home.
9 Q So it's the amplification that bothers
10 you?
11 A Absolutely.
12 Q Anything else that you wish to share with
13 the Council in terms of your experiences? 1 take it,
14 from your comments. you're here advocating that the
15 amplification should be eliminated?
16 A Yes. I have been listening all morning.
17 and the amplification and the measurements that they
18 take, I would imagine that it's — for an outside
19 restaurant should be different than for an indoor
20 restaurant and an indoor entertainment center.
2 I lithe same measurements apply to the
22 indoor and the outdoor. it doesn't matter what you set
23 it at. 55 or 45: it will always be too loud because
24 there's a difference of the noise level that projects to
25 the outside.
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Page 164
MR. MUELLER: I dont have anything further.
MS. ROBERGE. No questions.
MR. MUELLER. Ms. Roberge:' Members of Council?
MR. FERGUSON. I do. And ifs just an
observation for the city attorney. I know this is not •
court of law. I know the California rules of evidence
dont apply. But we've had so nany leading questions
and so much hearsay. that if he thinks Mts. Roberge
ought to lose her CUP. he's perfectly capable of saying
so without it being suggested to him by the counsel for
the City, and 1 would just ask that we have no more
further leading questions in that regard.
MR. ERWIN: I assume that would be applicable to
everybody.
MR. FERGUSON: To everybody.
MR. ERWIN: Okay.
EXAMINATION
BY MR. SPIEGEL
Q 1 have one question.
It bothered rile when you said that you
called the City and no one rcspaded. Did you have any
particular department that you called where they didn't
respond?
A Yeah. I called the City manager's office.
Page 165
Then I was routed through the departments. I left my
name and phone number.
Q And nobody returned your call?
A Nobody has come by the door and asked me
or returned my phone call.
Q Has this happened more than once?
A Twice.
Q Twice?
A Twicc.
Q Thank you.
A This is in'06,'07.
MR. SPIEGEL: Thank you.
MR. MUELLER: Thank you. sir.
THE WITNESS: Thank you.
MR. MUELLER: Thank you.
I'd call Beverly Buries.
BEVERLY BURIES,
called as a witness on behalf of the City,
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q And could you state your name and spell it
for the record.
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1 A Oh, yes.
2 Q Have you expressed that to either the
3 sheriffs office or to --
4 A Both.
5 Q -- staff?
6 A It took a long time for me to understand
7 that a call to the sheriff's department to report this
8 is not an automatic report to the City. But once I was
9 informed of that, then 1 followed that procedure. 1
10 advised my neighbors of that procedure: that when you
11 call the sheriff. and you notify them. even if they do
12 go out and turn it down right away. that you need to
13 contact the City code enforcement the following Monday
14 and advise them so that they will have a record of it.
15 And l have always given my name. Absolutely no
16 hesitation.
17 I had no idea that had l had the -- that I
18 would have had the opportunity to go make a citizen's
19 arrest because either I or my husband would have been
20 there, Johnny on the spot.
21 Q Why is that?
22 A Because it's loud. It's very offensive.
23 It goes on -- I mean there were years when we had the
24 Janis loplinesque singer amplified into our backyards.
25 And 1 can tell you. 1 mean. it had to have been well.
Page 166
A My name is Beverly Buries. B-u-r-i-e-s.
Q And do you live in the area near --
A 1 do. 45-831 Mountain View. which is one
of the monitoring sites. 1 believe.
Q Have you complained in the past shout --
A Many times. numerous times.
Q -- about -- specifically about the
amplified music from Augusta's?
A Yes.
Q Could you share with the Council what your
experiences and reaction have been to the level of
amplified music coming from Augusta's?
A Well. it just goes on and on and on every
weekend. And it goes on and on and on past 11:30. I
think were beating a dead horse if we think that it
turns of( at 11:30. It doesn't. 1t goes on. And if
it's one encore or two encores or three encores. it's
well past the time that we should be able to experience
quiet in our own homes or on our patios. If it's 11:30.
and we want to be on our patio. 1 should be able to do
that.
Q Have you personally been disturbed by the
music?
A Yes.
Q Have you ever found it to be annoying?
Page 168
1 well, well over the exceeded -- well. over the accepted
2 level. I mean. it sounds as if it's being amplified
3 outside my door. And 1 do find it very offensive.
4 Ms. Roberge continues to say and harp on,
5 "Did you go into the homes'' She wants her outside
6 space and to be able to cnjoy that and have her patrons
7 to do that as well. I, as a resident. who pay my taxes.
8 want to be able to entertain my friends and my neighbors
9 on my back patio. Or if 1 just watt to sit out and read
10 a book, I want to be able to do that in peace and quiet.
11 Q Let me just ask you. though. What have
12 your experiences been since January 1st of this year?
13 Has it gotten better, and is it no longer --
14 A The sound has been attenuated somewhat.
15 yes.
16 Q But the question is, on an ongoing basis.
17 whether it continues to be disturbing or annoying to
18 you?
19 A Well, I think that here -- I think that
20 the City Council. as well as the residents -- I know the
21 residents arc very concerned about this. History has
22 proven itself in this situation to be a very poor
23 predictor of what will go on in the future.
24 This -- I know I have reported this since
• 25 '02. I have reported it consistently when it's
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Page 169
happened. I've written letters over and over to the
City Council, to the Planning Commission. It's not a
new bit of news to any of us. I know that it was popped
in and out of departntetts to be handled at different
times, which may have accoutred for the fact that
certain calls weren't returned. Because there was a
time when you called code enforcement. and it was no
longer being handled by code enforcement. it was bang
handled by the City manager's office. And so if you
werent willing to follow that trail. you would not get
any response.
So, you know. that. I think. is a big part
of what's gone on here.
Q But the question is. Does it continue to
be a problem or not a problem after --
A I feel it is a problem.
Q That's the question herein.
A And I think are we going -- I mean, if we
say, okay. the Conditional Use Permit will continue, do
we have any guarantees with our sheriffs not responding
that that level would be below an acceptable level to
individuals in their homes in the community? 1 know
it's probably a great place to go and really enjoy the
music and dance. I'm raising a I7-ye rold. so let me
tell you. I hear lots of music. But 1 don't want to
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1 hear it after II oclock al night. and I donut want to 1
2 have to close my windows and doors to be able to enjoy 2
3 mY property 3
4 MR. MUELLER: Any questions, Ms. Roberge9 4
5 5
6 EXAMINATION 6
7 BY MS. ROBERGE: 7
8 Q I'm sony. I didn't get your name. 8
9 A Beverly Buries. 9
10 Q Excuse me, Ms. Buries. if we were able to 10
11 keep the sound at 55 decibels. if I heard you right, 11
12 then that would he something that would be acceptable to 12
13 you? 13
14 A No. you did no hear me say that. 14
15 Q Okay. I thought you said that it was okay 15
16 for you now, and we're at 55. 16
17 A No. Go ahead. I'm spry. I didn't mean 17
18 to interrupt you. 18
19 Q Go ahead. 19
2 0 A No. The sound that is projected to my 2 0
21 home, as has been cited about several other homes -- and 21
2 2 I know that there are air currents that carry our sound , 2 2
2 3 differently in the valley here, but the sound at my home 23
24 is extremely loud. And when it comes to past 24
2 5 10 o'clock, I want that music turned off. That's what I 2 5
Page 171
1 want. ( don't want to be told that you need to be
2 inside with your windows closed or that if the code
3 enforcement fellas come out to monitor that sound they
4 have to come into my house to monitor that. That's
5 silly. You want to use your outside space; 1 want to
6 use mine as well. If I'm in my Jacuzzi. and l have my
7 jets going, I don't want to hear your music three blocks
8 away. And 1 do.
9 Q Well, you know. we both live in an area
10 that we have to abide by the codes. Mine allows me 55.
11 And we also want to use our patio. And if we brought
12 the music level down to 55 -- and. as they said in
13 Shadow Mountain Resort. they're fine with it. There's
14 give and take.
15 A Well, I'm right behind them and I --
16 MR. ERWIN: Can I interrupt?
17 THE WITNESS: -- and I do not concur with that.
18 MR. ERWIN: Pardon me. Ms. Roberge. ask a
19 question. please.
2 0 BY MS. ROBERGE:
21 Q Are you behind Shadow Mountain?
2 2 A I'm right behind Shadow Mountain, yes.
2 3 Q Shadow Mountain Resort?
2 4 A Yes. So at three blocks from your
2 5 establishment.
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Page 172
Q Well. the gentkman at the Shadow Mountain
Resort said that he was content with the music at 55.
A I can't speak for him, Ms. Roberge.
Q No. but I'm just shanng with you.
A 1 heard him.
Q Okay.
A And I also heard Brian. who lives down the
street from me. who said that his children are
frightened by your music at times. That's true. It's
really true. When we put our kids to bed. we don't want
to have to close our windows and our doors to block out
your sound. And the fact that it's taken this period of
time to affect a change? Why did it only take one
year -- up until this year? Nothing was done. When 1
call your establishment at midnight and the phone -- no
one will pick up the phone when I call to complain prior
to calling the sheriff. 1 really am offended by that.
The music is still going. Somebody is still there.
Q You know, Mrs. Buries. the music has not
been going after I I :30.
A But I'm saying historically, when I --
MR. ERWIN: Ma'am. and Ms. Roberge, kt's not
have a discussion hack and forth. This is question and
answer. please.
MS. ROBERGE: Okay. Sony.
Page 173
MR. MUELLER: Any further questions?
EXAMINATION
BY MR. FERGUSON:
Q Just a quick one. How many times would
you say you've complained?
A Oh. I've probably complained 35.40 over
the years
Q Accumulative, 35 to40?
A Yeah. each time giving my name and
address.
MR. FERGUSON: I appreciate that. Thank you.
MAYOR BENSON: Any other questions?
MR. MUELLER: Mr. Terfehr.
JOHNNY TERFEHR (cont.),
having been recalled as a witness
on behalf of the City.
was examined and testified as follows:
EXAMINATION
BY MR. MUELLER:
Q Sir. your name again for the record?
A Johnny Terfehr. cnde compliance officer
with the City of Palm Desert since January of 2002.
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Page 174
1 Q Great. Mr. Terfehr. if you look at
2 Exhibit E. it includes the tabs from November of 2007
3 through May of 2008. and. behind those. a series of many
4 reports, and many of those reports at labeled from you
5 to Mr. Ponder.
6 Do you sec that?
7 A Yes. sir. I do.
8 Q Have you seen these documents before°
9 A Yes. sir.
10 Q These are your reports?
11 A Yes. sir.
12 Q Have you also done what's called
13 reasonable person observations yourself of the impact of
14 Augusta's amplified music on the residential community?
15 A Yes.
16 Q And if you look at Tab G. page -- it looks
17 like page 131, is that your report?
18 A Yes. sir. it is.
19 Q is everything on that report accurate?
2 0 A Yes. sir. This appears to be the report
21 that I filed.
22 Q Now. aside from just the report. can you
2 3 tell me about this reasonable person observation" What
24 did you do. and what did you observe? Tell the Council.
2 5 please.
Page 175
1 A Basically up to this point 1 was just
2 taking readings with a meter. But I was asked to go out
3 and do the reasonable person approach and listen at the
4 various locations indicated on the map. When I did that •
5 at the locations that sue nearest to Augusta's. 1 was
6 quite surprised about how lewd the music was. At places
7 like Shadow Mountain it was very much reduced. but you .
8 could still hear the music.
9 Q Did you -- the last Tine. or next to the
10 last line in your report. on page 131. says. "I believe
11 that if I lived at any of these locations, I would find
12 the noise level to be disturbing."
13 Do you see that statement'
14 A Yes. sir.
15 Q Could you -- first of all. would that
16 level of disturbance be different depending on which of
17 the red dots we were at?
18 A 1 believe so. Obviously, on probably the
19 far closest -- I'm a person that sleeps with my windows
2 0 open. and l wouldn't be able to do that at those
21 locations. And then the farther one is away. perhaps I
22 could. depending on the nature of humidity that night or
2 3 whatever the atmosphere conditions were.
24 Q Tell me. sir, did you — in going out to
2 5 do the reasonable person observation. had you already
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1 made up your mind going out there that the music was a
2 problem?
3 A Actually. the opposite is true. Doing the
4 readings. I thought that, you know. it was --1 like
5 that kind of music. That's my era of music. And you.
6 know. the music didn't bother me. When I went out to
7 those locations it was surprising to me how loud it was.
8 It almost -- I almost perceived it as being louder than
9 right where I was doing the metering. Although, you
10 know. when 1 did it again. it wasn't. it just -- the
11 sound kind of tevetberated through there somehow.
12 Q Have you been involved with receiving or
13 responding any of the complaints from members of the
14 community to the City to Code Enforcement?
15 A No. all the complaints were referred to
16 the officer limiting the case.
17 Q So your involvement has been in taking --
18 monitoring readings and then the reasonabk person
19 observations: is that correct?
2 0 A That's correct.
21 MR. MUELLER: I really have nothing further.
2 2 Ms. Roberge.
23 EXAMINATION
24 BY MS. ROBERGE:
2 5 Q Hello. Excuse me. 1 have to ask you this
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question: The gentleman just before you from Desert
Mountain Resort Hotel said that at 55 he's content and
there isn't a problem there. That how come with
tracking the music on March the 171h. you state there is
a problem there and that you could hear everything? Do
you think this gentleman would be making this up when he
first came bee to complain but has now changed his
mind?
A Well. what I understood was he sad that
it was a level that was no Longer disturbing to him. As
1 stated. the area -- the locations closer to your
restaurant were much later. Al his place I would have
to. you know. spend the night there to really know for
sure if it would he disturbing to me. But it seemed
like I could hear it. I could hear the words. To me.
that was enough to say that it would be disturbing.
Q Do you think if he could hear the words,
that he would have called that disturbing?
A I can't comment on what he might.
MS. ROBERGE: Well, he didn't.
There's really nothing else I have to ask
You.
MR. MUELLER: Any questions from Council'?
Thank you. sir.
Shawn Kilpatrick
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Page 178 Page 180
1 SHAWN KILPATRICK. 1 A The one -hour was 56.03.
2 called as a witness on behalf of the City. 2 Q And there are other instances in here as
3 was examined and testified as follows: 3 well. sir. where you monitored noise levels coming from
4 4 Augusta; correct?
5 EXAMINATION 5 A That's true.
6 BY MR. MUELLER: 6 Q If we Zook at the next pages. for example,
7 Q Sir. could you slate your name for the 7 pages 81. 82. is that another report of yours?
8 record and spell your last name for the court reporter. 8 A It is.
9 A Shawn Kilpatrick. K-i-I-p-a-t-r-i-c-k. I 9 Q And another instance in March when
10 Q And what is your position, sir? 10 Augusta's was over the 55 decibel on a one -hour average?
11 A Code enforcement officer since April of i 11 A Thar s correct.
12 1999. • 12 Q When these reports are made by you of
13 Q What involvement have you had with the 13 sound readings. are they accurate information?
14 issue of noise complaints or noise keel monitoring 14 A As far as the recorded decibel level. yes.
15 arising from amplified music at Augusta's? 15 Q And where in proximity to the restaurant
16 A I've been the case officer handling 16 do you obtain that information. do you make those
17 complaints. doing the meter readings, and conducting 17 recordings9
18 reasonable person observations throughout this case. 18 A On Larrea Street. south of the restaurant.
19 Q There are instances. I believe, in 19 east of Pnckly Pear. at the same location that we've
2 0 Exhibit E which are the month -to -month recordation of 2 0 consistently taken these readings.
21 data. , 21 Q Now. you have also been involved in
22 MR. KELLY: Can we have a page number. please? ' 2 2 receiving complaints from members of the community:
2 3 Because sometimes I miss the G and E. lust the page 2 3 correct?
24 numbers are very helpful. 24 A 1 am the complaint clearing house.
2 5 / / / 2 5 Q Over the years. how often have you
Page 179 Page 181
1 BY MR. MUELLER: 1 experienced receiving complaints? What kind of
2 Q Sure. In Exhibit G lsicl• for example. 2 frequency?
3 sir, if you tum to page 0079. 3 A Starting in the fall. it's like clockwork.
4 A Exhibit E. 4 They begin and continue until the spnng or end of
5 Q I'm sorry, yes. Exhibit E. I may have 5 season. as Ms. Roberge puts it.
6 misspoken. 0079 is a March 21 -- if you go to the tab 6 Q Have you continued to receive those
7 for March. and then sift through there to page 79 and 7 complaints in 2008?
8 80? 8 A Yes. I have.
9 A Okay. 9 Q In your experience. have you deah with
10 Q Is this a report which you prepared. sir? 10 some complainants who you had the opinion of were
11 A That is correct 11 reasonable versus other complainants whose complaints or
12 Q And tell me about this report. What is it 12 the persons mannerisms seemed irreasonabk to you?
13 a report of? 13 A I have. 1 have desk with complainants.
14 A It's a report where I took a one -hour 14 some in the past. where I've determined that they're
15 A -weighted measurement and three ten-minute A -weighted ' 15 unreasonable.
16 measurements. 16 Q Have you made any of those kind of
17 Q And -- go ahead. : 17 determinations relative to the complaints concerning
18 A The results of which are reflected in the : 18 Augusta's?
19 graphs on the second page. page 80. 19 A I have not. In fact, regarding these
2 0 Q Now. on this particular evening -- which 2 0 complainants, it's likely that I would never have gotten
21 was March 21: comedy? 21 the opportunity to meet any of them o speak with any of
2 2 A Yes. 2 2 them if it were not for Augusta's.
2 3 Q On this evening. what was the average 2 3 Q Now. did you personally go out into the
2 4 raise level that you -- that you obtained from your 2 4 neighborhood to try to make your own observations of the
2 5 monitoring on a one -has basis? 2 5 level of disturbance that the amplified music makes?
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Page 182
1 A I did.
2 Q At Exhibit G. there area number of
3 e-mails and memos that make refnence to reasonable
4 person observations. And 111 tell you, if you look at
5 Exhibit -- at page 126. there's a memo with your name on
6 it. Do you see that?
7 A 1do.
8 Q Is that a document you prepared?
9 A It is.
10 Q Is everything in that memo — if you want
11 to take a minute to read it. It's a memo from you to
12 Hart Ponder, code compliance manager. Is everything in
13 that memorandum accurate?
14 A It is. It's accurate.
15 Q Tell the Council, of you would. about what
16 you did and what you observed. And really. what was it
17 like going out there? What did you hear?
18 A As Ryan Stenuell indicated. we all went
19 out to the various locations indicated on the map to see
2 0 if we could hear what the complainants were claiming.
21 As Officer Terfehr stated. you can be metering, and the
2 2 metering levels may come in at 55 or below and one would
2 3 think. well, gosh. it can't he any louder the further
24 away that you get. and my observations at these
2 5 locations indicated otherwise. It was surprising that
Page 183
1 we would get to a spot and I could hear a song. I could
2 make out the lyrics to the song and the music. Granted.
3 there's some Iocatiom the further away that you get
4 where that level is much lower, but in areas like
5 mountain view. Shadow Lake. and Shadow Mountain. they
6 were particularly disturbing.
7 Q From going out in the neighborhoods. did
8 you develop an opinion as to whether the level of
9 amplified music from Augusta's at that time was
10 disturbing or irritating or whether it would be to you
11 personally if you lived in those communities?
12 A For me, if it was something that occurred
13 occasionally. I think, as die one resident indicated.
14 that, hey, if maybe a Friday night or a Saturday night
15 my neighbor has a party, it wouldn't disturb me My son
16 is in a bind. My neighbors have band practice about
17 three times a year, and it doesn't bother me. But to
18 occur chronically every weekend, I would have a problem
19 with Thal.
2 0 Q Did you develop an opinion as to the
21 reasonableness or unreasonableness of the complaints
2 2 that you had been receiving from the complainants who
2 3 were residents?
2 4 A I developed an opinion that their
2 5 complaints had valid -- had ment.
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Page 184
Q Are there any other observations that you
feel you need to share with the Council conceming
issues at Augusta or noise at Augusta that we haven't
touched on?
A Well, I think there's mention that's been
tossed around that after November 7th there's been no
complaints. And that's not necessarily one. As
Mr. Litjens, I think had indicated. he had called. And
at that time code enforcement was removed from the
process as far as case management goes, which is why our
cafe packet only contains reports. sound meter repots,
the things that we were directed to do. So
calls would carte in. I would receive than, and I would
forward them up. you know, to Planning Department. to
Council secretary. and stuff like that. So complaints
dad continue after November.
MR. MUELLER: Thank you.
Ms. Roberge. any questions?
EXAMINATION
BY MS. ROBERGE:
Q Mr. Kilpatrick how come when we asked you
we would like to know the number and the names of the
complaints in the last six months. four months, we could
never get that from you?
Page 185
A Yeah. And that's something that we
typically don't just dole out. Whenever we,receive a
complaint. as my supervisor mentioned, we ascertain the
validity of that complatrL and if it's so. it's noted
We don't give reporting party information out. unless
it's subpoenaed or requested.
Q Well, we didn't ask you for the misses. We
asked you for the locations so we could also go and test
that.
A I think the k,cations are enumerated on
the map.
Q So then you're saying that you have seven
locations of complaints?
A That's convict. And probably more.
Q Well, seven locations or more?
A That is correct. We have seven
documented. These are citizens who have said I'm
Citizen A. I'm Citizen B, and 1 live here, and I wain to
know what you're doing about it.
Q Would it have been unreasonabk for you to
have shared with us so that we know who those seven
citizens are/ Because you have given us the names of
those. Would it have been unreasonable to have said to
us it's the same seven citizens?
A Are you interested in the locations or the
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Page 186
1 names of citizens? I'm confused.
2 Q No, what I'm trying to ask you for is why,
3 when we would ask you over and over again for the number
4 of conipiatnts after we had worked so hard to bring it
5 down to 55. that you couldn't share that with us?
6 A I'm not sure that that wasn't shared with
7 you. As 1 just mentioned. in November of'07, we were
8 removed as the case handler. and the information line
9 between you and City staff didn't come from the code
10 office.
11 Q Woufd that not have been helpful to share
12 that with us. that we don't need to ask you any longer.
13 we need to ask whoever it was referred to?
14 A I believe information is important. and I
15 would hope that you did get that information.
16 Q We didn't.
17 Well, to discuss -- I guess you know about
18 the problem we're having recording the right decibels.
19 You're aware of that?
2 0 A No Go ahead.
21 Q Okay. If a big truck a plane, a tractor.
2 2 loud music goes by. it distorts the high; correct?
2 3 A Ir does record a kinder level.
2 4 Q And our decibel level is taken by the
25 average of the high and the low?
Page 187
1 A Our ordinance requires the average over a
2 designated period of ume. whether it's 10 minutes or 60
3 minutes. here are a lot of things that do occur during
4 one of those periods. A truck could go by. Sotioti
5 coukl honk their horn. One of your patrons coukl come
6 outside screaming and skew a evet.
7 So there's a lot of variables involved.
8 and they're all factored in in an average.
9 Q Well. the average is the high and the low
10 averaged to give us a decibel?
11 A No. the average is the average. There's a
12 low — there's the lowest recorded period. and then
13 there's the highest recorded decibel level.
14 Q Correct.
15 A And then there's an average throughout the
16 entire period
17 Q Right. So if the high was distorted. then
18 the average is distorted; correct?
19 A The average is the average.
2 0 Q I think we got the picture, so 1 wont
21 labor that.
2 2 Well, 1 want to regurgitate again that
2 3 it's strange that the man for Shadow Mountain who 1 was
24 most concerted about —
25 MAYOR BENSON: Denise, would sxi please just ask
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Page 188
him your question?
MS. ROBERGE: Okay.
Q Why is it that the Mountain -- the man
from Shadow Mountain doesn't have a problem with ow
music any longer. but code enforcement does?
A I cant speak for Mr. Moms.
Q No. but you can speak for yourself.
A And I am. My report reflects that I could
hear music at the Shadow Mountain Hotel and Resort. I
could distinguish the lyrics from the songs. and I would
imagine if I was renting a hotel more there with my
window open for a three- or four -week period. and I
heard that every weekend. it would be disturbing to me.
That would be my opinion.
Q Were you aware of us the same ought you
were at Shadow Mountain with our recording and our
listening as reasonable people?
A I do recall that you had gone out or
members of your staff had gone out an one of the
evenings. I'm not sure which one it was.
Q Well. we were there along with you. and we
couldn't hear the songs as the way you've written it top
in your report. iliac was a little sound.
MR. ERWIN: Do you have a question. Ms. Roberge?
/ / /
Page 189
BY MS. ROBERGE:
Q I guess. How lewd does it have to be for
you to be able to recognize the sound?
A Are you asking me what the decibel level
would have to be?
Q No, I guess I'm not asking you that. I'm
asking you. As a reasonable person, how loud would that
song have to be for you to be able to recognise it?
A 1 don't know how to answer that. Whether
I could hear it or not would be my response.
Q You don't like me. Mr. Kilpatrick. do you')
MR. SPIEGEL: Please.
BY MS. ROBERGE:
Q It's a question.
A To the contrary. I do.
MR. ERWIN: I'd suggest to the witness -- that is
not an appropriate question. Ms. Roberge.
MS. ROBERGE: Well. then, you know, I don't have
any more questions for Mr. Kilpatrick.
EXAMINATION
BY MR. SPIEGEL:
Q I have one for Shawn. You said you
were -- early on. you were removed from the process
around March I4th?
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Page 190
1 A That would be -- that might have been one
2 of the times the Code was removed.
3 Q Where did it go after you were removed?
4 A We would have discussions with the City
5 managers office. with the planner. with Phil Drell
6 MR. SPIEGEL: It would go to Planning then after
7 Code was removed? Is that right. Lauri?
8 MS. AYLAIAN: Yes. In November. when the
9 decision was made to take the issue before the Planning
10 Commission. it was turned over to Code -- excuse me. A
11 planna was assigned to the case. That was
12 Ryan Stendell.
13 MR. SPIEGEL.: So --
14 MS. AYLAIAN: So as of November. early November.
15 MR. SPIEGEL: So Code worked with you. but you
16 told them what you wanted done?
17 MS. AYLAIAN: Yes. We asked them to take sound
18 measurements and ask for specific reports.
19 MR. SPIEGEL: Thank you.
2 0 MR. FERGUSON: I have a couple of questions •-
21 THE WITNESS: Yes, sir
2 2 MR FERGUSON: — if nobody else does
2 3 MAYOR BENSON: Go ahead.
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Page 191
EXAMINATION
BY MR. FERGUSON:
Q Taking you back to Mr. Ponder's infamous
December 21 st. 2007. e-mail --
A Yes. sir.
Q -- you responded to it saying that at one
time
MR. KELLY: What number are you on?
MR. FERGUSON: I'm sorry, I'm on --
MR. SPIEGEL: 125.
MR. FERGUSON: -- PO 0125.
MR. KELLY: 125?
Page 192
1 Shadow Mountain Drive?
2 A I don't think it would be as clear as I am
3 right now miked.
4 Q Would it he as loud?
5 A Maybe, approximately.
6 Q Okay. And you say towards the end. At
7 Shadow Mountain Resort Tennis Club, we were able to
8 faintly hear music.
9 Could you approximate what "faintly" is
10 using your voice?
11 A Maybe some mumbling, maybe a little bit
12 lower. maybe higher.
13 Q All right. So where I could barely
14 discern your voice or what you were saying?
1 5 A Cots be.
16 MR. FERGUSON: And this is just kind of an
17 open-ended question for Many and Dave. I know this is
18 going on long, but at some point it would be nice to
19 get. if we have a decibel meter, some idea of how loud
2 0 55 decibels is because 1 don't have the slightest clue.
21 And if that seems to be one of the standards -- I'm just
2 2 throwing it out there -- if we could get that set up. I
2 3 woukl appreciate it.
24 Q Mr. Kilpatrick. did you ever get
2 5 Ms. Roberge or her employers a notice to abate at her
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MR. FERGUSON: Yes. near the bottom of the page. 13
Q You said. At 73922 Shadow Mountain Drive. 14
we were able to clearly hear a band playing. . 15
Would you speak to me in a clear voice 16
similar to the way you use the word here?
A I would hope that this voice is clear.
Q So would that be the approximate sound
that you heard?
A At Shadow Mountain Drive it was very
clear.
Q No. that wasn't my question.
Was the clarity of the voice that you just
used the same clarity of the music that you heard on
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Page 193
place of business')
A A cease and desist. notice to abate.
comply with all terms of CUP and 924, something of that.
yes.
Q How many times did that occur'
A That l personally gave her!
Q Well. you or anybody from the City of
Palm Desert that you're aware of?
A I'm aware of providing tier with one
written notice and providing her with one order to
abate.
Q At the same time or on separate occasions?
A Separate occasions.
Q Okay. And what about Mr. Terfehr?
Where's he?
A Officer Terfehr has probably written her
more ktters. Three out of four.
Q Is he still here'
A Yes.
MR. TERFEHR: Yes. sir.
MR. FERGUSON: Mr. Tetfehr, do you wautt to step
forward to the microphone so we have a clear record.
Could you just answer the same question. And 1
appreciate your indulgence.
MR. TERFEHR: Im sorry. could you repeat the
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Page 194
1 question?
2 MR. FERGUSON. Yes How many notices to abate or
3 other type of notices. as Officer Kilpatrick just
4 delineated for me. have you served at Augusta on
5 Ms. Roberge or her employees?
6 MR TERFEHR: 1 for sure one was mailed.
7 I'm not certain if there were more than that If it
8 was. maybe one or two
9 MR. FERGUSON: Maikd or delivered?
10 MR. TERFEHR: They would have been nailed.
11 MR. FERGUSON: And Officer Kilpatrick. your two,
12 were they nntkd or delivered?
13 MR. KILPATRICK: Mailed and hand -delivered.
14 MR. FERGUSON: So your Iwo were hand -delivered?
15 MR. KILPATRICK: Correct.
16 MR. FERGUSON: Do you remember the color of paper
17 they were delivered on?
18 MR. KILPATRICK: Our standard letterhead. or it
19 might have been a copy.
20 MR. FERGUSON: So it wasn't on red letter -- it
21 wasn't on red paper?
2 2 MR. KILPATRICK: It wasn't on red paper.
2 3 MR. FERGUSON: It wasn't handed to a bartender in
2 4 front of a large group of patrons'
25 MR. KILPATRICK: No.
Page 195
1 MR. FERGUSON: Mr. Terfehr, do you recall
2 anything along those lines?
3 MR. TERFEHR: No.
4 MR. FERGUSON: Fair enough.
5 One of you made reference to the lady at
6 Heliotrope who made 68 reports in 180 days of noise. Do
7 you recall what enforcement action we took with her'
8 MR. KILPATRICK: 1 believe we determined -- "we."
9 being the City -- that her complaints didnt have merit.
1 0 MR. FERGUSON: Okay. Great. Have either of you
11 ever issued a citation pursuant to Paim Desert Municipal
12 Code 9.24.040. otherwise known today as the subjective
13 standard. i.e.. the decibel meters were in compliance.
14 but you still found the -- excuse me. let me get the
15 right words -- noise discomforting or annoying'' Have
16 either of you in your career with the City issued a
17 citaliort under that code section?
18 MR. KILPATRICK: I attempted to issue a citation
19 under that code section. Ms. Roberge refused to sign.
2 0 MR. FERGUSON: So you attempted one time with
21 Ms. Roberge. Other than that. any other citations?
2 2 MR. KILPATRICK: Officer Rodnguez issued her a
2 3 citation under that section.
24 MR. FERGUSON: Okay. I'm talking to you. though.
2 5 right now. Have you ever issued any under that cock
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Page 196
section to any other business?
MR. KILPATRICK: No. sir.
MR. TERFEHR: No. sir.
MR. FERGUSON: Mr. Terfehr. no'
MR. TERFEHR: No.
MR. FERGUSON: Okay.
I have -- and my count may be wrong.
Mr. Terfehr, you apparently took readings up at Augusta
on 18 occasions on Exhibit, whatever were calling it,
the big one. E. and Mr. Kilpatrick you took
observations on 23 times in Exhibit E And 1 didn't see
any other names on Exhibit E. So is it fair to say that
all the code enforcement activity from the code
enforcement departments. City of Palm Desert. occurred
with you two gentlemen. at least as Exhibit E is
concerned?
MR. TERFEHR: As far as metering goes. that would
be yes for me.
MR. KILPATRICK: Right.
MR. FERGUSON. That's all I've got. Thank you
very much.
MR. MUELLER: 1 have nothing further. gentlemen.
Thank you.
Are there --1 don't have any additional
witnesses. though there may well be members of the
Page 197
residential community that haven't been heard yet
concerning disturbance or annoyance with the Augusta's
music. And if there are. they should come forward now,
and I would ask some questions. Otherwise. my
presentation is complete at this time.
MR. THIELMAN: rm a resident.
MR. MUELLER: Sir. from the "Let it be"
T-shirt --
MR. THIELMAN: That's right.
MR. MUELLER: -- 1 assume you're here to speak in
favor of the outdoor amplified music?
MR. THIELMAN: I am. I'm a resident. My name is
Brendon Thielman. I live nght here (indicating). I
just want to say that I've been a resident since
November of 2007. And I wouldn't say that the music is
an annoyance or a public nuisance. It's a very faint --
rd say you'd have to strain to hear the sound. If a
loud gust of wind blows, you can't hear it, or if a car
doves by. there's no sound. So 1 don't understand how
these residents would say that it can be as loud as they
say it is. That's my opinion. So I just want to let
everyone know that not all residents think that it is a
public nuisance or an annoyance.
THE REPORTER: Can you spell your last name'
MR. THIELMAN: T-h-i-e-I-m-a-n.
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Page 198
1 CITY CLERK: And your first name was Vernon: is
2 that correct?
3 MR. THIELMAN: Brcndon.
4 CITY CLERK: Brendon. Thank you.
5 MR. ERWIN: Madam Mayor --
6 MR. MUELLER: Just a minute. sir. there may be
7 additional questions.
8 Ms. Roberge?
MS. ROBERGE: No. Thais fine.
MR. MUELLER: Council?
MS. ROBERGE: But Jim McIntosh is here to speak.
MR. ERWIN: At this point. Madam Mayor.' think
it is Mrs. Roberge's turn to call witnesses.
MR. MUELLER: 1 agree.
MR. ERWIN: Anyone that she wishes.
MS. ROBERGE: Jim McIntosh.
JAMES McINTOSH.
called as a witness on behalf of Augusta.
was examined and testified as follows:
THE WITNESS: Good afternoon. My name is
James McIntosh. 77-747 Delaware. I've resided in
Palm Desert. as well as my business is in Palm Desert.
Do you have questions. or do you want me
Page 199
1 to --
2 MS. ROBERGE: No.
3 THE W ffNESS: How do we proceed at this point?
4 MS. ROBERGE: You can just say what you have to
5 say. Jim. and if 1 have questions. 1'11 ask you.
6 THE WITNESS: Okay. Well. my involvement in this
7 issue is that I've been working closely with
8 Denise Roberge to try and resolve some of these issues.
9 We've studied it very carefully an how to
10 abate some of this sound. And fm glad to hear that
11 some people are experiencing the results. It's not an
12 easy solution any time you have outdoor sound. But you
13 know, slowly, but surely. ins aknost like a trial and
14 error. We've consulted actual sound engineers. I'm an
15 architect by trade. so 1 have a certain amount of
16 acoustical engineering experience. but by no means am I
17 an expert.
18 So what we've done. starting last summer.
19 per the agreement. was that we. you know, did some
2 0 mitigating measures. And you know. I think we're having
21 slowly. but surely. success. I think Denise Roberge was
22 a bit discouraged after the Planning Commission decision
2 3 because we all thought were working together as a
2 4 community to solve this problem. You know. we don't
25 want to be offensive to the neighbors. and we do feel
Page 200
1 for their positron.
2 So she did invest quite a bit of effort
3 and money to try and mitigate these sound issues. 1
4 know fve spent considerable amowmt of my own time
5 working on this. And I think she was discouraged when
6 the Planning Commission decided that her efforts weren't
7 enough and that it was time to end i1.
8 So since then. we've still —1 mean. we
9 were in the process. at that decision. of implementing
10 some more sound blocking elements. and they've been put
11 in. So I think were on the right track. And 1 an
12 appreciate the position you guys are wrier because this
13 is a tough decision. We've got two sides to this. But
14 we would really like the opportunity to continue to
15 improve the situation.
16 So that's — that's my involvement in it.
17 If there's any other questions?
18 MAYOR BENSON. Marty. do you have any questions?
19 MR. MUELLER: 1 have no questions. Thank you.
20 sir.
21 MS. ROBERGE Thanks. Jim. very much.
22
2 3 EXAMINATION
24 BY MS FINERTY:
2 5 Q 1 have a question On page 177 in our
Page 201
1 book. Gordon Bricken & Associates. Acoustical and Energy
2 Engineers. were out. and they took some readings at die
3 restaurant on October 27th. 2006. And if you then go to
4 page 180, under 7.0. it talks about mitigation. And I
5 know. Mr. McIntosh. you said that you've been helping
6 Ms. Roberge with the mitigation. and 1 think that we can
7 all appreciate that it's gotten somewhat better.
8 What I'm curious to know is the mitigation
9 measures that were suggested. if these have been taken.
10 and if you've played a role in this. One, was close up
11 the gate. He states. The rrheasurements were conducted
12 opposite the current gate, which is an open weave, metal
13 lattice. Closing this opening up or replacing the gate
14 with a solid form design would reduce the levels about
15 five dkcihels. This would be enough to address the type
16 of music observed during the measurements.
17 Do you know if that was done?
18 A Absolutely. That was actually one of the
19 initial things that were done. and it was actually one
2 0 of the more simple solution to this problem. And
21 unfortunately. that is a pretty good distance away from
2 2 the source. across the garden. And what we've been
2 3 trying to do after that is to contain the sound closer
2 4 to the source before. sort of, the horse gets out of the
2 5 barn.
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1 And so. obviously. we acknowledge that
2 recommendation, and that was one of the first things we
3 did. which decreased the sound levels immediately at the
4 propeny line on Lanes outside that gate. but we were
5 still confronted with the problem of sound traveling up
6 over that and out into the community.
7 So our approach from there was to crate
8 sound walls that were closer to the source and contain
9 it. And so we've gradually brought it in closer and
10 closer and baffled the sound at the actual stage.
11 Q And so that would take me to Option 2.
12 Fully or partially enclose the outside seating area. He
13 suggested a form of a screen. most likely 10 to 12 feet
14 high. It could be made of glass to retain some exposure
15 to the lawn. And it's his belief that this mitigation
16 measure could reduce the sound levels up to 10 decibels.
17 He said that would be more than enough noise reduction
18 to address the measured music levels and may be enough
19 to address other types of performances.
2 0 Do you know if that was done?
21 A No. That particular glass or Plexiglas.
22 any son of solid material along there was not done at
23 this time. no.
24 Q And since you were involved with
2 5 Ms. Roberge on this. is there a reason why you opted not
Page 203
1 to try this?
2 A Well. I mean. there's two. One of the big
3 attractions. I think of the Augusta Restaurant is the
4 ambience of the rear patio. And over the years. since
5 the restaurant was first built, there's been. you know,
6 an evolution. let's say. of expanding and making that
7 more -- you know. that's really the attraction. People
8 prefer to be outside.
9 And when we put up a temporary screen
10 there. it son of blocks that off. And so we're
11 thinking. well. you know, we might be solving this. but
12 we're sort of killing ourselves on the ambience. so
13 let's try some other things first. which we think have
14 been fairly successful. which is containing it up above
15 and absorbing it up above.
16 We did some really extensive sound
17 absorbing panels. Because in our research we found that
18 a lot of it was actually a reflection off the building
19 and then going out into the community. Because the band
2 0 is actually (acing toward the building. And so one of
21 the big helpful things was that we absorbed it and
2 2 contained it under the covered area before it gets out
2 3 there.
2 4 So as far containing it in a glass wall.
2 5 no. we have not done that.
52 (Pages 202 to 205)
Page 204
1 Q Do you think there's some merit to that?
2 A Well. it's one of those things that it's a
3 big commitment. and that's what we've been chasing it
4 around. We've done it with temporary panels. But when
5 you consider a glass wall. you know. it's not only a big
6 expense. which I don't think is that big of a concern
7 for Ms. Rotterge, but what it does aesthetically to the
8 place. It's nothing that we can take down. It would be
9 more of a permanent -- you know, permanent wall.
10 Q 1 understand. If you go to page 128.
11 Planner Ryan Stendell -- and this has been quoted
12 before. He talks about. It is my opinion that an erns
13 in the judgment on staffs part was made with the
14 approval of music at the commercial standards.
; 15 He now believes that due to the proximity
' 16 to residential, the music should have been required to
17 mat residential standards. 55 decibels until
18 10:00 p.m., and 45 decibels until after 10:00 p.m.
19 And then if you go back to Page 181 where
2 0 the gentleman talks about this glass partition. and he
21 further states. This mitigation could reduce the sound
2 2 levels by up to 10 decibels.
2 3 So we have two people that are saying if
24 it were reduced by 10 decibels. it is. perhaps. likely
. 2 5 that then this issue would go away. So when coupled
Page 205
1 with the report from the acoustical engineer and the
2 planner thinking that. perhaps. the City erred in
3 allowing 55 instead of 45, do you think that that would
4 he an option worth pursuing'?
5 A Well. I think put that way. that it would
6 definitely be an option worth pursuing. I would just
7 hate to recommend to Denise to make that seat of a
8 commitment and then still have the nuisance - 1 don't
9 know what you call at. the nuisance card. You know what
10 I mean"
11 Because we're going from an objective
12 sound level. which. accordmg to the reports. were right
13 there. you know. at 55. And that. when I ongrnaly
14 started this, was our target. And now we've achieved
15 that, but now we see that ifs more of a -- more of a
16 subjective issue: that it's more of a. you know.
17 disturbance per individual versus meeting that specific
18 criteria.
19 So if we do that. that's no guarantee
2 0 that -- you know what I'm saying? I hate to tell her.
21 yeah. you need to spend f 100.000 and do this and take a
22 chance that you're going to be able to contrme to use
2 3 it
2 4 MS. FINERTY: !appreciate your answers. Thank
2 5 you.
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MR. MUELLER: I have a few questions,
Madam Mayor. if no one else does.
MR. FERGUSON: I do.
MR. SPIEGEL: I do. too. Can I go?
MR. MUELLER: Go ahcad. sir.
EXAMINATION
BY MR. SPIEGEL:
Q Do you continue to work with Gordon
Bricken & Associates' They're the ones that did the
sound analysis; comer?
A They made recommendations. I believe.
about a year ago. Is that the date on that?
Q Yes.
A Yeah.
Q Yes. November 8, 2006?
A Yes. And currently. no. I have not been
working with them.
Q So there's really nothing that you plan on
doing to decrease the amour of sound?
A Well. we continually put up more panels.
But the discussion we had last week was. well. if we can
have some sort of reassurance that this is going to be
more of an objective decision. maybe we should go ahead .
and comma to putting in a solid glass wall.
Page 207
1 Q Well, I don't think we can make that
2 commitment.
3 A 1 know that. I guess that's the difficult
4 part. That's why l made the statement.
5 Q That's a very difficult part.
6 A You guys got to -- this is a tough one.
7 Q Because 55 decibels really doesn't mean
8 anything to me.
9 A Right.
10 Q What means something to Inc is whether or
11 not the noise really — actually. is very unhappy about
12 it happening for the residents nearby.
13 A Correct.
14 Q That's the main concern.
15 A That's why were here. You know. it's
16 amazing that we hear some residents say, Wow, I really
17 see a great improvement. it doesn't seem to be a
18 problem, where others seem to think —
19 Q It's still a problem?
2 0 A Yeah.
21 Q That's right.
2 2 A So that's what we're trying to work with
2 3 and solve.
2 4 Q Well. that's why I'm asking you, What
25 other plans do you have''
Page 208
1 A What other plans do we have? I think the
2 next step is to do something like a solid wall. But
3 it's a difficult one feasibilitywise. 1 mean, okay. we
4 can commit to doing that this summer. t think were
5 going to take a hit, as far as the feel of the garden is
6 going to change. And 1 don't think Ms. Roberge really
7 wants to create a nightclub. 1 mean. she does great
8 business with the restaurant as well. 1 think the music
9 adds a lot to that.
10 But you know. we keep going back and forth
11 of what this wall is going to do to the fiig picture.
12 You know. if we knew -- I think it would be an easy
13 answer if we knew this is all we had to do that would
14 solve the problem. everybody would be happy. I think, in
15 a half a second, it would be in. But. you know. it's
16 that gray area of, well --
17 Q 1 agree. But you said earlier that "were
18 still working on it."
19 A Right.
20 Q And I was wondering what you were doing as
21 working on it?
2 2 A We I. to be honest with you, in the last
2 3 couple of weeks. it's more like in a state of flux
2 4 because of the situation we've been in with this looming
25 hearing. So I understand her position of not wanting to
Page 209
1 invest more than she has.
2 Q Sodol.
3 A So yeah. No. recently we've taken the
4 position let's try and hammer out an agreement. Let's
5 work together as a conunwriity to come up with a solution
6 that everybody is going to be happy and then proceed.
7 instead of trying t0. you know. throw money at it, not
8 knowing whether it's really going to solve the problem
9 with the subjectivity of certain people liking it and
10 certain people not liking it
11 Q We wouldn't know either. would we?
12 A Right. I wish it could just be. I think
1 3 if it was as straightforward as reading the decibel
14 meter. we woukfnt need to be has because it would just
15 draw the line and everything would be good. But
16 obviously. there's a lot of dynamics to the community
17 and opinion.
18 Q Do you believe in what was said earlier
19 that sound does goes up the valley? Like at the
2 0 Hollywood Bowl. you can sit way back in the Hollywood
21 Bowl and you can hear everything
2 2 A Well. absolutely. Absolutely.
: 2 3 Q So that's one of the problems.
24 A It's a big part of the problem You know.
25 South Palm Desert s a big alluvial fan. similar to the
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Hollywood Bowl. That's a great example. That's why
when we did the gate mitigation it solved the problem
with the sound immediately beyond the property line.
But we knew we were projecting over that
wall. which was a Nigger problem than the immediate
problem. So that's when we started bringing in the
sound curtains closer and closer and capturing the sound
in a smaller area. And that's how we've been
successful.
MR. SPIEGEL: Thank you.
EXAMINATION
BY MR. FERGUSON:
Q Mr. McIntosh. I've got two questions. And
hear with me.
You arc Ms. Roberge's architect. are you
tat?
A That's correct.
Q And you did do the Augusta Restaurant
building?
A That's correct.
Q Okay. So you are familiar with the
structure of the building?
A That's correct.
Q Okay. It seems to me that you're
Page 211
1 articulating the very problem that were all going to
2 have to wrestle with, which is if you have an objective
3 standard. we can get that link machine over there
4 somewhere and we can instantly know whether you're
5 complying or not. The problem I'm having with the
6 vagueness, the subjective prong. is that it is vague in
7 its wading, nebulous in its design, and awkward it its
8 application such that a reasonable person in the City of
9 Palm Desert wouldnt know whether they were complying
10 or not complying with the law.
11 And what rm hearing you telling me is
12 that as an architect you can pose solutions to
13 Ms. Roberge that have different pnce tags associated
14 with them with absolutely no assurance that whatever you
15 do. even if you do everything. that somebody isn't going
16 to come along and interpret a -• you know.
17 Mr. Kilpatrick's faint voice as loud and obnoxious and
18 dialing the police''
19 A Correct.
20 Q Is that bastcally what you're -- so what
21 I'm asking you, as the architect of the building. and
22 puning politics aside for the moment. if you can. what
23 is an engineering solution for this problem''
24 A Well. I think there's a whole bunch of
25 whams. Ideally. to enclose se the whole space.
54 (Pages 210 to 213)
Page 212
1 Functionally. mechanically. enclose the sound. don't let
2 it out. But that then ruins the whole space. It can
3 lust be another dark nightclub like the other ones in
4 town that aren't necessarily attracting the crowd and
5 doesn't have the appeal.
6 So. you know. one of the - the solutions
7 were looking at is what Ms. Finerty suggested in the
8 report. which is a hard surface glass. Plexiglas
9 containing the area immediately around the band and
10 seating and dance area.
11 MR. SPIEGEL: And on the top''
12 THE WITNESS: Well. see. now you're talking an
13 enclosed space. And that's where, you krow.l think we
14 would have to continue on like were doing. like, let's
15 see what this does.
16 Because sound typically travels in a
17 straight line. 1t doesn't like to go around a curve.
18 So the problem is if were high enough with the wall,
19 and it goes up and it dissipates out in the sky. there's
20 nothing except a hard surface that's going to send it
21 back down. So I really wouldn't want to suggest putting
22 a lid on it.
23 BY MR. FERGUSON:
24 Q The other factor that I wanted you to
25 address. if you could. and 1 don't know how you can, but
Page 213
1 if somebody hears something at 50 decibels. thump.
2 thump. thump. thump over a period of years, as we've
3 received testimony today, even if overnight it went down
4 to 25 decibels. in their minds. they're still hearing
5 thurtip, thump, thump, thump. And on a subjective
6 standard. again. you know, I'm a little unclear as to
7 how we -- how -- if were going to reach a compromise
8 that is going to satisfy the neighbors and give them
9 quiet enjoyment of their homes and satisfy Ms. Roberge
10 and allow her to have entertainment at her place of
11 business without the two interfering with each other. I
12 guess I'm at an engineering or architectural loss. much
13 less a sound engineenng background. to come up with
14 that kind of a solution. And you're saying. short of
15 enclosing the whole thing. all we can do is try and see
16 who still complains?
17 A Well. yeah. I think you make an
18 interesting point, that I don't think this would be
19 nearly the situation it is right now with the people in
20 the neighborhood fervently complaining if it hadn't have
21 gone on so long. I think that's a really interesting
22 point.
23 And Denise Roberge has made the statement
24 that she's regretted that she allowed it to go on that
25 long. You know, she's not a malicious person, but I
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think she has maybe thought that she had a few 1
complainers that would possibly go away. But she wasnt 2
getting. you know. a blanket of complaints. 3
And so that. unfortunately, has taken us 4
to this point. I've been present at the Planning
Commission meetings that have addressed this same issue 6
and listened to testimony from these same people. and I 7
have to say that some of it has been exaggerated. But I 8
think if I was put in their position. you know, I'd
probably do the same. So I could understand the
psychological dynamics of pushing your point. We've got
to get this solved at any cost. And that's where we're
at.
So I feel very confident that we can
control the sound by doing a wall. And I know you can't
give us any guarantee that you do that and everything is
solid. So 1 guess that's where we're at. I dont know
at this point what son of latitude the Council can give
to this situation. I know. you know. the community is
demanding a decision from you guys. So we need to do
something. 1 wish I had something more specific.
If we were talking totally objective
criteria, I could give you a great answer. But given
the dynamics of the whole thing, I think we can do
better. I think the club has -- or the restaurant has
5
Page 216
we're all clear. it woukl be speculative to guess
exactly how many decibels putting up a glass wall would
reduce the sound at which locations? True? We dont
know. for example, it would go down by I0
A Well. this has just been suggested by
acoustic experts.
Q Well. they suggested it could; right''
A That's correct
9 Q
10 and would means for a fact?
11 A Most endeavors take that approach.
12 Possibility.
13 Q There's no and the approach is there's
1 4 no guarantees?
15 A There's no guarantees until further work
16 is done. I mean, these were initial recommendations. I
17 don't think anybody is going to guarantee anything at
18 that kvel. But the more work you do -- you know, the
19 more work you do. the more confident you feel about your
20 decisions.
21 Q Now. you fed pretty good about what's
2 2 been done? You've called it fairly successful. the
2 3 mitigation measures. or you've said -solved the problem"
2 4 is one description you used. So far they've solved the
25 problem; nght?
Page 215,
1 done a great job of limiting the time and being more -- 1
2 you know. good about stopping the band. You know. 2
3 sometimes peopk just demand an encore. And 1 think 3
4 that's occasionally where you're going to go over the 4
5 1 I :30 limit. 5
6 But you know. 1 dont work at the 6
7 restaurant. I have nothing to do with the management. 7
8 1 know the people. Weve all talked together about how 8
9 important this is. and if this needs to continue. this 9
10 is what needs to happen. So its a serious matter. I 10
11 cant guarantee I can say anything about the future. 11
12 All I can do is what 1 can do, suggest mitigating 12
13 measures. And if Denise feels that we can all get along 13
14 in the community together, shell invest the motley. And 14
15 hopefully it will he a happy situation. 15
16 MR. FERGUSON: Thank you. 16
17 MR. ERWIN: Madam Mayor. can we get back to the 17
18 question and answer? 18
19 MR. MUE13 FR• I have a couple of questions, if 19
2 0 now is the appropriate time. 2 0
21 21
2 2 EXAMINATION 2 2
23 BY MR. MUELLER: 23
24 Q Sir, on the glass wall -- because I was 24
2 5 just looking at that page 181. and I think, just so 2 5
Not that it would. But could means maybe.
Page 217
A Well. given the criteria of 55 decibels, 1
think --
Q I'm sorry. go ahead.
A I think we've solved the problem, yes.
Given that target, yes, I feel very confident that we've
solved the problem. Sure, it fluctuates a little bit.
but sound is going to do that given a lot of different
conditions.
Q Well, you realize. sir. then that since
November 2007, that of the 37 instances of monitoring,
based on a one -hour average. 26 of those outside of
Augusta's were actually in excess of 55? You realize
that?
A 1 do. But that is an answer that needs
explanation.
Q But that's what you consider successful?
A Well. there's a lot of other ambient noise
that contributed to that. Because we're monitoring it
ourselves and come up with a link different answers
that we can specifically note. Gee. a truck came by and
spiked it, a maorcyck care by and spiked it. Certain
things spiked that average. I think we had that
discussion a little while ago.
But if you look at it. it's pretty darn
close. I mean, that's the kind of thing — that's how
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1 you target sound. 1
2 MR. FERGUSON: Is our counsel referring to the 2
3 blue line on the last page of Exhibit F. as you told us 3
4 earlier? 4
5 MR. MUELLER: All of that data in E. If you look 5
6 at all the data in E, for example. there would be 26 6
7 instances above 55 and II -- 7
8 MR. FERGUSON: But you told us to rely on the 8
9 blue line, forget all the other stuff'! 9
10 MR. MUELLER: No. not forget it. No. not at all, 10
11 sir. I was trying to make an easy reference point. You 11
12 could look at the blue line, and it would show you 12
13 March and April. The blue line would show you 18 13
14 instances. 1 believe, if -- they're hard to read on the 14
15 blue lire. If you go back to the book and go through 15
16 them. I think you'd find 18 March and April -- 16
17 MR. FERGUSON: Well. I've got 53.54. 50. 52.54, 17
18 51. 55. And you're right. the rest are hard to read, 18
19 but it looks like they're 56. 55.5. 19
2 0 MS. FINERTY: I counted 14 on the blue line. 2 0
21 MR. FERGUSON: Okay. So I don't know that it's 21
2 2 fair having told us to do one thing that -- 2 2
2 3 MR. MUELLER: With all due respect -- 2 3
24 MR. FERGUSON: Okay. 24
25 /// 25
Page 219
1 BY MR. MUELLER-
2 Q Exhibit E is the data. You can look at it
3 and see that there are many instances over 56 or not. 1
4 don t think. actually. that the recorded numbers are
5 necessarily more important than the voice of the public.
6 But I was wondering about the proposition that
7 mitigation efforts have been so far successful on
8 getting it under 55. which would seem to he contradicted
9 by Exhibit E. But maybe there's an explanation.
10 A 1 guess I don't understand how it's being
11 contradicted. Because when you shoot for 55, it's going
12 to be right around 55. Right? And now how much are we
13 considering the ambient noise of traffic on Ponola and
14 the other factors that we talked about? 1 mean, when I
15 say success. 1 don't mean. well. it's never gone over
16 55. Because it's going to fluctuate around.
17 Q Have you viewed 55 as the maximum. or have
18 you viewed it as just a target to approach in analyzing
19 success of the mitigation?
2 0 A I've looked at it as a target o -- that's
21 our target.
2 2 Q Not that it's a maximum per the conditions
2 3 of this CUP.'
24 A Well, just in understanding acoustics and
2 5 measuring sound levels. you can't have a ceiling like
56 (Pages 218 to 221)
Page 220
that. You're going to -- there's going to be certain
things -- of you're out there trying to take objective
measurements with a decibel meter. your average is going
to be kicked out.
MR. MUELLER: I have nothing further.
EXAMINATION
BY MS. ROBERGE:
Q Jim. is it your opinion that if we put up
that Plexiglas or glass -- wed have to check which was
the best -- wall that followed the outside curb of the
restaurant. that we could take it down at least five?
A I'm going to qualify my answer by saying
that we bah know I'm not an acoustic expert.
Q Right. Right. but just your --
A I do know the dynamics, the physics behind
sound. And 1 think that a this stage if were going to
commit to something like that. that 1 know of a very
good acoustical engineer that could be more specific.
that would say. yeah, and it would be down to the exact
height, thickness of it, the whole deal.
Q And so would it be your opinion that if we
did that and that we got it down to five points. that
that would be a nice compromise between Augusta
Restaurant, City Council. and all the people that
Page 221
1 complained?
2 A I mean. that's the million dollar
3 question.
4 Q Well, I'm asking your opinion about that.
5 A Well, you know. I've played around with
6 that decibel meter. It's kind of interesting to sit
7 here and talk at a normal level and watch and see what
8 my normal voice is. And 1 must talk quite loud because
9 most of the time I'm talking in the 60 range. And it's
10 kind of difficult, because I think if you're a couple
11 streets up and you heard music as loud as I'm talking,
1 2 yeah. it would probably be offensive.
13 You know, I wish I had some guarantees. 1
14 really think we're going in the right direction. 1
15 mean. I'm thnikd to hear certain people who used to
16 object say in this public forum that, yeah, you know
17 what? It's gotten a lot better; it's livable. And I
18 think that's the key is the relationship between
19 residential and the commercial zone right together.
2 0 You know, Palm Desert is an interesting
21 community because it's fairly linear. So much of
2 2 Palm Desen's commercial area is abutted by residential
23 given it's linear nature. It's not a two-dimensional.
24 It's sort of one dimensional. Sol think this is an
2 5 issue that's probably going to come up again as the city
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of Palm Desert grows So ifs an interesting study
nght now that's before us and how were going handle
this and make. you know. the community whale.
EXAMINATION
BY MS. FlNERTY:
Q Mr. McIntosh. just to follow up 1 know
that you're not an acoustical engineer, but I know that
you have some knowledge in this. and I know that an
acoustical engineer company has been sought out. and we
have a report. Just like when we go and go to a doctor,
sometirs we will go and get a second opinion. Would
there be a benefit to going to another acoustical
engineer and running this report and getting a second
opinion before anyone comes up with any -- I know we
pointed out the word `could,' — the number of decibels,
what it could do. to get a second opinion on that before 17
anyone can arrive at a definite conclusion or before 18
Ms. Roberge expends any further monies? Would that be a 19
reasonable approach'' 20
A I think that's the only approach. I mean. 21
obviously, rue said it ova and over again. but 1 don't 22
want her to commit based on my experience and opinion. 2 3
1 would definitely recommend let's get somebody and get 24
something that's more back — 25
Page 223
Q Have you heard of company called Harms,
Miller. Miller & Hanson out of Newport Beach?
A I'm not familiar with them.
Q I was given this by Chns Mils, who is a
council member of Palm Springs. when they had a similar
music issue with Las Casselas because the music shot
right now out and kind of got locked in in the mountains
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and came right down. And they were able to work wide an 8
Engineer by the name of Jack Freetag (phonetic) and come 9
to a solution that everyone seemed happy with. 10
A Well. 1 think that's a great solution. 1 11
know Denise Ruberge is very willing to continue working 12
on it. 13
MS. ROBERGE: But I need to know what -- what is 14
success? I thought 55 was success because that is the 15
code. Now. I can by and make it better. but I can't 16
continue to shoot at a moving target. And I think if we 17
even brought the decibel level down true more decibels 18
by putting up some kind of a Plexiglas or glass barrier, 19
that if we accomplish that there should be some 20
ayement that. yes. 1 have to keep it there. the 21
citizens have to be happy with that. and City Council 2 2
has to accept that, and then we have a solution that we 2 3
have all compromised on. 2 4
MS. FINERTY: Ms. Roberge. at the appropriate 25
Page 224
lime I will offer what I would define success. having
spent two hours on a Friday night out there. and 55 does
mean something to me.
MAYOR BENSON: Are then: any questions of this
witness?
MS. ROBERGE: I'm sorry. I didnt hear you.
MS FINERTY: I said that at the appropriate
time, when the Council comments. 1 will offer my opinion
on what success is. Because the number 55 does mean
something to mean. having spent two hours out there on a
Friday evening.
MS ROBERGE: Wouldn't it be helpful for you to
sharc that with us so that we can --
MR. ERWIN: I thine we are in process at this
point. Ms. Roberge of the public hearing which is
witness question and answer. And I specifically asked
the Council not to enter into those types of discussions
until you have finished calling your witnesses There
will be ample time to talk about that at that point.
MS ROBERGE: Okay.
MAYOR BENSON Are we through with this witness?
MR. MUELLER: No further questions here. Thank
you
MS. ROBERGE: Thank you. Jim.
Mr. Rutherford.
Page 225
TED RUT'HERPORD,
called as a witness on behalf of Augusta
was examined and testified as follows
THE WITNESS: Hi. My name is Tod Rutherford
And Madam Mayor and Council members, my offer is the
74-040 El Paseo. I've been there for. I guns. seven or
eight years now. I'm a half a block from Denise. And
one of the weird things that I do is 1 sill real estate.
Do you know how many people come into my office and say
1 want to buy a home just north of — or just south, up
the hill, of El Pasco. I want to walk to the excitement
at El Paco. We get it all the time. El Paseo is
exciting.
I remember at some time -- fm not sure
when — the City made a statement saying we would like
to see El Pasco become an exciting street. a street
similar. perhaps. to Palm Valley — Palm Canyon, where
people can walk tap and down. have fun We've got great
sboppmg. great restaurants. and great entertatrnnent
Well, you know what? We've gee great
entertainment at Demo Robergc s. Id hate to see that
shut down. if anything today, l just wane to ask you to
gave more time. Dont put a stamp on this and end it.
Give her a little more time to fix this problem. And 1
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think it can be fixed.
1 don't know about the subjective angle of
it. the subject to whose opinion that is. Ryan Stentkll
is a friend of mine, but I'm sure he would have a
different opinion than I would, where I would go and
stand and listen to that music in that same spot I'd
just like to see you give her more time to correct this
problem Thank you very much.
MR. ERWIN: Are there any questions for
Mr. Rutherford?
MR. MUELLER: No.
MR. ERWIN Madam Mayor. perhaps we ought to give '
the --
MS. ROBERGE: 1 have one question for
Mr Rutherford.
THE WITNESS: All right.
EXAMINATION
BY MS. ROBERGE:
Q Do you believe Augusta Restaurant has
caused anyones real estate to go down?
A For real state to go down in value?
Q Right.
A No. absolutely not
MS ROBERGE: Thank you.
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1 MAYOR BENSON: At this point I'd like to ask the
2 stenographer if she'd like a break?
3 MR. ERWIN: I think at this time. perhaps. the
4 city clerk would like a short break.
5 MR. FERGUSON: Perhaps City Council.
6 MR. SPIEGEL Fifteen minutes.
7 MR. ERWIN: Ten minutes.
8 MR. SPIEGEL: Fifteen minutes.
9 MAYOR BENSON: Fifteen minutes.
10 (A brief recess was taken.)
11 MAYOR BENSON: I'll call the meeting back to
12 order. And would you call your text witness. Denise?
13 MS. ROBERGE: We just have a few people left that
14 want to say a few things.
15 Mr. Wallace.
16 MR. WALLACE: Good afternoon. My name is Earl
17 Wallace. W-a-I-1-art. fm a retired dentist from
18 Long Beach. California. And when I retired. my wife and
19 I did an extensive study and decided where we wanted to
2 0 retire. And we selected Palm Desert. That was 23 years
21 ago. We've been fortunate to be able to witness the
2 2 progress that Palm Desert has made over these years. and
2 3 I can't tell you how much we appreciate the efforts like
24 people like you and your predecessors that have seen and
25 monitored the progress this city has been through and
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I'm sure will continue.
Now. why are we concerned about this
facility at Denise Roberge's? One of the main reasons
is that this city is very blessed. We have a lot of old
people -- I'm 85 -- that are like me that are winding
out their years, but we have a kx of young people.
There are young business people, young executives, and
they seek out a source of enjoyment and entertainment in
a facility like Denise is providing. I sympathize with
the homeowners. I know what they're going through. And
1 think there must be some consi lrratian given to these
young people who some day will he sitting up here where
you are administering this city. I hope as well as you
are. and kt's provide them with something that they
would enjoy and dial they will be able to come back to
time and time again and still not infuriate the noise
from the music to those people that are there.
Please. bear in mind. this is not an easy
task. 1 don't envy you. but 1 applaud you. Thank you.
MR. SPIEGEL: Mr. Wallace. where do you live?
THE WETNESS: Oh.1 live at 78-573 Platinum Drive
in Palm Desert. California. rm sorry. 1 left that out.
MR. SPIEGEL: That's okay.
THE WrfNESS: Keep you alert.
MR. SPIEGEL: Keep me awake.
Page 229
THE WITNESS: My questions? Anything? No.
Thank you very much for your time and your
efforts.
MS. ROBERGE: Thank you very much. Mr. Wallace.
luenka.
MS. SABANOVIC: Hi. My name is Jasenka
Sab000vic
And 1 just wanted to stun off with
putting a Zink perspective where were at today.
MAYOR BENSON: Can you give me your address?
MS. SABANOVIC: 44-740 Fronton Drive,
La Qumta. And I'm an observer today.
But 1 wanted to start ofT by saying that
we should just look at how grateful we are and blessed
that we have buildings. There are 10.000 people that
died in China and also in Oklahoma. So we have the
building standing, and. you know. having the music any
day is just a blessing.
Second, my observation. just sitting here
all day. is that the purple wbo didnt show up to speak
up And if this is something dose to my heart, and
it's bugging me so much — there was five or six of them
that did not say anything — so I would take the day
off. I would make sure rm here. I would make sure I
speak up for the cause, so -- which makes me think that
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1 it might ncx be as bad as they're talking about.
2 And the thinl thing is that being nght
3 always creates wars. and 1 think the parties arc just
4 kind of started off with being right and wanting their
5 opinions to matter. And Ms. Roberge is the one who
6 actually offered to compromise. I have rid heard one
7 person offering any compromise on their put. So if
8 they don't come up with a solution in terms of what they
9 would like to do -- it seems like Ms. Roberge is the
10 only one putting efforts into doing something about it.
11 And 1 know the City cares. You have a
12 vision. The city is growing. Fashion week has been a
13 big part of iL And I enjoyed the company of
14 Mr. Spiegel. And --
15 MR. SPIEGEL You better explain that.
16 MS. SABANOVIC: We worked together at the event •
17 MR. SPIEGEL: It was a fashion show on El Paseo.
18 and we sat next to each other.
19 MS. SABANOVIC: Correct. And you knew quite a
2 0 lot about the shoes they were wearing.
21 The high -end stores are coming in. the
2 2 entertainment And I think the city is changing. And
2 3 it seems like we pick and choose and progress what's
24 changed. Entertainment is part of it. And this is a
2 5 street that's growing. and its a street that's become a
Page 231
1 Rodeo Drive. And for the people like me. who do own a
2 business. and would like to cane out here and entertain.
3 there is nothing but Augusta. And it's been over six
4 years that she's been able to sustain music, and any
5 other place around here has been closed in a year or
6 two. So that speaks volume.
7 The other things 1 wanted to address are
8 the petition that Ms. Roberge actually collated way
9 before the rally. So the people petitioned and signed
10 waited it to stay. There's thousands, over seven. So
11 this is a country of democracy. And when 1 first came
12 here. this is what 1 came here for. And I hope that is
13 put forth. Thank you.
14 MAYOR BENSON: Any questions"
15 MR. MUELLER: No questions. Thank you.
16 THE REPORTER: Could you spell your first name.
17 please.
18 MS. SABANOVIC:
19 MS. ROBERGE: Cyma Cohen.
2 0 MS. COHEN: Good afternoon. My name is
21 Cyma Cohen. C-y-m-a, C-o-h-e-n. I live m Palm Springs.
2 2 California.
2 3 I have worked at the Denise Roberge art
2 4 and jewelry gallery for over ten and a half years. I
2 5 feel you would be making a huge mistake by stopping the
Page 232
1 music at Augusta. Hundreds of our customers from The
2 Vintage. El Dorado. Big Horn, The Reserve. Marrakesh,
3 along with Rancho Mirage and Pahm Springs have come into
4 the gallery to say. Denise. you must keep the music
5 playing and ask how can we help.
6 It was then. ova a period of months, that
7 people signed the petition to keep the music Not only
8 do these residents frequent the restaurant. but when
9 their children are in town. they. too. look forward to a
10 fun evening at one of the few places in the Palm Desert
11 area what they can listen to great music and dance.
12 Palm Desert is the geographical center of
13 the desert known far and wide for its fabulous shopping.
14 dining. art. and entertainment. Denise Roberge and
15 Augusta epitomize this Patin Desert image. Please. let's
16 keep it this way.
17 MAYOR BENSON: Any questions of Cyan?
18 MS. COHEN: Any questions?
19 MR. SPIEGEL. No questions.
20 MR. MUELLER. No questions. Thank you.
21 MAYOR BENSON: Thank you. Cynic
22 MS ROBERGE: Lindy Biggi.
2 3 MS. BIOGI: Hi. My name is Lindy Biggi.
2 4 B-i-g-g-i. and 1 live at 73-179 Joshua Tree, which is
2 5 Just down the street from Shadow Mowitain. So fm kind
Page 233
1 of in your blip area. And yes. I do hear the music.
2 And I'm kind of one of those live -and -let -live people.
3 which is maybe why that it has never, ever. ever
4 bothered me.
5 And what I really hope you consider is I
6 love this community. and I think a Id of you know that
7 I work hard for it. and 1 love El Paseo. Whatever has
8 happened. whether it's you or whatever. El Paseo has got
9 something for everybody. I can have company. and 1 can
10 send them down there. and if they want to shop and spend
11 a ton of money. they can do it. If not. they can do
12 that.
13 There's a variety of places to eat
14 There's only one place. and it's an elegant place. with
15 good music. When my kids come in town. I love it. They
16 can walk then:. Friends -- I don't have to ban them a
17 car. They can go there; they can have a good time: they
18 can walk home.
19 The noise. yes, ifs music. It's not
2 0 street fights. It's not gunshots. And in truth. I get
21 more offended when I hear the garbage truck or the
2 2 ambulances or some of those kind of noises, but I
2 3 ceruinly don't want to get rid of them. I live in a
24 community. And if I didn't want the noises of society.
25 1 would move to Yucca Valley. Thank you.
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MAYOR BENSON: Any questions?
MS. ROBERGE: Thank you very much. Lindy.
MR. MUELLER: No questions. Thank you.
MS. ROBERGE: Karen Moller.
MS. MOLLER: Hi there. I'm Karen Moller. I
reside at 73-473 Foxtail Lane. the belly of the beast of
Palm Desert. where. as some of you very well know. I've
lived for many decades. I also have a business here in
town. And I am not a public speaker. so please forgive
me
I go back to the old days when the zebra
at The Living Desert was considered a public nuisance on
Saturday morning. I kid you not. You could hear the
guY braY•
We are a changing community. We are ever
evolving. The last 25 years here. as several of you can
attest, have been the greatest changes.
Denise. at Augusta. took a business. built
a restaurant in a very competitive marketplace. targeted
her market so that she was able to build a successful
business separate from the competition of other
businesses. and had great success at it.
If xve today decide -- if you. my City
Council. today decides that's it, were done. you know.
it doesn't bode very well for evolving. moving forward.
Page 235
change in our community You know. people have left
here because it's become too big. too noisy. too
whatever. Many. many more people have come in.
I'm asking that today not be -- it sounds
like. you know, there's been a lot of negativity with
all of this going on. Lots of people have gotten angry.
But link bits and pieces that I'm hearing is that
there might be room with compromise, there might be room
with moving forward. there might be room for not a final
bottom line today. So I'm hopeful that instead of
deciding this is it. that we can move forward. Because
we reed to continue to evolve and change as a community,
or were going to wind up with a city like. all due
respect. downtown Palm Springs which kind of lost is
charm over the years.
Thank you very much. Thanks for what you
do.
MR. MUELLER- 1 have no questions. Thank you.
THE REPORTER: Could you spell your last name,
pkau'
THE WITNESS. Moller. MoI-It-r.
MS ROBERGE: Rick Sonkiter
MR. SONLEI7ER: My name is Rick Sonleiter,
Son-1<-i-t'e r. 1 live in Rancho Mirage.
And I'm just -- one question. I'm just
60 (Pages 234 to 237)
Page 236
1 stuck in the gray spots. If the code that is wrinen by
2 law is 55 decibels for businesses off El Paseo. and
3 Denise is trying to comply with this. I hope that youll
4 consider possibly reviewing that taw again. making it
5 for sure that this is what you want, 55. Even if
6 there's a Zink bit of bump. bump, bump going on, and
7 the residents are still complaining, I dont think it's
8 fair to Denise Roberge that you've said 55 and still
9 there's a problem at 55, even though she's meeting this
10 by the laws that were written. That's my only -- Oust
11 hope that you will'possibly review this when you're
12 making your decision. Thank you.
13 MAYOR BENSON. Any questions?
14 MR. MUELLER: No questions here. 'thank you
15 MS. ROBERGE: That's all for me.
16 MS CHRNALOGAR: Denise. I'd like to say
17 something.
18 MS. ROBERGE: Oh. sorry. I forgot. Thank you.
19 Speak up. Anybody else after'?
2 0 MS. CHRNALOGAR: My name is Susan Osnialogar.
21 C-h-r•n-a-log-a-r. I moved here from Seattle.
2 2 Washington, six ninths ago. 1 was a concierge with the
2 3 Seattle Mariners. There was controversy about the new
2 4 stadium in Seattk. They had opposition to that. And
2 5 had they listened to that. we wouldn't have had the
Page 237
1 stadium we have today. which is now one of the major
2 tounst attractions in the United Stales.
3 Prior l0 me being a concierge with the
4 Mariner. I did real estate on Resort Island. in Long
5 Beach Island. in New Jersey. And if people didn't
6 expect to have entertainmau in a resort area, they
7 shouldn't move to a resort am.
e I see your seal. and it has very active
9 people. and those would be the people that would like to
10 dine at Denise's place when they're done having --
11 playing their golf or tennis.
12 And fin in Palm Springs. and 1 come down
13 every weekend because of that establishment and the type
14 of clientele she attracts.
15 MS. ROBERGE: Thank you very much.
16 MS. CHRNALOGAR: You're welcome.
17 MAYOR BENSON: Any questions?
18 MR. MUELLER: Nn questions. Thanks.
19 MS. ROBERGE: This gentleman. I don't know your
2 0 name. but I hope you're for it.
21 MR. GREEN: My name is Walter Green. 1 live at
2 2 808 Shadow Vista in Palm Desert. I actually came over
2 3 here just to be herr for an hour. I thought it would be
24 finished. it would be interesting — I've dined at your
2 5 restaurant. I thought it's really a fine restaurant --
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1 and 1 would just see how this worked in Palm Desert.
2 Actually. in my professional career I
3 developed high -end executive conference centers. And
4 I'd like to tell you. the first two were done in very
5 high -end residential areas. So I've been in front of
6 groups like this. f understand how tough that is. But
7 1 also understand that. ultimately. at the end of the
8 day. compromise was the order of the day: that 1 think
9 it was very easy to get on what 1 call the right side or
10 the wrong side. And I've had hundreds of neighbors
11 stand in the room absolutely outraged that this
12 executive conference center would cone. and at the end
13 of the conference there would be this event there, and
14 they would have music that got amplified and they didn't
15 think music should be in their neighborhood.
16 Well, the City said, you know. Mr. Green's
17 company etnploys at each of these centers about 150 of
18 our residents. and boy. those taxes that he pays, can't
19 ignore it because he's taken this white elephant
20 Georgian mansion and 55 acres and turning it into a
21 thriving executive conference center business: and gee.
2 2 they're paying a lot of sales tax for the community.
2 3 And so there the community had to balance
2 4 this economic reality. But the fact is. we were in a
2 5 neighborhood. These are people who are entitled to
Page 239
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1 sleep and be at peace. And so ow answer was. Let's sit 1
2 down at the table. Now. I've been here almost six and a 2
3 half hours today. and 1 know that hundreds of hour and 3
4 thousands of dollars have gone into this issue. And you 4
5 all are trying to do the hest job possibk. I left at 5
6 12 o'clock. and said. "I'm done." I turned around. and 6
7 I said I'm going to cancel that afternoon appointment. 7
8 There's a chance that maybe something 1 could say might 8
9 change a way that you approach it. The situation wont 9
10 change. The residents feel ignored. They feel that 10
11 music has interrupted their life for year. and they 11
12 haven't been listened to. I am a new resident. I don't 12
13 live in this area. hut I have ears. and that's what 1 13
14 heard today. 14
15 I heard an owner who said I made a 15
16 mistake. I'm prepared to do what I can do, but I'd like 16
17 to know what the target is so when I ge there. I'm 17
18 home. 18
19 So do we want to say let's just take it 19
2 0 out on her because Denise just doesn't listen, or let's 2 0
21 just go with the residents because. after all, they 21
2 2 should rally control it? Or should we say we have a 2 2
2 3 vibrant business here. we have a lot of employees here? 2 3
2 4 I've dined there; they care; they present a nice amenity 2 4
2 5 to this corntrwnuty. 2 5
Page 240
So I say as you decide whether you want
your glass wall or not wall. that you open up the
possibilities that maybe there's some compromise. For
us. we did, -How late will it go, Mr. Green?' "How many
days will it go on. Mr. Green?' We never got turned
down. but we did have to nuke some compromises.
So what I urge you today is. as you look
at your glass wall. is to loosen your positions and to
come together. maybe, as a task force. Maybe this could
break out our community to say instead of there's the
T-shirts over here and there's the residents who cant
sleep over here of all ages. that maybe you could get a
task force of six people and a couple members of the
community to try and see before you get to a win/lose,
where somebody is going to win and somebody is going to
lose, whether together you cant come up with a program
that can work for everybody, and you look back on it and
say that was a solution that none of us ever thought
about and it doesn't work ideally for anybody. but it n
in the greater community good.
That's what I have to say. Thank you.
MAYOR BENSON: Any questions',
MR. MUELLER. Noquestions.
MR. ERWIN: Madam Mayor .. Ms. Roberge, if you're
through with your witnesses. 1 think it is time for the
Page 241
Mayor to ask anyone in the audience that wishes to
speak.
MR. ROBERGE: I would just like to know this
gentleman's name.
MR. GREEN: My name is Walter Green. 1 am not a
witness for any side. I'm a witness for the community.
MR ERWIN: His name is Walter Green.
At this point. Madam Mayor. 1 would
suggest — I'm sorry.
MS. ROBERGE: 1 have one question for Mr. Green.
I truly agree and believe on everything you've just
said. And 1 thought 1 did make a very good compromise
today. And 1 don't know whether it was missed, or would
you like •- o should I say it again? Do you think I
should say it again?
MR. GREEN: Well. I think I did hear your offer
to make a compromise. And l think that's a piece of it.
And I'm not saying it shouldn't be all of it. I'm just
saying there has to be a little coming together. It may
not just be the decibel. The answer may not be in the
decibel.
MS. ROBERGE: Thank you.
MR. ERWIN: Madam Mayor. this is the point in
tithe that you should inquire if there are any other
members of the audience that would like to make comment
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Page 242
1 either way. They're free to do so at this time.
2 MS. BARRINGTON: I'm Ann Barrington. I've been
3 in the desert for eight years.
4 MAYOR BENSON. Why dent you give your name and
5 address. please.
6 MS. BARRINGTON: My name is Ann Barrington. I
7 live at 73-455 Terra:a Drive in Palm Desert.
8 I know how difficult it is to scan a
9 business. and I know how hard it is to keep it going.
10 But 1 strongly emphasize with the Chamber that if we
11 have businesses that are working as hard as they can.
12 and Ms. --
13 MS. ROBERGE Roberge?
14 MS. BARRINGTON: Ms. Roberge has been here for
15 six years.
16 MR. ROBERGE: 25?
17 MS. BARRINGTON: The Augusta? How long have you
18 had the music and --
19 MS. ROBERGE Well, Augusta Restaurant has been
2 0 here for 10 years
21 MS. BARRINGTON: Ten years is a long time. And
2 2 it's sad that we cant come to a compromise. I respect
2 3 what you've said I think it's wonderful that we have
24 residents who they. too. want to cuep,unnse. And 1
25 wouklnt want to be in your seat nghl now. 11's very
Page 243
1 difficult. But I do know that we need businesses in
2 this community. We need tax dollars in this community.
3 We do need the homeowners that will cone to these
4 establishments and spend money. I hate to see us close
5 the door on something as silly as music a littk bit too
6 lewd.
7 Every night would be obnoxious. but I'm
8 sure we could compromise by bringing it inside or come
9 up with some solution, just not so black and white.
10 Thank you.
11 MAYOR BENSON: Any questions?
12 MR. MUEL LER No questions
13 MAYOR BENSON. Is there anyone else in die
14 audience',
15 MR. SAXE: Good afternoon. My name is Mark Saxe,
16 Sa-xe, 72-429 Glenview Circle, Palm Desert
17 I'm a ten-year resident of Palm Desert.
18 Generally. l just would like to see more MUSIC in town
19 and more entertainment. I dont think that you're going
2 0 to have an easy time. as many people have said, deciding
21 this. I think the reasonable person's clause in the
2 2 code is just way too wide a gap to be able to nuke a
2 3 decision. Every time anybody has any outdoor
24 entertainment in the town, the reasonable — this clause
2 5 is going to come into effect. And how are you going to
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Page 244
1 define it?
2 I think it's pretty obvious if you Zook at
3 the map over here that although there are, quote.
4 unquote. "reasonable people" who have a problem with the
5 sound at night. whether or not the percentage of the
6 population that is complaining represents a reasonable
7 amount. 1 would think that over six years that if there
8 was a significant problem from Augusta. or any other
9 establishment. that you would have many. Harry. many nnre
10 in terms of a percentage of a population. people
11 complaining.
12 It doesn't reduce the particular problem
13 that any individual has, but I dont see an uprising of
14 the community against this property. I do see a few
15 people loudly and repeatedly complaining to the point
16 that the City has taken City resow ens to go in and
17 investigate Ms Roberge and Augusta and forced her into
18 spending significant dollars to try to comply with the
19 55 DB level.
2 0 Now. having used a DB meter in the past. I
21 know that if you move it a few inches one way or the
2 2 other. the actual number will he different. So you have
2 3 to corny up with what is a reasonable penson's judgment
24 on this, as well as the fact that from my point of
2 5 view, if you close down music with her. you might as
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well not — you're not going to see people opening any
outdoor music in town. And 1 dont see how that's going
to happen. I wouk like to see more of it, not less of
it.
MAYOR BENSON: Any questions?
MR. MUELLER No questions.
MAYOR BENSON: No questions. Thank you.
MS. ROBERGE: Mr. Saxe. you did know that we
collected approximately 1500 — I just lot my word —
MR. SPIEGEL Signatures.
MS ROBERGE Signatures. Thank you. Signatures
that wanted the music versus, really, seven complainers?
MR. SAXE: Well, 1 dont know the actual number
of the complaints. and I dont know the actual number of
signatures that you have. but I did see that it looked
like the slack was pretty large. I thought that the
stack of complaints from the one won11 at the Candlewood
Apartments seethed to be a pretty substantial stack of
people over there that were so close to you. Obviously.
they're going to hear something. You could probably get
it down to 25 decibels. theyll hear something. they're
so close.
So I dont know how they — you know. how
it compares. But yes. I saw what you had. And I did
appear on your list of people I did sign that myself.
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Hearing —Augusta Restaurant 5/15/2008
63 (Pages 246 to 249)
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MS. ROBERGE: Thank you.
MAYOR BENSON: Thank you.
Is there anyone else?
Okay. Then I will now close the public
heanng.
CiTY CLERK: Make sure your mic is on.
Mayor Benson. We turned it off because it was getting a
little feedback.
MR. MUELLER: Madam Mayor. could Ijust for one
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moment before we dose the public heanng, just there's 10
a couple of, you know, unasked questions to Ms. Roberge. 11
I just had a couple of things to ask her. particularly ' 12
as it'elates to mitigation. It would only be a couple 13
of minutes. 14
MAYOR BENSON: All right. 15
16
DENISE ROBERGE. 17
called to testify, was examined 18
and testified as follows: 19
20
EXAMINATION 21
BY MR. MUELLER: 22
Q Ms. Roberge. when -- do you remember when 2 3
you first made the application for outdoor music. what 24
was represented to the Council. what type of music you 2 5
Page 247
envisioned and what the representations were
A You want me to go back nine years and
remember my discussion with City Council? Well. I can't .
do that. but I can tell you that they granted me nightly
music.
Q If you look at page 22 in the book back in
Exhibit I. which is one of the historical --
MR. KELLY: What page?
MR. MUELLER: 222.
Q There's actually a couple of different
letters back in the historical documents from you. but
this one is from September 28th. 2000. Is that your
letter to the City Planning Department bock in
September of 2000?
A It's got my signature. Yes.
Q In the first paragraph. it describes. of
course, you're requesting to allow nightly outdoor
musical entenainnsent. And it describes that as a
harpist. jazz trio. guitarist. pianist. disc jockey.
keyboardist. et cetera. Do you see that'
A Correct.
Q As pat of the mitigation. did you
consider altering the type of entertainment being
presented to a harpist, a jazz trio, a different style
of entertainment back similar to what was represented in
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the first instance?
A No. sir. A band does have a guitarist, a
pianist. a keyboardist. and can have a harp. jazz trio:
can have many different instruments.
Q So it was your feeling back when you
presented this letter to the Council. or. rather. to the
Planning Department in 2000, that what you weir
presenting was rock and roll. classic rock being
amplified outdoors?
A No.
Q Or does it read different than that?
A No. It grew to be that over time. But it
does not say that there will not be any rock and roll.
And the definition of rock and roll, share that with me.
Q Back in the USSR and the Beatles, that's a
rock song.
A Yes.
Q Maybe the harder rock and roll. Huey Lewis
and the News. that's rock and roll. And a jazz harpist.
no matter how hard she strums. is not going to he rock
and roll to rne.
A Weil. we have our harpist herre that does
play rock and roll on his harp.
Q Is it — well, and that may be. There
coukl be rock hands that incorporate a harp and various
Page 249
other instruments. I guess the question. though. is,
was what was presented black in 2000. the hart of rock
and roll or something softer, and did you try something
softer as one of the mitigation measures? Instead of a
glass wall. charge the style?
A No, because our clientele conics to us for
our music. Why would I change what they come to us for
if I can get it to stay within oar legal code?
Q And you're talking about the violations of
56s that are close anyways to 55?
A I'm talking about our legal decibel code
of 55. yes.
MR MUELLER: 1 don't have anything further.
MS. ROBERGE. Okay.
MAYOR BENSON: Are you through'?
MR. MUELLER: I'm through.
MAYOR BENSON: That would you give your closing
statement?
MS. ROBERGE: Yes. Sony
MR ERWIN: Who?
MR. MUELLER: Me. right?
MAYOR BENSON: Marty,
MR. MUELLER. I typically would go first and you
would have an opportunity to provide a closing statement
as well.
Ayotte & Shackelford, Inc. PSCSR@AOL.COM 760-340-2181
Hearing -Augusta Restaurant 5/15/2008
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1 1'd say this: We've been here a long
2 time. I'm not going to take a lot of time wrapping this
3 up. but a few things of note. I think what we just saw
4 here in this last document and in the last commentary is
5 notable. The reality us that the style of music that's
6 out there played at Augusta's plays at the levels that
7 it plays at. The numbers are close and right at around
8 55. and there's indicia, certainly. in the records of
9 repeated instances. and more often than not over the 55
10 limit. But in my view. that -- if I was in your chair.
11 and if 1 had to make the decision on this.1 really
12 wouldn't look to that point. 1 would really look to the
13 question of whether I believed that reasonable people
14 were not able to enjoy their property. enjoy their life
15 in Palm Desert in the manner anticipated in your noise
1 6 ordinance.
17 When it says, back in the first pan of
18 your ordinance. the .010. the purpose of the noise
19 ordinance of (D). it reads "Every person is entitled to
20 an environment in which the noise is not detrimental to
21 his life. health. or enjoyment of property." that
22 resonates to me. 1 believe that every person is
23 entitled to that. And that is a wonderful and valid
24 purpose of your ordinance. And 1 would look at what you
2 5 heard today. and 1 would. as you must. ask myself
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1 whether reasonable people are being disrupted or annoyed
2 by excessive noise. excessive music. amplified music
3 that originates from Augusta's on Friday and Saturday
4 nights. And if so. then those are violations of the
5 noise ordinance.
6 All that tally tells me then is that you
7 have the discretion. if that's true, if there are those
8 violations. then you've got the problem at hand, what to
9 do about it'' And I'm not here to tell you. quite
10 frankly. what to do about it. hut 1 do believe the
11 record has been made clear that thus are violations.
12 There are the technical violations above the 55. and we
13 have heard from residents who have been adversely
14 impacted, annoyed. and disrupted in their attempt to
15 enjoy their pnopenies.
16 And your City staff has gone out and. 1
17 think talked to you. testified honestly and openly
18 about their own observations. And even younger folks
19 who would be expected to and. I think do like rock and
20 roll music would have to say they recognize that these
21 levels are high out in the community. What to do about
22 it is absolutely you call. And that's what's on your
23 plate.
24 But I think, without a doubt. the
25 violations were shown. The discretion is there in the
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1 Council to address this as you deem appropriate. And I
2 don't. for a minute. care to be so presumptive to think
3 that there's an easy call on that. But !do think that
4 your staff has presented you with an ample record.
5 They've done a great job of compiling a kx of
6 information. and that. absolutely, on both fronts.
7 violations of your noise ordinance have been shown. and
8 you've heard from the community about that.
9 What the answer is to that! leave to you.
10 Thank you.
11 MAYOR BENSON: Denise. would you give your
12 closing statement?
13 MS. ROBERGE: Yes.
14 I don't think the City has proven its
15 burden of proof to change my CUP. number one.
16 Reasonable person -- you said the staff
17 interviewed reasonable people. The reasonable people
18 interviewed by the City staff were the people that
19 complained. The consensus of a reasonable person at
2 0 that point would have been all the neighbors around the
21 complainers. as we had today in the audience. A lot of
2 2 people in that area said they liked the music. When
23 Channel 2 CBS did a survey right behind us. they all
24 liked the music.
2 5 Our signatures. a great deal of them, are
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t from Shadow Mountain. They like the music. So we have
2 a real issue with reasonable person. And if there war
3 more than six -- 1 can't see that far -- seven people on
4 that map. believe me. there would have been dots put up
5 there for them. Seven people are not a reasonabk
6 representation of the people in Palm Desert. There is
7 way more citizens that want the music. And like I said.
8 it's very important that the City keep up-to-date with
9 the peopk living in it, and the consensus throughout
10 most of the city is we need a place to go. We need a
11 place with good music.
12 And I will continue to try to bring it
13 down, but I have to have a target that I have to be able
14 to point at and try and hit. It can't be die moving
15 target that I've gotten from the City m the past. And
16 1 am willing to mat and talk with the City on how I can
17 do this. But our CUP is a nightly outdoor music permit.
18 And the reason the people come to Palm Desert -- come to
19 Augusta is because they love the outdoor music.
2 0 So to say to close the patio in is not
21 realty at all for me because the is making it indoor
22 music. They dont watt indoor music. They want outdoor
23 music.
2 4 And we do have to deal with the sand so
2 5 it's not offensive to everyone. and wove done a pretty
Ayotte & Shackelford, Inc. PSCSR@AOL.COM 760-340-2181
Hearing -Augusta Restaurant 5/15/2008
65 (Pages 254 to 257)
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1 good job of doing that. when one of my biggest worries
2 today was the one gentleman that said the sound is okay
3 with him if we can keep it at 55. And that was
4 Palm Desert Resort. So for me, that was a major
5 accomplishment and a major feedback to get a gentleman
6 that I was very concerned about to accept the music at
7 that level.
8 Some of the things that were said from the
9 various complainers were not tare. But like McIntosh
10 says, people exaggerate We all exaggerate to get our
11 point across. But the restaurant has never been open on
12 Sunday. We don't stay until I and 2 o'clock in the
13 morning like a tot of the reports here say So I think
14 the best solution for everybody is to come up with one
15 that we can all work with. And I test that you can do
16 that.
17 MAYOR BENSON: Questions?
18 your closing statement?
19 MS. ROBERGE: Yes. thank you. Ms. Benson.
2 0 MAYOR BENSON: Thank you.
21 The testimony portion of this modification
2 2 hearing is now closed. And there will be no interaction
2 3 from the audience with the Council. II -Council has any
2 4 questions, feel fire to ask but there will be no
2 5 interaction. So at this point, Council discussion
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1 MR. FERGUSON: Well. Let me start because 1 know
2 Mayor Pro tem Spiegel has got an engagement. 111 be
3 brief.
4 We've been here almost seven hours, six of
5 it listening to testimony. plenty from both sides.
6 We've gotten volumes of evidence. Weve heard from our
7 staff. our police officers. and all witnesses. So rm
8 not going to spend a lot of time going through my
9 rationale or my reasoning. but I am going to give you my
10 conclusion.
11 There is no way that I am going to close
12 down music at Augusta. Please don't clap. Please don't
13 clap. That's not the reason for my statement.
14 The reason for my statement is based in fact. I do
15 believe that the objective standard of our ordinance
16 needs to be met. It's 55 decibels. I'm going to be
17 open to suggesting that we actually reduce that after
18 10:00 p.m.. depending on what we can do with an
19 acoustical engineer. Because it needs to be done.
2 0 We have seven people show up — and by the
21 way. let me just parenthetically make a phrase. at kast
2 2 in my view. It's easy to sign a petition. It's easy to
23 claim to represent 30 people. What matters to us is
2 4 when people come down here. take time off their jobs,
2 5 and, like this gentleman did. stay all day to make a
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Are you through with 17
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point. That's pan of public debate. 1 wish it were
easier. Maybe we can do it electronically at some
point.
But right now of the people that came here
today, seven came to speak against Roberge. Of those
seven, four did indicate that there had been recent
improvements. Three of those four were skeptical that
those improvements would last. Given the four- to
five-year history that this has gone on. I an't say
that I blame them. Three of them. I don't think you
would ever convince. even if you took the decibels down
to 10, that there was no noise problem.
Just my opinion, but then that's my
prerogative up here.
The fellow from Shadow Mountain had a big
impact on me because he didn't have to look after his
own quiet peace and enjoyment, he had to take care of
the guests that were paying money to stay in his hotel
which is in very close proximity to Augusta.
I do not like the subjective ponion of
ow standard. 1 think it is unconstitionally vague. 1
don't think it gives residents -- and let me be more
specific. Roc's Firehouse, Tommy Bahamas, Sullivan's,
Pacifica, how do those people know when anybody's
discomfort or annoyance has been irritated? It's almost
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1 an impossible standard. And than were supposed to send
2 out code enforcement officers out 36 times. from my
3 account, to hand out nuisance notices on a standard that
4 I don't think can be measured, Again, I view it as you
5 either hit 55. or we dont lake you. Either way. you're
6 going to get a ticket.
7 I see Denise as complying substantially
8 with the 55 decibel. Even at its worst- it's
9 substantial cnmphance. Sob cant help but think that
10 we're falling under the prong that says we don't like
11 you. And I don't know. and would never say. that our
12 City staff genuinely likes or dislike people: they just
13 do their Job. and they're very good people. That's my
14 language. not theirs. And I mean no disrespect by that
15 whatsoever.
16 But what that says is we're not happy with
17 your sound level even though you meet our ordinance. No
18 wader our shop owner gets frustrated. No wonder you
19 waive an e-mail accusing the City of being in cahoots.
2 0 You know. it was an innocent enough e-mail that
21 basically said she's meeting the 55. neighbors are still
2 2 complaining. what do we do? There is the alternate
2 3 prong. It was adopted in 1986. It's been on your books
24 for 22 years. Nobody just made a up. 1 don't like it.
2 5 but it's been there.
Ayotte & Shackelford, Inc. PSCSR@AOL.COM 760-340-2181
Hearing -Augusta Restaurant 5/15/2008
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Having said that. I do think that there's
a balance here I'm not prepared to ignore even if
they're just seven people. I want to go to bed at
night. and I like to sleep. You know. I don't know that
I have a right to sleep with my windows open
necessarily, but 1 have a right to sleep and get up in
the morning. And I think that there does need to be a
balance struck here.
I'm persuaded by Mr. McIntosh in Item 2 of
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the acoustic report that we got. I know that 10
Ms. Roberge may not like it. but 1 see plenty of 11
restaurants, plenty of nightclubs, plenty of outdoor 12
dining establishments along Newport Coast. Laguna. up 13
and down the highway with clear glass plastic partitions 14
that keep the noise of the ocean out and keep the noise 15
of the band in so that everybody strikes a balance 16
I'm convinced that we can come up with something. 17
1 know that I'm unwilling to simply say 18
let's continue to work on it. I would like seine 19
specifics this time. And I guess the specifics I would 20
like to see are the enclosure that was mentioned in the 21
report that Council Member Finerty brought up. I would , 22
really like to look -- that if it in does. in fact. drop 2 3
the decibel level by IO points. would like to take a 24
look at dropping the after 10:00 p.m. decibel level to 2 5
Page 259
50 instead of 55. And if necessary. I'd like to take a
hard look at cutting off the music at 11110 instead of
11:30.
Those are my comments.
MR. SPIEGEL Thank you.
Ms. Roberge sent us a letter on April the
loth. and her first paragraph reads, "First, I must say
that 1 have not always been considerate of my neighbors.
I should have reacted earlier and with more conviction
to help solve the noise issue created by the music at
Augusta. For this I am sorry."
And I'm sorry too. Because I think had
that been done, we wouldn't be having this hearing
today.
There's an old story about a fella that
built a house next to a stable. and he went into City
Hall after a year and said it smells terrible, you got
to tear it down. Well, this is kind of like the same
thing. Not that I'm suggesting that our residents are a
stable or that Augusta is the stable. but crony of the
restaurants were there -- many of the residents were
there. excuse me, before the restaurant. And were
getting the complaints from the residents. And one of
our jobs, as I see it. is to protect the residents of
our city. And it looks like we havent done that to a
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great degree in many cases.
Now. I don't believe in all of the
testimony that I heard today. but 1 heard from some
people like Brian Hamik who has lived here for a long
time. that says that the music is intrusive and it has
an effect on his progeny value.
Well. that may be the case. And that's
not a good thing. 1 heard Sergeant Florez say that —
or Deputy Ramirez. rather. that he asked them to turn
the music down. and they did, and then it went hack up
as soon as he left. And that's not a good thing. And
he's being honest with us. He's one of our employees.
He's not giving us a lot of baloney.
So 1 think that Councilman Ferguson has
some good points, but as far as I'm concerned, I'd like
to see the amplification turned off. Don't amplify the
music. There's a lot of good music that you hear in
places that isn't amplified And that would be my
comment. my thought.
MAYOR BENSON: Councilman Kelly.
MR. KELLY: Well. tint. 1'd like to say that
1-- feu one. I think our City is very appreciative of
what Denise Roberge has done for the east end of the
El Paseo there. Because that was kind of the pits on
El Paseo and an abandoned bank building there. And
Page 261
Ms. Roberge did turn it into a beautiful comer and
really lifted up the east end of El Paseo.
But also, we are a resort canmimity. and
we have many. many resat communities. resort residents.
and we are a resort residential community. But there
are resort residential communities all over the country.
You could just look at our coast. our beach cities. our
mountain cities. and, in this case. desert cities where
we do depend on saka tax. And our hotel tax and
tourism is basically our business. Just as I'm sure
they plow corn in Iowa. you know, we cultivate our
visitors.
But cm the other hand, we have -- look at
that. How many hours do you think has gone into that?
You know. you suggest that we work together. My
goodness, we've been working on this for five years.
And I don't have to just depend on the constituents that
conic here today. because 1 advocate a place for four
years out in the community. I live in the south end.
The music doesn't bother me. I take my hearing akis out
when I go to bed. and that takes care of that
But my neighbors are .- they give me the
devil all the time. And for four years. I've been
telling diem, well. were going to do something about
it.
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Hearing -Augusta Restaurant 5/15/2008
67 (Pages 262 to 265)
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1 My experience -- and I've mom or less
2 dealt with situations where we have citizen complaints
3 or customer complaints for 60 years. and my experence
4 is when somebody complains about something. they have a
5 problem. 1 mean, peopk don't spend all their time
6 complaining about something. They have better things to
7 do. And so if things are going good for them. they're
8 not going to be there complaining.
9 So I would have very link faith in a
10 glass wall or anything like that. But 1 do feel
1 I strongly that our only hope to solve the problem so that
12 Ms. Roberge can have music at her restaurant and the
13 ciuzens can have peace in their homes would be that the
14 music was not amplified. I love lots of different kinds
15 of music. and the music 1 like the best is music that's
16 not amplified. It seems to me that amplifying music
17 takes a lot of purity out of the music anyway,
18 especially for a restaurant where you have diners. It
19 seems to me like we're never going to solve this problem
2 0 as long as we have amplified music. And 11I never vote
21 in favor of continued amplified music. I just can't do
2 2 that. I know that will not solve the problem of our
23 constituents.
24 1 happened to write down the same thing
2 5 that our attorney used in his closing statement. I have
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that written down here. and it impressed me, and that is
our ordinance says. Every perm is entitled to an
environment in which the noise is not detrimental to his
hie. health. and enjoyment of property.
And of course, you read our other
ordinances -- we have lots of ordinances — and they all
contain something that gives us some kind of measurement
of our citizens living in a healthy environment. And
lots of those are subjective. An exatnpte is we give
lots of code violations out because somebody's yard
doesnt measure up to the neighborhood. Well, that's a
very subjective measurement. And there's no way that
you can use a certain decibel or a certain reading and
that that's going to be good for everybody.
So you have to have some kind of
subjective measurements. And one of the subjective
measurements that I'm using is the size of this book and
the four or live years that I've had to listen to
complaints. So as fat as this one person is
Page 264
1 got a problem. And my four yeas of waking with
2 doesn't give me much confidence in solving it as long as
3 we have amplified music.
4 MAYOR BENSON: Council Member Finerty.
5 MS. FINERTY: Okay. After we compiled this book
6 and throughout the process I decided I was going to go
7 out and do my own kind of independent survey and try
8 to -- because we have so many controversial statements.
9 And I know the staff has done. you know. a really good
10 job. as have our deputies. in responding. 1 think that
11 were here today because the problem wasn't dealt with
12 when it should have been. mat said. I don't know if
13 the answer is to stop the amplified music.
14 What 1 teamed as my reasonable person
15 survey is that there is a problem stilt, and it is on
16 Shadow Mountain. wet of Prottota and east of Pond*. I
• 17 could hear the music. and I could hear the words. And I
• 18 watched Denise's little meter. and I watched code
• 19 enforcement's meter. and it ranged between 52 to 56.
• 2 0 And that was as measured on the south side of larrea.
21 And that's just too loud.
2 2 I can sympathize with the people at
2 3 Candkwood Apartments. 1 was over there. I walked in
2 4 and amongst the area. and it just -- the music just
2 5 carried right over.
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concerned -- you know. I love Ms. Roberge's complex. and 2 0
I think ifs an asset to El Paseo. but on the other 21
hand. I have not just seven people. 1 have the whole 2 2
south end. almost up to Grapevine, who every single 2 3
neighborhood there almost has at one time or another had 2 4
a person get after me. and even a call today. So we've ' 2 5
Page 265
My thought was. as a last-ditch effort. is
to talk with one other acoustical engineer. look at the
glass wall, see if it can come down 10 decibels. 1
think that Ryan Stendell, our planner. was nght. and 1
think for this. maybe. the City coed. And Ryan was
really honest. He said. You know what? We don't have a
lot of experience here when it comes to sating a
decibel level for outside music. We've never done this
before. We haven't had these kinds of problems before.
So 55 was probably too high. And I believe it was too
high based on the Friday night 1 was out there for two
hour. from. basically, a quaver of 10:00 to a quarter
of I2:00. And it was too high.
So when I asked -- l asked the restaurant
to lower the noise. lower the music. and when they
lowered the music. the noise. it made a significant
difference. And we've all heard today that titre's been
tremendous improvement. but it's not been enough. We
need to do more.
So we have a choice. We can either stop
the amplified music — and I really understand the
people that say. but will it last. because of the
history, because of this notebook. Soto me it's a
last-ditch effort. You get one more chance. And the
chance is you get one more other acoustical engineer —
Ayotte & Shackelford, Inc. PSCSR@AOL.COM 760-340-2181
Nearing -Augusta Restaurant 5/15/2008
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1 it would be Denise's choice -- to lower the music to. 1
2 would say. 45 decibels. to put up the wall. I think
3 with a combination of 45 decibels and a wall, the glass
4 wall -- but I would want this verified by the acoustical
5 engineers. It's been alluded to already by one
6 company -- that would he my compromise as suggested. 1
7 think it's by Mr. Green, Walter Green. Yes. That would
8 be my compromise. But if that compromise is not met.
9 then I would have no alternative but to eliminate the
10 amplified music.
11 1 do want to say that 1 did visit a street
12 on -- or a house on Chicory. cypress Estates, and
13 Marrakesh. and that particular evening I didn't hear
14 anything. But the complaints on Shadow Mountain are
15 valid, and 55 is too lord in my opinion.
16 So those would be my comments.
17 MAYOR BENSON: 1 don't think anybody's intention
18 here is to close Denise Roberge. I think we know the
19 value of the restaurant. And we know that it is a first
2 0 class restaurant And 1 haven't heard anybody say.
21 "Let's close the restaurant: All the complaints have
2 2 been on the amplified music. They haven't said. "Leer's
2 3 do away with the music: We have other restaurants in
24 town that have music that's not amplified. and they're
2 5 higher up on the list of our scale of restaurants than
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1 Denise's is. and they're in business.
2 So I would agree with my colleagues that
3 say that it's the amplified music that's causing the
4 problem 1t isn't the music. Because you can certainly
5 dance and hear the aisle without it being amplified so
6 the neighbors hear it. The music is supposed to be for
7 those patrons at the restaurant. not the ones in the
8 nearby community.
9 So my suggestion is that along as with
10 Cindy's, on mitigation measures that we have to do. that
1 1 we eliminate the amplification. Thank you.
12 MR. FERGUSON: Well. 1 guess my only thought on
1 3 eliminating the amptification is you may as well get a
14 wash tub. a broom handk. and a laovvn jug because other
15 than a piano, there's not a whole la -- maybe a
16 harpist.
17 MR. SPIEGEL: A saxophone.
18 MR. FERGUSON: Well. a saxophone can sometimes be
19 louder than amplified music.
20 MR. SPIEGEL.: A guitar.
21 MR. KELLY: Make sure you talk into the
2 2 microphone.
2 3 MR FERGUSON: I'm sorry. 1 just -- 1 can
2 4 appreciate my colleague's concern to want to reduce the
25 noise kvel, but just saying amplified music is out, she
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Page 268
1 can get a group of mariachis that have no amplification.
2 and it would go way past 55 decibels. I just dolt know
3 that that's a very sound approach.
4 I agree. the music -- the sounds need to
5 come down, but I. you know. intend to agree with Council
6 Member Finery. Why don't we hire a very good sound
7 engineer to tell us how to do that. rather than just
8 coming up with a knrejerk no -amplification solution.
9 which may serve ow immediate needs. but it may
10 eliminate. for all practical purposes. music at Augusta.
11 MR. KELLY: Comment.
12 MAYOR BENSON: Councilman Kelly.
13 MR. KELLY: Well. if we were dealing with this
14 for the first time. and it was four or five years ago. I
15 could agree with a subcommittee waiting together to work
16 this out. But the problem is we've been doing it for
17 five years already. and I have no confidence anymore in
18 anything happening to help those residents. And so my
19 dnuthers would be that we start from zero and that the
2 0 residents be protected whik we work something out
21 Otherwise. I have no confidence at all that amplified
2 2 music is going to get lowered to a place and protected
• 2 3 and held in to a place where it's not going to affect
2 4 that community there.
2 5 I'm embarrassed for the City and for us
Page 269
1 that we've been messing around with this for five years.
2 That embarrasses me. I'm ashamed of myself. I mean.
3 that's ridiculous.
4 MS. EINERTY: Well. I concur that it's
5 unfortunate that it's gone on this long. But this is
6 where we are now. So would a reasonabk solution be
7 to -- since we have a summer coming up. and 1 know that
8 the musk stops during the summer. that we set a time
9 frame? I know that you say we've been working on it for
10 five years. And yes. that's ndicukus. You're nght.
11 But if we set a time franc. and we say within six months
12 if it's not down and certain measures haven't been node.
13 and we haven't gotten to 45 decibels. we havent done
14 the wall, and if there hasn't been an improvement then
15 we make a commitment to ourselves and to our residents
16 to say. That's enough, then we will know that we've
17 tried everything.
18 And 1 will say that, yes. it's been going
19 on a long time, but this is the first time that it's
20 really come 10 the Council in this fashion. And I think
21 that everybody now at the table knows that this is
2 2 serious. And we all know what's to be gained and what's
2 3 to be lost. So if we see the deadline, and we vow to
2 4 ourselves and to our residents to honor that deadline,
2 5 would that be an agreeable compromise"
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Page 270
1 MR. FERGUSON: Comment. And I know you're
2 relatively new on Council. but this is not the first
3 time we have done this. And I do have to agree with
4 Councilman Kelly because he and land City Manager
5 Carlos Ortega went and had lunch with Denise Roberge
6 three years ago to try and fashion a solution. A year
7 ago. when the music was going to go out for the summer.
8 we said. You have until September to come up with a
9 solution. She did,
10 What 1 heard from a kx of peopk today
11 was she made some progress. And I for one am not
12 embarrassed one iota that we've spent five years trying
13 to keep one of our best businesses open in the City.
14 And I know that we're not trying to close her down. hut
15 I also know. in her view. in effect. that's what we
16 would be doing. And so if it takes us five years to not
17 hurt one of our best business residents. let it take
18 five years.
19 If there's a possibility to eliminate the
2 0 music immediately or after Memorial Day, or whatever an
21 acceptable compromise is. and let her put up the
22 glass -- again, it's going to he at her risk her
2 3 expense -- and then we test it in September. and if it
2 4 doesn't meet our criteria -- which. by the way. is no
2 5 longer a floating balloon. you know. it's now. you
Page 271
1 know. ten DBs less — five to ten, in my opinion, or
2 whatever we craft it, then our answer is real simple.
3 She either complies or she doesn't comply. But we don't
4 have to go through another one of these hearings.
5 And I also, you know, have heard over the
6 years hundreds and hundreds and hundreds of complaints.
7 hut 1 still see those seven same dots. I still see the
8 seven same names on the letter that I get. I still sex
9 the same seven names on the letters of phone calls -- or
10 on the phone call sheets that 1 get. You know. rve
11 got -- I live between Buford Crites (phonetic). who
12 tells nee he can hear it on his porch. I cant hear a
1 3 darn thing. Hes five miles away.
14 So again. my question about some people
15 may not like Denise. some people may not like her
16 politics. some people may not like her store. The
17 people in the immediate area, I think. as Cindy Ft erty
18 has pointed out, have a legitimate beef that. I think.
19 we can do something about. But to just literally pull
2 0 the plug on her music because we think that will
21 immediately solve the solution creates a problem fix
2 2 her. 1t may solve the solution far seven people. but
2 3 destroys the night life fur thousands.
24 MR. KELLY: Comment. We're talking about
2 5 everybody. Loth sides giving a little. Well. how about
Page 272
1 Augusta's agreeing to unamplified music until we solve
2 the problem?
3 MS. ROBERGE: First of all. our ambience level
4 outside without any music --
• 5 MR. KELLY: I guess the question is. Are you
6 willing to do that or not?
7 MS. ROBERGE: A band -- live music with a band
8 has to be amplified.
9 MR. KELLY: Is that -- the answer is no?
10 MS. ROBERGE: It's nor that rm not willing to do
11 it. If it was possible. I would be willing to do it.
12 Its just that you can't have the live music at Augusta
1 3 without amplification. And our basic sound level with
14 no music is 48. So if you bring it down to 45. you're
15 telling us to cut out our customers.
16 MS. FINERTY: No, I'm saying -- rm saying 45 as
17 measured on Lanea.
18 MS. ROBERGE: Yes, but ow sound level, ambience
1 9 level on most nights on the weekend without any music is
2 0 45 decibels. So if you hring it down to 45. you're
21 asking us to cut out a lot of customers completely
2 2 without any music.
2 3 MR. SPIEGEL: Well. Denise. you've heard the
2 4 recommendations. What is your recommendation?
2 5 MS. ROBERGE: Well. I said I would be willing to
Page 273
1 put up a glass barrier. I can try and live with 50.
2 But if you go below 50. you're into my ambience level
3 So it's no so4aion.
4 MR. FERGUSON: I think the question by Councilman
5 Kelly -- and 1 think it's a good one — is here we are
6 out May 15, were coming into the summer Ws going to
7 take some time to construct this wall. Yes. you're
8 going to lose a few weekends, but how about unplugging
9 it between now and the time you get your glass wall up,
10 and than let us take a second look at it?
1 1 MS. ROBERGE Well. you know, I just, as a
12 business person. cant live with the second look. And.
13 like, you dont want to live with the complaints
14 anymore. Either we — if you continue to make a moving
15 target for me, then 1 can't work with you.
16 MR. SPIEGEL Can you work with another sound
17 consuhant?
18 MS. ROBERGE: But just. as one of the Council
19 members said, it doesnt mean that you're going to
2 0 approve if I get it down to that level, that it's okay.
21 So you want me to duow more money into something that
2 2 if 1 achieve, there's no guaranies I can have.
2 3 MR. FERGUSON. How about this? And maybe I'm
2 4 putting too much faith in engineering. but l don't know
2 5 where else to put it at the moment. If we were to
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Page 274
1 retain independently a sound engineer to come in and
2 tell us what would be an accepuhie level of music for a
3 reasonable person living on Shadow Mountain or Lurea.
4 or wherever else in terms of decibels. and he can come
5 up with a solution so that -- or she. so that your
6 amplification does not exceed those levch, do we not
7 then have a criteria that's set by an engineer as
8 opposed to a politician or somebody with. perhaps. a
9 bias?
10 MS. ROBERGE: That sounds workable. You know.
11 you did have your sound engineer come in. And I don't
12 know if they gave us a decibel kvel or not.
13 MR. FERGUSON: He did.
14 MS. ROBERGE: But then again. if it goes below
15 50. there's no point in me even having a band because
16 that is our ambience level. 48.
17 MR. FERGUSON: Well. but wouldn't we all he
18 better off knowing that before you invest a whole bunch
19 of money in glass and everything else?
2 0 MS. ROBERGE: Well, 1 just did say we need to
21 have a fixed target for me before I'm going to invest
2 2 any more money.
2 3 MR. FERGUSON: And I'm -- you're preaching to the
24 char with me because the subjective part of it is very
2 5 difficult. But if we had a sound engineer come in and.
Page 275
1 you know. do essentially what Council Member Misery did
2 and go stand at these different places and say. Okay.
3 here's what your code says, even though fm not wild
4 about our code, but reasonable people ought to be able
5 to live with this kind of ambient noise because it could
6 come from a truck ham or from a Harley motorcycle or
7 from any one of a number of sources that you say and
8 says this should be reasonably acceptable. then we can
9 kind of separate the people who are the agitators. who
10 are going to complain no matter what, from the people
11 who maybe should have been complaining but have just
12 been quiet out of politeness but still have been equally
13 annoyed?
14 MS. ROBERGE: 1 don't think there was any quiet
15 out of politeness. You know, fm not quite sure how to
16 respond to that because I did offer to meet you halfway
17 with the 50 decibel level. And if you take it below
18 that. there simply is no room for this restaurant to
19 survive as -is. So if you want to get a sound engineer
2 0 in and he can tell me I can have 52. that's fine. If he
21 wants to tell me I have below 50. then you have killed
2 2 that restaurant.
2 ] MR. FERGUSON: And see my problem -- and this
2 4 goes back to my comment earlier and. I think my
2 5 colleague's -- 1 don't know what 50 decibels sounds
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Page 276
like; I don't know what 48 sounds like: I don't know
what 45 sounds like. I sure as heck don't know what it
sounds like on Lartea and Shadow Mountain and
Candlewood. But if we hired an engineer. sophisticated,
with good testing equipment. he or she could certainly
tell whether that was i asonabk or not.
And if it conies back that below 50 is what
the requirement is going to be satisfy reasonable
people. well. then you have your answer before you spend
any money.
MS. ROBERGE: The answer being close the
restaurant down.
MR. FERGUSON: The music.
MS. ROBERGE: Well. that is closing the
restaurant down.
MR. FERGUSON: Whatever you want to infer from
it.
MS. ROBERGE: Well, I'm not inferring anything
other than exactly what's the repercussion --
MR. FERGUSON: rm trying to work with you here.
Denise.
MS. ROBERGE: fin trying to work with you. too.
Councilman Ferguson. but I'm giving you the absolutes of
what I know. which are just as strong as what your code
officers know.
Page 277
MAYOR BENSON: You know. I think we have a bigger
problem than juN Denises. and that's why I'm in favor
of no amplification of music. Because were going to go
through this. As one of the speakers said. the City is
progressing. Theyre getting younger people in. We're
going to get more restaurants. We've got restaurants
coming on the remodel of --
MR. SPIEGEL. Gardena.
MAYOR BENSON• -- The Gardens area. There's
going to be restaurants on the roof. And the people
farther down El Paseo and back up on that end of the
sandpipers and other areas are going to be complaining
about the music that filters that way And 1 think.
once and for all. we just have to have that there is no
amplification of music. They can have any kind of music
they want inside the restaurant. And Denise can have a
guitarist or whatever. But I just think we have to have
it without amplification. or were going to fight this
battle for the next number of years So any other
comments?
MS. FlNERTY: Well. led me try a motion.
MAYOR BENSON: Go ahead.
MS. FlNERTY: The motion would be that the
amplified music Mops immediately: that we bung in an
acoustical engineer -- I did bring the name. like I
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Page 278
1 said, Jack Freetag, who was able to solve the problem in
2 Palm Springs at Las Casuelas Terraza .- and that he
3 gives some sort of expert opinion on what can and cannot
4 be done. And based on what he has to say and working
5 with Mr. McIntosh. we have another meeting and determine
6 if we should go forward. But in the meantime• go along
7 with what Councilnan Kelly says and just no amplified
8 music for now and take the summer to work out.
9 hopefully. a compromise.
10 And if an acoustical engineer says that it
11 cant be done, and Denise is adamant that it cant be
12 lower than 50. then we all have our answers. If. on the
13 other hand, you know. we get good feedback. our
14 acoustical engineer is optimistic. and we do some trials
15 and tests, and the whole Council goes out there, and we
16 listen. and we go to Shadow Mountain. and we go east and
17 west of Portola. and we go listen at these probkm
18 spots. and then we make our own determination
19 MAYOR BENSON: Who pays for that''
20 MR. KELLY: Council Member Finerty, that's very
21 difficult to follow that notion. 1 think we need a
22 mute -- 1 don't know, a clearer nation.
23 MS. FINERTY: Stop the amplified music now.
24 MR. KELLY: Okay.
25 MS. FINERTY: Have an acoustical engineer meet
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Page 279.
1 and review and offer an opinion in working with
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3 MR. KELLY: Who's going to work'
4 MS. FINERTY: An expert. an acoustical engineer
5 expert. And 1 cited the information 1 had from
6 Council Member Chris Mills in Palm Springs citing his
7 success working with Jack Freetag (phonetic) when they
8 had the same similar problems with Las Casuelas Terraza
9 on Palm Canyon because of the maintain.
10 MR. KELLY: Okay. Let's just deal with the
11 motion so 1 can understand what the motion is. not all
12 the reasons why it's in force.
13 MS. FINERTY: So you stop the amplified music, •
14 bring in an acoustical engineer. •
15 MR. SPIEGEL Paid by whom?
16 MS. FINERTY: Well. I think it should be paid by
17 Denise Roberge.
18 MR. SPIEGEL She has to be willing to do that
19 MS. FINERTY: And then we review it, we see what
20 the result -- then we review the opinion, and we
21 reassess.
22 MS. ROBERGE: No. I'm not willing to do that.
23 It's a moving target again.
24 MR. FERGUSON: Well. that was your motion.
25 MS. FINERTY: Well, there was no second, so --
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and if she's unwilling, then 1 guess I could try another
motion. And the motion would be that we stop the
amplified music.
MAYOR BENSON: i will second that
MR KELLY. The moon was seconded? It got
seconded?
MAYOR BENSON: Yes
MR KELLY And so it is to stop amplified music
until were satisfied we've got a solution.
MR. FERGUSON: All I heard was stop amplified
music.
MR. KELLY: Well. I'm clarifying it for myself.
MR FERGUSON: Okay.
MR. KELLY: So I know how rm gang to vote.
MR FERGUSON: I just want the record clear
because -
MR KELLY That's what rm working at.
MR. FERGUSON: All right. Thank you. That makes
a big difference too
MR. KELLY That's exactly what I'm after.
Well. try stating it again to me Maybe
we better have our recording secretary state the motion
because there's so many but for this and but for that
CITY CLERK: The last motion I heard on the able
was to stop the amplified music. period.
Page 281
MR. SPIEGEL Period. And it was seconded by the
Mayor.
MR. KELLY: Okay. I understand that one.
MAYOR BENSON: Is there any other discussion?
MR. ERWIN: I would ask. Madam Mayor. if that is
the courn it's decision. that the staff be authorized to
prepare such a resolution and present it at your next
regular meeting.
MR. FERGUSON: Shouldn't we vote on it first'?
MR. ERWIN: Certainly. I just want that included
in the motion, if possible.
MAYOR BENSON: Okay. You ready to vote?
CITY CLERK: That motion carves four -one, with
Councilman Ferguson voting "ter."
MAYOR BENSON: Okay. That ends the public
hearing for today.
MS. ROBERGE: You have just killed a wonderful
restaurant
(Whereupon the foregoing proceedings
were concluded at 5:32 p.m.)
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1 CERTIFICATE
2 OF
3 COURT REPORTER
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6 I. Brenda S. Kroger. certified shorthand
7 reporter of the State of California do hereby certify:
8 That the foregoing transcript is a
9 certified copy of the proceedings taken before me at the
10 time and place therein set forth;
11 That the testimony given at such time and
12 place was recorded stenographically by me and was
13 thereafter transcribed. said transcript being a true
14 certified copy of my shorthand notes thereof and a true
15 reconl of the testimony.
16 In witness whereof. I have subscribed my
17 name this date:
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Brenda S. Kroger. C.S.R.
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