HomeMy WebLinkAboutPRELIM - CC - 05/15/08 PRELIMtNARY MINUTES �
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. Sheriff's Department
V. ORAL COMMUNICATIONS
None
PRELIMINARY MINUTES
ADJOURNED REGULAR
PALM DESERT CITY COUNCIL MEETING MAY 15, 2008
VI. PUBLIC HEARINGS
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 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 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.
Vif. ADJOURNMENT
With City Council concurrence, Mayor Benson adjourned the meeting at 5:32 p.m.
JEAN M. BENS4N, MAYOR
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CiTY OF PALM DESERT, CALIFORNIA
2
PRELIMINARY MINUTES
ADJOURNED REGULAR
PALM DESERT CITY COUNCIL MEETING MAY 15, 2008
EXHIBIT "A"
CERTIFIED COURT REPORTER'S TRANSCRIPT
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Hearing-Augusta Restaurant 5/15/2008
�age 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 cz
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Palm Desert, California 'r�-�
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Thursday, May 15, 2008 � ��';�
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10: 04 a.m. to 5:32 p.m. " �''�
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Reported by:
Brenda S. Kroger, C.S.R. No 10212
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1 APPEARANCES: 1 ROBERT RAMIREZ
2 Palm De`en Ciry Council: Ex�rnin��ion by Mr.Muella ...... 133
3 Jcan M.Benwn.Mayor 2 Fxamination by Mz.Roberge .... I J6
Robert A.Spiegel.Mayor Pro Tempore Examiretion by Mr.Spiegel ...... 137
4 Jim Fergu�on.Caincilman 3
Cindy Finerty,Council Member a MARlAN ROYS'f'ON
5 Richard S.Kelly,Councilman E:xamination by Mr.Muelkr .... 138
6 5 Ezamination by Mr.Ferguum ...... 137
6
For the City of Palm De�ert: JOIiN MORRIS
7
BEST,BEST&KRIE:GER � Examircuion by Mr.Muelkr ...... 149
B BY: DAVID 1.ERWIN,ESQ. Examination by Mr.Ferguwn ..., 154
74760 Highvrry I I I �
9 Suite 200 9 10HNNY TERf•EHR
Examin��ion by Mr.Muelkr I55
Indian Well�,Califomia 92210 ` 10
10 11 pON MELVIN '
-��- Examination by Mr.Mueller .... 156
11 � 12 Ecaminmion by Ms.Roberge ..... 159
BES7',BEST&KRIFGER Examinmion by Mr.Spiegel ... 159
12 BY: MARTIN A.MUELLER,ESQ. 13
74760 Highway 1 I 1 14 JOE LfT1ENS
13 Suile 200 Examination by Mr.Muelkr .... 160
Inclian WeUs.Califomia 92210 ' 15 Ezamination by Mc Spiegel ...... I64
14 16
15 In Pro Per. BEVERLY BURIES
16 DENISE ROBERGE � 17 Examination by Mr.Mueller ...... 165
73-995 EI Pa�eo Fxamination by Ms.Roberge ...... 170
17 Palm Descrt,Califomia 92260 ; 18 Examination by Mr.Ferguwn .... 175
18 Alu�Pre�ent: 19
JOHNNY'fERFLHR(cont.)
19 Carlos L.Orte�a.City Manager ! 20 Examination by Mr.Muelkr ...... 173
l�uri Aylaian,Diicctor of Carvninity Exami�miion by Ms.Roberge ...... 176
2 0 DevelopmeN 21
Rxhelle D.Kla��en.Cily Clerk ; 22 SHAWN KILPATRICK
21 Ezami�r��ion by Mr.Muelkr 178
z� 23 Ezamination by Ms.Roberge ..... 184
23
Ecamination by Mr.Spiegel ...... 189
2 a 26 F:zamination by Mc Fergic�on ...... 191
25 i 25 ///
Page 3 Page 5
1 I N D E X � 1 Statement by Brendon Thielman ...... 197
2 Pa� 2 Witne*�e�called on behalf of Augu..t
3 Opening uatement by Mr.Muelkr ...... 12 ' 3 JANIES McINTOSH ...... 198
Opening statement by Mz.Roberge ...... 25 ' Examination by Ms.Finerty ...... 200
4 4 Examination by Mr.Spiegel ...... 206
5 WITNESSES ON BEHALFOFTHECITY: Exarnination by Mr.Fetguwn ...... 210
6 HART PONDER.JR. 5 Examination by Mr.Mueller ...... 21 S
Examination by Mr.Mueller .. 46 Examination by Ms.Roberge ...... 220
7 Examination by Ms.Roberge ...... 59 ` 6 Examination b Ms.Fnert ...... 222
Examination by Mr.Ferguwn ..... 72 y Y
e Examination by Mr.Spiegel ...... 76 �
Facamination by Mc Kelly .. 77 ` TED RUTHERFORD ...... 225
9 Examination by Mr.Muelkr .. 78 ; 8 Examination by Ms.Roberge ...... 2.6
Examination by Ms.Roberge ...... 80 9 Statement by Farl Wallace ...... 227
10 Statement by Ja�enka Sabanovic ...... 229
11 RYAN B.STENDELL � 10 Statement by Cyma Cohen ...... 231
F.xamination by Mc Muelkr ...... 84 Statement by Linda Biggi ...... 232
12 Examination by Ms.Roberge ..... 89 ; 11 Statement by Karen Mdkr ...... 234
Exnminacion by Mc Ferguwn ...... 94 Statement by Rick Sonleiter ...... 235
13 Examination by Ms.Roberge ...... 97 ' 12 Sta[ement by Sutian Chmalogar ...... 236
l4 Statement by Walter Green ...... 237
CHARLFS HAZARD.JR. 13 Statement by Ann Barrington ...... 242
15 Examination by Mr.Muelkr � Statement b Mark Axe ...... 243
Examination by Mr.Ferguwn ...... 103 Y
16 14
1� BRIAN HARNIK DENISE ROBERGE
Examination by Mr.Muelkr ...... 104 i 15 Examination by Mr.Mueller ...... 246
18 Examination by M�.Roberge ...... I 12 ; 16 Clo+ing Statement by Mr.Mueller ...... ?49
Fxamination by Mc Fergu.wn ...... I 17 � Clo.ing Statemen[by Ms.Roberge ...... 252
19 Examinatan by Ms.Roberge ...... 121 ' 17 Discu�.tiion ...... 255
Examination by Mr.Mueller !22 18
2o i 19
21 DAVIDJ.ROREZ ' 20
Fxamination by Mr.Mueller 124 � Z 1
22 Examinationby M.r.Roberge 130 ; z2
Examination by Mc Mueller ... 132 « z 3
23
24 /// '; 24
25 /// � 25
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1 THURSDAY.MAY IS,2(l(11�.PALM DPSERT.CAI.IFORNIA' 1 to decide whelher lhere is sufficient evidence to
z 10:04 a.m 2 determine,one,if there has been a failure to comply
s ' 3 with the approved conditions of approval,and/or if the
4 MAYOR BENSUN: I'll cail to order ihe adjaimed 4 authorized use is being operated in a manner to cause
5 re�ilar meetin�t of the Palm Lksert Ciry Camcil for 5 disturbing,excessive,or offensive noise,causing
6 Thunday,May 15th. 'ihe Pledge of Allegiance will be 6 discomfon or annoyance to reasonable persons of na�nal
7 led by my.elf,and invocation by Council Member 7 Sensitivity residing in Ihe area.
a Cindy Fineny. 8 The Ciry Council has received and reviewed
9 (Wtxreupon ihe Pledge of AUegiance wa. 9 the agenda report pertaining to this CUP modification.
io held.) ' l0 We have also been provided with copies of 1he documents
ii lwhereupai�hc invocation wa..held.) i 11 that will be presented and/or discussed talay,including
12 MAYOR BENSON: RoII call,please. 12 the original CUP documents anJ Ihe caresponding
13 CITY CLERK: Councilman Ferguwn. 13 Conditions of Approval.
14 MR.FFRGUSON: Herc. � 14 The Council is prepared to listen to all
15 CITY CLERK: Council Member Fnerty. ; 15 wi[nesses and evidence and render an impartial decision
16 MS.hINERTY: Flere. 16 based only on the evidence before us at this hearing.
i� CITY CLERK: Councilman Kelly. ; 17 The hearing will be conducted as follows:
i 8 MR.KEILY: Here. 18 F'irst,Mr,Mueller will be called upon to make an
19 CITY CLERK: Mayor Pro Tem Spiegel. 19 opening statement of no longer than three lo five
2 o MR.SPIEGEL: Here. ' 2 0 minutes,followed by an opening stalement,if any,by
21 CITY CLERK: Mayor Bemon. '.; 21 the representative of Augusta's RestauranL
22 MAYOR BENSON: Here. 2 2 Mr.Mueller will fhen present witnesses
23 Nexc item iz oral conmrmiptiom. Is ' 2 3 az1d documentary evidenCe on Ihe City's behalf. The
2 4 there anyone in the audience that would like to speak on � 2 4 representatives for Augusta's will then be called upon
2 5 anythi�that is na on[he agenda? i 2 5 to ask any re{evant questicxts of lhe witnesses.
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1 Seeing norte,the fint item of busine��i� 1 Folbwing the presentation of
2 the con.ideration of an appeal of a Planning Commi..�ion 2 Mr.Muel{er's witnesses,representatives of Augusta's
3 deci.ion amending an approved Conditional U�e Permit to 3 will be albwed to call Iheir own witnesses anci praluce
4 rlimir�ate nightly mu�ical entertainment in the outdoor 4 documentary evidence,and Mr.Mueller will Ihen h8ve an
5 patio dining area of Augusta.Re..taurant located at 5 opportunity to ask relevant questions.
6 73-995 EI Pa�eo,APN 627-272-005.Care Number CUP 96-I5, ' 6 'ilie City Council may ask questions of any
7 Amendment Number 2.Deni�e Roberge,Augu.ta Restaurant. 7 of the witnesses called at the conclusion of their
8 applicant. 8 questioning by the auomeys and/or representatives.
9 Thi�agenda item i�an administrative 9 Once all Ihe witnesses have been heard,1
lo hearing to determine whether to modify the existing use ; 10 will solicit testimooy from any members of the public
1 i pertnit issued to Augunta�R�taurant to eliminate 11 who wishes to address the City Council conceming this
12 outdoor amplified music on property located on ; 12 issue.
13 73-95 I EI Pa,e.ro in the City of Palm De..ert.Califomia. 13 At the conclusion of the testimony from
i4 It will be conduned according to the ; 14 the public,I will close the public hearing,and both
15 requirements set forth in the Palm Desert Municipal Code 15 Mt Mueller and the representative of Augusta's will be
16 and will be presenied by Special Legal Coun..el 16 albwed a brief closing statement.
17 Martin Mueller and Ciry uaff,with City Attomey Dave 17 Folbwing the closing statements,the City
18 E�win acting a.attomey for City Council in its ; 18 Council will then have an oppo�tunity[o discuss and
19 capaciry a.the administrative body responsible fa thic 19 deliberate coe�ceming the modification of this
z o hearing. 2 0 Conditio�al Use Permit.
21 My role a,Mayor will be to act ac�he ' 21 If,at the conclusion of the hearing,the
22 pmiding officer of this hearing and render any ; 2 2 City Council cietennines basecl upon a preponderance of
2 3 nece`.ary procc�dural n,ling.conceming the condua of i 2 3 lhe evidence that cerlain eonditions are nol being
2 4 the.e pnxeedings. 2 4 complied with or that the use authorized by this
2 5 Tlie Ciry Council',role in this matrer is 2 5 Conditionai Use Permit has caused discomfort or
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1 annoyance to residents,then the Ciry Council may decide 1 have discussed with Mrs.Roberge whether wimesses at
2 to modify this Conditional Use Pernut such that outdoor 2 this proceeding should be swom or not. Her
3 amplified music is prohibited. 3 determination is that she does not require the witnesses
4 Altematively,if the Ciry Council 4 to be swom. So there will be no swearing in of the
5 determines that there is not sufficient evidence to find 5 wimesses.
6 that there has been a ncxicompliance with conditions or 6 Mayor Benson,it is now ready to proceed.
7 that the use is na a problem,then there will be no 7 MAYOR BENSON: All right. We are now ready to
8 modification,and Augusta's will be pertnitted to operate e proceed on chis matte�.
9 in accordance with the Conditions of Approval previously 9 Mr.Mueller,will you give us your opening
10 attacheci to the Conditional Use Pertnit for this ' 10 statement,please.
11 facility,as well as Ciry Code requirements. 11 MR.FERGUSON: Can 1 ask a questioo before we get
12 The City Council may also Jetemiine that ` 12 to Mr.Muellers opening statement?
13 revisions—may also determine that revisicx�s to the 13 M the inswctions the Mayor read,there
14 existing ccxiJitions aze appro�xiate,which revisions 14 was a repeated reference to discomfort or annoyance of
15 would permit this use to operate in accordance with the � 15 the neighbors. Where in our municipal code is that
16 Ciry's requiremenu. 'Ihe City Council then would have 16 verbiage?
17 the o�xxtuniry to impose such revised conditions. � 17 MR.ERWIN: 'iliat is taken from the code
18 At this time 1 would like to ask City 18 section. I'll give you the section in just a second.
19 Attaney Dave Erwin to make an anncwncement conceming ' 19 MR.FERGUSON: Okay. 71�ank you. 1 apologiae for
2 0 his role in this matter and to review the burden of 2 0 intertupting.
21 proof and any other procedural standards which the City i 21 MR.ERW IN: Basically,the section is 9.24.040.
2 2 Council must folbw in this hearing. 2 2 They are further defined in 9.24.050.
2 3 Dave. i 2 3 M R.FERGUSON: Thank you.
24 MR.ERWIN: Madam Mayor,me�mbers of the Ccwncil, ; 24 MR.MUELIER: Are you ready to procced? Thank
2 5 this proceeding is technically an appeal from a Planning 2 5 you.
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1 Commission ciecisio�of January I5,2008,but because the ': 1 Madam Mayor,members of the Council,my
2 information provicled to the Planning Commission was,by ' 2 name is Martin Muellec 1'm a parmer of Mr.Envin's at
3 stipulation tx�twcen 1he attomey for Augusta's 3 Best,Best&Krieger. 1'm the attomey presenting the
4 Restaurant,Tom Slovak,and my office at the time,this 4 information gathered by staff,and I'll be calling the
5 Council--the Council should,at this time,conduct a 5 witnesses who are complainants or objectors relative to
6 de novo hearing or an entirely new hearing on the issues 6 the issue of outdoor amplified music at Augusta's today.
'7 presented here. Thus,there should be no presumption 7 1 want to make a just very brief and some
e against Augusta's Restaurant arising from the 8 opening rernarks and give you an overview,maybe touch on
9 proceedings before the Planning Commission. (n fact, 9 the point that Mr.Ferguson just raised about the
10 the City bears the burden of proof at this time that ' l0 ordinances and how things kind of fit together.
11 there is a sufficient facwal basis for a modification 11 Were here to ialk about two aspects of
12 of the Conditions of Approval of Augusta's CUP. ' 12 the failure of Augusta's to comply with the conditions
13 The burden in this proceeding is the same 13 imposed at the time their Conditio�al Use Permit was
14 one that applies in a civil lawsuit;thus,Madam Mayor � 14 oMained and was granted by resolution of this Council
15 and members of the Council,the city attomey handling 15 back in lanuary of 2001,I believe. And those
16 the presentation of this matter on behalf of the City ! 16 conditions obligated Augusta's to comply with the City
17 must persuade you,by the evidence presented at this 17 ordinances relative to noise as relates to residential
18 hearing,that what he is required to prove is more 18 noise limits.
19 likely to be true than not we. This is referred to as 19 Now,your a�dinar►ces have a couple of
2 0 "the bw�den of proof." ; 2 0 components to them in tertru of regulating noisc.
21 My role,as ciry attomey,at this hearing 21 There's the actual decibel limitations thertnelves. And
2 2 is to assist the Council with any questions conceming 2 2 with respect to residential areas,the actual decibel
2 3 procedure or any other aspe,�cts of the process as they 2 3 limits after 10:00 p.m.are 45 dba,decibel limitation.
2 4 may arise. 2 4 Now,in the history of the file of this
2 5 I would indicate for the record that we i 2 5 matter,you II see that there's persistent rcference to
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1 a 55 decibel limit after 10:00 p.m. And what we're 1 MR.MUELLER: That's right. So--and the
2 �xesenting today,though an argument could be made that ; 2 ordinance must read to be--to have meaning. You can't
3 Augusta's shou{d comply with a lower residential limit 3 read it out of existence by saying it simply is a
4 of 45,we're presenting information,evidence,rather a 4 redundancy to.030. It would mean nothing if it didn't
5 lengthy history of instances where Augusta's outdoor 5 add some separate description or analysis or standard to
6 music contributes to noise in the adjacent rcsidential 6 be applied. And 1 think,by its terms,it seeks to.
7 neighborhoal in excess of 55 decibels after 10:00 p.m. 7 MR.FERGUSON: Okay.
8 And that's a violation. If you find that those 8 MR.MUEL.LER: Certainly,thaPs the way that we
9 instances--that those violations occurred,that noise, 9 read the ordinances as supplying both an objective test,
10 indeed,was found and metered to be above 55 decibels ! 10 aze the sound measurements above 55 decibels,and a
11 repeatedly over a period of time,those are violations ; 11 subjective analysis,are reasonable people in the
12 of the noise ordinance,and that would be a basis for � 12 community annoyed and disturbed.
13 going back in and maiifying the CUP,eliminating outdoor � 13 And Pm probabiy getting close to going
14 amplified music. � 14 over the three to five already,but let me just say this
15 A second thing we ie here to talk about 15 tNief]y. As far as staff is concerned,the more
16 and prove and a second set of violations of your `i 16 important test is that second one. IPs what the
17 ordinances are the occasions where reasonable people in 17 members of the community observe,feel,have felt,and
18 the community are disturbed or annoyed by excessive i 18 have experienced,and what they're here to tell you
19 noise,excessive music in this instance coming from ` 19 about.
2 0 Augusta's. And if you find that to have occu►red,under � 2 0 And the reason is simply this: If
21 9.24.040,there's a separate standard which exists in ! 21 Augusta's was over a 55 decibel limit periodically--
2 2 addition to,separate from,the actual 55 decibel ; 2 2 and the evidence is going to show they were. But even
2 3 limitation. And you'll hear from members of the ! 2 3 assuming they were,and,in fact,people in the
24 community on that issue. ` 24 community in the nearby neighborhoods really weren't
2 5 City staff--Mr.Ferguson? 2 5 disrupted or annoyed,then what really would be the
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1 MR.FERGUSON: Yeah,I'm confused. 9.24.040 1 point of coming in here with the technical violatioas
2 makes reference to disturbing,excessive,and offensive 2 and saying,Here are,yw know, !0 instances or 20 where
3 rx>ises which cause discomfort or annoyance. That was 3 Augusta's is over 55 if there really wasn't that element
4 Mr.Erwin's answer to my earlier question. The 4 of disruption in the community.
5 definition says,Disturbing,excessive,or offensive 5 Md it was--iCs staffs belief,and
6 noises are defined by 9.24.030,which says it has to be ! 6 it's my belief,that the far more important
7 55 decibels. So it seertu to me,unless I'm missing 7 consideradon is the impact on the community. And so on
8 something,there's one standard noe two. Or maybe you ; 8 that point again,just very,very briefly,what staff
9 could help me out here. 9 did not do,staff did rwt go out to solicit objectors.
10 MR.MUELLER: The--one way that you can i 10 We didn't go out--1 didn't have staff,and they
11 cletermine chat noise is excessive or offensive would be � 11 haven't gone out into the community to d�vm up
12 in reference to the numerical limits in.030. But even ; 12 opposition to music at Augusta's,to encourage peo�ple to
13 in the absence of objective measurements,even in the ; 13 objecG
14 absence of readings one way or another over or not ova i� 14 '[liere's a recorcl over the years of
1 S the 55 limit--and this is what.040 speaks to--in ' 15 objections,calls and letters coming in. 7t�e pec�ple
16 the absence of an objective measurement,you can still, � 16 that have had--that have voiced objections in the past
17 and you should still,apply the test of whether or not ; 17 were contacted and advised of this hearing and invited
18 there's excessive and offensive noise that causes a 18 to come because those pe�ple that have objections should
19 reasonable person to be disturbed or anrayed. And � 19 come here. They should tell you atwut i4 sfiould look
2 0 that's an entirely subjective description. And it would 2 0 you in the eye,and either persuade you that they're
21 have been if the entire answer to whether or not a code : 21 reasonable people who were disrupted and annoyed over a
2 2 violation existed under.040 was answered by whether a 2 2 period of months and years by lheir experiences with
2 3 code violation existed under.03U,there would have been ; 2 3 this music a not.
2 4 no purpose to that separate section. � 2 4 And 1 believe,and staff believes that
25 MR.FERGUSON: Ezacdy. i 25 that's really the important test here today,though
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1 we'll present both aspects of iG the data and the 1 would either be a reasonable person or an unreasonable
2 residenu. 2 person. And that determination of whether their
3 MR.FERCUSON: lust a quick follow-up yuestion. 3 complaints are reasonable and whether they're
4 Wouldn't it seem somewhat logical,though,that our own 4 essentially a person of ordinary sensibilities,if
5 staff would go out and make�heir own determination? Or ' 5 they're a--if they're a reasonable person or if their
6 stated another way,because we have had instances in the 6 sensihilities are reasonably offended,lhose are
7 past,What do you do with the,quote,"eggshell ' 7 decisions for the Council. t haven't made that
8 neighbor"that is unduly susceptible to noise'1 A mere � 8 decision. 1'm going to call members of the community,
9 complaint can't establish reasonableness. Wouldn't we 9 residents who have objected. And one of the decisions
l0 need some inJependent ascertainment of that by cxv staff I 10 for this Council will be the reasonableness of the
11 or some objective neuval third party? Or do we just 11 objections and of the sensibilities of those people.
12 simply count the number of people who don't like 12 So essentially,that is--
13 Augusta? � 13 MS.ROBERGE: You did state that a reasonable
14 MR.MUELI,ER: 1 don't think iCs a counting at 14 person had made that decision.
15 all. t totally agree with your poin� And on that ; 15 And the other question 1 have for you is
16 point,staff--and I'll present the information. We 16 you made the statement that the City and its code
17 have both written reports,and you'll hear from them. � 17 officers have solicited other people in the neighborhood
18 'ihey did go out to do just that,Mr.Ferguson,to test 18 and asked their concems about the music other than the
19 themselves,to ask yourself the question,Wcwld a 19 people that have complained.
2 0 reasonable person hearing the music be disturbed or ' 2 0 MR.MUELLER: No. I actually said what we did
21 annoyed or not? Go out into the ncighborhoods,go out ' 21 not do was go out in the communiry to solicit objections
2 2 to the location where complaints have oc:cwreci and test i 2 2 to--
2 3 tha� 2 3 MS.ROBERGE: Well,then--
24 And staff has done that. And those staff ; 2 4 MR.MUELLER: --to the CUP.
2 5 persons will all be here to tell you about that. And ' 2 5 MS.ROBERGE: --that even states my case more.
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i that's an important part of this. 1 Don't you think it would have been wise to go out to 1he
2 'Ihe tnte test is whether residents in the 2 neighborhood as Channel 2 did? CBS fYews went to the
3 nearby area were disrupted and annoyed. But you're 3 neighborhood. It was on TV last week. And their exact
4 right. Other than just hearing from them,how do you ; 4 words are--let's see. Channel 2 did take the time ro
5 understand,you know,somewhat objectively whether those 5 go into the neighbaiiood and canvass the neighbors
6 objections are reasonable or not reasonable? And so 6 behind us. Their quote cm the news was,Most people we
7 you'll hear from staff on that issue. 7 spoke to tonight along the streets,and they didn't mind
8 Any aher questions? 8 the music."
9 1'm sure Pve taken mae than three to 9 But the City has not go�e out to solicit
10 five. 171,when I have my next opportuniry,kind of ': 10 any opinions from the othe�neighbors other than the
11 walk you through the written materials,which seem 11 cexnplainers. 1 would think,you know,before you came
12 voluminous,but are easier to get through that. But 's 12 and made a judgment that Augusta is a public nuisance,
13 we71 do that in a minute. 13 that you would have done this.
14 MS.ROBERGE: Mr.Mueller,I have a few questions ; 14 MR.MUELLER: 'il►at's an interesting question.
15 fa you. � 15 And 1've thought that one throu�;h and have thought about
16 MR.MUELI.ER: For me? '. 16 what about surveying. 'il�ere's a couple of aspacts to
17 MS.ROBERGE: Yes. � 17 thaG One,if I went out--
1 B MR.MUELI.ER: 1'm not a testifying witness,but � 2 8 MS.ROBERGE: Why didn't you do it?
19 I11-- 19 MR.MUEU.ER: Well,1'm going to explain that to
2 0 MS.ROBERGE: Well-- 2 0 you. Because 1've thought through Ihis. And here was
21 MR.MUEIIER: Go ahead. ' 21 my thinking. If 1 go out in the community and survey,
2 2 MS.ROBERGE: Wtw is the reasonable person that 2 2 one thing 1 know,though,1'm not a professional
2 3 decided that the music was offensive and abusive and ' 2 3 surveyor in that se:�se.I do{aww that the manner in
2 4 Augusta's was a public nuisance? 2 4 which you asked those questions,the order of them,the
2 5 MR.MUELLER: Fach person who haz made complaints: 2 5 specific wading is such that you can bias the response
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1 easily by the type of question you asked. 'ilie person 1 and interpreting the facts in light of the ordinance is
2 you asked,in the context,with the type of question is 2 your role. And there is with it an aspect of legal
3 going to contribute greatly to the answer. 3 interpretation,if you will. There's no briefing here
4 And so 1 thought,How is this going to 4 by the city attomey on legal issues or no instructions
5 work? I'll be seen by you as manufacturing objections 5 to you on how to interpret those words.
6 if I do it wrong. Basically,however 1 might fashion my ' 6 I believr that you're likely to,and will,
7 survey,1'll be open to critique for having biased the � take them in their ordinary usage. But I certainly
8 information. And if,instead,I simply look into the 8 ackrwwledge--t agree with you,Mr.Ferguson—there
9 community,look into the history of the relationship 9 is an element of legal analysis in the Council's
10 between the community and Augusta's and say who has `: l0 decision today.
11 objected,let's hear fmm them,let's not try to invite 11 Ms.Roberge,this is actually an'
12 additional opinion,if someone is tat disturbed,it 12 opportunity for you ro make some opening remarks,part
13 really doesn't answer the question of whether reasonable 13 of which has aU�eady occurred. But do you have any
14 people in the community,other reasonable people are ' 14 other questions for me,though,before I leave the
15 disturbed. ; 15 �odium?
16 The fact that Marty Mueller might live in 16 MS.ROBERGE: Yes. Our music pertnit didn't start
17 the community and might not be diswrbed wouldn't tell 17 in 2001,it started in 2004. Md our CUP is na for 45
18 you whether Jce 3mith right next door was annoyed or ' 18 decibels,iPs for 55.
19 disturbed. ; 19 MR.MUELI.ER: You're—
2 0 And so 1 thought about it and thought ' 2 0 MS.ROBERGE: lust camting a few—
21 against proposing to Council that there be a survey 21 MR.MUELL.ER: Yai re wekome to have—to lake
22 t�ecause 1 was worried about bias. Because I thought - 22 the stage.
2 3 that it dcesn't answer the question of whether there are ' 2 3 MS.ROBERGE: Well,do—let me just think hene
2 4 reasonable objectors out there,and that it ultimately �: 24 for a minute. Well,l'm happy to present my case now.
2 5 didn't really contribute to this hearing,to the issues � 2 5 MAYOR BENSON: Could you step down--could you
Page 2 3 '; Page 2 5 '
1 before the Council today. So that's my thinking. 1 step down to the podium,because T can't quite hear you?
2 MS.ROBERGE: Well,Mr.Mueller,I consider 2 MS.ROBERGE: Okay.
3 Channel 2 to be,probably,one of the rtx�st unbiased 3 Good moming. Frst of all,Pd like to
4 surveyors. !t would give everyone the opportunity to 4 deliver our si�petition of approximately I500 people
5 state on public television how offensive the music was, 5 to the City Council. This was a lot of work.
6 if it was. There is no more unbiased person to 6 MAYOR BENSON: Give it to the Ciry clerk.
7 interview the neighborhoods than the TV station. � 7 MS.ROBERGE: And then f feef the nced to clean
8 MR.FERGUSON: Mr.Mueller,before we get into : S up a misquote by 71�e Desert Sun. On their Sunday paper,
9 the arguments of the case,Pm still--one last � 9 1 did not say"Yes,we wip win this." What 1 said was,
10 question,if you would indulge me? ' 10 "I hope we will win this."
11 MR.MUELL.ER: Absolutely. ` 11 First of all,1 want to apologize to my
12 MR.FERGUSON: It seertts to me that we have 12 neighbas for na taking action sooner. 1 should have
13 questions of fact and questions of law here. The 13 reacted earlier and with more conviction to help solve
14 questions of fact,under the objective standards,are 14 the noise problem created by the music. But we have
15 fairly easily ascertainable. The meter readings are `: 15 solved it today.
16 what they are,and we can irtterpret them how we 16 1 remember some years ago hearing
17 interpret them. My concem is discomfort or annoyance � 17 Mayor Benson say that the ciry needs and wants to
18 can be susceptible to being vague and overbroad,overly ; 18 encourage and nurture individual,unique businesses w
19 subjective,which is a question of law. Are we here to 19 come to the city,as the city nceds it to survive and
2 0 decide just the questions of fact and leave the : 2 0 maintain its prosperiry. 1 thought,71►is woman really
21 questions of law for a legal challenge,or are we here 21 Irnows what she is saying and doing. This is even puer
2 2 to decide both? 2 2 today.
2 3 MR.MUELL.ER: Well,the--you�e here to decide � 2 3 A few years ago we iost a great restaurant
2 4 questions of fact. You're not really deciding questions ' 2 4 named Doug Arango s. 'iT►e City and us did nothing w
2 5 of law. I acknowledge that interpreting the ordinance ; 2 5 save this great restaurant. People are still talking
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1 abcwt the loss of Doug Arangos Restaurant,as everyone 1 We have managed to get the d��cibel level
2 that knew anyone coming to Palm Desert said,You must go 2 down to SS as per code. It is hard to keep the decibel
3 to Doug Arango's. Now,that space is sitting dark, 3 at this absolute level,as the weatlter dces play a part
4 empty,ar�d ugly in the middle of El Paseo. 4 on how the sound travels. On a humid night,the sound
5 The same thing is happening today with 5 is dampened and doesn4 travel as well as a dry night.
6 Augusta's Restaurant. Augusta is a great attraction for 6 We've gotten it under control,and we do promise to
7 the Ciry of Palm Desert. The wcxd out there is if 7 continue to worlc on bringing the sound level down
8 you re going to Palm Desert,you need to go to Augusta. e fwther.
9 Augusta's fabulous outdoor setting is a big attraction 9 If you stop the outdoor music,you will
10 for the tourists fmm all over the country. � 10 have seriously damaged a great restaurant. 1 icnow--1
11 Imagine someone from Wisconsin,Minnesota, ' 11 know Augusta can't survive without its music,as our
12 Chicago,Seattle,Oregon,Canada,where the weather is 12 clientele is made up of music lovers. So if you vote
13 cold and miserable,landing in a beautiful ciry like ' 13 out the music,you will have drstroyed a unique and
14 Palm Desert and being able to eat,drink,and ciance � 14 prosperous business in Palm Desen. So I request,along
15 outside. At Augusta they feel like they have dieci and 15 with I500 people,"Let it be."
16 gone to heaven. They will conlinue to come back to Palm ' 16 MAYOR BENSON: I91 now open the public F�earing.
17 Desert every year because of the fond memories that they 17 And Mr.Mueller,do you have doc;umentary evidence that
18 have from their last visit to the desert. People Jon't i 18 you wish to present at this time? .
19 come to experience a chain restaurant. 19 MR.MUEILER: Yes,Madam Maya,t do. And let me
2 0 Along with all of Augusta's suppaters 2 0 just walk you at this tirt�e through the binder which,in
21 here toclay and the suppo�t of the I500 signed, 21 essence,is a staff report,though it waz prepared by my
2 2 approximately,petition,they all agree that to take 2 2 office with the cooperation of staff. And let me just
2 3 away Augusta's music wcwld be a grcat loss to the City 2 3 walk you through the materials which are somewhat
2 9 of Palm Desert. Augusta represrnts all that is unique ; 24 vduminous. But we have them tabbed. Of course,
2 5 and exciting about the desert. ' 2 5 Ms.Roberge has got a copy of this binder as well.
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1 1've decided there is no need for me to go 1 MS.ROBERGE: Now,is this a staff report or not?
2 Uuough all the dirty laundry,so to speak,between the 2 MR.MUELLER: This is a--these are the written
3 City of Palm Desert anJ myself. There are just a few ' 3 materials,the written evidence that relates to
4 points 1 would like to make. I'm assuming that the 4 violations of Augusta's of the noise ordinance. So it
5 binder--1 guess that's a staff report--cielivereci to 5 is not a seaff report. This is written documentary
6 me oo Monday is complete. 6 evidence.
7 According to the staff report,Exhibit D, 7 So Exhibit--
8 page 17,there hasn't been any complaints since November 8 MS.ROBERGE: Then I never got a staff repor[.
9 2007,which is the beginning of this past seasot�. 'Il�is 9 MR.MUELLER: You have in front of you--
10 must be the results of Augusta investing approximately ; 10 MS.ROBERGE: 'ilien this is the staff report?
11 $60,000 to add a ceiling for the patio,curtains on the 11 MR.MUELLER: --all of the written materials
12 wall,our great mattresses,large 60-plus feet of ' 12 that are being presented here. There's no--
13 theater curtains,sound monitoring equipment,Plexiglas 13 MS.ROBERGE: Yeah.
14 around the clrummer,carpet on the stage,anJ more. 'R�is 14 MR.MUELLER: --separate staff report.
15 would lead one to believe that the problem has been ; 15 MS.ROBERGE: Was there a staff report done for
16 solved. 16 City Council?
17 Two,1've t�een in the home of one of the I 17 MR.ERWIN: Yes,there was. There was a staff
18 complainers a few years ago,and you cannot hear the ; 18 report. I can read it. It's very short.
19 music inside the house. 1 asked him why he continued to 19 Staff report is the recommendation: Waive
2 0 complain,and he said,'"11�at's devil music." 1 have � 2 0 further reading and adopt the Resolution IYumber 08-31
21 requested the code officers ro do the same,to go inside 21 denying the appeal,reaffirming the decision of the
2 2 to see if any music coulJ be hearci,but this was never `. 2 2 Planning Commission dated January I5,2008. The
23 done. 23 discussion indicated at the meeting of January I5,2008,
2 4 As 1 told you.Channel 2 did do a survey, 2 4 the Planning Comrt►ission approved a modification to the '
2 5 anci most of the people do like the music. 2 5 existing Conditional Use Permit fcx Augusta's Restaurant
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1 which eliminated outdoor ampiified music. Augusta s 1 all of what I suggest you should focus on are the
2 Restaurant appcaled the decision to the Ciry Council for ' 2 one-hour readings,not the ten-minute peaks.
3 review. There is a detaileci package of all 3 And then,of course,.040 includes,at
4 correspondence relating to the case attac:hed. And that 4 para�aph A,the language we were talking about whirh
5 is the documents. 5 creates that subjective standard of whether excessive or
6 MR.MUELLER: Okay,if f could then? 6 oCfensive noise has caused discomfort or a naise to
7 Tab A is very simple. It's the resolution 7 reasonable persons who reside in the area.
e dating back to January 25,2001,which authorized the ! e So your ordinance is under Tab B.
9 outdoor amplified music and opposed certain conditions, ' 9 Tab C is a one-page document. It's a map
10 specifically at page 0003. And in this binder,all of � l 0 the staff has prepared. You can see the geen square is
i l the pages are continuously numbered at the bcxtom. So ; 11 Augusta's. You can see several sectioris of land
12 we'll be able to reference both to a tab,in this ; 12 surrounding Augusta s are reflected on the map. And
13 case A,and a page number so we can move in and out of � 13 there aze red stars indicating the locations of
14 this document without getting too bogged down trying to � 14 complaints or complainants. And so we'll be making
15 Flip pages. i 15 reference at times to the map. Of course,it's the same
16 But just for your reference,page 3 thrn i 16 map that's on the easel in front of you.
17 would be the corxiitions which authorized Augusta's and ; 17 Exhibit D,which Ms.Rolxrge made
18 placed as a condition their compliance with noise sound I 18 reference to,is not a--as she assurtxd,a report or
19 level limits for residential properties described in 19 summary of all objections or events. It was an activiry
2 0 Chapter 9.24 of the Ciry Municipal Code. 2 0 report that chronicled a long period of time,different
21 B,Tab B,is a recent printout. You can � 21 pieces of information,the history up and inc;luding
2 2 see the date it was run on the computer there,5/9/2008. i 2 2 through November of 2007.
2 3 This is a printout of the ordinance, And just to 2 3 Of course,when this was prepared in
2 4 make--we've been talking about several of these � 2 4 anticipation of the Planning Commission hearings,which
2 5 provisions already. You can see,of course,the very i 2 5 ultimately were heard on January I5,it chronicled
Page 31 ; Page 33
1 first part under.010 describes the purpose of the noise 1 certain historical information. And it's ti�ere for that
2 ordinances. On the second page,which is on OOQS,at 2 purpose. This is—this gives you one vehicle to look
3 .030,we see the sound level limits. 3 into the history over a certain period of time.
4 Very quickly on that,the way your 4 But as Ms.Roberge mentia►ed,they had
5 ordinance is currently framed,it speaks to noise level 5 made--in its acknowledgement,they made substantial
6 limits based on readings of ten-minute averages. And 6 efforts to reduce the noise. And,really,the question
7 you will see in these written materials that you've been 7 thrn is,So what have we seen since the Planning
8 supplied with ten-minute readings and one-hour readings. ; 8 Commission hearing? What have we seen in the community?
9 A quick aside on this ten-minute versus 9 What have we seen in ternu of recorded recotds? And
10 one-hour. On a ten-minute reading,you have an � 10 those aren4 reflected rn►Exhibit D. IPs historical.
11 opportunity for a short incident of sound that may iwt I 11 It covers a long period of time,up through November,
12 be at all associated with the operation of a restaurant `. 12 and it daxn't tell you anything about recent reports or
13 or the music. A horn beeps,you know,a qvck drives by ' 13 objections.
14 the monita,and in a ten-minute reading you'll get a : 14 Exhibit E is a rather bulky pazt of this
15 peak of sound. So ten-minute readings could appear ° 15 binder. And it's ga tabs for each month,from November
16 substantially in excess of an actual amount of noise 16 200'I through May 2008. And it includes primarily
17 emanating from,in this case,outdoor amplified music. ; 17 reports from staR'conceming each—
18 And so while those--that data has been ' 18 MS.ROBERGE: Mr.Mueller,can 1 intem�pt you
19 supplied,we are not recommending or suggesting that the ' 19 for a minute? 1 just want to ask you a questia�. Are
2 0 analysis focus on ten-minute readings. 'Ilie fair � 2 0 you going to go through this whole book? Because a lot
21 evaluation to look at would be a one-hour average. And ' 21 of these people have left their jobs today to come down.
2 2 we'll speak to that. All of the data is supplied. 1 � 2 2 Is there any way that we don't have to have them sit
2 3 just wanted--as you look at your ordinance,you'll see ! 2 3 here for a couple hours'?
2 4 a reference to ten-minute readings,and yet all of what 2 4 MR.MUELLER: 1 donY know what to tell you about
2 5 we'll be talking about today are one-ho�r rcadings. And ' 2 5 that. 1 need to--and of cause,if 1'm able to get
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1 through it,the quicker I can do it,the better. I'm 1 that ought to be revoked,modified,or left alone. And
2 going to need to go ahead atul describe to the Council 2 evidence that you might hear and might otherwise want to
3 what they have in front of them. It's a volume of 3 respcx�d to,if you go ahead of that,you won't hear any
4 material. And then there's going to be a number of 4 of that evidence,so...
5 people speak. 1 anticipate,Ms.Rotxrge,probably 5 MR.MUELLER: That's right.
6 calling four staff persons,a couple of officers from 6 MR.FERGUSON: So it's up to you.
7 the Sheriffs office,and eight or ten members of the 7 MS.ROBERGE: Who wants to stay,and who wants to
8 community,local residents. 8 talk now? Or who wants to talk later? JLLst show your
9 So it will take a period of time to get 9 hands for now.
l 0 through that. And I'll try to move as yuickty as I can. 10 Who wants to stay?
11 Though if 1 talk too fast,and I'm probably already ' 11 Oh,l guess we have some true,die-hard
12 going too fast,the coun reporter will struggle. But I 12 supporters. Thank you.
13 will try ro move it along. 13 MR.MUELLER: Let me by to do this.
14 These are rranth-by-month reports. 14 MR.KEL1.Y: t have a concern.
15 MR.FERGUSON: Just-- ! 15 MR.MUELI.ER: Mr.Kelly?
16 MR.MUELLER: Yes,Mr.Ferguson. 16 MR.KELLY: &xause there are folks that are here
17 MR.FERGUSON: Just by clariflcation,1 think we 17 that aze schecluled for another part of the hearing,but
18 also have a scheduled break,for lack of a better word, 18 we also have Folks here lhat are depending oo being here
19 for the court reporter at noon. So would it be fair to ': 19 for this part of the hearing. So when we make a
2 0 say Ms.Roberge's case would occur after luneh possibly? ' 2 0 dec:ision to acconvnaiate one group,we're then putting
21 MR.MUELLER: In ternu of the presentation of-- ' 21 the burden on anaher group.
22 MR.FERGUSON: Of her witnesses? 22 MR.MUELLER: 1 agee with you.
2 3 MR.MUELLER: Absolutely. I think it will be ` 2 3 MR.KELLY: So this was published this way. 1
2 4 after lunch. 2 4 don't uncierstand why we wouldn't stick to it.
2 5 MR.FERGUSON: Does that help? ' 2 5 MS.ROBERCE: I agree with you,Mc Kelly. I
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1 MR.MUELLER: It will be after lunch. 1 just wanted to know if Mr.Mueller was going to spend
2 MS.ROBERGE: Not really bec:ause pe�ple have to ' 2 hours on this book,which--
3 work,and,you know,the City code officers-- : 3 NlR.MUEL.L.ER: 1 will move--
4 MR.MUELLER: Let me say this. 4 MS.ROBERGE: --obviously isn't--
5 MS.ROBERGE: --are here all day. 5 MR.KELLY: See,the other thing is--
6 MR.MUELLER: Let me say this and offer this. 6 MS.ROBERGE: --truty comect.
7 Certainly,if there are people that have time 7 MR.KELLY: --if we give the hearing a
e restrictions,we can take this out of order,however you 8 beneFt--we should give it Ihe benefit of taking Ihe
9 prcxeed. Cm not,you know,stuck on any panicular 9 time that needs to be taken,arxl to try to make a
10 time frame or order that things have to occur in. 10 difficult decision like this and stuff it in a shorter
11 Whatever needs to happens to be fair to people--they 11 time would be a mistake.
12 should alt be heard. If someone needs to leave and 12 MS.ROBERGE: I agree.
13 cannot be available after lunch,then they should have a 13 MR.MUELLER: I will try to do the best to help
14 forum before then. And 1'm happy to do that. 14 on all fronts. 1'll try not to--I certainly have no
15 MR.FERGUSON: Change the order. 15 plan to waste time. But,1 think,if l don't help you
16 MR.MUELLER: Whatever you need to do on that `. 16 by explaining what we have here and get an orientation
17 front. ' 17 of it,we slow the process down. If[have ro do it by
18 MR.SPIEGEL: Let me ask our attorney,Would it 18 examining wiu�esses as we go chrough this,we can do
19 be appropriate to change the order of presentation? ! 19 that,but it's going to be slower.
20 MR.ERWIN: Certainly. If the Council wishes to � 2 0 MR.FERGUSON: As Councilman Kelly is fond of
21 do that,we can do that. 21 saying,"We can read faster than you can talk."
22 MR.FERGUSON: 1 guess my only concern,and 1 22 MR.MUELLER: All right.
23 know pec�le have schedules,is the City does have the ' 23 MR.FERGUSON: So if you ean summariu.
2 4 burden of proof.Ms.Roberge,and Augusta's dces have a ; 2 4 MR.MUELLER: I will bear that in mind. But it
2 5 Conditional Use Permit. IPs up to us to prove that ' 2 5 won't be hours. It will bejust a few minutes to just
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1 go over the--generally what we have in front of us. 1 reports aze here in Exhibit G. There are a couple of
2 So we have the month-by-month reports. 2 e-mails,and there are memos that are called"Augusta s
3 And where there are e-mails from staff conceming their 3 nigfittime reasonable person observations." And they are
4 own observations conceming noise levels on site and 4 the observations and reports of staff when they went out
5 disturbance,those are intermixed chronologically in 5 to the objector's locations and listenad to music.
6 Exhibit E. So E aze your month-by-month reports. And 6 Atxi we have these brief repo�ts,
7 thosr are by and to staff conceming noise levels. 7 generally,a one-cx two-page memo from staff inembers.
8 A summary page was prepareci as Exhibit F e But we should also hear from them today. And if you
9 for a ponion of that data. If you went page by page 9 have questions about their observations,you will have a
10 through E,you woulJ see that the ove►whelming bulk of 10 chance to ask them. Exhibit G here.anyways,is the
11 Jata was gathered through the months of March and April, ; 11 summary of those reasonable person observations.
12 where lots of monitoring occurred,lots of data was I 12 There are two other bulky sections,which
13 taken,and many repo�ts were written. ? 13 are Exhibits H and 1,which are in here for historical
14 That data is summarized on Exhibit F. And 14 reference. And if there's data that you want--for
15 there are four colored lines on F. Essentially,1'd 15 example,in H,we have the package that,as is its cover
16 encourage you to na pay much attention to the top three 16 page,the application for appeal from the Planning
17 lines t�ecause those are all ten-minute readings. And ' 17 Commission hearing. And there's Planning Commission
18 yoii II see spikes of very high numbers over that time 18 materials that were submitted there in transcripts and
19 Frame that don't necessarily tell you that violations 19 data. And the realiry is there is no presumption in
2 0 have occurred,which,we believe anyways,should be the 2 0 favor of modification. The action of the Planning
21 basis of modifications. � 21 Corrunission should not guide you here at this hearing.
2 2 1 think it comes down to--and the scale 2 2 Mr.Ferguson.
2 3 doesn't help you much on that blue line. But along the 2 3 MR.FERGUSON: lust a proceciural question
2 4 blue line on the bottom,you can see the summary from 2 4 Maya Spiegel asked me before the hearing,and I just
2 5 staff readings of sound levels. And you'll see on the i 2 S want to get it on the hearing. Everything that the City
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1 map when staff speaks here this morning where they were 1 has ever received in connection with Augusta,right,
2 at when they took these readings. But you can see that 2 wrong,indifferent,is included in this packet as part
3 there are many,many readings. It looks to me that over 3 oF the record;is that cortect'>
4 the period of March and April,if 1 have the count 4 MR.MUELLER: As far--well.I don't have
5 right,something like I8 instances whec�e the readings 5 personal knowledge of that,but that's a goal yuestion
6 were above 55 decibel on a one-hour basis,not a 6 for staff.
7 ten-mirmte. But those are summarized along the bottom 7 MR.FERGUSON: fll defer to our Ciry clerk who s
8 line. And at times you can see 53.6,you can see a 8 responsible for our documents.
9 54.57,you can see a 58.22. As you read along the 9 To the best of your knowledge,it's all
10 bottom,you can see day by day,Fridays and Saturdays, ' l 0 here?
11 the readings that staff took. 11 CfTY CLERK: Carect. And it has been
12 And so that Exhibit F is a summary page. 12 disuibuted subseyuently as well. We have received—
13 if you will,for much of the data. And again,the data ; 13 MR.SPIEGEL• So if something came in the last
14 in E covers a broader period of time,but 1 will tell ; 14 few days,that you--
I 5 you,having personally gone through it page by page,the ; 15 CITY CLERK: We have distributed as well. Ar�d we
16 bulk of the data is in March and April. And the data 16 also provided a copy to Ms.Roberge this moming when
17 thene is retlective of the same kind of ratios between 17 she artived.
18 violations and not that yai d see in the other months as ' 18 MR.FERGUSON: So everything is here?
19 well. ` 19 MR.MUELlER: And that was my goal in putting
2 0 G,Exhibit G relates to a question ': 2 0 this together.
21 Mr.Ferguson asked. And that is,What about has staff ; 21 1 will say this.Mr.Ferguson: Because
22 done anything to go out and test,essentially.the 22 When it came in to me--and it was essentially in the
2 3 reasonableness of the objections? Artd they have. And : 2 3 form that we're looking at here--there was still,it
24 they will tell you atxwt their own--about why they ; 24 seems to r►�,some duplication in here. Whether it was
2 5 undertook this task and what they observed. But their 2 5 obvious duplication,1 didn't leave in multiple copies
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1 of the same thing because I was wortied about just 1 MS.ROBERGE: No. 1'm just asking you,and you
2 hurdening you wilh volume. As 1 ga through it,I kind 2 said yes,if this was a complete binder. That's all 1
3 of rcalized,gee,thcre's some overlap here. So I 3 want to know.
4 generally left things in. 1 think that 1 tried ro avoid � 4 MR.MUEII.ER: 'Riat's fine.
5 duplication where possible. But this was--my request 5 MS.ROBERGE: And you said it was.
6 was for the entire file,and this is what we've got. 6 MR.MUELLER: AnJ when 1 say"complete,"I Jon't
7 And this is--and 1'm just breaking it out. 7 mean to limit it in any way. If there is carespondence
S 'il�e Planning Commission at N and at I,we 8 that you believe that the City should consider.
9 see the older histcxical information back�rom the 9 absolutely,you should have an opportunity to provide
10 original Planning Commission and Council hearings on 10 it.
11 g�anting the CUP and the conditions. And that's 1. 11 MS.ROBERGE: Well,that's like answering is,is.
12 At the back of the binder is the ` 12 is.
13 corresponcience. It includes in the binJer up through � 13 MR.MUELIER: No,it's simply to suggest that
14 the most recent May 6,2008 objection by a Mr.John � 14 anything and everything that should be brou};ht before
15 Alle,or Alle(pronouncing),who sent that--his leuer + 15 the Council can be today and that this binder,which
16 in,which is received by the clerk,as ycw can see,on ' 16 rep�nts all of the materials that 1 have been able to
17 the 8th. There's several other pieces of carespondence 17 gather and accumulate on the issue,pro or con,are
18 there,as far as 1 know,up through the date of 18 presented here. And if there is anything else that
19 preparation of this binder on the 8th or 9th. The-- ' 19 needs to be provided,absolutely,you have the
2 0 this was--this would have been a complete inclusive � 2 0 opportunity to do so.
21 list of all the coRespondence. 1 think some additional 21 MS.ROBERGE: Well,there's not one pro piece in
2 2 things have come in and copies have been supplied to Ms. ; 2 2 the binder. So 1 guess we're to assume there was no pro
2 3 Roherge and will be part of the record. 1 don't know if ! 2 3 activiry within City Hall?
24 ycw have thrne in front of you. But again,I think 24 MR.SPIEGEL: Ms.Roberge,do you have a copy of
2 5 there are additional--a couple pieces of 2 5 this?
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1 correspondence. 1 MS.ROBERGE: No. IVo. Oh,Is this mine?
2 So with that,that's what we have here in 2 MR.SPIEGEL: Yes,that one. If you go in about
3 the binder. Do we have--I guess 1 should wait for 3 seven or eight pages,yai II see your letter that was
4 Mr.Ferguson. Do we have any questions,though,about 4 e-mailed to me and given w the City Council and a
5 what's in the binder? 5 response from the Mayor.
6 MAYOR BENSON: Any questions? No questions. 6 MR.FERGUSON: 1 have also seen a number of
7 MS.ROBERGE: So this is a complete binder. 7 letters in support of Augusta in the binder,if that's
8 Mr.Mueller? 8 the question.
9 MR.MUELLER: 1'm sorry? 9 MS.ROBERGE: Whece?
10 MS.ROBERGE: So this a complete binder? ' 1 o MR.MUELIER: You know,at this point--
11 MR.MUELLER: Yes. 11 MR.SPIEGEL: Could you find it,Denise?
12 MS.ROBERCE: Well,it's missing my letter to 12 MS.ROBERGE: I'm finding a lot of things here
13 City CounciL It's missing lots of correspondence from 13 that I probably should have a minute to digest because 1
14 people on our behalf. There's none of that in here. i 14 didn't get this befa+e our meeting today. But there is
15 And that if this is a complete binder--Exhibi[D,like 15 a Council's letter here. But 1'm seeing something that
16 I stated,is the activity repo�t. And if it's a 16 is shcx:king. What's this,all these reslaurant
17 complete binder,it should have all the activity. And 17 rankings?
18 if that's the case,tt�ere is no activity after IYovember 18 MR.ERWIN: Maciam Mayor,I would like to suggest
19 ?007, ' 19 that if Ms.Roberge has other items after she's had an
20 MR.MUELLER: Ma'am,you'll have an opportunity ` 20 opportunity to go through this U►at she believes should
21 to ask questions of inembers of staff-- 21 be part of the record,certainly,we would accept them
2 2 MS.ROBERGE: No,I'm just-- 2 2 as pan of the record.
2 3 MR.MUELLER: --who helped compile this,the ! 2 3 MS.ROBERGE: Well.I didn't bring anything with
2 4 binder. And so yai II have an opportunity to understand i z 4 me to be accepted. 'I'hese here were left here right now.
2 5 what is included in Exhibit D. 2 5 1 just have one question. 1'm not
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1 following. You have 70 points here with all the 1 A Those are the areas where we received
2 restaurants in Palm Desert. Is this significant for any 2 complaints regarding the Augusta's music.
3 reason? 3 Q What has been your involvement or
4 MR.SPIEGEL: No. 4 experience on that issue in tertns of receiving
5 MS.ROBERGE: Oh,okay. Then 1'm fine. 5 complaints conceming August's music?
6 So now the record is complete if we add 6 A What we have done is we have different
7 all this in? 7 areas that are assigned throughout the city,and Officer
8 MR.MUEL.LER: Madam Mayor,can 1 proceed with ; 8 Shawn Kilpatrick is the ofticer who happened to have
9 calling a witness? 9 this area. So it was my instructions to make sure that
10 MAYOR BENSON: Yes. 10 we catalogued and we addressed everything. And in an
11 MR.MUELLER: Mr.Ponder. 11 efficient manner,l directed all the complaints to go to
12 12 Shawn in conjunction with him handling the case.
13 HART PONDER,1r., 13 Q Now,Exhibit D in the hinder,we had--
14 called as a witness on behalf of the City, ': 14 Ms.Roberge has raised a couple of times here this
15 was examined and testified as follows: 15 Augusta's Activiry Report. Help me with that. What's
16 16 the activity report,and basically,what information
17 EXAMINATION � 17 here is provided to the Council?
18 BY MR.MUELLER: 18 A What we have here is Code's perspective of
19 Q (3ood morning,Mr.Ponder. ? 19 how we've been involved and what dates they've started.
2 0 A Good morning. 2 0 It could be reporting parties calling,or it could be
21 Q Could you state your full name for the ' 21 contacts from the Sheriff,usually after-hour calls,
2 2 record,please. ; 2 2 disturbing the peace calls,loud noise and parties,and
2 3 A My name is Hart Ponder.Jr. 2 3 things like thaL After hours are handled by the
2 4 Q And what's your position,sir? � 2 4 sheriffs. But what we do is,as staff,we try to
2 5 A 1'm the code compliance manager for the ' 2 5 accortunalate the businesses and the residents by giving
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1 Ciry of Palm Desert. 1 them exva attention,where both of us can try to work
2 Q And how long have you been in that , 2 at it to help eliminate the disturbance.
3 position? 3 Q The last enuy in this document is shown
4 A Over 10 years. 4 as November 2,2007,if you turn to page 0017,the last
5 Q And have you been in any other positions 5 page of this exhibit. Does that mean there have been no
6 with the City? ; 6 complaints to the City since November 2007 conceming
7 A Within this City or oiher j�risdictions? 7 noise of Augusta's?
8 Q Within this City. e A No,it hasn t. They have continued to
9 A No. 9 come in.
10 Q The information in the binder,some of , 10 Q Exhibit E is the month-by-month
11 this was gathered and organized and prepared with your ' 11 compilation of series reports. And in looking through
12 assistance;correct? 12 those,you'll see that many,many of chese reports are
13 A CorrecL 13 directed to you.
14 Q L.et me--let's go through a couple of the 14 A Yes.
15 items,and you can just tell the Council about what they ; 15 Q Can you explain to me what these reports
16 reflect and what your involvement in their preparation ' 16 aze,and how and why they're prepared?
17 was. ; 17 A What these reports are,is we were
18 If ycw look at Tab C,which is the map-- � 18 requested to meter the sound activiry at Augusta's for
19 or you could probably just look at the map here on the 19 an indefinite amount of time. In order to make sure
2 0 easel--can you tell me,were you involved in the ' 2 0 chat everything is in place and properly documented and
21 preparation of that? 21 put into our system,I directed the memos go to me. And
2 2 A Yes,[was,in the decision that we would 2 2 then from there,it goes up the chain of command.
2 3 create a map to give perspective to the situation. 2 3 Q Let's turn to one of these reports. Let's
24 Q And the red Xs that are displayed on the 24 turn to the month of March,since we can see it during
2 5 map,what are those? 2 5 March and April there was substantial activity. Why.by
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1 the way,is that? Why are there so many reports 1 know where this reading was taken from'?
2 prepared in March and April? 2 A Yes. lt was--it was directly across the
3 A Because we were requested that every time ; 3 street going toward--going south direcdy behind
4 that outside amplified music was to be conducted,they 4 Augusta's.
5 would like to get--the Planning would like to get a 5 Q So this wouldn't have been a reading from
6 handle on it on what the decibel readings are lxr.ause of 6 out in the neighborhood,but this would have been right
'I the reports that we were getting within the community of ` 7 behind the restaurant?
e the rroise clisturbances. 8 A Cornct.
9 Q If you look at the first date in March, 9 Q And is that your practicc,to take
10 March I st,2008,at page 50--0057,there's a memo from ' 10 readings in that manner? Is that the proper way to do
11 Mr.Kilpatrick to you. Do you see that? 11 iC? �
12 A Yes. 12 A It is the proper way. And it was
13 Q And then a second page to that memo at ' 13 determined that that's where they would like to have the
14 0p58. Do you see that? 14 readings taken.
15 A Yes. 15 Q Who is"they"?
16 Q Is that accurate? Is 58 an accompanying 16 A That would be the Planning Department. So
17 page that gces along with 57,pan of Mr.Kilpatrick's ' 17 it would have been a request. Once a detertnination was
18 repon? 18 made where we would consistently monitor,it was in a
19 A Yes. ; 19 meeting,and we came to the conclusion that that would
2 0 Q Help the Council,if you would,with what ' 2 0 be the appropriate place.
21 they should learn or see or obscrve from page 58,the 21 Q Now,Exhibit F is a--the first page of
2 2 repon that is the data from March 1 st.2008? 2 2 Exhibit F says,"Augusta's at a glance." Could you turn
2 3 A The CUP requires that a one-hour average 2 3 ro that and take a look at that for a minute?
2 4 be used when determining Ihe decibel level for 2 4 A Yes.
2 5 Augusta's. And thaPs what the one-hour average 2 5 Q Am 1 right that the three colorcd lines at
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1 reFlects. We were running two meters out there, So 1 top would all be ten-minute readings and wouldn t
2 when you see a one-hour average,the red is what the 2 necessarily be pertinent to the Council's decision
3 average is. And then you have a high and low. And what 3 tcxlay? Is that fair to say?
4 the sound meter actually dces is it takes the hour 4 A Yes.
5 reaJing,and it gives you an average based on the noise , 5 Q Describe what's shown on--by the way,
6 activity. 6 did you put this together,this chart?
7 Q Now,on this page,on page 58,there's a 7 A No,I didn't. I directed it be done. And
8 blcxk at the top that says"one-hour reading,"and then e I had Officer Terfehr and Officer KilpaVick work on the
9 there's a block at the bottom that says"ten-minute 9 data and the map.
10 readings"? 10 Q Okay. And this shows,dces it not,during
11 A Right. 11 the period from March 1.2008,through Saturday.
12 Q Do you see that? 12 April 19,2008,on the blue line at the bottom,the
13 In the block at the top,the one-hour ; 13 range of the average,the one-hour average decibel
14 readings,which number should the Council concem ; 14 readings outside of Augusta's?
15 themselves with in tertns of evaluating whether Augusta's : 15 A Correct.
16 was or was not over that night the 55 decibel limit? 16 Q So is it fair to say that that blue line
17 A What has t�een the practice,the lawful 17 is a recap of the data for March and April that's in
18 practice,the industry standards,is the average,which 18 Exhibit E?
19 in this case on this page would be 56.21. ' 19 A Correct.
2 0 Q So this would have been one instance,for 2 0 Q And so wherever tt►ere are numbers in
21 example,where Augusta's by the City's metering on that 21 excess of 55 decibels,what would those illustrate?
2 2 night,the noise from the outdoor amplified music was in 2 2 A That would illustrate that they're
2 3 excess of the 55 decibel limit;right? ; 2 3 violating the conditions of the CUP.
2 4 A Correct. ' 2 4 Q Now,turning it to Exhibit G--aix1191
2 5 Q On the map,can you--where was--do you 2 5 ask ycw some questions about this--we have--the
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1 first page of this is actually an e-mail from you. Do 1 so audible and that you could hear it for blocks away.
2 you see that? 2 So my first was amazement. Because 1've been doing this
3 A Yes. 3 for 19 years. And for over 10 years 1've servecl as a
4 Q We're at page 125 now in the binder; 4 hearing officer for the town of Yucca Vailey and heard
5 right? 5 noise complainls. And 1 was amazed at how faz away we
6 A Yes. 6 couW heard the music. In facG we would get out our
i
7 Q And can you tell me why that e-mail was 7 Nextels,and we woukl identify a song,and then we would
8 done,and what kind of--what the point of that 8 call down to Officer Terfehr,who was just right across
9 information was? 9 the sveet,and we picked all the songs that were being
10 A We were receiving numerous calls from the � l 0 played. That's how well we could hear the music.
11 residents,some[ received personally,ar►d they were ; 11 Q Hearing it,to me,is--dcesn't
12 very upset. And even though we were working with ; 12 necessarily suggest that it would be disturbing or
13 Augusta's to get down to the 55 level,as close as we 13 annoying or that it wcwld be disturbing or annoying to a
14 could,in fact,we were still getting complaints � 14 reasonable person. 1 think there's a difference. 1
15 generated in the neighborhood. They were saying that : 15 mean,hearing it is one thing,and having it loud enough
16 they were still being disturbed on the nigt►ts that the ' 16 to be disturbing is anaher. What was your
17 outside amplified music was being played. � 1� impression--
18 So staff determined that we would go out 18 A Well--
19 into the areas,which you can see on the map the areas, � 19 Q --on ihe latter quesdon? 'R�at's really
2 0 and determine if the complaints have merit. And after : z 0 what was important
21 going out and determining what!saw in these differen[ : z 1 A Right. What I did is 1 thought about the
2 2 areas,1 ciecided to relate this infortnation to my � z z times over the years that I've talked to the residents
2 3 director. `: 2 3 in the area and how they described to me how they
2 4 Q Pointing out on the map,can you show the ; 2 4 couldn't sit out on their back patio and enjoy
2 5 Council which sites you personally made observations 2 5 themselves or that they feel they couldn't crack a
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1 from? 1 wirxbw open when the weather was nice without the music
2 A Yes. The red crosses or designations is 2 coming in every single weekend,Wednesclay.Thuisday.and
3 the areas where we had generally gotten the complaints � 3 Friday—Thursday,Friciay,and Saturclay,excuse me.
4 And myself,Shawn Kilpatrick,and Ryan Stendell--we ' 4 And I ttaught about this,and 1 placed myself in their
S went out while Officer Terfehr was monitoring to go out ; 5 shax. And 1 do not live in the area,but if 1 did live
6 and go to these areas and see if we can ascertain the i 6 in the area,and if I did experience it every Thursday,
7 music being played from the areas that they were 7 Friday.anci Saturday at the level 1 heard it,it would
8 complaining about. 8 distwb me. And based on my past experience in ciealing
9 Q Well,aside from ascertaining whether the 9 with this,it seemed well in line that the concems did
10 music was played,did you--did you seek to--did you l0 have merit.
11 try to evaluate whether or not if it was your residence � 11 Q 'R�e last page of this Exhibit G is another
12 at those pazticular sites,if that's where you lived or : 12 memo done from you. This one—the earlier one was
13 if that's where you were staying,if you would be ! 13 December,and this later one is March 19 of 2008. Do
14 annoyed or disturbed by the level of sound? Did you-- � 14 you see that?
15 was that part of your analysis? ; 15 A Yes.
16 A Yes. Yes. That was our intent. 16 Q And is all the infomration in that e-mail
17 Q What was your--just your personal,wha[ ' 17 accwate infortrration?
18 were your personal observations? How loud was the 18 A Yes.
19 music,and in what way did it impact you? Tell the ' 19 Q Ar►d one more thing,Mr.Ponder. In your
2 0 Council about your personal observations. � 2 0 experierxe,you describe having dealt with these kinds
21 A At first I was amazed that blocks away-- ; 21 of hearings,noise complaints,and hearings conceming
2 2 usually with code enfacement noise complaints,you ` z 2 observations of residents,whether they get hothercd by
2 3 maybe have one or two or three housetx>Ids involved in a z 3 noise. Sometimes,1'm imagining,noise cor�lainants may
2 4 very close proximity to a violation. But I was amazed z 4 be,however you describe it,kind of just peculiar folks
2 5 that once we arrived at these areas,that the music was 2 5 that are particularly sensitive or just get bothered by
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1 something,arx1,you know,so they call anci complain and ' 1 And our monitoring system shows on the
2 maybe even do that persistenUy. And other times they � 2 graph when something is done like that. So we can chart
3 might just be folks in the community,and you wouldn't 3 a big car went by,a diesel wck went by. Even an
4 have that observation. 4 airplane distorts that.
5 Is that a fair characteriration? 5 So on your readings,they are not accurate
6 A Yes,it is. 6 and cort�ct.
7 Q Not everybody who complains is necessarily 7 A Well,it is--
8 a reasonable person,1 guess,is the point;right? 8 Q 1'm not finished. Sorry.
9 A No,thaPs true. Based on our experience, 9 A Oh,I'm so►ry.
10 we go out,and we first determine if it exists,and l 0 Q Okay. That was one major concern that
11 based on the standards and how we've dealt with it with 11 we've been discussing with Code Enforcement for the last
12 court,working with the sheriffs department with ' 12 two or three months. But our readings are as close to
13 disturbing the peace,we have a pretty good idea of what i 13 55 as can possibly be with very litde up and down.
14 stands and what can be reasonable or not reasonable. i 14 Okay.
15 Q Have you reached your own--just in i 15 And then.Mr.Hart,are ycw--1 always
16 tertns of your personal analysis and your personal ' 16 call you Mr.Hart. Pm sorty. 1've always done that.
17 conclusions,have you reached any conclusions,in your 17 Are you the gentleman responsible for calling and saying
18 mind,about the reasonableness of the objections in this 18 that the music is offensive,abusive,public nuisance?
19 case,that is,Augusta's outdoor amplified music? 19 A I don't understand saying that. 1--all
2 0 A Yes. I believe that the reporting parties 2 0 my reports are in here and my viewpoints.
21 who I've talked to on the phone ancl the areas where they 21 Q Well,it's just a question.
2 2 live and what they've described to me is what I have � 2 2 A I don't recall ever couching anything that
2 3 found it to be in my personal experience,in a personal 2 3 way. 1 do use the term"public nuisance,"and I do use
24 and professional man►�er,and 1 feel that their 24 indusvy standard tertns to communicate certain things.
2 5 complaints do have merit and sornething to look at. 2 5 And I might have said this could pose a public nuisance
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1 MR.MUELL.ER: Thank you,Mr.Ponder. � 1 if the neighbors'complaints have merit. (remember
2 Questions? 2 making statements like that.
3 MS.ROBERGE: Yes,1 have questions for � 3 Q Where do you live,Mc Hart?
4 Mr.Ponder. 4 A I live in the area of Washington and
5 5 42nd Street.
6 EXAMINATIO[Y 6 Q Washington and 42nd. ls that Palm Desert?
7 BY MS.ROBERGE: 7 What town?
8 Q Mr.Ponder,let's discuss the decibel 8 A Council,1 feel my location,because of my
9 reading. We have asked the City to share with us all s 9 job,is really irreverent here. I ask that 1 not answer
10 their readings. And this was like pulling teeth,but we 10 where I live.
11 evenwally got it. And when the readings would come to '� 11 Q Well,['ll ask a different question.
12 us,we are talking averaging,the highs one weekend were ' 12 Is it really quiet where you live?
13 way off the chart. So I looked at them,and 1 said,We 13 A I--compared to the area behind your
14 need to t`ind out the reason for this. Because we also 14 thing,Pd have[o say yes.
15 have recording machines. ; 15 Q Well,I wasn't making that comparison. (
16 Arxl so we called down and spoke to,1 ' 16 was simply asking you if it was really quiet where you
17 believe it was,you. And the reason the high was so 17 live?
18 high was there was someone that had blown their horn. 18 A Yes. 1've never complained or offered
19 There were apparendy loud noises. So what Pm saying ; 19 a—
2 0 is it dcesn't�to be Augusta Restaurant's music that 2 0 Q Well,then you--well,I'm just asking a
21 throws that high up high. And if you take the 21 simple question.
2 2 average--because those highs were off the chart. If 2 2 A Okay.
2 3 you take the average,then the average of our decibel `; 2 3 Q If it's very quiet where you live,lhen
2 4 level is distoned. And we've had numerous ! 2 4 you may be—you choose to live there because you like
2 5 convenations with you about this. 2 5 it yuiet. You may not be the right person that's
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1 deciding how quiet that it is to live in,whether it's 1 conjunction there is. But three blocks away? 'Iliat--1
2 obwsive and offensive. Possibly you're not the right 2 have never ran into tha�
3 person to be making this dec:ision. And the other i 3 Q 1 have disageements with you about thrce
4 thing-- 4 blocks away.too.
5 A l do agree with you. 5 A Okay.
6 Q Well-- 6 Q But let's discuss how many little das you
7 A I do live in a residerttial zone,and 1 do ; � have on your map up there.
8 expect to have the quietness of a residential zone. You 8 A Okay.
9 are right. 9 Q 1 see seven. They've been the same seven
10 Q Thank you. l 0 little dots for how many years?
11 The other thing that we've always had a 11 A Yes,you're correct. It seems 7ike that
12 problem with,you and l,is when I ask you to check ': 12 general area has been affected the most
13 further on something,it's never done. 13 Q No,no,not general area, Ait the repcxts
14 A 1 don't know what you're talking about. 14 I have,one of them moved away. She went to The
15 Q Well,I've had many discussions with you, ; 15 Vintage. She thought it was too noisy--1 mean,went
16 "Please go inside their houses." Bec:ause I have. l ' 16 to Indian Wells. She thought The Vintage was too noisy,
17 cannot get you to cooperate with me on that. I've asked ; 17 so she moved to Rancho Mirage.
18 you,"Check with the other neighbors." Nada ' 18 So you have seven dots on your map. 'Riose
19 A I don't recall you making that request. 19 seven dots are the same seven dots that have always beer►
2 0 Q Okay. i 2 0 there. And the same when it comes to my report,we have
21 A But after being in the general area,1 21 analyzed all the infortnation you have given me.
2 2 felt there was no reason to go inside the house. ' 2 2 A Yeah,thaPs a good repat. That's why
2 3 Q So you're pretty much the gendeman that : 2 3 staff decided to make an investigation and go up to
2 4 gets to decide whether you should check it further, ' 2 4 these areas ar�d see if you can really hear it and see if
2 5 whether the noise is obtrusive,offensive,whether 1'm a � 2 5 what's happening is what they describe. And again,it
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1 public nuisance,and that bothers me. 1 is my current viewpoint that what they do--have
2 A No,ma'am,I don't have that power. 2 described and what they're experiencing every weekend
3 Q Wcll,how many times have you said--and , 3 while the outside music is going on can be heard and
4 it's in your memos--that you totally disagree that 4 audible there. And based on my past experience in
5 City--with City Council,they should never have given 5 enforcing noise disturbances,it more than qualifies for
6 that CUP permit? But Mr.Hart,that was enough-- 6 serious consideration in relationship to the rest of the
7 Mr.Ponder,that was enough to you to decide whether the ': 7 infortnation.
e City Council should or should not have given it. And 8 Q Serious consideration when they're living
9 if you go into making your decisions with the 9 so close to a commercial zone?
10 pre�ecided judgment,they're not--they're biased. : 10 A Well,1 let the 000d Council decide if
11 And this whole thing has been biased. ; 11 three blocks or more is reasonable. That's not my
12 A Well,1'd like to respond. That--my 12 decision.
13 current viewpoint,which 1 stated as such,was done 13 Q I also have done readings three blocks or
14 after 1 went to the residence area and 1 observed the �i 14 more away,and we--their ordinance is 45 decibels.
15 noise coming from the different areas from no less than , 15 AIt our rcadings don't show the noise levei at 45
16 three blocks away. And yes,it is my opinion,based on ' 16 decibels.
17 what 1've heard and whaPs been going on,that next to a � 17 A You bring up a good point. And that's one
18 residential area,outside amplified music is not � 18 of the challenges of using a meter. Sometimes a meter
19 compatible based on what I've seen on this case. And � 19 dces not represent or can capture all the essence of
2 0 that is my cu►rent viewpoint,yes. � 2 0 sound in an area. TTiat's why our zoning ordinance
21 Q Well,you know.1 live in a commencial 21 relies on a state sound ordinance that has o idelines
2 2 area. If you want to live by a commercial area because ; 2 2 that we can use.
2 3 you love the beautiful street of EI Paseo,then there i 23 But she is correcL You can't rely on a
2 4 are some drawbacks with that. So,you know-- ' 2 4 meter consistently in all situations. Meters can be
2 5 A I understand that. I know in close 2 S used a lot for a noisy pool pump. It can be used a lot
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1 For stationary noise surfaces. It's very difficult with 1 to Jo? fm just doing a synopsis of it.
2 sound because you have a base range and a high rate. 2 A To understand,though,who sent the e-mail
3 We're using the--and she's right,when you go three 3 and when? 1 Jon't recall anything.
4 blocks away,you won't get a bad meter reading. But 4 Q Well,okay,1'll take you back there.
5 it's stiil auJible,and you can still hear it. 5 A Okay.
6 I'm no sounJ engineer,but 1 have been 6 Q 1 was getting--my attomey and us were
7 through the theories of training in the sound anci 7 all getting e-mails going back and forth. And your
8 recording,and the only thing 1 could figure out is you 8 attomey accidentally sent an e-mail to my attaney.
9 almost have a natural amphitheater up there. 9 And ihen he quickly sent it on ro me. In that e-mail it
l0 It slopes up. It climbs up. We never receive 10 said that you were very uncomfortable that we might get
11 complaints across I 11. We never receive it going north. 11 cwr noise level down to 55 or below and Ihen what are
12 But because of the natural scope,it's just amazing to ; 12 you going to do?
13 go over here on a clear night and hear the rtnuic. � 13 So that says everything to us:that you
14 So... ' 14 had no intentions of working with us. If you have
15 Q Mc Hart--Mr.Ponder,has the 15 intentions to working with us,you would have said,
16 improvemen�s we made since November seriously cut down 16 whoa,lhey're getting it down to 55 and maybe below,and
17 che noise level in your opinion? 17 then went to check and see how the sound level was with
18 A The noise level readings—she has been ` 18 the people that have complained in the neighborhood.
19 diligent in using different mechanisms to dampen it. ' 19 'llie Planning Commission meeting was the next day. You
2 0 She has been. We've been out a bt,and we've worked 2 0 didn't even bothcY to go check and see what the noise
21 through different things. And that's what sort of 21 level was after 55. Yw had programmed your mind so
2 2 amvxs us is that as she got it closer and cbser ro,at 2 2 much that we are closing this restaurant down.
2 3 least,the target,the noise ccxnplaints were still being 2 3 A I don't recall--you didn't state who
2 4 generated. And thaPs when wr decided to go into the ' 2 4 sent the e-mai!or what was going on,but!do recal!
2 5 communiry. 2 5 this in my mind. We were getting down to a target.
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1 MR.FERCUSON: Mr.Mueller,are we albwecl to ask ' 1 She did lower it,but we were still
2 questions'? 2 getting complaints from the neighbors.
3 MR.MUELLER: Absolutely. 1 think that 3 Q Mr.Ponder--
4 �x�oceclurally,once Ms.Roberge has finished,twt 4 A L.et me answer.
5 frankly,it could be at any time. And I would invite 5 Q Sorry. IYo. no.
6 ycw,actually,any time you have questions of Council to 6 A Let me answer.
7 go ahead and jump in. 7 Q No. No. wai�
8 Because there is an opportunity to ask any 8 MR.MUELIFR: F�ccuse me. I need to object. You
9 yuestions of these witnesses,you know,while they're at 9 can ask him a question,but you do need to let him
10 the pcxlium. ' 10 answer the question,Ms.Roberge. 1 mean,it's--the
11 MR.FERGUSON: 171 wait until Ms.Roberge 11 court reporter will not be able to take down everybody
12 finishes. And 1 don't mean to interject a bt,but we I 12 talking over each other.
13 are talking about,if I'm to believe what 1've been " 13 MS.ROBERGE: Okay.
14 given by Ms.Roberge,taking somebodys business away, ! 14 MR.MUELL,ER: And so in faimess,you can ask him
15 which 1 take to be pretty serious. So 1'm going to ; 15 the question.
16 have,probably,quite a few questions. But I want you 16 MS.ROBERGE: 1'm with you.
17 to have every right to ask yaus first. 17 MR.MUELIER: And you can have an oppatuniry to
18 BY MS.ROBBRGE: 18 answer,and you can ask another question.
19 Q Well,1 just have one finishing big 19 THE WI'fNESS: Myway,in context,that's very
2 0 questicxi. By accident,anJ thank God,we received an ; 2 0 realistic. Staff,by no means.wants[o go and rush and
21 e-mail that litetally just almost made me sick because( i 21 do something to a business that they feel harmful. We
2 2 had decideci to really work hard with the City Code 2 2 realize our administerial duties ancl what we have to do.
2 3 Enforcemcnt and everybody to get this music down. And I 2 3 I've been to Augusta's. I understand that
24 should have dcxie it earlier,no question. But through 24 iPs a great place. But my worty was/is we wete
2 5 this e-mail that I received,it said,What are we going 2 5 reaching the target,and we were focused on,but we were
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1 still getting noise complaints. The Sheriffs were still 1 generated. And 1 think that is the context of that,not
2 getting calls. fYeighbors were calling up and saying, 2 seeing the e-mail.
3 "It's still loud." And in that context,you're right,1 3 Q Well,we don't need to beat a dead horse.
4 was worried. Whai are we going to do next if we hit 55, 4 1 disagree with you.
5 but we still have a goodly number of residents still 5 Q Okay.
6 complaining,thinking it's a problem? 6 MR.MUELLER: Any cxher questions for Mr.Ponder'?
7 fVow,I don't know the exact time frame of 7 MR.FERGUSON: Yes,1 have—if nobody eLse
8 when it happened,but we all ag�eeJ that the least we e does,1 have a few.
9 could do is go out there,go to thcse areas,and see for 9 MR.KELLY: When you get through,1'll ask some.
10 ourselves what's going on. So that would be the context 10
11 1'd take it in. ; 11 '
12 BY MS.ROBERGE: � 12 EXAMINATION
13 Q Mr.Hart,let me help--Mr.Ponder,let 13 BY MR.FERGUSON:
14 me help you with the time frame. Okay? This e-mail was ; 14 Q Focusing cxi page 0125,your memorandum of
15 sent the day before the Planning Commission. And in the : 15 December 21 st,2007,in your first sentence you say,"1
16 e-mail you said,"'They're going to get it down to 55 a' 16 can't believe what you can hear playing blocks away,
17 below. What are we going to do'? How should we deal ' 17 despite what the DB numbers are. The RPs are correct,
18 with this presentation to Planning Commission?" 18 and 1 would be pissed off if 1 lived thea."
19 A 1 haci never wrote an e-mail that said � 19 Is that accurate? Did you say that?
2 0 that. And I would like to see it,please, 2 0 A 1 did.
21 Q Well-- 21 Q Okay. 'it►at was dated December 21 st,2007;
2 2 A I have not written any type of e-mail that � 2 2 correct?
2 3 ever said that. ; 2 3 A Yes.
2 9 MS.AYLAIAN: That was my e-mail. 2 4 Q If you tum to Exhibit E for December of
2 5 MS.ROBERGE: Well,your e-mail of what 2 5 2007--
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1 Mr.Ponder said to you. Well,IeCs have the e-mail. 1 1 MR.MUELLER: Ezhibit E?
2 didn't bring it. It's not in the-- 2 BY MR.FERGUSON:
3 MS.AYLAIAN: If it's appropriate.1 can answer 3 Q --page 0032,this is a rcpon generated
4 these questions since I am the author of the e-mail. 4 the day before you wrote that mertw that shows the--and
5 MS.ROBERGE: Well--bu[I don't want-- 5 we re asked to use the 60-minute intervals,not the
6 MR.MUELL,ER: I'd say this-- 6 10-minute irttervals,but the 60-minute interval of the
7 MS.ROBERGE: 1 don't want my point to be lost. 7 average noise level at Augusta was 53 decibels. So
e Q My point--the only point that 1'm uying 8 while she was in compliance by at least two decibels,
9 to make here is atter we've got the sound up to 55,you 9 you're saying you were pissed off. Pm just quoting.
10 did not go out to see if there were any complaints. You 10 A Yeah. To put that e-mail in context--
11 direcdy took it right to Planning without checking. 11 Q And by the way,let me just make a quick
12 Maybe this works at 55. Maybe it has to be a Iitde ' 12 statement. 'Ihis is not a popularity contest. This is a
13 lower. It was--it just proves that you were so intent 13 semi-adjudicatory process that dces have legal
14 on shutting the music down at Augusta,you and the other ` 14 ramifications. There is a record. I am going to ask
15 officers weren't working wich us. 15 questions that 1 see,whether they're tough for you or
16 A Our goal was--our only inswctions were 16 tough for Ms.Roberge. It makes no difference to me.
17 to record and repon the inforniation. And when we 17 A I appeciate that.
18 noticed tha4 as you started to work with it going down. 18 Q 1 view my role very seriously. I do see
19 we were still getting complaints. We didn't go out 19 an inconsistency here. I'm just simply asking you about
2 0 there and look for them And phone calls were still 2 0 it.
21 coming in. So we had two scts of infor►nation that we � 21 A Sure. By explanation,on the"pissed
2 2 were dealing with. And Cm sure thaPs the context of ' 2 2 off,"1 should have used quotation marks because I had a
23 whcever wrote that e-mail that you're talking about is 2 3 resident call in and literally screamed at me saying
2 4 that we have--one hand,we're vying to get to a ' 2 4 they were pissed off,pissed off. And they didn't use
2 5 carget,but another hand,we're still getting complaints 2 5 a--they dicin't give me their name. They just hung up
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1 on me. And what I was doing is 1 related that 1 capturing the impact and effect that it's having several
2 information that we got another bad one. And not 2 blocks away.
3 knowing that this was going to actually go in the real ' 3
4 record,this was just a communicatioato my superior 4 EXAMINATION
5 following up on that conversation. 5 BY MR.SPIEGEL:
6 Q Well, I don't mind your-- 6 Q My question--two quick ones. One,was
7 A Okay. ' 7 Ms.Roberge notified from the beginning that we were
8 Q Well, we can quibble about your use of the 8 doing a monitoring of her sound level?
9 language,but that's not my problem. 9 A Well,I was not at the decision-making
10 A But 1 was. 1 said I would be pissed off 10 proc:ess on how it would be recorded or done,so I don't
11 too. 11 have personal infortnation to know how--why Code was
12 Q My problem is your reaction seems to be 12 ordered or for what duration. (just wasn't in those
13 rather vehement given that she was in compliance under, : 13 meecings.
14 at least,the objective section of our code. 14 We were approached and said we need
15 A Council Member Ferguson,I agree. It was � 15 monitoring,and then we provided that.
16 baffling that she was in substantial compliance with the ' 16 Q Was the Planning Department at about the
17 noise,but in the residential area blocks away ycw're 17 same time reviewing the noise ordinance with any
18 still receiving the noise. 18 interested business in the ciry to try to come up with
19 Q Okay. 19 one that we felt was appropriate?
2 0 A I agree. ' 2 0 A 1 have--I know 1 can only think of
21 Q Okay. Then going to paragaph 2 of that 21 passing comments and desires on certain things that they
2 2 same memo of December 21 st,second sentence--and t'm ' 2 2 were working with on a lot of levels. Because we do
2 3 quoting--"1 would declare that no subjective sound 2 3 have a noise ordinance element in the Ciry general plan.
2 4 measurements can be achieved." 2 4 And 1 know a lot of decisions have to be based on noise.
2 5 What did you mean by that? 2 5 But 1'm not--I don't have personal infonnation,
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1 A Yes. What I mean by that is certain types 1 really,specifically.
2 of sounds you can objectively use. Usually a pool pump, ; 2 MR.SPIEGEL: Thank you.
3 usually a stationary raise,sounds--a sound meter 3
4 works very well. But when you talk about music,which ; 4 EXAMINATION
5 can continuously wave up and on,or a party or a loud or ': 5 BY MR.KELLY:
6 drinking,when officers go out for disturbing the peace. � 6 Q Yes. Mr.Ponder,in your ezperience as a
7 they don't use a sound meter. It's the reasonable mad � 7 code enforcement officer,you get lots of complaints.
e theory and what they feel based on the thing. And 1 was ' 8 That's your business. And what percentage of complaints
9 stumped that-- and based on my experience,that this is 9 would you say you get are legitimate?
10 a situa[ion,in my own personal opinion,where a sound ; l 0 A Oh,1 would say probably--I would say
11 meter isn't accurately recording and representing the � 11 the vast majority,over 90 percent of citizens who call
12 impact it's having in the neighborhood. 12 usually has some level of inerit to their complaints. So
13 Q And I guess where 1'm stumped--and this 13 1'd say the vast majority at least.
14 is my last question. And maybe iYs for the city 14 Q Vast majority? Like percentages? Well,
15 attorney. But at the Ixginning 1 asked--.030.1 was ; 15 1'll accept a ballpark figure.
16 told,was an objective standard,and Ms.Roberge,at 16 A 1 would say at least 98 or 99 percent of
17 least on December 20th,was two points below that 17 the time. Sometimes we do come in,and if we see a
18 objective standard. And.040 is a subjective standard, i 18 neighbor dispute,we apply the law and the ordinance.
19 and your e-mail says that's not attainable. ' 19 And then our job is not to get involved in the neighbor
2 0 A Mr.Ferguson,yes,based on my experience, ' 2 0 dispute,but to determine if there is a violation or
21 she has complied on certain nights,but yet the noise-- ' 21 not.
2 2 Q This was for the month of December. i 2 2 Q But you'd say 98 or 99 percent of all the
2 3 A Right. RighG 2 3 code violations that are reponed to you are legitimate,
2 9 Q Okay. ; 2 4 so that would tell us probably at least 90 percent of
2 5 A So you're correct. The meter is not 2 5 those are legitimate?
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1 A Well,yes. And actually,in my mind,it's ; 1 EXAMINATIOIY
2 100 percent after going cwt there and actually going 2 BY MS.ROBERGE:
3 several blocks away and seeing it and disturbed that the 3 Q Mr.Hart--Ponder,this was written on
4 noise level is down somewhat through a meter. 4 December the 21 st,and you say that at that time there
5 MR.KELLY: Thank you. 5 waz no subjective sound measurement can be achieved--
6 6 that's a pretty blunt statement—and that staff and
7 EXAMINATION 7 the residents are comect that the sound gerterated is a
e BY MR.MUELLER: 8 public nuisance.
9 Q A couple of just very small follow-ups? 9 If you felt that way and knew that at that
10 A Sure. ; 10 time,why did you albw me to go on spending more maiey
11 Q 1 think sometimes the words"objective" ' 11 when you had already decided that if I g'ot the decibel
12 and"subjective"readings,it gets confusing to me,and 12 level down,you were still going to declare us a public
13 maybe to a lot of people. I want to go to ycwr memo of ; 13 nuisance? Why would you not come to me at that time and
14 the 21 st and make sure we're talking about apples ar►d ' 14 share this?
15 apples here as we reread your memo. '. 15 A Well,let me say this: My role as the
16 A Okay. ' 16 code enforcement manager is to take a situation,give an
17 Q When you--ancl Mr.Ferguson pointed � 17 observation,and give my current viewpoint. In this
18 out--and this is page 125-- 18 case,1 waz not the one making the decisiort,but 1 did
19 A Okay. ! 19 give what my experience was and what I Felt waz going
2 0 Q --That you said that"1 would declare 2 0 on. And though 1 wasn't in modt of the meetings on the
21 that no subjective sound measurement can be achieved." 21 arrangements on what was going on or what you should
2 2 That statement,did you mean to say that you were of the i 2 2 spend,l was na--I was not involved in that. But 1
2 3 opinion that relying on the meter wasn't a valid way to 2 3 would like ro state that at one time your usistant did
2 4 go or relying on the opinions of neighbors was not a ' 2 4 call,and 1 did give her--shortly aftu this,I did
2 5 valid way to go? ' 2 5 give her the same impression as I did my director.
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1 A It seented that relying on the noise meter 1 Q Irrq�nession--that's very subjective when
2 was not a valid way to go based on the complaints. 2 you knew black and white on the 21 st that you had no
3 Q And that was because the meter said low, 3 intentions o(working with us because you did not
4 and the complaints were still high? 4 believe that it would do any good for us to get into
5 A Correct. 5 compliance. All you had to do was shaze that with us.
6 Q And thaCs what you were saying in this 6 (f we'rti supposed to be working with you az the City,
7 e-mail? 7 then we deserve to Irnow that.
8 A Yes,sir. 8 A Well,then--
9 And also,for the record,1'd like to 9 Q No. 1'm not quite finished.
10 state that we did worlc with Denise s staff. We would �i l 0 A Okay.
11 share information. We couldn't share it right on tt►e ; 11 Q We deserve to know that. So then it was
12 spot because it has to go through a computer and a ; 12 our decision as to whether we wanted to spend more money
13 software program But we were--Lauri gave orders to 13 and more money on a moving target that would never
�
14 cooperate fully. And as soon as we got these numbers, � 14 satisfy you.
15 we transmitted them to Denise Roberge's staff. And even ; 15 A 1 wouki like to state that we did share
16 during the times it was metering we'd share things or 16 our readings with you.
17 even give helpful hints. ' 17 Q No,no. I'm talking about the"no
18 One time they were metering off the caz, : 18 subjective samd measure can be achieved."
19 and just because of the vibrations and stuff,we gave � 19 A When 1 communicated this to lauri,this
2 0 the helpful hint that it should be on a more sturdy 2 0 was in a time,as I remember,where we were rreeting with
21 projector,like a tripod,if they really wanted accurate 21 your staff. And 1 Jid give my recomrt�endation and
2 2 inforniation. So we were cooperating with[hem as best ; 2 2 opinion at that point reganiing what 1 felt. But
2 3 as we could. � 2 3 remember something,pkase,is that my director gets
2 4 MR.MUELLER: Thank you,Mr.Ponder. � 24 many opinions and observatioos on many different cases,
2 5 /// 2 5 and mine is just one based on my experience. And 1 do
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1 stand behind it. And I did see my director meet with 1 MR.MUELI.ER: Thank you.
2 Denise and/or her staff constantly,sharing the 2 Mr.Stendell.
3 information,trying to work to get it to a level. But 3 'ihank you.Mr.Ponder.
4 when the complainu continued,and we went cw[there and . 4 MR.PONDER: Thank you.
5 we saw that it was blocks away,we realiz�d that ihe 5
6 meter reading of 55 wcwld not be a panacea to the 6 RYAN B.STENDELl.,
7 communiry in that area as far as!could see. 7 called as a witness exi behalf of the City,
8 MR.MUELLER: Madam Mayor,could 1 interject 8 was examined anJ testified u follows:
9 something'? 9
10 And let me just tell you in terms of an ` I0 THE WtTNESS: Good aftemoa►,Madam Ma}ror,and
11 outline of what we have to do today. 1 have 14 ' 11 Ciry Council. �
12 witnesses I'm going to caU. If we debate 1he entire 12
13 case with every witr►ess,instead of getting whatever ; 13 EXAMINATION
14 factual information we need to get from them,we will be 14 BY MR.MUELLER:
15 here on my side of the case 28 hours. And I don't think 15 Q And your full name for the record,sir.
16 any of us want to be here that long. And none of us 16 A Full name is Ryan Bergquist Stendell.
17 will make it even a third of tha�in Uvth. ' 17 Q Your position with the City'?
18 So what I'm going to Uy to do is make 18 A 1'm an associate planner.
19 sure 1 rein myself in to getting the important Facts 19 Q Mc Stendell,you assisted in compiling
2 0 from cxv wimesses,answering--making sure you have an 2 0 the clocuments that are in front of us in the binder;
21 opportuniry,Ms.Rotx:rge or the Council,to get 21 ccxrect?
2 2 additional facts from them,but at least 1 would suggest '. 2 2 A Conect.
2 3 that if we make it a one-on-0ne debate between ` 2 3 Q 1'm going to—I'm nol going to helabor
24 Ms.Roberge and each wimess about the whol�merits of 24 this. 1 had thought about having you kind of walk us
2 5 the situation,we'll get bogged down. We neeci to get � 2 5 through some of the different collections of documents.
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1 the facts out. 1 You heard my description of the different categories of
2 MS.ROBERGE: Mr.Mueller,1 dcxit have any-- 2 documents that we have before us in the binder here.
3 I'm not going to debate all the people. 1'm debating 3 Anything strike you as being missing in that
4 the code enforcement and debating that hard because 4 ckscriptia►7 Anything else that the Council nceds to
5 therein lies my case. It was a deceptive start--1 5 know about the material themselves that are here in
6 mean,excuse me,the City was very deceptive with me 6 front of us'?
7 from the very beginning. And thaPs why 1 have a lot of 7 A No. We have several cases on this. 'ihis
e questions for Mr.Hart,simply lxcause the Code 8 is the code action. 'iliere was the aiginal CUP fa the
9 Enforcement did na work with me with any degee of 9 res�aurant and the buildings,anJ this is a complete--
10 honesry that they were trying to help me solve this 10 as complete of a repmt as we can get on the music
11 problem. So 1'm not here to question everybody that 11 issues that we've had at Augusta's Restaurant.
12 comes up. Mr. Ponder was my main gendeman that I 12 Q In Exhibit E,there are meter readings
13 wanted to get some correc:t answers from. 13 For--on a month-by-month basis,and sort�e of those were
14 MR.MUELI.ER: WouW you prefer we try to call one '. 14 actually taken by you and some reports were given by you
15 more witness before taking a break'> It's 10 minutes to 15 conceming meter readings;camct?
16 noon. It is going to be another staff person. [ 16 A 1 never did meter readings. 1'm a
17 anticipate calling Ryan Stendell. What would your 17 planner. I am not an expert on using the sound metets.
18 preFerence be? 18 However,I did participate in several reasonable man
19 MR.SPIEGEL: How long do you anticipate 19 studies.
2 0 Ryan Stendell will be there? ' 2 0 Q 1 apologize. I misstated thaG
21 MR.MUE[1.ER: 1'll ask him five minutes of 21 'ilie reawnable man studies are in
2 2 questions. 1 was planning on ten,but I'm going to cut ` 2 2 Exhibit G. And you actually did a memo to Hart Ponder
2 3 everything in half from here on. 1'm going to go with 2 3 at page 127,a memoranJum regarrling your observadons;
24 five. I 24 correct?
2 5 MR.SPIEGEL• Let's go with Ryan. ' 2 5 A Ccxrect.
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1 Q Those were taken on a night when meter 1 especially when they're next to residential zones.
2 readings were being taken,but you weren't taking the 2 1 just believe it's just been a simple
3 readings;is that correct? 3 error in juJgment. We can't expect outdoor amplified
4 A Correct. 4 music to be a compatible use nezt to an existing single
5 Q And looking at pages 127 and 128,that's a 5 family zone. And that has been my experience throughout
6 memo,is it not,from you to Lauri Aylaian-- 6 this visiting diffe�ent occasions.
7 A Yes. 7 1've uied to make--my assertion is
e Q --describing your observations;correcC? 8 if--1 feel like 1'm a pretty reasonable persa►--if I
9 A It absolutely is. 9 lived here,and 1 won't use as svong words as ahers,
10 Q Everything in this memo accurate? 10 but that I would be very upset if I,on occasions,heard
11 A Yes. 11 what 1've heard when Pve been out there.
12 Q Now,putting the memo aside,tell me what 12 Q Well,let me ask you,first of all,I
13 happened that night. Why did you go out there? What � 13 mean,do you have an aversion to? Are you against rock
14 was your mind-set? And then what did you see'? What did ; 14 and roll? Are you against loud music? I mean,are you
15 you experience? � 15 one of those peop�that just doesn't--you know,it
16 A 1'll be as brief as I can. The--when : 16 bugs you?
17 the potential came up in the Planning Department for i 17 A No. In fact,my previous director had a
18 there to be a modification hearing of the CUP and the 18 saying that 1'll be the best friend you've ever had.
19 case was assigneci to me,I asked right fmm the get-go 19 fll be the first to sometimes ag�ee that we need more
2 0 if there were reasonable man surveys done,that I'd be ' 2 0 entertainment in this town. There isn't a bt of it.
21 includeci in them if 1 was going to be the person writing , 21 However--and when 1 first took on the case,1 was kind
22 these reports on any revocation modification hearing. 22 of thinking,well,hopefully it's rrot that bad because
2 3 At that time there was--because it's ; 2 3 it would be nice to keep that
2 4 typical that we would have the planner simply take data i 2 4 The very first night that we went out
2 5 from the code compliance department,analyze it,and 2 5 there,1 was sad--I was very shockeci at what 1 heard.
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1 interpret it,and change it into a report. In this case 1 (was--that the residents have to put up with what
2 I felt that it was imperative to make sure that 1 was 2 they re having to put up with. On the other hand 1
3 included. IVeither Mr.Ponder,nor Ms.Aylaian,my 3 understand that they have a very,you know,wfiat
4 director,had a problem with that,and 1 was allowed to 4 probably is a very fun atmosphere. It's kind of sad to
5 include myself,on several occasions,with the Code 5 see actually.
6 Enforcement officers monitoring--we picked four of the ! 6 Q In your personal opinion,if it was you
7 locations closest--1'll point to them briefly. 7 that lived in the locations that you visited,the four
8 Q Please,Ex�int to them on the map. 8 locations that you described,would you,in the words of
9 A This loc:ation,this location,this 9 the ordinance,be disturbed? Would you have been
10 location,and this location(indicating),the four 10 Jisturbed or annoyed by the noise on those evenings that
11 locations that we used as our four bases for our � 11 you heard?
12 reasonable man surveys. 1 don't recall which direction � 12 A Absolutely. And it's mostly the
13 we went that evening,but each different direction-- 13 frequency. If 1 had to put up with it'It�ursday.Friday.
14 each different location has its own characteristics. 14 and Saturday night,week in,wcek out,absolutely,1
15 Some worse than others. 15 would be. 1'm okay with a neighbor having an occasional
16 1've been out there on some nights where, ` 16 party. I'm okay with a sporadic,you know,noise,but
17 as a reasonable person,I don't feel it's an issue. On 17 every--the frequency of music would definitely diswrb
18 the bulk of the nights,typically Fridays,arx!Saturdays I S and annoy me as a resident of one of those homes.
19 especially,are the worst nights,and that's when 1 19 MR.MUELLER: Thank you.
2 0 would hear the most of the music. But again,we get to ' 2 0 Questions.Ms.Roberge?
21 the point at the end of all of my memos that 1've 21
22 written,that 1 just come back to the conclusion that I 22 EXAMINATION
2 3 think that,you know,as a city and a planning 2 3 BY MS.ROBERGE:
2 4 departmen4 we don't have a lot of experierx:e ganting 2 4 Q Ryan,how many times did you go out?
2 5 Corxlitional Use Permits for amplified outdoor music ' 2 5 A 1 tselieve we've documented four.
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1 Q No,you,you personally. 1 souncl consultants,that you have had,in every attempt,
2 A Myself? i 2 to try and move curtains here,movc panels there,and
3 Q Yes. ` 3 still go out and check,one,the metering,and,two,the
4 A 1 believe--well.I've been cwt there 4 reasonable man. And as Mc Ponder pointed cwt,as we
5 several times on my own,which I have never daumented. 5 started coming down to honing in on that 55,we still
6 but just to listen to see how things were going. � 6 realized that,hey,there's still a pretry decent
7 Q Can you just give me a rough iJea of how 7 problem out there. Ytw're still hearing this music.
8 many times? 8 We'r•e still able to discem exactly what the song is
9 A I've been out there probably between eight 9 once 1 step outside of the car and listen for,you know,
10 and a dozen times. 10 five seconds.
11 Q Have you ever t�een in any of their homes � 11 And that speaks to--you know,my point
12 to see-- ' 12 of reasonable is 1 feel like if it were just a very
13 A No. ; 13 faint sound,1 wouldn't,probably,have a problem with
14 Q --ro see if you coulJ hear it? ' 14 it. But 1've heard it very loud,to the point where
15 A No. ' 15 upon exiting the car you can pick up the sound and then '
16 Q Wouldn't that change your opinion if-- 16 pick up the song. And i find that if I were--1 mean,
17 just a minute. 17 !find that Io be--if 1 were that neighbor,to be
18 A Sure. : 18 pretry offensive.
19 Q Who gces out after 10 oclock at night in i 19 Q So you're saying that once we got it down
2 0 the winter? A�d I really am shocked you haven't been 2 0 to 55,that you're still having--and you can hear it
21 into one of their homes with surh adamant c�pinions on 21 loud and clear?
2 2 how terrible the noise is;that that wouldn't have been ` 2 2 A Absolutely. 1've been out on nights--
2 3 something you wcwld have researched? 2 3 Q Well,you know,we've monitored the same
2 4 A 1 occasiortally will br out on my patio ' 2 4 locations,at the same time as you,arxi we have
2 5 past 10:00,and I know there are lots of people in the ; 2 5 different results.
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1 area that are. 1 have stood right next to sliding glass , 1 A Monitored with your sound meter a
2 windows where if 1 were trying to sit there and watch TV ' 2 monitcxed just--
3 or if 1 were trying to sit there and read a book or even 3 Q Bcxh.
4 go to sleep,1 fee!like t could make the reasortable 9 A --standing and listening?
5 assumption that standing right there versus just on the 5 Q Both.
6 inside of that,that 1 could-- 6 A Okay. Our reca�ds clearly states what
7 Q Oh,so►ry,yai re outside. 1 mean,1 take ' 7 our--what we have seen at every one of those locaticx►s
e objection to that assumption. Because my question to e at every time we've been there. And that's what we have
9 you was,Have you ever been in one of the homes arxl 9 presented to the City Council this evening--this
10 heazd the music? 10 aftemoon.
11 A No,1've never been in one of the homes. ; 11 Q So that's you that's also makeng the
12 Q Because you can't. And I know that And ; 12 reasonable--you're the man thaCs making the
13 so what 1'm saying is--and you say people are sitting 13 reasonable opinion that the music is offensive and
14 out on their patio at 10 o'clock at night? 14 abusive and we're a public nuisance?
15 A It's not unheard of. 15 A I'm part of City staff,which is a number
16 Q Well,you know,nothing is unheazd of in 16 of diFferent people that have made that reasonable.
17 the winter. But to make such a profound statement on ` 17 Q Well--
18 not able to answer those two questions,in my opinion, 18 MR.FERGUSON: Mr.Stenckll,can 1 ask you a
19 it dcesn't hold much merit. What it does show is that 19 quick question?
2 0 you did rx�t have intentions on really solving the 2 0 THE WITNESS: Yes. Sure thing.
21 problem or seeing just how bad it really was before you ' 21 MR.FERGUSON: 1 krx�w it is noon.
2 2 voiced your opinion. ' 2 2 MAYOR BENSON: Can we tinish with Denise firs�
2 3 A 1 will answer that we have made evcry-- ` 2 3 Jim.Council Ferguson?
24 we've worked through every hearing that we've had up to : 24 MR.FERGUSON: 1'm sary,1 thought you were
2 5 the date of the hearings wi[h Tiffany and with ycwr 2 5 Jone.
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1 MR.ROBERGE: No. You know,because 1 don't 1 MR.FERGUSON: I:OS.
2 consider that's reasonable if you haven't been in the 2 MAYOR BENSON: I:05. She wants an hour.
3 house. 3 MR.MUELI.ER: 1 wou{d suggest I:IS,a liule more
4 MR.KEL,LY: She's not asking questions. She's 4 than an hour,just to make sure we can all get back
5 making statements. 5 here.
6 MS.ROBERGE: What? 6 MR.FERGUSON: Does it go faster from hrre?
7 MR.KEU.Y: Shes making statements. 7 MR.MUEL.L.ER: Well,you Imow,Councilman
8 MR.FERGUSON: Are you finished? 8 Ferguson.I will do my best.
9 MS.ROBERGE: Yes. � 9 MR.FERGUSON: Okay.
10 MR.FERGUSON: Okay. 1 apologiu if ycw weredt. ' 10 MR.MUELLER: 1 think the sbwest thing was going
11 1 didn't mean to cut you off. 11 through the documents. But honesUy,depending on the
12 12 level of debate with each witness,1 think these can be
13 13 ten-minute witnesses.
14 EXAMINATION 14 MR.FERGUSON: Okay.
15 BY MR.FERGUSON: 15 (Lunch recess was taken from
16 Q What 1'm reading from your report,and I'm ` 16 12:03 p.m.until I:16 p.m.)
17 at the top of the line on page 128--is that"In 17 MAYOR BENSON: I'll call to order the aftertwon
18 previous reports we have concluded that 52 decibels 18 session of Palm Desert City Council for Thwsday,
19 creates a diswrbance." Is that your report? ' 19 May ISth.
20 A ThaPs my report,yeah. 20 MR.ERWIN: Madam Mayor,and members of the
21 Q So it seems implicit to me,plus with your 21 Council,1'd like to reiterate the proc;ess that we are
2 2 recommendation,the very last sentence,that,perhaps, � 2 2 doing here.
2 3 the decibel levels ought to be 55 before 10:00 and 45 ; 2 3 Witnesses are being called,they're being
2 4 after? ' 2 4 asked questions,anci they're requested to answer the
2 5 A Absolutely. 2 5 questions. It is not a place for Jebate. I woulJ ask
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1 Q 7Tiat you,in terrns of our two ordinances, 1 any party that is raising questionc not to debate it
2 the objective and the subjective,that the objective 2 with the witnevs,but atik a que..tion. And I would
3 isn't doing anything to help these neighbors.and the 3 instruct the witnesre�that they're to answer the
4 subjective is probably where our problem lies,the— 4 question that i�atiked. With that proceeding,which is
5 excuse me--the Jiscomfort and annoyance? 5 the normal proce`�of thi�procrxding,1 think it will
6 A Absolutely. The decibel levels is a shot 6 move wmewhat quicker. Both�id�will have an
7 in Ihe dark,as we've kind of gone through over the last 7 opportunity to pre�nt anything to the Council that they
8 four years. I think the best handle we've gotten out of 8 fc�el i.relevant and appropriate at the appropriate
9 it is just going out and simply listening,what is the 9 time.
10 impact to these neighbors? 10 MAYOR BENSON: Okay. Do you want[o proceed with
11 Q "R�ank you. ' 11 your witnrsses.Mr.Mueller?
12 A (n this case,absolutely. ` 12 MR.MUELLER: Thank you. At this time 1 call
13 MAYOR BENSON: Does Council have any other � 13 Charles Hazard forward.
14 questions of Ryan? Okay. 14 MS.ROBERGE: Excu�e me,I have one more que�tion
15 MR.MUELI.ER: Thank you,Mr.Stendell. � 15 for the lau�peaker.Ryan.
16 THE WfTNESS: Thank you. ' 16 MR.MUEL.L.ER: Mr.Stendell. I don't have a
17 MAYOR BENSON: Now,how long are we recessing � 17 problem with rerelling Mr.Stendell.
18 for? 18 MR.S'i'ENDELL: Absolutely.
19 MR.ERWtN: ThaPs the Council's pleasure. 1 19
2 0 would usume that Council would take a break and � 2 0 RYAN B.STEIVDELL.
21 reconvene at either I:I S or I:30. It's your choice. 21 having been rrcalled a�a witn�s
2 2 MAYOR BENSON: And I believe the clerk wanted an 2 2 on behalf of the city.
23 hour,so I:IS then. i 23 wa�examfned and testified a�follows:
24 MR.ERWIN: That'sfine. ' 24 ///
2 S MAYOR 66NSON: Oh,it's I --excuse me. i z 5 ///
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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 geen Augusta's RestauranC?
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 individual's houses thaYs on the map. And!'m 5 Q Okay. A IitUe 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 1'll tell you,sir,I don't have
9 don't live on Fairway Drive. 9 specific yuestions for you,but 1'm interested in a
10 Q Where'? l0 couple of things. One,you came here,obviously,to
11 A Excuse me? ' 11 have something to say,but in terms of kinJ of a
12 Q Where? 12 specific orientation,the real question,as it relates
13 A 1 live on the north side of I I I. 1 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 1'm really sorry. 1 was given 16 by that music.
17 the wrong information. ' 17 A All righl. 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 residential area,which was very yuiet. At the time
2 0 A Is that it? 2 0 naw,what 1'm complaining about now is two or three
21 Q Yes. Thank you. ' 21 different things. And one is 1 can hear the music,the
22 MR. MUELLER: Thank you.Mr.Stendell. ' 22 wonds. And I don't have a problem with the music.
2 3 Mr.Hazard. 2 3 'Ihat's my era of music,a lot of it. But ii dces get
2 4 /// ; 2 4 anr►oying 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
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1 CHARLES HAZARD,JR., 1 both smoke. We don't smoke in the house,so we'll go
2 called as a witness on behalf of the City, 2 out on the paao to smoke,and you heaz the music.
3 was examined and testified as follows: 3 1've had my daughter--anci it was
4 4 approximately 2004,somewhere in there. 1 had a
5 EXAMINATION 5 shcwlder operation--come to live with me for about
6 BY MR.MUELLER: 6 four or five months. She lived and stayed in the front
7 Q Mr.Hazard. 7 bedroom. Even with 1he windows closed in the front
8 A Yes. 8 beclroom,you could music. All right. We survived all
9 Q Sir,if you would,your narne for the 9 this. That's okay.
10 record? 10 What irtitates me is the fact that during
11 A Charles Hazard,lr. ! 11 the Channel 2 news thing it was indicated that they were
12 Q And can you spell your last name for the 12 lxinging people in from La Quinta and different areas to
13 court reporter? ; 13 testify at this meeting,and 1 feel that,where 1'm a
14 A H-a-z-a-r-d. 14 Palm Desert resident,that it should svictly 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, i 16 has a say in these rr�tings.
17 Palm Desert.California.ZIP code 92260. 17 1 was quite irritated when the woman told
18 Q We met for the first time-- ; 18 me that"lust keep your windows shu4 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 wtside,you have a patio door open
22 Council;correct? 22 sometimes so that you can hear the phone.if you can
2 3 A Yes. I have a doctor's appointment at ' 2 3 hear i�
2 4 2 o'clock,and 1 need to have a cataract lovked at. 2 4 So 1 have a number oF things that irritate
2 5 Q J ust for orientation purjx�ses,could you 2 5 me. The fact that it's taken four years to get to the
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1 point,this point,when--if citations should have been 1 your housc that we had an ordinance that was passed in
2 issued,or if there was problems with code,why wasn't ; 2 1985 that allowed noised up to 55 decibels in your area?
3 it hanciled prior to taking this on and getting the thing 3 A [Yo. No. 71iere was no indication of this;
4 donc? i 4 there was no disclosure.
5 Q Well,the question for today,though,sir, 5 MR.FERGUSON: That's all 1 have.
6 is,So it sounds like you can hear the music from 6 THE WITNESS: 1 do have--(do understand there
7 outside your home? 7 is a letter in that orange binder that she has there
e A It's kind of like--1'm going to give you 8 that one of the Realtors in Palm Desert was complaining
9 a for instance--like a yapping dog. If you had a 9 because they were losing rentals because of the noise,
l 0 yapping dog next door to you,or any one of the Council ' 10 that people weren't coming in to rent again. So I think
11 members,and it barked Thursday,Friday,and Sawrday ' 11 there is a little bit of background infortnation that is
12 nights,pretty soon you would get irritateci,and you � 12 peninent to this meeting. Thank you.
13 woulJ see about getting something done about it. It � 13 MR.MUELLER: 'iliank you,sir.
14 wouldn't last long. ; 14 At this time 1 call Brian Hamik.
15 Now,what is the diffcrence? If you have ' 15
16 an irritation or it t>others you,then 1 think you ought 16 BRIAN HARNIK.
17 to stand up ancl complain about it. And that's what 1'm ' 17 called as a witness on behalf of the Ciry.
18 doing today. ! 18 was examined and testified as follows:
19 Q So are you saying that the music dces or 19
2 0 does not disturb you? 2 0 EXAMINATION
21 A It's an annoyance. Yes,it's an � 21 BY MR.MUELL.ER:
2 2 annoyance. Like 1 said,I kind of qucxe it like a-- ` 2 2 Q Good aftemoon,Mr.Hamik. Could you
2 3 not a loud barking dog--you know,I've heard some that 2 3 state your full name for the record and the spelling of
2 4 are pretty loud--but more of a yapping dog. But if it j 2 4 your last name for the court reporter?
2 5 gces on 12 o'clock, I o'clock in the morning from 10:00, 2 5 A Sure. Brian Hamik,H-a-r-n-i-k.
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1 it gets old after a while. 1 Q And where do you reside.Mr.Hamik?
2 Q So their music gces,by condition,only 2 A I reside at 73-901 Shadow Lane Drive in
3 until I 1:30? 3 Palm Desert.
4 A Well,sometimes 1 hear it a lot longer 4 Q Md if you wwld for us,just point that
5 than that. And they're the only ones that play it down 5 out on the map so we can get orientated to where your
6 there. So 1 guess it comes from there. I haven't drove 6 residence is.
7 down to see if it actually came from there,but it's the 7 A I assume the geen is Augusta,and there
8 same music. Ar►d 1 have heard it later than 12:00. 8 are two red crosses directly south of Augusta. My home
9 Q So you think they play later than I I:30? 9 is on Shadow Lake Drive,to the south of Shadow(ake
10 A Sometimes it runs over. That's about all 10 Drive,right between Shaclow Lake Drive and Club Circle
11 I can say about it. 1 just wanted to give my opinions � 11 Drive right here,a little bit beM�een those two crosses
12 on it. 12 vertically down from Augusta and a little bit to the
13 MR.MUELLER: I apprec;iate you coming forward. : 13 left.
14 Just a second,sir. 14 My backyard faces the tennis courts and
15 Ms.Roberge,do you have questions for ' 15 basketball court of Shadow Mountain Country Club. And
16 Mr.Hazard'? ' 16 we're a little bit further away from the restaurant than
17 MS.ROBERGE: No. No,[don't. 17 the previous gentleman.
18 : 18 Q Mr.Hamik,you sent a written
19 EXAMWATION � 19 communication in the form of an e-mail to Ryan Stendell
2 0 BY MR.FERGUSON: ' 2 0 and lauri Aylaian at the Ciry that is located in the
21 Q 1 do. ' 21 binder at page 314 back under the Tab J. I'd like you
2 2 A Yes,sir. 2 2 to take a look at that
2 3 Q You said you bought your house in 1996? 2 3 A Yes,thaPs my e-mail.
2 4 A Yes. � 2 4 Q 1 dcx�'t laww if you nced ro reread iG
2 5 Q Were you aware at the time that you bought � 2 5 lt's a rather lengthy page. My question to you is
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1 whether or not the observations anci statements in that 1 yell at one of the kids for blasting music in the other
2 e-mail are accurate and that's your present recollection 2 room,and there weren't any kids in the aher room. We
3 of kind of those same observations? ' 3 had our windows open,and for whatever reason,the sound
4 A Yes. Yes. This is an accurate letter. 1 4 just carries so strongly in our home.
5 was accurate when I wrote it. I submitted this,knowing � 5 We have not called the Ciry. We have--1
6 that the Planning Commission was meeting that Jay. I 6 have called the Sheriffs Department over the past few
7 would havc liked to have attended. I coulddt attend it , � years,probably between six and ten times. 1 have,most
8 so I sent this letter in lieu of my personal appearance 8 of ihe time,na left my name. I just said,Please
9 at the Planning Commission meeting. 9 lower the noise. 1've been asked,"Do you want to file
10 Q Looking at--if you flip all the way in 10 a report?"anci 1 have not wanted to ti{e a report. t
11 the back of the binder at the ordinance itself,on page 11 just want the noise to go down. And I've said,"Can you
12 0005 back under Tab B,the test,when it comes to the ; 12 just please do something to address the noise'?"
13 subjective part of the test,the question for residents 13 And over time�he sheriffs had indicated
14 relates to what language you see under 9.24.040 there on 14 that,in fact,they've gotten other complaints anci that
15 page 0005. And the pertinent part of that ordinance,at ' 15 from their perspective it's been a problem. Again,my
16 paragaph A,reads,in part,that"It is unlawful for � 16 goal was to get the noise cut down.
17 any person to make,continue or cause to be made or 17 One of my daughters lives in a bedroom
18 continue,within the city,any disturbing,excessive,or 18 that is closest to the frcxu of the house. When she was
19 offensive noise which causes discomfort or annoyance to 19 a little bit younger,she was--would frighteo more
2 0 reasonable persons of normal sensitivities residing in 2 0 easily,and there were times where 1he music would
21 the area." 21 frighten her in the lx.�droom. We d have to close the
2 2 Do you see that? ' 2 2 windows on nights where we othenvise woukin't.
2 3 A Yes,I do. 2 3 I can go to the very front of my house
24 Q Of course,you reside in the area;right? 24 when this is going on,and I can hear the ezact song;1
2 5 A Yes. 2 5 can hear the words:1 can heaz the music very loud. It
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1 Q Tell the Council,if you would,what 1 just projects in our home,depending on how the weather
2 experiences you've had,what observations you've had 2 is. 1 think that's righ�
3 about the--specifically about the music,the amplified ; 3 Aod 1 apprrciate Ms.Roberge investing
9 music coming from Augusta as it relates to this code 4 money to make this better. 1 understand that. But it's
5 section. 5 not working. It's a problem. It's disturbing us. It's
6 A 1'd be happy to. 6 not oniy audible in our house,but I consider--you
7 1've been living at this location for 7 know,my property is,obviously,important. And even
e approximately 10 years,long before the permission was 8 outside our house,1 don't want to be disturbed late at
9 given to give the amplified music. Ancf this has been a 9 night.
10 problem ftx many,many years. It's been ongoing. For 10 1 do know in one instance--and 1 don't
11 whatever physical reasons exist,the sound just carries ' 11 recall ever hearing it or being awake at 12:00 or I:00
12 right to our front door,and it carries into our home. � 12 in the mortiing,as the prior gentleman said,twt I do
13 It's been problematic. And as 1 put in my letter,up ! 13 have a spacific recollection,again,more than a year
14 until 10 o'clock at night,as other people have said, 14 ago,where it was after I 1:30,and the noise was still
15 you can live with it once in a while. The problem here 15 going on. I was listening. 1 called the sheriff,and 1
16 is that it's t�een repeated,it's repetitive,iPs after 16 waited. And 1 checked it about ten to midnight or so,
17 10 o'clock at night,and it is very loud in our house. ': 17 and I heard the barxi leader saying his Thank Yous and
18 is the best way I can describe i� It impacts our � 18 (',00d fYights. And 1 was able to--you can actually#iear
19 lifesryle. It's annoying. It's voublesome. And it's 19 it and listen to it. It is loud it is ongoing,and
20 impacted us in certain ways. 20 it's repeated.
21 A number of years ago--1'll give you an 21 You know,we're all neighbors. And it is
22 example. We generally go to bed pretty early, 10:00, 22 a lovely place. It is a quiet street where we are,and
2 3 1 I:00 at night. Onc evening--and this was a few years ! 2 3 it is a really good neighborhood. We love being close
24 ago--my wife woke up--and we have four daughters. 24 to EI Paseo. We understand that there's a retail
25 Three are now teenagers,one is 22. My wife woke up to ' 25 component to where we live,and that's Cne. And once
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1 in a while a neighbor has a party. Were okay with it. ' 1 disturbance is in the past? Or whaCs your current
2 That's just life when you live with other people. But 2 experience?
3 this is something that's been ongoing,iYs been � 3 A It's less annoying than it was,but we
4 repeated,and it's still ongoing. � 4 still hear it,we still know it's there,and it's still
5 And despite the efForts.1 was stili able ! 5 a problem from our perspective. And agair�,part of the
6 to hear the noise coming in from Augusta. And it's 6 frus[ration is 1 kind of personally view this as,well,
7 late,and it's a problem. I have also checked to be ; 7 now all the scrutiny is coming down so everybody is
8 sure that it's been coming fmm Augusta. Early on.I 8 being on their best behavior. This has been going on
9 didn't know where it was coming from. At first,we used 9 for years. (recognize that it is maybe not as severe
10 to think that we were having neighbors throwing wild ` 10 as it has been at other times,but I can still hear[he
11 parties nearby. And it absolutely shocked me that the 11 music. I can tell what the music is. And it's still
12 sound was vaveling from a restaurant so far away. The ` 12 out,and it's still late,and it's still very disturbing
�
13 way it's situated,and,again,1 don't know if it's the ': 13 to us.
14 topogaphy of the hill or whatever it is,it is having a ; 14 Q In the words of the ordinance,in tertns of
15 profound impact on me;it's having a profcwnd impact on ! 15 its impact on you,it's still a violation in y<wr
16 my family. It's been that way for many,many years,and 16 opinion?
17 it's been a problem for us,and it continu��s to tx�one. ; 17 A To me,iCs offensive noise,and it's
1 B We want restaurants to do well. 1 mean, 18 excessive,and it's impacting our peace,our peaceful
19 we love the city. We'r�e dedicated to being here. We're ; 19 enjoyment of our home.
2 0 involveci in the community,and we want to continue to be � 2 0 MR.MUELLER: Thank you.
21 involved. But this is a problem. And I suspect that if '. 21 Ms.Roberge.
22 all of us knew what this would actually be like,we 22
2 3 would have all made different decisions some years ago. ! 2 3 EXAMINATION
24 But 1 don't think anybody anticfpated what was going to ' 24 BY MS.ROBERGE:
2 5 be happening with this siwation. ; 2 5 Q Hello,Mr.Hamik.
Page 111 ' Page 113
1 And i know there was a question earlier " 1 On reading from your letter here,you say,
2 about the decibels. 1 don't know sound numbers from ; 2 The one way to stop the problem is for the City to
3 anything,but(do know what is intrusive,what is 3 enforce its existing conditions and ordinances.
4 annoying,and what is problematic. This affects my ' 4 So in your letter yai re basically
5 family. You know,my kids love music,and we do too. � 5 ageeing with the City that if we can keep the decibels
6 T'his is affecting my family,it's affecting my wife and � 6 at 55 we are within our existing conditions and
7 me,and I do believe it has an effect on our property 7 ordinances?
8 value. 1 think,you know,if you sell a home--and we � 8 A It's my position that the City has the
9 don't intend to sell our home--you have to notify 9 responsibility to assure the peacefulness and the
10 somebody if you believe ycw have a nuisance in your ' l 0 quietness of the neighborhood. And thaCs what the
11 property as part of a disclosure statcment. l believe 11 ordinance that Mr.Mueller referred me to talked about.
12 that unless this is stopped or fixed,1 would have to 1 z IPs the excessive noise. And it's the impact of an
13 disclose that. And I think everybody in this particular 13 area thaPs zoned for single family residential homes.
14 area would. IYs just mind boggling how the sound � 14 And that's part of the ordinances to be there.
15 happens to travel right into our property. � 15 I was na indicating that if the decibel
16 Q Let me just focus you on one part of this. 16 Ievel got to a particular number and all of a sudden it
17 Because at times you've talked about--and we're � 17 was still impacting my home and my lifestyle that 1
18 talking about an experierice that spans years. ' 18 would then say,you know,there's nothing I can do about
19 They've—at Augusta's,[hey've made efforts to 19 it. It's--1 believe this is a decision that Council
2 0 mitigate. There have been different thin�s done, i 2 0 needs to make as to what effect this is having on the
21 mattresses put up, some foam paneling,some other 21 neighbors. And I do appreciate the effons and the
2 2 scrtens. So they've taken a number of ineasures. Have : 2 2 expense to make it better.but it's just not succeecling.
2 3 you seen an appreciable difference,IePs say,during � 2 3 It's still a problem where we live.
2 4 the penod from lanuary I,forward? Is it less annoying � 24 Q Mr.Harnik,chen were you aware of the
2 5 or not annoying now,and all the annoyance and 2 5 decibel level by ordinance when you bought the house?
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1 A No,not a1 all. It wasdt an issue for 1 Q Wouldn't you deal with that situation as
2 me. 1 researched my home. I knew where I lived. 1 2 it arose and went to Council?
3 knew it was close to EI Paseo. 1 knew that there were 3 A Well,in the tLture,yes. But the point
4 restaurants. I knew it was a very high-end Rodeo Drive 4 I'm trying to make is one of the things that the Council
5 kinJ of experience. I think thaCs great. 1 think it's 5 is responsible to do is to look to the vision of the
6 helped the property values. 1 think South Palm Desert 6 future as well in their decisions. Although,in this
7 is a wonderful part of our community. 1 think it's been 7 instance,we're focusing on this one matter,you know,
8 hanJled by the Council at a leadership rate. It's 8 the Council has the responsibility of not only doing
9 continuing to be a wonderful place to live. 9 this fairly,but Iooking ahead as well and having
10 And again,part of the bng-term issue,as ; 10 visions as to what our city should be. That's the
11 I point out in my letter,is ultimately what do we want i 11 point. �
12 to do down the road? What's ihe vision of the Council 12 Q Do you believe that the Council has to--
13 clown the road,not specific to Augusta at all. But cxie 13 their decision is to make sure the ordinances are abided
14 of my fc•ars is if this is albwecl to happen at 14 by?
15 Augusta--and Augusta is high-end. It's a beautiful 15 A It's not my place to say to anybody what
16 restauran� It's ga a geat an gallery. It's a 16 they're supposed to do. CII answer questions about
17 tieautiful structure. It's--and Ms.Roberge is 17 what 1've experienced,my point of view,my position. I
18 invested substantially in the communiry. 18 just--you know,we're here to be sure that they have
19 One of my ccxicems that 1 raise is what happens the next 19 full and complete information to make the best decision
2 0 day when some cxher restaurant says or sonee other club ; 2 0 they can make. And 1 suppoR that.
21 says I want the same abiliry right next door to Augusta i 21 MS.ROBERGE: Thank you.
2 2 or down the block from Augusta? 'iliat's part of the ; 2 2 MR.MUELLER: Any further questions for Mr.
23 visicx�of what we're cloing here today. And that's part ' 23 Harnik?
2 4 of our concem. We want ro maintain that high-end ttodeo 2 4 ///
2 5 Drive feel now and in the future,which I think the 2 5 ///
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1 restaurant itself is te�rific,and iPs just a 1 EXAMINATION
2 wonderfully enjoyed place. And I don't think you'd have 2 BY MR.FERGUSON:
3 this support if it wasn't a great place. 3 Q Just a quick one.
4 Q Mr.Harnik.if another restaurant wanted 4 Frst,and foremost,is to thank you fa
5 to open up and do the same thing,wouldn't they have to 5 your letter. 1 mean,I can really see that you are
6 get a Conditional Use Permit as I did? And would that , 6 balancing and trying to appreciate the position that
7 not leave the City Council to decide whether they wanted : 7 we're in with the comme�+cial district and the
8 to grant that or not? 8 residential district,and each has rights. And,you
9 They are two different things. Yoti re 9 know,unfortunately,depending on how you look at it,
10 talking about taking mine away and then talking about � l0 you know,some would have us shut down the lwsiness,and
11 granting one. ' 11 if we don't,some would say we just shut down the'v
12 A Well, 1 understand. My concern is,in '. 12 homes. And that's kind of a lousy position to be in.
13 parc,as a resident of Palm Desert,part of the ' 13 But one thing 1 would like to ask you,and
14 Council's overall view is to take care of the vision of 14 it is a problem 1'm swggling with,and as an attomey,
15 the City moving forward. And one of my concerns is that 15 1'm just curious if you can help me with it. On the
16 by allowing this outdoor amplified music to continue-- ' 16 objective standard,perhaps 55 is to high. It sounds to
17 and 1 understand nobody is taking the business away and i 17 me like most of the complaints are coming in even if
18 taking the CUP away,but this is just an issue as to the i 18 she's below 55. 'ilien we drop to this subjective
19 amplified music late at night. My concern is that we 19 standarcl,which sounds like you have to be at 55 unless
2 0 are setting a prececient to a!!ow EI Paseo,you know,in 2 0 we don't like you. And really,if you read those terms.
21 years ahead to wm into something that we don't really 21 you know,diuomfort and annoyance--theyre kind of
2 2 want it to become. "iliat was the concern of the future 2 2 subjective;they're kind of vague and ambigucws.
2 3 part of it,separate and apart from my experience and my 2 3 And the�lem I have,looking at those
Z 4 concerns about the impact of the amplified music at 24 six or seven spots that have coosistrntly heen there,is
2 5 Augusta. 2 5 I don't know whether they don't like the music,I don't
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1 kaow whether they don't like Ms.Roberge.1 don't know 1 it shouldn't be because 1 hate dogs. Which I don't.
2 if they cion't like her�litics,her jewelry. I mean,1 2 But if I hated dogs,that shcwldn't be the standard. We
3 just don't know. You know,and that,to me,seems to be 3 want some reasonableness appointed there. So if 1 have
4 a real kind of squeaky standard. How would you address 4 a yelping dog under 55 decibels,and 1'm not in the
5 that? 5 objective problem,but I'm in the subjective one,that's
6 A I would--first of all,this is not about 6 where you're going to earn your gray hair because you do
� the likes and dislikes of any person. I happen to love 7 have ro make a balance.
8 the music. That's the irony. Nothing is better than e And it's rat about wanting to hurt
9 when my kids play my old music. You know,I heaz Bruce ; 9 Augusta,shut down Augusta,or cause it any financial
10 Springsteen coming from there,and 1 hear other things. 10 harm. To the contrary,1 benefit,and we all bene�t if
11 You know,the music is good. And that's not the issue. i 11 restaurants and places succeed on EI Paseo. We want
12 And 1 don't think there would be so many people here 12 restaurants to succeed. The problem is only the effect
13 suppcxting it if they diJn't enjoy it too. And it's not 13 of this music,which even if it's below 55,yoti re
14 a personal like or Jislike. And you said earlier,this 14 hurting residents;you're hurting my neighbors.
15 is not a popularity contest,nor should it be. � 15 My neighbors and I have talked abcwt it.
16 When we�e dealing with the subjective 16 It's bothersome to us. It's a problem. 1 woulddt be
17 standard.1 think you do have a bright line. Ycw know. '; 17 spcnding my time here if it wasn't a concern to the way
18 if this thing is,whatever the decibel is,above the ; 18 we live,which is important. The people that come out
19 line,it's an easy call because it's the ordinance says 19 there and check it out,they check it out,and they
2 0 it. But this providing discretion,saying,well,gee, ' 2 0 leave. 1 can t leave. This is where 1 live. And 1
21 there are situations where maybe it's below 55 and maybe ! 21 love living there. And iPs great.
2 2 52 is,you know,a 3 percent or 6 percent variance, ' 2 2 But it is a problem,and it is an issue.
2 3 maybe that's a la;maybe it's not. 2 3 And you have a tough decision because you're in that
24 But the point of the statute--there's ; 24 area where you're below S5,but you've still got a
2 5 another level,that if,in fact,you are not beyond-- 2 5 problem. And it's not going to solve it to just say.As
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1 you're not violating the objective standard,but there's 1 long as yai re below 55,you can keep doing it. You
2 still a problem,you,as a Council,have the abiliry 2 know,again,if it was screechy,you know.Duane Allman ;
3 based on the reasonable evidence that's presented to you ' 3 music that was piercing even though it was below 55,it
4 to make a decision balancing those rights. And that's 4 would be a problem.
5 what we're asking you to do without whether you like or 5 And so that's the issue here thaG I
6 dislike me,the horneowners,whether you like or dislike 6 think,you have to weigh. It's a tough situation. 1
7 Ms.Roberge,whether you love Augusta,hate Augusta. 7 don't think you d be spending the time and energy if
8 like the music,don't like the music. That shouldn't be 8 this wasn't an appropriately difficult matter. And 1
9 the issue. The issue is--as you said,we've got some 9 respece you all spending the time anci looking at this as
10 rights that are colliding,and we're talking about the 10 you are.
11 right of single family homes,zoned single family homes ; 11 MR.MUELLER: Any additional questions?
12 to enjoy some peace and quiet near a zone. We're not � 12 MAYOR BENSON: Any other questions?
13 having this problem with Sullivan's that's running music 13
14 that's being successful. ' 14 EXAMINATION
15 So the question becomes raw that--if ! 15 BY MS.ROBERGE:
16 you're in that subjective area,okay--and again,there 16 Q Mr.Harnik,do you believe that the
17 may be evidence of historic violations over the 55. 17 decibel law of 55 was just pulled out of thin air,or do
18 Maybe that's been tixed. When yai re in that subjective ; 18 you believe that people did a lot of nesearch to come up
19 area,you do have,1 think,the discretion to say,gee, i 19 with that figure for--and it's the law--for a
2 0 what are the facts showing here? Are we allowing ' 2 0 commercial establishment?
21 excessive and offensive noise even though it's below 55? 21 A I believe the law says,quite clearly.
2 2 You know,if you have a--the yelping dog ' 2 2 under the general prohibitions that it's unlawful for
2 3 was a great idea. If you have a yelping dog that's 2 3 anyone in the City of Palm Desert to cause or continue
2 4 below 55 decibels twt is driving you insane,you have a 2 4 excessive or offensive noise that causes discomfort or
2 5 problem that falls under this subjective standard,and 2 5 annoyance to reasonable persons of normal sensitiviry,
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1 whether it's ten trillion decibels or whether it's one 1 DAVID J.FLAREZ,
2 decibel. You need a reasonable standard,which I think 2 called as a wimess on behalf of the Ciry,
3 the City is trying is apply here. 3 was examined and testified as follows:
4 Arxl that's my point. Despite the 4
5 reference to get helow the 55 threshold,it's still 5 EXAMINATION
6 causing a problem in my home,it's causing a problem for � 6 BY MR.MUELLER:
7 my neighbors,and we'd like to see it resolved. Tha['s � 7 Q Sir,could you give your name for the
8 what the problem is. So 55,to me,1 don't know what 55 ` 8 record.
9 means,but it doesn't really matter. 1 just want to 9 A David 1ce Florez,F-I-o-rc-z.
10 live peacefully. Whether it's 53.58,2,that dcesn't � l0 Q And where are you employed,sir? •
11 matter. But what 1'm understanding from here is even 11 A 1'm currently employal as a sheriff
12 though you may technically be below 55,iPs still 12 sergeant with the Riverside County Sheriffs Department,
13 causing a problem And that's what I'm here to address. 13 assigned to the Palm Desert station.
14 Q What's reasonable? 14 Q And have you had involverrent in either
15 A Right. 15 receiving or responding to noise complaints related to
16 ; 16 the amplified music at Augusta's Restaurant?
17 EXAMINATION 17 A Yes,I have.
18 BY MR.MUELLER: 18 Q Can you tell the Council about what your
19 Q Mr.Harnik,one or two more questions. ': 19 history and experiences have been in that regard?
2 0 You haven't had a chance to look at the � 2 0 A I waz the watch commander for the night
21 binder,but-- 21 shift back in early 2007,which would have caused me to
2 2 A Do I have to? ' 2 2 be on duty. Actually,my days were Wecinesday,Thursday,
2 3 Q No,you dodt have to. 1'm just 2 3 Friday,Saturciay. So unkss 1 called in sick or took a
2 9 wondering,it doesn't sound like you're aware,twt are ' 24 vacation,1 was working on those nights that we wert
2 5 you aware that in March and April of this year,2008, 2 5 hearing complaints about. And on several occasions,l
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i that 18 times-- I S sepazate evenings Augusta's sound 1 respcxided either with or witltout deputies to the loud
2 levels were recorded over 55? But it sounds like you've 2 music call because the issues that we've been having in
3 been making the assumption that what you may have been 3 Palm Desert with various other locations that were
4 recently hearing is under 55. Do you realize that there 4 playing music that were also getting complaints.
5 are 18 rcadings above that ordinance level of SS jLLst in 5 Q Do you have records,do you know,of how
6 those two months? 6 many calls came in in 2007 or 2008 to the sheriffs
� A No. But part of the good news is we did 7 office arising from the amplified music at Augusta's?
9 replace our windows,so we have better windows when 8 A We have some. But 1 think,as Ihe
9 they re closed. And it is we,in the cold winter 9 previous speaker noted,that sometimes they didn't leave
10 months we keep Ihem closed. And we've been opening them ; 10 us contacts. Sometimes Ihey didn't Imow where the music
11 up lately,and we've been hearing it. 1 do know that 11 was coming from. So the best that 1 was able to look up
12 it's still been a problem,but 1 aLso am aware that 12 on our records was most it happened during early 2007,
13 chere have been efforts to mitigate it. And it dcesn't 13 where there were 13 calls for service,which would have
14 surprise me that theym still over 55. You pn hear 14 meant we issued a file number and wrote a report or had
15 it. And you can hear it,and it's loud,and it's ' 15 some kind of documentation as to the call that
16 discemible. It's not like some vague noise from a � 16 originated frc�m Augusta's and that there were other
17 distance. 1'm talking about hearing rtwuical ' 17 calls involving batteries,disorderly conduc4 tra�c
18 inswments,l�earing the words of songs,heazing the 18 collisions,area checks,and the distwbances with
19 talk of the band leader. You can hear what's being 19 patra►s refusing to pay the bill,
2 0 said 2 0 So a kn of the anea checks would have
21 MR.MUELLER: Thar►k you,Mr.Hamik. , 21 been loud noise emanating from a certain area. And they
2 2 THE WITNESS: Thank you. ' 2 2 may r►ot be direcdy associated with that address,so we
23 MR.MUELLER� Nothing fwther. 23 don't have the documentation because it's someplace in
24 Sergeant Florez. 24 the area. Bu[based on my expecience,there's beea
2 5 /// ' 2 5 several times that 1 was out there on the evenings that
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1 we've been talking about to address the noise issue and 1 usuafly who 1've spoken with:a few times Ms.Roberge--
2 help thc establishment stay open arxi provide for the 2 is they're after their Conditional Use Permit time.
3 patrons,but,also,appease the people that were calling 3 Md we've asked them,Yai re past your time,can you
4 in,understanding that they have rights also. 4 tum it down or turn it off?
5 Q Were any formal complaints filed or 5 And 1've gcxten Jelays,and I've gotten
6 rocorded against Augusta's? 6 pretty much uncooperative response from her until where
7 A In my experience,there had not been,to 7 one point we were contemplating pulling the plug on the
8 my knowledge. And,I think,the--if we can delve into e music and citing the band so that they would stop. But
9 this a litde bit? 9 Lieutenant Tayla decided to let the Ciry Ccwncil handle
10 Q Sure. I mean,what's your-- ; l 0 it,as we are here now.
11 A Just the previous speaker had noted most 11 She just--at some point she refused to
12 people want to be good neighbors. If your neighbor has 1 z cooperate with us. And I think Mr.KilpaUick and
13 a party or the guy across the sveet has a party,we i 13 Depury Ramirez will talk about the night that I was
14 don't want anybody arrested. We just would like them to ! 14 there and they were there when she was going to be
15 turn it down. 15 issued a citation,and she made several comments as to
16 And with Mr.--I want to call him 16 what her intentions were.
17 Mr.Hart now,I heard it so many times. ; 17 Q So just to be clear,have you personally
18 Q Mr.Ponder. 18 been there at Augusta's when the amplified cwtdoor music
19 A Mr.Ponder. That generally what 1've � 19 was playing after I I:30?
2 0 found in my 24 years of experience of going to hundreds. � 2 0 A Yes.
21 if not thousands of disturbance calls,is that there's a ; 21 Q On more ffian one occasioa'
2 2 very,vety minority of calls that are crank calls. 1 2 2 A Yes.
2 3 think the Council is well aware of a certain resident up � 2 3 Q And on those occasions,you had asked for
2 4 on Heliotrope that calis all the time that wants people '; 2 4 it to be tumed off--
2 5 arrested,usually wants phantom people arrested,she 2 s A Yes.
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1 wants the smells to stop,and nothing that we can do can 1 Q --as of I I:30,and essentially,they
2 ever make that perscx�happy. 2 asked for more time or kind of begged for more time?
3 This is not the case. If somecx�e calls in 3 A And because we didn't have somebody who
4 about a house party,there's a house party. If the band , 4 wanted to press charges,generally,our hands were kind
5 is bring loud,the band is being loud. And usually, 5 of tied. We really had no teeth to do something about
6 generally,the position that the sberif£s department 6 it,and then hopefully,you know,everything would work
7 has been taking,at least in the case of the nighttime 7 it itself out. Obviously,we've heard from some of the
8 establishments here in the clesert,in Palm Desert,is 8 citizens that,I think,they're hoping for us to do
9 that we respond. And because we dai t have a 9 something. But again,without their cooperation,we
10 complaining party--which if somebody wanted ro make a ! 10 cannot be the victims of the loud and unreasonable
11 complaint and not go to Ciry ordinance,they can go ! 11 noise. We are only reporters. We're only ro respond to
12 throuy,t►415.2 of the Penal Code and tie up the courts `. 12 deal for the citizens of the United States with these
13 with citizen's arrests--we generally go and ask them, ; 13 problertu. So we couldn't arrest based on what our
14 Can you please tum it down,we have some complaints? ' 14 observations were. We needed a citizen to come in and
15 And understanding that Ms.Roberge's case, 15 make a complaint.
16 her Conditional Use Permit allows her to play music,I 16 Q Some of the staff have gone up into the
17 think until I I 30,what I have found with my experience 17 r�eighborhoods to do their own reasonable person
18 with Ms.Roberge is that oftentimes the music gces up 18 observations,kind of testing the reasonableness of
19 after we leave. We come back and talk to her again 19 objections that members of the residential public may
2 0 because we get more complaints,but we don't have ' 2 0 have made. Did you ever do that kind of thing yourseif,
21 anybody that wants to make a citizen's arres� And the 21 go up there to see whether you could hear the music or
2 2 excuse cx the rcasoning for the reason the music gces up 2 2 whether it would be annoying to you?
2 3 again is because her pavons are loud and they can't 2 3 A No,t didn't specifically go up and test
2 4 hear the music. And then on several occasions I've had � 2 4 the area. You know,I've served in this city for 24
2 5 discussions with her very nice door host--that's 2 5 years. I pretty much know where the calls are coming
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1 fmm and what they are. And so we tried to handle it in ; 1 A 1 couldn't say that.
2 the most neighborly way we could and try ro make 2 MS.ROBERGE: That's all.
3 everybody happy. ' 3
4 MR. MUELLER: Any questions.Ms.Roberge'? 4 EXAMINATION
5 MS.ROBERGE: Ycs. 5 BY MR.MUELLER:
6 6 Q Just--I'm confused about something. How
7 EXAMINATION 7 has your--you're talking atxwt your assignments,and
8 BY MS.ROBERGE: 8 maybe your assignment changed. Has your area of
9 Q Officer,are you saying that you spoke to � 9 responsibility changed from earlier in'07 to later'07
10 me this season,in'07 and'O8,about the music or any ; 10 and'O8?
11 problems at the restaurant'? ` 11 A Yes. 1 was assigned to a SET team,and
12 A Yes, in'07,early March,April,and May � 12 1'm now the administration sergeant. So l work 8:00 to
13 we were out there,at least I was out there. 13 5:00,Monday through Friday. So I'm not out at night.
14 Q 1'm asking you from November,this season. 14 So I would not have occasions ro be out there during
15 A I don't recall. My assignment was--I i 15 that time. 1'm only one of several officers and
16 don't recall being out there. But,again,we handle so s 16 sergeants that could have been on duty,and you'd have
17 many of these calls,there's only a few of them that 17 to,probably,march every one of them in here and ask
18 stick out in my mind. ; 18 them if they have.
19 Q 1 would think 1 would stick out in your : 19 We have other collateral duties. I could
2 0 mind if I was being obnoxious. ! 2 0 have been out on other calls. This particular
21 A Yes,you did that one night. ' 21 establishment wasn't our only responsibility. And so
2 2 Q Well,before thaL And we'll discuss � 2 2 specifically,because of the number of incidents,and 1
2 3 that. ' 2 3 remember dealing with Mr.Kilpatrick and the night we
2 4 Now,this season,have you ever heen 2 4 tried to issue Denise Roberge a citation and the
2 5 there? I'm talking about the season being,as this 2 5 confrontation during that,that stuck out in my mind.
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1 report says,from November the 7th,until current time. 1 MR.MUELLER: Thank you,sir.
2 And my question to you is,Have you ever been there 2 Any other questions?
3 where the music is past 1 I:30? 3 MAYOR BENSON: Counci!have any questions? No.
4 A I don't recall this season,no. 4 MR.MUELI.ER: Thank you.
5 Q That's a major improvement,which is what : 5 Deputy Ramirez.
6 we're trying to accomplish. 6
7 All right. I'm not getting the connection � 7 ROBERT RAMIREZ,
8 with us being so bad to the police officers this last e called as a witness on behalf of the Ciry,
9 season. 9 was examined and testified az follows:
10 A Initially,you weren't. 10
11 Q 1 won't--yes,we were. But Cm talking 11 EXAMINATION
12 about November the 7th,since we've all decided to ' 12 BY MR.MUELLER:
13 really clean up our ac4 have you had any problem with ` 13 Q Could you state your full name for the
14 Augusta Restaurant? ' 14 record,sir.
15 A 1 cannot say that(was there. Bu[1've 15 A Robert Raminez,R-a-�i-rc-z.
16 Ueen on different assignments,so[don't rec:all being I 16 Q And you're with the sheriffs department
17 out there during November. 17 and a depury,l take it?
18 Q Fmm November 7th,to current day? ; 18 A Yes.
19 A Correct. Most of the assignments that 1 ; 19 Q 1 don't have a lot of specific questiau
2 0 recall were in early year--in the early year of'07, 2 0 for you. Pm interested in what your involvement has
21 specifically March,April,and May. 21 been in monitoring or responding to any complaints of
2 2 Q Okay. So then would you agree Ihat we 2 2 amplified music emanating fran Augusta's,and if you
2 3 have cleaned up Augusta[remendously,brought it under '; 2 3 coulJ tell us about those experiences'?
2 4 the code? There's no more music after l I:30 this ' 2 4 A Okay. Mine,as well as Sergeant Ftorez,1
2 5 season? '. 2 5 worked night shift fran the early pazt of'07,and the
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1 majority of my calls were from April to May. Arxl 1 � 1 Q The occasion where ycw attempteci to cite
2 r�ponded there probably about six times. 2 Ms.Roberge,can you recall any fwther detail about
3 Q So you don't have current experiences in 3 what was said at that time by any of the parties
4 'O8,in temu of what's going on at Augus�a's with any 4 involved'?
5 complaints or objectioru to music,but you do have them 5 A When Officer Kilpatrick tried to get her
6 from the spring of'07? 6 to sign a citation,she rofuscd to sign it. So he wrote
7 A Correct. I've been reassigneci to the 7 in the box,"refused." And then she told us,"7he City
8 Special Enforcement Team,and that was in the micidle of 8 of Palm Desert needs to stop harassing me,and this is
9 last year. 9 war." And after that,she tumed around and walked
10 Q What were your experirnces in spring of 10 away,and so we left.
I 1 '07? 11 Q Md the reason no citations have been
12 A Majority of the calls that when 1 went 12 issueJ by you would be the lack of an acwal complaining
13 there,there was anonymous reporting parties,and they 13 party'I A resident would have to come forward and demand
14 just wanted the music tumecl down. So 1'd go contact 14 an arrest or something?
1 S the manager and ask them to tum the music down. 15 A Yes. This one was actually--I'm not
16 Because that's all we can do without a victim. � 16 sure. Officer Kilpatrick will have to get with you on
17 The one instarxe�where Sergeant F1orez was + 17 that one,but apparenUy several�ple called and
18 mentioning with Shawn Kilpatrick,Ihat's Ihe one lhat ' 18 complained that night,and we went out there to sign on
19 also stands out in my mind,when we had Ms.Roberge come � 19 their behalf.
2 0 over,and we tried to issue her a citation,arxl she 2 0 MR.MUELI.ER: 1 don't have anything further.
21 refusecf to sign it. Which is fine. Ancl that was about � 21 Ms.Roberge,any questions?
2 2 it. She just didn't want to sign the citation. k 2 2
2 3 Q What did you--did you ever have occasion � 2 3 EXAM INATION
24 to ask Augusta's,anyone,the staff at Augusta's, � 24 BY MS.ROBERGE:
2 5 Ms.Roberge or any staff inembers to tiun the music down? � 2 5 Q Yes. Sergeant,have you been to the
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1 A Yes,sir. ! 1 restaurani between the 7th and current date--
2 Q And did they respond? And what would 2 A No,ma'am.
3 happen after that? 3 Q --for complaints?
4 A The majority of the time.I'd say 50 4 A No,ma'am.
5 percent of the time,they kept the music down,but 5 Q Have you ever? Has 1he nestaurant played
6 there's a few instances where it went right back up when ' 6 past its I I:30 hour?
7 we left. 7 A In the time frame you just gave?
8 Q Do you have any knowledge or information 8 Q Yes.
9 about whether they did or didn't play pasl the hour 9 A I'm not sure. i work day shift now.
10 specified in their Conditions of Approval of their CUP, ; 10 MS.ROBERGE: Okay. Thank you.
11 I 130 p.m.? � 11 MAYOR BENSON: Council have any questions?
12 A Yes,a couple times they did. And 1 went � 12
13 back to ask them to tum it down,and it was--what was ', 13 EXAMINATION
14 it? The fans or the patrons wanted an encore,so the : 14 BY MR.SPIEGEL:
15 band could give them an encore song or two. ' 15 Q 1 have one quick one,Deputy.
16 Q Do you have any observations about the � 16 A Yes.
17 reasonableness or unreasonableness of any of the 17 Q You indicated that the sound was really
18 complainants that you've heard complaints from 18 noisy,and you went there,and you asked her lo turn it
19 conceming Augusta? ' 19 down. And they tumed it down,and then when you left
2 0 A Like 1 mentioned,the majority of my calls 2 0 it went back up?
21 wene all anonymous. I didn't get to speak to any of � 21 A Yes,sir.
2 2 them. They didn't leave a phone number or an address. 2 2 Q Did you go back in and say,"Tum it down
2 3 And there's no way I could know exactly where they lived ; 2 3 again"? Or what happened?
2 4 to go sit in their house and verify that it was loud or 2 4 A I didn't personally. Other deputies did,
2 5 unreasonable. 2 5 because it's a busy area of the city,and 1'd go to
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1 another call and somebody wcwld take my place. So Pm 1 A These are letters of complaint,repeated
2 not sure what vanspired on that. ; 2 complaint. What do I do with ihem?
3 MR.SPIEGEL: Thank you. 3 Q Could you go ahead and give thosc to the
4 MR.MUELLER: Nothing further then. Thank you. 4 cicrk? That would be great.
5 MAYOR BENSON: No other questions. 5 A I was hoping to get these here early
6 MR.MUELLER: There are a number of residents 6 enough that the Council could look�hem over,twt 1'm
7 that 1 intend to call. I don't know these people 7 assuming that they will be given opportunity for that.
e personally,so I don't know who's here and who's come � 8 Q Yes,ma'am.
9 back after lunch or not. ` 9 So just to be clear--
10 But is John Cocoran here,or Carol? 1 10 A We have t�een--I'll be very brief.
11 How about Marian Royston? 11 Q But let me ask you just a question about
12 12 what you just provided.
13 MARIAN ROYSTON, 13 A Yes.
14 called as a witness on behalf of the Ciry, 14 Q So these are letters from your friends and
15 was examined and testified as follows: 15 neighbors who all reside at Candlewood?
16 16 A At Candlewood Apartments. Only there's
17 EXAMlNAT10N 17 one letter someone handed me because they had to leave.
18 BY MR.MUELLER: ' 18 I think they were from the country club,the top one
19 Q Ma'am,could you give your Full name? ' 19 you're looking aL The rest of them are all residents
2 0 A Marian Royston. ' 2 0 of Candlewood.
21 Q And spell your last name for us. 21 Now,understand,these are senior
2 2 A R-o-y-s-t-o-n. 2 2 citizens. A good many of them were infirn�ed,they're in
2 3 Q Where do you live? 2 3 wheel chairs,they have to have oxygen,and that's why
2 4 A At the City-owned Candlewood Apartmenls � 2 4 we dodt have a better personal representation and why
2 5 for 17 years. 2 5 1've encouraged the people that felt strongly enough to
Page 139 Page 141
1 Q Where on the map there,if you could point � 1 write a letter to do so.
2 it ou4 are the Candlewood Apartments? � 2 Q 'iliank you. Go ahead.
3 A It's the very first onc. lust on the I 3 A This has bcen ongoing. Like(say,I've
4 other side of Portola. The music comes this way. ' 4 lived in these apartments,30.year-old apartments,for
5 That's my patio right in that corner. Oh. 5 17 years. This has been ongoing from the get-go,the
6 Well,that's grace. 1'm sorry. � 6 very first season. I thought it went before 2004,but
7 Q 'iliis is a public hearing,obviously,to � 7 Ms.Roberge said 2004,and t accept her word for that.
e explore the issue of the noise from amplified music at 8 It's repeated. 'iltey have been told again
9 Augusta's Restaurant and its impacts on residents. You 9 and again to tum it down. 1've experienced just what
10 and 1 haven't spoken about this,so I really don't have � 10 the sheriffs department had said. They tum it down
11 any particular questions for you other than to invite � 11 and right back up. They have exceeded the hours
12 you to share what you would in terms of your experiences 12 repeatedly. It's been worse,probably,the last three
13 with the music. 13 years than it was before that,
14 A 1'll be happy to. 1'll be very brief. 14 There's been comments about November'07.
15 I want to thank the Ciry Council. 1 have � 15 I don't quite know--1 do realize she's probably put
16 been to some of the committee meetings,but iPs nice to 16 money--let me say one thing. This is not about the
17 know it's moving along and gotten this far. I thank you ` 17 restaurant. I've been in there. II's well Ivcated.
18 for your time. 18 It's a lovely restaurant. 'il�ere's good service,good
19 1 don't have an entourage or a pretty 19 food. We don't want the restaurant to close. We've
2 0 T-shiR,but 1 am representing the 30 residents,senior 2 0 lost,wha4 five in the last--less than a year. We
21 citizen residents of Candlewood. I have letters. l 21 need that. The contingent is with the music. It has
2 2 started to copy it all. 1 made eight copies and ran out 2 2 been a sword in everytxxly's side,as you are hearing,
2 3 of paper. But I would like to submit these letters to ' 2 3 for a long period of time.
2 4 whomever accepts them. 2 4 And I have to tell you that some of the
2 5 Q They would go to the city clerk,ma'am. 2 5 residents at Candlewoocl said,There is absolutely no
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1 point The City hasn't a done ihing in al!Ihese years, 1 brief,and that's just about as brief as 1 can get.
2 and they aren't going to do anything now. 2 Q Let me ask you a couple of questions,if 1
3 So we're►vnning on not only indifference, 3 could.
4 but a little bit of resentmen� 1 know that is not what 4 A Sure.
5 you want,and I know thaYs rrot the way that Ms.Benson 5 Q So lel's focus on--
6 runs her political affairs. She's very involved,very 6 A 1'm sorry.
7 concerned. So we are very happy to have the opportunity ' 7 Q I mean,the whole history is important,
e to present this to you. e and that's important to share,but since January,
9 Ttie after hours was a big issue,and it 9 rec:ognizing that some measures have been taken to try to
10 finally came up afler lunch. They have repeatedly-- ! 10 reduce the amount of--
11 two weeks ago it was after 12:00,and they were still 11 A Yes.
12 going. About two weeks ago. Now,1 sleep with my doors i 12 Q --music,that noise that emanates out
13 and windows open,except for maybe lanuary,February, 13 from Augusta's,the question,really,is after lanuary
14 and July and AugusG 7'he door may be cbsed more than 14 of this year?
15 tha�but the windows aze almost open all year round. 15 A You moved it up. It used to be November.
16 So 1 may be opening up myself for the unp{easantness ' 16 Q Well--
17 that 1 get. But that came up about the seasons. And as � 17 A Go ahead. I'm sorry.
18 you know,we have extended seasons here. � 18 Q Because it's not clear to me if some
19 This business of aher November,most of ; 19 things were done in December. 1 think they probably
2 0 the complaints that we've all had have been prior to 2 0 were. So 1'm just uying to go in the more recent time
21 tha�yes. She has invested a great deal of money,yes. � 21 frame. In the past tfvee to four months,have you stili
2 2 We all appreciate that. But it has not solved the � 2 2 found the music to be excessive and disturbing?
2 3 problem,as you have repeatedly heard. And 1 don't know ` 2 3 A Yes.
2 4 why in the world that CUP.Conditional Use Pertnit-- � 2 4 Q Nave--you want to add something?
2 5 yeah,CUP was issued to begin with. She faces ' 2 5 A I just thought of something. At the
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1 commercial,but she backs up to residential income. t 1 beginning of the season,you know,wt►en they cbsed down '
2 That was noG apparendy,considercd at the time that 2 for the sunurxr,everybody breathes a sigh of relief.
3 pertrut was issued. It's all residential. 1 think 3 And when they start up again,we think,Oh,my God,here
4 there's one commercial building at the corner of 4 it comes. Sure enough,it started up with the noise.
5 Portola,and from there on it's all residential. 1 just 5 1 called the Sheriffs ciepartrt�t twice.
6 don't understand why the permit was issued to begin 6 71iis was the very early part of the season,October ,
7 with. 7 maybe,and two times I was told they were not har�dling
8 1 think she can run a very successful e those anymorc,to call the Ciry. Now,I don't know what
9 business,and I think we would all greatly support her 9 happened with anybody eLie after that point,but they
10 in her business if it were confined to just the 10 rofused to respond or acknowlecige. And 1 quit calling
11 restaurant. It would avoid all the problems we're � 11 at that point. I figured sort�ebody--well,l won't go
12 having now. : 12 into what 1 though�
13 I promised to be brief,and 1 am going to : 13 Q When you re at your—whe�you're at your
14 do so. But in the weekend paper,I don't know how many ' 14 home,your apartment,again,in the past several months,
15 of you saw it,and 1'll leave it if you would like, 15 since January of 2008,have you found the music to cause
16 there is a rally,people rallying complimentary beer and ' 16 you discomfort or annoyance?
17 wine. She submitted a foider with,what, I500 ' 17 A lt's been less,but annoying. Yes anc3
18 signatures in it? t contend those signatures are just � 18 yes.
19 absolutely worthless. It's only the people around the � 19 Q And is the experiences thaz you've shar+ed
2 0 area,the immediate area. Take a big step. Go for a ' 2 0 with your fellow resider►ts the same? Do you believe
21 square mile. Those are the people concerned,not the ' 21 that they have shared that annoyance and shared the
2 2 1200 hauled off the street and givcn free and beer and ' 2 2 disturbancel
2 3 wine to sign a petition. (think that's totally illegal 2 3 A Oh,absolutely. But they are really
2 4 and an insult to the citizens of Palm Desert and the � 2 4 precty ticked off that it has taken five years and
2 5 Commission and everyone. And!promised to keep this : 2 5 absolutely no action. We've been here repeatedly again
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1 and again arxi again. !t's like the City just doesn't 1 Q I appreciate you speaking for others,but
2 care about the residents. And I know that that isn't 2 1'm speaking for you.
3 true,but their actions are being inteipreted that way. 3 A Okay. For myselt?
4 Q Now,the ordinance rcally talks about 4 Q How many times have you complained?
5 causing--it being unlawfut to rause that type of 5 A 1 have to hit once a month from the very
6 disturbancc? 6 get-go for myself.
� A Peaceful enjoyment,yeah. 7 Q So what's that? Four or five times a
e Q But the test neads to be people of normal 8 season maybe'?
9 sensitivity. Do you feel like you're a person of nornial 9 A No,iPs a little bnger than that. Pd
10 sensitivity? ; 10 say more like seven.
11 A 1 don't know. My family may argue,but 1 ' 11 Q Times five seaso�s?
12 think so. 12 A When did�hey opeti' October,November,
13 Q And what about the other residents? i 13 December,January,February,March,April,May--eight.
14 You've mentioned it's an older-- 14 Q Times five seasons?
15 A It's a senior citizen complex. We have a : 15 A Uh-huh.
16 couple of them in their 90s there. These people-- i 16 Q So about 40 times?
17 number one,they're not well,so they're pretty ` 17 A Uh-huh. Twice in the original--in the
18 sensitive ro their sleep needs,as can you imagine. ' 18 beginning when I called the sheriffs.1 mean,way back,
19 Many of them have refrained from opening windows that 19 and lefl my name,my God,they said,"Do you want to be
2 0 they ased to cnjoy doing for this very reason. Some of ; 2 0 naified?"
21 them are hard of hearing and don't care whether it keeps 21 I said,"Well,sure." Well,they came
2 2 up or not. You have that percentage in there too. But ; 2 2 knocking oa my door at 2 o clock in the moming to tell
2 3 the oncs that aze astute,or whatever term,alert, ' 2 3 me what they had done. So I quit giving my name and
2 4 there's a great deal of resen[menL Many of them had " 2 4 phone number at that poin�
2 5 hoped to be here. That's why the letters. Doctors' I 2 5 Q Sounds like you and Mr.Harnik have
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1 appointments,and,again,some of them just think you 1 something to talk about. Okay. Thanic you.
2 don't give a Jam. And I know that isn't so. 2 A You're welcome.
3 MR.MUELLER: Thank you,ma'am. 3 MAYOR BENSON: Anything further?
4 THE WITNESS: You�e welcome. 4 MR.MUELLER: Thank you,ma'am. Nothing further.
5 MR.MUELLER: 1 Jon't have any further questions. 5 Is SaraF►Drake here?
6 But Ms.Roberge—no questions? 6 How about AI Cordel?
7 THE WITNESS: Thank you. 7 Now about Shirley Frazier?
8 MR.MUELLER: There may be a couple from Council. : 8 How about lohn Moms?
9 9
10 EXAMINATION ' 10 10HN MORRIS,
11 BY MR.FERCUSON: 11 called as a witness on behalf of the Ciry,
12 Q I have two yuestions. You said it's been 12 was examined and testified as follows:
13 five years? � 13
14 A Approximately,give or take. My memay, 14 MR.MORRIS: How are you doing?
15 about five or six years. Almost from tt►e inception. ' 15 MR.MUELI.ER: Very well.
16 Q Have you complained during that five-yeaz 16
17 period? 17 EXAMINAT(ON
18 A Yes,every--yes. 18 BY MR.MUELIER:
19 Q About how many times have you complained? I 19 Q Mc Mortis,could you spell your last
2 0 A Oh,I O, I 2 times a season,a once-a-month ' 2 0 name,if you would for the court repater.
21 minimum 21 A M�o-r-r-i-s.
2 2 Q Fifty? Sixty'I 2 2 Q And sir,do you reside in the area
2 3 A 'il�ereabouts. And 1'm saying not me ' 2 3 imrnediately around?
2 4 individually,but collectively,of the ones[know that 2 4 A Yes,Shadow Mcwntain Rr.soit.
2 5 are also,[rate enough-- 2 5 Q CouW you just point it out in rcference
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1 on the map? 1 heard two officers testifying. I've got the police
2 A 1Ps right here. This is our area right 2 report here,too,which talks about one of them being
3 here,this Club Circle Drive. And right between 3 five minutes to 12:00.
4 San Luis Rey and Pcxtola,right there. 4 'il�e lady that he talked to said,Wcll,the
5 Q Sir,have you in the past been a person 5 people wanted an encore,so they gave an encore. And 1
6 who has reported complaints about the noise emanating 6 can understand that once in a while if it wasn't,maybe,
7 from the amplified music from Augusta's Restaurant? 7 not a continuous thing,but just to clarify the record.
8 A Yes,1 have. 8 Then in the spring of 2007,I was
9 Q How many-- 9 informed that measures were being taken Juring the
10 A Police calls and eventually to the City ' 10 summer of 2007 to conswct a roof or something on the
11 code enforcement people. 11 outside area and a wall around it and that would abate
12 Q And are you associated with the resort `: 12 the noise. And at that time they were given permission
13 itself,Shadow Mountain Resort? ' 13 to go ahead and finish the spring into the summer with
14 A Yeah. If 1 could speak a litde bit about 14 their music,which was fine,okay,because we thought
15 that? ; 15 something was going to happen.
16 Q Please. Tell me what your position is and ' 16 Okay. In 2007,the noise was as before.
17 what your expe�ience is. ' 17 The measures of whatever they did do didn't appear to be
18 A All right. Shadow Mountain Resort is a ; 18 of any hetp. So 1 attended the Planning Commission
19 hotel operation. Okay. We have about AS to 90 units in 19 meetings arid spoke there. And that's why I'm o�e of the
2 0 the hotel program ranging from 200 bucks a night to 600 : 2 0 red Xs on the board.
21 bucks a nigfit,ancl we pay your nice 9 percent ciry tax, 21 Now here we are today. As of this spring,
2 2 which runs about 18 to 54 bucks a night per unit. So we � 2 2 we here at Shadow Moantain are presently no longer
2 3 aze a legitimate hotel operation. We have a management � 2 3 hearing the loud band noise from Augusta's anJ have not
2 4 company that operates the hotel for us. ; 2 4 received any more complaints from our guests or our
2 5 Okay? We advertise very heavily in the � 2 5 neighbors. So whatever measures they took,whether they
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1 tennis magazine because we arc primarily a tennis 1 twned the volume dowa,bui11 a roof,padded the walls,
2 resort,if you will,although we do have other guests 2 whatever they did--I haven't been over there--seems
3 that do come to our facility for just the enjoyment and i 3 to have abated the noise at least up at our level of
4 the peaceful desert ambience. � 4 where we are. Now,there's a wall between us and the
5 For several years I called--going back 5 neighbor here that talked,which may help also. But we
6 to at least 2006 when 1 started keeping records,and 6 haven't had any more cor►�laints. Okay.
7 probably,maybe,2005,somewhere in there,calling the ' 7 So f comrnend the efforts of the code
8 police number which we were told to call. And rathing ' e enforcement goup and the Planning Commission for
9 ever really happened. And then they started telling us 9 hanging in there and Uying to correct this issue. My
10 to call the City Hall eode enforcement people,which we � 10 concern now,from a hotel operation is,is it going to
11 did. Anc!then 1 got in touch with--l ihink it was �i 11 stay that way? What kind of assurance do we have
12 Shawn Kilpatrick was the first man that 1 met with. ' 12 that--if they kaep the music down like this,it's
13 I then--Okay. My complaint was that the 13 fine. What assurance do we have that it won't go bxk
14 noise was injurious to our hotel operation because we ; 19 up and it won't go past l 1:30 or whatever?
15 had hotel guests calling our office and saying,What's ; 15 So 1'd like to just summarize it,whatever
16 the noise? What's going on? And that interferes with 16 they've done seems to have abated thc noise at our level
17 our business aspect. We also had people who lived to ' 17 sufficiendy that we're not bott�ed with it. But 1'm a
18 the south of us on the Shadow Mountain golf course that i 18 little concerned about the future. And I hope it stays
19 were calling,thinking the noise was coming from us. 19 down like it is now. So any questions?
2 0 And even though we would tell them it isn't,then we ; 2 0 Q The conditions will remain in effect,sir,
21 were still getting these caUs. ; 21 but are ycw suggesting,or do you think that the
2 2 So I started working with the complaint-- ' 2 2 monitoring this spring by staff has had an impact on the
2 3 or the code compliance people here to try to see if we ' 2 3 sound,a do you think that the sound measures that have
2 4 could do something. Tt►is is clear back in 2006. Okay. ; 24 baen built into the premises have had an impact? Or do
2 5 Now,the levels did go beyond the l I 30 point,as you ' 2 5 you know?
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1 A WeU,1 would assume they go hand in hand. 1 MAYOR BENSON: Many..hould we have a ten-minute
2 1 wouid assume that the material that they hung up and 2 break here?
3 the abatement that they did had a de�nite effect on iL 3 MR.MUELLER: Okay.
4 Because we don't really hear it like we did before. 1 Q MAYOR BENSON: We 11 take a ten-minutr brrak.
5 can hear a little music,but I mean,iCs not the loud 5 (A brief recese wa�takenJ
6 blasting like it was beFore. 6 MR.MUELLER: Are wr ready to proceed?
7 So in combination of the code enforcement � MAYOR BENSOfY: Go ahead.
8 people being lhere to monitor and them working at 8 MR.MUELLER: Mr.Terfehr,I'm going to defer you
9 getting it correct,I think,has paid off. So yeah. � 9 just for a minure and take thi,opportuniry to call a
10 MR.MUELLER: I have rxnhing further. l0 few additional re�ident�in the immediate azea.
11 Ms.Roberge. 11 If t could call Don Melvin.M�-I-v-i-n.
12 MS.ROBERGE: No. Thank you very much. 1z
13 ! 13 DON MELVIN,
14 EXAMINATION 14 called ati a witnes.+on bchalf of the Ciry,
15 BY MR.FERGUSON: ' 15 wae examined and te�tified a�follows:
16 Q 1 have one question. 16
17 A Sure. ' 17 EXAMINA710N
18 Q Regardless whether it was code compliance. ' 1 g BY MR.MUELLER:
19 fear of officers showing up,irxlustriousness of 19 Q (Jood aftenwon.Mr.Melvin.
2 0 Ms.Roberge,if they continue to operate the way they do ' 2 o A Good afternoon.
21 now,would you perceive it to be a problem? 21 We live on Goldrnrod Avenue.which;s
2 2 A No. ' 2 2 beyond any of the red marks. It's a couple hundred feet
2 3 MR.FERGUSON: Thank you. 2 3 below Grapevine. And we hear the music.admittedly.of
24 MR.MUELLER: lohnny Terfehr. 24 latr at a lowrr volume,but it ha�bern w offrnsivr to
2 5 /// 2 5 us--and we feel wr are reawnable people--that you
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1 JOHNNY TERFEHR, 1 cannot hold a quiet conversation on our back patio when
2 called as a witness on behalf of the City. 2 the music is playing. And they're probably a mile from
3 was examined and testified as follows: 3 us.
4 4 Q Is this--how long have you lived at the
5 EXAMINATION 5 residence there,sir?
6 BY MR.MUELLER: 6 A We've lived there about seven years.
7 Q S'v,your position? 7 Q And is it fair to say that over the past
8 A Johnny Terfehr,code compliance officer 8 several years when the amplified music on Fridays and
9 with the City of Palm Desert. 9 Satuniays is being played at Augusta it has disturbecl
10 Q And how long have you been in that 10 you--
i l position? ' 11 A Absolutely.
12 A Six years. i 12 Q --and annoyed you'?
13 Q 1 would ask you to spell your last name 13 A You can't dine outside and converse
14 for the court reporter. 14 yuiedy with that music going.
15 A T-e-rvf-e-h-r. 15 Q What about if you go in your house and
16 Q If you look at Exhibit E in the book in 16 shut all the doors and windows,can you make it go away?
17 front of you,yai II see-- ; 17 A Possibly. But I don't feel that we live
16 MR.ERWIN: Mr.Mueller,Pm sorry to intemipt. 18 in South Palm Desect to have to cbse our doors and
19 Ms.Roberge has left the room. 1 think we should wait 19 windows to enjoy the temperature,which is one of the
2 0 until she gets back. 2 0 reasons we live here.
21 MR.MUEL.LER: 'it�ank you. 21 Q A fair statement.
2 2 MR.FERGUSON: Well,I'm going to leave the room, ; 2 2 Now,since January--and yai ve hearcl,
23 too,brieFly. � 2 3 and 1 think it's we that efforts have been made to
24 MR.MUEL.LER: It looks like we ie havi�g a 2 4 reduce the noise and to mitigate it--has the volume
2 5 five-minute break here. 2 5 reduced to a level this year that it's no longer
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1 annoying or no longer distufiing to you? + 1 area--and it's a beautiful area and restaurant. I
2 A Let me say that it is of a lower volume. I 2 don't feel that amplification is necessary.
3 But I can tell you that if my neighbor was playing a � 3 Q But without it,would you hear it,the
4 radio as loud as we're hearing the music,I would be in � 4 music,where you live?
5 his face. � 5 A I have no way of knowing that. 1 doubt
6 Q So is that to say it's still disturbing'? ' 6 it. But inside the home you can hear the base.
7 A It's still disturbing. ; 7 Q That's with the amplification?
8 Q Have you in the past been one of the ; 8 A Right.
9 people who has either called the sheriff or called the ' 9 MR.SPIEGEL: Okay. Thank you.
10 Palm Desert code enforcement officers? ' 10 MR.MUELLER: 7liank you,sir.
11 A 1 have called them,but 1 did not-- ' 11 THE WITNESS: Thank you.
12 simply to ask them if they could find cwt the source of ; 12 MAYOR BENSON: Any other questions?
13 this noise and if they could do something about iL 1 ' 13 MR.MUELLER: At this time I call Jce Ligens,
14 did no[leave a name or a phone number. 14 L-i-t j-e-n-s.
15 Q Are you here today looking to--I mean, 15 MR.SP[EGEL: ['m sorry,how did you spell your
16 is it ycwr preference that there ncx be amplified music ; 16 last name?
17 at Augusta's in the evenings? Or what's your position ; 17 JOE LITJENS,
18 on that? ': 18 called as a witness on behalf of the City,
19 A My position is that they have an area, ; 19 was ezamined and[estified as follows:
2 0 perhaps,three or four times the size of this enclosure : 2 0
21 that they're entertaining. I don't believe that 21 EXAMINATION
22 amplification is necessary and,certainly,not to the ' 22 BY MR.MUELLER:
2 3 extent that it is. � 2 3 Q Sir,is your name spelled?
Z 4 MR.MUELLER: Thank you,sir. 24 A Jce Litjens,L-i-t-j�-n-s.
2 5 Ms.Roberge,do you have any questions? � 2 5 Q And are you a resident of the area in Palm
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1 EXAMINATION 1 Desert near the Augusta's--
�
2 BY MS.ROBERGE: � 2 A For the last 10 years.
3 Q Excuse rre. Mr.Melvin,if the gentleman 3 Q And where do you live,sir?
4 before you from Shadow Mountaia Resorts says that in the ' 4 A 46--on the Goldenrod Lanes,same as the
5 last—from November that he is very satisfied with the 5 previous gentleman.
6 level of music,and it's not a problem for him,and he's 6 Q And why are you here today,sir?
7 quite a bit closer to the restaurant than you,l'm 7 A I've complained for the last four yeazs.
8 surpriscYi that you can still hear it 8 I've called the City,left my name;nobody returned my
9 A Are you? � 9 phone calls. I called the restaurant,left my na►ne. 1
10 Q Uh-huh. 10 asked for the owner,no owner. 1 asked for the general
11 A Welt,maybe my hearing is better than his. i 11 manager,rro general manager. The poor hostess,she had
12 Q Well,he was representing—he said he ! 12 to take the brunt of my irate phone call,not o�xe,a
13 had a resort that was representing 60 to 80 people. ; 13 half a dozen times.
14 A I'm just one person,and I can hear it, � 14 Q What have your--we're here specifically
15 and 1'd rather na hear it. i 15 talking about,today,the amplified music that cort►es
16 MAYOR BENSON: Do you have any aher questions? `. 16 f'rom Augusta s on the patio on Friday and Saturday
17 i 17 evenings. What have your experiences been in tertns of
18 EXAMINAT(O(Y 18 hearing that music at your prcipecty?
19 BY MR.SPIEGEL: i 19 A When we have--when we entertain on the
2 0 Q 1 have one quick question. 2 0 patio,1 don't need to hire entertainmer►t. I just tell
21 A Yes. ` 21 the people that we get free entertainment. That's how
2 2 Q Do you feel,Mr.Melvin,that without any 2 2 loud it is. A[one time in the hospitality industry,
2 3 amplification it would be any bother at all'! ; 2 3 1'm retired.and 1 thought maybe I'd open up a
24 A I think it would be a wonckrful vcnue fa 24 restaurant,but 1 don't need to hire a band.
2 5 music. But my point was that you have—you have an � 2 5 The lady also said,"Well,can you hear it
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1 inside the house?" Well,she can come into my house. 1 MR.MUEU.ER: I don't have anything further.
2 I'm mamed. The minute we go to bed,we hear the music " 2 MS.ROBERGE: No questions.
3 loud and clear. We can dance to it if we wanted to. We 3 MR.MUELLER: Ms.Roberge? Members of Council?
4 can listen to the wcxcls that are being spoken. She's 4 MR.FERGUSON: 1 do. And it's just an
5 welcome to that. 5 observation for the city attomey. I know this is ncx a
6 Q Is the-- 6 court of law. 1 know the Califomia rules of evidence
7 A It's very offensive. And what it does, 7 don't apply. But we've had so many leading questions
e you want to sleep,and 1 might sleep only about five 8 and so much hearsay,that if he thinks Mrs.Roberge
9 hours. But 1 get upset t�ecause my night rest is 9 ought to lose her CUP,he's perfecUy capable of saying
10 disturbed forover. Last Saturday it was so noisy again, 10 so without it being suggested to him by the counsel for
11 I was about to call. Ycw ask�if you heard it past 11 the City,and 1 would just ask that we have no rrare
12 lanuary. Yes. 12 further{cading questions in that regard.
13 Q Well,thaPs one very important question, ' 13 MR.ERWIN: I assume that would be applicable to
14 is whether things have gotten better,and,since 14 everybody.
15 January,whether or not the music is disturbing or � 15 MR.FERGUSON: To everybody.
16 annoying to you. Is it,sir? 16 MR.ERW IN: Okay.
17 A Oh,no. I tum the TV up,so I twe them ' 17
18 out So 1 tum the TV up inside,the volume of my TV so 18 EXAMINATION
19 1 can t hear. But the minute you walk outside,you 19 BY MR.SPIEGEL:
2 0 might as well start dancing. 2 0 Q I have one question.
21 Q Well,specifically,sir,does the music '': 21 It bothered me when you said that you
2 2 from Augusta's diswrb you'! 2 2 called the City and no one respooded. Did you have any
2 3 A It is the loud noise that comes from 2 3 particular departmrnt that you called where they didn't
24 there. The music 1 have no problem with;however,when 24 respond?
2 5 Augusta was announced in the papers that they would have 2 5 A Yeah. I called the City managers office.
Page 163 Page 165
1 outside entertainment,we all thought,because a 1 'ihen 1 was routed through the departments. t left my
2 high-end restaurant,a high-end art department down 2 name and phone number.
3 there,they would also have high-end night 3 Q And nobody retumed your call?
4 entertainment. Well,like 1 said,1've been in the ' 4 A Nobody has come by the door and asked me
5 hospitaliry industry a long time,and to me,the 5 or rewrned my phone call.
6 amplification just destroys the whole ambience of 6 Q Has this happened more than once?
7 whatever they are creating down there. And it creates ' 7 A Twice.
8 cwr ambience at home. 8 Q Twice?
9 Q So it's the ampliticaticm that bothers 9 A Twice.
10 you? 10 Q "ihank you.
11 A Absolutely. 11 A 71iis is in'06,'07.
12 Q Anything else that you wish to share with ' 12 MR.SPIEGEL: Thank you.
13 the Councif in terms of your experiences? I take it, 13 MR.MUELLER: Thank you,sir.
14 from your comments,yai re here advocating that the 14 THE WITNESS: 'Ihank you.
15 ;unplification should be eliminated? 15 MR.MUELLER: Thank you.
16 A Yes. 1 have been listening all moming. 16 I'd call Beverly Buries.
17 and the amplificazion and the measurements that they ; 17
18 take,1 would imagine that it's--for an outside I 18 BEVERLY BURIES,
19 restaurant should be different than for an indoor � 19 called as a witness on behalf of the City.
2 0 restaurant and an indoor entertainment center. 2 0 was examined and testified as follows:
21 If the same measurements apply to the ! 21
2 2 indax and the outdoor,it dcesn't matter what you set i 2 2 EXAMINATION
2 3 it at,55 or 45; it will always be too loud because 2 3 BY MR.MUELLER:
2 4 there's a difference of the noise level[hat projects to 2 4 Q And could you state your name and spell it
2 S the outside. 2 5 for the record.
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2 A My name is Beverly Buries.B-u-r-i-e-s. 1 well,well over the exceeded--well,over the accepted
2 Q And do you live in the area near-- 2 level. 1 mean,i[sounds as if iPs lxing amplified
3 A I do,45-831 Mountain View,which is one 3 outside my door. And I do find it very offensive.
4 of the monitoring sites,I believe. 4 Ms.Roberge continues to say and harp on,
5 Q Have you complained in the past about-- 5 "Did you go inro the homes?" She wants her outside
6 A Many times,numerous times. 6 space and to be able to enjoy that and have her patrons
7 Q --about--specifically about the 7 to do that as well. I,as a resident,who pay my taxes,
8 amplifieci music from Augusta's? ' 8 want to be able to entertain my friends arxl my neighbors
9 A Yes. 9 on my back patio. Or if I just want to sit out and read
10 Q Could you share with the Council what your l 0 a book,I want to be able to do that in peace and quiet.
11 experiences and reaction have been to the level of 11 Q Lec me just ask you,though:What have
12 amplified music coming from Augusta's? 12 your expe►iences been since January I st of this year?
13 A Well,it just goes on and on and on every ; 13 Has it gotten better,and is it ra longer--
14 weekend. And it goes on and on and on past I I 30. l i 14 A The sound has been attenuated somewhat,
15 chink we're beating a deaJ horse if we think that it 15 yes.
16 tums off at I 1:30. !t doesn't. !t goes on. And if 16 Q But the question is,on an ongoing basis,
17 it's one encore or two enrnres or three encores,it's i 17 whether it continues to be disturbing or anraying to
18 well past the time that we should be able to experience : 18 you?
19 yuiet in our own homes or on our patios. !f it's I I 30, 19 A Well,1 think that here--!think that
2 0 and we want to be on our patio,I should be able to do 2 0 the City Council,as well as the residenu--I know the
21 that. ' 21 residents are very concerned about this. History has
2 2 Q Have you personally been disturbed by the i 2 2 proven itself in this siwation to be a very poor
2 3 music? 2 3 predictor of what will go on in the future.
2 4 A Yes. 2 4 This--1 know 1 have reponed this since
2 5 Q Have you ever found it to be annoying? � 2 5 '02. I have reported it consistently when it's
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1 A Oh,yes. 1 happened. I've written letters over azxl over to the
2 Q Have you expressed that to either the 2 City Council,to the Planning Commission. It's not a
3 sheriffs office or to-- 3 new bit of news to any of us. I know that it was popped
4 A Both. 4 in and out of departments to be handled at different
5 Q --staff? 5 times,which may have accounted for the fact that
6 A It took a long time for me to understand 6 certain calls weren't returned. Because there was a
� that a call to the sherifFs department to report this 7 time when you called code enforcement,and it was no
e is not an automatic report to the City. But once I was 8 longer being handled by code enforcement,it was being
9 informed of that,then I followed that procedure. I 9 handled by the City managei s office. And so if you
10 advised my neighbors of that procedure;that when you 10 weren't willing to follow that trail,you would not get
11 call the sheriff,and you notify them,even if they do 11 any response.
12 go out and turn it down right away,that you need to i 12 So,you know,that,1 think,is a big part
13 contact the City code enforcement the following Mo►xiay ; 13 of what's gone on here.
14 and advise them so that they will have a record of it. � 14 Q But the question is,Does it continue to
15 And 1 have always given my name. Absolutely no 15 be a problem or not a problem after--
16 hesitation. ` 16 A 1 feel it is a problem.
17 I had no idea that had l had the--that 1 17 Q That's the question herein.
18 would have had the oppcuiunity to go make a citizeds 18 A And I think are we going--!mean,if we
19 arrest because either 1 or my husband would have been � 19 say,okay,the Conditional Use Permit will continue,do
2 0 there,lohnny on the spot. � 2 0 we have any guarantees with our sheriffs not responding
21 Q Why is that? 21 that that level would be below an acceptable level to
2 2 A Because it's loud. It's very offensive. 2 2 individuals in their homes in the community? 1 know
2 3 It gces on--1 mean,there were years when we had the � 2 3 it's probably a great place to go and really enjoy the
2 4 Janis Joplinesyue singer amplified into our backyards. 2 4 music and dance. 1'm raising a l7-year-old,so let me
2 5 And 1 can tell you,1 mean,it had to have been well, 2 5 tell you,I hear lots of music. But I don't want to
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1 hear it after 11 o'clock at night,and I don't want to ; 1 Q Well,the gendeman at the Shadow Mountain
2 have to close my windows and doors to be able to enjoy � 2 Reson said that he was content with the music at 55.
3 my property. 3 A I can't speak for him,Ms.Roberge.
4 MR.MUELLER: Any questions,Ms.Roberge? 4 Q No,but 1'm just sharing with you.
5 5 A 1 heard him.
6 EXAMINATION 6 Q Okay.
7 BY MS.ROBERGE: 7 A And 1 also heard Brian,who lives down the
e Q 1'm sorry,I didn't get your name. ` 8 street from me,who said that his children are
9 A Beverly Buries. 9 frightened by your music at times. That's true. It's
10 Q Excuse me,Ms.Buries,if we were able to ; 10 really true. When we put our kids to bed,we don't want
11 keep the sound at 55 decibels,if I heard you right, � 11 to have to close our windows and our doors to blc�ck out
12 then that would be something that would be acceptable to ; 12 your sound. And che fact that it's taken this period of
13 you? 13 time to affect a change? Why did it only take one
14 A No,you did not hear me say that. 14 year--up until this year? Nothing was done. When 1
15 Q Okay. I thought you said that it was okay ' 15 call your establishment at midnight and the phone--no
16 for you now,and we're at 55. 16 one will pick up the phone when 1 call to complain prior
17 A No. Go ahead. 1'm sexry,1 didn't mean 17 to calling the sheriff,t really am offended by that.
18 to interrupt you. ' 18 The music is still going. Somebody is still there.
19 Q Go ahead. ; 19 Q You know,Mrs.Buries,the music has not
2 0 A No. The sound that is projected to my � 2 0 been going after 11:30.
21 home,as has bcen cited about several other homes--and � 21 A But 1'm saying historically,when 1--
2 2 1 know that there are air currents that carry our sound , 2 2 MR.ERWIN: Ma'am,and Ms.Roberge,let's not
2 3 differendy in the valley here,but the sound at my home ' 2 3 have a discussion back and forth. This is question and
24 is extremely loud. And when it comes to past 24 answer,please.
2 5 10 o'cla:k,I want that music turned off. That's what 1 � 2 5 MS.ROBERGE: Okay. Sorty.
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1 want. f don't want to be told that you need to be ' 1 MR.MUELLER: Any further questions?
2 inside with your windows closed or that if the code 2
3 enforcement fellas come out to monitor that sound they 3 EXAMINATION
4 have to come into my house to monitor that. That's 4 BY MR.FERGUSON:
5 silly. You want to use your outside space;I want to � 5 Q Just a quick one. How many times would
6 use mine as well. If Cm in my Jacu�i,and I have my � 6 you say you've complained?
7 jets going,I don't want to hear your music three blocks 7 A Oh.1've probably complained 35,40 over
8 away. And I do. 8 the years.
9 Q Well,you know,we twth live in an area ' 9 Q Accumulative,35 ro 40?
10 that we have to abide by the codes. Mine allows me SS. ; 10 A Yeah,each time giving my name and
11 And we also want to use our patio. And if we brought ' 11 addr,ess.
12 the music level down to 55--and,as they said in 12 MR.FERGUSON: 1 apprec;iate that. Thank you.
13 Shadow Mountain Resort,they're fine with it. There's 13 MAYOR BENSON: Any other questions?
14 give and take. 14 MR.MUELLER: Mr.Terfehr.
15 A Well,1'm right behind them,and I-- 15
16 MR.ERWIN: Can 1 intertupt? 16 JOHNNY TERFEHR(cont.),
17 THE WITNESS: --and I do not concur with that. 17 having been recalled as a witness
18 MR.ERWIN: Pardon me. Ms.Roberge,ask a 18 on behalf of the City,
19 question,please. 19 was examined and testitied as follows:
2 0 BY MS.ROBERGE: 2 0
21 Q Are you behind Shadow Mountain? ; 21 EXAMINATION
2 2 A fm right behind Shadow Mountain,yes. ! 2 2 BY MR.MUELLER:
2 3 Q Shadow Mountain Resort'? ; 2 3 Q Sir,your name again for the record?
2 4 A Yes. So at three biocks from your Z 4 A Johnny Terfehr,ccxte compliance officer
2 5 establishmenL 2 5 with the City of Palm Desert since January of 2002.
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1 Q Great. Mr.Terfehr,if you look at 2 made up your mind going out there that the music was a
2 Exhibit E,it includes the tabs from November of 2007 , 2 problem?
3 through May of 2008,and,behind those,a series of many ; 3 A Actually,the opposite is true. Doing the
4 reports,and many of those reports are labeled from you 4 readings,I thought that,you know,it was--1 like
5 to Mr.Ponder. 5 that kind of music. That's my era of music. And you,
6 Do you see that? 6 know,the music didn't bother me. When I went out to
7 A Yes,sir,I Jo. 7 those locations it was surprising to me how loud it was.
e Q Have you seen these documents before? 8 It almost--I almosl perceived it as being louder than
9 A Yes,sir. 9 right where t was doing the metering. Although,you
10 Q These are your reports? 10 know,when!did it again,it wasn't,it just--the
11 A Yes,sir. 11 sound kind of reverberated through there somehow.
12 Q Have you also dor►e what's called � 12 Q Have you been involved with rcceiving or
13 reasonable person observations yourself of the impact of ' 13 responding any of the complaints from members of the
14 Augusta's amplified music on the residential community? 14 communiry to the City to Code Enforcement?
15 A Yes. 15 A No,all the complaints were referted to
16 Q And if you look at Tab G,page--it looks 16 che officer handling the case.
17 tike page 13I,is that your report? 27 Q So your involvement has been in taking--
18 A Yes,sir,it is. 18 monitoring readings and then the reasonable person
19 Q Is everything on that report accurate? 19 observations:is that cortect?
2 0 A Yes,sir. This appears to be the report 2 0 A That's correct.
21 that 1 filed. ; 21 MR.MUELLER: 1 really have nothing further.
2 2 Q Now,aside from just the repo�t,can you � 2 2 Ms.Roberge.
2 3 tell me about this reasonable person observation? What ' 2 3 EXAMINATION
2 4 Jid you do,and what did you observe? Tell the Council, I 2 4 BY MS.ROBERGE:
2 5 please. 2 5 Q Hello. Excuse me. 1 have to ask you this
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1 A Basically up to this point I was just 1 question: The gentleman just before you from Desen
2 taking readings with a meter. But I was asked to go out 2 Mountain Resort Hotel said that at 55 he's content and
3 and do the reasonable person approach and listen at the 3 there isn't a problem there. Then how come with
4 various locations indicated on the map. When I did that 4 tracking the music on March the 17th,you state there is
5 at the locations that are nearest to Augusta's.1 was 5 a problem there and that you could hear everything? Do
6 quite surprisad about how loud the music was. At places 6 you think this gentleman would be making this up when he
7 likc Shadow Mountain it was very much reduced,but you ; 7 first came here to complain but has now changed his
8 could still hear the music. 8 mind?
9 Q Did you--the last line,or next to the 9 A Well,what 1 understood was he said that
10 last line in your repoR,on page 13 I,says."1 believe ' 10 it was a level that was no longer distutbing to him. As
11 that if 1 lived at any of these locations,1 would find 11 1 stated,the area--the locations closer to your
12 the noise level to be disturbing." � 12 restaurant were much IouJer. At his place I would have
2 3 Do you seP that statement? 13 to,you know,spend the night�to really know for
14 A Yes,sir. 14 sure if it would be disturbing to me. But it seemed
15 Q Could you--first of all,would that ! 15 like 1 could hear it,I could hear the words. To me,
16 level of diswrbance be different depenJing on which of ' 16 that was enougfi to say that it would be disturbing.
17 the red dots we were at? 17 Q Do you think if he could hear the words,
18 A 1 believe so. Obviously,on probably the ' 18 that he would have called that disturbing?
19 four closest--I'm a person that sleeps with my windows 19 A 1 can't commem on what he might.
2 0 open,and[wouldn't be able to do that at those i 2 0 MS.ROBERGE: Welt,he didn't.
21 locations. And then the farther one is away,perhaps 1 ` 21 "Il�ere's really nothing else 1 have to ask
2 2 could,depending on the nature of humidity that night or ' 2 2 you.
2 3 whatever the atmosphere conditions were. 2 3 MR.MUELI.ER: Any questions from Council'?
24 Q Tell me,sir,did you--in going out to ` 24 'ihank you,sir.
2 S do the reasonable person observation,had you already ; 2 5 Shawn Kilpatrick.
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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;cortoct?
5 EXAMINATION 5 A 'ihat's t�ve.
6 BY MR. MUELLER: 6 Q If we look at the next pages,for example,
7 Q Sir,could you state your name for the ' 7 pages 81,82,is that another report of yours?
8 record and spell your last name for the court reportec ; e 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-hcwr average?
11 A Code enforcement officer since April of ; i l A That's cortect. �
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 infortnation?
14 issue of noise complaints or noise level 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 Cve been the case officer handling '' 16 do you obtain that information,do you make those
17 complaints,doing the meter readings,and conducting ; 17 recordings?
1 S reasonable person observations throughout this case. � 18 A On Larrea Street,south of the restaurant,
19 Q There are instances,1 believe,in 19 east of Prickly Pear,at the same location that we've
2 0 Exhibit E which are the month-to-memth recordation of 2 0 consistendy taken these readings.
21 data. ; 21 Q Now,you have also t�een involved in
2 2 MR. KELLY: Can we have a page number,please? , 2 2 receiving complaints from members of the community;
23 Because sometimes I miss the G and E. lust the page ' 23 correct?
2 4 numbers are very helpful. � 2 4 A I am the complaint clearing house.
2 5 /// 2 5 Q Over the years,how often have you
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1 BY MR.MUEL.LER: � 1 experirnced receiving complaints'? What kind of
2 Q Sure. In Exhibit G[sic],for example, 2 freyuency'!
3 sir,if you tum to page 0079. 3 A Starting in the falt,it's like clockwork.
4 A Exhibit E. 4 'ihey begin and continue until the spring or end of
5 Q 1'm sorty,yes,Exhibit E. I may have 5 seascx�,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 ttvough 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 dealt with
10 Q Is this a report which you prepared,sir? ' 10 sort►e complainants who you had the opinion of were
11 A That is correc� 11 reasonable versus other complainanu whose complaints or
12 Q And tell me about this rt�port. What is it ': 12 the person's mannerisms seemed unreasonable to you?
13 a report of? 13 A 1 have. 1 have dealt with complainants,
14 A It's a report where 1 took a one-hau 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 conceming
18 A "ihe results of which are reflected in the ; 18 Augusta's?
19 graphs on the second page,page 80. 19 A 1 have not. In fact,regarding these
2 0 Q N�»v,on this particular evrning--which ! 2 0 complainants,it's likely that 1 would never have gotten
21 was March 21;correc�t'? ' 21 the opportuniry to meet any of them or speak with any of
2 2 A Yes. 2 2 them if it were noi fcx 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 noise level that you--that you obtained from your 2 4 neighbatroal to try to make your own observations of the
2 5 monitoring oa a cxie-hour basis? 2 5 level of disturt�ance that the amplified music makes?
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1 A 1 did. 1 Q Are there any other observations that you
2 Q At Exhibit G,there are a number of 2 feel you need to share with the Council conceming
3 e-mails and memos that make reference to reasonable 3 issues at Augusta or noise at Augusta that we haven't
4 person observations. And 1'll tell you,if you bok at 4 touched on'?
5 Exhibit--at page I 26,there's a memo with your name on ' S A Well,1 think there's mention that's been
6 it. Do you s�.•e that? 6 tossed around that after November 7th thcre's been no
7 A f do. 7 complaints. And that's ncx necessarily we. As
8 Q Is that a document you prepared? 8 Mr.Litjens,I think,haci inclicated,he haci called. And
9 A It is. 9 at that time code enforcement was removed from the
10 Q Is everything in that memo--if you want 10 process as far as case management goes,which is why our
11 to take a minute to read it. It's a memo from you to i l code packet only contains repoils,sound meter reports,
12 Hart Ponder,code compliance manager. Is everything in 12 1he things that we were directed to do. So
13 that memorandum accurate? 13 calls would come in. I would receive 1hem,and 1 woulJ
14 A It is. It's accurate. 14 forward them up,you Imow,to Planning Department,to
15 Q Tell the Council,if you would,about what 15 Council secretary,and stuff like that So complaints
16 you diJ and what you observed. And really,what was it 16 did continue after November.
17 like going out there? What did you hear'? 17 MR.MUELIER: Thank you.
18 A As Ryan Stendell indicated,we all went 18 Ms.Roberge,any questions?
19 out to the various locations indicated on the map to see 19
2 0 if we could hear what the complainants were claiming. ' 2 0 EXAMINATION
21 As Officer Terfrhr stated,you can be metering,and the 21 BY MS.ROBERGE:
2 2 mecering levels may come in at 55 or below and one would 2 2 Q Mr.Kilpatrick,how come when we asked you
2 3 think,well,gosh,it can't be any louder the funher 2 3 we would like to laww the number and the names of the
24 away that you get,and my observations at these 24 complaints in the last six months,four rmmths,we could
2 5 locations indicated otherwise. It was surprising that 2 5 r►ever get that from you7
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1 we would get to a spot and 1 couki hear a song. 1 could 1 A Yeah. And that's something that we
2 make out the lyrics to the song and the music. Granted, 2 typically don't just dole out. Whenever we,receive a
3 there's somc locations the funher away that you get 3 complaint,as my supervisor men[ioned,we ascertain the
4 where that level is much lower,but in areas like 4 validity of that complaint,and if iCs so,it's noted.
5 Mountain View,Shadow Lake,and Shadow Mountain,they 5 We don'[give reporting party infortnation out,unless
6 were particularly disturbing. 6 it's subpoenaed or requested.
7 Q From going out in the neighbcxhoocis,did ' 7 Q Well,we didn't ask you for the names. We
e you devebp an opinion as to whether the level of 8 asked you for the loc:ations so we could also go and test
9 amplified music from Augusta's at that time was 9 that.
10 disturbing or irritating or whether it would be to you 10 A 1 think the loc:ations are enumerated on
11 perscmally if you lived in those communities? ` 11 the map.
12 A For me,if it was something that occurreci � 12 Q So then ycxi re saying that you have seven
13 occasionally,I think,as the one resident indicatecl, ! 13 locations of complaints?
14 that,hey,if maybe a Friday night cx a Saturciay night � 14 A That's co�rect. And probably more.
15 my neighbor has a party,it wouldn't dismrt�me. My son 15 Q Well,seven locations a more?
16 is in a band. My neighbors have band practice about 16 A That is cotrecL We have seven
17 three times a year,and it dcesn't botf�er me. But to ` 17 documented. These are citizens who have said 1'm
18 oc;cur chronically every weekend,I woulJ have a problem ` 18 Citizen A,l'm Citizen B,and 1 live here,and 1 want to
19 with that. 19 know what you're doing about it.
2 0 Q Did you develop an opinion as to the , 2 0 Q Would it have been unreasonable for you to
21 reasonableness cx unreascmableness of the complaints 21 have shared with us so that we know who those seven
2 2 that you had been receiving from the complainants who 2 2 citizens are? Because you have given us the names of
2 3 were residents? 2 3 those. Wcwld it have been unreasonable to have said to
2 4 A I developed an opinion that their '. 2 4 us it's the same seven citizens?
2 5 complaints had valid--had merit. ` 2 5 A Are you interested in the locations or the
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1 names of citizens? 1'm confused. 1 him your question'?
2 Q No,what I'm trying to ask you for is why, 2 MS.ROBERGE: Okay.
3 when we wouW ask you over and over again for the number ! 3 Q Why is i[that the Mountain--the man
4 of complaina after we had worked so hard to bring it ' 4 from Shadow Mountain doesn't have a problem with au
5 down to 55,that you ccwldn't share that with us? 5 music any longer,but code enforcement dces7
6 A 1'm not sure that that wasn't shared with 6 A I can't speak for Mr.Mortis.
7 you. As 1 just mentioneci,in November of'07,we were 7 Q No,but ycw can speak for yourself.
8 removed as thr case handler,and the information line 8 A And I am. My repat reFlects that 1 could
9 between you and Ciry staff dicin't corne from the code 9 hear music at the Shadow Mountain Hotel and Resott. 1
l0 office. 10 could distinguish the lyrics from the songs,and 1 would
11 Q Would that not have be�:n helpful to share 11 imagine if I was renting a hotel room there with my
12 that with us:that we don't need to ask you any Icxiger, 12 window open for a three-or four-week period,and 1
13 we neeci ro ask whcever it was referteci to? 13 heard that every weekend,it would be disturbing to me.
14 A 1 believe information is important,anJ 1 � 14 "Ihat would be my opinion.
15 would hope that you did get that information. I 15 Q Were you aware of us the same night you
16 Q We didn't. 16 were at Shadow Mountain with our recording and our
17 Well,to discuss--1 guess you know about 17 listening as reasonable people?
18 the problem we're having recording the right decibels. � 18 A 1 do recall that you had gone out or
19 Ycxi re aware of that? 19 members of your staff had gone out on one of the
2 0 A No. Go ahead. 2 0 evenings. 1'm not sure which one it was.
21 Q Okay. If a big tivck,a plane,a tractor. ': 21 Q Well,we wem there along with you,and we
2 2 IouJ music goes by,it distcxu the high;correct? 2 2 ecwldn't hear�he songs as�he way yai ve written it up
2 3 A It dces reccmf a louder IeveL ' 2 3 in your repat. 71►ere was a little sound.
24 Q And ourderibel level is taken by the 24 MR.ERWIN: Do you have a question,Ms.Roberge?
2 5 average of the high and the low? 2 5 ///
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1 A Our ordinance requires the average over a 1 BY MS.ROBERGE:
2 designated period of time,whether it's 10 minutes or 60 , 2 Q I guess. Now loud does it have to be fw
3 minutes. There are a la of things that do occur during 3 you to be able to recognize the sound?
4 one of those periais. A truck ccwld go by. Someone 4 A Are you asking me what the decibel level
5 could honk their hom. One of your patrons coukl come 5 would have to be?
6 outside screaming and skew a level. 6 Q No,1 guess I'm not asking you that. 1'm
7 So there's a bt of variables involved, 7 asking you,As a reasonable person,how loud would that
8 and they're all factored in as an average. 8 song have to be for you to be able to recogniu it?
9 Q Well,the average is the high and the low 9 A t don't know how to answer that. Whether
10 averaged to give us a decibel? � 10 I could hear it or rx�t would be my response.
11 A No,the average is the average. There's a ' 11 Q You dodt like me,Mr.Kilpatrick,do you?
12 low—there's the lowest recorded period,and then 12 MR.SPIEGEL: Please.
13 there's the highest recorded decibel level. ' 13 BY MS.ROBERGE:
14 Q Cortect. 14 Q It's a question.
15 A And then there's an average throughout the 15 A To the contrary,I do.
16 entire period. 16 MR.ERWIN: 1'd suggest to the witness--that is
17 Q Right. So if the high was distorted,then 17 not an appropriate question.Ms.Roberge.
1 S the average is distated;correct'? ' 18 MS.ROBERGE: Well,then,you know,I don't have
19 A The average is the average. 19 any more questions for Mr.Kilpavick.
2 0 Q 1 think we gcx the picture,so 1 won't 2 0
21 labcx that. 21 EXAMINATION
2 2 Well,I want to regurgitate again that 2 2 BY MR.SPIEGEL:
2 3 it's strange that the man fa Shadow Mountain who I was 2 3 Q I have one for Shawn. You said you
2 4 most concemed about— 2 4 were--early on,you were removed from the process
25 MAYOR BENSON: Denise,would ycw pleasr just ask ': 25 around March 14th?
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1 A That would be--that might have been one 1 Shadow Mountain Drive?
2 of the times the Code was removed. 2 A I don't think it would be as clear as 1 am
3 Q Where did it go after you were removed? 3 right now miked.
4 A We would have discussions with the Ciry 4 Q Would it be as loud?
5 managers office,with the planner,with Phil Drell. 5 A Maybe,approximately.
6 MR.SPIEGEL: It would go to Planning then after 6 Q Okay. And you say towards the er►d.At
7 Code was removed? Is that right,Lauri? 7 Shadow Mountain Resort Tennis Club,we were abie to
8 MS.AYLAIAN: Yes. In November,when the 8 faintly hear music.
9 decisicxi was made to take the issue before the Planning 9 Could you approximate what"faintly"is
10 Commission,it was tumed over to Code--excuse me. A 10 using your voice?
11 planner was assigned to the case. That was 11 A Maybe some mumbling,maybe a little bit
12 Ryan Stendell. 12 lower,maybe higher.
13 MR.SPIEGEL: So— ; 13 Q All righl. So where 1 could barely
14 MS.AYLAIAN: So az of November,early November. ; 14 discern your voice or what you were saying?
15 MR.SPIEGEL: So Cocie worked with you,but you ` 15 A Could be.
16 told them what you wanted done? ' 16 MR.FERGUSON: And this is just kind of an
17 MS.AYLAIAN: Yes. We asked them to take sound I 17 open-ended question for Marty and Dave. 1 kraw this is
18 measurements and ask for specific reports. 18 going on long,but at some point it would be nice to
19 MR.SPIEGEL: Thank you. 19 get,if we have a decibel meter,some idea of how loud
2 0 MR.FERGUSON: 1 have a coupk of questions-- ! 2 0 55 decibels is because 1 don't have the slightest clue.
21 THE WITNESS: Yes,sir. 21 And if that seems to be one of the standards--I'm just
2 2 MR.FERGUSON: —if nobody else does. 2 2 throwing it out there--if we could get that set up,1
23 MAYOR BENSON: Go ahead. � 23 would appreciate it.
24 /// ` 24 Q Mr.Kilpatrick,didyoueverget
2 5 /// 2 5 Ms.Roberge or her employecs a notice to abate at her
Page 191 ; Page 193
1 EXAMINATION 1 place of business?
2 BY MR.FERGUSON: 2 A A cease and desist,notice to abate,
3 Q Taking you back to Mr.Ponder's infamous 3 comply with all tertns of CUP and 924,something of that,
4 December 21 st,2007,e-mail-- 4 yes.
5 A Yes,sir. 5 Q How many times did that occur?
6 Q --you responded to it saying that at one 6 A "It�at 1 personally gave her'?
7 timc-- 7 Q Well,you or anybocly from the City of
8 MR.KELLY: What number arc you on? 8 Palm Desert that you're aware of!
9 MR.FERGUSON: 1'm sorty,I'm on-- � 9 A I'm aware of providing her with one
10 MR.SPIEGEL: 125. l 0 written notice and providing her with cx►e order to
11 MR.FERGUSON: --PD U 125. `. 11 abate.
12 MR.KELLY: 125? i. 12 Q At the same time or on separate occasioas?
13 MR.FERGUSON: Yes,near the lxxtom of the page. ' 13 A Separate occasions.
14 Q You said,At 73922 Shadow Mountain Drive, 14 Q Okay. And what about Mr.Terfehr7
15 we were able to clearly hear a band playing. : 15 Where's he'?
16 Would you speak to me in a clear voice 16 A Officer Terfehr has pid�ably wriuen her
17 similar to the way you use the word here? 17 more letters. Three out of four.
18 A 1 would fiope tfiat this voice is clear. > 18 Q Is he still here'?
19 Q So would that be the approximate sound i 19 A Yes.
2 0 that you heard? ; 2 0 MR.TERFEHR: Yes,sir.
21 A At Shadow Mountain Drive it was very 21 MR.FERGUSON: Mr.Terfehr,cio you want to step
2 2 clear. ; 2 2 forward to the microphone so we have a clear record.
2 3 Q No,that wasn't my question. � 2 3 Could you just artswer the same question. And 1
2 4 Was the clarity of the voice that you just 2 4 appreciate your indulgence.
2 S used the same clarity of the music that you heazd on 2 5 MR.TERFEHR: I'm sorty,could you repeat the
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1 question? 1 section to any other business?
2 MR.FERGUSON: Yes. How many notices to abete or � 2 MR.KILPATRICK: No,sir.
3 other type of notices,as Ofticer Kilpatrick just 3 MR.TERFEHR: No,sir.
4 delineated for me,have you served at Augusta on 4 MR.FERGUSON: Mr.Terfehr,noi
5 Ms.Roberge or her employc�es? 5 MR.TERFEHR: No.
6 MR.TERFEHR: I remember for sure cx�e was mailed. , 6 MR.FERGUSON: Okay.
7 I'm not certain if therc were more than that. If it 7 1 have--and my count may be wrong.
e was,maybe one or two. 8 Mr.Terfehr,you apparently tcwk readings up at Augusta
9 MR.FERGUSON: Mailed or delivereci`! 9 on I8 occasions on Exhibit,whatever we're calling it,
10 MR.TERFEHR: They would have been mailed. 10 the big one,E,and Mr.Kilpavick you took
11 MR.FERGUSON: And Officer Kilpavick,your two, � 11 observations on 23 times in Exhibit E. And 1 didn't see
12 were they mailed or delivered? 12 any other names on Exhibit E. So is it fair to say that
13 MR. KILPATRICK: Mailed anct hand�elivered. ' 13 all the code enforcement activity from the code
14 MR.FERGUSON: So your two were hanci�elivercYl? 14 enforcement departments,Ciry of Palm Desert,occurred
15 MR. KILPATRICK: Correct. 15 with you two genUemen,at least as Exhibit E is
16 MR.FERCUSON: Do you remember the color of paper , 16 concemed?
17 they were delivered on? � 17 MR.TERFEHR: As far as metering gces,that would
18 MR. KILPATRICK: Our staixlard IeacYt�ead or it � 18 be yes for me.
19 might have been a copy. ' 19 MR.KILPATRICK: Right.
2 0 MR.FERGUSON: So it wasn't on red letter--it ' 2 0 MR.FERGUSON: That's all I've got. Thank you
21 wasn't on recl paper? 21 very much.
22 MR. KILPATRICK: It wasn't on red paper. 22 MR.MUELIER: 1 have nothing further,gentlemen.
2 3 MR.FERGUSON: It wasn't handed to a bartender in 2 3 Thank you.
2 4 front of a large g►nup of patroru'? : 2 4 Are there--1 don't have any additional
25 MR.KILPATRICK: No. ' 25 witnesses,though there may well be members of the
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1 MR. FERGUSON: Mr.Terfehr,do you recall 1 residential communiry that haven't been heard yet
2 anything along those lines? 2 concerning disturbance or annoyance with the Augusta's
3 MR.TERFEHR: IVo. 3 music. And if there are,they should come forward now,
4 MR. FERGUSON: Fair enough. ' 4 and I would ask some questions. Otherwise,my
5 One of you made reference to the lady at 5 presentation is complete at this time.
6 Heliotrope who made 68 reports in I80 days of noise. Do 6 MR.THIELMAN: 1'm a resident.
7 you recall what enforcement action we took with her? 7 MR.MUELL.ER: Sir,from the"L.et it be"
e MR. KILPATRICK: 1 believe we dete�mined--"we," ° 8 T-shirt--
9 being the Ciry--that her complaints didn't have merit. 9 MR.TH(ELMAN: 'fliaCs right.
10 MR.FERGUSON: Okay. Great. Have either of you 10 MR.MUELLER: --1 assume yai re here to speak in
11 ever issued a citation pursuant to Palm Desert Municipal 11 favor of the outdoor amplified music?
12 Cale 9.24.040,otherwise known today as the subjective 12 MR.THIELMAN: 1 am. 1'm a resident. My name is
13 standard,i.e.,the decibel meters were in compliance, 13 Brendon Thielman. I live right here(indicating). I
14 but you still found the--excuse me,let me get the 14 just want to say that 1've tx�en a resident since
15 right words--noise discomforting or annoying'? Have : 1 S November of 2007. And 1 wouldn't say that the music is
16 either of you in your career with the Ciry issix.�d a ' 16 an annoyance or a public nuisance. It's a very faint--
17 citation under that code section? 17 I'd say you d have to strain to hear the sound. If a
18 MR.KILPATRICK: 1 attempted to issue a citation ' 18 bud gust of wind blows,you can't hear it,cx if a caz
19 under that caie section. Ms.Roherge refused to sign. 19 drives by,there's no sound. So 1 don't understand how
2 0 MR. FERGUSON: So you attempted one time with 2 0 these residents would say that it can be as loud as they
21 Ms.Robc.•rge. Other than that,any other citations? ' 21 say it is. ThaPs my opinion. So 1 just want to let
22 MR. KILPATRICK: Officer Rodriguez issued her a 22 everyone know that rwt all residents think that it is a
2 3 citation under that section. ° 2 3 public nuisance or an annoyance.
24 MR. FERGUSON: Okay. I'm talking to you,though, ? 24 THE REPORTER: Can you spell your last name>
2 5 right now. Have you ever issued any under that cocie 2 5 MR.THIELMAN: T-h-i-e-I-m-a-n.
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1 CITY CLERK: And your first�ame was Vemon;is 1 for their position.
2 that co►rect? 2 So she did invest quite a bit of effort
3 MR.THIELMAN: Brendon. 3 and money to try and mitigate tt�ese sound issues. I
4 CITY CLERK: Brendon. Thank you. 4 know I've spent considerable amount of my own time
5 MR.ERWIfY: Madam Mayor-- 5 working on this. And I think she was discouragcxl when
6 MR.MUELLER: Just a minute,sir,there may be 6 the Planning Commission decided that her efforu werrn't
7 additional questions. 7 enough arxl that it was time to end it.
8 Ms.Roberge? 8 So since then,we've still--1 rt�ean,we
9 MS.ROBERGE: No. That's fine. 9 were in the process,at that decision,of implementing
10 MR.MUELLER: Council? � 10 some more sound blocking elements,and they've been put
11 MS.ROBERGE: But Jim Mclntosh is here to speak. ; 11 in. So 1 think we're on the right track. And 1 can
12 MR.ERWIN: At this point,Madam Mayor,1 think ! 12 appreciate the position you guys are under because this
13 it is Mrs.Roberge's turn to call witnesses. ; 13 is a tough decision. We've got two sides to this. But
14 MR.MUELLER: 1 agree. ; 14 we would really like the opportunity to continue to
15 MR.ERWIN: Anyone that she wishes. 15 improve the situation.
16 MS.ROBERGE: 1im Mclntosh. 16 So thaPs—that's my involvement in it.
17 1� If there's any other questiau?
18 JAMES McINTOSH, i 18 MAYOR BENSON: Marty,do you have any questioru?
19 called as a witness on behalf of Augusta, ' 19 MR.MUELLER: 1 have no questions. 7liank you,
20 was examined and testified as follows: ; 20 sir.
21 21 MS.ROBERGE: Thanks,Jim,very much.
22 THE WITNESS: Good afternoon. My name is � 22
23 James Mclntosh,77-747 Delaware. 1've resided in 23 EXAMINATION
24 Palm Desert,as well as my business is in Palm Desert. ; 24 BY MS.FINERT'Y:
2 5 Do you have questions,or do you want me i 2 5 Q 1 have a question. On page 177 in our
Page 199 � Page 201
1 to-- 1 book.Gordon Bricken&Associates,Acoustical and Er►ergy
2 MS.ROBERGE: No. 2 Engir�s,were out,and tfiey took some readings at the
3 THE WlTNESS: How do we proceed at this point? 3 restaurant on October 2�th,2006. And if you then go to
4 MS.ROBERGE: You can just say what you have to ' 4 page I80,under 7.0,it talks about mitigation. Md 1
5 say,Jim,and if 1 have questions.1'll ask you. 5 know,Mr.Mclntosh,you said that yaive been helping
6 THE WITNESS: Okay. Well,my involvement in this 6 Ms.Roberge with the mitigation,and 1 think that we can
7 issue is that 1've been working cbsely with 7 all appreciate that it's gotten somewhat better.
e Denise Roberge to try and resolve some of these issues. 8 What 1'm curious to know is the mitigation
9 We've studied it very carefully on how to 9 measwes that were suggested,if thesc have baen taken,
10 abate some of this sound. And 1'm glad to hear that � 10 anci if you've played a role in this. One,was close up
11 u�me people are experiencing the results. IPs not an 11 the gate. He states,'Ihe measurements were conducted
12 easy solution any time you have outdoor sound. But you 12 opposite the cwrent gate,which is an open weave,metal
13 know,slowly,twt surely,it's almost like a trial and " 13 lattice. Closing this opening up or replacing the gate
14 e�ror. We've consulted actual sounJ engineers. 1'm an 14 with a solid form design would roduce the levels about
15 azchitect by trade,so 1 have a certain amount of 15 five ciecibels. 'Ihis would be enough to address the rype
16 acoustical enginc�ering experience,but by no means am 1 16 of music observed during the measurements.
17 an expert. 17 Do you know if that was dor►e?
18 So what we've done,starting last summer, 18 A Absolutely. That was actually one of the
19 per the agreement,was that we,ycw know,did some 19 initial things that were done,and it was actually one
2 0 mitigating measures. And you know,1 think we're having ; 2 0 of the rrare simple solutions to this problem. And
21 sbwly,but surely,success. 1 think Denise Roberge was 21 unfortunately,that is a pretty good distance away from
2 2 a bit discouraged afrer the Planning Commission Jecision ' 2 2 the source,across the garden. And what we've been
2 3 bexause we all thought we're working together as a 2 3 trying to do after that is to contain the sound closer
2 4 community to solve this problem. You know,we don't 2 4 to the sounce befcxe,sort of,the horse gets out of the
2 5 want to be offensive to the neighbors,and we do feel ; 2 5 bam.
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1 And so,obviously,we acknowledge that 1 Q Do you think there's some merit ro that?
2 recommendation,and that was one of the first things we ' 2 A Well,it's one of those things that it's a
3 did,which decreased the sound levels immediately at the ' 3 big commitmenG and that's what we ve t�een chasing it
4 property line on Larrea outside that gate,but we were ; 4 around. We ve done it with temporary pancls. But when
5 still confronted with the problcm of sound traveling up 5 you consider a glass wall,you know,it's not only a big
6 over that and out into the community. 6 expense,which I don't think is that big of a concern
7 So our approach from there was to create ' 7 for Ms.Roberge,twt what it dces aesthetically to the
8 sound walls that were closer to the source anci contain ' 8 place. It's nothing that we can take down. It would be
9 it. And so we've gradually brought it in closer and 9 more of a permanent--you know,pemianent wall.
10 closer and baffled the sound at the actual stagc. 10 Q I understand. If you go to page 128,
11 Q And so that would take me to Option 2. ' 11 Planner Ryan Stendell--and this has been yuoted
12 Fully or partially enclose the outside seating area. He ' 12 before. He talks abou4 It is my opinion that an error
13 suggested a form of a screen,most likely 10 to 12 feet ' 13 in the judgrnent on staffs part was made with the
14 high. It could be made of glass to retain some exposure 14 approval of music at the commercial standards.
15 to the lawn. And it's his belief that this mitigation ; 15 He now believes that due to the proximity
16 measure could reduce the sound levels up to 10 decibels. ! 16 to residential,the music should have been required to
17 He said that would be more than enough noise reduction ' 17 meet residential stanclards,55 decibels until
18 to address the measured music levels and may be enough � 18 10:00 p.m.,and 45 decibels until after 10:00 p.m.
19 to address other types of perfortnances. ' 19 And then if you go back to Page I81 where
2 0 Do you know if that was done? 2 0 the gentleman talks about this glass partition,arxl he
21 A No. That particular glass or Plexiglas, 21 further states,This mitigation could reduce the sound
2 2 any sort of solid material along there was not done at i 2 2 levels by up to 10 decibels.
2 3 this time,no. ; 2 3 So we have two people that are saying if
24 Q And since you were involved with � 24 it were reduced by IO decibels,it is,perhaps,likely
2 5 Ms.Roberge on this,is there a reason why you opted not i 2 5 that then this issue would go away. So when coupled
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1 to try this? 1 with the report from the acoustical engineer anci the
2 A Well, I mean,there's two. One of the big 2 planner thinking tha4 perhaps,the City erred in
3 atvactions,I think,of the Augusta Restaurant is the ' 3 allowing 55 instead of 45,cb you think that that would
4 ambience of the rear patio. And over the years,since 4 be an option worth pursuing'T
5 the restaurant was first built,there's been,you know, 5 A Well,1 think put that way.that it would
6 an evolution,IeYs say,of expanding and making that 6 definitely be an option worth pursuing. 1 would just
7 more--you know,that's really the attraction. People 7 hate to recommend to Denise to make that sort of a
8 prefer to be outside. 8 commitment and then still have the nuisance--1 da►'t
9 And when we put up a temporary xreen 9 know what you call it,the nuisance carJ. You Imow what
10 there,it sort of blocks that off. And so we're 10 1 mean?
11 thinking,well,you know,we might be solving this,but 11 Because we're going from an objective
12 we're swt of killing ourtielves on the ambience,so 12 sound{evel,which,according to the reports,were right
13 let's try some cxher things first,which we think have i 13 there,you know,at 55. And that,when 1 originally
14 been fairly successful,which is containing it up above ' 14 started this,was our targeG And now we've achieved
15 and abso►fiing it up ahove. 15 that,but now we see that it's more of a--more of a
16 We did some really extensive sound 16 subjective issue;that it's more of a,you know,
17 absorbing panels. Because in our research we found that 17 disturbance per individual versus meeting that specific
18 a lot of it was actually a reflection off the building 18 criteria.
19 and then going out into the community. Because the band . 19 So if we do tha4 that's no guarantee
2 D is actually facing toward the building. And so one of 2 0 that--you know what I'm saying? l hate to tell her,
21 the big helpful things was that we abso�ed it and 21 yeah,you need to spend 5100,000 and do this and take a
2 2 contained it under the covered area before it gets out ; 2 2 chance that yai re going to be able to continue to use
2 3 there. ` 2 3 it
2 4 So as far containing it in a glass wall, i 2 4 MS.FINERTY: I appreciate your answers. Thank
2 5 no,we have not done that. ` 2 5 you.
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1 MR.MUELLER: I have a few yuestions, 1 A What other plans do we have? I think the
2 Madam Mayor,if no one else dces. 2 r►ext step is to do something like a solid wall. But
3 MR.FERGUSON: 1 do. 3 it's a difficult one feasibilitywise. I mean,okay,we
4 MR.SPIEGEL: 1 do,too. Can I go? 4 can commit to doing that this sumrner. 1 think we're
5 MR.MUELLER: Go ahead,sir. 5 going to take a hit,as far as the feel of the garden is
6 6 going to change. And 1 don't think Ms.Robcrge rcally
7 EXAMINATION 7 wants to create a nightclub. I rt�ean,she does great
e BY MR.SPIEGEL: 8 business with the restaurant as well. I think the music
9 Q Do you continue to work with Gordon ; 9 adds a lot to that.
1 o Bricken&Associates? They're the ones that did the � 10 But you know,we keep going back and forth
11 sound analysis;correct? 11 of what this wall is going to do to thc big picture.
12 A They made recommendations,1 believe, 12 You kraw,if we knew--1 think it would be an easy
13 about a year ago. Is that the date on that? ; 13 answer if we knew this is all we had to do that would
14 Q Yes. `. 14 solve the problem,everybody would be happy,1 think,in
15 A Yeah. ' 15 a half a second,it would be in. But,you know,it's
16 Q Yes,November 8,2(�6? ' 16 that gray area of,well--
17 A Yes. And currendy,no,1 have not been ' 17 Q 1 agree. But you said earlier that"we're
18 working with them. 18 still working on it."
19 Q So there's really nothing that you plan on 19 A Right.
2 0 doing to decrease the amount vf sound? 2 0 Q And I was wondering what you were doing as
21 A Well,we continually put up more panels. � 21 working on it?
2 2 But the discussion we had last week was,well,if we can ; 2 2 A Well,to be honest with you,in the last
2 3 have some sort of reassurance that this is going to be 2 3 couple of weeks,it's more like in a state of flux
2 4 more of an objective decision,maybe we should go ahead ; 2 4 because of the situation we've been in with this looming
2 5 and commit to putting in a solid glass wall. ' 2 5 hearing. So 1 understand her position of not wanting to
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1 Q Well,f don't think we can make that 1 invest more than she has.
2 commitment. 2 Q So do t.
3 A 1 know that. [guess that's the difficult 3 A So yeah. No,recently we've taken the •
4 part. That's why I made the statement. 4 position let's try and hamrt�er out an agreement. LePs
5 Q ThaCs a very difficult part. 5 work togett►er as a community to come up with a solution
6 A You guys got to--this is a tough one. 6 that evcrybody is going to be happy and then proceed.
7 Q Because 55 decibels really doesdt mean 7 instead of trying to,you krrow,ttvow money at it,not
8 anything to rr►e. 8 knowing wt►ether it's really going to solve the problem
9 A Right. 9 with the subjectivity of certain people liking it and
10 Q What means something to me is whether or + 10 certain people not liking iG
11 not the noise really—actually,is very unhappy about 11 Q We wouldn t know either,would we?
12 it happening for the residents neafiy. 12 A Right. I wish it ccwld just be. 1 think
13 A Correct. 13 if it was as straightforward as reading the decibel
14 Q That's the main concern. 14 meter,we wouldn't need ro be here because it would just
15 A That's why we're here. You know,it's ' 15 draw the line and everything would be good. But
16 amazing that we hear some residents say,Wow,[really ; 16 obviously,there s a lot of dynamics to the community
17 see a great impmvement,it dcesn't seem to be a 17 and opinion.
18 problem,where others seem to think— ; 18 Q Do you believe in what was said earlier
19 Q It's still a problem? ; 19 that sound does gces up the valley? Like at the
2 0 A Yeah. 2 0 Hollywood Bowl,you can sit way back in the Hollywood
21 Q That's righL ; 21 Bowl and you can hear everything.
2 2 A So that's what we're trying ro work with 2 2 A Well,absolutely. Absolutely.
2 3 and solve. ; 2 3 Q So that's one of the problertu.
2 4 Q Well,that's why['m asking you.What 2 4 A It's a big part of the problem. You know,
2 5 other plans do you have'? i 2 5 South Palm Dcsert is a big alluvial fan,similar to the
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1 Hollywood 8ow1. That's a great example. That's why 1 Functionally,mcchanically,enclose the sound,don't let
2 when we did the gate mitigation it solved the problem 2 it out. But that then ruins the whole space. It can
3 with the sound immediately beyond the property line. 3 just be another dark nightclub like the other ones in
4 But we knew we were projecting over that [ 4 town that aren't necessarily attracting the crowd and
5 wall,which was a bigger problem than the immediate 5 dcesn't have the appeal.
6 problem. So that's when we started bringing in the 6 So,you k►x�w,one of the--the solutions
7 sound curtains closer and closer and capwring the sounci � � we're(ooking at is what Ms.Finerty suggested in the
8 in a smaller area. Arxf that's how we've bcen 8 report,which is a hard surface glass.Plexiglas
9 successful. 9 containing the area immediately around the band and
10 MR.SPIEGEL: Thank you. 10 seating and dance area.
11 ' 11 MR.SPIEGEL: And on the top?
12 EXAMINAT[ON ' 12 THE WITNESS: Well,see,now you're talking an
13 BY MR.FERGUSON: 13 enclosed space. And that's where,you know,I think we
14 Q Mr.Mclntosh,I've got two questions. And 14 would have to continue on like we're doing,like,let's
15 bear with me. 15 see what this does.
16 You are Ms.Roberge's architect,are ycw 16 Because sound rypically travels in a
17 not? 17 straight line. It dcesn't like to go around a curve.
18 A That's correct. 18 So the problem is if we re high enough with the wall,
19 Q And you did do the Augusta Restaurant ' 19 and it goes up and it dissipates out in the sky,there's
2 0 building? 2 0 nothing except a hard surface that's going to send it
21 A That's correct. 21 back dowa So 1 really wouldn't want to suggest putting
2 2 Q Okay. So you are familiar with the 2 2 a lid on it.
23 swcture of the building? 23 BY MR.FERGUSON:
24 A That's cortect. 24 Q The other factor that I wanted you to
2 5 Q Okay. It seems to me that you're 2 5 address,if you could,and 1 don't know how you can,but
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1 articulating the very problem that we're all going to 1 if somebody hears something at 50 decibels,thurrm,
2 have to wrestle with,which is if you have an objcxtive 2 thump,thump,thump over a period of years,as we've
3 standard,we can get that Iittle machine over there 3 received testimony today,even if ovemight it went down
4 somewhere and we can instandy know whether you're 4 to 25 decibels,in their minds,they're still heacing
5 complying or not. The problem 1'm having with the 5 thump,thump,thump,[hump. And on a subjective
6 vagueness,the subjective prong,is that it is vague in ; 6 standard,again,you know,I'm a little unclear as to
7 its wording,nebulous in its design,and awkwanl it its 7 how we--how--if we're going to reach a compromise
8 application such that a reasonable perso�in the City of 8 that is going to satisfy the neighbors and give them
9 Palm Desen wouldn't know whether they were complying ; 9 quiet enjoyment of their homes and satisfy Ms.Roberge
l0 or not complying with the law. ! 10 and allow her to have entertairunent at her place of
11 And what 1'm hearing you telling me is ' 11 business without the two interfering with each otlter,I
12 that as an architect you can pose solutions to 12 guess I'm at an engineering or architectural loss,much
13 Ms.Roberge that have different price tags associated 13 less a sound engineering background,to come up with
14 wi�h them with absolutely no assurance that whatever you 14 that kind of a solution. And you're saying,short of
15 do,even if you do everything,that somebody isn't going 15 enclosing the whole thing,all we can do is try and see
16 to come along and interpret a-- you know, i 16 who still complains?
17 Mr.Kilpatrick's faint voice as loud and obnoxious and 17 A Well,yeah. 1 think you make an
18 dialing the police? � 18 interesting point,that 1 don't think this would be
19 A C«rec� � 19 nearly the situation it is right raw with the people in
2 0 Q Is that basically what you're--so what 2 0 the neighborhood fervently complaining if it hadn't have
21 1'm asking you, as the architect of the building,and 21 gone on so long. I think thaCs a really interesting
2 2 puning politics aside for the moment,if you can,what 2 2 point.
2 3 is an engineering solution for this problem'? 2 3 And Denise Roberge has maJe the statement
2 4 A Well, 1 think there's a whole bunch of 2 4 that she's regretted that she allowed it to go on that
2 5 solutions. Icleally,to enclose the whole space. 2 5 long. You know,she's not a malicious person,but 1
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1 Utink she has maybe thcwght that she haJ a few 1 we're all clear.it woulJ be speculative to guess
2 complainers that would possibly go away. But she wasdt 2 exacdy how many decibels putting up a glass wall would
3 getting,you know,a blanket of complaints. 3 reduce the sound at which locations? True? We don't
4 And so that,unfortunately,has taken us 4 know,for example,it would go down by 10'?
5 to this point. 1've been present at the Planning 5 A Well,this has just been suggested by
6 Commission meetings that have address�.•d this same issue : 6 acoustic experts.
7 and listened to testimony from these same people,and 1 7 Q Well,they suggested it could;right?
8 have to say that some of it has been exaggerated. But 1 8 A That's correcL
9 think if 1 was put in their position,you know,1'd . 9 Q Not that it would. But could means maybe,
10 probably do the same. So 1 could understand the i 10 and would means for a fact?
11 psychological dynamics of pushing your point. We've got ' 11 A Most encieavors take that approach.
12 to get this solved at any cost. And that's where we're 12 Possibiliry.
13 at. i 13 Q There's no--and the approach is there's
14 So i feel very confident that we can 14 no guarantees?
15 control the sounJ by Joing a wall. And I know ycw can't 15 A There's no guarantees until further wcxk
16 give us any guarantex that you do that and everything is i 16 is done. 1 mean,these were initial recommendations. I
17 solid. So i guess that's where we'ne at. !don't know i 17 don't think anybody is going to guarantee anything at
18 at this�int what scxt of latitude the Council can give 18 that level. But the rrtore work you do--you know,the
19 to this situation. 1 know,you know,the community is ` 19 more work you do,the more confident you feel about your
2 0 Jemanding a decision from you guys. So we neeJ to do 2 0 decisions.
21 something. 1 wish 1 had something more specific. ; 21 Q Now,you feel pretty good about what's
2 2 If we were talking totally objective 2 2 been done? Yai ve called it fairly successful,the
2 3 criteria,1 could give you a geat answer. But given ; 2 3 mitigation measures,or you've said"solved the problem"
2 4 the dynamics of the whole thing,I think we can do ' 2 4 is one description you used. So far they've solved the
2 5 better. I think the club has--or the restaurant has � 2 5 problem;right?
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1 done a great job of limiting the time and being more-- 1 A Well,given the criteria of SS decibels,(
2 you know,good about stopping the band. You Imow, 2 think--
3 sometimes people just demand an encore. And 1 think 3 Q 1'm sorry,go ahead.
4 that's occasionally where you're going to go over the ' 4 A 1 think we've solved the problertt,yes.
5 I I:30 limit. 5 Given that target,yes,1 feel very con�dent that we've
6 But you know,I don't wcxic at the 6 solved the problem. Sure,it fluctuates a IitUe bit,
7 restaurant. 1 have nothing to do with the management. � 7 but sound is going to do that given a lot of different
8 I know the people. We've all talked together about how 8 conditions.
9 important this is,and if this needs to continue,this 9 Q Well,you realize,sir,then that since
10 is what needs to happen. So it's a serious matter. I ; 10 November 2007,that of the 37 instances of monitoring,
i i canY guarantee 1 can say anything about the future. � 21 based on a one-hour average.26 of those outside of
12 All I can do is what I can do,suggest mitigating ; 12 Augusta's were actually in excess of 55? Ycw realiu
13 measures. And if Denise feels that we can all get along 13 that?
14 in the communiry together,she'll invest the money. And ; 14 A l do. But that is an answer that needs
15 hopefully it will be a happy situation. � 15 explanation.
16 MR.FERGUSON: Thank you. i 16 Q But that's what you consider successful?
17 MR.ERWIN: Madam Mayor,can we get back to the ; 17 A Well,there's a lot of other ambient noise
18 question and answer? 18 that contributed to that. Because we're monitoring it
19 MR.MUELL.ER: I have a couple of questions,if 19 ourselves and come up with a litde different answers
2 0 now is the appropriate time. ; 2 0 that we can specifically note. Gee,a truck came by and
21 ; 21 spiked it,a mororcycle came by and spiked it. Certain
22 EXAMINATION 22 things spiked that average. I think we had that
2 3 BY MR.MUELLER: i 2 3 discussion a litde while ago.
2 4 Q Sir,on the glass wall--because 1 was ; 2 9 But if you look at it,it's pretty darn
2 5 just looking at that page 181,and 1 ehink,just so 2 5 close. I mean,that's the kind of thing--that's how
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1 you target sound. 1 that. You're going to--lheres going to be certain
2 MR.FERGUSON: Is our counsel referring to the 2 things--if you're out there trying to take objective
3 blue line on the last page of Exhibit F,as you told us 3 measurements with a decibel meter,ycwr average is going
4 eariier? ; 4 ro be kicked ou[.
5 MR. MUELLER: All of that data in E. If you look 5 MR.MUELLER: I have nothing funher.
6 at all the data in E,for example,there would be 26 6
� instances above 55 and I I -- 7 EXAMINAT(ON
e MR.FERGUSON: But you told us to rely on the 8 BY MS.ROBERGE:
9 blue line,forget all the other stuft? 9 Q Jim,is it your opinion that if we put up
10 MR.MUELLER: No,not forget it. No,not at all, 10 that Plexiglas or glass--we'd have to check which was
11 sir. I was trying to make an easy reference point. You 11 the best--wall that followed the outside curb of the
12 could look at the hlue line,and it would show you 12 restaurant,that we could take it down at least five?
13 March and April. The blue line would show you I8 ' 13 A 1'm going to qualify my answer by saying
14 instanc:es, 1 believe,if--they're hard to read on the � 14 that we both know I'm not an acoustic expert.
15 blue line. If you go back to the book ancf go through 15 Q Right. Right,but just your--
16 thetn,I think you'd find I8 March and April-- 16 A I do know the dynamics,the physics behind
17 MR.FERGUSON: Well,I've got 53,54,50,52.54, ; 17 sound. And 1 think that at this stage if we're going to
18 51,55. Arxl you're right,the rest are hard to read, 18 commit to something like that,that 1 know of a very
19 but it looks like they're 56,55.5. 19 good acoustical engineer that could be more specific,
2 0 MS.FINERTY: 1 counted 14 on the blue line. � 2 0 that would say,yeah,and it would be down to the exact
21 MR.FERGUSON: Okay. So 1 don't know that it's 21 hcight,thickness of it,ihe whole deal.
2 2 fair having told us to do one thing Ihat-- ! 2 2 Q And so would it be your opinion that if we
2 3 MR.MUELLER: With all due respect-- ` 2 3 did that and that we got it down to five points,that
24 MR.FERGUSON: Oicay. ' 24 that would be a nice compromise betwcen Augusta
2 5 /// 2 5 Restaura�t,Ciry Council,and all the people that
Page 219 � Page 221
1 BY MR.MUELLER: 1 complained?
2 Q Exhibit E is the data. You can look at it 2 A I mean,that's the million dollar
3 and see that there are many instances over 56 or not. 1 3 question.
4 don't think,actually,that the recorded numbers are 4 Q Well,['m asking your opinion about that.
5 necessarily more important lhan the voice of 1he public. 5 A Well,you know,1've played around with
6 But I was wondering about the proposition that � 6 chat decibel meter. It's kind of interesting to sit
� mitigation efforts have heen so far successful on 7 here and talk at a nomial level and watch and see what
e getting it under 55,which would seem to be coatraciicted 8 my normal voice is. And I must talk quite loud because
9 by Exhibit E. But maybe there's an explanation. 9 most of the time 1'm talking in the 60 range. And it's
l0 A f guess 1 don't understand how it's being 10 kind of difficult,because I think if you're a couple
11 contradicted. Because when you shoot for 55,it's going 11 streets up and you heard music as loud as Cm talking,
12 to be right around 55. Right? And now how much are we 12 yeah,it would probably be offensive.
13 considering the ambient noise of vaffic on Portola and 13 You know,I wish(had some guarantees. l
14 the other factors that we talked about? 1 mean,when 1 s 14 really think we're going in the right direction. I
15 say success,I don't mean,well,iPs never gone over ' 15 mean,1'm thrilled to hear certain people who used to
16 55. Because it's going to Fluctuate azound. ' 16 object say in this public forum that,yeah,you know
17 Q Have you viewed 55 as the maximum,or have ' 17 what? It's gotten a lot better;it's livable. And[
18 you viewed it as just a target to appfoach in analyzing ' 18 think that's the key is the relationship between
19 success of the mitigation'? 19 residential and the comr►�ercial aone right together,
2 0 A Pve looked at it as a rarget to--that's 2 0 You know,Palm Desert is an interesting
21 our target. � 21 communiry because it's fairly lineac So much of
2 2 Q Na that it's a maximum per the conditions � 2 2 Palm Desert's commercial area is abutted by residential
23 of this CUP'? 23 given it's linear nature. It's not a two-dimensional.
24 A Well,just in understanding acoustics and ; 24 It's sort of one dimensional. So I think this is an
2 5 measuring sound levels,you can't have a ceiling like ! 2 5 issue that's probably eoing ro come up again as the city
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1 of Palm Desert grows. So it's an interrsting study 1 time I wiU offer what I would define success,having
2 right now that's before us and how we're going handle 2 spent two hours on a Friday night out there,and 55 dces
3 this and make,ycw know,the community whole. 3 rtk�an sorrething to me.
4 9 MAYOR BENSON: Are there any questions of this
5 EXAMINATIOIY 5 witness?
6 BY MS.FINERTY: 6 MS.ROBERGE: I'm sorty,I didn't hear ycw.
7 Q Mr.Mclntosh,just to folbw up. I know 7 MS.FINERTY: I said that at the appropriate
8 that you're not an acoustical engineer,but 1 know that 8 time,when the Council comrt�ents,1 will of(er my opirtion
9 you have some knowledge in this,anJ 1 know that an 9 on what success is. Berause the number 55 does mean
10 acoustical engineer company has been sought out,and we 10 something to mean,having spent two hours out therc on a
11 have a report. Just like when we go and go to a doctor, : 11 Friday evening.
12 sometimes we will go and get a second opinion. Would ' 12 MS.ROBERGE: Wouldn't it be helpful for you to
13 there be a benefit to going to another acoustical i 13 sharc that with us so that we can--
14 engineer and running this report and getting a second 14 MR.ERWIN: I thinlc we are in�xncess at this
15 opinion before anyone comes up with any--I know we 15 point,Ms.Robuge of the pubiic hearing which is
16 pointed out the word"could,"—the number of decibels, 16 witness question and aruwer. And 1 specifiplly asked
17 what it cewld do,to get a second opinion on that before 17 the Council not to enter imo ltase types of discussions
18 anyone can arrive at a definite conclusion or before i 18 until you have finished calling your witnesses. There
19 Ms.Roberge expends any further monies? Would that be a � 19 will be ample time to talk about that at that point.
2 0 reasonable approach'? 2 0 MS.ROBERGE: Okay.
21 A 1 think that's the only ap�x�oach. 1 mean, ` 21 MAYOR BENSON: Are we through with this wiU�ess?
2 2 obviously,1've said it over and over again,but I don't 2 2 MR.MUELLER: No further questions here. Tltank
2 3 want her to commit based on my experience and opinion. ' 2 3 you.
24 1 would definitely recomrnend Irt's get somebody and get ; 24 MS.ROBERGE: Thank you,Jim.
2 5 something that's more back— ' 2 5 Mr.RuthecFord.
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1 Q Have you heard of company called Harris, 1 TED RIfCHERPORD,
2 Miller,Miller&Hanson out of Newport Beach? 2 caflcd as a wimess on behalf of Augusta
3 A 1'm not familiar with them. 3 was examined and testified as follows:
4 Q I was given this by Chris Mills,who is a 4
5 council member of Palm Springs,when they had a similar ; 5 THE WITNESS: Hi. My name is Ted Rutherford.
6 music issue with Las Casuelas because the music shot 6 Ard Madam Mayor and Council members,my office is the
7 right now out and kind of got locked in in the mountains � 74-040 EI Paseo. I've been there for,l guess,seven or
8 and came right down. AnJ they were able to work with an ; e eight years now. 1'm a half a block from Drnise. And
9 E�gineer by the name of lack Freetag(phonetic)and come ` 9 one of the weird things that I do is I sell real estate.
10 to a solution that everyor►e seemed happy with. ; 10 Do you know how many people come into my oftice and say
21 A Well,I think that's a geat solution. 1 : 11 1 want to lxey a hc>me just north of—or just south,up
12 know Denise Roberge is very willing to cootinue working � 12 the hill,of EI Paseo. 1 want to walk to the excitement
13 cx►it. ; 13 at EI Paxeo. We get it all the time. EI Paseo is
14 MS.ROBERGE: But 1 need to know what--what is � 14 exciting.
15 success? 1 thought 55 was success because that is the ' 15 1 remember at some time--I'm not sure
16 code. Now, 1 can try and make it better,but 1 can't � 16 when—the City made a statement saying we would like
17 continue to shoot at a moving target. And 1 think if we 17 to see EI Paseo become an exciting sveet,a street
18 even brougfit the decibel ievel down five mae decibels 18 similu,pert�aps,to Palm Valley—Palm Canyon,where
19 by putting up some kind of a P{exiglas or glass bamer, ` 19 people can walk up and down,have fw. We've got great
2 0 that if we accomplish that,there should be some ` 2 0 shopping,great restawants,and great entertainment.
21 agreement that,yes,1 have to keep it there,the ' 21 Well,you know what'? We've got great
22 citizens have to be happy with that,and City Ccwncil 22 entertainment at Denisc Roberge's. I'd hate to see that
2 3 has to accept that, and then we have a solutio�that we ` 2 3 shut down. If anything today,1 just want to ask you to
2 4 have all compromised on. i 2 4 give rtare time. Don't put a scamp on this and end it.
2 5 MS.FINERTY: Ms.Roberge,at the ap�xopriate ' 2 5 Give her a Iittte more tinx to fix this problem. And i
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1 think it can be fixed. 1 1'm sure will continue.
2 1 don't know about tt►e subjective angle of 2 Now,why are we concemed about this
3 it,the subject to whose opinion that is. Ryan Stendell 3 facility at Denise Roberge's? One of Ihe main reasons
4 is a friend of mine,but I'm sure he would have a ; 4 is that this city is very blessed. We have a lot of oid
5 Jifferent opinion than 1 would,where I would go and 5 people--1'm 85--that are like me that are winding
6 stanci and listen to that mLLsic in that same spot. 1'd 6 cwt their years,twt we have a lot of young people.
7 just like to see you give her more time to cortect this 7 There are young business people,young executives,and
8 problem. Tlwnk you very much. 8 they seek out a source of enjoyment and entertainment in
9 MR.ERW1N: Are there any qurstions for 9 a facility like Denise is providing. 1 sympathize with
10 Mr.RutherforJ? ; 10 the homeowners. I know what they're going through. And
11 MR. MUELLER: No. � 11 1 think there must be some consideration given to these
12 MR.ERWIN: Madam Mayor,perhaps we ought to give ` 12 young people who some day will be sitting up here where
13 the-- ' 13 you are aJministering this city,I hope as well as you
14 MS.ROBERGE: 1 have one question for ' 14 are,and Ict's provide them with somelhing that they
15 Mc Rutherford. 15 would enjoy and tF►at they will be able to come back to
16 THE WITNESS: All right. 16 time and time again and still rrot infuriate the noise
17 17 from the music to those people tha!are there.
18 EXAMINATION ! 18 Please,bear in mind,this is not an easy
19 BY MS.ROBERCE: ' 19 task. 1 don't envy you,but 1 applaud you. 'il�ank you.
20 Q Do you believe Augusta Restaurar►t has 20 MR.SPIEGEL: Mr.Wallace,where do you live?
21 caused anyone's real estate to go down? 21 THE WITNESS: Oh,1 live at 78-573 Platinum Drive
2 2 A For real estate to go down in value? •2 2 in Palm Desert,Califomia. 1'm sorty,1 left that out
23 Q Right. 23 MR.SPIEGEL: That'sokay.
24 A No,absolutely not. 24 THE WITNESS: Keep you alert.
2 5 MS.ROBERGE: "R�ank you. 2 5 MR.SPIEGEL• Keep me awake.
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1 MAYOR BENSON: At this point 1'd like to ask the 1 TFIE WITNESS: Any questions? Anything? No.
2 stenographer if she'd like a break? 2 Thank you very much for your time and your
3 MR.ERWIN: 1 think at this time,perhaps,the 3 efforts.
4 city clerk would like a short break. 4 MS.ROBERGE: 'ihank you very much,Mr.Wallxe.
5 MR.FERGUSON: Perhaps City Council. 5 Jasenka.
6 MR.SPIEGEL: Ffteen minutes. 6 MS.SABANOVIC: Hi. My name is Jasenka
7 MR.ERWIN: Ten minutes. 7 Sabanovic.
8 MR.SP(EGEL: F"ifteen minutes. e And 1 just wanted to start off with
9 MAYOR BENSON: Fifleen minutes. 9 putting a little perspective whene we're at today.
10 (A brief recess was taken.) 10 MAYOR BENSON: Can you give me your address?
11 MAYOR BENSON: 1'll call the meeting back to ' 11 MS.SABANOVIC: 44-740 Fnx�terra Drive,
12 order. And would you call your next witness.Denise? 12 La Quinta. And 1'm an observer today.
13 MS.ROBERGE: We just have a few people left that ' 13 But 1 wanted to start off by saying that
14 want to say a few things. 14 we should just look at how grateful we are and blessed
15 Mr.Wallace. '; 15 that we have buildings. 'it�ere are 10.000 people that
16 MR.WALLACE: Good afternoon. My name is Earl ' 16 died in China anci aLso in Oklahoma. So we have the
17 Wallace,W-a-I-l-a-c-e. 1'm a retired dentist from ' 17 building standing,and,you know,having the music any
18 Long Beach,Califomia. And when(retired,my wife and i B ciay is just a blessing.
19 I did an extensive study and decided where we wanted to i 19 Second,my observation,just sitting here
2 0 retire. And we selected Palm Desert. That was 23 years � 2 0 all day,is that the�ple who didn't show up to speak
21 ago. We've t�een fcxtunate to be able to witness the 21 up. Ancl if this is something close to my heart,anci
2 2 progress that Palm Desert has made over these years,and 2 2 it's bugging me so much—there was five or six of them
2 3 I can't tell you how much we appreciate the efforts like 2 3 that did not say anything—so 1 would take the day
24 people like you and your preciecessors that have seen and ' 24 off. 1 wou{d make sure 1'm here. I would make sure I
2 5 monitored the progress this ciry has been through and 2 5 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 tatking about. 1 music at Augusta. Hundreds of our customers from The
2 And the third thing is that being rigt►t 2 Vintage,EI Dorado.Big Hom,The Reserve,Martakesh,
3 always creates wars,and I think the parties are just 3 along with Rancho Mirage and Palm Springs have come into
4 kind of started off with being right and wanting their 4 the gallery to say.Denise,you must keep the music
5 opinions to matter. And Ms.Roberge is the one who 5 playing azxi ask how can we help.
6 actually offered to compromise. 1 have not heard one 6 It was then,over a p�riod of months,that
7 person offering any compromise on their part. So if 7 people signed the petition to keep the music. Not only
e they don't come up with a solution in terms of what they 8 do thexe residents frequertt the rsxtaurant,but when
9 would like to do--it seems like Ms.Roberge is the 9 their childre�►are in town,they,too,look fwward to a
10 cxily one putting efforts into doing something about it. ' 1 o fun evening at one of the few places in the Palm D�sert
i l And 1 know the City cares. You have a 11 area where they can listen to great music ancl dance.
12 vision. 7t►e ciry is growing. Fashiai week has t�een a 12 Palm Desert is the geographical center of
13 big part of it. And 1 enjoyed the company of � 13 che desere known far and wide for its fabulous shopping,
14 Mc Spiegel. And-- 14 dining,art,and rntertainment. Denise Roberge and
15 MR.SPIEGEL: You better explain tha� 1 S Augusta epitomize this Palm Desert image. Please,let's
16 MS.SABANOVIC: We worked together at the event. ' 16 keep it this way.
17 MR.SPIEGEL: It was a fashion show on EI Paseo, ' 1� MAYOR BENSON: Any questions of Cyma?
18 anci we sat next to each other. i 18 MS.COHEN: Any questions?
19 MS.SABANOVIC: Camct. And you Imew quite a 19 MR.SPIEGEL: No questions.
2 0 lot about the shoes they were wearing. ; 2 0 MR.MUELLER: No questions. 'iliank you.
21 The high-end stores are coming in,the � 21 MAYOR BENSON: Thank you,Cyma.
2 2 entertainment. And 1 think the ciry is changing. And � 2 2 MS.ROBERGE: Lindy Biggi.
2 3 it seems like we pick and choose and progress what's 2 3 MS.BIGGI: Hi. My name is Lirxly Biggi,
24 changed. �tertainment is part of it. And this is a i 24 B-i-g-g-i,and 1 live at 73-l79 Joshua Tree,which is
2 5 street thaYs growing,and it's a street that's become a 2 5 just down the shtet from Shadow Mountain. So 1'm kind
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1 Raieo Drive. And for the peop{e like me,who do own a 1 of in your blip area. And yes,I do hear the music.
2 business,and would like to come out here and entertain, 2 And I'm kind of one of those live-and-let-live people.
3 there is nothing but Augusta. And it's been over six 3 which is maybe why that it has never,evu,ever
4 years that she's beert able to sustain music,and any 4 bothered me.
5 cxher place arounci here has been elosed in a year or 5 And what I really hope you consider is I
6 two. So that speaks volume. 6 love this community,and 1 think a lot of you Imow that
7 'il�e other things 1 wanted to address are 7 1 work hard for it,and 1 love EI Paseo. Whatever has
e lhe petitioa that Ms.Roberge actually collec:ted way 8 happened,whether it's you or whatever,EI Paseo has got
9 beFore the rally. So the people petitioneJ and si�ed 9 something for everybody. I can have company,anJ 1 can
10 wanted it to stay. There's thousands,over seven. So ' 10 sc,•nd them down there,and if they want to shop and spend '
11 this is a country of democracy. And when 1 first came t 11 a ton of money,they can do it. If not,they can do
12 here,this is what 1 came here for. And 1 hope that is ' 12 that.
13 put forth. Thank you. 13 7'here's a variety of places to eat.
14 MAYOR BENSON: Any questions? ': 14 There's only one place,and it's an elegant place,with
15 MR.MUELLER: No questions. "il�ank you. 15 good music. When my kids come in town,I love it. They
16 TH6 REPORTER: Ccwld you spell your first name, 16 can walk there. Friends--I dait have to loan them a
17 please. ` 17 car. They can go there;they can have a good time;they
18 MS.SASA[YOV►C: l-a-s�-n-k-a. 18 can waik home.
19 MS.ROBERGE: Cyma Cohen. 19 71�e noise,yes,it's music. It's not
2 0 MS.COHEN: Good ahernoon. My name is ': 2 0 street fights. It's not gunshots. And in truth,1 get
21 Cyma Cohen,C-y-m-a,C-o-h-e-n. I live in Palm Springs, 21 more offended when 1 hear the garbage wck or the
2 2 Califomia. ; 2 2 ambulances or some of those kind of noises,but 1
2 3 I have worked at the Denise Roberge art ' 2 3 certainly don't want W get rid of them. I live in a
2 4 and jewelry gallery for over ten and a half years. 1 i 2 4 community. And if I didn't want the noises of sociery,
2 5 feel you would be making a huge mistake by stopping the : 2 5 I would move to Yucca Valley. Thank you.
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1 MAYOR BENSON: Any qucstions? 1 stuck in the gray spots. If the caie that is writtrn by
2 MS.ROBERGE: Thank you very much,Lindy. 2 law is 55 decibels for businesses off EI Paseo,and
3 MR.MUELLER: No questions. Thank you. 3 Denise is trying to comply with this,1 hope that yai II
4 MS.ROBERGE: Karen Moller. 4 consider possibly�viewing that law again,making it
5 MS.MOLLER: Hi there. I'm Karen Moller. ( 5 for sure that this is what you want,55. Even if
6 reside at 73�73 Foxtail Lane,the belly of the beast of 6 there's a litde bit of bump,bump,lwmp going on,and
7 Palm Desert,where,as some of you very well know.1've 7 the resiJents are still complaining,I don't think it's
e lived for many decades. I also have a business here in 8 fair to Denise Roberge that yaive said 55 and still
9 town. And I am not a public speaker,so please forgive 9 there's a problem at 55,even though she's meeting lhis
10 me. 10 by the laws that were written. That's my only--I just
11 I go back to the old days when the zebra ' 11 hope chat you will possibly roview this when ycwre
12 at The Living Desert was considered a public nuisance on � 12 making your decision. Thank ycw.
13 Saturday morning. I kid you not. You could hear the 13 MAYOR BENSOIV: My questions?
14 guy bray. ' 14 MR.MUELLER: No questions here. 'Ihank you.
15 We are a changing community. We are ever ; 15 MS.ROBERCE: That's all for me.
16 evolving. The last 25 years here,as several of you can : 16 MS.CHRNALOGAR: Denise,I'd like to say
17 attest,have been the greatest changes. 17 something.
18 Denise,at Augusta,took a business,built 18 MS.ROBERGE: Oh,sorty. 1 fagot. Thank you.
19 a restaurant in a very competitive marketplace,targeted ' 19 Speak up. Mybody else after'?
2 0 her market so that she was able to build a successful ' 2 0 MS.CHRNAIAGAR: My name is Susan Chmabgar,
21 business separate from the competition of other 21 C-h-r-n-a-lag-a-r. 1 moved here from Seattle,
2 2 twsinesses,and had grat success at i[. ' 2 2 Washington,six mcxuhs ago. 1 was a concierge with the
2 3 If we today decide--if you,my Ciry i 2 3 Seattle Mariners. There waz controversy about the new
24 Council,today decides that's it,we're done,you know, 24 stadium in Seattle. They had opposition to that. And
2 5 it doesn't bodc very well for evolving,moving forwar�d. 2 5 had they listened to that,we wouldn't have had the
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1 change in our communiry. You know,people have left 1 stadium we have today,which is now one of the major
2 here because it's become too big,too noisy,too 2 tourist attractions in the United States.
3 whatever. Many,many mote pec�le have come in. 3 Prior to me being a concierge wi[h lhe
4 I'm asking that today ncx be--it sounds 4 Mariners,1 did real estate on Resort Island,i�L.ong
5 like,you know,there's been a lot of negativity with 5 Beach Island in New Jersey. And if people didn't
6 all of this going on. Las of people have gaten angry. 6 expect to have entertainment in a resort area,they
7 6ut litt{e bits and piec:es that 1'm hearing is that 7 shouldn't move to a resort area.
8 there might be roan with comFxomise,there mi�;ht be room ' 8 I see your seal,and it has very active
9 with moving forwazd,there might be room for not a final 9 people,and those would be the people that would like to
10 bottom line toJay. So I'm hopeful that instead of 10 dine at Denise's place when they're done having--
i l deciding this is it,that we can move forward. Because 11 playing their golf or tennis.
12 we need to ccmtinue to evolve and change as a community, 12 And Pm in Palm Springs,and I come down
13 or we're going to wind up with a ciry like,all due 13 every weekend because of that establishment and the type
14 respect,downtown Palm Springs which kind of lost its ' 14 of clientele she attracts.
15 charm over the years. ' 15 MS.ROBERGE: Thank you very much.
16 Thank you very much. Thanks for what you ' 16 MS.CHRNALOGAR: You'ie welcome.
17 do. 17 MAYOR BENSON: Any questions?
18 MR.MUEL.L.ER: i have no questioas. 'il�ank you. i 18 MR.MUELLER: No yuestions. 71►anks.
19 THE REPORTER: Could you spell your last name, ; 19 MS.ROBERGE: This geademan.I don't know your
2 0 please? 2 0 name,but!hope you're for it.
21 THE WITNFSS: Moller,M�I-1-e-r. 21 MR.GREEN: My name is Walter Green. I live at
22 MS.ROBERGE: Rick Sonleiter. i 22 808 Shadow Vista in Palm Desert. I actually came over
2 3 MR.SONLEITER: My name is Rick Scxileiter, 2 3 hene just to be here for an hour. I thought it would be
24 Son-I-e-i-t-e-r. I live in Rancho Mirage. 24 tinished,it would be interesting--fve dined at your
2 5 And 1'm just--one qu�tion. 1'm just 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. 1 So!say as you decide whether you want
2 Actually,in my professional career 1 2 your glass wall or na wall,that you open up the
3 developed high-end executive conference centers. And 3 possibilities that maybe there's some compromise. For
4 I'd like to tell you,the Crst two were done in very 4 us,we did,"How late will it go,Mr.Green'?" "How many
5 high-end residential areas. So 1've bcen in front of � 5 days will it go on,Mr.Green:�" We never got tumed
6 �oups like this. I understand how tough that is. But ' 6 down,but we did have ro rt�ake some compmmises.
'7 1 also understand that,ultimately,at the end of the � So what 1 urge you today is,as you look
8 day,compromise was the order of the day;that I think 8 at your glass wall,is to loosen your positions and to
9 it was very easy to get on what I cal!the right side or 9 come together,rtraybe,as a task force. Maybe this could
10 the wrong side. And 1've had hundreds of neighbors 10 break out our comnwniry to say instead of there's the
11 stand in the room absolutely outraged that this i i l T-shirts over here and tf�e's the r�idents who can't
12 executive conference center would come,and at the end ; 12 sleep over here of all ages,that maybe you could get a
13 of the conference there would be this event there,and ' 13 task force of six people and a couple rt►embers of the
14 they would have music that got amplified anci they didn't : 14 community to ay and see before you get to a win/lose,
15 think music should►x in their neighborhood. 15 where somebody is going to win and sometx�dy is going to
16 Well,the Ciry said,you know,Mr.Green's ; 16 lose,whether together you can't corrie up with a prog�am
17 company employs at each of these centers about I50 of � 17 that can work for everybody,and you look back cxi it ancl
18 our residents,and hoy,those taxes that he pays,can't i 18 say that was a solution that none of us ever thought
19 ignore it because he's taken this white elephant 19 about and it doesnY work ideally for anybaly,but it is
2 0 Georgian mansion and 55 acres and turning it into a 2 0 in the greater community good.
21 thriving executive conference center business;and gee, ' 21 That's what I have to say. 'Thank you.
2 2 they're paying a lot of sales tax for the community. i 2 2 MAYOR BENSON: Any questions?
2 3 And so there the communiry had to balance 2 3 MR.MUELI.ER: No yuestions.
2 4 this economic reality. But the fact is,we were in a ' 24 MR.ERWIN: Madam Ma}ror--Ms.Roberge,if you're
2 5 ncighborhood. These are people who are cntiUed to � 2 5 through with your witnesses,t think it is time for the
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1 sleep and be at peace. And so our answer was,L.et's sit 1 Mayor to ask anyone in the audience that wishes to
2 down at the table. Now,1've been here almost six and a 2 speak.
3 half hours today,and 1 know chat hundreds of hours and ` 3 MR.ROBERGE: I wou{d just like to know this
4 thousands of dollars have gone into this issue. And you 4 gendeman's name.
5 all are trying to do the best job possible. 1 left at 5 MR.GREEN: My name is Walter Green. 1 am na a
6 l2 o cla:k,and said"1'm done." I tumed around,and 6 witness for any side. I'm a witr►ess for the community.
7 (said 1'm going to cancel tF►at aftettaon appointment. 7 MR.ERWlIY: His name is Walter Green.
e 'fliere's a chance that maybe something 1 ccwld say might ; 8 At this point,Madam Mayor.I would
9 change a way that ycw approach it. The situation wori t 9 suggest--1'm sary.
10 change. The residents feel ignored. They fcel that : 10 MS.ROBERGE: 1 have one question for Mr.Green.
11 music has intcrrupted their life for years,and they ' 11 I w►y agnee and believe on everything you've just
12 haven't been listened to. f am a new resident. I don't ' 12 said. And(thought 1 did make a very good comp�vmise
13 live in this area,but I have ears,and that's what 1 ; 13 today. And 1 don't know whether it was missed,or wouW
14 heard today. 14 you like--or should 1 say it again? Do you think 1
15 !heard an owner who said 1 made a 15 should say it again?
16 mistake. I'm prepazed to do what 1 can do,but 1'd like i 16 MR.GREEN: Well,I think 1 did hear your offer
17 to know what the target is so when I get there,f'm ' 17 to make a compranise. And I think thaPs a piece of it.
18 home. 18 And 1'm tat saying it shoulddt be all of il. 1'm just
19 So do we want to say let's just take it 19 saying tt�e has to be a little coming together. It may
2 0 out on her because Denise just doesn'i listen,or let's ' 2 0 not just be the deribel. The answer may not be in the
21 just go with the residents because,after all,they '; 21 decibel.
2 2 should really convol it? Or should we say wc have a 2 2 MS.ROBERGE: Thank you.
2 3 vibrant business here,we have a lot of employees here? ' 2 3 MR.ERWIN: Madam Mayor,this is the point in
2 4 1've dined there;they care;they present a nice ameniry `. 2 4 time that you should inquire if there are any cxher
2 5 to this community. 2 5 members of the audience that wcwld Gke to make comment
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1 cither way. 'Ihey're free to do so at this time. 1 Jefine it?
2 MS.BARRINC"PON: 1'm Ann Barrington. 1've been 2 I think it's pretty obvious if you look at
3 in the desert for eight years. 3 the map over here that although there are,quote,
4 MAYOR BENSON: Wtiy don't you give your name and ; 4 unquote."reasonable people"who have a problem with the
5 addcess,please. 5 sound at night,whether or not the percentage of tt►e
6 MS.BARRING'I'ON: My name is Ann Bartington. 1 6 population that is corrq�laining represents a reasonabk
7 live at 73�55 Tenaza Drive in Palm Desert. 7 amount. I would think that over six years chat if there
8 1 know how difficult it is to start a B was a significant problem from Augusta,or any ott�er
9 twsiness,and I know how hard it is to keep it going. 9 establishment.that you would have many,many.many rtq�e
10 But 1 strongly emphasize with the Chamber that if we 10 in temu of a percentage of a population,people
11 have businesses that are woiicing as hard as they can, 11 complaining.
12 and Ms.-- 12 It doesn't reduce the particular problem
13 MS.ROBERGE: Roberge? 13 that any inciividual has,but I dodt see an uprising of
14 MS.BARRING"PON: Ms.Roberge has been here for � 14 the community against this property. 1 do see a few
15 six years. ' 15 people loudly azxl repeatedly complaining to the point
16 MR.ROBERGE: 25? 16 that the City has taken Ciry resources to go in and
17 MS.BARRING'IiON: 'ihe Augusta? How bng have you' 17 investigate Ms.Roberge and Augusta and forced her into
18 had the music and-- 18 spending significant dollars to try to comply with the
19 MS.ROB6RGE: Well,Augusta Restaurant has been 19 55 DB level.
2 0 herc for 10 years. � 2 0 Now,having�u�l a DB meter in the past,l
21 MS.BARRINGfON: Trn years is a long time. And 21 know that if you move it a few inches one way or the
2 2 it's sad that we can't come to a compromise. 1 respect 2 2 other,the actual number will tx different. So you have
2 3 what yai ve said. 1 think it's wonclerful that we have `. 2 3 to rnme up with what is a reasonable person's judgment
24 rrsidents who they,too,want to compromise. And 1 � 24 on this,as well as the fact that,from my point of
2 5 woulcln't want to be in your seat right now. It's very : 2 5 view,if you close clown music with her,you might as
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1 difficult. But 1 do know that we need businesses in 1 well not--you're not going to see people opening any
2 this community. We need tau Jollars in this communiry. 2 outdoor music in town. And I don't sex how that's going
3 We do need the homeowne�s�hat will come to these 3 to happen. 1 would like to see more of it,not less of
4 establishments and spend money. 1 hate to see us close 4 it.
5 the door on something as silly as nwsic a little bit too 5 MAYOR BENSON: Any questions'?
6 loud. 6 MR.MUELl.ER: No questions.
7 Every night wcwld be otmoxious,but I'm 7 MAYOR BENSOIV: No questions. 'il�ank you.
6 sure we could compromise by bringing it inside or come 8 MS.ROBERGE: Mr.Saxe,you did know that we
9 up with some solution,just not so black and white. 9 collected approximately I500—I just lot my wad—
10 Thank you. i 10 MR.SPIEGEL: Signatures.
11 MAYOR BENSON: Any questions? i 11 MS.ROBERGE: Signatures. 'ihank you. Signatures
12 MR.MUELLER: No questions. 12 that wanted the music versus,really,seven complaine�s?
13 MAYOR BENSON: Is there anyone else in the 13 MR.SAXE: Well,1 don't know the acwal number
14 audience? ; 14 of the complaints,and I don't know the actual number of
15 MR.SAXE: Good aftemoon. My name is Maric Saxe, i 15 signatures that you have,but I did see that it looked
16 S-a-x-e.72-429 Glenview Circle,Palm D�sert. 16 like the stack was pretty large. I thought that the
17 I'm a ten-year resident of Palm Desert. ' 17 stack of cort�laints from the one woman at the Candlewood
18 Generally,I just would like to see more music in town � 18 Apartments seemed to be a pretry substantial stack of
19 and ma�e entertainment. I don't think that you re going ' 19 people over there that wcre so close ro you. Obviously,
2 0 to have an easy time,as many people have said,deciding 2 0 they're going to hear something. You could probably get
21 this. I think this reasonable pecsori s clause in the 21 it down to 25 decibels,they'll hear something,they're
2 2 cafe is just way too wide a gap ro be able to make a 2 2 so close.
2 3 decision. Every time anybociy has any outdoor ' 2 3 So 1 dcx�'t know how they--you know,how
24 entertainment in the town,the reasonable—this clause 24 it compares. But yes,l saw what you haci. And 1 did
2 5 is going to come into effect. And how are you going to 2 5 appear on your list of people. 1 did sign that myself.
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1 MS.ROBERGE: 'ihank you. 1 the Firs!instance?
2 MAYOR BENSON: Thank you. 2 A No,sir. A band dces have a a itarist,a
3 Is there anyone else? � 3 pianist,a keyboardist,and can have a harp,jazz trio;
4 Okay. Then 1 will now cbse the public 4 can have many different instruments.
5 hearing. ; 5 Q So it was your feeling back when you
6 CITY CLERK: Make sure your mic is on, ; 6 presented this letter to the Council,or,rather,to the
� Mayor Benson. We tumed it off because it was getting a 7 Planning Department in 2000,that what you were
8 little feedback. � 8 presenting was rock and roll,classic rock being
9 MR.MUELL..ER: Madam Mayor,couki I just for one ' 9 amplified outdoots?
l0 moment before we close the puAlic hearing,just thercs � 10 A No.
11 a couple of,you know,unasked questions to Ms.Roberge. � 11 Q Or does it read different than that?
12 1 just had a couple of things to ask her,particularly � 12 A No. It grew to be lhat over time. But il
13 as it relates to mitigation. It wou{d only be a couple ; 13 does not say that there will not be any rock and roll.
14 of minutes. ; 14 And the definition of rock and roll,share that with me.
15 MAYOR BENSON: AU right. � 15 Q Back in the USSR and the Beades,that's a
16 ; 16 rock song.
17 DENISE ROBERGE, 17 A Yes.
18 called to testify,was examined ' 18 Q Maybe the harder rock and roll,Huey L.ewis
19 and testified as folbws: ; 19 and the News,that's rock and roll. And a jazz harpist,
2 0 '. 2 0 no matter how hard she strums,is ncx going to be mck
21 EXAMINATION 21 and roll to me.
2 2 BY MR.MUELL.ER: ' 2 2 A Well,we have our harpist here that dces
2 3 Q Ms.Roberge,when--do you remember when ; 2 3 play rock and roll on his harp.
2 4 you tirst made the application for outdoor music,what i 2 4 Q Is it—well,and that may be. There
2 5 was represenwJ to the Council,what type of music you � 2 5 could be rock bands that incorporate a harp and various
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1 envisioned and what the nepresentations were 1 other insuuments. 1 guess the question,though,is,
2 A You want me to go back nine years and 2 was what was presented back in 2000,the I�t of rock
3 remember my discussion with Ciry Council? Well,I can't ; 3 and roll or something softer,and did you try something
4 do that,but 1 can tell you that they granted me nighdy 4 softer as one of the mitigation rt�easures? Instead of a
5 music. 5 glass wall,change the style?
6 Q If you look at page 22 in the book back in 6 A No,because our clientek rnmes to us for
7 Exhibit 1,which is one of the historical-- 7 our music. Why would 1 change what they come to�for
8 MR.KELLY: What page? B if I can get it to stay within our legal code?
9 MR.MUELLER: 222. 9 Q And you're talking about the violations of
10 Q There's actually a couple of different ' l 0 56s that are cbse anyways to 55?
11 letters back in the historical documents from you,but ; 11 A 1'm talking about our legal decibel code
12 this one is from September 28th,2000. Is that your � 12 of 55,yes.
13 letter to the Ciry Planning Department back in 13 MR.MUELLER: I don't have anything further.
14 September of 2000? 14 MS.ROBERGE: Okay.
15 A It's got my signature. Yes. � 15 MAYOR BENSON: Are you through'?
16 Q In the first paragraph,it describes,of 16 MR.MUELL.ER: I'm through.
17 course,you're requesting to allow nighdy outdoor 17 MAYOR BENSON: 'it�en wcwld you give your closing
18 musical entertainment. And it describes that as a 18 statement?
19 harpist,jay.trio,guitarist,pianist,disc jockey, � 19 MS.ROBERGE: Yes. 5orry.
2 0 keyboardist,et cetera. Do you see that? = 2 0 MR.ERWIN: Who?
21 A CorrecL ; 21 MR.MUELI.ER: Me,right?
2 2 Q As part of the mitigation,did you i 2 2 MAYOR BENSON: Marty.
2 3 consider altering the type of entertainment t�eing i 2 3 MR.MUELLER: I typically would go first,and you
24 presented to a harpist,a jarz trio,a diffenent style ° 24 would have an opportunity to provide a closing statrment
2 5 of entertainment back similar to what was represented in ' 2 5 as well.
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1 1'd say this: We've been here a long 1 Council to address this as you deem appropriate. And 1
2 time. 1'm not going to take a lot of time wrapping this 2 don't,for a minute,care to be so presumptive to think
3 up,but a few things of note. 1 think what we just saw 3 that there's an easy call on that. But 1 Jo think that
4 here in this last document and in the last commentary is 4 your staff has presented you with an ample record.
5 notable. The reality is that the sty(e of music that's 5 They've done a great job of compiiing a lot of
6 out there played at Augusta's plays at the levels that 6 inf'ortnation,and that,absolutely,on both fronts,
7 it plays at. The numbers are close and right at around 7 violations of your noise ordinance have been shown,and
8 55,and there s indicia,certainly,in the records of e you've heard from the community about that.
9 repeated instances,and morc often than not over the 55 9 What the answer is to that I Icave to you.
10 limit. But in my view,that--if I was in your chair, 10 Thank you.
11 and if[had to make the decision on this,I really 11 MAYOR BENSON: Denise,would you give ycwr
12 wouldn't look to that point. 1 would really look to the 12 closing statement?
13 question of whether I believed that reasonable people 13 MS.ROBERGE: Yes.
14 were not able to enjoy their pro�erty,enjoy their life 14 I don't think the Ciry has proven its
15 in Palm Desert in the manner anticipated in your noise 15 burden of proof to change my CUP,number one.
16 orJinance. ; 16 Reasonable person--you said the staff
17 When it says,back in the first part of � 17 interviewed reasonable people. The reasonable people
1 B your ordinance,the.010,the purpose of the noise � 18 interviewed by the City staff were the people that
19 ordinance of(D),it reads"Every person is entided to 19 complained. The consensus of a reasonable person at
20 an environment in which the noese is oot detrimenta!to 20 that point would have been all the neighbors around the
21 his life,health,or enjoyment of propeny,"that 21 complair�ers,as we had today in the audience. A lot of
2 2 resonates to me. I believe that every person is : 2 2 people in that area said they liked the music. When
2 3 cntitled to that. And that is a wonderful and valid 2 3 Channel 2 CBS did a survey right behind us,they all
24 pu�pose of your ordinance. And 1 would look at what you 24 liked the music.
2 5 heard today,and I would,as you musG ask myself 2 5 Our signatures,a geat deal of them,are
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1 whether reasonabfe people are being disrupted or annoyed ; 1 from Shadow Mountain. They like the music. So we have
2 by excessive noise,excessive music,amplified music 2 a real issue with reasonable person. And if there was
3 that cxiginates from Augusta's on Friday and Saturday , 3 more than six--1 can't see that far--seven people on
4 nights. And if so,then those are violations of the 4 that map,believe me,there wcwld have tx.�en dots put up
5 noise ordinance. 5 there for them. Seven people aze not a reaso�able
6 All that really tells me then is that you 6 representation of the people in Palm Desert. There is
7 have the discretia►,if that's We,if there are those 7 way more citizens that want 1he music. And like I said.
8 violations, tl�e►►yai ve got the problem at hand,what to 8 it's very important that the City keep u�to-date with
9 do about it'? And!'m not here to tell you,quite 9 the people living in it,and the consensus throughout
l 0 frankly,what to do about it,lwt 1 do believe the ' 10 most of the city is we ncxd a place to go. We need a
11 record has been made clear that there are violations. 11 place with good music.
12 There are the technical violations above the 55,and we ! 12 And 1 will continue to try to bring it
13 have heard from residents who have been adversely ': 13 down,twt 1 have to have a target that I have to be able
14 impacted, annoyed,and disrupted in their attempt to ` 24 to point at and try and hit. It can't be the moving
15 enjoy their properties. ' 15 target that 1've gotten from the City in the past. And
16 And your Ciry staff has gone out,and,1 ` 16 1 am willing to meet and talk with the City on how 1 can
17 think,talked to you,testified honestly and openly s 17 do this. But our CUP is a nightly outdoor music permit.
18 about their own observatiorts. And even younger folks 18 And the reason the people come to Palm Desert--cort►e to
19 who would be expected to and,I think,do like rock and 19 Augusta is because they love the outdoor music.
2 0 roll music would have to say they recognize that these i 2 0 So to say to close the patio in is not
21 levels are higt►out in the communiry. What to do about ' 21 really at all for me because that is making it indoor
2 2 it is absolutely your call. Md that's what's on your 2 2 music. '[hey don't want indoor music. They want outdoor
2 3 plate. 2 3 music.
2 4 But I think,without a doubt,the I 2 4 And we do have to deal with the sound w
2 5 violations were shown. The discretion is there in the 2 5 it's not offensive to everyone,and we've dor►e a pretty
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1 good job of doing that,when one of my biggest womes 1 point. That's part of public debate. 1 wish it were
2 today was the one genUcman that said the sound is okay 2 easier. Maybe we can do it electronically at some
3 with him if we can keep it at 55. And that was 3 poinl.
4 Palm Desert Resort. So for me,that was a major 4 But right now of the people that came here
5 accomplishment and a major feedback to get a gentleman 5 today,seven came to speak against Roberge. Of those
6 that 1 was very concerned about to accept the music at 6 seven,four did indicare that there had been recent
7 that level. 7 improvements. Three of those four were skeptical that
8 Some of the things that were said from the ; 8 those improvements would last. Given the fou�-to
9 various compiaineis were ncx uue. But Iike Mc(ntosh i 9 ftve-year history that this has gone on,I can't say
10 says,people exaggerate. We all exaggerate to get our � 10 that I blame them. Three of them,I don't think you
11 point across. But the restaurant has never been open o� ; 11 would ever convince,even if you took the decibels down
12 Sunday. We don't stay until I anJ 2 oclock in the � 12 to 10,that there was no noise problem.
13 moming like a lot of the reports here say. So I think ! 13 Just my opinion,but then that's my
14 the best solution for everybody is to come up with one 14 prerogative up here.
15 that we can all work with. And 1 uvst that you can do � 15 The fellow from Shadow Mountain had a big
16 that. ; 16 impact on me because he didn't have to look after his
1� MAYOR BENSON: Questions? Are you through with ; 1� own quiet peace and enjoyment,he had to take care of
18 your closing statement? ' 18 the guests that were paying money to stay in his hotel
19 MS.ROBERGE: Yes,thank you,Ms.Benson. ' 19 which is in very close proximity to Augusta.
2 0 MAYOR BENSON: Thank you. � 2 0 1 do not like the subjective portion of
21 The testimony portion of this modification 21 our standard. I think it is unconstitionally vague. 1
2 2 hearing is now closed. And there will be no interaction � 2 2 don't think it gives residents--and let me be more
2 3 from the audience with�he Council. If Council has any ; 2 3 specific. Roc's Firefiouse,Tommy Bahamas,Sullivan's,
2 4 questions,feel free to ask,but there wil!be no ; 2 4 Pacifica,how do those people know when anybody's
2 5 interaction. So at this point,Council discussion. ; 2 5 discomfort or annoyance has been irritated? It's almost
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1 MR.FERGUSON: Well,L.et me start because 1 Imow ` 1 an impossible standazd. And then we're supposed to send
2 Mayor Pro tem Spiegel has got an engagemenG I'll be 2 out code enforcement officers out 36 tirt►es,from my
3 brief. 3 account,to hand out nuisance notices on a standard that
4 We've been here almost seven hours,six of 4 I don't think can be measured. Again.1 view it as you
5 it listening to testimony,pk�nty from both sicles. 5 either hit 55,or we don't iike you. Either way,you're
6 We've gotten volumes of evidence. We've heard from our : 6 going to get a ticke[.
7 staff,cwr police officers,and all wimesses. So 1'm 7 I see Denise as complying substantially
8 ncx going to spend a la of time going through my 8 with the 55 decibel. Even at its worsG it's
9 raticx�ale or my rea.Soning,but I am going to give you my 9 substantial ccxnpliance. So 1 can't help twt think that
10 conclusion. 10 we're falling under the prong that says we don't like
11 There is no way that 1 am going to close ; 11 you. Md 1 don't know,and woukl never say,that our
12 Jown music at Augusta. Please don't clap. Please don't � 12 City staff genuinely likes or dislike people:they just
13 clap. That's not the reason for my statement. ; 13 cio their job,and lhey're very good people. 'R�at's my
14 The reascx►for my statement is based in fact. 1 do � 14 language,not theirs. And 1 mean ra disrespect by that
15 believe that the objective standard of our ordinance 15 whatscever.
16 nc�eds to be met. It's 55 Jecibels. 1'm going to be 16 But what that says is we're not happy with
17 open to suggesting that we acwally reduce that after 17 your sound level even though you meet our ordinance. No
18 10:00 p.m.,depending o�what we can do with an 18 wooder our shop owner gets fivstrated. No wonder you
19 acoustical engineer. Because it nceds to be done. � 19 waive an e-mail accusing the Ciry of being in cahoots.
2 0 We have seven people show up--and by the ; 2 0 You Imow,it was an innocent enough e-mail that
21 way,let me just parenthetically make a phrase,at least ' 21 basically said she's meeting the 55,neighbas are still
2 2 in my view. ICs easy to sign a petition. It's easy to 2 2 complaining,what do we do? 'ihere is the altemate
2 3 claim to represent 30 peopk. What matters to us is ' 2 3 prong. It was adopted in 1986. It's been on your boo{;s
2 4 when people come down here,take time off their jobs. 24 for 22 years. Nobody just made it up. 1 don't like it,
2 5 and,like this gentleman did,stay all day to make a 2 5 but it's been there.
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i Having said that,1 do think that there's 1 great degrae in many cases.
2 a balance here I'm not prepared to igncxe even if i 2 Now,1 don't believe in all of the
3 they're just seven people. I want ro go to t�ed at � 3 testimony that I heard today,but 1 heard from some
4 night,and f like to sleep. You know,I don't know that 4 people like Brian Harnik who has lived here for a long
5 1 have a right to sleep with my windows open 5 time,that says that the music is intrusive and it has
6 necessarily,but I have a right to sleep and get up in � 6 an effec:t on his property value.
7 the morning. And 1 think that there dces need to be a ` 7 Well,that may be the case. And that's
8 balance struck here. 8 not a good thing. 1 heard Sergeant hlorez say that—
9 1'm persuaded by Mr.Mdntosh in Item 2 of 9 or Deputy Ramir�ez,rather,that he asked them to tum
l 0 the acoustic report that we got. 1 know that ' 10 the music down,and they did,and then it went back up
11 Ms.Roberge may not like it,lwt I see plenty of 11 as soon as he left. And that's not a good thing. And
12 restaurants,plenty of nightclubs,plenry of outdoor 12 he's being honest with us. He's one of our employees.
13 dining establishments along Newpon Coast,laguna,up i 13 He's not giving us a lot of baloney.
14 and down the highway with clear glass plastic partitions `. 14 So 1 think that Councilman Ferguson has
15 that keep the noise of the ocean out and keep the rroise � 15 some good points,but as far as I'm concemed,I'd like
16 of the band in so that everybody strikes a balance. 16 to see the amplification wmed off. Don't amplify the
17 1'm convinced that we can come up with something. 17 music. There's a lot of good music that you hear in
18 1 know that 1'm unwilling to simply say 18 places that isn't amplified. And that would be my
19 let's continue to work on it. I would like some ' 19 rnmment,my thought.
2 0 specifics this time. And I guess the specifics I would 2 0 MAYOR BENSON: Councilman Kelly.
21 like to see are the enclosure that was mentioned in the ; 21 MR.KELLY: Well,fint,1'd like to say that
2 2 report that Council Member Finerty brought up. I would ; 2 2 I--for one,I think our City is very appreciative of
2 3 really like to look--that if it in does,in fact,drop 2 3 what Denise Roberge has done for the east end of the
2 4 the decitiel level by 10 points,would like to take a 2 4 EI Paseo there. Because that was kind of the pits on
2 5 look at dropping the after 10:00 p.m.decibel level to 2 5 EI Paseo and an abandoned bank building there. And
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1 50 instead of 55. And if necessary,1'd like to take a 1 Ms.Roberge did tum it into a beautiful comer and
2 hazd Icwk at cutting off the music at l I:00 instead of 2 really lifted up the east end of EI Paseo.
3 I I:30. 3 But also,we are a resat ccxnmuniry,and
4 Those are my comments. 4 we have many,many resort communities,resort residents,
5 MR.SPIEGEL: Thank you. 5 and we are a resort residential communiry. But thene
6 Ms.Roberge sent us a letter on April the 6 are resat residential communities all over the country.
7 I Oth,and her Crst paragraph reads,"First,1 must say 7 You could just look at our coast,our beach cities,our
8 that I have not always been considerate of my neighbors. ; 8 mountain cities,and,in this case,desert cities where
9 1 should have reacted earlier and with more conviction 9 we do depend a►sales tax. And our hotel tax and
10 to help solve the noise issue created by the music at 10 tourism is basically our business. lust as I'm sure
11 Augusta. For this I am sorty." : 11 they pbw com in lowa,you know,we cultivate our
12 And fm sorry too. Because I think had ' 12 visitors.
13 that been done, we wouldn't be having this hearing � 13 But on the other hand,we have--look at
14 today. � 14 that. How many hours do you think has gone into that?
15 There's an old story about a fella that � 15 You know,you suggest that we work together. My
16 built a house next to a stable,and he went into City 16 goodness,we've Ueen working on this for five years.
17 Hall after a year and said it smells terrible,you got 17 And I don't have to just depend on the constituents that
18 to tear it down. Well,this is kind of like the same � 18 come here today,t�ecause 1 advocate a place for four
19 thing. Not that 1'm suggesting that our residents are a 19 years out in the communiry. I live in the south end.
2 0 stable or that Augusta is the stable,but many of the 2 0 'ihe music doesn't bother me. I take my hearing aicis out
21 restaurants were there--many of the residents were ` 21 when I go to bed,and that takes care of tha4
2 2 there,excuse me,before the restaurant. And we're 2 z But my neighbas are--they give me the
2 3 getting the complain�s from the residents. And one of i 2 3 devil all the time. And for four years.I've been
2 4 our jobs,as I see it,is to protect the residents of 2 4 telling them,well,we re going to do something about
2 5 our city. And it looks like we haven't done that to a r 2 5 it.
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1 My experience--and 1've more or less 1 got a problem. And my four years of working with it
2 dealt with situations where we have citizen complaints 2 doesn't give me much confidence in solving it as long as
3 or customer complaints for 60 years,and my experience 3 we have amptified music.
4 is when somebody complains about something,they have a ; 4 MAYOR BENSON: Council Member Fnerty.
5 problem. 1 mean,people don't spend all their time 5 MS.FINERTY: Okay. After we compiled this book
6 complaining about something. They have better things to : 6 and throughout the process 1 decided 1 was going to go
7 do. And so iF things are going good for them,they ie 7 out and do my own kind of independent survey and try
e not going to be there complaining. 8 to--because we have so many controversial statements.
9 So 1 would have very little faith in a 9 And 1 know the staff has done,you know,a really good
10 glass wall or anything like that. But I cio feel ` 10 job,as have our deputies,in responding. I think that
i l strongly that our only hope to solve the problem so that 11 we're here today because 1he problem wasn't dealt with
12 Ms.Roberge can have music at her restaurant anJ the � 12 when it should have been. That said.I don't know if
13 citizens can have peace in their homes would be that the 13 the answer is ro stop the amplified music.
14 music was not amplified. I bve lots of different kinds ' 14 What 1 leamed as my reasonable pc�son
15 of music,and the music I like tt►e best is music that's 15 survey is that there is a problem still,and it is on
16 not amplified. (t seems to me that amplifying music 16 Shadow Mountain,west of Portola and east of Portola. 1
17 takes a lot of purity out of the music anyway, � 17 could hear the music,and 1 could hear the words. And I
18 especially for a restaurant where you have diners. It 18 watched Denise's litde meter,and 1 watched code
19 seems to me like we're never going to solve this problem ` 19 enforcert►ent's meter,and it ranged between 52 to 56.
2 0 as long as we have amplified music. And 191 never vote � 2 0 And that was as measured on the south side of L.arrea.
21 in favor of continuecl amplified music. 1 just can't do ' 21 And that's just too loud.
2 2 that I know that will not solve the problem of our � 2 2 1 can sympathize with the people at
2 3 constituents. 2 3 Candlewood Apartments. 1 was over there. I walked in
24 1 happeneci to write doum the same thing ' 2 4 and amongst the area,and it just--the music just
2 5 that our attomey used in his closing statement. I have 2 5 carried right over.
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1 that written down here,and it impressed me,and that is ! 1 My thought was,as a last-ditch effort,is
2 our ordinance says,Every person is entitled to an � 2 to talk with one other acoustical engineer,look at the
3 environment in which the noise is not devimental to his 3 glass wall,see if it can come down 10 decibels. 1
4 life,health,and enjoyment of prope�ty. 4 think that Ryan Stendel(,our planner,was right,and 1
5 And of course,you reaci our other 5 think for this,maybe,the City erred. Aod Ryan was
6 ordinances--we have lols of ordinances--and they all 6 really honest. He said,You know what? We don't have a
7 ccxitain something that gives us some kind of ineasurement ! 7 lo!of experience here when it comes to setting a
8 of our citizens living in a healthy environment. And ; 8 decibel level for outside music. We've never done this
9 Ids of those are subjective. An examp{e is we give 9 before. We haven't had these kinds of problems before.
10 tots of code violations out because somebody's yard '. 10 So 55 was probably too high. And I believe it was too
11 dcesn't measure up to the neighbcxhood. Well,that's a � 11 high based on the Friday night 1 was out there for two
12 very subjective measurement. And there's no way that ' 12 hours,from,basically,a quarter of 10.�00 to a quarter
13 you can use a certain decibel cx a certain reading and ' 13 of 12:00. And it was too high.
14 that that's going to be good for everybody. � 14 So when I asked--(asked the restaurant
15 So ycw have to have some kind of 15 to lower the noise,lower the music,and when they
16 subjective measurements. And one of the subjective ! 16 lowered the music,the noise,it made a significant
17 me;asurements that I'm using is the size of this book and � 17 difference. And we've all heard today that there's been
18 the four or five yeats that fve had m listen to ' 18 tremendous improvemenG but it's rat been enough. We
19 complaints. So as far as this one person is � 19 need to do more.
2 0 concemed--ycw know.I love Ms.Roberge's complex,and : 2 0 So we have a choice. We can either stop
21 1 think it's an asset to EI Paseo,but on the other ; 21 the amplified music--and 1 really understand the
2 2 hand.I have na just seven people,I have the whole ; 2 2 people that say,but will it last,because of the
2 3 south end,almost up to Grapevine,who every single � 2 3 history,because of this notebook. So to me iPs a
2 4 neighbortiood there almost has at ont:time or anott►er had ; 2 4 last-ditch effon. You get one more chance. And the
2 5 a person get after rne,and even a cal!today. So we've ' 2 5 chance is you get one mcx�e other acoustical engineer—
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1 ic would be Denise's choice--to lower the music to.I 1 can get a group of mariachis lhat have no amplification,
2 would say,45 decibeis,to put up the wall. I think 2 and it would go way past 55 decibels. I just don't know
3 with a combination of 45 decibels and a wall,the glass 3 that that's a very sound approach.
4 wall--but I would want this verified by tt►e acoustical 4 I agee,the music--U►e sounds need to
5 engineers. It's been alluded to already by one 5 come down,but I,you know,intend to agree with Council
6 company--that would he my compromise as suggested,I ' 6 Member Fineny. Why don't we hire a very good sound
7 think it's by Mr.Green,Walter Green. Yes. 'ihat would 7 engineer to tell us how to do tha4 rather than just
8 be my compromise. But if that comPromise is not met, e coming up with a kneejerk no-amplification solutiat,
9 then l would have no altemative but to eliminate the 9 which may serve our immediate needs,but it may
l 0 amplified music. � 10 eliminate,for all practical purposes,music at Augusta.
11 1 do want to say that 1 did visit a strcet � 11 MR.KEI1.Y: Comment.
12 on--or a house on Chicory,cypress Estates,and 12 MAYOR BENSON: Councilman Kelly.
13 Marrakesh,and that particular evening 1 didn't hcar 13 MR.KELLY: Well,if we were dealing with lhis
14 anything. But the complaints cxi Shadow Mountain are i 14 for the first time,and it was four or five years ago,1
15 valid,and 55 is too Icwd in my opinion. ` 15 could agee with a subcommittee working together to work
16 So those would be my comments. 16 this out. But the problem is we've been doing it for
17 MAYOR BENSON: I don't think anybody's intention 17 five years already,and I have no confidence anymore in
1 S here is to close Denise Roberge. I think we know the 18 anything happening to help those residents. And so my
19 value oF the restaurant. And we know that it is a first 19 dnnhers would be that we slart from zero and that the
2 0 class restaurant. And 1 haveri t heazd anybody say, 2 0 residents be protected while we work something ou�
21 "LePs close the res�aurant." All the complaints have � 21 Otherwise,1 have no confidence at all that amplified
2 2 tx�n on the amplified music. They haven't said,"Let's i 2 2 music is going to get lowered to a place and protected
2 3 do away with the music." We have other restaurants in � 2 3 and heW in to a place whc.re it's not going to affect
24 town that have music thaPs not amplifiecl,and they're 2 4 that community there.
2 5 higher up on the list of our scale of restaurants than 2 5 1'm embartassed for the Ciry and for us
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1 Denises is,and they're in business. i that we've been messing around with this for five years,
2 So I would agce with my col(eagues that 2 T'hat embarrasses me. fm ashamed of myself. I mean,
3 say that it's the amplified music that's causing the 3 that's ridiculous.
4 problem It isn't the music. Because you can cenainly 4 MS.FINERTY: Well,!concur that it's
5 clar�ce anci hear the music without it being amplified so 5 unfonunate that it's gone on this long. But this is
6 che neighbcxs he�ar it. 'Ihe music is supposed to be for 6 where we are now. So would a reasonable solution be
7 those pahons at the restaurant,not the ones in the 7 to--since we have a summer coming up,and 1 know that
e nearby community. 8 the music stops during the summer,that we set a time
9 So my suggestion is that,along as with 9 frame? 1 know that you say we've bee�working on it for
l 0 Cindy's,on mitigation measures that we have to do,that 10 five years. And yes,that's ridiculous. You're righ[.
11 we eliminate the amplefication. Thank you. 11 But if we set a time frame,and we say within six mon[hs
12 MR.FERGUSON: Well,I guess my only thought on I 12 if iPs not down and certain measures haven t been made,
i 3 eliminating the amplificaticxi is you may as well get a � 13 and we haven't gotten to 45 decibels,we haven't done
l 4 wash tub,a broom handle,and a lxown jug because other 14 the wall,and if there hasn't been an improvement,ther►
15 than a piano,there's not a whole lot--maybe a : 15 we make a commitment to owselves atid to our residents
16 harpist. ; 16 to say,That's e►xwgh,then we will know that we've
17 MR.SPIEGEL: A saxophone. ' 17 tried everything.
18 MR.FERGUSON: Well,a saxophone can sometima be ' 18 And 1 will say that,yes,iPs been going
19 loider than amplifieci music 19 on a long time,but this is the first time that it's
20 MR.SPIEGEL: A guitar. ` 20 really come to the Council in this fashion. And I think
21 MR.KELI„Y: Make sure you talk into the 21 that everybody now at the table knows that this is
22 microphone. ; 2 2 serious. And we all know what's to be gained and what's
2 3 MR.FERGUSON: I'm s«ry. (just--1 can ' 2 3 to be lost. So if we set the deadline,and we vow to
2 4 appticiate my colleague's concem to want to reduce the ` 2 4 ourselves a[x1 to our residents to honor that deadline,
2 5 noise level,but just saying amplified music is out,she 2 5 would that be an agn�ble compromise?
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1 MR.FERGUSON: Comment. And 1 know you're 1 Augusta's ag+eeing to u�amplifieci music until we solve
2 relatively new on Council,but this is not the first 2 the problem?
3 time we have done this. And I do have to agee with 3 MS.ROBERGE: First of all,our ambience level
4 Councilman Kelly because he and!and City Manager 4 outside without any music--
5 Carlos Ortega went and had lunch with Denise Roberge 5 MR.KELLY: I guess the question is,Are you
6 three years ago to try and fashion a solution. A year 6 willing to do that or not'?
7 ago,when the music was going to go out for the summrr, 7 MS.ROBERGE: A band--live music with a band
8 we said,You have until September to come up with a � e has to be amplified.
9 solution. She did. 9 MR.KEL1.Y: Is that--the answer is no?
10 What i hearci from a lot of peopfe taiay � 10 MS.ROBERGE: It's not that 1'm not willing to do
11 was she made some progress. And 1 for one am not 11 it. If it was possible.1 would be willing to do iG
12 embairassecl one iota that we've spent five years trying I 12 It's just that you can't have the live music at Augusta
13 to kc�p one of our best businesses open in the Ciry. ' 13 without amplification. And our basic sound Ievel with
14 And 1 know that we're not trying to close her down,hut 14 no music is 48. So if you bring it down to 45,yai re
15 I also know,in her view,in effect,that's what we � 15 telling us to cut out our customers.
16 would be doing. And so if it takes us five years to not 16 MS.F7fYERTY: No,1'm saying--1'm saying 45 as
17 hurt one of our best business residents,let it take ; 17 measured on Larrea.
18 five years. 18 MS.ROBERGE: Yes,but our sound level,ambience
19 If there's a possibiliry to eliminate the 19 level on most nights on the weekend without any music is
2 0 music immediately or afler Memorial Day,or whatever an : 2 0 45 decibels. So if you lxing it down to 45,you're
21 acceptable compromise is,and let her put up the ' 21 asking us to cut out a lot of customers completely
2 2 glass--again,it's going to be at her risk,her 2 2 without any music.
2 3 expense--and then we test it in September,and if it ` 2 3 MR.SPIEGEL• Well,Denise,you've heard the
2 4 doesdt meet our criteria--which,by the way,is no 2 4 recommendations. What is your recommendation'?
2 5 longer a Floating balloon,you know,it's now,you ! 2 5 MS.ROBERGE: Well,I said I would be willing to
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i
1 krww,ten DBs less--five to ten,in my opinion,or 1 put up a glass barrier. I can try and live with 50.
2 whatever we craft it,then our answer is real simple. 2 But if you go bebw 50,yai re into my ambience level.
3 She either complies or she dcesn't comply. But we don't 3 So it's no solution.
4 have to go through another one of these hearings. 4 MR.FERGUSON: 1 think the question by Councilman
5 And I also,you know,have heard over the 5 Kelly--and I think it's a good one—is here we are
6 years hundreds and hundreds and hundreds of compiaints, � 6 on May I5,we're coming into the summer. It's going to
7 twt 1 still see those seven same dots. 1 still see tt►e 7 take some time to consUvct this wall. Ycs,you're
e seven same names on the leaers that I get. 1 slill see 8 going to lose a few weekends,but how about unplugging
9 the same seven names on the letters of phone calls--or ! 9 it betwern now and the time you get yow�glass waN up,
l 0 cm the phone call sheets that 1 get. You know,fve � 10 and tl►en let us take a second Iook at it?
11 got--1 live between Buforcl Crites(phonetic),who `: 11 MS.ROBERGE: Well,you know,1 just,as a
12 tells me he can hear it on his pomh. I can't hear a 12 business perso�,can't live with the second look. And,
13 dam thing. He's five miles away. 13 like,you don't want to live with the complaints
14 So again,my question about some people ' 14 anyrtare. Either we—if yw continue to make a moving
15 may not like Denise,some people may not like her 15 target for me,then 1 can't work with you.
16 politics,some people may not like her store. The ' 16 MR.SPIEGEL: Can you work with another sound
17 people in the immediate area,1 think,as Cindy Finerty � 17 consultant?
18 has pointud aN,have a legitimate beef that,!think, 18 MS.ROBERGE: But just,as one of the Council
19 we can do something about. But to just literally pull � 19 members said,it dcesn't mean that you're going to
2 0 the plug on her music because we think that will 2 0 approve if I get it down to that level,that iCs okay.
21 immediately solve the solution creates a problem for 21 So you want me to throw rnore money into something that
2 2 her. It may solve the solution for seven people,but ' 2 2 if 1 achieve,there's no guarantee I can have.
23 destroys the night life for thousands. 23 MR.FERGUSON: How about this? Ancl maybe 1'm
2 4 MR.KELLY: Comment. We're talking about 2 4 putting too much faith in engineering,but t don't know
2 5 everybody,both sides giving a little. Well,how about ' 2 5 where else to put it at lhe manent. If we were to
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1 retain independently a sound engineer to come in and 1 like;I don't know what 48 sounds like;I don't know
2 tell us what would be an acceptable level of music for a 2 what 45 sounds like. 1 sure as heck don't know what it
3 reasonable person living on Shadow Mcwntain or Lartea, 3 sounds like o�Lartea and Shadow Mountain and
4 or wherever else in terms of decibels,and he can come � 4 Candlewood. But if we hired an engineer,sophisticated,
5 up with a solution so that--or she,so that your 5 with good testing equipment,he or she ccwid certainiy
6 amplificaticxi does not exceed those levels,do we not 6 tell whether that was reasonable or not.
7 then have a criteria that's set by an engineer as � 7 And if it comes back that bebw 50 is what
8 opposecl to a politician cx somebody with,perhaps,a e the requirement is going to be satisfy reasonable
9 bias'? 9 pec�le,well,then you have your answer before you spend
10 MS.ROBERGE: That sounds workable. You know, 10 any money.
11 you did have your sound engineer come in. And I don't 11 MS.ROBERGE: 71ie answer being cbse the
12 know if they gave us a Jecibel level or not. ' 12 ►�estaurant down.
13 MR.FERGUSON: He did. ' 13 MR.FERGUSON: The music.
14 MS.ROBERGE: But then again,if it gces bebw 14 MS.ROBERGE: Well,that is cbsing the
15 50,there's no point in me even having a band because 15 restaurant down.
16 that is cxu ambience level,48. � 16 MR.FERGUSON: Whatever you want to infer from
17 MR.FERGUSON: Well,but wouldn't we all be 17 it.
18 better off knowing that before you invest a whole bunch ' 18 MS.ROBERGE: Well,I'm not inferting anything
19 of money in glass and everything else? 19 cxher than exacdy what's the repercussion--
20 MS.ROBERGE: Well,1 just did say we need to 20 MR.FERGUSON: Pm vying to work with you here,
21 have a fixed target fa me before 1'm going to invest i 21 Denise.
2 2 any more money. : 2 2 MS.ROBERGE: I'm trying to work with yw,too.
2 3 MR.FERGUSON: And 1'm--yai re preaching to the : 2 3 Councilman Ferguson,but 1'm giving you the absolutes of
2 4 cf�oir with me because the subjective part of it is very i 24 what 1 know,which ar�e just as smong as what your code
2 5 difficult. But if we had a sound engineer come in and, 2 5 officers Imow.
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1 you know,do essentially what Council Member Finerty did i MAYOR BENSON: You know.1 think we havc a bigger
2 and go stand at these differe�t places and say,Okay, 2 problem than ju.t Denise's,and that's why 1'm in favor
3 here's what your code says,even thou�►I'm not wild 3 of no amplification of mucic. Becau,e we're going to go
4 about our code,but reasonable people ought to be able 4 through thi,. A�one of the xpeakm�aid.the City i�
5 to live with this kind of ambient noise because it could 5 progressing. They're getting younger people in. We're
6 come from a truck hom or from a Harley motorcycle or 6 going to get more re�taurantc. We've got reuaurant.
7 from any one of a number of sources that you say and � rnming on the remodel of--
8 says this should be reasonably acceptable,then we can e MR.SPIEGEL: Crardenc.
9 kind of separate the people who are the agitators,who 9 MAYOR BENSON: --'flie Gardens area. There'v
10 are going to complain no matter what,Crom the peopk 10 going to be rr.tauranh on the roof. And the people
11 who maybe should have been complaining but have just ' 11 fanher down EI Pa.cro and back up on that end of the
12 been quiet out of politeness but still have been equally 12 sandpipen and cxher arras are going to be complaining
13 annoyed? 13 about the mu�ic that filten that way. And l think.
14 MS.ROBERGE: 1 don't think there was any quiet 14 once and for all,we just have to have that there is no
15 out of politeness. You know,1'm not quite sure how to 15 amplification of music. 'ihey can have any kiixl of music
16 respond to that because I did offer to meet you halfway ! 16 they want inside the rrstaurant. And Denise can have a
17 with the 50 decibel level. And if you take it below 17 guitarist or whatever. But I ju.t think we have to have
18 that,there simply is no room for this restaurant to 18 it without amplification,or we're going to fight this
19 survive as-is. So if yw want to get a sound engineer � 19 battle for the next number of years. So any aher
2 0 in and he can tell me 1 can have 52,that's fine. If he ; 2 0 comments?
21 wants to tell me 1 have below 50,then you have killed 21 MS.FINERTY: Well.I�t me try a motion.
2 2 that restaurant. ' 2 2 MAYOR BENSON: Go ahead.
2 3 MR.FERGUSON: And see my problem--and this '. z 3 MS.FlNERTY: The maion would be that the
2 4 gces back to my comment earlier and.(think,my Z 4 amplificd music��[ops immedia[ely:that we bring in an
2 5 colleague's--I dort t know what 50 decibels souttds i 2 5 acaistical engineer--I did bring tht name,like I
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1 said,lack Freetag, who was able to solve the problem in 1 and if she's unwilling,then 1 guess I could try another
2 Palm Springs at Las Casuelas Terraza--and that he 2 motion. And the motion would be that we stop the
3 gives some sort of expen opinion on what can and cannot 3 amplified music.
4 be done. And based on what he has to say and working � 4 MAYOR BENSON: 1 will second that.
5 with Mr.Mclntosh,we have another meeting and determine: 5 MR.KEL1.Y: The motiai was seconded? It got
6 if we should go forward. But in the meantime,go along 6 seconcied?
7 with what Councilman Kelly says and just no ampiified 7 MAYOR BEiVSON: Yes.
e music for now and take the surtuner to work out, e MR.KEU.Y: And so it is to stop amplified music
9 hopefully,a compromise. � 9 until we re satisfied we've got a solution.
10 Anci if an acoustical engineer says that it 10 MR.FERGUSOfY: All I heard was stop amQlified
11 can't be done,and Denise is adamant that it can't be 11 music.
12 lower than 50,then we all have our answers. If,on the � 12 MR.KEILY: Well,1'm clarifying it for myself.
13 cxher hand,you know,we get good feedback,our i 13 MR.FERGUSON: Okay.
14 acautical engineer is optimistic,and we do some trials � 14 MR.KELLY: So 1 know how 1'm going to vote.
15 and tests,and the whole Council goes out there,and we '. 15 MR.FERGUSON: I just want the record clear
16 listen,and we go to Shadow Mountain,and we go east and ; 16 because—
17 west of Portola,and we go listen at these problem � 17 MR.KEILY: That's what 1'm working at.
18 spots,and then we make our own determination. 18 MR.FERGUSON: All right. Thank ycw. 'iliat makes
19 MAYOR BENSON: Who pays for that'? ` 19 a big differe�ce too.
2 0 MR.KELLY: Council Member Fcerty,that's very 2 0 MR.KEL1.Y: That's exactly what 1'm after.
21 difficult to follow chat motion. 1 think we nced a 21 Well,ay stating it again to rre. Maybe
2 2 mcxe--1 don't know,a clearer motion. ; 2 2 we better have our recording secretary state the motion
2 3 MS.FINERTY: Stop the amplified music now. ; 2 3 because there's so many but for this and but for that.
2 4 MR.KELLY: Okay. 2 4 CITY C1.ERK: The last motion 1 heard on the table
2 5 MS.F7NERTY: Have an acoustical engineer meet ; 2 5 was to stop the amplified music,period.
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1 and review and offer an opinion in working with 1 MR.SPIEGEL: Period. And it was seconded by the
2 Mr.Mclntosh. 2 Mayor.
3 MR.KELLY: Who's going to work? 3 MR.KELLY: Okay. 1 understand that one.
4 MS.FINERTY: An expert,an acoustical engineer � 4 MAYOR BENSON: Is there any other discussion?
5 expert. And I cited the information I had from i 5 MR.ERWIN: 1 would ask,Madam Mayor,if that is
6 Council Member Chris Mills in Palm Springs citing his 6 the council's decision,that the staff be authorized to
7 success working with Jack Freetag(ptwnetic)when they ; 7 prepare such a resolution and present it at your next
8 had the same similar problems with Las Casuelas Terraza ; 8 regular rt�eeting.
9 on Palm Canyon because of the mountains. 9 MR.FERGUSOfY: Shouldn't we vote on it first?
10 MR.KELLY: Okay. Let's just deal with the � l0 MR.ERWIN: Cenainly. I just want that included
11 motion so 1 can understand what the motion is,not all ': 11 in the motion,if possible.
12 the rcasons why it's in force. 12 MAYOR BENSON: Okay. You ready to vote?
13 MS.FINERTY: So you stop the amplified m�sic, � 13 CITY CLERK: That motion carries fau-one,with
14 bring in an acoustical engineer. i 14 Councilman Ferguson voting"no."
15 MR.SPIEGEL: Paid by whom? � 15 MAYOR BENSON: Okay. That ends the public
16 MS.FINERTY: Well,I think it should be paid by ' 16 hearing for today.
17 Denise Roberge. ': 17 MS.ROBERGE: You have just killed a wonderful
18 MR.SPlECEL: She has ro be willing to do iha� 18 restauran�
19 MS.FINERTY: And then we review it,we see what ' 19
2 0 the result--then we review che opinion,and we � 2 0 (Whereupon the foregoing proceedings
21 reassess. 21 were concluded at 5:32 p.m)
2 2 MS.ROBERGE: No. 1'm not willing to do that. ' 2 2
23 !t's a moving target again. 23
2 4 MR.FERGUSON: Well,that was your maion. � 2 4
2 5 MS.FI IVERTY: Wcll,there was no second,so-- 2 5
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1 CERTIFICATE
2 OF
3 COURT REPORTER
4
5
6 1,Brenda S.Kroger,certified shorthand
7 reporter of the State of Califomia do hereby certify:
8 That the foregoing transcript is a
9 certified copy of the prc�ceedings 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 lhereafter vanscribed,said transcript being a Uve
14 certified copy of my shorthand notes thereof and a trve
15 record of the testimooy.
16 In wimess whereof,1 have subscribed my ,
17 name this date:
18
19
20
21
Brenda S.Kroger,C.S.R.
2 2 Certificate No. 10212
23
24
25
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