Police stop responding to couple’s complaints
by Chad Abraham
, Aspen Daily News Staff Writer
Thursday, January 30, 2014
Aspen police will no longer respond to noise complaints that a local couple make against a nightclub and a restaurant in the Ute City building on Hopkins Avenue, an attorney with the city confirmed on Wednesday.
Assistant City Attorney Debbie Quinn said the volume of the calls made by the couple over the last several months is too much for the Aspen Police Department to handle, along with legal matters that are complicating normal law enforcement response.
Since December 2012, Michael Sedoy and Natalia Shvachko have made numerous complaints against Ute City Grill and the nightclub Bootsy Bellows and its predecessor, Syzygy. The couple live in two condos above those establishments but also have lodged complaints against bars and restaurants surrounding the building. All told, they have called police over 30 times in the last year for alleged noise violations.
That led to a one-day municipal trial earlier this month for the Aspen Brewing Co., which was cited three times for noise violations — two in August and one in September of 2013. Six jurors took 10 minutes to find the brewing company not guilty after its attorney argued that the city could not prove the business was the source of the noise. City code restricts noise to 60 decibels after 9 p.m.
On Jan. 16, a day after the trial, Quinn, who prosecuted the brewery, emailed Aspen attorney John Case to ask his input about the noise issue. Case is representing Sedoy and his wife in the city’s lawsuit against the couple and the building’s developer over their refusal to allow access to a staircase and elevator for affordable housing residents and the disabled.
“In light of yesterday’s jury decision, the city is looking at how best to use its resources in the future in connection with noise complaints from your clients, including from sources within and outside of the building,” Quinn wrote. “I would appreciate your thoughts ...”
An hour later, according to Quinn, Sedoy emailed her, asking if she would appeal the jury’s verdict and questioning her request for input.
The “law was clearly broken multiple times and the jury selection was clearly biased against us,” Sedoy wrote. “Second, we are confused by your request. The city approved the mixed-use building in the [downtown] core of Aspen and we expect all employees of the city of Aspen to enforce the law equally.”
Quinn emailed her response to Case.
“Please explain to your client that a prosecutor cannot appeal a jury verdict just because the complaining party is unhappy with the outcome,” she wrote. “In this case there were simply no decisions by the judge on any questions of law that the city will appeal. ... There was no objection to jury selection, and the jury determined from the facts presented that the city failed to prove beyond a reasonable doubt that the city laws were broken.”
Quinn also addressed how noise enforcement, as it relates to the couple’s complaints, will be handled. Testimony at the brewing company trial illuminated the difficulty of pinpointing the source of a violation because of background noise from other bars, patrons and sounds on the street, known as “Restaurant Row.” Quinn wrote that this is especially true “in the neighborhood where your clients have chosen to live.”
Case, on behalf of Sedoy and Shvachko, filed counterclaims in the city’s lawsuit in Pitkin County District Court and is seeking an injunction that, if granted, would prohibit music after 10 p.m. in Ute City Grill and Bootsy Bellows.
And district court, where an injunction hearing is set for March, is the best forum to address the couple’s ongoing concerns, Quinn told Case.
Citing the “finite resources” of the police department, the jury’s verdict and the pending civil case, police officers “will no longer respond to your clients’ noise complaints against either of the establishments located within 308 E. Hopkins, i.e., Ute City and Bootsy Bellows. ... We may revisit this decision after the civil case is finally determined,” Quinn wrote.
If the couple makes a complaint about a business besides those two, officers will respond to the area to measure noise, Quinn continued. Any reports generated from the responses will be sent to the city’s environmental health department.
Quinn said Wednesday that she and C.J. Oliver, director of environmental health, will then decide whether to prosecute a case.
“We ask that your clients not contact police officers or representatives of environmental health about the status of reports or decisions to prosecute,” her email to Case says. “Finally, please advise your clients to cease communicating with me or [City Attorney] Jim True directly during the pendency of the civil litigation.”
Quinn’s email says she reviewed a noise complaint that Shvachko made on Jan. 12 about Ute City Grill and that she will not be pursuing a charge.
The police report in that case shows Shvachko called authorities around midnight to complain about the restaurant, which was hosting a party for visitors from Argentina and Brazil.
Inside the packed bar, officer Roderick O’Connor’s report says he took a decibel reading between 93 and 100. An employee said he would turn the music down.
In a subsequent phone call with Shvachko, she told O’Connor her decibel meter put the level at 50 inside her residence but that “the vibration from the drums was uncomfortable,” the report says.
She called police again at 1:45 a.m. and 2:25 a.m., but told officers that the music had stopped both times before they arrived.