Citizen enforcers issuing thousands of noise violations against Midtown restaurant owners

Kristin Thorne Image
Wednesday, July 26, 2023
Citizen enforcers issue noise violations against Midtown restaurant owners
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Restaurant owners in Midtown tell Eyewitness News they're being targeted by citizens enforcing New York City's noise code. Eyewitness News reporter Kristin Thorne has the details.

MIDTOWN, Manhattan (WABC) -- Restaurant owners in Midtown tell Eyewitness News they're being targeted by citizens enforcing New York City's noise code.

"For 27 years that we've been here, we've never had this problem," Michelle Collier, the general manager of Swing 46 Jazz & Supper Club, said.

The owners said the noise violations began appearing a few months ago and are coming in bulk - meaning multiple violations are being mailed in one envelope from the citizen's address. The violations are often from months prior.

"We have over 20 tickets between two restaurants," Eoin Clancy, the owner of McCarty's Bar, said.

According to the New York City Department of Environmental Protection, which enforces the noise code, two New York City residents are responsible for issuing more than 5,500 noise complaints - approximately 95% of the total violations issued - against city business since January 2022.

Citizen enforcers can receive 25 to 50% of the fines lobbied against business owners. Fines can range from $440 to more than $5,250.

"It started out with a fine of $400, then it went up to $1,200," Anne Calimano, with Hurley's Saloon, said. "It's money we can't afford."

Under the city noise code, violations can be issued to any business that has music or noise that can be heard from a sidewalk as it can be considered "commercial or business advertising." The code does not specify how loud the music or noise has to be in order to garner a violation nor does it stipulate how long the video or audio recording has to be.

"According to the letter of the law that means if the door to your bar is open and the noise is spilling out onto the street you're subject to a fine even if you're doing it in the middle of Times Square," DEP Commissioner Rohit Aggarwala said.

Some restaurant owners we spoke with don't deny that they had music playing from speakers outside on their patios, but said the music was only loud enough to create ambiance and attract diners.

"No one has ever complained about our sound," Shane Hathaway, operating partner of Hold Fast Kitchen and Spirits said. "We respect the neighborhood, we respect our neighbors."

Hathaway said his restaurant has received six violations.

"It's just strange that out of nowhere these just started appearing," Hathaway said.

Aggarwala said he believes citizens who were enforcing the city's idling law moved to enforcing the noise code.

"A couple of those enforcers read the noise code, figured out there was even more money to be made," he said. "It kind of came out of nowhere."

Unlike noise violations, idling violations require the citizen enforcer to submit to DEP a three-minute long video of the suspected violation.

Collier said recently she spotted a man climb up to the pole outside her restaurant and put his cell phone up against the speaker, which was situated under the restaurant's awning.

"I said, sir, what are you doing?" Collier recounted. She said the man walked away.

Other restaurant owners said they have spotted citizen enforcers walking down the block and recording restaurant after restaurant.

"It's very unfair that we have to pay those fines," Calimano said.

Patrick Dwyer, who manages several restaurants under the company Playright Taverns, said his restaurants have received at least 60 noise violations between them.

"As soon as they started coming in, we took down the speakers, no music outside, but you talk to the city they don't care about that," he said.

The DEP said it can toss out violations that appear to be frivolous, but, for the most part, the department is required under city law to pass the violations onto the business.

"The New York City noise code was created to balance our important reputation as the vibrant city that never sleeps, with the needs of those who live and work here, and it's disappointing that a small group of people are instead abusing the system to terrorize local businesses for personal profit under the pretense of protecting the environment," Aggarwala said.

DEP said Manhattan-based attorney Eric Eisenberg is responsible for issuing 3,094 noise complaints - the most of any citizen enforcer.

Eisenberg told Eyewitness News investigative reporter Kristin Thorne he has only issued several hundred complaints and that he has not received "one dollar" from the violations he has issued.

"New Yorkers file about a million 311 complaints a year for noise, and the city fails to do virtually anything about the problem," Eisenberg said in a statement to Eyewitness News. Eisenberg declined to do an on-camera interview.

"The noise just gets worse and worse. Chronic noise causes anxiety, illness, and premature mortality. Yet, DEP refuses to even post information on its website about how to file an effective citizen complaint, which requires the DEP to either take action on legitimate complaints or allow the citizen to take action on such complaints when the DEP fails to do so," he said.

Under the law, citizen enforcers are permitted to hold onto the violations for as long as they want, which is resulting in businesses receiving several violations at one time.

Sharon Moran with St. Patricks's Bar and Grill showed Eyewitness News how she received an envelope postmarked June 30 from the citizen enforcer's home in Sunnyside, which contained four violations all from March.

Eoin Clancy, with McCarty's Bar, said his two restaurants have received 20 tickets.

"Hope something happens because it's a lot of money," he said.

Aggarwala said he is working with the New York City Council to draft legislation which would put more restrictions on citizens who are enforcing the noise code. For example, they would not be able to keep violations for an extended period of time and mail them all at once. Other legislative improvements, he said, include adding decibel and length requirements to the violations and allowing businesses to apply for a variance under certain circumstances.

"I personally think that we should continue to allow citizen enforcement, but it's got to be shaped and channeled towards the goal first of getting businesses to comply not whacking them with thousands of dollars in fines that they didn't know about," he said.


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