Testimony of Carl Nelson
before
Committee on Business, Consumer, and Regulatory Affairs
Oct 26, 2015
Thank you, Mr Chairman, for the opportunity to comment on the proposed ABRA noise law. I
am Carl Nelson, a retired government scientist and resident of the Palladium Condominium at
1325 18th St., NW, Washington, DC. I am also a co-founder of the DC Nightlife Noise Coalition.
I support the proposed bill because it will help ABRA’s enforcement of nightlife noise which has
become a nightmare in my neighborhood. If ABRA wants to.
Unfortunately, we see ABRA as an opaque agency failing its mission in our neighborhood.
Seven nightclubs have open-to-the-air patios or roofdecks that drive amplified music into the
neighborhood and disturb residents’ bedrooms with loud, low frequency music, usually on
Friday, Saturday, and Sunday nights. I testified in the July 9 hearing, and submitted a white
paper on the strong propagation of the low frequency music from such clubs.
Despite six meetings with Director Moosally which started with his February 2014 statement that
“I take noise very seriously,” and multiple reports of the offensive music, ABRA has been
finding none of the clubs in any violation for at least two years.
Only the ABC Board has found violations in license protest hearings and ordered the clubs to
obey certain restrictions on their licenses. One club has obeyed, and one has ignored the order
with no punishment by ABRA. Is not ABRA an agent of the Board?
We must remember the primary principle of the noise law, that residents are guaranteed a quiet
home. Noise, of course, is unavoidable in a vibrant city like DC, and our neighborhood has
plenty of it, but our human brain adjusts to almost all the noise and permits sleep. We are asking
for ABRA noise enforcement for the completely avoidable noise of outdoor nightlife music.
Nightclub patrons can get all the alcohol and loud music they want – inside. Giving patrons a
bonus of loud music in the moonlight is a liberty too far, especially since those patrons would not
tolerate such a club next door to their homes. And we want to protect those patrons’ homes as
well as our own.
And the institution to protect our homes from that music is ABRA. But we residents can only
guess at ABRA’s operations because ABRA has built a black box around its operations that
allows neither transparency nor accountability.
I offer one example of a report extracted from what ABRA labelled the Complaint Log, that I
received after a request to Director Moosally on dispositions of complaints from our
condominium building. With no explanation, it listed 31 complaints that were all recorded as N
which means No Violation. That has to be a misleading accounting since several of those
complaints were on Sunday night when ABRA complaint department was not even open, and
any complaint had to be assigned an arbitrary date to even be heard, and I am sure that at some
other times the enforcers were engaged somewhere else. Many of those cases should have been
graded Unexamined as a measure for public accountability. And we expect some kind of
accountability for its decisions on the ones it did investigate.
Strangely, we know that one complaint against that business in October 2014 did result in a
violation that was eventually disposed of by the ABC Board many months later. ABRA’s
Investigation Number is 14-CMP-00687.
Along the same line, the periodic reports for the Noise Task Force that Director Moosally reactivated last year had the same problem. Long lists of No Violation with no details followed by
a litany of excuses about ambient noise levels.
But the excuse of ambient noise from normal city activities is used wrongly as a cover for noise
violations because of an assumption in DC noise regulations that all noise is alike and should be
measured on the dB(A) scale. My White Paper in the July 9 hearing shows that low frequency
music is the operative threat, and that ordinary city noises are not the problem in Club Central.
Even a block away from the traffic in Connecticut Avenue at the late night peak traffic period,
the noise of vehicles and drunks appears as a basically white noise of a dull roar. The sleeping
brain adjusts to such noise and dials it out of the brain’s alarm system. Any claims by the club
operators about ambient noise should be dismissed by an intelligent investigation system that
should be focusing on the real threat – low frequency music.
Ambient noise from other operators playing the same low frequency music is relevant, though.
ABRA needs a procedure that considers it as a potential joint violation by two or more operators.
It’s time to abandon the simplistic noise regulations and adopt something that treats the actual
threat to peace, order, and quiet.
As far as we can see, it is a case of letting multiple violators shield each other by using
measurements that cannot distinguish disturbing music from street noise or music from other
nearby violators. My White Paper at the July 9 hearing explains the science behind the low
frequency music disturbance that would not be discovered by the task force’s methods.
We do not know details of what ABRA is doing, but we do know that they are not silencing the
loud late night music that bothers residents’ sleep.
My view of ABRA’s announced rules and procedures for noise enforcement says that ABRA is
relying on an illusory model of a single source of noise in a sea of silence. That is not the
nightlife reality in several parts of the District, and most especially not in Club Central. ABRA
needs a working model of the real multi-source noise situation.
In the face of no enforcement, the residents have only one option: pursue individual clubs one by
one with a license protest before the ABC Board. That is an exhausting process consuming
residents’ time and the cost of a lawyer. It is designed first to eliminate complainers with
burdensome appearances at ABRA in daytime, and then in a complex legal hearing against
business’s practiced lawyer with more daytime appearances in hearings that often do not start on
schedule or are suddenly re-scheduled.
We had such a hearing last week that had been re-scheduled several times over several months
and then delayed two hours in starting, and then lasted five hours while our resident witnesses
had to sit around for the legal jousting that only the lawyers could understand and the full
presentation by the business’s case before testifying for a few minutes each. Who could invent a
better scheme to discourage residents? Ultimately, a decision will appear in another three
months. Meanwhile, the business goes merrily along with its disturbances. The only winner in
our case was the office supply store selling paper and ink.
In one case, we went through the ordeal twice last year, got a ruling by the Board against one
business which has ignored the order and continued its disturbing music with impunity, including
several of the No Violations on ABRA’s Complaint Log. Independent of ABRA I several times
traced music in my apartment to that club. Over the last two years I have found loud music
coming from that club at least eighteen times. Apparently, ABRA simply put the business back
on assumed innocence status with no attempt to monitor compliance, or at least no success in
doing so. If ABRA that cannot find any violation in what that business is doing, it just isn’t
trying.
Something should be done to get ABRA to stop violations rather than relying on residents to do
the job through the horrible protest process.
We residents have pursued as many avenues as we could find to bring the problem to the
attention of the enforcement authorities. We had several meetings with Director Moosally, we
have written Director Moosally with requests for better enforcement, we testified twice since
2014 before the ABRA oversight committee, we protested all seven licenses of the clubs with
outdoor entertainment which requires a daytime appearance of five residents for each case, we
wrote the Mayor and Chairman Orange of the Council oversight committee, we talked with the
Chairman Orange and his staff about a revised ABRA noise law, we testified at a legislative
hearing concerning an ABRA proposed new law, we are testifying here again about the proposed
new law. So far, it’s all talk.
If ABRA continues on its path, any new law with different standards of discovery will make no
difference. The law needs a realistic enforcement scheme with more ingenuity at the
concentrated trouble spots. So far we have no credible indications of ABRA’s intent or
regulations to solve the multiple noise violator puzzle.
Because the major objective of this bill is to improve enforcement, there should be some at least
realistic and useful public accountability for ABRA in the form of specified periodic public
reports on investigations, determinations, and dispositions. ABRA’s reports to the oversight
committee have been mostly counts of activities. We are willing to work with ABRA to develop
an acceptable investigation and accountability scheme. We are not willing to stand by and watch
ABRA ruin a new and better enforcement scheme the way it has been doing with the present law.
The proposed law is moving in the right direction but it needs more assurance that it will be
effectively enforced . No law will give the residents peace, order, or quiet if it is not respected
and enforced. We want this law in place and sunshine in its enforcement. Transparency and
accountability.
Thank you, Mr Chairman