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Constitution defeats Salida again

Brief by Central Staff

Salida politics – January 2002 – Colorado Central Magazine

A federal judge in Denver has ruled that Salida’s old noise ordinance was unconstitutional, and if its enforcement caused a downtown restaurant to go out of business, then the city could be liable for damages.

U.S. District Judge Richard P. Matsch — perhaps best known as the judge who pre

The city ordinance forbade amplified sound that could be heard from more than 25 feet away from the source or a property line. When the Flour of Life bakery and restaurant engaged some musicians with amplifiers in 1998, it was cited for violating this ordinance.

The owners, Brett Lilly and Maryann Baumann, said this meant they couldn’t have live music, which had been part of their business plan. And without the music, they couldn’t stay in business, they told the court.

Their attorney, John Zakhem of Denver, argued that the 25-foot limit was so restrictive that it violated their First Amendment right to freedom of speech, and the judge agreed that the ordinance was unconstitutional on its face.

“Cities can regulate the time, place, and manner of speech in order to meet a compelling governmental objective, like protecting citizens from noise pollution,” Zakhem said. “But to be constitutional, they have to do it in the least restrictive way. We argued that this 25-foot rule was way too restrictive, and the judge agreed.”

Lilly and Baumann also contended that they were victims of selective enforcement because other businesses were not cited for violating the ordinance.

However, attorney Gordon Vaughn of Colorado Springs, who represented the city, said that other businesses complied when notified of their violations, so the enforcement was not selectively enforced against Flour of Life.

What happens next?

In theory, a jury trial could be scheduled in federal court to determine whether the enforcement of an unconstitutional ordinance caused Flour of Life to go out of business. If the jury determines that it did, then it could award damages.

However, “we’re hopeful that there will be a settlement before it goes to trial,” Zakhem said.

As for Salida, the city council repealed the old ordinance in December of 2000, and replaced it with a more detailed ordinance that presumably passes constitutional muster.