Brother Don's: Kitsap County judge rules Bremerton's noise ordinance unconstitutional

BREMERTON — The music will play on at two Kitsap Way bars involved in a noise dispute with neighbors after a Kitsap County District Court judge ruled a section of Bremerton’s noise ordinance unconstitutional.

In an 82-page decision, Judge Jeffrey Jahns ruled that a provision in Bremerton’s noise ordinance used to cite both Brother Don’s Bar & Grill and the Dugout Sports Bar & Grill for noise violations is unenforceable because it infringes on freedom of speech and is “unconstitutionally vague.”

Neighbors living near Brother Don’s and the Dugout have called police over 100 times since 2018, alleging that the noise from live music at both locations was too loud and keeping them awake at night. Those hundreds of calls resulted in a total of six noise violations between the two bars – five for Brother Don’s and one for the Dugout.

Brother Don’s owner Gordon Rinke fought to have the citations dismissed in court. Rinke’s lawyer, former city attorney Bill Broughton, argued that the noise ordinance was too vague and relied on the subjective opinions of officers that responded to the calls.

Jahns agreed in his decision, ruling that the “catch-all” provision for loud noises in Bremerton’s code violates the First and Fourteenth Amendments. The code “does not provide adequate notice of what speech is prohibited and authorizes arbitrary and discriminatory enforcement,” Jahns wrote.

Broughton called the decision “incredibly compelling” and said he hoped the city would focus on a solution instead of appealing.

“Here we have a couple of hundred times the police have had to respond to these complaints, it’s just a tremendous waste of resources,” Broughton said.

City staff needs to analyze the ruling completely before any decision about an appeal is made, city attorney Roger Lubovich said.

“We’re reviewing it right now, it’s obviously very complicated with an 80-page document,” Lubovich said.

Noise ordinance ruled 'standardless'

Bremerton’s noise ordinance breaks its regulations into two categories: “environmental noise,” which has a maximum decibel limit for noise based on how an area is zoned; and “public disturbance noises,” which are considered a public nuisance and don’t require decibel readings. Examples of “public disturbance noises” include repetitive car horn honking, noises made by the starting or repair of vehicle engines, or loud sound systems in cars.

The part of the code that officers used to cite Rinke and others outlaws the “creation of any loud noises which emanate frequently, or repetitively or continuously from any building, structure or property which unreasonably disturbs the peace, comfort and repose of others."

Sounds produced by “bells, chimes, or carillons” are exempt from the noise ordinance, an issue Jahns highlighted in his ruling. The decision found Bremerton’s ordinance is unconstitutional because it discriminates against types of music — considered protected free speech under the First Amendment – created using other instruments or vocals.

“The city favors certain loud music it chooses not to regulate while regulating other loud music the city disfavors," Jahns wrote.

Jahns found the same part of Bremerton’s noise ordinance “unconstitutionally vague.” Music like the kind played at Brother Don’s and the Dugout is allowed under one part of Bremerton’s ordinance if it doesn’t exceed the decibel levels listed – but could be illegal under another section if someone believes it “unreasonably disturbs” them.

The code could “trap” an innocent person because it fails “to give notice to a possible offender of when music is unlawful because it is too loud to the person complaining about the volume,” Jahns wrote.

BPD officers who responded to noise complaints at Brother Don’s testified at a bench trial in January. None of the officers who testified had received training in noise enforcement or equipment, Jahns wrote, and officers’ methods of deciding if the music was too loud or not varied widely.

Using equipment that measures noise levels isn’t required under city code, however, officers can cite a business for noise violation if they can hear the sound 50 feet or more from its source. Jahns wrote that that subjectivity makes the ordinance "standardless."

“A law which in one section authorizes speech up to a certain noise volume while giving unbridled discretion to declare the same volume of speech unlawful in another section based on one person’s or one officer’s subjective belief the speech is too loud does precisely which the Fourteenth Amendment prohibits,” Jahns wrote.

What does this mean for the city’s noise ordinance?

Jahns’ ruling poses a bigger question for the Bremerton City Council, which has been planning to review the city’s noise ordinance in its entirety. Council President Eric Younger said the council was waiting for Jahns' decision before moving forward with any changes.

The decision only affects a subsection of the ordinance, not the entire chapter. But if the city doesn’t decide to appeal, it will be up to the council to approve changes that abide by Jahns’ ruling. That process could reveal some trickier questions.

“We have to analyze and see what needs to happen, it might just be removing the section or it could be a major revamping of the code,” Lubovich said.

The city attorney said he couldn't recall another time that a city ordinance has been ruled unconstitutional. City staff is reviewing the decision and talking with law enforcement to see how to proceed.

“We’re going to address it as soon as possible,” Younger said.

Rinke, who spent about $17,000 on noise dampening renovations and equipment for the bar, said he was happy about the decision. He has changed the times when music plays at the bar to help accommodate the neighbors, which has hurt his business. Even with the decision, Rinke isn’t sure he’ll go back to playing music late at night right away.

“I think financially it would be beneficial to me to change the hours maybe, but it’s just something we need to give some thought to,” Rinke said.

The complainants in the case did not testify during trial and did not respond to requests for comment from the Kitsap Sun.

“I do feel that they just didn’t do it out of spite, there was a problem, but I tried to do what I could to correct the problem,” Rinke said.