(A) During the days and times set out immediately below, a live music venue or commercial establishment located in the town's B-1, B-2, B-3 or U-1 zoning district may emit live, recorded or amplified music not exceeding the stated decibel limits, subject to the rules for measurement provided. For purposes of this section, a "live music venue" is an establishment that has the legal right to present live performances of music or amplification of recorded music to members of the public, or an establishment located in the U-1 zoning district which has the permission of Appalachian State University to present live performances of music or amplification of recorded music.
(1) Monday through Wednesday:
(a) 70 dB from 7:00 a.m. to 11:00 p.m.
(b) 60 dB from 11:00 p.m. to 7:00 a.m.
(2) Thursday through Saturday:
(a) 60 dB from 2:00 a.m. to 7:00 a.m.
(b) 70 dB from 7:00 a.m. to 10:00 a.m.
(c) 85 dB from 10:00 a.m. to 10:00 p.m.
(d) 75 dB from 10:00 p.m. to 2:00 a.m.
(3) Sunday:
(a) 60 dB from 2:00 a.m. to 10:00 a.m.
(b) 85 dB from 10:00 a.m. to 8:00 p.m.
(c) 70 dB from 8:00 p.m. to 2:00 a.m.
(B) Rules for measurement. For purposes of this section, sound shall be measured using the following rules:
(1) Devices used for measurement. Measurements of decibel levels shall be made with a sound level meter designated at least as “Type II” meeting ANSI S1.4-1971 requirements (referring to “American National Standard Specification for Sound Level Meters,” Acoustical Society of America, New York, NY) (hereinafter referred to as "decibel meter").
(2) Settings of decibel meter when sound measured. The sound measurement shall be made with the decibel meter using the A-weighted scale, set on “slow” response.
(3) Location of measurement. Measurements taken to determine compliance with this section shall be made at or within ten feet outside any property line for the property upon which the measured activity is taking place.
(4) Duration of measurement to establish violation. In order to establish a violation of this section, the duration of measurement(s) which must be registered by the decibel meter must equal or exceed a level continuously exceeding the established limits for 15 continuous seconds, or for two or more periods within a 60-second period, each exceeding the established limits for five continuous seconds.
(5) Time of measurement. Except for sounds created or broadcast outside the commercial establishment or live music venue, and unless the door of a commercial establishment or live music venue is open for periods exceeding times needed for normal ingress and egress, such as when a door is propped open, measurements shall be taken with the door closed.
(C) Associated sounds authorized by this section. So long as the live, recorded or amplified music does not exceed the limits of this section for establishing a violation, associated sounds of a commercial establishment or live music venue, including amplified speech from performers and disc jockeys, and the customary and expected crowd noises related to a performance, such as applause, cheering for the performer, conversations among spectators, and similar sounds, shall not be a basis for finding a violation under this section.
(D) Sounds not authorized by this section. This section does not excuse people who have left the premises of a commercial establishment or live music venue, temporarily or otherwise, from compliance with this chapter. PREMISES for purposes of this section refers, when such activities are conducted outdoors, to the borders of the property upon which the live, recorded or amplified music is created or broadcast. A person, for example, who has left an indoor music venue to smoke a cigarette on the public sidewalk outside the venue is subject to the full enforcement of this chapter. Similarly, otherwise prohibited noise created by an employee of the establishment or live music venue, such as that caused by depositing empty bottles or cans in recycling containers in the middle of the night, is not excused by this section, and such noise production shall subject the offending individual to enforcement in accordance with the provisions of this chapter.
(E) Responsibility for violation. The owner of the commercial business establishment or live music venue shall be responsible for a violation of this section, or if none can be determined, the owner of the property shall be responsible. Before the owner of the property is cited, however, the town shall determine whether there is any current lease of record registered in the Watauga County Registry, and if so, the lessee or tenant shall stand in the place of the owner and shall be responsible. An entity such as a limited liability company or corporation may not evade responsibility for repeat violations by altering its structure, and if there is any identity or overlap between the ownership, membership, or shareholders of a cited sole proprietorship, partnership, limited liability company, corporation, or other entity, and the ownership, membership or shareholders of a subsequently cited sole proprietorship, partnership, limited liability company, corporation, or other entity operating in the same location, or in the case of the outdoor emission of live, recorded or amplified music, in any location within the corporate limits, the entities shall be considered one and the same.
(F) Written notice of warning or violation. A person or entity responsible for a violation under this section shall be issued a written warning or notice of the violation stating the amount of the civil penalty, as appropriate. Such written notice may be delivered to the person in charge of the commercial establishment or live music venue at the time of the violation, or, if none is present, to any employee of the commercial establishment or live music venue present at the time of the violation. Alternatively or in addition, in the case of an entity which has an agent for service of process registered with the North Carolina Secretary of State, a written warning or notice of the violation may be mailed to such agent at the registered address by regular mail or certified mail, return receipt requested.
(Ord. passed 12-16-2019)