As the warm-weather weeks draw to a close, no decision has been made on a Fourth Street property owner’s attempt to end live music at the Labyrinth Press Company and Brazil Lounge.
State Supreme Court Justice Grace Hanlon hasn’t ruled yet on a motion by Lori Thierfeldt, attorney for Gary and Donna Templin, asking for a summary judgment that would end the live music on Fourth Street while the issue is debated in court. While there has been no ruling on the initial motion, Thierfeldt and Andrew Goodell, the attorney representing the owners of Labyrinth and Brazil, have continued making their arguments in court filings.
The Templins, who have long said events downtown make it difficult for them to enjoy their property, are asking the state Supreme Court in Mayville stop Labyrinth and Brazil from playing any music in the outdoor area that creates a nuisance and to find the restaurants’ actions intentional when they refuse to turn down their music. The Templins are also asking the court to award costs and attorneys fees.
Goodell argued in his Memorandum of Law filing on Aug. 8 that Labyrinth hasn’t violated the terms of its special event application approved earlier this year by the City Council’s Public Safety Committee and has yet to be cited for violating either the permit or the city noise ordinance. Goodell also noted affidavits with several neighbors – including the Rev. Luke Fodor of St. Luke’s Episcopal Church; John Barber, vice president of operations and chief operating officer of the Jamestown YMCA, which operates 24 apartments in the neighborhood; and Nina Bell, owner of an Airbnb that operates directly above the Labyrinth Press Company and Brazil Lounge – saying they haven’t been impacted by the live music.
Goodell argues as well that there have been no decibel readings submitted showing the concerts violate the city’s noise ordinance and that there is no proof the value of the Templins’ home has decreased because of the live music.
“Labyrinth Press and Brazil Lounge respectfully request that the court deny the plaintiffs’ request for a preliminary injunction and grant the defendant’s motion for summary judgment to dismiss the complaint,” Goodell wrote. “In addition, the defendant respectfully requests the court to issue an injunction preventing the defendants from confronting any employees, staff or customers of Labyrinth Press or Brazil Lounge or trespassing upon the private property and/or utilized by Labyrinth Press and Brazil Lounge.”
Thierfeldt, on the other hand, argues the Templins’ have seen an increase in loitering, obscene language, vandalism or property since the outdoor music began and have been harassed by Labyrinth and Brazil employees as the disagreements between the groups have escalated. She wrote in her Memorandum of Law opposing Goodell’s motion for summary judgment that Fourth Street should be treated more as a neighborhood street after 5 p.m. than a downtown area during the business day since Labyrinth and Brazil are two of the only businesses open during the evening on their block of the street and that a preliminary injunction ending the music should be granted because the businesses were incorporated to sell food and drinks, not provide live music. She argues the businesses haven’t shown they sell more food or drink because live music is offered.
“Defendants have failed to support their allegations that their outdoor music is not a nuisance with evidence other than affidavits; they have not submitted any studies of noise levels in the immediate area or traffic studies on which they rely in their argument for summary judgment,” Thierfeldt wrote. “Defendants rely solely on affidavits of non-residents and argue that plaintiffs are not suffering from the nuisance simply because other non-residents have no issues with noise levels. None of the affiants who allege the music is kept at reasonable levels reside in that block of housing, therefore, summary judgment is not proper.”