Number Thirty Eight Can Keep Cabaret License, but With Restrictions

“The Director finds that reasonable conditions may be placed on the license to ensure that the Applicant will operate lawfully and in a manner that does not adversely impact the neighborhood,” Molly Duplechian, executive director of the Denver Department of Excise and Licenses, wrote in her May 5 decision, granting the renewal of Number Thirty Eight’s cabaret license.

Duplechian’s ruling overrides a recommendation by Macon Cowles, a hearing officer hired by the City of Denver, who’d concluded after a licensing hearing that Excise and Licenses should not renew Number Thirty Eight’s cabaret license. The hearing occurred after a handful of neighbors complained about “unbelievable” noise emanating from the 31,000-square-foot RiNo venue when it hosted live performances outdoors.

“The owners of Number Thirty Eight are pleased to have their cabaret license renewed and will continue to welcome their loyal guests and contribute to the community as part of RiNo’s vibrant arts scene,” says Stefanie Jones, a spokesperson for the owners, Spencer Fronk and Andrew Palmquist. Westword has also reached out to Tom Downey, an attorney representing the neighbors who opposed the license renewal, for comment.

Without a cabaret license, Number Thirty Eight, which opened in October 2020 and quickly won Best New Venue honors in Westword‘s Best of Denver 2021, would have struggled to stay in business. Although it still would have been allowed to offer food and drink, a cabaret license allows a venue to host live musical performances and let patrons dance.

“Over 90 percent of those providing input on the Renewal stated that they desired that the license be renewed. With this level of support for a license, the Director cannot find that the neighborhood does not desire that the license be renewed,” Duplechian wrote. Among those voicing support for the renewal was the RiNo Art District.

But although Number Thirty Eight will be able to keep its cabaret license, Duplechian put some restrictions in place.

“The Director concludes that while the Applicant has made attempts to mitigate issues and concerns experienced by its neighbors, it has nonetheless been operated in a way that negatively impacts health and welfare of the neighborhood,” Duplechian wrote.

The most significant restriction is that Number Thirty Eight can only host live amplified musical performances and performances with drums indoors, when the venue’s windows and doors are shut. For outdoor performances, the venue must finish construction on a cement wall to help with noise mitigation. Once that wall is done, she said, Number Thirty Eight can again host acoustic music outdoors, but still cannot offer amplified music or music with drums outside.

The venue — whose name refers to Colorado’s status as the 38th state in the union — started receiving complaints from neighbors about noise not long after it opened. In particular, a handful of people who live nearby said they felt misled by initial guarantees from Number Thirty Eight’s ownership, who’d promised that most of the musical performances would be acoustic. But almost from the start, the venue hosted loud concerts.

And the music wasn’t just loud; it reached an illegal level, according to measurements taken by Paul Riedesel, the City of Denver’s noise and acoustic expert. Riedesel inspected Number Thirty Eight on multiple occasions because of noise complaints and at the venue’s invitation. In June 2021, Riedesel measured the noise coming from a concert at Number Thirty Eight from the deck of one of the neighbors’ homes. The peak noise measurement hit 76.7 decibels, which is around three times what is allowed by Denver’s noise ordinance.