Arts and Entertainment Judge Denies Injunction on Live Music at the Bearded Clam

BRADENTON – In the ongoing saga between the Bearded Clam and nearby residents of Whitfield Ballentine Manor over live outdoor music at the establishment, the Bearded Clam seems to have scored a major victory when at a hearing yesterday, Judge Peter Dubensky of the 12th Circuit Court, denied Manatee County's request for an injunction to enforce restrictions on the establishment which would go above and beyond normal noise ordinances for other businesses and residents of the county.

The ordeal has a complicated history that goes back to 1997, when the property's previous owner added the tiki bar, while expanding the restaurant and making other renovations, all without county approval. They were cited, but then applied for belated approval, which was given, but with the stipulation that outdoor, amplified music not be played louder than 50 decibels and only between the hours of noon and 7 p.m. – regulations that are at odds with the county's comprehensive noise ordinance passed in 2008.

In February of 2011, the current owners opened the Bearded Clam, unaware of the previous ordinance's restrictions. When neighbors began complaining and the ordinance was cited, the Bearded Clam sought to have it amended and entered into a voluntary injunction while it was sorted out. The Board of County Commissioners eventually denied their amendment petition and then passed a new ordinance that reiterated the restrictions placed on the property in 1998.

In his summary (click here to download PDF), Judge Dubensky cited both free speech and equal protection issues with the ordinance in ruling that the county had not met legal requirements to do so. Dubensky said that while case law does affirm a government’s interest in protecting homeowners from the intrusion of unwanted speech, as written, the ordinance could be used to suppress free speech beyond that interest. 

On the issue of equal protection, Dubensky noted that the variance in the recently-passed ordinance applying to the property, and the existing comprehensive noise ordinance for Manatee County, meant that anyone else in the area, including the residents themselves, could legally play amplified music beyond the restrictions placed on the Bearded Clam.

The county argued that the property owners had waived those rights when they entered into the voluntary resolution for their citation in 1997. Dubensky ruled that while there is precedent for such stipulations to be passed on in the transfer of property, it was the BOCC's new 2011 ordinance that was being used as the basis for the injunction, though he also suggested that there were similar constitutional problems with the previous ordinance's enforceability, the language of which was nearly identical.

The Bearded Clam's attorney, Luke Lirot, said that the decision means that the restaurant/tiki bar will be treated like everyone else – live music outside until 10 p.m. at no more than 60 decibels, as per Manatee County's comprehensive noise ordinance. Lirot also said that the decision is ”presumably fatal to any other relief sought by the county.“

The popular hangout opened in the recently-renovated Ramada Inn on the North Trail (formerly the Sarasota Hotel and Marina). The restaurant's boat access, heated pool deck, tiki bar and nightly live music have been popular with both locals and tourists – though not with many of the nearby residents who complain that the music can be heard too easily, especially from houses that sit across an inlet on the bay. But in light of the ruling, it would seem they'll have to get used to it.