I have written a number of times recently on problems with establishments and people getting into trouble with the local police over noise and music. But what’s the truth of the matter, legally?
The problem appears to be that small bars claim to continue to experience problems in obtaining permission to have any sort of live music in their bars, whilst the big discos and hotels are perceived to be allowed to blare out noise for as long as they want to.
Added to the problem experienced by bar owners, we have news stories such as the group of young uni students who were fined heavily for making too much noise in their rented villa, allegedly without being warned first.
But is the perception of Mojacar as being some sort of fascist musical police state really true? What is the situation, can bars there have live music and what’s the ruling?
Well, it is logical and correct that the town council should set standards of noise and control live music to ensure that it only takes place in appropriate venues. However, such standards need to be judged against regional and national laws, a council should not “veer off course” and start inventing its own procedures with no respect for the Law. The laws of Andalucia set down certain conditions and then hand the whole thing over to local councils to create their bylaws within the framework of the law. So let’s have a look at the bylaws of Mojacar to see what the situation is there.
There seem to be two bylaws in Mojacar regulating this sort of thing, and it’s a bit confusing. Try to keep up. The bylaws are:
- Ordenanza reguladora del ruido procedente de usuarios en la vía pública, actividades domésticas y de vecinos Bylaw regulating the noise generated by users of the public domain, domestic activities and that of neighbours
- ORDENANZA REGULADORA DE DETERMINADAS ACTIVIDADES DE OCIO EN EL TERMINO MUNICIPAL DE MOJÁCAR. Bylaw regulating certain specific leisure acts in the town of Mojacar.
The first one isn’t actually available from the Mojacar townhall website, it’s missing. That didn’t stop me and I tracked down a copy.
This bylaw concerns itself with noise coming from the following places:
- Establishments using the public way,
- use of megaphones in public areas,
- works being carried out in the public way,
- acts of celebrations and behaviour in the public way and in public spaces
- behaviour of neighbours in community blocks.
First off let’s look at public establishments serving food and drink to the public who want to open a space in the public domain (ie street or square). We’ll call them terraces, with a nod to all the other sort of installations such as fair bars, etc. The bylaw calls them veladores if you’re interested.
First off, no acoustic study is required to request the opening of a terrace (art 5.3) but the technical documentation supporting the request (what this consists of isn’t specified here) is required to show that the location confirms to all technical requirements, including those in the same bylaw.
The bylaw (art 5.4) says that all establishment are provided with a discretionary and temporary license to open a terrace. Licenses are granted for a specific time period and can be renewed at the end of that time under the same requirements if all conditions are met.
The license will specify (art 5.5):
- start and end dates
- opening hours. Under no circumstances may a terrace be open past 2am on any day of the year, which to my reading includes fair days. This condition is also applied to terraces on private property. Note that we are talking about the outside patio here, not the establishment itself.
- max number of seating and tables, square meters, etc etc
Conditions of use (art 6). You can’t open a terrace without seating. You can’t serve food or drink to anyone who can’t sit down to consume. You can’t have live or piped music, or megaphone advertising, or any sort of automatic noise. You can’t prepare food or drink in the zone of the terrace if it generates any sort of noise. You can’t install any sort of entertainment machine that makes noise or annoys neighbours (table football, one armed bandits, snooker tables are all specified as examples). You can’t allow any sort of game to be carried out (darts, dominoes and similar games are specified) which would annoy the neighbours or at night. You can’t allow your customers to annoy the neighbours by shouting, singing or playing musical instruments especially at night. You can’t keep the windows of the main part of your establishment open if you are playing music
If the terrace is in the public domain, you must collect all chairs and tables within half an hour of closing time, without making any noise. You can leave them out if it’s a private terrace.
Oh, and you can only install shading of a temporary nature, ie, no foundations or bolting the sun shades to the floor.
We skip over the next few sections dedicated to the use of megaphones in public places, the noise generated by works, etc.
There is an interesting rule Art 14.3.c) regarding noise inside private homes. The rule says celebrations and private parties inside homes can be carried out, as long as they obey logical civic behaviour, between 11:00 and 00:00 with exceptions of Saturdays and festival evenings when the previous margin shall be modified to 11:00 on Saturday or festival eve to 01:00 hours on Sunday or the festival day.
Moving away from translations of random parts of the bylaw towards something more concrete, there is however an interesting point. Several times this bylaw specifically says that the local police shall use their judgement without recourse to acoustic measurement. In other words, if the copper thinks you’re being noisy, you are, and there is no requirement to measure the noise you are making to see if it compares with other noise generated. This is reiterated in Article 18.3) which reads in part
When agents of the local police in the execution of their duties find that a legalised activity is producing nuisance to immediate neighbours, which by their persistence and intensity are inadmissible by the judgement of the said agents they shall order the cause of the nuisance to cease and shall formulate a denuncia of category light, unless said nuisance warrants a more severe category, without the need to carry out any acoustic measurement.
The bylaw is quite clear. If a local police or inspector thinks you’re being noisy, you are. And since no measurement is required, it would be impossible to later claim that you aren’t, because there is no quantitative measurement taken. And this is where the Mojacar bylaw falls down, at least in my opinion.
You see, regional law is quite clear of the need to take accurate and impartial noise measurements. The Junta de Andalucia, in a guide to the implementation of noise laws in Andalucia states this in the very first paragraph:
The need to have objective data when deciding upon the compliance with the requirements of the Decree upon acoustic contamination makes it absolutely necessary to carry out measurements. We must take into account that when trying to decide if an emitter is complying or not with the legal requirements, that what we are actually trying to decide is whether or not it is generating acoustic contamination in its vicinity. We pass from a subjective opinion to a state where objective measurement is required on a scale which is established under strict conditions by the existing legislation.
The 6/2012 Decree on noise control in Andalusia is very clear on the methods of noise measurement : what sort of equipment can be used, scales for the measurement and lots of technical considerations. In fact, the Decree establishes recommendations for measuring sound levels in terraces outside, recommending that the measurement equipment be setup no closer than 1,5 metres away from the nearest residency to the noise source, something the Mojacar bylaw specifically says isn’t necessary.
In short: the bylaw on terrace and neighbour noise is contradicting what a superior Law says in no uncertain terms: measurements must be taken according to a specific protocol, and cannot be arbitrary.
But this bylaw only covers private homes in communities (ie blocks of flats or urbanisations and the like) and public terraces leased from the council. Nothing here about live music or discos. What does the other bylaw say?
Entitled ORDENANZA REGULADORA DE DETERMINADAS ACTIVIDADES DE OCIO EN EL TERMINO MUNICIPAL DE MOJÁCAR (bylaw regulating certain leisure activities in the municipality of Mojacar) it starts off with a long preamble about the fall of Society as manifested in the “activity which must provoke amongst all of us a reaction that is a certain amount of worry“, ie, youths Drinking. Describing how “thousands of young adults and adolescents congregate to ingest alcoholic drinks with the undesirable consequences of noise and visual irritation, as well as being insalubrious“, it continues in the tone of a Victorian Temperance manual for several more paragraphs before claiming it is a solution “demanded by the immense majority of citizens, to end this nuisance“.
Anyway, the objectives of this bylaw are:
- to regulate the sale and consumption of drinks and to stop uncivic actuations against pacific convivation blah blah blah. “A leisure activity can be defined as any grouping of people of any number in open spaces across the town who are together to maintain a social aspect between them via the consumption of drinks of any type [..] open spaces are defined as any space owned by any public administration (for public right of way, zone or area in the open air ) as well as private property being used to the same effect“. IE, two or more people chatting anywhere.
- Establish a scale of fines against this nuisance.
I find this interesting. I don’t think that bit about the private property being defined as “public spaces” would stand up in court, and it certainly doesn’t give the Local Police the right to force their way onto your land if you’re having a party. Although no doubt the townhall would say the bylaw only applies to open spaces which are privately owned by which are commonly transited by people, ie open fields and the like. A list of “public areas” is given which is quite exhaustive, it goes right down to “rubbish bins, waste bins and fencing”. It’s irrelevant. The Constitutional Court has ruled that private property is always off limits to Authority without a judicial order, even when it is not fenced off.
Anyway, almost any congregation of people in any area under any circumstances is deemed to be a gathering with the following Exceptions (art 3):
- Those people in any establishment or terrace during the established opening hours (ie, bars or restaurants)
- People who have got together for a reason which has been authorised by the townhall, ie a fiesta, a religious parade, a demonstration or the like
- Official demonstrations sanctioned and authorised by any public body competent to do so
We now come to Article 4, Prohibitions. Quite a few of these:
- No gathering of people unless authorised, as above.
- Commercial activities which supply drinks to be consumed in public even when the gathering is authorised when the delivery is via take away (so, according to my reading, you can’t call up from your private party on private land and ask for a beer to be delivered to you)
- No selling of alcohol outside of the authorised opening hours of an establishment
- No selling of alcohol by a catering establishment for its consumption outside said establishment.
- No littering during authorised gatherings
- No peeing or crapping outside of loos
- No drinking or congregating outside of a medical centre
- No underage drinking even in authorised spaces
Article 5 moves onto opening hours.
- No sale of alcoholic drinks from “establishments not designed to consume on premises”, ie shops, or take aways, between 10pm and 8am.
- Drinks may be served in bars etc during their opening hours on the premises. If a client attempts to take a drink offsite the police must be called in order to maintain public order and the manager must cooperate fully with the police. The manager in charge shall be held responsible if they do not advise authorities that drink has been taken offsite.
- The council can order exceptions to all this during fiestas, semana santa, Christmas and other traditional fiestas.
The bylaw then establishes places where people can congregate without the need to request permission, but that list hasn’t been copied onto my copy of the bylaw. Police and inspectors are designated to patrol to identify people congregating outside of these places with orders to crack down on them.
To sum up: no drinking in public, no gathering together unless it’s authorised or in an authorised spot even when it’s on private land which could be considered public, no selling of booze between 10pm and 8am, and if a bar owner spots someone leaving the premises with a drink in their hand they have to call the cops or be held responsible.
But no mention of noise inside bars. So what do we have so far?
Well, we have the first bylaw which specifies the installation of terraces outside establishments on private and public land, other types of noise generated on public land and noise in communities amongst neighbours. Which seems to contradict the need for a specific measurement scale to be used.
And then we have the second law banning the congregation of people in public places and controlling the sale of alcohol.
We have seen how live and piped music is banned on terraces, as are noisy activities such as dominoes. And according to the Mojacar council website, there is no other bylaw regulating the noise generated inside bars.
So can bars in Mojacar have live music, or not? Well, it seems that for the answer to that we have to go back to regional laws. And in short, if you’re the type of business that is allowed live music, you can if it’s permitted and authorised, but inside.
Oh, and you’re not allowed to have any music, including piped, outside on the terrace, according to the regional law. Peace Must Reign outside, the noise can only be inside if you are authorised.
For more on the noise laws of Andalucia, including what to do if you’re annoyed by noisy neighbours, see here.
So whilst we can quibble about the bylaws of Mojacar being excessively rigid and even anti-Constitutional (inasmuch as the lack of requirements of proper measurement go), and the local police being ordered to fine heavily to help make up the budget, it seems the music issue is actually a regional law that is simply being ignored in other towns, and applied in Mojacar.
Although the question of whether a 500€ fine for drinking a bottle of water on the beach is proportional is a question ultimately for the courts.