Starvin Marvin's noise ordinance battle surfaces in appeals court

David Yates Aug. 22, 2011, 11:46am


A few weeks from now, the city of Beaumont will argue before appellate justices that a local judge erred when he declared as unconstitutional a noise ordinance aimed at silencing live music at Starvin Marvin's Bar and Grill.

The appeal stems from an injunction request brought by restaurant owner Marvin Atwood against the city in March.

Court records show that on May 5, Judge Donald Floyd, 172nd District Court, granted Atwood's temporary injunction request.

Judge Floyd took his ruling a step further on May 19 when he denied the city's plea to the jurisdiction request.

The rulings immediately prompted the city to file an appeal to the Ninth Court of Appeals of Texas, court records show.

Oral arguments have been slated for Sept. 15.

According to the city's appellate briefs, the city will argue that Judge Floyd lacks the jurisdiction to make rulings on the case since the matter belongs in a criminal court and not in a court of equity.

During an April injunction hearing, City Attorney Tyrone Cooper had argued that Judge Floyd lacked the jurisdiction to order an injunction, since Atwood was violating the recently amended public nuisance noise ordinance, which, in his opinion, makes the case a criminal matter.

The city's appeals brief also maintains that Atwood should have served notice to Texas Attorney General Greg Abott.

Atwood's attorney, David Bernsen, contends the amended noise ordinance wrongfully impacted a separate zoning law and violated his client's constitutional property rights, court papers say.

Jefferson County case No. E189-628
Ninth Court case No. 9-11-00229-CV

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