Smithtown issues noise citation to restaurant after complaints 

Neighbors of the Smithtown restaurant Garden Grill say amplified music played seven nights a week is ruining their summers.

In interviews, they described bass so intense it rattled their homes and restaurant patrons screaming to make themselves heard over a mix of blues, rock and jazz that doesn’t stop most nights until 9:30 p.m. or later.  

The North Country Road restaurant is about 200 feet from the nearest home on Judges Lane, a residential street with half a dozen homes. That street is in Village of the Branch, whose officials have also complained about the music, but the restaurant is in Smithtown.  

Garden Grill owner Fred Marsilio said neighbors’ complaints were “unfounded” and that his musicians’ ballads and easy listening music songs were barely audible from Judges Lane, with music stopping by 9 p.m. A decibel meter he bought backs up his case, he said, and dozens of patrons have signed a petition to keep music and outdoor dining. A noise violation he received from the town after 9 p.m. last Wednesday will “get blown out of court” at a Sept. 1 hearing, he said.  

Smithtown spokeswoman Nicole Garguilo said town officials had warned Marsilio twice previously before they issued the violation. "They started out with just acoustic guitars, and then you get karaoke," she said. While officials want the restaurant to do well, "it's becoming a disruption to the community," and Marsilio risks losing his permit for outdoor dining, she said.

Marsilio said that among other mitigation efforts he ensured that his speakers were oriented away from residents’ homes. Smithtown code prohibits playing of speaker systems “in such manner as to create a noise disturbance,” which it defines, in part, as loud or disturbing noise audible outside the property from which it originates. 

Marsilio received a special exception from the town to permit outdoor dining and a variance to permit outdoor dining less than 150 feet from a residential district after a Jan. 14 Zoning Board of Appeals hearing. At that hearing, Marsilio’s representative said “outdoor entertainment and loudspeakers will not be utilized… On occasion they do have live music in this facility, but none of that will ever take place in the outdoor dining area.” 

Marsilio said he was not operating under the special exception but under a temporary town permit issued to restaurants this summer allowing outdoor seating for establishments unable to accommodate social distancing inside. He has 25 outdoor tables and at his busiest about 80 patrons, he said. 

Garden’s Grill August concert schedule shows music 6 to 9:30 p.m. every night except Sundays, when it shows one set in the afternoon and another from 5 to 8:30 p.m. Neighbors said that Marsilio has built a stage with microphones that pick up more than just music: "We can actually hear people taking orders,” said Libby Smith, a retired nurse.

While Marsilio said Smith was "riling up" her neighbors, they had their own complaints: Chris Marvin, an engineer, said his two children, 6 and 9, were unable to sleep when the music is playing; Lucia Spahr, a retired administrative assistant, likened the noise to "having an out-of-control party going on in your back yard."

Marsilio withdrew more than $30,000 from personal savings to keep his restaurant afloat during the pandemic, he said, adding that indoor dining provides a fraction of the revenue he needs to stay in business. He hopes to make live music a permanent summer attraction, calling it a lifesaver for him and his employees. “We have a window of time until the end of October when the permit ends and the weather’s going to change,” he said. “No one knows if people are going to accept indoor dining.”

Of his 40 employees, at least 15 are the primary breadwinners for their families, he said. “They’re running households with the money they’re making at my restaurant,” he said.  

Rob Cartelli, a plumber who also lives on Judges Lane, said he was sympathetic to Marsilio's desire to make up for lost revenue. 

But the music — so loud he can recognize what songs are playing from his bedroom — is affecting his own business, forcing him to stay up later and operate on less sleep, he said. “It causes me to wake up later. I’m losing an hour of grind, then trying to come home early because I’m bushed," he said.  

“If this is going to become the new norm,” it’s not going to work for him and his neighbors, he said.