[30 October 2015] A second letter to the Arkansas Department of Environmental Quality (ADEQ); this letter addressed to Director Keogh.

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Hello Ms. Keogh, (personal video evidence included subsequent to text – please watch)

Everyone I’ve contacted in Arkansas’ Leadership “chain-of-command” either outright ignores me or obfuscates relevant to this most important subject matter and my concerns articulated within this correspondence. Attorney General Rutledge pointed the finger at you, the ADEQ, as possessing jurisdiction relevant to my request for intervention.

The letter that I sent to the ADEQ on 26 October 2015 has, thus far, gone unanswered. I have attached a VIDEO at the end of the narrative where I provide evidence of the following concerns regarding Arkansas’ environment and the quality-of-life for every citizen living in Arkansas. Please note the following muffler statute from Arkansas Motor Vehicle and Traffic Law, 27-17-601…

Arkansas’ Motor Vehicle Laws – Muffler
27-37-601. Noise or smoke producing devices prohibited.
(a) Every motor vehicle shall, at all times, be equipped with a factory-installed muffler or one duplicating factory specifications, in good working order and in constant operation, to prevent excessive or unusual noise and annoying smoke.
(b) No person shall use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, nor shall any person sell for use on a motor vehicle upon the public roads, highways, streets, or alleys of this state, a muffler, other than as defined in subsection (a) of this section, cutout, bypass, similar device, or any type device which produces excessive or unusual noise or smoke.

I am a retired 31 year veteran of the Houston Police Department who has been battling the vehicular NOISE debacle in our State for several years and within the United States for some seven-years now. I have begged Governor Hutchinson’s Office, Attorney General Rutledge, local Mayors, Federal and State Representatives, for assistance with this matter, but all I’ve received thus far, with a couple of exceptions, is a cold shoulder and obfuscation. Governor Hutchinson’s office refuses to even acknowledge my concerns and I’m growing somewhat weary of being ignored. Your time and your assistance is much appreciated, thank you!

The roadways of Arkansas are flooded with motorcycles, automobiles and trucks that are  operating in stark violation of Federal and State law relevant to noise and particulates emissions. It is illegal, in the State of Arkansas, to operate a motor vehicle on the roadways of said State with a muffler affixed to said motor vehicle that does not conform to the “specifications” of the “factory-installed muffler” – that is, a quiet, EPA compliant, catalytic converter equipped, exhaust mechanism.

In reference to the additional qualifiers/descriptors of “excessive or unusual noise” – I interpret “excessive or unusual” to mean noise emitted by a muffler that is louder than the original factory-installed exhaust. Yes, there will certainly be some acoustical degradation with wear and tear thus permitting a slightly enhanced exhaust note, but NOTHING compared to the illegal aftermarket muffler mechanisms emitting decibel levels many times over the original equipment, even when the original equipment has experienced many miles and years of wear. I am fully aware and have battled the controversy that “noise” or “sound” interpretation is “subjective,” but clearly articulated legal precedent does exist that nullifies this argument for enforcement purposes.

I interpret “excessive or unusual noise” to be anything in excess of the total motorcycle noise emissions restricted by the Environmental Protection Agency to 80 dB(A). Considering the EPA mandates testing “total” motorcycle noise, which includes all of the constituent moving parts evaluated during a scientifically controlled testing procedure, the EPA approved exhaust is actually quieter than 80 dB(A) seeing that the muffler is only one part or element in the overall noise producing parts being examined in combination; therefore, the factory exhaust mechanisms on motorcycles are very quiet indeed.

Having tested a number of the motorcycle aftermarket exhaust mechanisms while in an enforcement capacity, I know for a fact that the aftermarket exhaust mechanisms currently used on our public roadways emit four-to-eight or more times the 80 dB(A) stipulated as the “minimum” level of protection for the general public by the EPA. (dB calculation differentials via logarithmic scale)

In addition to the egregious violations of vehicular NOISE restrictions, it has come to my attention that one (1) large displacement V-twin motorcycle that has been modified via the installation of an illegal aftermarket exhaust mechanism requiring the removal of the catalytic converter, emits up to ten (10) times the particulate pollutants into our atmosphere as one (1) compliant compact automobile. Does this not concern you?
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My second concern with the above muffler statute:

I interpret the muffler statute to read that, within the State of Arkansas, it is illegal to “sell” an exhaust system that does not conform to the specifications of the “factory-installed muffler.” With this in mind, there are possibly hundreds of retail/installation facilities within the State of Arkansas that install Flowmaster, Magnaflow, various LOUD engine/exhaust headers, cut-outs and extremely LOUD, illegal aftermarket exhaust mechanisms for motorcycles, auto’s and trucks that are restricted to NOT FOR ROAD USE – CLOSED COURSE, COMPETITION ONLY environments .  Am I missing something here?

Do you know which Arkansas State agency is responsible for oversight and enforcement of those retail establishments who are in violation of part (b) of the Arkansas muffler statute – or am I misinterpreting the statute?

If there is an alternative interpretation, or if the statute says something other than what I understand it to say, if I am in error, PLEASE…advise me of my error and misinterpretation so that I can cease pursuing this matter and return to enjoying my retirement.

I can only assume that Arkansas, as well as the other 49 States in the United States, as well as the Federal Government, has enacted restrictions on motor vehicle NOISE in response to quality-of-life issues and in response to the physiological harm caused by unregulated NOISE in our environment, NOISE that is especially harmful to our children, our elderly, our handicapped, our families living within the communities of Arkansas; this is well documented by the World Health Organization, the United States Congress, the United States Environmental Protection Agency and a sundry of other scientifically based studies readily available on the Internet.

The last guess-estimate was that there are some 9,000,000 motorcycles registered for street use within the United States with the largest proportion of these motorcycles operating within our urban areas. A representative dealership for Harley Davidson Motorcycle Company has told us that approximately 80% of their new motorcycle purchasers make their first “performance” upgrade an illegally LOUD, illegally polluting, aftermarket exhaust. It’s reasonable to assume that the metric, or foreign import, motorcycle riders make the same aftermarket exhaust upgrade to their street motorcycles also. (For a succinct explanation of the illegality of the disingenuous tactics used by the motorcycle aftermarket industry see: http://www.dealernews.com/…/shades-gray-selling-and-install…) (This article has been removed from the Internet, most likely due to its undeniable evidence of motorcycle aftermarket/dealer installation culpability)  These statistics suggest that some 7,200,000 illegally equipped motorcycles are operating on our roadways and within our communities with a majority of these noise and particulate polluters operating on the streets of our crowded/confined urban areas.

1) Why is this vehicular NOISE assault allowed to continue?

2) Why are we failing to provide adequate protection for our children, our elderly, our handicapped, our families?

3) Why is Arkansas permitting Mayor Sanders of Ft. Smith; Mayor Jordan of Fayetteville; Mayor Carne of Hot Springs, to invite many thousands of illegally equipped, illegally modified, illegally LOUD, illegally polluting, motorcycles into our State and within our Municipalities for annual motorcycle rallies?

4) Why are thousands of illegally equipped, noise polluting, particulate polluting, automobiles, trucks and motorcycles traversing the roadways of Arkansas on a “daily” basis completely unencumbered by you and our State and local law enforcement community? Why?

PLEASE VIEW THE FOLLOWING VIDEO DEMONSTRATING STARK VIOLATIONS OF ARKANSAS’ MOTOR VEHICLE LAWS RELEVANT TO OUR ENVIRONMENT.

Thank you,
Rick Holtsclaw, Houston PD/Retired
Loud Motorcycles Suck – Facebook & Youtube

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Response from Lesley Morgan, Attorney representing Arkansas’ Department of Environmental Quality. (30 October 2015)

Mr. Holtsclaw,

Thank you for your response and your messages. I have reviewed the issues raised your email. I refer you to an opinion issued by the Attorney General’s office that addresses the section of the code that you referred to in your email. That opinion is available at the following address:
http://ag.arkansas.gov/opinions/docs/2009-015.html

As the opinion states, enforcement of this portion of Title 27 of the Arkansas Code is under the purview of law enforcement authorities in the state of Arkansas. The Arkansas Department of Environmental Quality is not designated as an authority for enforcement of Title 27. Please contact your local law enforcement officials in order to address violations of Ark. Code Ann. § 27-37-601.

Please feel free to contact me if you have any questions.

Thanks,

Lesley Morgan
Attorney
Arkansas Department of Environmental Quality
5301 Northshore Drive
North Little Rock, AR 72118
501-682-0889
morganl@adeq.state.ar.us

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Response to Lesley Morgan: [30 October 2015]

Thank you Lesley for your response; unfortunately, our law enforcement entities appear to be uninterested in enforcing the laws relevant to illegally equipped, illegally loud, illegally polluting, motor vehicles in Arkansas and my attempts at civil redress to coerce them into action have been stymied by the archaic and, in my humble opinion, unconstitutional doctrine of Sovereign Immunity.

How can this be?

1) Does Arkansas not have a regulatory entity that pursues and investigates retail establishments that blatantly violate Arkansas’ laws relevant to environmental pollution?

2) How does one motivate a law enforcement community to intercede on behalf of the citizenry they swore to protect and serve if the civil courts are closed to them via unconstitutional protections?

3) Are we, as citizens of Arkansas and citizens of the United States, denied the right to equal protection under the law as unscrupulous and irresponsible men and women assault our children, our elderly, our handicapped, our families, with vehicular noise emissions that have been clearly substantiated as causing physiological and psychological harm?

Any suggests as to where I go from here?

Thank you,

Rick Holtsclaw

[24 October 2015] Attorney General of Arkansas, Leslie Rutledge, has pointed the finger at Arkansas Department of Environmental Quality (ADEQ) as having jurisdictional authority over my concerns for the vehicular NOISE debacle assaulting the citizens of Arkansas. With that in mind, I’ve asked ADEQ the following questions:

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I am a retired 31.5 year veteran of the Houston Police Department who has been battling the out-of-control vehicular noise debacle for some seven years now – this, with an emphasis on illegally equipped, illegally modified motorcycles. I have made four attempts to receive answers from AG Rutledge and Governor Hutchinson relevant to the vehicular NOISE debacle assaulting the citizens of Arkansas. Finally, as of yesterday, 23 Oct. 2015, AG Rutledge answered my correspondence with a letter of impotence and advised me that I should contact ADEQ for assistance. Please respond to the following concerns:

1) Arkansas’ Motor Vehicle Laws strictly forbid the operation of a motor vehicle upon the roadways of Arkansas with a muffler that does not meet FACTORY OEM specifications, yet thousands of motorcycles, automobiles, trucks operate daily on our roadways with modified OEM or aftermarket exhaust mechanisms that emit incredible noise emissions. Motorcycles operate on our roadways completely unencumbered by law enforcement emitting decibel levels that are two-four-six or more times the legal total motorcycle noise emissions of 80 dB(A) – stipulated as the “minimum” level of protection for the general public as per the EPA (decibel level differentiations calculated on logarithmic scale). Why is ADEQ not interceding on behalf of the citizenry of Arkansas and stopping the audible assault on our children, our elderly, our handicapped, our families? NOISE which violates the rights of Arkansas’ citizens promised them in the Preamble to our Constitution and NOISE that has been confirmed to be hazardous to the health of Arkansas’ children, our elderly, our handicapped, our families – this physiological injurious noise assault confirmed as harmful by the World Health Organization and audiologists.

2) Why is ADEQ permitting the operation of illegally equipped motor vehicles, especially illegally modified/illegally equipped motorcycles, to operate on the roadways of Arkansas completely unencumbered while knowing full well that one (1) modified large displacement V-twin motorcycle that has had its catalytic converter removed during the installation of an illegal aftermarket exhaust mechanism emits up to ten (10) times the particulate pollutants into the atmosphere as one (1) compliant compact automobile?

3) Why is the ADEQ not enforcing the Arkansas Motor Vehicle Code restriction that clearly forbids the sale/retail of exhaust mechanisms that fail to conform to OEM-Factory specifications? How many modified-aftermarket exhaust retail/installation establishments are there in Arkansas? I would hazard to guess perhaps hundreds, yet you do absolutely NOTHING to stop this stark violation of Arkansas’ Motor Vehicle Law!

I can only assume that the Legislators for Arkansas enacted the Motor Vehicle Laws, relevant to noise and particulate emissions, as a result of “quality of life” concerns and concerns for the health and safety of the citizens of Arkansas – if so, why are these laws not being enforced? The Attorney General says that you are culpable, are you?

We have Mayors who prostitute themselves with the LOUD motorcycle cult[ure] via biker rallies where thousands of LOUD, illegally equipped motorcycles flood area municipalities and assault the tax-paying citizenry without remorse or care – WHY?

These are issues that MUST be addressed and personally, I’m am tired of getting the run-around from our impotent law enforcement community and our compromising leadership. Enough!

Your response and answers to my concerns would be most appreciated.

Rick Holtsclaw, Houston PD/Retired

Dear Mayor,
Since 2009, the West Houston area motorcyclists have been
harassed and profiled by Houston Police Department Officer
Holtsclaw (“Officer Holtsclaw”).

Officer Holtsclaw insists on violating motorcyclists’ civil
rights by issuing tickets for loud pipes and other things
over and over again to the same motorcyclists. This is
blatant discrimination against bikers, not to mention
illegal profiling. This unprofessional behavior needs to
stop now!

After numerous complaints filed with the Houston Police
Department (the “HPD”) and City Hall by taxpaying citizens
of Houston, Officer Holtsclaw was pulled off the streets
for a short period of time only to be put back on the
streets again in a different area of West Houston to
continue his campaign of harassing motorcyclists.

We are asking the HPD and its officers for uniform
enforcement of the law. One rogue officer making arbitrary
decisions is not good for community relations nor a
conducive climate of mutual respect for citizens and law
enforcement alike. Our community is outraged. We feel it
is necessary to bring this specific behavior to your
attention and ask for disciplinary action immediately
against Officer Holtsclaw.

Officer Holtsclaw has been counseled repeatedly by the HPD
and needs to be removed from his patrol officer job and
permanently put behind a desk so he can no longer write
tickets. Surely, in a city the size of Houston, there
should be some office job that meets his qualifications.

We expect and appreciate your prompt attention in this
matter.

Regards,

Paul Landers
State Chairman
Texas Motorcycle Rights Association
chairman@tmra2.org

CITY OF HOUSTON

INTER OFFICE CORRESPONDENCE

SUBJECT: Grievance Regarding Involuntary

Reassignment

I, Senior Police Officer Rickey D. Holtsclaw, Employee #68560, am currently assigned to the West Patrol Command, Westside Division, Shift 1.

On November 16, 2010, representatives from the Houston Area Motorcycle Riders (HAMR) and the Texas Motorcyclists Rights Association (TMRA) rallied at Houston’s City Hall to demand that City Ordinance 30-3, “Noisy Vehicles Generally,” be revised. These representatives accused me of using the ordinance to harass them and claimed that Houston’s noise code was too subjective and therefore “void for vagueness.”

Three days later, November 19, 2010, I was removed from my patrol assignment and placed on an administrative assignment pending a very thorough investigation. I remained on that administrative assignment for five-months and one-week until the evidence, relevant to a frivolous complaint from area motorcyclists, was shown to be utter nonsense. I was cited, via Supervisory Intervention (SI), for having protected my hearing when the illegally loud motorcycles operated by members of HAMR and the TMRA passed only feet from my position near the 611 Walker Building on the day of the rally.

On June 21, 2011, representatives from HAMR and the TMRA, once again, rallied at Houston’s City Hall and demanded that I be transferred or “fired” for having, in their opinion, harassed motorcyclists in my area of responsibility in west Houston. On June 16, 2011, I was, once again, removed from my patrol assignment and placed on an administrative assignment as per Lieutenant Paul Ryza, Westside Division. No one adequately explained to me why I had been removed from my patrol assignment, but a popular assumption suggested that another frivolous complaint from an area motorcyclist had, once again, been accepted by the Internal Affairs Division.

On July 8, 2011, in response to having been involuntarily reassigned to administrative duties, I submitted a letter titled “Request Meeting with Chief of Police and Mayor regarding Noise Enforcement Initiative,” via my Chain-of-Command, asking why I had, once again, been involuntarily reassigned. This letter was apparently stopped at Division level and returned by Captain Mary Lentschke or perhaps the letter was returned by Assistant Chief J. Chen.

On July 15, 2011, 1000 hours, I was ordered to meet with Lieutenant Paul Ryza in his office. Also present at this meeting was my Patrol Supervisor, Sergeant Michael Mikeska. Lieutenant Ryza informed me that my letter, dated July 8, 2011, would not proceed up the Chain-of-Command in its current format because he had received information as to why I was involuntarily reassigned. According to Lieutenant Ryza, someone, either in the Mayor’s Office, Chief’s Office, or Internal Affairs, was under the impression that an area motorcyclist had filed a formal complaint against me. As of my meeting with Lieutenant Ryza on July 15, 2011, the Lieutenant admitted that no such formal complaint had ever been formalized. The logical question subsequent to this information is, “Why have I been involuntarily reassigned and why do I remain on that involuntary reassignment?

According to Lieutenant Ryza, I have been reassigned from patrol duties to an administrative assignment until such time the City of Houston decides how it is going to proceed with the controversial issues related to City of Houston Ordinance, 30-3, “Noisy Vehicles Generally.” I respectfully suggest that this reasoning, relevant to my involuntary reassignment, is wholly unfair and unfounded.

While serving five-months and one-week on my previous reassignment as a result of frivolous complaints from area motorcyclists, I regularly responded to my Municipal Court subpoenas. I was successful in adjudicating perhaps hundreds of noise violations prior to the motorcycle protest rally at City Hall that took place on Tuesday, November 16, 2010. Subsequent to this protest rally, prosecutors in the various Municipal Courts began summarily dismissing my noise citations written under City Ordinance, 30-3. I learned that, according to a prosecutor who was in the process of dismissing one of my citations in Municipal Court #18, that the citations were being dismissed because “there may be a problem with our law.” Note, this is after the City Legal Department had reviewed the Ordinance in question and formalized a letter stating that I was authorized to use the Ordinance to cite motor vehicles illegally equipped with loud modified and aftermarket exhaust mechanisms.

On Sunday, May 1, 2011, I returned to patrol duty and, in addition to my responsibility to respond to calls-for-service, I, once again, began issuing citations to excessively loud motor vehicles. Since May 1, 2011, I have used Texas Transportation Code 547.604, “Muffler Required,” in lieu of City Ordinance, 30-3, “Noisy Vehicles Generally.” In other words, there is absolutely no reason for me to be reassigned pending a decision by the City Legal Department relevant to a noise ordinance…I no longer use the ordinance and evidence of this fact can be verified by reviewing the citations I’ve written since Sunday, May 1, 2011.

Also consider the fact that an HPD Circular, No. 11-0616-115 (see attached copy), dated June 16, 2011, states, “until further notice is given, officers will not issue citations pursuant to City of Houston Ordinance 30-3.” The HPD Circular then stipulates, “Enforcement and citations pursuant to Texas Transportation Code Section 547.604, Muffler Required; Texas Penal Code 42.01, Disorderly Conduct and Other Related Offenses; and other applicable laws are still authorized.” Again, there is absolutely no reason for me to have been reassigned pending a decision by the City Legal Department relevant to a noise ordinance seeing that,

• I have been using the Texas Transportation Code in lieu of City Ordinance 30-3 since I returned to patrol on Sunday, May 1, 2011.

• HPD Circular No. 11-0616-115 notifies the entire Houston Police Department that City Legal has already made a decision regarding City Ordinance 30-3 and that said ordinance “is undergoing revision.”

• It is also important to note at this juncture that, approximately two years ago, while City Legal was deciding the validity and applicability of City Ordinance 30-3, I was ordered to cease issuance of noisy vehicle citations while City Legal researched the subject. I was not removed from my patrol assignment during this five-six month period of time; therefore, the question remains, why have I now been involuntary removed from my patrol assignment pending a subsequent review of the law by the Legal Department? Especially considering the law/ordinance in question is no longer relevant to my enforcement efforts.

Personally, I am not interested in City Legal’s decision regarding Ordinance 30-3 seeing that I have finally received a valid and applicable “charging instrument” for the Texas Transportation Code. A valid charging instrument, relevant to Texas Transportation Code 547.604, will allow my noise citations to proceed to adjudication and said Code is under girded by binding legal precedent, Aaron C. Aguilar v. Texas (2008).

Additionally, I was involuntarily removed from my beat assignment, 20G86A, and transferred to 20G38A in order to appease the owner and motorcycle clientele of the “Dam Ice House,” 1710 State Highway 6 South. Why have I been removed from my beat assignment in order to pacify the owner and clientele of an establishment that actively conspire to violate the law and refuse to respect the right of all Houstonians to enjoy a peaceful environment and domestic tranquility? In addition to my request to be reassigned to patrol, I also respectfully request that my beat assignment, the beat assignment I polled for and received by means of seniority, 20G86A, be returned to me.

If Mayor Parker, Houston’s City Council, Houston’s City Legal Department, Houston’s Municipal Court and the Office of the Chief of Police, do not have the forthrightness and courage to support my efforts to protect the citizens of Houston from the unlawful intrusion of excessively loud motor vehicles, why not order me to cease and desist relevant to my noisy vehicle initiative? Why am I continually subjected to harassment and unfair treatment via involuntary reassignment? Is there any other officer serving in the Houston Police Department who has been, or currently is, subject to reassignment for having enforced the law and performed his duties to the best of his abilities? For the very short period of time I was assigned to the street, subsequent to my first five-month and one-week involuntary reassignment, I was in the “Top Performer” category at the Westside Station for “calls for service run” and “traffic citations written.” Again, why am I being punished for having performed my duties in accordance with all policies and procedures? Please, either support me or order me to stop my enforcement initiative relevant to excessively loud motor vehicles that continue to operate freely on the roadways of Houston Texas; motor vehicles that violate the right of all Houstonians to enjoy a peaceful environment and domestic tranquility.

R. D. Holtsclaw, Senior Police Officer

Westside Division

rdh:rdh

CITY OF HOUSTON

INTER OFFICE CORRESPONDENCE

R. D. Holtsclaw, Police Officer

Westside Division

rdh:rdh

CITY OF HOUSTON

INTER OFFICE CORRESPONDENCE