NOLA New Orleans We Are Not OK New Orleans Slate
~~~~~~~~Ill Mannered and Occasionally Unseemly Outbursts~~~~~~~~ A Post-Katrina Chronicle~~ "If you can't be a good example, then you'll just have to be a horrible warning." --Catherine Aird
MusicOn Wednesday, September 26, 2012, a meeting was called by Kermit Ruffins, the man who, in the calling of this meeting, has become the de facto face of new Orleans music.
“I got real pissed and I called a meeting,” said Ruffins. The source of his anger is the sudden arbitrary and aggressive crack-down on musicians and music venues by New Orleans City Hall and the Mayor's office.
Answering the call, about 200 (although I've seen numbers ranging from 100 on up) musicians, club owners, lawyers, and music loving citizens converged on Kermit's Treme Speakeasy on Basin Street.
Before leaving the stage, Ruffins said he would like to hold meetings every Wednesday which would culminate in a march on City Hall on the 24th of October, an idea which was met with instant and unanimous support.
There are three things that can be done immediately to blunt City Hall's attack on our culture.
The first is to completely dismantle the “six month clause” which Councilwoman Stacey Head has cleverly manipulated, making it incumbent upon the club owners to prove there has not ever been a six month lapse in entertainment at their respective establishments. (One club owner said, “If you buy a business it might take MORE than six months to renovate it, so we're behind the 8 ball from the beginning.”) It is unenforceable, unconstitutional, and must go away.
Second, we need to force a moratorium on the capricious enforcement of any ordinances pertaining to any kind of public performance or special event.
And third, we need the city to respect the “grandfathering”of entertainment venues.
This is a single cause with many voices, and it is imperative that those many voices be channeled into one clear and cohesive one. Musicians, by their nature are not herd animals, so how this might be done, or whom this voice might be, remains to be seen. But this movement, this cause must not be allowed to collapse upon itself due to petty political infighting. This is what City Hall would most like to see. A united front is an absolute must.
The old saying “you can't fight city hall” is defeatist bullshit. United, we can fight city hall and we can prevail. City Hall is nothing more than a cabal of lawyers and their minions. Guess what? We have lawyers too. Granted, ours may end up working for free, but they are working on the side of the angels.
And City Hall has ordinance, dating back to 1952. Well, we have culture and tradition, dating back to when that first luckless Frenchman stepped off the boat. And we have the power of Jazz, Blues, Rock-and-Roll and Gospel, all children born of this city, behind us. If we unite, we will prevail, and our song will not be silenced.
It is said that in New Orleans, culture bubbles up from the streets. Nowhere is this more evident than in the music scene. You'll know it when you come across a street performance that rivals any ticketed show you've seen. Or when you find yourself inspired to sway, clap and move like never before.
The city is the birthplace of jazz and a mecca for gospel, R&B and ultimately, the rock and pop we love today. We aren't exaggerating when we say that a wholly original spirit of creativity and musical magic is alive on the streets and in the clubs of New Orleans. Experience unbelievable live musical performances in venues from swank lounges to tiny honky tonks to mega concerts in places like the New Orleans Arena.
New Orleans is one big stage. Come and play your part.
The long-term viability of music venues in New Orleans is in real danger. Something has to be done to reverse this increasing and unacceptable trend. In the last year no less than three music venues have had their entertainment shut down, two of these in the last three weeks alone. In the last year some interested parties attempted to re-open Donna's on Rampart St., long known as the Brass Band hub of the city, and were rejected in their attempts due to an arbitrary and capricious city standard that reverts zoning to some or other designation (almost always one that does not allow live entertainment) if a commercial property has been “vacated” for longer than 6 months. As an owner/partner of the Lost Love Lounge, and a musician myself, our application was rejected last year despite the fact that our location has been in operation as a business, continuously, since at least 1930, probably longer, when it was the V&G Tavern (Viola & George Heck, Dancing Saturdays! Television!! Drink Jax!). Additionally, other clubs that are unlicensed for music are being harassed continuously with threats of having their entertainment shut down. I can think of three well known venues off the top of my head. They are all vulnerable. Add to this the general hostility of some of the more aggressive, indeed out-of-control and drunk on power neighborhood organizations (not all of them, so we're clear) that seem to derive a kind of sadistic pleasure from succeeding in destroying that which others have built, and top it off with a Federal Grant that Bobby Jindal is using to fund a seemingly unending string of cheap stings (conducted when businesses are most vulnerable) on small businesses, and you've got a recipe for disaster. I say these things not from the perspective of a whining business owner crying foul over some minor tax increase or other (I'm no Republican), but as a musician in need of places to play. Because that's one of the basic requirements of maintaining our musical culture: places to play.
The issue faced by music clubs and/or entrepreneurs who would like to start one is that the issuance of live entertainment permits is currently governed by a set of rules that will, over time, lead to the existence of less and less permits. The deleterious effects are happening before our eyes. The rules as they stand are so hostile to music venues that regulations outlined in the new “Master Plan” could be legitimately interpreted to mean that all currently operating venues could have entertainment shut down right now, today. It seems designed, over time, to use attrition as a mechanism to drastically lessen (if not wipe out completely) music venues in New Orleans. This is not hyperbole—it's very real as we've all seen in the past weeks. This is of course good for no one save a few nasty people—people no one wants to hang out with anyway--who happen to have a lot of time on their hands to hang around with the people who cobbled our so-called “Master Plan” together, namely real estate interests. And I mean "real estate" interests in the broadest sense, inclusive of all the associated elements: brokerage, construction, Architecture, etc. Together they make up the Silence Crusaders of New Orleans, guided by self-congratulatory heroification whose justice emanates from a the single misguided (and unsupported by facts) belief that they are, mafia-style, protecting property values from the vagaries of the unstoppable incoming generation, tattoos and all.
I'll try to address each manner in which the city prevents, takes away or allows certain venues to skirt regulations of which I'm aware. As anyone can see, preventing, taking away and allowing under special circumstances are all negative to neutral—there is currently no venue for a progressive, forward-moving licensing process available at City Hall, much less a venue for conversation or debate about your rights in the matter. I suppose the city would counter by saying that any business can apply for an exception with your Councilperson or go before the City Planning Commission (ground zero for the Master Plan so what can one expect from that?) and apply for a zoning variance. But here again you run into the wall of conventional wisdom and/or zoning intractability whereupon you aren't engaged in a two-sided forum about real, legitimate legal issues—you're simply entering the rotunda with your hand out, hoping for a sympathetic ear. Believe me, there's none to be found--only in the rarest of rare cases. So those approaches do not rise to the level of an available process that the city is obligated to provide in service to your rights. In fact it's the opposite: it is a city-sponsored blockade of your right to legitimately contend for a legally available permit—one that your property rights may well grant to you. Legally, you must be extended the courtesy of being accepted or denied on real, legitimate grounds. And if you're not, within a narrow framework, the city must provide an explanation to you, not the other way around. The unavailability of such a process at this time therefore means the only legitimate process available is to file suit against the city challenging the appropriateness of your denial, or to beat the drum so loudly, from a very affectionate position, that it's politically expedient for the Council to grant the license as an “exception”—this is so rare as to render it not a real, viable option and further misses the point entirely.
Here are the common ways in which the City refuses to grant live entertainment permits:
1. The Live Entertainment License Moratorium
For years, beginning at some point in the 1990's that I can't verify (I challenge any intrepid soul out there who can comb through City Council dockets and make hide or hair of when this occurred to please give it a go), a new understanding of rules came to exist in the New Orleans Department of Safety and Permits: http://www.nola.gov/RESIDENTS/Safety-and-Permits/ no new music licenses were to be granted, period. There was to be, henceforth, a moratorium on their issuance. This gold standard, which I believe is nothing more than codified conventional wisdom, but under which the city is still erroneously operating, is still a driving force behind denial of permits. However, the rules governing moratoria are outlined in the New Orleans Code of Ordinances, Part 1, Charter, Article III, Section 3-126. http://library.municode.com/HTML/10040/level3/PAI_CH_ARTIIITHCO.html#PAI_CH_ARTIIITHCO_S3-126TEPR
Here is the authority granted: “The Council may by the affirmative vote of a majority of its membership impose a moratorium ordinance, interim zoning district, or other temporary prohibition on zoning, permitting, and other similar functions where necessary to protect the public health, safety, or welfare for a temporary period.” These are the limitations: “No moratorium ordinance, interim zoning district, or other temporary prohibition shall remain in effect for more than one year, provided that the Council may by ordinance authorize one extension for an additional period of one hundred eighty days.” It continues to further limit this authority: “Thereafter, no moratorium ordinance, interim zoning district, or similar prohibition of substantially the same legal effect on substantially the same geographic area may be imposed until at least one year after the expiration of the prior moratorium ordinance, interim zoning district, or other temporary prohibition.” In other words, the City Council may not impose an endless moratorium on new live entertainment permits or anything else for that matter. A moratorium is a temporary prohibition only. They would have to impose it every other year, or year and a half, leaving a required one-year window open whereupon this rationale could not be applied. But there's ample evidence to support that the endless live entertainment moratorium conventional wisdom is still the standard under which the city is operating. Read this article from Nola Defender in regard to Bacchanal's well-publicized struggles and you can plainly see this conventional wisdom is alive and well: http://noladefender.com/content/bacchanal-blues
It appears there is no such city-wide moratorium, despite whether or not those in power want to operate under the false presumption that there is. Challenge it. It's baloney.
2. The “the previous business or businesses that you didn't own in the same location must have had a robust and regular live entertainment history whereupon at no point now or in the distant past can there have been longer than a one-year absence of said entertainment operations. If this is not the case, your ability to showcase live entertainment at that location has expired.”
If you don't believe this bizarre one, here's the final ruling in a case involving Little People's Place in the 90's: “Based on the evidence submitted, we conclude that live entertainment was not a continuous aspect of the club's operation. The conduct of live entertainment at the property was sporadic or intermittent at best. Under these circumstances, we are led to conclude that the use of the property did not establish a nonconforming use for live entertainment.” This is the one, from what I can tell, that is most often used to deny permits. Here is a link to that case: http://caselaw.findlaw.com/la-court-of-appeal/1042270.html
Finally, “I pay a tax and they let me slide. I don't actually have an entertainment license.”
I've heard about this one. I know it's been asserted in at least one instance and that this line of thinking assisted a business in not receiving a violation during a raid, or that's what I was told. I've never been able to ascertain what “tax” it is that gets paid, much less how the fee is calculated. Maybe it's the amusement tax? More than likely this is just a rumor. In any case, it's out there as conventional wisdom that if you pay this so-called tax, and you get raided, that Safety and Permits will let you slide.
So the problem lies not with business owners who desperately want to operate legally under conditional-use live entertainment permits. Nor is the issue the obvious increasing demand for entertainment licenses that economic forces & population growth are making obvious. The problem is with the city in that it will not grant new permits to virtually anyone based on faulty reasoning and prejudicial application. This does nothing to curb the aforementioned demand for live entertainment in many geographic corners of the city, however, and creates an unnecessary black market where operators take the chance on getting busted because there are no other options available. That this is a current reality in New Orleans, of all places in the world, goes beyond the obvious mind-blowing stupidity that it represents and serves as a sad and dull reminder of all-too-familiar patterns of city and state-sponsored behavior that negatively impact economy, progressive development, and cultural continuity and maintenance. You know, the little things.
That being said, right now there are sadly only three available circumstances, that I can see, under which live entertainment is possible: 1. Stay open forever and keep your current live entertainment license until the business fails or you die—this is the only way to maintain a music license—if you die, the license is non-transferable and the business must apply for a new license in the name of whomever takes over, making the business again vulnerable to rejection. 2. Start a new business at a location that previously had definitive, provable live entertainment operations—not just music once a week for brunch, or on the weekends only, but a real, chock-full calendar of live entertainment all the time, AND those live entertainment events must not have ceased for a year or more at any point in the history of whomever operated it and however long it has been open--or you are ineligible, AND the new business must be licensed and operating and booking gigs absolutely, with no exceptions, inside of a 6-month window from the time the last operation shut its doors OR the new zoning variation kicks in, almost always with live entertainment excluded as a result of “Master Plan” zoning. 3. Finally, because of the onerousness of the aforementioned two circumstances, a club can choose to chance it and operate illegally, or somewhat illegally in a weird nook of City Hall winks and nods that, apparently if you pay the right amusement tax, can sometimes allow you to slide when busted, which was covered earlier.
Tragically, as we can see almost every month, our forebears—the keepers of the flame—are leaving us for the Great St. Louis Cathedral in the sky. If we don't, right now, maintain and/or allow businesses that incubate musical talent then half of our cultural economy is done in the next 20 years, guaranteed. The City of New Orleans will have created, all on it's own, a cultural version of our wetlands, vanishing before our eyes and transforming us into the baseline vision of the Master Plan: a giant pensioner's village, filled to the brim with Silence Crusaders who loudly proclaim their devotion to live music while actively seeking to shut it down, in their dotage, because they just can't sleep at night, or are too dumb to figure out that Metairie is available if you want that life (please go there and have it thank you, nothing against Metairie brah) AND you're still just close enough to drive in, hear the racket, and drive your ass home. Cashing in on the geriatric bandwagon has everything to do with the behind-the-scenes motives of the Silence Crusade, and our politicians are nothing if not lovers of some elderly cash. But the aged will not be with us forever, and though they may be ripe for the fleecing right now, those in real estate, who seemed to have penned our lovely “Master Plan” all by themselves, will eventually find out that the Baby-Boomer cash cow will likely yield far less returns than expected given our sad state of economic affairs. Maybe not this year, but in the twenty years coming certainly.
Remove the venues and the musicians will follow. Any numb nut half wit can figure that out. Austin, TX will be glad to have them, and we will be yet again engaging in a rare talent that New Orleans has honed to an almost perfect craft in the last 40 years: giving away the farm, encouraging the best of what we've got to get out, cherry-topped with a swift kick of “No thanks, asshole. Don't let the door hit you..” After all, what do pesky musicians do for the New New Orleans? How do they fit into the “Master Plan,” so exquisitely drafted by the real estate biz? Luckily, as Mr. Courreges asserted: http://uptownmessenger.com/2012/08/owen-courreges-the-latest-weapon-in-the-war-on-live-music/ property rights trump zoning, and every crisis has an attendant opportunity. It's time for small business owners to collectively challenge the constitutionality of the ordinances, zoning, bylaws and any other corner of officialdom that removes your rights by blocking the issuance of these permits. It is NOT your duty to explain to the city why you deserve something, like some bread beggar seeking permission to eat. It's the opposite. It is the duty of the city to provide a legal and legitimate reason why your rights are being denied, and that denial must happen very narrowly. Rights are rights, the top of the food chain, let's assert them forcefully.
And finally, get it together New Orleans politicians, you're embarrassing yourself and the rest of us yet again.
Theatrical productions, athletic contests, exhibitions, pageants, concerts, recitals, circuses, karaoke, bands, combos, and other live musical performances, audience participation contests, floorshows, literature readings, dancing, fashion shows, comedy or magic acts, mime and the playing of recorded music (disc, records, tapes, etc.) by an employee, guest or other individual, one of whose functions is the playing of recorded music and who is in verbal communication with the clientele of the establishment.