Owen Courreges: The latest weapon in the war on live music

Why does Mayor Landrieu hate live music?  And why did Stacy Head give him the “alley oop” do shut down virtually any bar he wants?

I’m not a conspiracy theorist by any means, but when two events feed into each other so perfectly that a connection is nearly impossible to ignore, you have to acknowledge your suspicions even if you’d prefer not to speculate and stick with verified facts.  There is something rotten at City Hall, and I just want to know why.

As everyone is probably aware, the city has engaged in a sudden, unprecedented crackdown on live music venues lacking mayoralty permits for live music.  The mayor has to take the full measure of blame for the denial of permits, which are not only issued by the executive branch, but actually named for the mayor’s office itself and penalties can be suspended on his word alone.

The first signs of the crackdown began when live music at Siberia was cancelled due to some arcane zoning dispute. Apparently all the nearby live entertainment venues within a stone’s throw of Siberia on St. Claude Avenue — Kajun’s, Hi-ho, All-Ways, etc. — are zoned for live entertainment but Siberia is not.  Other major venues were assaulted at the same time, usually with the same beef — they had been hosting live music for years and the city just now decided to shut it down.

More recently, the city moved on to the Circle Bar.  The Circle Bar has been hosting live music for around 13 years, save for a recent hiatus for renovations.  However, they allowed their live music permit to lapse and when they reapplied, they were denied.  Just this past weekend, they were soliciting affidavits from artists that have been performing at their venue, ostensibly to mount a legal challenge.

The real issue here is zoning.  Mayoralty permits are largely perfunctory except for zoning.  However, zoning can be all kinds of random and stupid, especially with respect to “live entertainment.”

First, here’s how the zoning code defines “live entertainment,” which is the sticky wicket when it comes to proper zoning:

Live Entertainment. A scheduled or planned performance or presentation during which both the performer(s) and audience are physically present at the time of occurrence and that is typically sponsored, promoted, advertised, or publicized in advance to attract patrons or guests. The performer(s), who may be amateur(s), participant(s) from the audience, patron(s) or guests, need not be compensated or remunerated. These uses include but are not limited to the following:

a. 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.

That, dear readers, was written to be all encompassing.  Look at how insane and totalitarian our city is. It is there in black and white. I mean, “literature readings?” Seriously? You need a specific zoning designation to allow a guest to openly read a book in your place of business?  What possible interest could the government have in that?

What’s worse, is that “live entertainment” (at least when alcohol is available) is a permitted use practically nowhere outside of the Central Business District (CBD) and French Quarter under the zoning code.  The exceptions are minor.  In Light and Heavy Industrial Districts, live entertainment is allowed (but only under certain conditions if a residential district is within 300 feet).  Section 10.13 of the zoning code allows live entertainment on a very limited basis in Arts and Culture Overlay District  (20% maximum in the district for venues, 4,000 square foot maximum, and sorry DJs and karaoke hosts, you’re not allowed in these).

Even in the CBD live entertainment is a red-headed stepchild. The chorus of that song is “we’re kinda ok with Jazz trios but we hate rock bands.” In CBD-1, one of the zoning districts specially made for the Central Business District, live entertainment is permitted, but only for bands of up to three people (sorry Beatles, the ‘Fab Four’ is one long-hair too many). In CBD-2, there is a smaller “subdistrict” where casinos are allowed live entertainment (let’s just call this the “Harrah’s subdistrict,” so we know what the score is).

In CBD-3, live entertainment up to three people (man, those Beatles never get a break) is allowed on Canal Street.  CBD-5 also allows live entertainment but only as an accessory use, and once again, only up to three band members (WHAT DO YOU HAVE AGAINST THE BEATLES, YOU BASTARDS!).  The CBD districts go on in much the same vein, allowing live entertainment only as an accessory or conditional use, and even then showing abject contempt for bands with a rhythm guitarist (i.e., not Jazz trios).

The Quarter isn’t much better.  The Vieux Carre Enterainment District (VCE-1) is only really entertaining if you love acoustical music.  If you can hear anything more than one foot outside an exterior wall, it’s banned.  Oh, and “existing hotels” having more than 30 rooms may have live entertainment in the Quarter in a few zoning districts.  But that’s it for the Quarter.

Thus, it can be said with confidence that live music venues tend to operate under noncomforming use permits.  A noncomforming use is essentially a historical use — somebody who was operating before the zoning code was operative.  However, according to the city a nonconforming use lapses if the property isn’t used for that specific purpose for six months.

Historically, the state has held that “[t]he burden of proving termination of nonconforming use status by abandonment or discontinuance is on the party urging termination of the status.” Joubert v. City of New Orleans, 2009-0601 (La. App. 4 Cir. 01/13/10); 30 So. 3d 186 (quoting City of New Orleans v. Elms, 566 So. 2d 626, 634 (La. 1990)).

Accordingly, if the state wants to shut down a live music venue operating under a nonconforming use, it has a problem.  The Louisiana Supreme Court has said that the burden rests with the city to prove that the nonconforming use has lapsed.  Thus, the city has a heavy evidentiary burden if it challenges a nonconforming use.  This makes sense, because zoning laws are derogations of property rights and are to be construed narrowly as a matter of constitutional law.  Putting the burden on the property owner seems wrong under these circumstances.

However, Councilmember Stacy Head changed that this year.  And that change is what has enabled the crackdown on live music venues.  This is just too big a connection to ignore.

Just this January, Ms. Head, seconded by Councilmember Guidry, proposed an ordinance that would throw the burden for providing the termination on a nonconforming use from the city to the property owner, and not just by the default standard of a preponderance of the evidence, but by “clear and convincing evidence,” the highest standard outside of criminal law.

Glibly, for a property owner to prove by “clear and convincing evidence” that they have a valid nonconforming use is virtually impossible.  You would have to prove a negative by virtually indisputable evidence — that you have consistently maintained the use without interruption for more than six months since the zoning ordinance was in effect, i.e. that you have not shut down during the previous several decades.

Before Stacy Head’s addition to the zoning code, it was pretty easy for a bar with live music operating under a nonconforming use to challenge the denial of a live music permit.  All they had to do is tell the city to “put up, or shut-up.”  Now, the system has shifted from innocent until proven guilty to guilty until proven innocent.  The city can now target, almost arbitrarily, any bar or live music venue for zoning violations and laugh when they can’t meet the impossibly high evidentiary burden concocted by Stacy Head and now being exploited by Mayor Landrieu.

So what is the conspiracy here?  Well, I don’t know for the particulars.  I only know that the recent crackdown on live music venues and Stacy Head’s dramatic addition to the zoning code can’t be a coincidence.

I do have my suspicions, though, and I will express those.  My suspicion is, whether coordinated or not, that Head and Landrieu share a desire to make New Orleans a smaller, wealthier city by shutting down dive bars, so-called “nuisance bars” and everything in between to change the character of New Orleans into something more quiet, more bland, and more Yuppie. And I say this as a card-carrying Yuppie.

If the city has virtually unfettered control over the fates of nonconforming uses (which includes almost every corner business in the city) it can cherry-pick winners and losers.  I can tell you right now, high-end bars with touristy trios will be the winners.  Dive bars with rock and metal bands will be the losers.  Hipsters will be purged.

Landrieu and Head are sending a message to a segment of the population of New Orleans.  They want you gone.  You’re offensive to the tone.   Your tattoos and loud music annoy them.  Your anti-establishment attitude vexes them.  They want a fat jerk of a sheriff at the border to drive you out of town a la Sylvester Stallone in “First Blood.”

Are you going to ignore this, or will you take a stand?

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.