Dec 092013
 

Owen Courreges

There is little uglier in this world than rent seeking, particularly when it’s specifically aimed at eliminating competition by reducing opportunity for others.  Longstanding, established businesses can be especially guilty of this.  After all, why beat your competition fairly and squarely when you’ve been around so long that you can simply send in the cops?

Recently, rent-seeking has come to Frenchman Street.

As reported by the New Orleans Advocate, police officers visited several venues on and around Frenchman Street recently.   The purpose of the venture was to instruct local clubs and restaurants to abide by restrictions under the zoning ordinance and municipal code.

Many of these were commonsense restrictions; clubs should, of course, keep their doors closed to prevent noise from spreading, and obviously they can’t obstruct sidewalks.

Other restrictions were not.  Specifically, the officers issued warnings against venues violating the zoning rules of the Arts and Cultural Overlay District, under which no live entertainment is permitted save for unamplified music with a maximum of three musicians.  This doesn’t necessarily restrict noise, but it does limit musical choices.

The rule dates back to the creation of the overlay district in 2004.  At that time, a handful of clubs on and around Frenchmen street that had been offering amplified live entertainment with bands exceeding three members for years.  Therefore, they were (and still are) legal nonconforming uses.  This includes Snug Harbor, d.b.a., The Spotted Cat and The Blue Nile.

However, since that time several more venues have opened on Frenchman, such as The Maison, Three Muses, Café Negril, and Mojitos.  These establishments are expected to comply with the rule against amplification and bands exceeding three members.  However, owing to the continued demand for regular music venues on Frenchman, they have not always done so.

A major voice for cracking down on these venues has been Jesse Paige, the owner of The Blue Nile.  Paige was quoted in the New Orleans Advocate as saying that he doesn’t “want to see Frenchmen Street become a tourist trap.”  Of course, it’s more than a little late for that.

It’s also a red herring.  Essentially, Paige argues for sticking with the letter of the law when the law conveniently restricts his competition.  The appeal to the integrity of the neighborhood rings hollow once you realize that the restrictions are filling his wallet and preventing other people from making money in the same way he did.  He got his, and so now the drawbridge goes up.

Jason Peterson with Snug Harbor, another one of the legally nonconforming venues, echoed Paige’s comments.   “The overlay was very up-front about wanting Frenchmen to be mixed-use.  We already have a Bourbon Street.”

Again, it’s difficult to take this trope seriously when the rules don’t apply to you, but rather only to new entrepreneurs.   The demand is there for more music venues on Frenchman, and new venues have emerged to fill that void.

Besides, we aren’t actually discussing whether music should be allowed or not.  The question is merely whether these new venues should be allowed to use bands over three members and/or amplification, which is hysterically and hyperbolically described as the last bulwark against Frenchman becoming Bourbon.

As I have noted previously, the courts have long been wary of any restrictions on amplification.  This is because bans on amplification don’t address actual noise levels, but instead prohibit a medium of speech based on the mere potential for abuse.

In Saia v. New York, 334 U.S. 558, 561-2 (1948), the majority of the U.S. Supreme Court struck a ban on sound amplification devices, noting that “abuses which loud-speakers create can be controlled by narrowly drawn statutes.”  Is the complete ban on amplified music in the Arts and Cultural Overlay “narrowly drawn?”  I think not.

Worse, the ban on amplification, together with the prohibition on bands having more than three persons, reeks of a content-based restriction.  I’ve said it before, and it bears repeating:  The city is comfortable with jazz trios for tourists, but is less enamored of other forms of music less associated with bland New Orleans stereotypes.  It’s yet another example of an effort to produce a crafted, sanitized version of New Orleans.

Even if this restriction would squeak by as a constitutional exercise of the local police power, it’s unseemly.  What’s more unseemly is how other venue owners on Frenchman who are not subject to these dubious restrictions are supporting them for selfish reasons.

Rent-seeking is ugly, and it’s making the scene on Frenchman Street ugly.  It’s high time the rules were changed so that everyone can get past this and go on to making money and making music without claiming a special advantage.

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.

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  • http://www.twitter.com/AhContraire AhContraire

    “The demand is there for more music venues on Frenchman, and new venues have emerged to fill that void.”

    and

    “It’s high time the rules were changed so that everyone can get past this and go on to making money and making music without claiming a special advantage.”

    If they were to make money, wouldn’t it need more customers like Bourbon St? But then again, does Bourbon St really make money, (i.e. net profit vs gross revenue) as with the increased number of customers, there is far greater need for more security and crowd control, which eats all of those profits from increased number of customers?

    • Owen Courrèges

      Bourbon Street does make money, but I think this line of discussion misses the point: Frenchman is not about to become Bourbon simply because we allow amplification and bands over three persons.

      • http://www.twitter.com/AhContraire AhContraire

        So what would be the point of “Allowing Amplification” then, if not to attract more customers from outside?

        And, in regards to bands over three persons, doesn’t that limit the “types” of bands in the first place? as well as the amount of decibels.

        • Owen Courrèges

          Certain types of music (especially those with electric guitars, synthesizers, etc.) require amplification. If they wanted a decibel restriction, they would have done that. Regulating band size and amplification is not a noise restriction.

      • Yerp72

        Perhaps not, but with the proliferation of clubs has already made it more like Bourbon and, to some, less pleasant.

        • Owen Courrèges

          Yerp,

          Sure, but unless their complaints involve actual nuisances, I don’t think they should be the basis of any kind of legal action. I think having laws that result in calling out armed men should require more than a vague feeling that some condition renders the situation “less pleasant.”

          • Yerp72

            I think that laws should be enforced or changed rather than trampled.

          • Owen Courrèges

            Yerp,

            I think we’ve reached a point where the number of laws we have is oppressive, and enforcing all of them just isn’t really an option anymore. Remember, there are many laws still on the books which flat out aren’t enforceable (they’ve been enjoined).

          • Yerp72

            This one is neither enjoined nor not enforceable. It may well be time to revisit the reasons the restrictions were put in place, but its worth remembering that there were, in fact, reasons for them.

  • kmsoap

    Nice work, Owen. We’re starting to get to the real root of the problem. It’s not just Frenchmen Street at issue. The vast majority of the city cannot host music without a special permit. In discussions of the sound ordinance, we thought it was kind of ironic that sound from a chainsaw or pile driver is permitted everywhere (within the parameters of the sound ordinance) but the only type of sound that is almost universally illegal is music. Since New Orleans is the birthplace of so many forms of music, that means they were created illegally. The city survives on cultural tourism, so these controls are in place to funnel economic opportunity to areas and people deemed acceptable by City Hall. Creating criminals out of culture bearers is a particularly insidious form of social control, as is the stifling of economic opportunity.

    • billives

      I agree with Owen and kmsoap. It is so hypocritical for Blue Nile and Snug Harbor to object to music from their competitors like Vaso, Maison, and Three Muses. We should start a boycott of these hypocrits. I know I will think twice about going to them again. I also agree with kmsoap that the war against music and the soul of New Orleans is not limited to Frenchmen Street. I have seen the negative effects elsewhere. It takes many forms like raising the fess for the free concerts at Armstrong Park that serve a diverse audience. They city needs to support music for everyone including those who cannot afford the higher priced clubs and their covers. New Orleans music needs to be accessible to more than rich tourists to keep its soul.

  • DGP

    A point I haven’t seen discussed in all of this is the fact that most of New Orleans music is made by bands that have well more than three members. under this ruling, The Meters cannot play on Frenchmen Street. No brass band can play on Frenchmen Street. Dr. John cannot play, Trombone Shorty, Ernie K-Doe (if alive), and Irma Thomas all cannot play on Frenchmen. Even Preservation Hall Jazz Band couldn’t play if they were inclined. Blue Nile has regularly had DJ nights, Hip Hop nights, Reggae nights, all with amplified music and bands with far more than 3 members. So is Blue Nile going to no longer host these events? And where is Mitch Landrieu’s place in all of this?

    • Owen Courrèges

      DGP – No, the issue is that the older venues like Blue Nile have legal nonconforming uses and can thus continue to host larger bands with amplification, DJs, etc. It’s the newer venues that are restricted.

    • kmsoap

      The three member restriction virtually eliminates any horn sections as accompaniment, even though they are not amplified. In New Orleans, getting rid of the brass usually has racial implications, which is another serious flaw in the law.

  • downtown messenger

    i thought this was the “uptown” messenger…

    • Owen Courrèges

      downtown,

      Eh, I write about other topics within the city, even if they aren’t localized in Uptown. Also, as I’ve noted in the past, Frenchman remains a destination for people from Uptown and what happens there does resonate.

      • kmsoap

        These issues are not restricted to Frenchmen Street. The vast majority of the music venues in the city are operating in areas with restrictive legislation. As long as a venue is within the parameters of the sound ordinance, should it matter that they have live entertainment at all?

      • Deux amours

        We are so interconnected in the urban jungle.

      • http://vieuxcarretimes.com/ Thomas Balzac

        Mr C, it’s FrenchMen Street (not ‘man), I believe named after 6 locals who were hung in public there for opposing Spanish rule. Let’s hang the Blue Nile & Snug Harbor owners! (in effigy); that may help solve the problem. https://www.youtube.com/watch?v=Me1IxDLHXGI

        • Owen Courrèges

          Ack, sorry, I always get that wrong.

  • Deux amours

    Unmentioned here are the concerns and rights of residents and others, some of whom don’t even like the original clubs let alone want more. It is good that people who don’t live there and who want to maximize their choices for loud music when they deign to visit can voice their views, even if established clubs should not be allowed to voice theirs. Aren’t these the type of conflicting interests that we have organized government to resolve?

    • Owen Courrèges

      Deux,

      Why not have this fall under the noise ordinance? Why address the use when you’re really just attacking an externality that doesn’t necessarily proceed from that use? The problem with all of this is that people talk about how these venues are supposed to cause problems, but they don’t want to confront those supposed problems directly.

      Government has a definite interest in eliminating public nuisances. For most of American legal history, that has not translated into regulating land use.

  • Tim9lives

    “It’s yet another example of an effort to produce a crafted, sanitized version of New Orleans.”

    Or as a friend of mine called it….”Disney Land” – New Orleans.
    If they succeed…God help us all.

  • HStreetLandlord

    I normally don’t agree with your op-eds, but this one was 100% on point.

  • J.E.McC

    A really good article. Why are the police taking up the issue?

    • Owen Courrèges

      JE McC,

      I think the police have gotten involved due to complaints — squeaky wheel and all that. I’m not sure of the primary source of those complaints…

  • Overbrook

    Keeping new businesses OUT of New Orleans has been a problem here since the 1950s. The entrenched businesses have numerous tools at their disposals, including paying-off neighborhood groups, hiring protestors, the ridiculously closed social scene, and other means even less civil. For example, they ran off a generation of the African American middle class, who then set their claim in Atlanta.