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.