Owen Courreges: Better live-music laws were too little, too late for Mimi’s

They finally won. Live entertainment at Mimi’s in the Marginy is no more. After fighting for three years, first with the city and then with its neighbors, Mimi’s finally threw in the towel this past Wednesday.

The iconic live music venue had seen the writing on the wall and gradually moved away from live performances, converting the upstairs into what the Times-Picayune described as “more of a restaurant than a live music venue.”

Ultimately, this led Mimi’s to settle a lawsuit brought against it by neighbors by agreeing to turn over its mayoralty permit. Under the terms of the consent judgment, Mimi’s may only host live entertainment nine times per year, and when doing so, it must secure special events permits.

Many live entertainment venues are in the same boat as Mimi’s, surrounded by residential properties and perpetually concerned about being shuttered by nefarious neighbors. You know, killjoy types. And the zoning code is of little help, banning live entertainment throughout most of our decidedly urban landscape.

For a city that prides itself so much on music, we certainly don’t make it easy to host it in public.

The resolution of the Mimi’s fracas comes at a particularly Interesting time. Just last month, Mayor Landrieu finally signed the new Comprehensive Zoning Ordinance into law. It will take effect in August, just under a month from now.

Believe it or not, the new zoning law actually does contain some improvements with respect to live entertainment, although it still falls well short of favoring live performances in a general sense. On the whole it’s still a mixed bag, but there are some very choice loopholes to exploit.

One of the most objectionable parts of the previous zoning code was its absurdly broad definition of “live entertainment.” For reference, here’s the main portion of the old, obscenely-inclusive definition of “live entertainment:”

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.

Wow. That’s more bizarre than Mayor Landrieu’s spiky hairline. Now, compare that to the new Comprehensive Zoning Ordinance’s definition:

Live Entertainment – Secondary Use. Any one (1) or more of any of the following live performances, performed live by one (1) or more persons, whether or not done for compensation and whether or not admission is charged: musical act, theatrical play or act, including stand-up comedy, magic, dance clubs, and disc jockey performances using vinyl records, compact discs, computers, or digital music players when the disc jockey is in verbal communication with the clientele of the establishment. Live entertainment – secondary use shall be part of a standard restaurant, specialty restaurant, indoor amusement facility or bar, and shall be approved separately. A standard restaurant, specialty restaurant, indoor amusement facility, or bar may be open to the public when no live performances are scheduled.

The major differences should stand out right away. First of all, the new code expressly envisions bars having live entertainment as a secondary use. It must be approved separately, but at least it’s actually discussed in the definition. And sure enough, there are new districts – like Historical Urban Mixed-Use (HU-MU) – that allow additional opportunities for live entertainment venues.

Secondly, the new definition eliminates the laundry list of ill-defined and random low-impact activities that nevertheless qualify as live entertainment. No longer do “fashion shows” and “literature readings” need to fear running afoul of the zoning code. “Exhibitions,” whatever that means in this context, may now proceed unabated.

Mimes across the city, I’m sure, are breathing a sigh of relief.

The third major change in the definition of “live entertainment” pertains to the people who only play canned music: karaoke hosts and disc jockeys. Karaoke is simply no longer mentioned, and under the plain language, simply doesn’t fall under its ambit. This would seem to mean that every bar in the city can now host karaoke nights without getting a mayoralty permit or being contained within a zoning district that allows live entertainment.

I question whether this result was actually intended, but given that karaoke was actually mentioned before and doesn’t seem to be encompassed by the new definition, it’s at least an open question for now.

Disc jockeys, on the other hand, are still referenced but they are only defined as live entertainment if they utilize certain specified mediums, i.e. “vinyl records, compact discs, computers, or digital music players[.]” Note that this definition excludes any records made of other materials (older records were actually made of shellac) as well as tape players.

What this means in practice is that my old “D.J. Luddite” persona will technically not be “live entertainment,” and if anyone has some sophisticated reel-to-reel equipment, they should be able to market themselves as DJs to bars with zoning issues.

Perhaps all of this will help avoid another Mimi’s debacle in the future. It’s always going to be true that oversensitive, well-heeled busybodies will always be able to cause problems for innocent venue owners in the courts, and in the end that might be decisive. However, laws that treat live entertainment more favorably are at least helpful, even if we’ve barely scratched the surface on that score.

What we really need is not to regulate live entertainment under the zoning code at all, and instead only regulate its effects. If noise is a problem, that ought to be regulated separately. We already have noise laws on the books and there is a strong movement afoot to revamp them. We don’t need the belt-and-suspenders approach of restricting live music on two fronts.

Yet for now, live entertainment (and especially live music) is still the red-headed stepchild of land use in New Orleans. The fight, however, is far from over.

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.