Photo courtesy Geoffrey Douville

From the “Things to Do” section of the New Orleans Convention and Visitors’ Bureau website:

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.

Did you see it? My favorite part? “On the streets and in the clubs of New Orleans.”

And yet in the last few weeks there have been tidbits of scuttlebutt, rumors proven to be true, culminating in several articles about clubs and bars being told no more live music. Not just in one part of town, but all over town. Circle Bar Uptown: blammo. Siberia on St. Claude: blammo. A move to kill Frenchmen Street music: blammo. Nevermind the continuing harassment of brass bands on the street. You know. That “On the streets” part the CVB is touting. Wrong permit. No permit. Mayoralty permit. Nagin, no, Landrieu, no, “it’s been this way for a long time just now being enforced”. . . . .AAAARRRRRRGHHH.

Offbeat Magazine has done a couple of great articles about this as has The Gambit. In fact I think it was the Gambit that first told us about the Frenchmen Street issues.

I decided to look into all this for myself but lucky for me, Geoffrey Douville, a businessman, bar owner, musician and neighbor, already did the homework I was about to embark on. I am forever grateful. What follows is what he wrote today, (I’ve left the links as originally placed) and it’s an important read:

EDIT: Prior to my using this Geoffrey added: “I would just add that it was pointed out to me that my zeroing in on the Real Estate biz was taken narrowly to mean the businesses that broker real estate deals, and that needs to be modified–I mean real estate in the broadest sense meaning all the itinerant businesses and interests relating to property in general, and that can be draftsmen, designers, Architects, preservationists–and thus many of the people involved in the drafting of the Master Plan.” Below is his entire piece.

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: 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.
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:
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:

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: 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.

Thank you, Geoffrey. Exactly.

Then there’s the article by Owen Courreges for Uptown Messenger. Mr. Courreges cites this:

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.

Really? Literature readings are a zoning problem too? Thank goodness they don’t stop at my house when a new bottle of rum has been opened and a couple friends might read their latest musings to each other. What if I read it over the phone? Oh wait, we have to all be in the same space, but renumeration isn’t required. As for recorded music played by a guest, sometimes live music played by a guest, or some impromptu floor show or circus acts. . . well, it’s been known to happen. I need a permit for that?

There is a Facebook page for support of live music HERE. Please head off and hit the like button on that.

As one commenter on Facebook said: “It’s a good thing they built that airport years ago so musicians can fly out of this town and build a career.” Now that’s a terrifying prospect. Didn’t we already see what that looked like after Katrina?

Cross-posted at New Orleans Slate

About the Author

Sam Jasper

Sam Jasper is currently waging a largely silent war against gravity and gravitas. It’s a delicate balance. Sam is co-editor of A Howling in the Wires (2010) and a partner in Gallatin and Toulouse Press. She was a contributor to Pelican Press’ Louisiana in Words (2007), and reprised her contributor role in the Chin Music Press’ Where We Know (2010). Sam also erratically maintains a blog called New Orleans Slate (named not after the online mag but the roofing tiles of old buildings and the primary school chalkboard on which the nun’s pointer hung) and has a collection of letters written immediately after Katrina at the Katrina Refrigerator blog. Sam is also a regular contributor at the Back of Town blog.

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