I got into another cluster of conversations about Lytton Plaza and my assertion that our new ordinance banning amplifiers during business hours –which I call the Dave Heidie Laws — are unconstitutional, in the wake of the sixth Palo Alto World Music Day.
Here is the text of where I left it, a letter to four council members essentially asking them, albeit indirectly, to switch their votes:
Dear Karen Holman, Greg Schmid, Yiaway Yeh and Sid Espinosa:
I made this transcript of Daren Andersen’s report to council on Monday, Nov. 19 about the change to ordinance which would ban amplified music at Lytton Plaza, downtown Palo Alto, at University and Emerson, without a permit process or outside certain hours. I have about a dozen comments below the transcript portion.
The plaza was renovated in 2009 and several electrical outlets were added. There was a farmers market and amplified music was to be part of the market. Gradually what happened musicians who performed started branching out on their own. There was no control or permit associated with it. They started jamming and performing on other days, and even when the farmers market disbanded and discontinued in 2010 this music continued….took on a life of its own.
And there were other unintended consequences in addition to this unpermitted music. People used electricity, to plug in portable stereos, and heaters and various other electronic equipment. And around that time the police department and community services department started to receive complaints — and it started with the business community, saying “This music is disruptive” in our business hours , you know, between 8 and 5 p.m., this loud music is carrying into our business so we can’t do our work.
And we also received complaints from local residents saying this music is going on late into the evening to midnight and its disrupting us as well.
The results of the perceptions of the surrounding businesses is that it was no longer a welcoming or safe or clean environment.
So staff attempted to solve the problem using the existing municipal codes, park rules and regulations, but they weren’t adequate to resolve the problem.
One example might be the existing noise ordinance, PAMC 9.10.650 this prohibits noise above 15 dBs above ambient at 5 feet or more. And the problem is when people are jamming and playing not all of our police officers are equipped with noise reading devices, in each police car, so when you eventually get an officer who has the right equipment to show up to the scene, set up 25 feet away, and start taking dB readings, by that time the musicians turn down, and they aren’t able to resolve the problem.
(The proposed new ordinance, banning amplifiers outright, during daylight or working hours) is a tool to resolve the issue…a little easier for police and for the musicians to understand when they can be there and when they can’t be there.
We did get some cooperation from the musicians, but not enough to resolve the problem.
October 25, 2011 at PARC (the first proposal was) to prohibit all amplified sound without a permit, PARC said amplified sound and music should be a vibrant part of the downtown and they want it…and the commission formed a sub-commission to help work on the issue. They met with the stakeholders, youth advocates and people from the business community.
The musicians wanted as much free and unfettered access to perform in this plaza as possible. Youth advocates want a place where youth can perform for free (and not necessarily have to move to other areas). The businesses said that amplified sound during the business hours is the real problem.
But they also highlighted the need to control access to these electrical outlets. The receptacles were vandalized or left open. People wanted to come and plug in all these various acoutrements, stoves and portable stereos.People would cook so there would be stains, grease stains on the plaza floor. Previously we would pressure wash once a month to (get rid of) the various stains that were everywhere.
On March 27, 2012 PARC second draft …do some additional outreach, we want some more input, keep the permit fee as low as possible, alter the system to keep the costs reasonable, essentially to provide more opportunity for people who might want to perform there. So staff went back and worked with musicians, stakeholders and the business community again and came up with a (new) plan.
Amplified sound allowed on a first-come, first-served basis, this would be free, Monday through Thursday, from 5 to 10 p.m. and Friday, 5 to 11 p.m. and Saturday, noon to 11 p.m.and Sunday, noon to 10 p.m. No permit or fees would be associated with this. Unless they wanted to reserve then the special events fee would be $90. Or outside these hours (they could get a permit, subject to review).
On June 22, 2012, staff began testing this proposed first-come, first served program.
(We connected the power system to the irrigation system. We could control remotely rather than have staff flip a switch). No problems from either business community or plaza users so far.
On August 25, by a 5 to 1 vote PARC Parks and Recreation Commission approved the new draft ordinance with commisssioner Daria Walsh dissenting because the end result she felt is that the plaza still seems too loud. But we have the general support from stakeholders and no complaints. We did our best to make the plaza safe, enjoyable and clean for as many users as possible .
I have been following this issue quite avidly, since at least July, 2011 when Susan Webb told me that she had been told summarily to discontinue her music program. In fact, she and I met with councilmember Yeh at that time to plead the case of the value of the music program and Lytton Plaza being a park and not merely an asset to the Downtown business community or PAD.
I am concerned, with due respect, that the draft ordinance, in first reading, does not solve the problem but actually worsens the problem. I fear that while it does effectively eradicate a purported noise problem it meanwhile puts us in a position of being sued for stifling the constitutional rights of some of our community members. I am not a lawyer but have been reading the following cases for insight into our predicament:
a. Carew-Reid (New York subways)
b. Casey (Newport, R.I.)
c. Ward (Central Park, New York)
d. Stokes v. Madison, WI
e. Davenport (Alexandria, VA)
I feel our actions violate the First Amendment rights of the citizens on the following categories:
1. Is amplified music, or amplifiers per se, a type of speech?
2. Is our new ordinance pass the “narrowly-tailored” requirement?
3. Is it an adequate time place and manner limit?
4. Did we actually provide evidence, the burden of proof, that existing law, measured in decibles, is not adequate to solve the problem?
In Casey, for example, government arguably goes too far in protecting a group of residents from an obnoxious business, whose music program arguably disturbs quiet enjoyment in late night hours. Our case seems relatively novel in this field in that it purports to protect business (landlords, developers and their tenants, office workers and chain retailers) from ordinary citizens, that it does so during normal daylight hours, and in a downtown forum.
I spoke to a man named Stephen Baird in Boston area who has tracked this issue for 40 years, has a website with links to more than 20 cases similar to ours and told me that he is certain that we have gone out of bounds here, and that further our jurisdictional district, the Ninth Circuit Court of Appeals is extremely First Amendment friendly, and that in similar cases governments have had to pay out expensive penalties in court costs and damages.
It is not the case that I am threatening to sue the city but rather am trying to protect us from this unnecessary expense.
I appreciate Daren’s hard work on this but worry that it is more that he is under extreme pressure to produce a result for a powerful special interest than his findings represent the community standard here, or the best practice in balancing competing interests.
Further, in Karen Holman’s comments during Council, she refers to “two hundred complaints” and my assessment of the same data is that she is conflating total complaints in 2011 at Lytton Plaza, from Police records, with the smaller and more benign number of complaints for noise per se (19 by my count, not 200+) and that only one of those complaints came during the 9 to 5 hours.
I feel the best practice is that when anyone feels the noise at Lytton Plaza, from a musician or otherwise, is excessive he can call the police to complain and police can respond and measure the alleged nuisance in dBs and ask alleged violator to turn down, or cite them. To the extent that there were, to my understanding, no actual noise citations issued during this period, I doubt we can show burden of proof that this is a significant problem to merit burdening so much free speech, or that we have exhausted our use for the status quo ordinances. That Daren says “they weren’t adequate to solve the problem” whether he means staff per se or the laws, I don’t think his statement(s) prove the issue conclusively, not to the burden of proof required by courts in cases of Constitutional law and prior restaint.
Also, the costs of the permits, which council pushed higher than commission suggested — is prohibitive. In Carew-Reid, and or cases regarding the subway buskers of Boston, courts and analysts have said that when government claimed to be offering a permit process it was actually trying to forbid use. I have to admit that even thought I produced more than 100 events in city facilities, — Cubberley theatre, Mitchell park Amphitheatre, et cetera – my experience is that sometimes there is a bias here and an unexplainable lack of response that stifles people putting on events here. (I applied on behalf of SF Mime Troupe for a free public performance and was in effect denied; Paul George later applied the following year and was accepted; I know someone who wanted to in 2011 produce a “Save the Varsity event” and reported getting the run-around, et cetera).
My protection of the musicians’ rights at Lytton Plaza stems from my concern that the Friends committee had questionable motives in the first place. I read comments from Chop Keenan about “sketchy people” (reported in Palo Alto Campanile) and Sunny Dykwell about “undesirables” (reported in the Post) and worry that beyond merely establishing the right balance of business and civic needs, we are involved in some kind of vagrancy act. Further, the idea that three times in the meeting there is discussion of “stains” worries me. I would add that any comment on the quality of the music (“the same three chords” and similar) speaks to the point that the prior restraint is not content-neutral as would be required to pass Constitutional muster.
Also, I read the political poem “Howl” by Allen Ginsberg at Lytton Plaza, using the mic and amplifier of street musician Dave Hydie (see attached photo). Our ordinance does not distinguish between speech per se and noise.
Also, I have been in contact with the composer and recording artists Holly Herndon, a PhD candidate at Stanford who tours and performs nationally and internationally, about doing a show or appearance locally at it occurs to me that our statute would ban her instrument all together; she uses her laptop computer, played thru amplifiers.
Also, I don’t see how we can protect some amplifiers – -the speakers cranking out muzak,controllled by the pizza parlor — and ban others. Again, Daren said, to me, that someone told him that this kind of music prevents crime or what not, but that hardly seems empirically supportable or scientific.
Sunny Dykwell said at the January, 2012 stakeholders meeting that the people who feel strongly about this ban our a sub-group of the Friends, perhaps only one or two individuals which is exactly what Herb Borock asked or mentioned on the 11/19 and is consistent with the two letters about 180 University and the office tenant above. I think I may have an in with one of the founders there, a friend of a friend; I am wondering if I cannot get them to work something out with us, more tailored and less draconian than these dubious ban; maybe they would recant their testimony.
Can we at least agree to put this off 90 days, if we cannot pull from consent the second reading.
Or can we have Molly Stump read these cases and at least report that her understanding of the law includes the point raised therein?
I am also curious about Sid’s comments about visiting an office and feeling he was at a rock concert; is he talking about the same building that I reference, or can he qualify the feeling, perhaps a separate case, of this firm beyond the brief note from office manager or landlord?
It also just seems ironic and laughable that the City that produced motion pictures, oscillators, the laptop and social media would go back and ban the lowly tube amp.
Here is a little snipped from Casey that I feel hits direct on point about my objection to our new draft ordinance:
The record is devoid of any explanation of why the alternative of enforcing the City’s noise ordinance — an alternative that is on the books, is designed to address the problem of excessive noise, and has been enforced against (A&O) in the past — would not have achieved the City’s objective as effectively as the amplification ban, while placing a substantially lesser burden on speech.
I think you can get an app on your phone for about a dollar that measures dBs adequate enough for us to enforce this using status quo, despite Daren’s testimony. Sue Webb has one.