Oakland does cabaret reform: why make life easier for small businesses when you can take more money from them instead?

Below is a photograph of a charming new downtown bar called the Layover.


I love the Layover. It’s been great to watch downtown transform over the past several years, and have all this wonderful new nightlife. But it has always bothered me a little bit that every new place that opens is so fancy. Penelope is very nice, and their spicy cocktails are delicious, but I’ve always just felt more comfortable hanging out somewhere a little more low key. The Layover is exactly the type of place I’ve been wishing would open downtown for years, and if you haven’t been yet, I strongly encourage you to go check it out. (It’s at 15th and Franklin. There is also a very flattering article in today’s Trib about it.)

Anyway, the reason I mention the Layover not just because I love it, but because this picture I snapped last night provides a nice example of a very common style of bar these days, where a DJ provides background music, but there is no dance floor.

This sort of bar currently exists in a legal grey area. The issue is whether or not such an establishment should be required to obtain a cabaret license if they are going to have DJs. Some do, others don’t. Some apply for one, only to find themselves sucked into an expensive and seemingly endless bureaucratic nightmare. Others send the City letters quoting the code governing cabarets and arguing that they should be exempt, and just cross their fingers that nobody will try to bother them about it. Others are simply told straight up by the City that they don’t need one. Still others do nothing and hope to fly under the radar. (I have not asked the owners of the Layover what route they choose, so I don’t know if they have a cabaret license or not, although I don’t remember seeing anything about a hearing.)

For the most part, the City has agreed that if all you’re doing is letting DJs play background music without a dance floor, then you don’t need a cabaret license. After all, the City already has regulatory power over bars through permitting alcohol sales, so there’s really no need to add another layer of hassle. But as we all know, the City can be infuriatingly inconsistent, and every so often, the fun police will do a little run around town issuing warnings (and sometimes tickets) to such businesses for acting as an unlicensed cabaret. (In one case last year, a bartender was threatened with a cabaret ticket after an office saw him changing a CD behind the bar.)

DJ bars are not the only type of business unfairly impacted by the City’s confusing cabaret law. Coffee shops that want to offer low key live entertainment may also find themselves subject to the annoying and expensive cabaret permitting process. Requiring a cabaret permit for any live music leads to ridiculous situations like the one Piedmont Avenue’s Caffe Trieste found themselves in a few years ago, where they wanted to have people occasionally sing opera music, but didn’t qualify for a permit because they were located too close to the library. The situation was eventually resolved by an amendment to the law (PDF) that allows the City Administrator’s office to overrule the 300 feet from a school or library requirement at their discretion, but the underlying absurdity of the law remained unchanged.

Anyway, the good news is that the City Council is finally talking about cabaret reform. A revision to the cabaret ordinance (PDF) proposed by Councilmembers Nancy Nadel and Rebecca Kaplan will be discussed by the Council’s Public Safety Committee on Tuesday. The bad news is that the proposed reforms are stupid.

Here is our current definition of a cabaret:

A cabaret shall be construed to include any place where the general public is admitted where entertainment is furnished by or for any patron or guest present upon the premises including but not limited to singing vaudeville and dancing and where liquid refreshments or foods are sold, provided however that any place where entertainment is furnished by the mechanical or electronic reproduction or pre-recorded music or radio broadcasts or by motion picture shall not be construed to be a cabaret within the meaning of this section unless dancing privileges are afforded in connection therewith.

Clearly, the law is antiquated. You might think that now that we’re finally getting around to revising the ordinance, it might be a good opportunity to strike references to, oh, I don’t know, vaudeville from our municipal code. As if.

What is need is a fairly simple revision of the law to clarify what is and what is not a cabaret. Special cabaret restrictions and regulation makes sense for the City, since the large crowds generated by live entertainment can lead to special problems. The easiest way to address the inconsistent enforcement of cabaret rules would to amend the definition so that it only applies to large venues with dance floors or amplified live music.

Nadel and Kaplan’s recommendation is twofold. One, that businesses with an occupancy rate of 50 people or fewer and whose primary zoning is not “entertainment,” will not have to get a cabaret permit. That part makes sense.

The second half doesn’t. Instead, these businesses will now have to obtain something called a “small cabaret exemption.” The proposed cost to apply for the exemption is $600, with an annual $250 renewal fee.

So basically, this proposal takes a group of businesses that were not required to get a cabaret license under most interpretations of existing law, and imposes on them a brand new regulation and annual cost. The staff report estimates that between 50 and 100 businesses would be forced to apply for the new “exemption.”

Cabaret reform should be an opportunity to make it easier for nightlife businesses to operate. Instead, we are talking about making it even more difficult. I just don’t get it. The Council is always talking about how they want to make Oakland more friendly to small businesses. Any small business owner will tell you that the best thing the City can do to make life better for them is to just leave them alone. I doubt you could find a single one willing to say that the City can help them by demanding a couple hundred extra dollars per year.

Will the Public Safety Committee care? I don’t know, probably not. After all, the last time cabaret licenses came up, when there was a proposal to double the permit fee from $300 to $600, Committee member Jean Quan’s response was:

They can afford it. Cabarets make a lot of money.

The Public Safety Committee meets at 4 PM on Tuesday (PDF). At the same time, they will discuss a proposal to allow certain cabarets to obtain permits that would allow them to stay open past two (read about it in the Oakbook). That idea also came up a few years ago, and back then, the Committee wasn’t having it. Jean Quan said then that she would rather see the law changed to force them to close earlier. Sigh.

52 thoughts on “Oakland does cabaret reform: why make life easier for small businesses when you can take more money from them instead?

  1. Mike Spencer

    The City is full of doublespeak. Off topic, but the City comes after tax money from sole proprietors who work from home. ( Uh, no clients come to meet with me at home so what “extra” city “services” am I using to justify this tax?)

    I talked to two businesses, Jenny’s Cafe on Grand and Savemore Market on Park, who got caught up a year or two ago in a “litter tax” that was supposed to be aimed at fast-food restaurants. Both Savemore and Jenny’s run very clean businesses yet they fall prey to this tax. The “small cabaret” tax sounds like more of the same.

    Dear City: Keep your damn dirty paws out of our bank accounts.

  2. Robert

    If somebody can seriously support the argument that the samller venues do not have the potential for impacts in the city, then it doesn’t make sense. Otherwise, becareful what you wish for. The existing definition was not ambigious, and it looks like the desired clarification will go in a direction that you had not intended.

  3. V Smoothe Post author

    Are you doing okay these days, Robert? It’s seems like you’ve been having a lot of trouble with reading comprehension lately. I suggest you go back and re-read both the post and the cabaret ordinance, neither of which you appear to understand at all. Unless you are seriously trying to suggest that background music is a danger to public safety.

  4. Robert

    Maybe it is just that when I went to school they actually taught how to read. The ordinance is not ambigious.

  5. V Smoothe Post author

    Correct, Robert! You get a gold star. The existing ordinance very clearly states that pre-recorded music in locations that do not permit dancing does not constitute a cabaret. As I explain in the post, the problem is that the City has been inconsistently enforcing the law. Now Councilmembers Nadel and Kaplan are proposing to revise the law so that bars will have to pay the City annually for the right to provide background music for their patrons.

  6. Max Allstadt

    Here’s what will happen if this ordinance passes as-is.

    1. No coffee shop or small cafe owner will pay the city to get that exemption. Hosting tiny music performances doesn’t make any direct money. There’s no clear investment or return for these businesses to consider, so they just won’t do it.

    2. If a small cafe owner wants to have live music, they will ignore this ordinance and play dumb if they get cited. Only if they get cited will they shell out. And some will stop having performances instead of paying the city.

    3. Oakland’s underground house-party and warehouse music scene will continue to thrive, and continue to drive money into the pockets of liquor store owners.

    We should pass this exemption WITHOUT the fees. That would be a start. There’s more work to be done, but a no-fee exemption would be a good beginning.

    What I really want the council to understand is this: There are thousands of musicians in the Bay Area who are either weekend warriors or semi-pros who are much more interested in playing music than getting paid for it. These musicians will find a place to perform no matter what.

    Small venues these days rarely pay much more that could be earned by passing a hat. These venues don’t make tons of money either. Essentially, the great mobs of amateur musicians in American cities are a nearly cost-free business attraction strategy waiting to be put into action.

    I want to hear quiet live music coming out of every small cafe in this city at happy hour every day. I want to go into my favorite restaurants in Fruitvale and hear live music. I want to see small jazz groups playing in the corners of some of our newest high-end restaurants.

    Oakland could have a reputation for being a mecca for music. But if we want that to happen, we need bring music out of the warehouses and into places where it’s visible. We need to make it easier to start a venue. The ordinance proposed, so long as the fees are removed entirely, could be a good start.

  7. Ralph

    My initial reaction was pro the first change but not so much in favor of the second change. I took some exception to the “small cabaret exemption” because it seems to imply that the places in question are small cabarets and as such should have reduced fees. It seemed like a bit of a money grab. But as I started to think about it, I wondered what were the additional cost and risk to the city – so maybe there is some fees that should be charged. Decidedly on the fence. Guess, I need to figure out my position soon.

  8. Max Allstadt

    I see a no-fee exemption as a business attraction incentive that will cost the city nothing and attract business that will bring in tax revenue.

    Right now, there are very few tiny music venues in Oakland, because for a 49-person occupancy establishment, paying for a permit isn’t worth the hassle.

    The staff report on this ordinance predicts that 100 businesses will be willing to pay $600, plus $250 a year to get a small cabaret exemption. I think this is incorrect.

    What I would expect as a result of this fee structure is that most eligible businesses will do nothing. A handful will register. And probably two handfuls will not register and have live music anyway, waiting only until enforcement arrives at their door to do anything.

    Even if 100 businesses register on day one, the revenue would pay for one mid-level FTE the first year, and less than one low-level FTE in the following years. It’s not enough money even in the best case scenario.

    Supposing we do it without a fee. Suppose we create a one sheet pamphlet that explains the new rules in plain english.

    I would make copies of that sheet and volunteer to bring them around to small businesses, explaining that the city has gifted them with the right to have light entertainment without a permit. I would also distribute these sheets to musicians and encourage them to try to find willing partners in the small business community.

    The net effect of this plan would be to raise far more tax revenue than the proposed fees could garner. CEDA’s business attraction office could proudly tell folks who want to open a cafe in Oakland that below 49 occupancy, they can have light entertainment with no hassles.

    I would also expand the reform to include restaurants over 49 occupancy. The way this would work is that a restaurant could have live entertainment so long as the audience was seated (no standing audience at all) and the seated occupancy remained unchanged. By doing this, live entertainment creates no additional fire safety hazard. A man playing piano in the corner for seated patrons is no different than a stereo in the corner playing for seated patrons.

    This exemption for “accessory use” live entertainment in restaurants would be a boon to the new restauranteurs that are transforming this city. They could have a Jazz night. Established restaurants in Fruitvale could have mariachis.

    The idea is that musicians are cheap, but they bring in business. If Oakland is the first city in the East Bay to make this easy, we will out-compete Berkeley, Emeryville and others for the East Bay’s entertainment dollars.

  9. Dave C.

    With all the time the city council spends fiddling with cabaret licenses and pondering municipal ID programs and whatnot, you might think that Oakland had no major problems, such as, say, a severe budget crisis, or high rates of violent and property crime, or vacant storefronts all over the city which it should be ENCOURAGING new cafes and stores to occupy, instead of scaring them off with new fees and zoning rules and whatever else.

    While I disagreed with the parking activists on that particular issue, I do believe that they were expressing the pent-up fury of a lot of average Oakland residents who are reaching the breaking point. We are asked to impose new taxes and fees on ourselves year after year in order to fund the basic services that every city should provide, such as libraries and public safety, while the city gets less and less able to provide those services. Meanwhile, lucrative city jobs are handed out to unqualified friends and relatives of those at the top of the pyramid, and the city council wastes its time coming up with new bureaucratic hoops for business owners to jump through. We can argue about the details of each particular issue, but we risk missing the forest for the trees. Enough is enough!

    I’m a renter, not an owner, but if I’m pissed off, then I can only imagine how angry homeowners are. It’s no surprise that people like Patrick and Ralph and East Bay Conservative are breathing fire about seeing their taxes jump this year.

  10. bennett

    here is statement from Jean Quan, now candidate for Mayor, regarding the general approach of the City of Oakland’s business incentive program for new businesses, with a minor footnote to busienss retention, and as usual, nothing to help save businesses from their demise and doom should they be suffering.

    Business Incentives Approved for New Businesses: The Council approved incentives for attracting new businesses to Oakland which included reducing business taxes or sales taxes for a two year period up to $500,000 for businesses employing more than 20. As a compromise with Council Members like myself, who want a more flexible program with possibly longer periods or reduced business taxes for companies requiring more capital costs or bring significantly more jobs to the city, the City Administrator is encouraged to bring individual proposals to the Council. In addition, the staff was asked to bring back programs to help with business retention. I have proposed that the New Business Program be expanded on a prorated basis to include current Oakland programs that are hiring 20 or more new employees.

  11. Lori Zook

    Hard to know where to start here:

    a. Clearly the cabaret laws that were written prior to the prohibition era are outdated and no longer serve the needs of the city, its businesses, or its residents. In addition to dancing being considered a menace, references to vaudeville, etc., it is also not legal to have visual art that depicts even a slight bit of nudity (like, say, a breast) in a place where alcohol is being served. So yes, time for an overhaul.

    b. Now for a justification for charging businesses with fewer than 50 patrons an extra $600 the first year and $250 thereafter for having live music. The question here has to be: does the existence of live music in these small restaurants, lounges, and galleries actually pose a threat? Does it result in the provision of more city services? Highly doubtful.

    c. Now onto the slightly off-topic Business Incentives. I’ve long been outraged by the fact that these SUBSIDIES are only offered to larger businesses. Yes, job creation is good, more retail tax dollars are good, but there should be similar incentives offered to small businesses on a scaled-back basis. Small business owners pay a myriad of taxes, and generate revenue for the city. Give them some incentive.

  12. peter

    It is classic bureaucratic nonsense that this law is so out-dated and is now having one slight thing tweaked… how about starting with the name “cabaret??”
    If we look at this from a “backwards design” standpoint (looking first at desired outcomes), I believe most would agree that CLUBS (where drinking and dancing is the goal) should pay plenty since there is a lot of impact to the neighborhood’s sleep and police presence. The second biggest payer should be bars that have or sometimes have DJs–dancing or otherwise, they are smaller and attract less binge-drinking. Perhaps a differenciation between bars that have above or below a certain wattage/sq. foot would determine whether or not it was a “dancing” bar (the current rule that requires bars to hire to security to discourage dancing is insulting to patrons!). Last should be places that do not serve hard alcohol, it does not make any sense to me that a coffee shop with an acoustic guitarist should have to pay anything, if anything that is a service, not an inconvenience to a neighborhood.

  13. Ralph

    “it is also not legal to have visual art that depicts even a slight bit of nudity (like, say, a breast) in a place where alcohol is being served. So yes, time for an overhaul.”

    This is pretty much std in the 50. But I bet there are a number of adult club owners who will be your best friend if this is repealed.

    I do not believe that Oakland is unique with its cabaret laws. That said, the laws do need to be reformed and instead of tweaking them for financial gain why not look at what we are trying to achieve, evaluate that against existing laws and determine if we can allow the business to proceed with entertainment with placing a burden on the business.

    Side note, why is it when annual fees are imposed by law the fees are never increased for inflation?

  14. Lori Zook

    Good points, Peter and Ralph. Just wanted to clarify my point about nudity. It was not about adult clubs – although benefits to them would be an unintended consequence of adjusting the law (from my standpoint, at least). I’m specifically referring to gallery/cafes that serve beer and wine and are subject to fines if any of the art on their wall shows as much as a breast……

  15. Livegreen

    I’m also disturbed by the murder reported outside a downtown club.
    In one of the hippest parts of town. Even if this is a 1x unique
    occurance in this location it is not good for the upcoming businesses.
    More police are good for safety and good for business.
    What’s Oakland going to do to hire more & how are they going
    to pay for them?

  16. Ralph

    LG, the downtown murder is a bit troubling. You can take cold comfort that these one offs have not stopped new businesses from opening.

  17. jackbdazzle

    This is one of my major frustrations with Oakland. We just keep making it sooo difficult for small business. Privately held businesses are the backbone of Oakland, yet we constantly make it hard for them to make a profit. While one more law might not seem like much, to an overwhelmed, or over leveraged business owner, it can be death.

    If it is not robbery, burglary, or taxes destroying business in oakland, it is parking rules, plastic bag rules, rules against DJ’s, and styrofoam. It is not that the laws are wrong, it is just collectively, these laws pose a great burden on business. They are usually instituted in thoughtless ways, as it seems like there are people and politicians in oakland who despise people who are successful.

    We really need to better understand the needs of small businesses. Otherwise, these types of issues/laws/rules will keep coming up, and our sales tax revenue will keep going to Emeryville.

  18. Matt

    Holy Crap! Did anyone read Max’s comments? Hello? He proposed a viable solution, so can we discuss it now?

    I’ve really had it with people spouting off about their pet issues on here when it has little to do with the article at hand.

  19. Robert

    Max has some interesting suggestions, however they rest on a pair of assumptions, both of which I find myself being skeptical about. The first is that there will be no negative impact from any of this new wave of small clubs that provide live music and/or dancing. I think this is farfetched, but is central to his concept that there is no cost to the city. The second assumption is that there will be a lot of new revenue to the city from the increase sales in the newly franchised clubs. That there will be enough of an increase in sales to make up for the lack of revenue from the license fee is, I think, speculative. But perhaps more importantly should be addressed specifically as a part of business development, rather than as a hidden subsidy through a fee waiver.

    No impact: Really? We are never going to have a problem outside or inside of one of these new clubs? The city’s general fund needs to recover enough from the cabaret fees to cover the expected costs of enforcement. If you want to write this off as a necessary cost of business development, then so be it, but that needs to be an explicit part of a business development budget, rather than being hidden.

    I won’t discuss the magnitude of new tax revenue expected, but do remember that Oakland only gets about 1% from the sales tax, thus to cover the $25,000 expected annually from the fee there would need to be an increase in sales of about $2.5 million.

    I think that Nadel/Kaplan suggestion is a reasonable start at reducing the costs of offering a new type of business, a small club that could have live music and or dancing. This is a type of club that can only operate now by paying the $2200 cabaret fee, which apparently no one does. How about we get behind this to reduce the entry costs for such a small club, and then monitor for a couple of years the public impacts of the newly licensed clubs, and get some handle on the revenue that might be seen from these clubs. Then it might be possible to revise the fee, either upwards or downwards as circumstances dictate.

    On one thing I do agree with Max, that live music is not inherently always more impactful than recorded. His example is perfectly valid, and typical of many situations. I also think that there is a range of activities for a DJ, from providing background music to being an intrinsic part of a live show. And this differentiation is not provided for in the law or the OPD enforcement guide. Based on my experience, I think that the potential for problems is more closely related to the type of music and whether there is dancing, than on whether there is a live band or a DJ. But then again, I don’t hang in the more problematic clubs.

    Nadal/Kaplan are not trying to make things more difficult, there are providing a way to have a reduced burden for a type of activity that is not currently happening in the city. Perhaps not as reduced as some would like, but still reduced compared to the current situation.

  20. Matt

    This town has been on the incline, in spite of so many things, for a little over a decade now. I believe it was in ‘99 that Oakland officially recovered from a population implosion that lasted for nearly a half century. Now is not the time to skim the profits off budding businesses joining this amazing incline!

    That’s what this is about. When Jean said, “They can afford it. Cabarets make a lot of money.” She was not talking about the external costs of cabarets, correction, small cabarets (take note of that Jean, under 49 seats), she was talking about simply taking advantage of something awesome happening in Oakland. Man does that piss me off!!! Good lord, I’m glad I have the good mind not to write a diatribe about that issue alone.

    Ralph, all that aside, how does Cheeseboard Pizza in Berkeley cost the people of Berkeley more when it allows musicians to serenade the area with fine live music?

  21. Ralph

    I am not sure I buy into Max’s proposal and as I think there are probably some cost to the city. I don’t think that the fee needs to cover a full FTE because it should be a marginal expense. And I am bit skeptical about how much it will bring the city. To reach $25K sales tx, you essentially need to have all 100 small venues operate 50 events per yr each drawing 49 people and each person spending an incremental $10.

    for the handful of business for which this makes sense, they pay the fee. and those who are heckbent on bending the rules need to be fined double.

  22. Livegreen

    Remember that part of the issue V brought up is questionable enforcement.
    This was also an important subissue with the parking meters.
    There would have been less of an issue with the meters if there
    hadn’t been regular reports of $80 tickets for expired meter penalties
    listed at $55 (not to speak of tickets reported to have been
    false in some cases).

    In the case at hand enforcement of the cabaret licenses should
    be fair & consistent. So under the old rules OR under the new
    rules the city workers that repeatedly enforce either selectively or falsely should
    suffer the consequences.

    A solution for false enforcement needs to be found or tinkering
    with statutes won’t make much of a difference either way.

  23. Willis Stork

    The law does not only need to be reworded but reformed.

    And, if it is reformed, the carrying out of such law and its enforcement will need to be completely restructured as well.

    Max does bring up a strong point that the number of musicians and bands in Oakland is large and only getting larger. For a long time many have sought audiences outside of above-the-ground venues, or San Francisco. If more Oakland establishments had the option of having live entertainment on a non-nightly basis (not 5-6 nights a week) Oakland would see a boom in activity and sales.

    The trend I see is more bars opening in the first floor of new condominium complexes. This appears to be the type of nighttime lifestyle that’s being encouraged. However, I personally do not believe Oakland needs more places to just congregate and drink. Drunks are drunks, whether they’re dancing or not.

    At present, the number of venues downtown that provide live/amplified nightly entertainment for under $10 is very small, ludicrously small for a city with as much culture as we have.

    There is a greater good.
    It appears that all these small businesses could encourage the music community to foster, which is better for sales and, thus, better for the city.
    But, the city has to encourage the small business to be what they set out to be, not a scraping version of their original vision.

    The cabaret fees and/or the tickets given do not seem to add up, solution-wise or in dollar amounts. The present situation is not only counterproductive, but counterintuitive. It’s one of forcefulness and could use some degree of leniency and support.

    I’m not offering this as a solution, but seeing that most of these places aren’t shooting for having nightly engagements (5-6 of 7 nights a week) perhaps they would start to bourgeon if they were granted a cabaret license first. If they were allowed to have shows, they could monitor the success of their own events fiscally and report to the city at years end. If the venue hasn’t done as much as it would have liked show-wise, based on the amount of events, it pays a percentage of the fee. So they pay what they can afford if they’re making it, not paying first and being made to expect to make it. (I mean, a lot of these places aren’t trying to be the Apollo.) And, the difference could come from a Small Business pool set aside for those who want to have any form of music-related events in their establishment. The pool could come from regular businesses who care and wanted to contribute. And the music community. And us. In this way, it becomes a self-supporting, growth-focused climate.
    (Regardless, I believe it’s necessary any future license fees should be lowered considerably.)

    I look forward to a new definition for “Cabaret License” for Oakland, and a place where I can see great rock & roll at more than one bar.

    I’d like to thank Robert for his input on this. I do have a question for him though, regarding his statement as so I can understand more fully why this is as much a tax/fee issue as much as a safety issue:

    “Nadal/Kaplan are not trying to make things more difficult, there are providing a way to have a reduced burden for a type of activity that is not currently happening in the city. Perhaps not as reduced as some would like, but still reduced compared to the current situation.”

  24. Ralph

    I also have a question for Robert, the use of the term club is very cofusing in this context, as the proposal refers to business that are classification other than “entertainment,” so what exactly do you mean?

    Willis, where are these condominiums with bars opening on the ground level?

  25. Willis Stork

    23rd & Broadway. Piedmont & Pleasant Valley. They’re these shi shi martini bars, like Mua (not as big as Mua, of course.)
    The style is being called “Nu Oakland.” I do not claim credit for the coined phrase.
    Oh, yeah and there’s that Sake bar on Grand & Broadway. Valet parking, yada yada.

  26. Born in Oakland

    Adding to the burden of small clubs/pubs/cafes which feature live music……ASCAP, BMI from the music industry send out investigators who determine copyrighted material is being played and then nail the owners anywhere from $3000 to $5000 in annual fees. Of course, council members don’t know anything about running a small business. Which of them ever have? But they know how to run school boards and our fair City.

  27. Ralph

    I can’t speak for P&P, but neither Ozuma (what you refer to as the sake bar) nor Pican are bars. They are restaurants. Although, I understand Ozuma would like to get its groove on until late into the night.

    and who created this phrase “Nu Oakland” can’t say I have ever heard it, but then again i am not a hepcat

  28. Max Allstadt

    Robert,

    I think you’re being overly alarmist about potential impacts. The nightlife that creates trouble in Oakland has almost exclusively been large dance clubs, and we have regulations in place and an enforcement regime to deal with them.

    What I am proposing is a path to more light entertainment in Oakland:

    A coffee shop with a three piece jazz band in Montclair.

    A sitar player in the corner of an Indian Restaurant on College Avenue.

    Two guys playing blues guitar in the corner of a small bar on Lakeshore Avenue.

    Downtown, a DJ in a small bar with no dance floor

    An open mic for comedians or poets at a small cafe on 7th street in West Oakland.

    None of these scenarios are in anyway likely to create a nuisance. We’re not talking about parties in the streets here. We’re talking about 49 occupancy establishments, most of which are under 2000 square feet, and many of which are much smaller.

    None of these scenarios is likely to cost the city a dime of policing dollars, either. If somebody gets shot at an Indian restaurant with a sitar player, I’d say it’s a safe bet that the Sitar had nothing to do with it.

    This is a business attraction proposal which gives local small entrepreneurs a new low-cost option to bring in business. This is a revitalization measure.

    Light entertainment is a distinction that can be successfully made in legislation. The distinction needs to be made and the exemptions need to be free of charge. This is about making our city a place that welcomes music and expression with open arms instead of red tape.

  29. Ralph

    What about keeping the patrons and community safe?

    Max, a 3 piece jazz band, a single sitar player, 2 guys playing blues guitar in Montclair, on College Ave, and on Lakeshore may or may not be a problem. I think the problem you get into is regulating the type of music that is or is not problematic.

    Suppose, instead of a single sitar player, it is a gangsta rap trio with a following. There is no way that the city can regulate one type of music over another and there is no way that they tell owners which type of musicians they can play. Who is to say that an owner is going to hold to the 49 person cap when the people keep coming to the door. If the cafe never books a show, it is probably fair to say that they do a good job with managing capacity, but we all know that capacity limits have been pushed when entertainment is involved. There will most likely be a step up in monitoring/policing.

    It is one thing to have background music a completely different to have performances and I believe NN and RK are trying to address performances that owners book to draw incremental customers (suck dollars from pockets.)

  30. Robert

    Willis. The current situation is that a small club with less than 50 people has to pay about $2200 in order to provide either live entertainment or dancing. According to the city, nobody is doing this. The Nadel/Kaplan proposal would allow this small venue to offer live music or dancing for only $600. Which to me looks like a reduced burden.

    lg. Yes, there is some problems with erratic enforcement. But that appears to be with the OPD guide which includes all DJs as live entertainment. DJ’s acts are not monolithic, and can range from background music up to being a key part of the entertainment. It is hard to see how that differentiation can be written into the law.

    Ralph. Clubs is a vague term. You can substitute bars if you feel like it.

    Max. I think you are being overly optimistic. While the problems to date have been mostly at large dance clubs, there haven’t been small dance clubs operating to know if these will be a problem also. Even bars without bands or dancing have problems on occasion. If you want to exempt venues that don’t serve alcohol, I would personally be OK with that. I agree that the coffee shop with the jazz combo is very unlikely to cause a problem. But the bar in downtown with a DJ, I am not so sure. You get several of these in a small radius in downtown and the potential for problems does exist. But I think that these are reasonable areas for the council to have its discussion. I just don’t know how you successfully define light entertainment without getting into the type of music, which becomes a freedom of speech issue. Maybe dancing would be the key element, but Nadel/Kaplan’s proposal (and yours?) does allow for bars with occupancies of less than 50 to allow dancing. And honestly, are 4 couples dancing to the string quartet really likely to cause a problem?

  31. Matt

    Optimistic, pessimistic…. gangsta rap, sitars….

    Hold up.

    What we’re talking about is the City Council seeing a source of revenue when it has made no case for collecting it at all. Jean confused large and small cabarets in her, “they can afford it,” comment. So I have no confidence the council is even on the same page with each other.

    Please, why would we want to discourage a Cheeseboard Pizza from opening in Oakland? The only justification I’m hearing is we have to punish everyone because there might be some bad apples (hey, by the way, even sitar players can have a naughty side and gangsta rap has been known to influence people to think about changing ones life for the better). Who’s the say no matter what the fee is the bad apples (naughty sitar players) will skirt the fee and still create bedlam from time to time?

    Again, there’s no justification for the tax, the council isn’t all on the same page and I won’t stand for punishing everyone because some people might not be responsible.

  32. Max Allstadt

    Robert,

    The alternate language we’ve forwarded to the council explicitly prohibits dancing.

    As for all the other “what if” fears about music causing problems, and about nightlife causing problems, I’m just tired of hearing it.

    It is the LACK of nightlife is causing problems by keeping this city poor and boring. If we want to attract residents and visitors to Oakland, they have to be able to have fun.

    The fact that there have been issues at a handful of large nightclubs that were owned by irresponsible people is not a reason to fear light entertainment.

    You can successfully define light entertainment by restricting the size of a venue, or restricting the size of the area used for performance, or by restricting dancing or open floor space.

    Plus, we already have alcohol regulations and enforcement. There will still be somebody looking over the shoulder of anybody who sells alcohol irresponsibly, or who makes illegal amounts of noise, or who creates any other illegal nuisance.

    Ralph,

    It makes no sense to argue that we shouldn’t have a law because some people will break it. The reason we have the law is so that we can sanction people who break it.

    Under 49 occupancy cafes, restaurants and bars are subject to fines if a fire marshal catches them over their limit of occupants. They are now, and they will be when this passes.

    As for the “oh dear god, somebody might try to rap in a coffee shop” argument, that’s exactly the kind of alarmism that holds this town down.

    Small business owners stake their livelihoods on their businesses. They are far more connected to what they do than operators of nightclubs which are usually funded by multiple investors. Because of this, small businesses have more to lose from messing up, and will be much much more cautious. We can expect good self-policing from this community.

  33. Ralph

    Robert, I could substitute bars, but don’t bars fall into the business classification – entertainment.

    Is the entire council ever on the same page? I have learned through the years, they rarely are. If a proposal doesn’t impact their district much, some members of council simply don’t care. I don’t think Oakland is that big to be that parochial.

    I think part of the problem is the use of the phrase small cabarets. The business that NN/RK want to charge the reduced fee are business classified as something other than entertainment. By defn, they are not in the cabaret business. This ‘small cabaret” term makes it seem as if there is an entertainment business with a capacity less than 50 people. Hopefully, NN/RK will clarify this in the proposal because the missing language has unintended consequences.

    Think of the the fee that the city is suggesting as insurance. In mixed communities, residents need some assurances that business owners are going to be responsible. The city needs to be able to punish the bad actors. I don’t feel sympathetic for business owners who have to pay for bad actors. You, me, the guy next door all pay for bad actors – uninsured drivers, inventory leakage – it happens the fee the city is imposing is not too high that a business owner can not recoup it through planned events.

  34. Ralph

    “It makes no sense to argue that we shouldn’t have a law because some people will break it. The reason we have the law is so that we can sanction people who break it.”

    Under 49 occupancy cafes, restaurants and bars are subject to fines if a fire marshal catches them over their limit of occupants. They are now, and they will be when this passes.

    Max, I really don’t understand that 1st sentence. I have no issue with the 2nd. I don’t disagree with the occupancy enforcement for under 49 cafes. The question I have is does the frequency of investigation initially increase if the cafe now provides entertainment. I have been in cafes where the occupancy levels have been reached and exceeded on performance nights but never approach the capacity on non-performance nights.

  35. Max Allstadt

    Ralph,

    The point of the first sentence is that we can play devil’s advocate with any law or permit regime and invent an impending calamity.

    If we allow the mere possibility of bad behavior to stop an activity from happening, we’d stop selling spray paint because of graffiti, stop selling glue because of huffing, stop having Raiders games because somebody always gets in a fight, stop selling liquor because of abuse, we’d shut down all the marijuana dispensaries, we’d put training wheels on every bicycle… and we wouldn’t stop until every last person in this city was shaved and doused with a bucket of hand sanitizer.

    As for the enforcement burden issue, I’ll say this one more time:

    Every word that is being presented to the Council as an alternate resolution has been chosen to ensure that these exemptions do not lead to raucous behavior.

    I’m not trying to pull a fast one here. I really want this to work exactly as presented, because if it doesn’t, it’ll get revoked and this town will be stuck back where it is today, without enough music.

  36. Robert

    Ralph, I am not sure what the city considers to be in the entertainment zoning category. To me, a restaurant also falls into the entertainment category, but that may not be the case for everyone.

    Matt, as Nadel/Kaplan indicated, they believe that the $600 fee will be cost recovery for the city. And again, this is not a way for city to grab money from existing enterprises, but a way to lower the barriers to entry for a type of venue not currently (legally) operating in the city. Now Max would like it to be still lower (free), and fair enough, he can make that point to the council.

    If Max’s proposal excludes dancing, I suspect that we are pretty much in agreement, but that is the first time that was mentioned. I would also exempt non-alcohol serving venues, regardless of size and regardless of dancing. But I do think you are sticking your head in the sand to believe that nightlife does not cause problems. The benefits may be worth the problems, but it is not a free lunch.

  37. Max Allstadt

    Robert,

    Yes I am talking about something nobody else has seen, and embarrassingly, I don’t have a copy available to me right now.

    I don’t think $600 is “cost recovery”. I think it’s too much. I think it will dissuade many small businesses from bothering with the exemption.

    And, it’s really really important to understand that this isn’t just about nightlife. Right now, you can’t even have a mariachi band at a Mexican restaurant for Sunday brunch without a cabaret permit.

    There are dozens of day-use applications for this exemption, many of them would be family friendly. Kids like music, and a restaurant with kid-friendly music would do extremely well on weekends during the day.

    As for the no-alcohol exemption, I tend to agree, but not about dancing. Dancing is a fire code problem because it concentrates a large group of people in a small space. This ordinance can’t pass if the fire marshals have safety qualms or if there are code conflicts.

  38. Robert

    To clarify, I think we agree that the permitted no fee ‘small cabaret’ should not allow dancing. I don’t think that anyone disagrees that there are many situations (family friendly and otherwise) that would be fine, but the question comes down to how you legally differentiate these from those activities that attract the rowdy, drunk, twenty somethings.

  39. Robert

    The fire code problem exists not just for dancing, but potentially anytime you have a ‘stage’, which would mean live music and DJs. If the stage is in the back corner, not an issue, but right next to an exit, it very well can impact emergency egress, and the fire marshall needs to approve. And I think that is the reason the the proposal does require a fire inspection as part of the permitting process, with the attendant cost to the city.

  40. Max Allstadt

    Yup. It does.

    And the answer is that we differentiate by occupancy and by whether or not you allow dancing, and whether or not you allow for a cover to be charged at the door.

    “Dancing”, by the way, can be tailored to effectively mean “lots of standing room” too.

    There are also possibilities for barring live performance from continuing past midnight. Those darn rowdy 20 somethings don’t usually get really rowdy until after 12am.

  41. Matt

    There has been a lot of discussion here, now lets focus on a consensus.

    Max has entertainment experience, wants free permits and is optimistic about business owners taking responsibility for their premises as well as the ability for entertainment to bring up a neighborhood. Ralph and Robert want there neighborhoods to stay civilized and livable and see a $600 permit fee as a way to cover the cost of what they believe to be inevitable externalities related specifically to small cabarets.

    A win-win would be to have a permit/agreement with a fee based on a list of yes and no questions with a value placed on each yes or no for its cost to the city. If you score below a certain level you receive a free cabaret permit. This would be public record allowing the community to police its cabarets. Last, the fine for violating the agreement should be enough to discourage most violations as well as to pay for the admin costs of the do-gooder’s free permits.

  42. Max Allstadt

    Ah, but Matt, that would be too sensible.

    Also that kind of hoop-jumping and extra staff labor costs money.

    The easiest ordinance to pass is a low-maintenance, clearly defined law that’s short and easy to read. Any opportunity to split hairs and parse words is trouble both for the legislators as they review the law, and for the staff who have to administer it afterwards.

  43. Robert

    Max, whether there is a cover charge does nothing to address whether the stage or entertainment area is interfering with the exit. And if what you are saying is that your proposal requires a fire inspection, then there needs to be a cost recovery for that, and it should no longer be free.

    Matt, sort of good, but not much different for being free for some categories and charging for others.

  44. Willis Stork

    There is still a common good.

    Focusing on ideas to present for discussion will and can only foster necessary changes.

  45. Max Allstadt

    Robert:

    Disallowing cover charges reduces the intensity of the impact, because it means that the band is a bonus feature, not the main event or the main source of revenue.

    Our plan does not require additional fire inspection unless the owner substatially alters the interior seating layout. If you just put a band in the corner of a restaurant, you haven’t changed fire safety. Patrons still sit at the same tables and have the same egress routes.

  46. Robert

    Max, a band in the back corner, I agree. But a band next to the front entrance, maybe there is a impact. And yes, I have seen bars with stages laid out that way. And no, I am not comfortable with a profit oriented bar owner making the decision about whether there might be an impact. All too oftern the result is “it’s good enough”.

  47. bennett Hall

    reading this string, I wonder what it would be like if I were considering investing 50-100K or so in launching a new space in Oakland in light of the government (and the “people”) wanting to place spotlights around how I do every little detail. Or, perhaps I just wanted my current place not to go broke for lack of business due to the 2009 depression by creating a more compelling customer experience. Or, maybe I just let my friends play music in my cafe. Would I want a big hassle and license fee around this – not mention the ASCAP police.

    The regulation and compliance overload in our world pervades everything, and possible it is to the point now were it is a deterrent to enterprise, especially to small start-up entrepreneurs.

    Seasoned corporate operations of course have the capital and operations infrastructure to handle this, advance teams and what not. Fire safety regulations, sanitation and public safety aside, (already handled by other code), I wonder if investing and promoting our various communities, marketing the neighborhoods, shop local programs and focusing on innovation, vitality and how to increase sales and employment could generate similar returns for the tax shortfall that seems the underlying play here.

  48. Willis Stork

    Snap. Thank you, Mr. Hall.

    I wish I didn’t have a job interview today, I would so rather have been @ the Public Safety Committee meeting.
    Very much looking forward to hearing how things transpired.

  49. Max Allstadt

    Last night, the public safety committee opted to do another round of revisions to the Cabaret laws. And I couldn’t be happier to hear it.

    I was very pleasantly surprised to hear that Councilmembers Quan and Kernighan wanted even more flexibility and accommodation than what was put on the agenda. Their primary concern was that accessory music in small restaurants and cafes should be allowed as-of-right.

    What appears to be in the works at this point is some variation on a three tiered system. One category would have no permits required at all, and would likely apply to restaurants and cafes, possibly with a curfew or other restrictions. The second category seems to be shaping up as close to the mini-cabaret license that was proposed above. The third is the cabaret license we currently have, for larger and more impactful establishments.

    And what’s more, OPD and the Committee were both willing to try a pilot program for after-hours clubs. No alcohol would be served past two due to state law, but softdrinks and snacks would be available. It was totally non-controversial, because it seemed clear to everybody in the room that staggering the exodus of drunkards from clubs makes for easier law enforcement. Plus, giving people some alcohol-free time to calm down will also likely decrease DUIs.

    To put it mildly, I was floored by what happened. I really couldn’t have hoped for a better result.

    Many thanks to Councilmembers Nadel and Kaplan for taking the lead on this. In some ways, I think that because they chose to ask for something modest, it gave an opening for other Councilmembers to add their own common sense ideas, which really helped build consensus.

    It looks like we’re on our way some very sensible reforms. Entertainment regulations are making a leap to the 21st century (from the 19th century!).

  50. Anne Campbell Washington

    I am very encouraged by your report of what transpired at the meeting last night Max. I believe a tiered fee structure will go a long way toward encouraging more, smaller establishments to welcome musicians. I came across the pamphlet that Chicago uses to succinctly describe what they call a “Public Place of Amusement” License (link below). I think their license structure makes a lot of sense.

    I also think that this pamphlet does a great job of describing the program and promoting Chicago as a place that values music and art. Hopefully the cabaret license will be completely revamped, not just tweaked, and the communications to the business community will show that Oakland values its arts community as well.

    http://egov.cityofchicago.org/webportal/COCWebPortal/COC_EDITORIAL/ppaguide0509.pdf