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Pay To Play?

Backers say Albany’s proposed new permit system for live music will be an improvement; opponents fear it will be a cost burden on small establishments

by Darryl McGrath on February 23, 2012

For years in Albany, restaurant and tavern owners have known that securing the city’s permission to play live music in their establishments was a Byzantine process that resembled the legal code of a medieval Italian city-state.

A business that wanted to host live music, stand-up comedy or karaoke—with electric amplification  of that entertainment as the operative component—had to apply for a use variance from the city’s Board of Zoning Appeals. The application was time-consuming, could cost as much as $2,000, and had no guaranteed results.

Other problems with the variance system: If the BZA did grant one, permission to host live entertainment would stay with the business forever, even if the business changed hands. Businesses that claimed they had been presenting live music for years or decades could be “grandfathered in” with no need to obtain a variance and usually no need to prove their claim. Business owners who had neither precedent nor the money to seek a variance sometimes simply took their chances and booked a band without authorization, while keeping one eye on the door in case the city tried to shut down the fun.

That’s why critics of the present approach say it’s time to stop a process they call arbitrary and capricious. A proposed ordinance that would establish “cabaret permits,” which could come up for a vote before the Common Council tonight (Feb. 23), would be one way to accomplish that.

The system of music-by-variance “is a mess,” says Common Council member Richard Conti, whose 6th Ward includes a number of businesses that conceivably could apply for cabaret permits.

“The city hasn’t been enforcing the live entertainment component because it is very complicated, and trying to get control of it is one thing this ordinance aims to do,” Conti said. The idea of such an ordinance has galvanized support and opposition for years, Conti added, “but now we’re going to move forward and try to pass something.”

The proposed ordinance has gone through several drafts. Neighborhood associations sought and obtained inclusion as one of the parties required to receive notification about an application for a cabaret license–along with the city planning department, the police and fire departments, the city division of buildings and codes, the corporation council, nearby residences, and the pertinent Common Council members and business improvement districts.

Licenses would be good for up to one year, with fees ranging from $50 to $500, based on the type of application–such as a temporary use–or the capacity of the establishment. Most applicants would expect to pay $150, based on a capacity of 150 people. Churches and schools would not have to obtain a permit for music in a regular religious or educational program, but would need a permit for, say, a youth group dance with a band in the church hall or school gymnasium. Nonamplified music–such as background acoustic guitar for diners in a restaurant–or simple background music over an audio system that accompanies the dinner hour–also would be exempt, as would juke boxes.

Dan Herring, Common Council member for the 13th Ward and Planning Committee chair, proposed the ordinance two years ago to establish “a level playing field” for all eligible businesses that wanted to have entertainment.

“This license will hopefully be something that people can customize for their activity,” Herring said.
“We can equalize things so that everyone is held to the same standard.”

The owners of several restaurants, clubs and bars that would likely fall under the ordinance did not respond to requests for comment. One who did talk was Matt Baumgartner, who owns three restaurants inAlbanyand is already permitted to have live music in Wolf’s Biergarten on Broadway. The ordinance could be a help to owners of small businesses, Baumgartner said, by removing the vagaries and expense of a variance or the risk of hosting music without one.

“Some of these small businesses really rely on the crowd that comes in to music,” Baumgartner said.

But the idea of small establishments having to apply and pay for the permit is exactly what worries local musician Jeremy James, who has played in a number of small venues such as coffeehouses. James started an online peition opposing the ordinance, which he said drew “a lot of support from small places.”

James did, however, credit Common Council members with listening to his concerns.

“I’ve gotten a lot of positive feedback from the council,” he said. “I think they are willing to work with people’s concerns.”

Ken Young, who owns Emack & Bolio’s on Delaware Avenue with his wife, Amy Riddell, also praised the public-comment process. Emack & Bolio’s hosts indoor music in the winter and outdoor music in the summer. The couple obtained a variance for the outdoor entertainment.

Young said the issue of outdoor performances should be clarified in the ordinance. The current draft  does state that an application should specify whether the business will hold outdoor performances, and moored ships, boats and barges are included in the draft’s categories of potential cabarets.

The cabaret ordinance would not override a separate section of city code governing outdoor patios and sidewalk cafes and which already prohibits outdoor music in mixed-use zoning districts–unless, like Emack & Bolio’s, the business already has a variance, Conti said.

While Young said he thinks this point could be clarified, he also praised the detail of the draft.

“I got the impression that they wanted to get it right,” he said of the council. “They seemed very open to suggestion.”

–Darryl McGrath and Erin Pihlaja