Monday, March 24, 2008

Does lawful land use depend upon the popularity of music?

Sax    If my memory is correct, an English defendant represented by the fictional Rumpole of the Bailey back in the ‘60s testified that he could not have committed the crime because he was seeing the Rolling Stones with a mate at the time of the incident.  When the judge asked what the Rolling Stones were, Rumpole helpfully provided, “I believe they are jazz musicians, my lord.”  If Rumpole had been available in the California Court of Appeal this year, he might have helped a business that ran afoul of a land use permit that restricted, among other things, the kind of music that could be played.
   According to the decision by the Second District Court of Appeal last week, a business in the city of Diamond Bar (in east Los Angeles County) received a conditional use permit in 2003 to operate a restaurant called “Scribbles.”  The permit required that: “Entertainment shall only include a jazz band, guitarist and pianist and which shall occur on a small stage within the bar.  Furthermore, a DJ with dancing shall only occur for banquets and private parties within the banquet room.”  (Query:  Had the restaurant presented an atonal “free” saxophone honking performance, would the issue of legality turn on whether the music fit within the defintion of “jazz”)?   
    Within a couple of years, however, the local police began to receive a lot of complaints about a “nightclub” being operated out of Scribbles, including 200 people waiting in line on Thursday nights, some of whom engaged in anti-social activity outside the club, according to the complaints.  Had jazz finally broken through to the masses, led by the  sophisticated citizens of Diamond Bar?  Alas no; the music being offered was “by known artists,” according to the trial court (Did being “known” disqualify the music from being jazz?), in a way that constituted a nightclub, not a restaurant or private party, in violation of the permit.  One advertised event was a “Drinco de Mayo” night; other events were advertised as offering Hip Hop and Top 40 music.  In fact, the appellate court held that whether this type of entertainment was permitted under the permit was a “question of law” for the trial court.  Let’s hope that Rumpole’s judge is not still on the bench. 
   Under a city ordinance, any operation in violation of a permit automatically constitutes a public nuisance.  So the city council found, and so the courts approved in enjoining the nightclub.  The appellate opinion was State of California v. Ratan Hospitality, No. B194660 (Cal. App. 2d Dist., March 20, 2008).  The opinion is unreported and is restricted for citation in California courts.

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