JPF Home Page Forums General Messages General Message Forum Need Feedback and Discussion: Poltical Issue surrounding House Concerts!

I don't know the people or neighborhood involved in the lawsuit, but I neither understand nor support governmental banning of a particular type of private event (in this case, house concerts). If the goal is to mitigate public disturbance and/or disruption, why not simply pass and enforce ordinances that specifically address such disruptions? If it's noise, it should not matter what the source is. Ditto for parking or traffic disruption. Lawn and garage sales are business ventures, usually advertised, held on residentially zoned property that certainly can disrupt traffic and parking.

James,

The bottom line is that the only way it would be fair to ban house concerts is to ban all other events that causes non residents to visit a home for any purpose. Seriously.. you can't split a hair and say house concerts are not allowed, but all the other types of gatherings where money does or doesn't change hands in some way are okay. The fact is that many common events/parties/meetings take place that have a higher likelihood of disrupting a neighborhood than a house concert. Can a house concert cause problems? Sure. So can ANY other event of ANY kind where outsiders (i.e. people who are not full time residents in the home they are visiting) attend.

I am all for a consistent noice ordinance. I am all for laws against litering or vandalism. If there are limited parking places, I have no problem with the local town deciding who can and can't park where (Chicago and New York for example require certain types of parking permits or you get towed.. if a city wants that, go for it.. as long as all gatherings have to deal with the same limitations).

I simply don't like the idea that 1 type of gathering, in this case a House Concert, is restricted or shut down when other similar or worse gatherings are not affected or hassled.

Brian

Brian,

Can you point to any document that states house concerts are banned in O'Hara Township? So far, I can't. If there were such a document, I'd agree with you wholeheartedly. But.. we haven't seen one.

I'm not trying to split hairs here. I'm just saying that we are interpreting the actions of the Zoning Board without seeing the actual documents. The facts, as I can glean them, is that a series of house concerts were held, a complaint was made, the zoning board ruled the concerts at that address in that form as not complying with zoning rules, and eventually sent either a letter or a cease-and-desist order (not clear yet which one it was.) We're discussing taking up a cause when we haven't seen the actions on which the cause is based.

I'm just recommending a little investigation and caution, especially before involving a Political Action Committee on behalf of 40,000 people -- sorry, I mean Political Advocacy Network.

- James

P.S. I've sent an email to Cindy Harris and asked if we could see a copy of the letter involved.

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You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm


[This message has been edited by JamesM (edited 04-11-2006).]

James,

The purpose of this post is for discussion and feedback. We wouldn't proceed without first getting our own independent legal advice which we have asked for via our friends at the Future of Music Coalition. If what you're suggesting it true, and there are never going to be any restrictions to having a house concert, then we have nothing to worry about. If, however, there ARE people working to stop someone from having one, and it's a federal case, we need to be involved if we want to have an impact to prevent any limitations being placed on anything. The fact that you are delving deeper means our process is working. I think your finding will provide a valuable piece of this entire thing. Too often people jump on sides without a thorough discussion. We've already seen all sides represented here. Bob, Stu and yourself have all given well spoken comments that differ from those of myself and many others. That's exactly what I hoped for here. If we can't debate and discuss the issues among ourselves, we won't be able to do it later on when it really counts. So please do find out additional info and bring it to the table. For my part, I have contacted the legal experts that I know to chime in. Stu's commentary was exactly what I expected him to say and I respect his viewpoint a great deal. It's because he feels that House Concerts are in fact different than other types of parties or gatherings or meetings (and perhaps deserve different treatment) that leads me to the conclusion that we really need to get involved and clearly point out that they really are EXACTLY the same thing. They cause the same neighborhood problems (traffic, noise, strangers to the neighborhood visiting) and in some cases, things like Amway meetings are worse from a commercial aspect than a house concert where there is no intent of it being a commercial operation.

So, I hope anyone who agrees, disagrees or has no idea what it's all about will jump in. That's healthy and useful for all sides. And I really hope you can track down the info that you passionately believe is an important part of the discussion so we can use that to our mutual benefit in the process.

Brian

[This message has been edited by Brian Austin Whitney (edited 04-11-2006).]

Thanks, Brian. Just looking at it from the outside and with what data we have now, it seems to me that the best action would have been to force the issue at the local level before making a federal case out of it - literally. What I mean is, if Cindy had gone ahead with the concert and either had the police break it up or had been fined for having it, there would be a direct action by the township to litigate against.

I just re-read the complaint they filed, and in it they say that they cancelled the concert rather than risk the police action or fine. The trouble with that is -- it's hard to prove it would have happened. I imagine Cindy and her husband are probably people who've never been involved with the law and didn't want to actually commit an act that might be treated as illegal, even if it wasn't. I can certainly sympathize. It's just that the Township can come back and say, "Oh, we would never have done such a thing" and it's hard to prove they would have.

No matter what -- it's a tangled mess and I feel sorry for them. It's going to be a multi-year battle no matter what now, and that's a lot of stress and pressure and unhapppiness that I wouldn't wish on anybody.

- James

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You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

[This message has been edited by JamesM (edited 04-11-2006).]

Cindy has already responded and will send me the documents this weekend (she's out of town). I've asked her if I can post her email, which contains lots of information in it. If she says yes, I'll post it here.

- James

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You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

Emily, thanks for those links. Your friends explain the whole thing really well. It's a hobby...And OMG!!! They had Lowen & Navarro IN THEIR HOUSE!!....now that's freakin' coool...I've seen those guys and they are super top shelf...

Liszt,

Lowen and Navarro are JPF members and have a CD or two entered into the awards this year. They're really nice guys as well. We discussed having them involved as JPF mentors and I think they've spoken at one of our LA events.

Brian

Brian, that's cool. Butterfield had them in Indy about 4 years ago or so. He's had a lot of great people come through there, including his personal top three, but those guys I would have to rate as 1 or 2 with David Wilcox as the best. Butterfield put on some great shows...

I don't know that this is really a free speech issue. It seems to me more a matter of neighbor's being bothered by the noise. Neighbors will complain about everything. If you don't cut your grass once a week, a neighbor may complain; if your Christmas lights are too bright, a neighbor might complain; if your radio is up too loud, your neighbor might complain. When I was in college, I went to a lot of parties that had live bands. Every single time, ther police came on a complaint and shut the band down. It was almost common knowledge that if you wanted to see the band perform, you had to get there at the very beginning BEFORE the police came to close them down. Are private homes REALLY a good place for concerts?

Clowns don't entertain at 120 decibels.

[This message has been edited by rblight (edited 04-12-2006).]

They weren't sited for noise violations that I am aware of. They wanted the house concerts stopped. That has nothing to do with noise that I can see.

Brian

Maybe not musical noise, but whenever there is a party there is going to be other kinds of noise. Some people are VERY sensitive to noise. When I was a kid, we had a neighbor who could almost hear you breath when you were outside. he left his window open in the summertime and would always scream at us to shut up, even when we were talking very low.

There is also the perception that lots of parties mean rowdy neighbors, which mean lower property values. People prefer QUIET neighbors.

If you're having a house concert at near Stadium Arena volume levels, you've got a problem. I'd be willing to bet most house concerts are acoustic probably never get anywhere near 120 db.

Again, this all comes down to people not being respectful, nor knowing, their neighbors. If you make friends with them, there's no way they'd have a problem with this.

Jody

p.s. - I had a neighbor once come and get in my face about a cat. I sat and listened to him bitch and moan about how "my" cat was eating his cat's food and making trouble. I calmly listened to him rant and rant. Then I informed him, I don't own a cat so it couldn't possibly be my cat causing problems. Then I gave him a CD for his trouble. Now, that neighbor loves me because he knows I'm not causing his problem, and he loved the music. I could probably hold a block party and he wouldn't complain to me now, provided I informed him of what was going to happen. Show people respect, and they'll give you leeway.

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Music That Makes Your Soul Happy!
www.jodywhitesides.com

Brian - You can't seriously think that any Court is going to view a house "concert" as having a social rather than a commercial basis. You may want to try to spin the purpose to say you just want to entertain your friends, like at a birthday party, but the two are not at all analagous. The term "concert" is itself a giveaway, and the posts above admit that the purpose includes the promotion of the artist and the music. The argument is absurd. Nobody throws a birthday party to promote the clown. This lawsuit is a bad idea and a bad risk. If the Federal Court doesn't throw it out (and I still think there is a very good chance that will be the result - since this is neither a diversity action or a discrimination case) then the possibility that the municipality will be upheld will only foster the power and authority of other municipalities to bar similar commercial activities with commercial bases in the future.

I've been involved with only one house concert, one I co-hosted this past fall. The idea of providing a quiet setting for unamplified acoustic performance where the audience is up front and can hear a natural acoustic performance is the primary point (not money). Our house concert asked for donations which were given to the artist. The concert was advertised in the local newspaper and on several websites (including this one), but attendance was limited to 30. Neighbors were invited. Perhaps our event was sufficiently different than those being discussed in the lawsuit, but it is difficult to imagine my town government taking a stand against such quiet and benevolent events.

Stu -- what is the "giveaway" with the word "concert"? To me concert simply means musical performance and does not in itself imply commerce. I'll grant that birthday parties may be a poor parallel, but what about garage sales that are advertised?

Gypsy-
"concert" is defined in the dictionary and in law as a public performance. This is different than a private party. By implication, it means that there is some other reason for holding the event, such as the promotion of the artist, the sale of CDs, etc. Nobody is advertising these house concerts as being "free" concerts, or limited to "only my friends may show up." This is a public assemblage with an underlying commercial purpose held in a residential venue which is not intended or designed for that function.
My grandmother, (who is alleged to have been the first woman to appear as a guest soloist with the Chicago Symphony) was famous for her music parties which were referred to as "musicales." She often had as many as 15 people in her apartment (it was a large apartment) listening to Vladamir Horowitz, Geta Gradoba, and other renouned artists of their day - but she didn't pay the artists (who were her friends) and she didn't charge admission, and she didn't do it 8 times a year because she was smart enough to know that more than once a year would annoy her neighbors (most of whom were not invited).
Although it might seem at first that a garage sale would be a somewhat better analogy, than a birthday party, that doesn't really work either. Certainly there's an expectation that money will change hands, and certainly a garage sale has an underlying commercial purpose, but its not the same thing as a house concert.
I should preface this by saying that I agree with the other posts about garage sales in general. Nothing annoys me more than waking up early on a Sunady morning to the sound of slamming car doors in my neighborhood when I got home from a gig at 3AM. Some municipalities now require permits for garage sales, and I understand that there are some jurisdictions where they are cracking down on sales taxes, etc. Frankly, I think garage sales can be more annoying in the neighborhood than house concerts (my former next door neighbor used to have a $#*&%@$!# garage sale every other week). Nevertheless, you can't go to Court and argue that permits should be granted for house concerts just because people are allowed to have garage sales.
Again, this would be like comparing apples and oranges as you would be comparing two entirely different types of events, with different legal issues and concerns. I don't think the Fire Codes, Zoning Laws or handicap access concerns apply to garage sales, and although it's possible, I've never heard of an insurance company disclaiming coverage because the injured individual was attending a garage sale.
I think we should call a house concert what it is... a concert... and not try to find ways to rationalize it and make it out to be some other sort of event- and that is exactly the response I would expect to get from a Court.
I also agree with you that I see no reason to invite the government to impose new and additional regulation where none is needed if people can regulate themselves (as you obviously did with manner in which you conducted your one time house concert). Unfortunatley, additional regulation is exactly the potential result of the present lawsuit. You may rest assured that if the Federal Court determines the current laws of the particular municipality do not require a permit or do not prohibit house concert acitivity, the first thing the municipality will do after the lawsuit will be to enact new enforceable legislation to prevent house concerts altogether.
Bad lawsuit - bad.

[This message has been edited by Stu (edited 04-12-2006).]

[This message has been edited by Stu (edited 04-12-2006).]

Stu,

As someone who has held a house concert, I can assure you there was zero commercial intent or result. Just because you want to think there was is reason enough to go to court and prove your concept is completely wrong. It's clear you simply don't understand the real nature of it. Could someone abuse it? Sure. So could someone abuse ANY gathering of ANY nature.

You keep going back to "commercial" factors, but I haven't heard you suggest that Garage Sales and Tupperware Parties and Political meetings or even songwriter organization meetings would ALSO have to be banned for exactly the same reasons. And it that slippery slope follows, so will everything else be banned. Are you really for any gathering of any kind being banned where any money changes any hands for any reason? It is my view that would HAVE to happen to justify banning house concerts.

I also think that anyone having something like a wedding reception would quickly fall into the same line. If they hire a caterer and a band to play and they receive gifts (which is a similar "expected voluntary donation" at a wedding reception) I can't see how the law could claim a difference.

The fact that a smart and upfront lawyer like yourself can make this incorrect assessment is the exact reason it needs to go to court. If a reasonable lawyer can mess it up, then those with even your perspective will likely do even worse. That's why it needs major support and defining. I am happy to let people put safeguards of abuse into the system (i.e. no signs outside or no newspaper ads or specific noise ordinances) but whatever those are, all "other" events must also meet those same restrictions. A planned Pampered Chef meeting is far more commercially intended than a house concert. The host actually PROFITS from that. Same with Tupperware. The Boy and Girls scouts are a more similar thing. All have to pay to be members to support the ability to have the gatherings. The voluntary donation (which in our case, 5 of 29 attendees did not pay nor were they confronted for not paying) is not different than any org. that might have any type of donation let alone member fee to make the entire thing possible.

If house concerts are banned, then I feel VERY strongly that all garagage sales, all meetings for any type of sales (Amyway, Tupperware, Ebay (those are very common now), Pampered Chef, those baskets they sell (can't think of their name.. but my sister in law has a monthly sales meeting for those damn overpriced wicker baskets), and if anyone hires a band or anyone else to perform any entertainment, then that should ALSO be banned. So should any event where a suggested donation is asked for to pay for food, entertainment, the party game that is used and so on. It's the same thing. Kids parties often advertise their parties via all sorts of methods (text messaging is very common). Those are certainly FAR more dangerous on every level. Those would have to be legally banned as well. If all these things were not banned, it WOULD be an attack on freedom of speech and freedom to asemble. It would be separating 1 group out for not reason other than it's a music concert to entertain people.

The more admanant you are Stu, the more it means we need to fight it.

Brian

Actually, from some correspondance I've had with Cindy Harris, I'm beginning to think that this *should* be addressed legally in some way.

Apparently a prayer meeting in the same community eventually re-located in order to avoid the same kind of struggle that Cindy's going through. This is more about the ability to have a group of people at your house, for whatever reason, than the nature of the activity that takes place in the house.

Cindy's lawyer and the Township's lawyer sat down to discuss the issue. Cindy pointed out that there had been no advertising and no promotion since the initial incident. The lawyer apparently shifted position at that point and said that it was not because it was a commercial activity (since all the components complained about had been removed), but because it was a "non-residential" activity and the Zoning Ordinance did not specifically state it as one of the approved uses of land in an R-2 zone. He's relying on the statement in the Zoning Ordinance that says no use is allowed that is not specifically stated. Well, as Brian's saying, that leaves out birthday parties, prayer meetings, tupperware parties, bar mitzvahs... in fact, gatherings of any kind, commercial or not.

When the Township's lawyer was pressed for a definition of what constituted a residential gathering vs. a non-residential gathering, he was unwilling to give specifics.

It sounds like Cindy has made a genuine effort to comply with whatever terms they wanted to set down - frequency, size of gathering, method of invitation, duration of event - but they simply want to ban the gathering, not to impose reasonable restrictions that would take into account the needs of neighbors.

I still think the Federal courts seems like an odd way to go - personally, I'd try a lower-level option first - County or State - but then I'm not a lawyer. It just seems that the next level of government up is the one to start with, rather than jumping to the Federal level. But, in any case, I think it's something worth pursuing.

A gathering is not something that should be totally banned by zoning, in my opinion. I can see placing restrictions, but not a total ban. At that point, it does infringe on the right to freedom of assembly, I think.

- James

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You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

Thanks James. Very important and pertinent information. As I suspected from the start, it's simply an attempt to stop people from gathering. The "house concert" issues were simply a smoke screen for a much broader attempt to ban people from using their homes in the way they choose, even with reasonable and fair and documented restrictions being followed exactly.

I think doing it as a federal case will free up all people to do what they want in their homes as long as they obey specifically stated limitations. That allows ALL events at a home to have to follow the same guidelines which is fair and reasonable. That would include things like Birthday Parties and Superbowl Parties and Church Meetings and House Concerts all on the same fair playing field. It's offensive to suggest a family with 10 kids having a near monthly birthday party is somehow less disruptive that a house concert. Too many cars are too many cars. Noise is noise. Entertainment is entertainment. People need to realize that their preferred method of using their homes for public gatherings are no more valid than someone elses and should all be treated the same. If a ban is needed, then ALL events must be equally banned. That's only fair and just.

Brian

Brian

Brian - you're not reading what I'm saying, so let me address your points in detail:

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"As someone who has held a house concert, I can assure you there was zero commercial intent or result"
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You may not have had a "commercial Intent" but no Court will allow you to deny the "result" or the implied "intent." The issue is not what you wanted to do with your one particular event, the issue is whether these "types of events" will be regulated.


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"Just because you want to think there was is reason enough to go to court and prove your concept is completely wrong. It's clear you simply don't understand the real nature of it."
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It's not my concept. I have played at two house concerts. I know what is involved. I was playing to get heard and promote my music, even though I did not get paid. No Court is going to say there wasn't a commercial purpose involved. I wasn't just a pickin' party.


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" Could someone abuse it? Sure. So could someone abuse ANY gathering of ANY nature.

You keep going back to "commercial" factors, but I haven't heard you suggest that Garage Sales and Tupperware Parties and Political meetings or even songwriter organization meetings would ALSO have to be banned for exactly the same reasons."
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Lets leave out Political meetings since they are a constitutionallly protected exception, but as to the other events, this is exactly the type of danger I have been talking about - if you start getting a Federal Court involved in nitpicking zoning laws, you run the risk that bad law will be made which will encourage disgruntled neighbors to use the judge's decision to try to ban other types of home events.

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"And it that slippery slope follows, so will everything else be banned. Are you really for any gathering of any kind being banned where any money changes any hands for any reason? It is my view that would HAVE to happen to justify banning house concerts."
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I'n not for banning anything unless it wakes me up on a Sunday morning. I have been trying to point out to you, if you would read what I said, that this lawsuit could have far reaching results which are clearly not being contemplated by those who seem to think its a good idea to pursue it. HOWEVER, you are wrong if you think that the Court HAS to order other events to be banned in order to ban house concerts. The Court can give a very narrow interpretation. Unfortunately, the Court can also issue precatory language which can be used by the municipality to indulge in further regulation. It's exactly your kind of logic, as expressed above, (that if you ban one thing you have to ban everything else), that would permit people to ban other events based on the results of a case concerning the regulation of house concerts. There is no need to risk making bad law.


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"I also think that anyone having something like a wedding reception would quickly fall into the same line. If they hire a caterer and a band to play and they receive gifts (which is a similar "expected voluntary donation" at a wedding reception) I can't see how the law could claim a difference."
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I tried to explain this above. No Court is going to say that the purpose of the wedding was to promote the band or the purpose of the birthday party was to promote the clown. Nor is any Court going to say that a wedding gift or a birthday present is the same thing as monetary compensation. You're taking this concept to the realm of an absurdity, beyond the realm of where any Court would go with it.
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"The fact that a smart and upfront lawyer like yourself can make this incorrect assessment is the exact reason it needs to go to court. If a reasonable lawyer can mess it up, then those with even your perspective will likely do even worse. That's why it needs major support and defining."
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Thanks for the backhanded compliment, but if you go back and read what I said, you will find that I haven't got it wrong. I'm just telling you how its likely to backfire. That's all.



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"I am happy to let people put safeguards of abuse into the system (i.e. no signs outside or no newspaper ads or specific noise ordinances) but whatever those are, all "other" events must also meet those same restrictions."
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A bsis of municipal law is that the law which is enacted must be enforceable. The Court will not require the municipality to put in place any scheme that can't be effectively regulated. Don't look for the Court or the municipality to start enacting detailed laws about what signs can be posted, and when and how may people can attend and how many times you can have the event or when you can advertise. They're more likely just to use the fact that the municipality does not have the resources to monitor the events as another reason to impose a ban.
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"A planned Pampered Chef meeting is far more commercially intended than a house concert. The host actually PROFITS from that. Same with Tupperware. The Boy and Girls scouts are a more similar thing. All have to pay to be members to support the ability to have the gatherings."
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Again, you're comparing apples and oranges. There aren't degrees of commercial intent. It's either an event with a commercial basis, or its not.
I don't pretend to understand your analogy to the Boy Scouts having to pay to be members of an organization. That's a membership in a recognized not-for-profit organization, and by law has nothing to do with commercial intentions - you're really stretching with that one.


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"The voluntary donation (which in our case, 5 of 29 attendees did not pay nor were they confronted for not paying) is not different than any org. that might have any type of donation let alone member fee to make the entire thing possible."
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You're a little closer with this argument, but it doesn't matter if people actually pay or not. If you hold a guitar sale in your living room, and invite the public, it does not matter whether anybody who shows up actually buys anything. The Court will still say it was an event with an underlying commercial purpose. If you're a church group, you're exempt. If your a legally constituted not-for-profit there are also certain exemptions that apply. The reason your logic fails is that the people who show up to the house concert are not donating to the organization. They're paying the artist, or the host, or sometimes both.

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"The more admanant you are Stu, the more it means we need to fight it."
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That's OK, Brian, Attorneys get used to giving people good analysis and advice upon which they are supposed to make an informed decision, and instead having them go off on an emotionally driven tangent only to come back later and ask us how to fix their mistakes.

I assume you will keep us all posted on the progress of the action.

[This message has been edited by Stu (edited 04-12-2006).]

Wow. what a post. After spending alot of time reading this I have some comments, however, I do lack any legal skills on the issue. I do think Stu is offering some good advice and he has those skills. I would be willing to bet it is thrown out of Federal Court like he says. All over this country we have organized neighborhoods, with deed restrictions, city councils, boards for this and that, micro managing our lives and where and how we live. Some violate our rights and some don't. Most were started for a good reason and then went crazy overboard with their restrictions. All have made good points here. Rather than go to federal court, why not change the political makeup of this township. Would it equal the time and money spent on a court battle. I don't know. I do know that everyday you read about something like this in the media and find it is usually settled by reasonable people or not. The people holding the power, i.e. the township here usually win in court as they are documented and have followed the political process. Media coverage is free. Bring the press into this if you can. Put pressure on the board. In our area a soldiers wife was ordered to take down her salute the troops sign by a neighborhood association as it violated their deed restrictions. She refused, the press got involved, the association offered to let her make the display at their clubhouse, she again refused. Point is they tried to accomadate her because of the press.
Believe me I'm not siding with this township over this issue and I agree garage sales, scouts, tupperware and all that has been compared to this are valid points. I still agree with Stu that it will be dropped in Federal court because they the township have dotted the i's and crossed the t's and in this legal world the best of causes do not automatically qualify for relief from our elected and/or appointed local rules and regulations. I say fight them locally on the homefront. My two non-qualified cents.
Dan

Stu,
Thanks for the post! I learned a lot.

I have a question for you out of what I read. What constitutes intent to promote? If you don't mind, I'll lay out three scenarios and ask you to tell me if they are all promotional or if at some point we cross the line.

1) Scenario 1 - performer plays, no donation taken, but CD's available for sale.

2) Scenario 2 - performer plays, no donation taken, no CD sales, but cards passed out in case anyone wants to contact the artist outside of the event.

3) Scenario 3 - performer plays, no donation taken, no CD sales, no promotional materials of any kind (cards, flyers, CD's).

I'm learning a lot from your posts and I'm trying to understand where it crosses from enjoying music into a promotional event. I can tell that there's some line there that's different when you speak than when Brian speaks. I'm just trying to find it.

I may be completely missing it with all three scenarios, so if it's easier just to spell it out, please feel free to do so.

Thanks for all the information. I really appreciate it.

- James

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You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

Hi, all. James touched base with me a day or two ago to say that you all were out here discussing our exciting relationship with our neighbors and the Township with respect to house concerts. I've now had time to read through the entire discussion, and I'm impressed with the incredibly high level of the analysis: there are some excellent points made on both sides. But there is some speculation about facts that is taking some commentators in a direction that is probably not warranted, so let me see if I can add those facts and clarify the discussion a bit.

1. The O'Hara Township Zoning Ordinance specifically prohibits any activities that are not specifically permitted. House concerts, political gatherings, parties of any kind, prayer meetings, Superbowl parties where people chip in for pizza and beer, piano recitals....the list goes on and on of things that seem like they ought to be allowed without question but are not mentioned in the "permitted activites" list in Article V.

2. House concerts are not like Tupperware parties. Those clearly fall under the "no impact/low impact home based business" permitted activity in our Township's ordinance. We are hosting parties, period. Our "excuse" for hosting a party is that we have some amazing musical friends who we love to have visit, and when they come we want to share them with our local friends. In all the concerts we've hosted since 1998, there have been only three occasions when we hosted someone that we had not personally met, and in all of those cases but one, the performer was a friend of a friend. Not all house concert hosts can say that the performers are friends, but we can: I'm a musician myself and get to hang out and play with a whole lot of really talented people some of whom just happen to be pretty well known in some circles.

3. All of the guests at our concerts are specifically invited via e-mail from us and occasionallly by a postcard from the performer. None are complete strangers in any reasonable sense of the word. The Zoning Hearing Board agreed at the time of the appeal hearing three years ago that use of e-mail for invitations in just the way that we were doing then and have continued since was acceptable.

4. There have been no noise complaints. The issue was raised at the appeal hearing and all of the neighbors who were there agreed that there had never been a noise problem.

5. There have also been no complaints about unruly behavior, property damage, trespassing, or illegal parking. Our street has plenty of space for parking, and it is a rare weekend that someone in the neighborhood does not have 10 or 12 cars parked in the street. We all have driveways and there has never been a complaint about a blocked driveway or hydrant. No citations have been issued for illegal parking since we started hosting these parties in 1998.

5. We did not file this complaint at the drop of a hat. On the contrary, we are reluctant litigators and only did so after it became clear that the Township was not willing to negotiate and that they would not help us bring the complaining neighbor to the table. To this day only one neighbor has ever spoken directly to me about his/her concerns, and that was after the hearing when he offered to mediate between us and the complaining neighbor. We accepted his help, but it came to naught: the complaining neighbor was not willing to talk face to face. The first inkling we ever had that there was a problem was the C&D from the Township three years ago.

6. A civil rights complaint like this can be filed either in State or Federal court. We chose Federal court because my lawyer believed that we stood a better chance of working with a judge who had the experience and expertise to deal with the issues raised if we filed in Federal rather than State court.

7. We filed this complaint not because we give a whit whether we ever host another concert, but because we believe that the Township is using a faulty zoning ordinance to intimidate us and others who we are aware have fallen prey to similar attention from the Township into giving up our rights to freedom of assembly and due process and even free speech without a fight. I understand why others have given in: these disputes can be time-consuming and costly. But when we allow local municipalities to intimidate us, it starts us ALL on the slippery slope down into the despotism that arises when those in power believe that they can interpret and enforce the law to suit their will rather than enforcing it as it was intended under the umbrella of the US Constitution. If our local authorities can get away with this seemingly small thing, how much easier is it for those at the state and federal levels to do it in much bigger ways? Sometimes you just have to take a stand.

Thanks again for all the thoughtful discussion and for the support. I'm trying to regularly update the blog at http://livingroommusic.blogspot.com until I have posted the entire story in detail to date and after that I'll be pointing to other related activity around the web.

Cindy

-----------------------------------------
By James:
1) Scenario 1 - performer plays, no donation taken, but CD's available for sale.
2) Scenario 2 - performer plays, no donation taken, no CD sales, but cards passed out in case anyone wants to contact the artist outside of the event.
3) Scenario 3 - performer plays, no donation taken, no CD sales, no promotional materials of any kind (cards, flyers, CD's).
-------------------------------------------
James-
each scenario would be treated differently, and I can't give you a boilerplate pre-determination on how any of them would be considered, however, the first two certainly seem like some promotion is going on. The third would depend on why you were doing it. Was the purpose to be heard, to get attention, to audition, or to serenade your girlfriend? It may also turn on where it was happening, and what was used to promote the event.
Where Brian and I seem to reach an impasse is that some people think you can call an event a concert, collect money to pay a performer, invite the general public, and then claim there is no commercial purpose. That dog won't hunt.

Cindy's post is most interesting, because she says she's doing parties, and NOT inviting the public at large. She does not say whether there is an intention for money to be collected at her parties, or whether this is more of a musicale type event(and maybe she can't or sholuldn't say here, due to the status of the litigation) but I also think that would make a difference to the Court. What is collected, how much, and what is done with it will all be factors to be weighed. Other than that, she certainly seems to be dealing with a draconian statute.

Thanks Cindy. I suspected this had nothing to do with noise problems or your guests disrupting the neighborhood.

I am curious about your comment concerning the fact that on any given day there are houses with 10-12 cars parked in front? What is going on in those houses? And whatever it is, why would it escape the same scrutiny your house concert gets? To me (though Stu disagrees vehemently) the only issue is the actual real impact on the neighborhood caused by the event, regardless of what the event is. I think if you start splitting hairs about the difference between having 20 people over for 1 thing or 20 people over for something else, that the only fair thing to do would be to either permit it all or ban it all. So what is it that others are doing to bring people to their homes and extra cars on the street that is allowed when your house concert isn't allowed? Or is it simply a case that no one complained about their events?

Thanks for sharing. We recently started a Just Plain Folks Community Advocacy Network to get involved in this type of issue. As you can see, we invite and welcome different opinions and it seems with your clarifications, we'll be able to narrow focus down even more to your specific case versus the more general discussion that has taken place up until now.

Please feel free to continue to post and update us. I know folks can check the site, but people are far more motivated to get involved if the people involved show up here in person.

Thanks again and I hope your case moves forward with success.

Brian

-------------------------------------------
"As someone who has held a house concert, I can assure you there was zero commercial intent or result"
-----------------
You may not have had a "commercial Intent" but no Court will allow you to deny the "result" or the implied "intent." The issue is not what you wanted to do with your one particular event, the issue is whether these "types of events" will be regulated.

Brian's Response to Stu:

Stu, I think the problem is that you've already decided that a party with a musical artist IS a commercial event. You seem to think it's different than hiring a band or artist for ANY event. Ask yourself when you've played music at any other type of event or party if you didn't also hope (as the artist) to make a good impression and perhaps receive more attention, more fans or future bookings etc.. as a result? There is no difference in an artist performing at a house concert and an artist performing at ANY other event. It's the same thing. If you're an artist and you're performing, you ALWAYS have commercial intent by default. Same if you're a clown. Do you really think a clown at a birthday party isn't hoping that other kids hire him for their party as well? To make a distinction based on that criteria is flawed from the start.


-----------------------------------------
"Just because you want to think there was is reason enough to go to court and prove your concept is completely wrong. It's clear you simply don't understand the real nature of it."
---------------------
It's not my concept. I have played at two house concerts. I know what is involved. I was playing to get heard and promote my music, even though I did not get paid. No Court is going to say there wasn't a commercial purpose involved. I wasn't just a pickin' party.

Brian's response to Stu:

It IS your concept to say that a house concert is a commercial event. It's a party. Plain and simple. Unless all parties of all types are commercial events, it doesn't deserve to be lumped into a different category from any event or party where there is a performer. It certainly doesn't raise to the commercial level of a Tupperware party where it really DOES solely exist to sell a product and make a profit for those hosting. Ironically, according to Cindy above, those events are allowed in her neighborhood which just indicates how far off the path those opposing her have gone. It's a ridiculous double standard I believe based more on ignorance or misinterpretation than any possible argument.


--------------------------------------------
" Could someone abuse it? Sure. So could someone abuse ANY gathering of ANY nature.

You keep going back to "commercial" factors, but I haven't heard you suggest that Garage Sales and Tupperware Parties and Political meetings or even songwriter organization meetings would ALSO have to be banned for exactly the same reasons."

Brian's response to Stu:

Actually I HAVE suggested that over and over and over. I feel that if House Concerts need to be banned, then ALL other gatherings with any commercial component of any kind (i.e. any case where money changes hands for any reason or someone gets "value" from the event) would also need to be banned. I say all or none. The reason for that is that it will make people realize how absurd their stance against House Concerts are and if all other events are banned, then everyone will fight back and change the law and or the inappropriate enforcement.
-----------------------

Lets leave out Political meetings since they are a constitutionallly protected exception, but as to the other events, this is exactly the type of danger I have been talking about - if you start getting a Federal Court involved in nitpicking zoning laws, you run the risk that bad law will be made which will encourage disgruntled neighbors to use the judge's decision to try to ban other types of home events.

Brian's response to Stu:

That's already what is happening to Cindy. A bad law (or a flawed interpretation of a good law) is being used against her by a disgruntled neighbor. That's why we need to fight it once and for all to keep it from happening. That cat is already out of the bag. Next will be all the other events taking place in her neighborhood that they haven't yet shut down.

------------------------------------------


"And it that slippery slope follows, so will everything else be banned. Are you really for any gathering of any kind being banned where any money changes any hands for any reason? It is my view that would HAVE to happen to justify banning house concerts."
-----------------
I'n not for banning anything unless it wakes me up on a Sunday morning. I have been trying to point out to you, if you would read what I said, that this lawsuit could have far reaching results which are clearly not being contemplated by those who seem to think its a good idea to pursue it. HOWEVER, you are wrong if you think that the Court HAS to order other events to be banned in order to ban house concerts. The Court can give a very narrow interpretation. Unfortunately, the Court can also issue precatory language which can be used by the municipality to indulge in further regulation. It's exactly your kind of logic, as expressed above, (that if you ban one thing you have to ban everything else), that would permit people to ban other events based on the results of a case concerning the regulation of house concerts. There is no need to risk making bad law.

Brian's response to Stu:

On this we agree. It could have far reaching positive or negative effects. If the effect is to ban all activities/events, then I am confident that it will be overturned or amended. My larger fear is to do nothing means we let various groups and individuals suffer under discrimination and selective prosecution and that process keeps expanding and expanding to include a lot of really bad things. They already ARE banning things in her neighborhood. Soon it will be all things. Soon if someone complains about ANYTHING with reason or not, the government will swoop in and shut it down. Free speech? Not if your neighbor doesn't like what you have to say. Freedom to assemble? So long. As for risking bad law.. there are plenty of bad laws already on the books. Every time a law is made, there's a chance it will go horribly wrong. Apparently, the law that exists now is already bad law if it allows 1 complaining neighbor to shut down a party where an artist is performing to entertain the guests but which violates no noise, parking, vandalism or other guidelines. That's what happened here. We can't let 1 jerk reign terror over the entire community if the law doesn't support him. If the law DOES support him, it's already bad law that needs to be changed.


------------------------------------------
"I also think that anyone having something like a wedding reception would quickly fall into the same line. If they hire a caterer and a band to play and they receive gifts (which is a similar "expected voluntary donation" at a wedding reception) I can't see how the law could claim a difference."
------------------
I tried to explain this above. No Court is going to say that the purpose of the wedding was to promote the band or the purpose of the birthday party was to promote the clown. Nor is any Court going to say that a wedding gift or a birthday present is the same thing as monetary compensation. You're taking this concept to the realm of an absurdity, beyond the realm of where any Court would go with it.
-------------------------------------------

Brian's response to Stu:

No Court if they agree with your definition Stu. You assume that you have the sole and only correct view of what is this and what isn't that. I suggest that if all measurable factors are the same, it's the same. If it produces the same number of cars. If money changes hands. If the event is intended to promote the well being of the host in the eyes of the attendees (which is what a house concert is) how is it different than a well planned birthday party or a wedding receptions that does the exact same thing? I am not willing to concede your definition here. To me, claiming a house concert is to be treated differently from other events with the same impact on the community (and frankly in the case above, far more negative potential impact) is as offensive as if someone suggested one race be treated different than another race. It's not acceptable. I can't understand why you feel the way you do, but I vehemently disagree.


"The fact that a smart and upfront lawyer like yourself can make this incorrect assessment is the exact reason it needs to go to court. If a reasonable lawyer can mess it up, then those with even your perspective will likely do even worse. That's why it needs major support and defining."
----------------
Thanks for the backhanded compliment, but if you go back and read what I said, you will find that I haven't got it wrong. I'm just telling you how its likely to backfire. That's all.

Brian's response to Stu:

I think I have regularly complimented your input so it's hardly backhanded. It's right up front. I'd trust you with my legal work. But, I also accept that we can disagree on an issue. You can tell me where the law falls on a topic.. and I can tell you where the moral right or wrong is with the situation from my viewpoint and challenge you as the attorney to figure out how to argue the case so that the law is changed or interpreted correctly. If this was my house concert being attacked, I think you'd be capable of assisting in defending it. Or is that not correct? Do you refuse cases that you don't agree with the client on? If so, good for you. I haven't met many attorney who take that approach. To me, morally, a party is a party. A private home is a private home and everyone should be able to do any legal activity they want if they don't negatively impact their neighbors. And if it's determined that what happens around a house concert negatively impacts neighbors and can be banned, all I am asking is that any other event with the same impact should equally be banned. Fair is fair. Equal treatment for equal impact. Religion should not get special treatment. Politics should not get special treatment (even though I acknowledge there are special protections for political speech) and charities, private hobbies or cultural exchanges should all have the same reasonable guidelines and restrictions. How can it be any more fair? That's what I want and that's what I think private citizens deserve. If the law disagrees, it's time to change the law. If the law is being misinterpreted.. then it must be fought.

---------------------------------------------

"I am happy to let people put safeguards of abuse into the system (i.e. no signs outside or no newspaper ads or specific noise ordinances) but whatever those are, all "other" events must also meet those same restrictions."
---------------------
A bsis of municipal law is that the law which is enacted must be enforceable. The Court will not require the municipality to put in place any scheme that can't be effectively regulated. Don't look for the Court or the municipality to start enacting detailed laws about what signs can be posted, and when and how may people can attend and how many times you can have the event or when you can advertise. They're more likely just to use the fact that the municipality does not have the resources to monitor the events as another reason to impose a ban.

Brian's response to Stu:

So how can a law be selectively enforced then? If it isn't spelled out, then it is ripe for corruption, bias, prejudice and abuse. I doubt most people will tolerate a complete ban and therefore the people (who elect those who make the laws) can change it. At least everyone will be getting equal treatment.
-------------------------------------------


"A planned Pampered Chef meeting is far more commercially intended than a house concert. The host actually PROFITS from that. Same with Tupperware. The Boy and Girls scouts are a more similar thing. All have to pay to be members to support the ability to have the gatherings."
----------------------
Again, you're comparing apples and oranges. There aren't degrees of commercial intent. It's either an event with a commercial basis, or its not.
I don't pretend to understand your analogy to the Boy Scouts having to pay to be members of an organization. That's a membership in a recognized not-for-profit organization, and by law has nothing to do with commercial intentions - you're really stretching with that one.

Brian's response to Stu:

I disagree. If you are going to "define" a house concert as a commercial event, I am going to argue all the other events that meet the minimum criteria to qualify for that definition and point our where some events significantly exceed that criteria. In that respect, there are levels. If an event must be quieter than 10 db and a house concert is 10db but a wedding reception is 120db.. I think that is worthy of pointing out when making the case that it should fall under the exact same restrictions and if it doesn't,. then it's not fair to ban the house concert based on that criteria. You've given "Commercial Event" as the measurement worthy of banning a house concert. I suggest that there are other events widely allowed that have more commercial activity and thus have to be treated at least the same as a house concert. Ban one, ban all. Allow one.. allow all. It's not complicated.
-------------------------------------------
"The voluntary donation (which in our case, 5 of 29 attendees did not pay nor were they confronted for not paying) is not different than any org. that might have any type of donation let alone member fee to make the entire thing possible."
---------------------
You're a little closer with this argument, but it doesn't matter if people actually pay or not. If you hold a guitar sale in your living room, and invite the public, it does not matter whether anybody who shows up actually buys anything. The Court will still say it was an event with an underlying commercial purpose. If you're a church group, you're exempt. If your a legally constituted not-for-profit there are also certain exemptions that apply. The reason your logic fails is that the people who show up to the house concert are not donating to the organization. They're paying the artist, or the host, or sometimes both.

Brian's response to Stu:

And when a clown performs for a kids birthday, someone is paying him too. A house concert is a party. If I hire Grammy nominated Zak Morgan to come and do a special house concert for the kids on Halloween in the neighborhood (which we are actually planning to do by the way) it's exactly the same thing as if I hired a clown or a ghost or a DJ for that matter to perform for those kids. There is zero difference. I call it a house concert.. others call it a children's party. Substitute the kids for adults and it's ALSO the same thing. To me, all this hoopla seems to be about using the term "house concert" instead of kids party or cocktail party or backyard Bar-Be-Que. It's all the same thing. Nearly every pot luck or pitch in dinner asks for voluntary donations. Same thing. Even superbowl parties often have a jar to pay the costs of the party food. Same thing. Why discriminate only against a house concert?

-------------------------------------------


"The more adamant you are Stu, the more it means we need to fight it."
------------------
That's OK, Brian, Attorneys get used to giving people good analysis and advice upon which they are supposed to make an informed decision, and instead having them go off on an emotionally driven tangent only to come back later and ask us how to fix their mistakes.

I assume you will keep us all posted on the progress of the action.

Brian's response to Stu:

Stu, if that claim that Attorney's are used to giving people analysis are you suggesting that Attorney's always agree? Is it possible you're wrong on this one? Aren't attorney's generally on the losing side 50% of the time? Do all of them agree, but still choose to go to court on opposite sides knowing upfront they are on the losing side? I think you have a flawed interpretation. I think a house concert deserves no better or worse treatment than any gathering with a similar number of people and a similar impact on the neighborhood. I think when you pick and choose the content of the event to discriminate, then you've crossed a line that either misinterprets a good law or correctly follows a flawed law. The law and lawyers can and are often incorrect. Even when correct, they are often overturned and reinterpreted. So though I respectfully disagree, I think there's still got to be common ground where we're on the same side. Perhaps in the end, you're interpretation will hold up. I think that will be a sad day because today it's a house concert.. tomorrow it's something else that shouldn't be banned. People still burn books and CD's in public at various times. It doesn't make them right. It just means that someone is letting them get away with it.

Brian

From Brian:


I think where the difference lies, Brian, is that at a house concert, you are not hiring the performers. The audience is donating money for the performance. This is, in my mind, a very distinct difference.

If you were to hire the musicians yourself, throw a party to entertain friends and not ask for donations, then you'd have an apples-to-apples comparison. A house concert clearly is set up so that the performer is compensated by the attendees, not the host.

I'm not saying that house concerts should be banned because of that difference, but I do see a difference.

- James

------------------
You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

James,

If it all really breaks down to as simple as you paying an artist directly, or accepting donations to pay for the artist, then I have to go back and ask what impact difference that makes to the disgruntled neighbor? The answer is ZERO. Therefore, there needs to be a law to protect the house concert. Splitting that hair does not add or subtract in any way from problems or annoyances in the neighborhood. It would also prevent any other event that asks for donations from taking place in a home. If that's really the bottom line, then simply put it in the law. You can't collect donations in context with any event held in a home. Put it in writing and let it stand on it's merit as a law.

Or.. how about this as a compromise. Instead of calling it a House Concert.. let's call it a tupperware party and let's hire a artist to perform for entertainment at the tupperware party. And let's charge everyone 10 dollars for a serving spoon to go with their tupperware purchases? Would that suddenly make it all right?

Remember.. you're establishing that the only real factor that is offensive and should be stopped is having multiple people voluntarily donate the money that pays the artist. So, selling something is okay (i.e. garage sales, girl scout cookies, tupperware). So simply sell some tupperware and pay the artist as entertainment. Everyone should be happy right? None of the other factors would matter.

Brian

[This message has been edited by Brian Austin Whitney (edited 04-12-2006).]

That's the essence: whatever is going on at the neighbors' houses, no one has complained about it. Take a look at the complaint we filed and you'll see some of it relates to the fact that the Township seems to be choosing to enforce the ordinance selectively. Events with similar impact (cars parked in the street) happen all the time and the homeowners receive no C&D from the Township. Several other counts allege that the ordinance is simply unconstitutional as written. Both are serious issues, but if the Township had not chosen a selective enforcement strategy no one would be complaining about the validity of the ordinance itself.

Also Stu wrote:



I fail to see that it matters where the money to pay the performer comes from. I invite the performer to come and promise to pay. Sure, it's an oral contract, but it's a contract nevertheless. Assuming that my guests are well behaved, if I host a Superbowl party, hire a caterer (or get a keg) and ask my guests to chip in to pay for the food or beer can you think of any reason why the Township would have a legitimate interest in ordering me to stop? I certainly can't think of any reason, and it's hard for me to see why chipping in for music should be prohibited when chipping in for pizza and beer is not. We do not serve any alcohol at our parties, so it seems to me that the potential for negative impact on the community is far smaller than for my neighbor's Superbowl party. The Township either has to prohibit all parties or permit them all assuming that those parties are not clearly disturbing the neighborhood in a way that is outside of the norm. Cars parked legally along the street between the hours of 4 and 10pm on a Saturday or Sunday or even from 7 until 10 on a midweek night should not be a problem of this type.

Someone else also mentioned that "frequent" parties might be disturbing to the neighborhood. I agree, and so during the appeal hearing three years ago we asked the Zoning Hearing Board to specify a number of parties that they thought appropriate and volunteered to abide by that number as long as the Township would be willing to enforce that same limits on all citizens. They declined to specify a number. I don't blame them: specifying a number means that the family with seven children might be prohibited from hosting birthday parties for all of them each year. Another neighbor might have to curtail his/her participation in biweekly duplicate bridge game that meets at his/her house once a month. I might have to be very careful about whether to invite my a capella ensemble to rehearse at my house more than once or twice a year and if I started supporting political candidates by hosting fundraisers I might really be in trouble. Imagine the exceptions you'd have to write into the ordinance to enforce a limit like this! Would it be "six gatherings of more than five people for the same purpose per household per calendar year" or "six gatherings of more than five people for any purpose per houshold per calendar year"? Maybe we'd have to specifically exempt political gatherings. Whoops, how about prayer meetings? Would people be required to register any gathering of more than five people at their home?

This all starts to sound pretty silly when you extrapolate it to its logical conclusion, doesn't it? Any fix turns out to be something that it's pretty clear the "average person" will not be willing to abide. Not to mention that such limitations on gatherings are almost certainly unconstitutional.

Cindy

Cindy,

I agree. = )

When you speak to others (Russ and Julie or anyone else who is contacting you with an interest in all of this) please directly them to give their two cents here on our board on this post. We have over 40,000 members, most of which are in the US. We're been looking for a cause to launch our JPF Political Advocacy Network and this might be it. But it would be helpful to get to know other passionate supporters (and detractors.. I welcome opposing views because it helps me understand what they're thinking and where the miscommunication is taking place).

Thanks again for chiming in with the direct facts. Please continue to do so as time allows.

Brian

I don't think there needs to be a specific law to protect house concerts. I don't want to even think how that would turn out - lawsuits to establish laws for tupperware parties, etc. We already have more laws than anyone can make sense of - it's as complicated and confusing as the tax code.

I think what's needed is a reversal of the Zoning Board's decision, ordered by a court. By reversing the decision, it makes it clear that the Zoning Board overstepped its bounds and enforced the ordinance in an arbitrary and inequitable manner. I don't know if that's the exact terminology - reversing the decision - but whatever has that effect is what's needed.

Selective enforcement is the key issue here, in my opinion. It makes no sense to single out this activity. I agree completely with you on that.

And I think that is a good cause to support. I just think we need to clarify how we would support it.

- James

------------------
You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

Sure sounds to me like the neighbor is using (abusing) local law to further some personal agenda that is thusfar unknown to us. The zoning board, in their zealousy, are probably overreacting. However, Cindy, the selective enforcement argument crumbles in light of the neighbor's complaint. If the ZB routinely ignores or otherwise disposes of similar complaints, you may have selective enforcement. As an example, open fires are prohibited where I live, but in reality the ordinance is unenforced unless there is a specific complaint. So a policeman will drive right by an open fire unless they've been dispatched to the scene.

Brian, may I suggest that this sounds more like a poorly written local ordinance that is being used by a disgruntled neighbor for some personal reason than a cause requiring a call to arms of 40,000 musicians. Perhaps the way to best do our art is to perform at, promote, host and attend house concerts more ardently.

For those here who have not been involved in house concerts, I'd encourage you to find one in your area to attend -- the combination of comfort, quiet ambience, intimacy and direct connection with the performer make the house concert a wonderful and unique venue for experiencing the music we so appreciate.

I respect your opinion, but the fact that Cindy has filed this lawsuit in Federal court has really forced the issue. I think we're going to have to get behind this or potentially lose some rights.
Can you imagine us having to hold "underground concerts"? This ain't the old Soviet Union but things could get that way. I'm worried.



------------------
Later,

Pat

Cindy is challenging the constitutionality of the local law as written, as well as citing selective enforcement. The law does not specifically address house concerts (nor should it, IMO), but only comes into play by virtue of exclusion of house concerts (and many others) from permitted activities.

The fact that the C&D order relates to house concerts at all is circumstancial to the constitutionality and selective enforcement argument she is making. House concerts need no special protection under the law, but rather the inherent protection granted by the existing right to assemble and the right to the pursuit of happiness.

Don't have a lot new to offer this discussion except ... I've heard the yard sale mentioned in the posts above as another example of a commercial venture that's allowed in a residential zone.

In my neck of the proverbial woods, homeowners need to apply for a permit from the town to run a yard sale and there are community restrictions on the number of days the permit is good etc etc... or the police will come and shut you down.

It's too bad that the house concert case has to get to the point of federal involvement. It seems a shame that a local community can't sit down, discuss the true issues at hand with the current mode of operation, and hash out solutions that would allow for a way for the events to be done with a legal permit in a manner that has a lower impact on the community.

Well stated, Gypsy. I agree completely.

- James

P.S. Just as an interesting side note -- the pursuit of happiness is not actually a constitutional right. It's a phrase from the Declaration of Independence and is not echoed anywhere in the U.S. Constitution. It's definitely a founding principle, but not an actual constitutional right.

------------------
You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm


[This message has been edited by JamesM (edited 04-13-2006).]

I'd like to quote one of the great folk artists of all time, Mr. Rodney King. "Can't we all just get along?"

I applaud all the forward-thinking, retro-acting music lovers out there who are inviting art into their homes, and honoring us musicians who are challenged by the growing trend of people wanting entertainment at home. They watch movies at home, they play video games at home, they watch sports at home, so no wonder there's a great appeal to having a concert in your home.

I am supremely confident that Cindy will prevail, and that house concerts will continue to grow in popularity. For small-scale acts, it is such a powerful way to connect with new audiences. The intimacy and novelty of house concerts provide lasting memories and develop fans that often buy your entire catalog, and not just your latest CD.

Forgive the plug, but I've launched www.concertsinyourhome.com to help spread the word about house concerts, and to help it grow beyond the loosely affiliated, tight-knit groups that currently enjoy them. It's simply to great a thing to leave it to the superstar folk and contemporary folk acts out there.

And to those who say "aren't there more appropriate places to hold concerts?" I say SURE.

Coffeehouses...if you can hear yourself above the noise of the espresso and steamed milk machines.

Bars... if you can get people to look down from the TV screen above your head, showing a road-side bomb blowing off a soldiers leg.

Concert Halls... yeah. just get all the area stations to play your songs so you can fill the place. Why didn't I think of that.



It's tough out there. It's very easy to fall in love with doing house concerts. Believe me. Look at the passionate posts in this thread alone.

Thanks for allowing me to put in my 2, uh, 20 cents in.

Write On,

Fran Snyder
www.fransnyder.com
www.concertsinyourhome.com

Fran,

Thanks for jumping in. If you know other folks in the house concert scene, please tell them to join us. We can't have too many passionate folks involved in the discussion.

Brian

On 04-12-2006 23:40, Brian Austin Whitney wrote:
> When you speak to others (Russ and Julie or anyone else
> who is contacting you with an interest in all of this)
> please directly them to give their two cents here on our
> board on this post.

Well... since you invited us... We're happy to give our two cents. Please note that we came late to the postings here and there has been some great discussion. We'll split our comments up in several posts..

On 04-09-2006 22:31, Brian Austin Whitney wrote:
> This might be worth activating our JPF PAN (Political Advocacy
> Network) for. I want some of you who are motivated to read
> this and give me your thoughts before I move forward. Please
> let me know.

We're obviously in favor of supporting Cindy's House Concerts in any way possible. House Concerts are the very best way to enjoy live music. In our part of the country there are not enough small acoustic venues and the growing House Concert trend is filling a great need from by both artists and people who enjoy hearing live music.

On 04-09-2006 22:56, Liszt Laughing wrote:
> Well, if there is a web site with performance dates available,
> and specific publicity in the paper for upcoming events, both of
> those are pretty business like activities. So, if the residence is
> not zoned for business, or some other similiar complaint, I can
> see the side of the township.

Our House Concerts are private parties in our home. Yes, we have a website, but people today use websites to send invitations to parties. (evite.com is just one example) People also have websites dedicated to their dogs. That doesn't make the dog a commercial activity.

We don't sell tickets. We have an RSVP list, like any other party. We place a bowl by the door and ask for a voluntary suggested donation, which we collect on behalf of the musician who receives 100% of whatever comes in.

While we have been mentioned in the newspapers, radio and television (CBS News), these are all public interest stories. We have never placed a paid ad to promote our House Concert series.

On 04-10-2006, Stu wrote:
> This is not going to be that simple to sort out. Other questions,
> besides advertising and selling tickets, will come in to play. For
> example, how often do these events take place, and does the
> host derive any income?

We make nothing on our House Concerts. The musician takes 100% of the donations that come in. We not only pay for coffee, soft drinks, paper plates, plastic forks, napkins, and desserts for our guests, but we make dinner for the performers and will often put them up for the night in our guest room and make them breakfast the next morning. These things cost us a great deal of money. We do it because we love sharing the music with our community. It's a hobby, not a business.

We host a maximum of one House Concert per month and almost always on Saturday nights. They end at a reasonable hour, are generally not able to be heard from across the street, and our neighbors are encouraged to attend. In fact, we bend over backwards to accommodate our neighbors. Some of them attend our House Concerts on a regular basis. We even walk the streets the following mornings to be sure there is no trash left around.

But we're aware that it only takes one "a**hole" in the neighborhood to make things difficult. In the ten years we've been doing this, we've been lucky not to have problems like Cindy is experiencing... but we've been told that if we do it long enough something will pop up eventually. That may be true. When that happens, we know that we'll have a good many neighbors on our side.

Russ & Julie
Russ & Julie's House Concerts
http://www.houseconcerts.us

-

On 04-10-2006 09:38, scott59 wrote:
> Maybe I'm out of line - it's possible that just one person got
> upset and all the other neighbors are fine with it. Have they
> talked to their neighbors?

Sometimes you run into someone who just likes to cause trouble... Talking nicely or even attempting to compromise will do no good in these cases. I'm afraid that's what Cindy has run up against. Maybe the person is just jealous that she has friends and he doesn't. Some people are not reasonable.

On 04-10-2006 11:20, Stu wrote:
> This Federal lawsuit could backfire and create caselaw
> interpreting House Concerts as a business activity where no
> such law previously existed (thereby giving municipalities
> autority to ban them in the future).

Based on the fact that Cindy is challenging the Constitutionality of a local zoning ordinance, it's unlikely to have a far reaching impact if she should lose... and certainly those not in her federal court jurisdiction will be effected even less. Still, it's a great opportunity for a federal court to say that municipalities can't unreasonably restrict the private use of the private homes, which we think is the likely outcome in this case. Such a precedent could be cited by others if a similar issue should arise. We applaud Cindy for taking this step and standing up for her (and our) rights!

On 04-10-2006 12:55, Whitesides wrote:
> This truly sounds like these people did not tell their whole
> neighborhood about the activity that was going on. Whenever I
> hold a party of bigger function at my house I will let my
> neighbors know so that they're aware of the situation.

We do let our neighbors know about our House Concerts and invite them to attend. Many years ago we walked house to house around our neighborhood introducing ourselves, handing out invitations to an upcoming House Concert, and explaining what we were doing. We were lucky that we didn't come across someone who simply wanted to cause trouble. Maybe that says something about the neighborhood we choose to live in. Most of the people never have come to a House Concert, but many have and some continue to come.

On 04-10-2006 14:52, Brian Austin Whitne wrote:
> I also would like to have the ability to use my home however I
> want as long as local laws are not broken. When I think in
> terms of local laws, I think of noise ordinances primarily.

Our local fire department has told us that, unlike a commercial establishment, there is no legal limit to the number of people we put in our home... so long as the neighbors don't complain and we're not breaking any laws. (This may not be the same everywhere.)

We don't like the idea of the government telling us what kind of party we can have in our private home. If it's a Tupperware party it's okay but if it's live music, it's not? Even if there's no "noise" that can be heard outside? People can chip in to buy pizza and beer for a party but not music? You can throw 4 parties per year, but 7 is too many? We're certainly not comfortable with the government issuing these types of arbitrary guidelines over the private parties we throw in home. It may have been watered down in recent years, but we still have a right to free speech, freedom of assembly and a right to privacy in this country.

On 04-10-2006 16:27, bob young wrote:
> These aren't little get togethers.
> If they're advertising and promoting and selling tickets...
> Well....

You need to get your facts straight. We don't advertise and we don't sell tickets. Our house concerts are run as private parties.

We can see how they might seem like a commercial venture from the perspective of the musician who is performing and collecting money for doing so. But so is the clown we hired for our son's birthday party, and so is the Tupperware lady that did a presentation in the home down the street.

On 04-10-2006 17:09, Brian Austin Whitney wrote:
> Either you have rights to do what you want in the privacy of
> your home or you don't. If there are going to be random
> enforcements of vague restrictions simply based on when
> someone feels like complaining, then no one is safe and all
> sorts of abuses will occur.

Now that is EXACTLY the point and why activating the JPF PAN (Political Advocacy Network) for this cause is warranted.

Just our opinion,

Russ & Julie
Russ & Julie's House Concerts
http://www.houseconcerts.us

-

Thanks for chiming in Julie or Russ (which one is it actually?). Valuable first hand perspective is always needed and welcome!

Brian

On 4-11-2006 03:21, bob young wrote:
> I still see no reason why these little concerts can't be held in
> the myriad of small venues that are available. Still waiting for
> an answer to that.

Interesting question. We're surprised more people haven't chimed in on this. The vast majority of the musicians we talk to tell us that there simply aren't enough small acoustic venues in our area (southern California). Maybe in the area you live in, there are plenty of small, intimate, quality, acoustic venues. But around here, House Concerts are filling a definite need.

But this really isn't the point of the discussion. The point here is that if we want to have a party in our own home with live acoustic music that doesn't disturb the peace in any way, we should have the right to do so. The government shouldn't have the right to tell us what type of parties are acceptable in the privacy of our own homes... as long as we're not breaking any laws and we're not disturbing the peace.

On 04-11-2006 06:20, bob young wrote:
> thought we were talking about a series of events or house
> concerts at the same location..It's that that I'm against.

What if it's an annual Superbowl party where the guests all chip in for pizza and beer? What if it's a household with 3 children and there are individual birthday parties for all three children every year with hired entertainment? Both are "a series of events". What if the family has 7 children (each born in a different month) and they not only throw a separate birthday party for each child but also throw annual Thanksgiving, Christmas and Memorial Day parties? Is it the frequency of the parties that's bothering you? How many is too many and how many is acceptable... and who should make such a determination?

On 04-11-2006 09:02, Stu wrote:
> Zoning laws and local ordinances are consistently upheld to
> protect residential neighborhoods from noise, traffic, pollution
> and other intrusions. It is not a matter of the municipality
> deciding WHAT you can do, it is a matter of WHERE you can
> legally do it when balancing the interests of the individual and
> the neighborhood. I think house concerts are a great idea as
> long as my neighbors don't object. If my neighbors object, then
> I must respect their wishes.

Excellent points. Being courteous to ones neighbors is essential. In our world today people seem to be less courteous all the time. Common courtesy is a lost art that is disappearing fast. But it works both ways. Are you saying that if your neighbor says that they don't want you throwing parties anymore that you wouldn't throw parties anymore? Even if there your parties created no real impact on the neighbor?

We are amazed by the friends we have that don't like to throw parties in their homes. They are afraid something might get dirty! For us, part of the joy in home ownership is the ability to throw a party... and we just happen to also like to share quality live music at some of the parties we throw... and for the sake of simplicity call our music parties House Concerts. To us, the right to throw a party seems like an inherent right of home ownership.

On 04-11-2006 11:14, JamesM wrote:
> The fact that it's obvious to the complaining neighbor that the
> house concerts are continuing means that it IS having an impact
> on the neighborhood. Most likely the biggest impact is parking,
> not noise.

We would agree that this is by far the greatest impact on the neighborhood. In fact, it's really the ONLY significant impact on the neighborhood: a bunch of parked cars. Fortunately we're in a suburban area that has ample street parking. We're not the only ones on our neighborhood to have parties either. One of our neighbors has some kind of weekly meeting at their home on Tuesday evenings. Less cars than our House Concerts, but they do them weekly where we only do ours monthly... and theirs are on weeknights where ours are on weekends.

Having understanding neighbors is a blessing. So far, we've been lucky to have good neighbors and we hope that our neighbors don't think of us as being bad neighbors for trying to bring some culture into our community.

On 04-11-2006 12:18, Emily Sanders wrote:
> Aside from legal issues here, it makes me very sad to think
> that house concerts could be legally limited and/or prohibited.
> It was only a few hundred years ago that house concerts were
> the way music was heard. That's how "Chamber Music" came
> about.

House Concerts have been around at least since the days of the traveling minstrels in the Middle Ages. Those musicians would travel around from castle to manor to estate performing for simple room and board... and maybe a few donations if performing in a pub. Modern House Concerts trace their roots back at least that long.

On 04-11-2006 12:37, Emily Sanders wrote:
> I have been to Russ and Julie's House Concerts. ( They helped
> pass along the original message here.)
> They are the nicest, most thoughtful hosts. I have never seen
> such strong supporters of the indie musician and writer.

Thanks for the kind words and support, Emily.

By the way, we're longtime supporters of the Just Plain Folks organization. We had the opportunity to speak about House Concerts as guest speakers at a local meeting of JPF a couple of years ago. We truly appreciated the opportunity.

Thanks for all the well thought out discussion on this list.

Russ & Julie
Russ & Julie's House Concerts
http://www.houseconcerts.us

-

Hi - there is one thing that Stu brought up that I have not seen anybody address, and I've not really seen addressed on "how to" house concert web sites, and that is the insurance aspect of this...I'm sure different insurance companies have different rules, but has anybody actually asked their insurance company about a house concert?

[This message has been edited by Liszt Laughing (edited 04-16-2006).]

On 04-12-2006 02:07, rblight wrote:
> Are private homes REALLY a good place for concerts?

There are very few traditional venues out there that can come close matching the warm and intimate environment that a well run House Concert series can provide.

On posted 04-12-2006 02:12, rblight wrote:
> Clowns don't entertain at 120 decibels

Neither do our musicians. We can guarantee that a party with 20 small children in the backyard being entertained by a clown is going to be far more noisy than a party with 50 adults sitting down to watch Steve Gillette entertain with his acoustic guitar.

Our House Concerts are held in our living room. We've walked outside and across the street during shows and you really can't hear a thing. (The only exception to this being the very few and rare times where we've had a band with a drummer.) The vast majority of our House Concerts make no more noise than a television set that has the volume turned up a little bit.

From our experience, a party with 50-60 adults creates a whole lot less noise and rowdiness -- and impact on the neighborhood -- than a party with 20 children or teenagers. There's no comparison.

On 04-12-2006 03:09, Whitesides wrote:
> Again, this all comes down to people not being respectful, nor
> knowing, their neighbors. If you make friends with them,
> there's no way they'd have a problem with this.

We agree with you 100%. However, sometimes you run across people who simply don't want to be friendly or respectful and simply enjoy causing problems.

On 04-12-2006 08:14, Stu wrote:
> You may want to try to spin the purpose to say you just want
> to entertain your friends, like at a birthday party, but the two
> are not at all analagous. The term "concert" is itself a giveaway

You've never heard of free concerts? Why does the term "concert" automatically mean a commercial enterprise to you? In our community we have a summer "concert in the park" series. There's nothing commercial about it. The bands are hired, they perform, and they even can sell their CDs afterwards, but there's no commercial activity from the perspective of the municipality or the people who bring their families to the park and enjoy the show. "Concert" means "culture" to the community, not "commercialism." (Are there elements of promoting the band? Sure. Any performance, even a free one has potential commercial implications for a band. But that doesn't make the event itself a commercial activity.)

On 04-12-2006 11:09, Stu wrote:
> "concert" is defined in the dictionary and in law as a public
> performance. This is different than a private party. By
> implication, it means that there is some other reason for
> holding the event, such as the promotion of the artist, the sale
> of CDs, etc.

All concerts are public? That's definitely news to us. Our American Heritage dictionary defines a concert as: "A musical performance in which a number of vocalists or players participate." Nothing there about it being public. We use the term "House Concert" instead of "House Party" or "Music Party" because we want our guests to understand that the nature of the party we are hosting is very much focused on the musical performance.

On 04-13-2006 00:29, JamesM wrote:
> I don't think there needs to be a specific law to protect house
> concerts.

We agree. People should be able to throw a private party in their own homes. We don't need new laws to enforce that. Cindy's case is scary because her municipality has a law that says you can only have a private party in your own home if the activities at your party are on a specifically approved list... and their enforcement of that law is not uniform. We'd like to think that such things wouldn't happen in our country.

ON 04-16-2006 03:34, Brian Austin Whitney wrote:
> Thanks for chiming in Julie or Russ (which one is it actually?).
> Valuable first hand perspective is always needed and welcome!

It's our pleasure. We're passionate about House Concerts, or else we wouldn't be hosting them. It's been a great and rewarding hobby for us. (Not rewarding in a financial sense as we make no money on them; in fact it's not an inexpensive hobby.) And we do work together to pull them off; we're a team.

On 04-16-2006 04:47, Liszt Laughing wrote:
> there is one thing that Stu brought up that I have not seen
> anybody address, and I've not really seen addressed on "how
> to" house concert web sites, and that is the insurance aspect of
> this...I'm sure different insurance companies have different
> rules, but has anybody actually asked their insurance company
> about a house concert?

Do you call your insurance company every time you throw a party? Do you call them when you hire a clown for your child's birthday party? Do you call them when you have a Superbowl party and have people chip in for Pizza and beer? Do you call them when you have a Tupperware party? We don't. Maybe we should, but we assume assume that our homeowner's insurance would cover us in the event we have a party. In addition, people who host parties regularly probably should get an umbrella policy as well.

Just our opinions...

Russ & Julie
Russ & Julie's House Concerts
http://www.houseconcerts.us

-

I believe in the law of the land, and respect of that law. I believe in respect of one's fellow man as well. I also believe in the power and vast importance of music in society. I am a professional performer.

I live in both the commercial world of music, and the private world of music. Let me explain. I am a solo performer and a band leader that makes a living hiring out to various commercial enterprises (bars, restaurants, talent agencies, corporations, community events, etc.) and I also perform for hire at people’s private parties. I live a dual existence within these two groups as well. In one life I provide popular cover music to satisfy the listener with only a casual interest in music, in the other life, I provide the serious music listener with original music that they can't hear anywhere else.

The venues for serious music listeners are few and far between. Most "commercial music venues" are either so concerned with making money that the music is hired only with that criterion in mind, or they are not set up properly for the purpose of presenting music in the first place. You either have a place that hires you on your popularity alone, or it has lousy acoustics, a bad PA, an espresso machine that's as loud as a 747, or an overly loud and disrespectful clientele. There are exceptions of course, but unless you're talking about house concerts, most venues fall into these categories. Also, the venues which Mr. Young refers to (VFW halls etc.) cost money to rent, defeating the purpose of providing the most money for the performer. The underlying purpose of house concerts after all is the survival of the performers.

As has been said throughout this string, patrons of the arts have provided forums for musicians since early times. Court musicians were subsidized and private concerts given based on their virtuosity or their perceived social value. Benefactors would routinely pay for the entire career of a performer.

In today’s world the house concert has become the one venue where all who participate benefit. The concert host gets to share with their like minded friends their extreme love of their favorite artists, turning those friends on to music they may never have heard of otherwise, and the artist gets to perform in a controlled, musically conducive environment for an audience of polite, receptive ears. Social intercourse is accomplished that does not center largely on drinking, contact sport, or sex. Deep thoughts, and humor are expressed and received, and the world is a better place.

In (as far as I know) all cases, the performer is the only one who profits monetarily from these party/concerts. They get the entire amount of donations taken at the door as well as whatever CDs are sold and those CDs go out into the world and spread the word about the wonderful music that artist makes. The word of mouth generated by both the show and the CD sales continues to grow that artist’s reputation, hopefully to the point where they become too big for a house concert thus making room for the next unknown yet deserving performer to slip into the next season’s house concert line-up.

House concerts range from the modest to the extreme. Some have 20 guests some have 120. Some are completely unplugged, some have elaborate set ups including stage, lights, and sound system. In all cases that I know of, the hosts go to modest to extreme expense to put on these party/concerts. Some email their friends an invitation, and provide a few snacks. They all sit together on the host’s living room furniture listening to an artist who’s agreed to play sans amplification for whatever money folks are willing to put into the hat. Others have a complete staff of volunteer ticket takers, food preparers, and paid sound and lighting techs. They rent or buy chairs, pay for outdoor heaters, spend big bucks on advertising, all of which comes out of the host’s pocket. They hire performers who demand a guarantee which, if not covered by the door, also comes out of the host’s pocket. In all cases, it’s a labor of extreme love. In no case could these music parties be considered “commercial ventures”.

The house concert host has become the “new” patron of the arts. Without house concerts many very talented artists would be forced into other less desirable venues, or lines of work, for lack of income, and those who seek refuge from the overly commercial mainstream music industry would simply sit at home watching listening to I Pods or web streams.

Back to the law now: If the neighbors complain with reason to do so, and the law is on the books, and applied equally to all, there’s not much anyone can do short of getting the law changed and or changing the neighbor’s mind. But I say it will be a sadder world if one more gentle pastime is driven to extinction by people who don’t understand it’s value, or care to.


------------------
We can all be little suns.

[This message has been edited by joerath (edited 04-18-2006).]

As I understand it, Wirdaz, it's beyond the point of mattering what the neighbor's complaint is. Satisfying the neighbor at this point would not stop the wheels from turning. The issue is now between the Zoning Board's lawyer and the house concert givers.

So, as Joe said, IF the law is applied equally to all, the answer is to get the law changed. Cindy's position (the concert giver) is that the law if not applied equally to all, and that's how it ended up becoming a court case.

- James


------------------
You can really only please one songwriter at a time. Might as well be yourself! :^)


Samples of my music at www.soundclick.com/jamesmitchell.htm

Wow, I go offline for a few days and have to read "War and Peace" just to comment!

I agree with Joe and others that the hosts of house parties are the new art patrons.

bob young offers that musicians should find those little clubs, but as Russ and Julie pointed out, those places simply don't exist...or at least not with the ideal atmosphere of the house concert. The club is a commercial enterprise, the house concert is a cultural enterprise. The patron acts as a filter, "Come to my house," they say, "and let me share this wonderful music I've discovered." And, it is precisely because the house concert is not a public event that they are able to provide a place conducive to appreciative listening rather than socializing. Not so in a club, except maybe the Bluebird where Amy says, "SHHHH!"

As bob pointed out way back in chapter one, I'm a libertarian by nature, though I don't wear thick glasses or flannel shirts. I hate to see Russ and Julie shut down by crumudgeons bludgeoning them with poorly written ordinances. Laws seem to me to be words that try to describe which actions will be permitted by society. Unfortunately, words are inadequate in many instances, thus the famous quote from the SCOTUS that they wouldn't define pornography but knew it when they saw it. This inadequacy often plays into the hands of those who have "power" and "control" issues. Such, I would suspect, may be the impetus for Russ and Julie's neighbors (neighbors? Jesus had it nailed [poor choice of words] on that one, He had to find someone from as far away as Samaria to call a "neighbor.") I'm in favor of fewer laws and more common sense. I'm afraid, however, in our world the opposite is happening...in our search for definition and clarity, we assist entropy.

So, party on Russ and Julie. I can tell you practice responsible assemblage, so it saddens me to see your freedom threatened by someone's annoyance (would that I could stop everyone annoying me).

Brian, not to my friend bob's surprise, on this, you can count me in your column.

All the Best,
Mike




------------------
You have to practice improvisation. -Art Tatum

Mike Dunbar Music

Mike -

Just to clarify - Russ & Julie are not having the problem with the zoning board. Cindy Harris is. Russ & Julie are NW of LA. Cindy is outside of Pittsburgh.

[This message has been edited by laineytunes@yahoo.com (edited 04-17-2006).]

[This message has been edited by laineytunes@yahoo.com (edited 04-17-2006).]