SF’s ‘War On Fun’

All-ages venues are a critical first link in the live entertainment food chain for most emerging artists, but many club owners rely on alcohol sales from their 21-and-older patrons in order to boost the razor-thin bottom line or to stay in business at all.

In San Francisco, several venue owners and their supporters are fighting what they call a “War On Fun” brought by California’s Alcoholic Beverage Control board and local law enforcement.

In the past 18 months, California’s ABC has investigated or cited at least a half-dozen San Francisco venues over complaints they are in violation of conditions of the licenses to serve alcohol. Citations can range from the sound levels emanating from their businesses to the amount of revenue coming from food sales.

And some of the venues in hot water with the ABC are legendary clubs on the S.F. live scene, including Slim’s, the Great American Music Hall, Café du Nord and Bimbo’s 365 Club.

Cases against GAMH and Café du Nord have been dismissed, but locals fear that ABC investigators will be back looking for new violations.

The Great American Music Hall’s case was dismissed in September when an administrative law judge to whom the case was appealed recommended dismissal of ABC disciplinary action for allegedly changing its operation without obtaining approval from the ABC.

Dawn Holliday, talent buyer for the Great American Music Hall and GM of Slim’s, told Pollstar a Rule 64.2 complaint – involving alterations to the building – against the GAMH was dismissed in September, but that a sound violation issued to Slim’s was still being contested at press time.

“They dismissed our case and basically said that we did not break the 64.2 rule, but they still say we are not a bona fide restaurant, either,” Holliday told Pollstar. “So we think they’re going to come back to charge us, and Café du Nord, again.”

ABC regulations require an establishment to be a “bona fide eating place” in order to admit all ages and yet serve alcohol – and to be considered “bona fide,” at least 50 percent of its revenue must come from food sales.

Holliday says that Slim’s has been cited for not serving enough food and for noise violations.

Another S.F. venue cited for noise violations is the Red Devil Lounge. Owner Jay Siegan told Pollstar it’s a misconception that law enforcement and ABC agents are going only after all-ages venues. The 209-capacity Red Devil Lounge is restricted to 21-and-older patrons.

“All the press is getting this wrong,” Siegan told Pollstar. “They’re saying it’s an all-ages thing, or it’s about music, or food. They’re going after all kinds of music venues for all kinds of things.”

Siegan said he was cited for violating a condition of his license that forbids any sound to emanate from the inside of his building, regardless of a citywide noise ordinance that establishes a legal decibel ceiling.

“We have a condition on our license that says we may not have ‘any sound audible beyond the area under control of the licensee.’” Seigan said. “Now the question is, audible by who? People have different abilities to hear sound. Someone with really sharp ears can hear sounds that no one else can. Other people are half deaf. But the bottom line means that virtually any sound that leaks out of this venue apparently makes us in violation of our ABC license,” Siegan explained.

Attorney John Hinman confirmed the condition of the Red Devil Lounge’s license means that if a passerby can put his ear to the door and hear music, it would constitute a violation.

Hinman represents a group of venue owners facing ABC disciplinary action, ranging from fines to venue closures. He says a crackdown has been in effect for the past one to two years, and the agency has become little more than an arm of law enforcement rather than an agency that assists entertainment and hospitality businesses in becoming compliant and healthy.

“The members of this particular community, the live entertainment community, want to be compliant. They want to have a safe, well-run venue and well-run show,” Hinman told Pollstar. “We can’t do it if we have no venues. Without the ability to sell alcoholic beverages, a venue can not afford to exist. There’s almost no way around it.”

He explained that one music venue client was told that to comply with a Type 47 license – an all-ages, bona fide eating place – a condition would be that every seat must have a “a plate, knife, fork and water glass for every customer. In a theatre, no less.”

Hinman declined to name the venue with the formal place setting requirements but said he represented many owners who didn’t want to be “targeted” by being identified.

“The venue operators in this state are terrified. You’ve got a regulatory agency in this state that is running a jihad against them,” Hinman said.

“They’ve been out in full force. They’ve been in to [Slim’s] twice in the last week,” Holliday said. “They didn’t do anything to us, but they cited the [venue] across the street because the audience wasn’t leaving fast enough.

“They gave [the owner] a citation for that. Give me a break. It was 1:45 a.m. and people weren’t leaving fast enough,” Holliday said.
ABC spokesman John Carr denies that the agency is cracking down on music venues generally or in San Francisco specifically, despite Web sites and Facebook pages dedicated to chronicling the “War on Fun” in San Francisco.

“We’ve received a lot of calls about the issue in San Francisco with a couple of clubs, and did a search of our own records. There have been 42 citations relating to ‘bona fide eating places’ throughout the state in the last year and a half. It certainly isn’t just San Francisco,” Carr told Pollstar.

A review of the search shows, however, most of the businesses cited were not live music venues, but appeared to be convenience stores, strip clubs and pool halls. Carr explained that the ABC does not interpret rules but merely enforces them, and provided a FAQ that explained many of the different license types and conditions.

“The ABC undertook an investigation and determined that some locations were not operating as bona fide eating places (restaurants),” the background statement said. “Instead they altered the character of their businesses and were operating more like clubs with only incidental food service which is different from the business plan they submitted to the ABC when they were originally pursuing their ABC license.

“It should be noted that the department was not informed, as required under State regulations, that they would be changing the character of their operation,” the statement said.

In response, several venues have added alerts on their Web sites and the issue has received much attention in Bay Area media. The DNA Lounge has a detailed explanation of its position and a collection of links for more information about what owners believe is a joint operation between the ABC and police to shut them down.

Slim’s and the Great American Music Hall are selling T-shirts declaring “rock ’n’ roll is not a crime,” on their Web sites and a legal fund has been established to fight citations and file appeals with state administrative judges. Some may be taken to California’s court of appeals, according to Hinman, who admits he’s taking many cases on a pro bono basis.

“You win one case, and they come back again and get you on the food condition. Another on the noise condition. It’s like water torture,” Hinman said. “And you can’t afford to hire expensive lawyers every time they turn around.

“[Venue owners] are operating on shoestrings. And without small venues you don’t have new artists, you don’t have the ability of the new arts community to come out and demonstrate their worth as entertainers.”