Laughter broke out in the Vista City Council meeting last night as the Assistant City Manager tried to describe for elected officials why the City report deemed it time to overhaul the Cabaret codes.
Said Aly Zimmermann:
"As you know when you talk about cabaret, people think ... dark, small, smokey nightclub and Liza Minnelli's going to be there [laughter] and it's a cabaret act. And that's just simply not the case. In reality, it's one or two person acts, karaoke, mariachi in our restaurants, bars and breweries."
An overhaul necessary
She reminded officials that it was last fall when the council directed staff "to review" the cabaret permit process and return with "an update" in her presentation yesterday evening. Staff's report, including the decision that an overhaul is necessary, is beginning with a name change.
Several points the assistant manager made:
- Removal from the codes of "Cabaret"references and replace with "Entertainment"
- Criminal background checks would still be done
- An annual renewal procedure allowed complaints to be handled between people
Officials on the dais then made comments, suggestions or sought answers regarding the report advocating changes and updates.
Noise and nuisance complaints were being anticipated from neighbors.
"I am glad you're updating this," said council member Dave Cowles. Although he personally did not hear a lot of complaints on this issue where he resides in Vista, he felt the need to ask about how someone could complain if a problem arose. Said Cowles:
"If an adjacent tenant wanted to appeal a permit ... there doesn't seem to be a provision for that."
City Attorney Darold Pieper stated the City might need to look at what was needed on the appeal. "At the present time there is no appeal once a permit is granted by the city council." So a neighbor, or someone who is "... thereafter unhappy with that, does not have the right of appeal."
Further, it seemed because city staff is requiring notification to the adjacent persons of the permit applicant, the anticipation by the City was that ample opportunities to particpate in the decision for a permit would be in the first place rather than after the fact.
A 'safety valve'
Council member Cowles noted the chance for "revocation" of a permit also would be comparable to having "a safety valve"for the situation.
Another council member, Cody Campbell wanted to commend staff for deciding this is not a one size shoe fits all situation. "I commend you," Campbell stated, for making this permit decision on a "case by case basis."
Mayor Judy Ritter noted that neither the City nor the San Diego sheriffs have measuring devices to check the decibels being generated by any establishment. "We don't have monitoring equipment in the city," she said, to measure the decibels.
Campbell wondered if perhaps there might be a way to write the code with a generic section regarding noise emanating from off the premises, three or four businesses down, to which Director of Community Development John Conley replied that some cities use decibel levels, but Vista should opt for a different approach.
A better idea, said Conley was to provide the city manager the "discretion" that would allow a chance to revoke a permit. That would allow a threat if the permit holder did not wish to work with the city on complaints about the noise or nuisance.
Mythological "average, reasonable person'
An opportunity for the process to work is what was needed, Conley stated. The issue of noise and "an average, reasonable person" being annoyed was brought up by the City Attorney in addressing a request by Council member Campbell for him to discuss prima facie (presumed to be true unless disproved) noise complaints. Said Pieper:
"Well, our existng prima facie rule does look to something that is audible to 50 feet."
He added that there is no mythological "average, reasonable person."
From a California government website, the definition of noise may be helpful:
Noise is defined as unwanted sound. Sound, traveling in the form of waves from a source, exerts a sound pressure level (referred to as sound level) which is measured in decibels (dB), with zero dB corresponding roughly to the threshold of human hearing and 120 to 140 dB corresponding to the threshold of pain. (California Public Utilities Commission)
This website also mentions:
"Human response to noise is subjective and can vary greatly from person to person. Factors that can influence individual response include intensity, frequency, and time pattern of the noise; the amount of background noise present prior to the intruding noise; and the nature of work or human activity that is exposed to the noise. The adverse effects of noise include interference with concentration, communication, and sleep. At high levels, noise can induce hearing damage."
According to National Association of Noise Control Officials:
"The traditional definition of noise is “unwanted or disturbing sound”. Sound becomes unwanted when it either interferes with normal activities such as sleeping, conversation, or disrupts or diminishes one’s quality of life. The fact that you can’t see, taste or smell it may help explain why it has not received as much attention as other types of pollution, such as air pollution, or water pollution. The air around us is constantly filled with sounds, yet most of us would probably not say we are surrounded by noise. Though for some, the persistent and escalating sources of sound can often be considered an annoyance. This “annoyance” can have major consequences, primarily to one’s overall health. "
Not mentioned in the meeting was when a San Diego County mayor and city leaders discovered that a strip club, which applied for its business license using the key word “cabaret,” obtained the license despite existing city laws against such clubs.
Chula Vista officials, including the mayor in 2012, were described as "outraged," by nbcSanDiego and argued that strip clubs were not allowed in the area under existing city laws.
The club’s owner, Randall Welty, told NBC 7 that he didn’t try to trick Chula Vista city officials when he changed the plans for his business from being a comedy club into being a strip club. Quoted in the online story, Welty stated:
"I'm afraid if they'll check what I filed under a business license, it was [for] a cabaret theater which is exactly what this property is zoned for."