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• The proposed ordinance does
not address any public need |
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o Often justified as a response
to the 17 February 2003 stampede in the E2 nightclub,
which killed 21 people, the proposed ordinance
does not address the problems that led to that
tragedy: |
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• Too many people (1100) were
in a venue that could safely accommodate only
300
• The City of Chicago had not determined
the safe capacity of the venue
• The City had not acted on known building
and fire code violations
• The venue’s security staff did not
respond appropriately
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• The proposed ordinance does
not strengthen the City’s inspection and
enforcement resources, powers, and will to act;
instead it indemnifies the City from liability
• The ordinances regulating places where
food is offered for sale require periodic city
inspections; neither the proposed ordinance nor
the existing PPA requires inspections
• The proposed ordinance targets event promoters
rather than venue owners, although circumstances
leading to the E2 tragedy were within control
of the venue manager and not third-party promoters
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o Venue owners, not third-party
promoters, are in a position to control everything
that might jeopardize the health or safety of
fans
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• The proposed ordinance does
not fit the realities of how some of Chicago’s
best music is made and promoted
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o The 2007 Chicago Music City report
prepared by a group at the University of Chicago
for the Chicago Music Commission concluded that
music in Chicago generates a payroll in excess
of $1 billion annually and fuels the overall economy
in Chicagoland. Significantly, it concluded that
Chicago offers more kinds of music regularly than
anywhere else except Los Angeles and New York,
mostly in small clubs
o Most of the small clubs are operated informally
and present bands and other performers that operate
on a financial shoestring, rarely earning more
than a few hundred dollars for a performance,
and rarely netting more than a few thousand dollars
per year for their music
o These bands and performers and the venues in
which they perform scramble to attract an audience,
relying on the band’s circle of friends
and an occasional part-time amateur street team
to distribute flyers and generate word of mouth
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• The proposed ordinance contains
several provisions that would burden small venues
and less-known bands disproportionately |
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o It defines the regulated activity
( § 1-157-010, definition of “Event
Promoter”) to include advertising so broadly
that it would include:
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• Word of mouth generated by a band or
its supporters
• Distribution of flyers or posters publicizing
a performance
• Free notices of performances on websites
such as MySpace music pages, while exempting paid
newspaper advertising
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o It imposes unnecessary insurance
requirements on promoters who have no control
over safety in venues and thus are unlikely to
be liable for injuries
o It prohibits fans under the age of 21 from engaging
in promotion activities, although younger fans
other play a crucial role in encouraging turnout
for performances
o It would intimidate fans and band members from
promoting a performance by requiring them to be
fingerprinted and to fill out burdensome forms
and keep burdensome records
o Paradoxically, it would regulate promoters for
events at small venues while leaving intact the
existing exemption for the venues themselves (PPA
§ 4-156-305(c))
o It exempts instrumental performances by groups
with fewer than eight pieces (§ 4-156-305(f))
while providing no such exemption for small groups
performing other kinds of music
o It exempts large venues, where any risk to public
health and safety is greatest
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• The proposed ordinance is
unconstitutional
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o It violates the First Amendment
by regulating speech in the form of advertising
over-broadly
o It violates due process by excluding ex-felons
who have paid their debt to society and persons
convicted of petty theft; federal court cases
require a rational relationship between regulation
of entertainment and risks to public health and
safety; there is no such relationship here
o It violates equal protection of minority groups
by disproportionately burdening promoters from
such groups
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• The City of Chicago should
be supporting and promoting its smaller venues
and lesser-known bands, but the ordinance imposes
burdens instead
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o The City should publish and distribute
to hotels and airports a directory of smaller
venues and lesser-known bands
o It should provide links on its websites to private
websites that offer current information about
scheduled performances
o It should provide financial support to smaller
venues and lesser-known bands
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Henry H. Perritt,
Jr.
Professor of Law
Chicago-Kent College of Law
Member of the Illinois Bar
hperritt@kentlaw.edu
(312) 906-5098
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