Rock in a Hard Place
Citing an amusement tax, noise ordinances, BYOB laws, and flier wars, local club owners wonder if Knoxville even wants a nightlife.
By Mike Gibson
SEPTEMBER 8, 1997: By 10 p.m. on a sticky Saturday evening, Barley & Hopps Performance Hall on Cumberland Avenue is already at the point of overflowing, hordes of fresh-faced frat-house hippies and scruffy alt-country hipsters anxiously amassing on the patio in hopes of wheedling into a soon-to-be sell-out show. The occasion is a rare in-town performance of the V-Roys, the clean-cut, sharply-attired Knoxville rock and country quartet who just last year released an album on maverick country artist Steve Earle's fledgling E-squared record label.
After a sturdy set by the opening band, the V-Roys take the stage at 11:30 and launch into two hours of heart-rending proto-country and raw, rootsy rock 'n' roll that leave the crowd drained and drenched with perspiration but still yelling for more.
It's a heartening sight for this band-on-the-rise, now arguably the city's favorite, but even more so for local music fans; this club near the corner of Cumberland and 21st came perilously close to being razed and replaced by a service station when its former owners closed the venue's previous incarnation last year and put its dual buildings up for sale.
What's less heartening is that those two buildings, formerly known as the Last Lap and the Library, ranked among the city's longest-running nightspots after only a couple of decades of business, tenuous linchpins in a local entertainment scene marked by legal troubles, financial tumult, failure, and transience.
While Knoxville nightlife is hardly ready for last rites--the city currently boasts a viable network of venues, and more local musicians are gaining national exposure than ever before--the community has historically been a fragile one, with almost hand-over-fist turnover at some Cumberland and downtown establishments.
Why? In some instances, the answer is simply poor management or attrition. But many local promoters and club owners wonder aloud whether some of the fault might not rest with the city's attitude toward its nightlife, and speculate that perhaps the entertainment scene in Knoxville survives, and occasionally thrives, in spite of city leadership rather than because of it.
Longtime local music booster Benny Smith, now with the area's largest promotional outfit, A.C. Entertainment, points to a host of policies--from a 5 percent entertainment tax to the on-again/off-again lip service given to decades-old noise ordinances to an intermittently-waged war on band fliers--that seem to make the already arduous tight-rope walk of owning and operating a successful nightspot an even more difficult proposition.
"Nightlife doesn't always get the help or encouragement it needs around here," says Smith. "When you look at towns like Athens [Ga.] or Chapel Hill [N.C.], they're much smaller cities, but with phenomenal music scenes. So why can't more than a few clubs survive in Knoxville?"
Factor in occasionally hostile, sometimes inconsistent patterns of enforcement by local police, and it's not entirely surprising that Smith and other observers believe the problems attending the local scene have more to do with the attitude of city fathers than the acumen of its entrepreneurs. (See the July 3 issue of Metro Pulse, "Squaresville," for details of the sudden crackdown on outdoor beer-drinkers at the Tomato Head, a quiet but popular Market Square restaurant/music venue. The problem now appears resolved via a revised ordinance, but the abrupt nature of the clamp-down still unnerved club and restaurant owners.)
"Between laws and taxes," Barley & Hopps manager Keith Robinson avers flatly, "it's nearly impossible to run this kind of business successfully in this town."
Not AmusedIn 1988, future A.C. Entertainment founder Ashley Capps opened a little basement nightclub at 111 North Central that would soon be recognized as one of the preeminent small music venues in the south, drawing ardent praise from many of the world-class entertainers who played in it. Quaint, cozy, and understated, Ella Guru's typically hosted more internationally-renowned performers in a single month than local music fans expected the city to draw in an entire year.
It was perhaps too good to last, however, and Capps was forced to close his doors in 1990 after a two-year run as the most daring and eclectic venue in Knoxville history. But though Capps admits that several problems contributed to Ella's demise, he counts the city's amusement tax--a daunting 10 percent at that juncture--as chief among them. "It wasn't the only factor, but it did do a lot to help put us out of business," he says.
The county amusement tax is five decades old, although no one in city or county government is sure of its origins. In the 1980s, it was boosted from 5 to 10 percent of ticket/admission prices to help fund UT's Thompson-Boling Arena. When the arena debt was retired, the city and county made a joint effort to revamp the tax code in the early '90s, dropping the amusement tax back to 5 percent (still yielding a steep 13.25 percent levy when added to the state's 8.25 percent sales tax).
But the rewrite also created new controversy, weaving a tangled web of exemptions that alleviated the tax burden outright for some businesses, including large concert venues such as Thompson-Boling (for non-sports events only) and the Bijou, but retained a claim on 5 percent of the door for other amusements, including movie theaters, sports arenas, and small nightclubs.
How these exemptions were derived would seem to involve some sort of legal slight-of-hand, as a review of the code reveals almost no loopholes. Calls to both the city (which is chiefly responsible for enforcing the tax) and county legal and financial departments shed scant light on why some venues were favored over others. County deputy law director Mike Moyers makes perhaps the most telling comment in observing that "the city is doing the interpretation."
What is clearer is that owners and promoters associated with the smaller venues feel the amusement charge is both a hindrance to creating a more vibrant nightlife and an albatross unfairly thrust on those enterprises which seem least able to bear its weight.
"It makes no sense whatsoever that the little guys are being taxed," says Smith. "It's the little guys who are struggling, providing the entertainment night after night. It's probably the largest issue we face, especially on the club scene."
"It's a killer," says Kevin Niceley of Market Square's Mercury Theater, "especially in a business where you may be talking about just a few percent profit margin."
And beyond the day-to-day financial burden foisted on the city's fragile entertainment infrastructure, many believe the tax puts smaller Knoxville venues at a disadvantage in competing for club-level shows with nightspots in neighboring towns. Neither Chattanooga nor Nashville currently has an amusement tax, nor Lexington, Ky., where all businesses pay a combined state sales and city business tax of 8.75 percent. Asheville, N.C., clubs also face no such tribute (and North Carolina sales tax is only 6 percent).
"It's especially touchy for small and mid-level acts, because many of them are working for very small margins on their expenses," says booking agent Mike Drudge of Nashville's Class Act Entertainment, explaining that many clubs lure out-of-town bands by offering a percentage of the gate.
"There have been instances where shows I might have booked in Knoxville haven't gone through because of money, and an extra 5 percent might have made the difference," Drudge says. "Most of our people are working with about a 10 percent margin, without figuring in all of the traveling costs. Any added expense makes it harder for the shows to work."
County finance director Kathy Hamilton was privy to some of the negotiations when city and county officials last revisited the issue, and she believes that despite the apparent bureaucratic voodoo, exemptions were granted to those interests with louder voices and more effective lobbies. She suggests that the solution for small club owners may lie in organizing and raising a collective voice against a tax that, on its face, would seem to unfairly target a sector of small business.
"The exemptions were meant to try and help the people complaining they were being hurt, like the mid-sized and large concert venues," Hamilton says. "I think there was some attempt to be sensitive, but it could be that things have changed. It could be an issue whose time has come again."
Noise About NoiseOn Sept. 11 of last year, then-KPD beer inspector David McGoldrick faxed a belligerent memo to Old City and Cumberland Avenue bar owners threatening to shut down establishments that continued to play outdoor music via live bands or patio DJs. In doing so, he fired the opening shot in a noise war that had been brewing since the previous spring. He also set the tone for a pattern of enforcement that has been, at best, confusing and uneven, and at worse, damaging to the businesses that depend on outdoor entertainment during warmer months.
Just ask Tracey Wright. Former co-owner of the Frog, a small reggae bar that operated, on and off, for the better part of five years in the Old City, Wright believes the clamor over noise played a role in the club's demise last spring. Wright says the city resisted her effort to relocate the club's stage to the rear patio, and she still believes the move might have helped resuscitate the flagging business.
Strictly speaking, outdoor amplification is, with a few exceptions, illegal within Knoxville city limits; when patio music suddenly became de rigeur at several area drinking establishments in the spring of '96 (prompting a few complaints), the city law department responded by excavating a little-known city ordinance that prohibits such outdoor merry-making.
To its credit, KPD distanced itself from McGoldrick's initial threat and continued to permit patio carousing at Old City and Strip establishments, although warnings, and occasionally citations, were still issued, often to bar owners perplexed by a seemingly erratic enforcement. The resulting uneasy truce between police, residents, and club owners points to the crux of the issue, however--that the question of noise goes beyond the vagaries of day-to-day law enforcement or the indecision of local lawmakers but rather begs Knoxvillians to decide whether they truly want "safe" districts where loud, vital nightlife is not only permitted, but encouraged.
For some, undoubtedly, the answer is no. "Sometimes it becomes a big noise war [in the Old City]," says one downtown merchant and resident. "Music should be ambient, something in the background, not something that intrudes on the neighborhood."
Others, however, maintain that complaints have come primarily from a tiny group of residents and that most club owners have been accommodating when police direct them to turn the volume down.
"For the last part of our existence, I thought problems with residents were not a big issue. We had talked to a couple of them, and we weren't hearing many complaints," says Wright. Wright's and several other Strip and Old City clubs were cited for noise on more than one occasion, although both of the Frog's citations were ultimately dismissed. "I think the bottom line is that if you move to an entertainment district, you've got to expect some noise."
"A city needs to be alive, and a city alive is full of noise," says Old City property owner and landlord Kristopher Kendrick, echoing the sentiments of several merchants, bar owners, and others in the area. "If you don't like noise--trains, trucks, cars, bars, music--then you should move to the suburbs. This is exactly the kind of thing that prevents us from having a real city."
Whether Kendrick's vision of a loud, lively downtown entertainment district will become a reality is still much in doubt. A move to change the current ordinance looms; according to City Councilwoman Carlene Malone, the new statute may seek to reign in noise by limiting the distance from which the sounds emanating from a given establishment can be heard. Given that patio music is technically verboten, the revamping would ostensibly provide a measure of protection for bar owners.
But most owners believe such a revision would actually do more harm than good and would dodge outright the larger issue of how evening-dwellers can find a safe haven for their outdoor revelry. "They need to set up a couple of areas and let people do their thing," says Robinson. "That's what most cities do."
To a point, City Councilman Nick Pavlis agrees. A mediator of sorts in the debate, Pavlis believes inflexible limits would ultimately hurt club owners and suggests that play-it-by-ear enforcement may be the best solution.
"I predict we'll probably continue with what we're doing--letting the policemen on the beats sort the problems out," Pavlis says. "They know their beats, so they know the chronic offenders and the chronic complainers. But we've got to keep in mind that we are talking about entertainment districts, not a Sear's or Woolworth's type area. We want a place where people can go at night."
Flier FlapFor better or worse, the downtown area wouldn't be quite the same without band fliers; colorful, brash, often sensational, they envelop UT and Old City phone poles like so many vivid brush strokes on so much staid brown canvas. "They're an artistic extension of the bands and clubs they promote," says Smith.
To others, fliers aren't so much art as urban kudzu. "That's an area I have a sore spot with," says Pavlis. "They make the city ugly, and they're not fair to people who are willing to spend the money for proper advertising."
But Smith believes band fliers have been unfairly targeted in a larger debate that actually began with other, arguably more intrusive forms of power-pole signage. And he may have a point.
As is the case with outdoor music, the placement of signs on utility poles is technically illegal in the city of Knoxville, although problematic enforcement and a dearth of public outcry have effectively allowed the practice to continue. That changed two summers ago when Malone brought the issue before City Council after a series of calls.
Malone says most of those complaints were lodged by residents of outlying neighborhoods--Inskip, Fountain City, Pleasant Ridge--and concerned plywood garage-sale signs and commercial leaflets for weight-loss programs and summer job opportunities. "People were just tired of these things ending up in their ditches and [the wooden signs] blocking their vision at intersections," she says.
But in subsequent public meetings--and in ensuing local media coverage--Smith says band fliers, which pose no driving hazards and are relegated almost exclusively to downtown, increasingly became a focus of attention. "You'd look at a newspaper story and there would be a picture of a pole covered with band stuff," he says. "It was like, 'Wait a minute--this isn't really about band fliers.' "
Pavlis pressed the issue again at a council meeting last summer. Perhaps in response to his outspokenness, the city Public Service and Engineering departments last fall "purged" utility poles of all signs and began issuing cease-and-desist notices, with the threat of fines, to businesses when new fliers appeared. "No one is ever really clear about what the deal is," says Niceley. "We were hearing it was OK to do it around downtown, but now they're saying we can't do it anywhere."
Pavlis maintains that 100 percent compliance is indeed the city's goal, and he believes entertainment fliers are among the chief offenders. "You're never going to be able to control yard sale signs," he says. "It's the fliers where these businesses put them up with no intention of taking them down that are the real issue. They're a definite eyesore no matter where you go in the city."
Smith acknowledges that pollution is a legitimate but eminently surmountable problem where fliers are concerned. He estimates that A.C. employees post between 50 and 100 fliers every week, but remove old notices even as they staple up new ones.
Beyond that, he doesn't buy into the notion that band fliers are a major blight on the city's weathered downtown complexion. "We're not talking about nice, clean subdivisions, where all the complaints about commercial fliers are coming from," Smith says. "I think these are items suited to the locations they're in, around campus and around the clubs. Lots of these bands and smaller club owners don't have the money to take out ads every week, so this is an important part of promoting the entertainment scene."
Perhaps the best hope for budget-conscious local venues and music-makers lies in the practicality of comprehensive enforcement. Bob Whetsel, city director of public service, confirms that the city will stage another mass removal sometime this fall and that utility workers will continue to take down signs during routine maintenance.
But he also admits that the real trouble spots are in the outlying communities, where yard sale signs, weight-loss posters, and other symptoms of marginal suburban commerce often occlude motorists' vision at intersections and mar comparatively pristine residential areas with the sheer volume of posted paper and wood.
"Ultimately, it's a workforce decision," Whetsel says. "How much effort do you want to put into continually taking down fliers that don't constitute a hazard? In some places, there's really not a general public outcry about this."
Brown-bagging: SackedIt's 4 a.m. at the Boiler Room, the Old City's smoky, unfathomably dark after-hours dance hall, and lanky, long-tressed DJ Stormboy, aka Rob Taylor, is mixing beats with gleeful abandon, bounding from turntable to turntable and wantonly banging on the levers of sundry cybernetically pulsing audio components.
Yet something's not quite the same at this 4-year-old club, a favorite of sleepless rave kids and dogged weekend revelers alike; the dance floor is active, to be sure, populated with dozens of slender, frenetically-gyrating technophiles in impossibly baggy clothes. But on the club's dark fringes, the stylishly weathered old furniture set aside for the dance-averse is vacant, and attendance is perhaps half what it would have been on a comparable Saturday morning last year.
"We still get some decent crowds, but they leave earlier," Taylor sighs. "It used to be that at 6 a.m., we'd still have a full dance floor. It's made a dramatic difference in the atmosphere."
The 'it' Taylor refers to is a law passed last November that prohibits brown-bagging of alcohol between 1 a.m. and 6 a.m. Prior to its passage, the Boiler Room and a nearby competitor, the now-defunct Old City Late Night Club, provided after-hours havens where late-shift employees and other denizens of the night could dance, drink, and socialize until the wee hours of the morning. "To my way of thinking, they're putting a damper on someone else's lifestyle because they live differently from a City Council member," Taylor says.
Police Chief Phil Keith proposed the ordinance last year as an antidote to late-night crime, but his pitch to council was fraught with equivocation. Keith first complained that it was difficult for law enforcement to keep tabs on brown-bagging establishments, given the fly-by-night character of less reputable clubs that sometimes operate in poorer sections of town. But when Councilwoman Malone suggested setting up a registry to establish their whereabouts (since the practice remains legal during daylight hours), Keith resisted, inexplicably maintaining that KPD "know(s) where most of them are."
The mix of politics and petulance that seemed to fuel the ordinance would eventually bring beer board chairman Pavlis to wonder aloud, "What prompted this ordinance? That's the $1,000 question. My understanding from Chief Keith is that there had not been excessive problems [at the well-established clubs]."
KPD maintains that even the Old City's late-night establishments were sources of intermittent troubles (the Boiler Room was reviewed by the beer board two years ago after a series of minor incidents in its vicinity, but owner Harold McKinney says the board dismissed the case after he demonstrated most of the calls were unrelated to the business and that many came on weeknights when the club is closed). KPD beer inspector Ricky Ferguson maintains, through spokesman Foster Arnett, that "things have quieted down" since the ordinance passed.
But at what cost? One venue, the Old City Late Night Club, has shut down after staking tens of thousands of dollars on late-night brown-bagging, and McKinney says his business is reduced by more than half now that the club has essentially been rendered dry. Although McKinney doesn't hold much hope for the return of after-hours BYOB, he has taken the fight to court, contending that the city exceeded its authority by placing limits on alcoholic beverages other than beer (the case is currently pending in the Tennessee court of appeals).
Boiler Room counsel Sandy Brown explains that the club's case is grounded in the notion that state law provides for regulation of beer by local beer boards, but grants the power to govern the dispensation of other spirits only to the state Alcoholic Beverage Commission.
"Essentially, what we're saying is that the state permits them to allow liquor or not allow liquor," Brown says. "If you choose to allow it, you can't provisionally allow it. You have to accept the whole kit 'n' caboodle of state guidelines."
A final ruling may not come for months, however, and McKinney, Taylor et al. will otherwise continue to make the best of a less-than-festive situation. "I understand the need for regulation--we have always followed the same guidelines as if we were operating a standard bar," McKinney says. "But I don't understand outlawing it. We rarely had trouble. It wasn't a gulping frenzy down there."
Given the premise that the city has often been less-than-charitable toward its entertainment industry, how can lawmakers and law enforcers improve their hospitality quotient? Many club owners agree that reducing or eliminating the amusement tax would be a good first step. "That extra 5 percent would help a lot of people out," says Niceley.
But the frustrating question of how to create an atmosphere where a spectrum of lively night-time entertainment venues can prosper goes beyond any single tax, ordinance, or policy. Smith notes any number of other entertainment-related issues, from the scale reduction of the raucous downtown street parties the city once hosted to often mystifying patterns of codes enforcement at nightspots, that he believes are no less a part of the trend.
And in that sense, complaints about single issues are misleading, in that those single issues are more broadly indicative of the attitudes that often seem to underlie a level of public policy-making in Knoxville.
"There's no conspiracy, per se," says another owner. "But there does seem to be a sense of paranoia about anything that has to do with nightlife. It's as if certain kinds of entertainment are frowned upon around here."
To A.C. Entertainment promoter Troy Sellers' way of thinking, the bottom line is the bottom line, and the best way for local entertainment entrepreneurs to make headway in a sometimes hostile climate is to raise awareness of the role a diverse nightlife can play in a mid-sized burg struggling to re-energize its frail center city.
"I think the general idea that needs to be conveyed is that the entertainment elements of an economy can be a catalyst for development--in restaurants, in retail, in tourism," says Sellers. "We want to work hand-in-hand with the city in developing downtown, and we don't want any animosity. But when we have things like amusement taxes or restrictive noise ordinances, or we write people tickets for having a beer with their pizza [at Tomato Head], there's something wrong with the overall attitudes. If we really want a more culturally and artistically diverse city, we've still got a long way to go."
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