A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 19-22, regarding the feasibility of allowing small businesses to host live acoustic music performances without a license

Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai ANTIOVIS Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Katherine Sarmini Hoffman Samuel A. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 November 16, 2020 Louis A. DePasquale City Manager City of Cambridge City Hall, 795 Massachusetts Avenue Cambridge, Massachusetts 02139 Re: Response to Awaiting Report No. 19-22 Requesting that the City Manager Confer with the Appropriate City Department to Discuss the Feasibility of Allowing Small Businesses to Host Live Acoustic Music Performances Without a License, and if Feasible, Present the City Council with a Proposal to Allow Such Performances/seeking a Report on the Feasibility of Allowing Small Businesses to Host Live Acoustic Music Performances without a License and if Possible Present the City Council with a Proposal to allow such Performances. Dear Mr. DePasquale: The above-referenced awaiting report item asked that "... the City Manager be and hereby is requested to confer with the License Commission, the Cambridge Arts Council, the Community Development Department, the Police Department, and any other appropriate City department to discuss the feasibility of allowing small businesses to host live acoustic music performances without a license, and if feasible, present the City Council with a proposal to allow such performances." Because of the requirements set forth in G. L. c. 140, § 183A, which governs concerts, dance exhibition, cabaret or public shows of any description at clubs, restaurants, and other establishments, I am of the opinion that a home rule petition seeking general legislation pertaining to all municipalities in the Commonwealth or special legislation pertaining only to the City of Cambridge would be necessary in order to allow the City to permit live acoustic music performances on the premises of restaurants and other such establishments without a license. Facsimile [phone removed] Telephone [phone removed] TTY/TTD [phone removed]

, keeper Specifically, G. L. c. 140, § 183A states that "No inn holder, common victualer' of a tavern, or person owning, managing, or controlling any club, restaurant or other establishment required to be licensed ... and no person owning, managing, or controlling any concert, dance, exhibition, cabaret? or public show of any description to be conducted on any premises required to be licensed under the sections described above, shall as part of its usual business offer to view, set up, set on foot, maintain or carry on a concert, dance exhibition, cabaret or public show of any description, unless and until a license therefor has been issued by the licensing authorities." Furthermore, G. L. c. 140, § 183C provides that "any person described in section 183A who engages in a business required to be licensed by said section unless authorized so to do by a license in full force and effect, and any holder of such a license who violates any condition thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than one year, or by both...." Since under the plain language of G. L. c. 140, §§ 183A and 183C, restaurants and other such establishments required to be licensed under G. L. c. 140, § 183A are not permitted to offer a "concert, dance, exhibition, cabaret or public show of any description" without a license by the licensing authorities, in order to allow such businesses to host live acoustic performances without previously obtaining a license, the City must submit a home rule petition seeking general legislation pertaining to all municipalities in the Commonwealth or special legislation pertaining to the City only. If you would like us to draft such a Home Rule petition to be submitted to the City Council for consideration, please let us know. In addition to the requirements set forth in G. L. c. 140, 8§ 183A and 183C, live acoustic music performances at restaurants and other such establishments fall under Article 4—Use Regulations, Table 4.30—Use Regulations, Section 4.35(f) and (g) of the Cambridge Zoning Ordinance and Article 8, Chapter 8.16—Noise Control of the Cambridge Municipal Code (the "Noise Ordinance"). For those establishments which fall under Section 4.35(f)(1) and (2), i.e., "establishments where alcoholic beverages are sold and consumed and where no dancing or entertainment is provided," it is currently the practice of the Department of Inspectional Services to allow such establishments to have entertainment such as acoustic music as an accessory use to the principal use without the need to obtain a variance, only one to two days a week. A property with a principal commercial use, such as a restaurant, can also be the site of an accessory commercial use, such as entertainment. Superintendent & Inspector of Buildings of Cambridge v. Vilari, 350 Mass. 176, 177 (1966) (minor auto repairs are accessory to a lawful filling station). To be an allowed accessory use, a use must be subordinate to the principal use, minor in significance and reasonably related to the principal use. Town of Harvard v. Maxant, 360 Mass. 432, 438 (1971). Therefore, amplification cannot be used by an establishment which falls under Section 4.35(f)(1) and (2), and entertainment for five or more days a week at such an establishment would require that the property owner seek a variance since the entertainment would no longer be subordinate to the restaurant use and minor in significance. Section 4.35(g), allows "bar or other establishment where alcoholic beverages are sold and consumed and where 'A victualer is defined as: "A person authorized by law to keep a house of entertainment for the public; a publican. Someone who serves food or drink prepared for consumption on the premises." Black's Law Dictionary, (10th ed. 'Cabaret is defined as: "A room where musical entertainment is permitted in connection with restaurant business." Black's Law Dictionary, 6th ed. 1990). Page 2 of 3

dancing and entertainment is provided," and "dance hall or similar place of entertainment" in Business B, except B-1 and B-2, Business C, C-1, Industrial A, and Industrial B; if entertainment is to be provided outside of those areas, the property owner would also need to seek a variance. Allowing live entertainment as an accessory use only obviates the need to obtain a variance, and does not eliminate the requirement that a license be obtained under G. L. c. 140, § 183A. Therefore, any establishment seeking to have entertainment such as live acoustic music without amplification as an accessory use to the principal use would still be required to obtain a license as required under G. L. c. 140, § 183A. In circumstances where amplification is permissible under the Zoning Ordinance or as a result of a variance, in addition to complying with G. L. c. 140, 8 183A, the property owner must also comply with Chapter 8.16, Section 8.16.080(H) of the Municipal Code (the "Noise Ordinance"). Under Section 8.16.080(H) of the Municipal Code, the "operating, playing or permitting the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier, or similar device which produces, reproduces, or amplifies sound in any place of public entertainment in such manner as to be plainly audible at a distance of fifty feet from the source or to be plainly audible within a noise sensitive zone" is prohibited. Therefore, to the extent acoustic music performances may be permitted to occur, the restaurant or other similar establishment must comply with the Noise Ordinance. If you have any questions on this matter, please let me know. Very truly yours, Nancy E. Glowa City Solicitor 3 "Noise sensitive zone" means any area designated by the enforcement authority pursuant to subsection B of Section 8.16.040 of this chapter for the purpose of ensuring exceptional quiet. Noise sensitive zones shall include, but not be limited to, areas where noise sensitive activity occurs, such as the operation of schools, libraries open to the public, churches, hospitals and nursing homes." Page 3 of 3