The Night They Raided Chelsea: City Declares War on Nightlife

"I've gone through times in business when it was like a western?drugs, sex?there were no rules. The quality of life for some neighbors was literal hell; your heart went out to them. I wish I could have seen this type of law enforcement then." That's how John Blair, one of the city's prominent nightclub promoters and bar owners-and a member of Manhattan Community Board 4-responded to the Great Chelsea Nightclub Massacre.

New York's nightclub scene was actually rocked on two fronts. On Friday, March 31, six nightclubs in Chelsea were raided; four of them were shut down. The following Monday, a judge dismissed a lawsuit challenging the universally loathed Cabaret Law.

The Cabaret Law, an infamously archaic, Prohibition-Era regulation that forbids dancing without a license has received plenty of attention over the years. While this license can be a problem for smaller nightclubs,even licensed clubs (there are less than 300 licensed establishments in New York) have to worry about obeying the letter of another law, more draconian and casting a far wider net than this one. After the police swooped down on Chelsea, many quickly called the police actions homophobic. The neighborhood is, after all, world famous as a gay Mecca, and, even though mainstream bars and clubs have become more numerous over the years, the area remains well known for its clubs that cater to a gay clientele. Tim Gay, who worked with a pro-nightclub organization called the Disco Task Force in the 1980s and '90s (and yes, he's gay), said he was surprised at the recent busts on gay nightclubs after a relative calm in recent years.

"It was pretty slimy in the '80s-what was being done to gay clubs," he reflected. "I saw a decline to zero percent harassment against gay and lesbian clubs by the year 2000." Gay himself is suspicious of recent police motives. But representatives of the NYPD and various other nightclubs dismissed out of hand the notion that there was a homophobic element to the raids.

An April 6 article in Gay City News reported that an e-mail sent by Paul J. Browne, the NYPD's chief spokesperson and a deputy commissioner, said that the police only believed two of the six raided clubs served a predominately gay clientele. Also reported were that a total of 46 clubs have been closed this year.

Robert Bookman, an attorney for New York Nightlife, said the raids were not so much homophobic as they were intent on being successful. "They want to go after clubs?large clubs in general," Bookman said. "Since they're using large amounts of man hours, they want to go where they're going to be successful. It's not anti-gay."

Still, Brian Landeche, owner of Splash Bar, one of the bars that was shut down but re-opened a day later, said the gay community still feels targeted. "Gay people feel threatened when this happens and lose a vital community gathering space," he said.

Anonymous tips on 311

Blair agreed the raids were not homophobic, but were the outcome of two separate developments: "No smoking in the bars came down and pushed everyone outside at that time the 311 calls were initiated. They were two separate things, but they magnified each other."

Other pro-nightclub representatives, at an impromptu meeting at the Roxy only days after the nightclub raids, agreed that the city's anonymous complaint call center, 311, is to blame for the recent busts. Blair said areas high in 311 reports are being targeted and there's pressure on local precincts to make it look like something is being done. The clubs are an easy target.

"311 is a good idea, but it's really run amok," Blair said. "Judging by the number of complaints they get, they're trying to show they're doing something about it-i.e., closing clubs and making headlines. It needs to be revamped to reflect what is really going on. First thing you do is make it so they can't do it anonymously. If you make a 911 call anonymous, they're not going to listen to you: You [should] have to identify yourself. Also, you have to look at the situation. Is the same person calling over and over and over again? Is it 100 people calling or two people calling 50 times each?"

Not everyone agrees 311 is being used to shut down clubs. The Lower East Side has also seen club raids recently, but Rebecca Moore, a member of the Lower East Side Alliance, an organization that operates the Web site toomanybars.org, said, at least on the LES, bar proliferation is the real problem. "We wouldn't be hearing about bars being raided if there weren't so many." Moore said. "Police usually have more important things to worry about. It (311) is not an effective tool to alleviate problems for our residents. I just file it for records, it doesn't really do any good. It's better to file a complaint in writing to a community board."

Alan Gerson, the City Councilmember for District 1, also said 311 is not the problem. "That sounds a little bit like a crybaby syndrome," he said of club owners complaining about 311. "The police know which clubs are bad for the neighborhood and quality of life."

Gerson said anonymity is also an important safeguard: "You have to let 311 calls be anonymous. If not, that defeats the whole purpose," which, he pointed out, could lead to intimidation. Gerson is working on a proposal to be introduced later this spring that will address some problems associated with nightlife, he added. "There's a failure to plan in places where nightlife should be allowed to thrive and foster," he said. "When considering nightlife, livability should be first. Residents are entitled to a reasonable amount of peace and quiet, but we're also New York and we're suppose to have a nightlife." Gerson also said nightlife should not be shut down "due to a few bad apples, that could happen to any place."

Nuisance Abatement: the real threat Any reforms done in regard to nightlife have to take into account the city's Nuisance Abatement Laws. Club owners and observers say they become the most serious threat to New York's existence as the fabled city that never sleeps. "They are among the details we're working on" Gerson said of his proposal. "There needs to be better checks and balance that corrects the irrationality of the current system."

The Nuisance Abatement Laws were originally used to hold property owners accountable for brothels or massage parlors found on their property. In other words, if illegal activity is going on in your establishment, you're liable for it-whether or not you knew about it or abetted it. Today, the law is viewed by many club owners as a convenient tool for law enforcement to shut down any establishment it targets. When the law was enacted, three arrests for serious violations were needed to shut down a business indefinitely. At the Roxy meeting, Landeche said he went 15 years without a violation until the advent of 311. His club was ultimately shut down when the same drug dealer sold drugs to undercover agents in his club on three consecutive days in January.

Those were the three serious violations needed under the Nuisance Abatement Laws to shut down the club. "I think it's anti-nightlife, not a city-wide drug bust. If that was the case, they would go after college dorms at Columbia or any rock club" Bookman said.

Attendants at the Roxy meeting said police have walked directly into their clubs and arrested people immediately without their having committed any crimes inside the club. Their actions proceeded as though they had known the patron was a drug dealer who frequented their clubs. But the police pointedly made the arrest on nightclub property so they could use that as a violation against the club. Arrests made nearby-not on club property-can be attributed to the club and held against the club owner.

How far does a club extend outside? "People are generally complaining about what's going on outside the club, not what's going on inside the club," Bookman said. "They get disorderly premise violations all the time for smoking. They get dismissed, but they [the police] can say they're doing something." Blair said most of the arrests made in his club have already been dismissed, including seven of the eight underage drinking charges and all but one of the several drug charges.

"We've come a long way from the original reasons for the Nuisance Abatement laws. That's something we might challenge eventually," Bookman said. Unchecked expansion of power worries Bookman. "We're seeing arrests being used instead of convictions. Now we're seeing affidavits that say your patrons are doing something wrong. There needs to be a review in the court system for the use of the law."

Blair, who has been in the nightclub business for 28 years and on the community board for seven years, says he understands the need for such laws. He said he's seen neighbors have their quality of life ruined because of clubs.

"The Nuisance Abatement Laws will allow the government-the city-to close down establishments that would ordinarily take a long time to close down," he said. "I would hate to see that taken away from the Police Department."

Still, he believes that changes are necessary. First, there needs to be a standard for what it takes to get a club closed. Secondly, an independent third party should review the situation that takes into account what the club is doing to curb underage drinking, drug use and noise.

Nightclub owners say the best form of protection is to be proactive and use self-policing methods before it's a mandatory condition, which is often the case when their clubs re-open. Club owners at the Roxy meeting mentioned everything from bar monitors, undercover agents, extra security, metal detectors, professional EMTs, and even drug-sniffing dogs at the doors.

Despite such extraordinary precautions, however, the police are still raiding them and shutting them down. Lack of police cooperation is cited as a reason. The police have been hesitant to allow paid-duty officers (uniformed officers that act as security at clubs while wearing their uniforms). Interestingly, the New York Blade has reported that the city allows off-duty cops to work at Madison Square Garden, Yankee Stadium and other large, politically well-connected venues.

What bothers local clubowners most is that Stephen Hughes, commanding officer of the 10th Precinct covering Chelsea and Hell's Kitchen, has made public statements about the need to be adversarial when it comes to dealing with nightclubs. "What I hope is to come out of this is they realize they can do their job differently and better with our cooperation," Blair said. "We're not their enemy, we're just business people trying to make a living."

With little police direction-club owners are given a report on what they must do only after they have been raided-Blair said club owners are putting aside competition and rallying together. "I think we have ourselves to blame for not being more organized, the lack of us not doing that has led to what's been happening. This will galvanize everyone. Unfortunately, human nature is reactive, not proactive."

Blair predicted the end to New York's nightlife as we know it if the city doesn't improve the way it treats nightclubs. "There's always going to be nightlife, you can't win a fight against human nature," he said.

"What they're going to do is drive out the legitimate operators because it will be too expensive and dangerous to do business," Blair said. "Only the fly-by-night nightclubs who open here and there for six months out of the year will be here. These are the dangerous nightclubs. They don't care about their patrons, they just care about getting their money."

Club owners emphasize that they help define the city and attract the talented young people who make the place a global capital. "We need to emphasize that nightlife is an important aspect of society. Nightlife is a great part of life and New York," Landeche said. "It's time to say we belong here like McDonald's or Bed, Bath and Beyond."

------ How the laws are used to shutter clubs

Nightclub regulations have always been controversial in the nightlife capital of the world, but the law affects clubs differently.

The primary factor involves whether or not the club has a Cabaret License. Smaller clubs, usually located in areas that are more residential, are the ones affected by the infamous Cabaret, or "Footloose" Law, which dates back to 1926, and require any establishment that sells food or drink to have a Cabaret License if three or more people move in a synchronized fashion, or if three or more musicians are performing (or any with percussion or brass instruments). Paul Chevigny, an NYU law professor and author of Gigs: Jazz and the Cabaret Laws in New York, said the laws were "rooted ultimately in racism."

At the time, most of the clubs with live music played in Harlem with mixed-race audiences and performers. In 1986, Chevigny won a lawsuit for the Musicians Union that declared the three-musician rule unconstitutional. Last June, Chevigny and Norman Siegel filed a lawsuit on behalf of four social dancers (swing, ballroom, house and Goth) and a non-profit club (swing) that sponsors dances. Their argument was that social dance was a form of free expression under the New York State Constitution, and, also, that zoning regulations for clubs were arbitrary. Judge Michael Stallman dismissed their case on April 3, although he suggested that the law should be reformed. Chevigny said he is unsure if they'll appeal and does not know of anyone else working on legal challenges to the Cabaret Law.

Besides the freedom to dance, the Cabaret Law also regulates where dancing can take place. In 1961, the law was changed so that a Cabaret License could only be issued for manufacturing and commercial zones. That's why clubs tend to be in desolate edges of town. Before this amendment, there were upwards of 12,000 Cabaret Licenses. Today there are under 300, compared to over 5,000 liquor licenses. Since the Cabaret Licenses are so rare, most licensed clubs cater to higher-spending crowds.

Near the end of 2003, the Department of Consumer Affairs (with support from Mayor Bloomberg until he backed off during his re-election efforts in 2005) proposed a new kind of nightclub license. Any nightclub that wanted to remain open after 1 a.m., residential establishments that could serve 75 patrons, and commercial districts that host 200 patrons would be required to have the license. Licensed businesses would be regulated on noise levels not dancing. Various politicians and nightlife advocates shot down the proposal citing increased police power over clubs.

In many regards, problems are even worse if you do have a Cabaret License. While law enforcement won't shut them down for dancing, they have another powerful tool at their disposal called the Nuisance Abatement Laws. Robert Bookman, an attorney for the New York Nightlife Association, said the laws originally targeted brothels and massage parlors by holding the building owner accountable for any illegal activity done on their property. These business owners did not have to be involved in illegal activity; claiming ignorance was no longer a defense. The enactment of these laws is often attributed to the cleansing of Times Square. For a business to be shut down indefinitely there only needs to be three serious violations (such as underage drinking, involvement with illegal drugs or prostitution).

At the April 3 Roxy meeting, owners said it was impossible to monitor everything going on inside a large club despite self-policing efforts like metal detectors, undercover employees, professional EMTs and even drug-sniffing dogs. Bookman said what was most troubling about the laws were their expansion of power. Originally convictions were used to get clubs shut down, but now arrests, and in some cases affidavits, can get a club shut down. In other words, if enough people claim a club is engaged in illegal activity, it can be shut down.