Jack Nichols (sworn) 2501 Kenmore Circle, stated he is an attorney representing the Padgetts and would like to ask Mr. Fulcher a few questions. He questioned if Mr. Fulcher had evidence of the sale of tickets and fees relating to the house concerts with Mr. Fulcher stating only the information on the website about donations, he does not have any direct knowledge about fees or sale of tickets other than that. Attorney Nichols questioned if there is an ambiguity in the code it is his understanding the normal approach is to use Blacks Law Dictionary. Mr. Fulcher pointed out if the code doesn’t have a definition of a legal term they can refer to Blacks Law Dictionary. Mr. Nichols read the definition of “business” from Blacks Law Dictionary and asked if Mr. Fulcher took that definition into consideration in making his interpretation with Mr. Fulcher indicating he did not, he based his interpretation on the prima facia definition in the code.
Attorney Nichols pointed out through a public records request they got information that there was an anonymous complaint received by someone in the Inspections Department named Barbara. Attorney Nichols questioned if Mr. Fulcher knows who made the complaint and whether the complainant is a city employee with Mr. Fulcher indicating he does not know who made the complaint.
Mr. Coble questioned if Mr. Fulcher could explain the criteria he used in determining that the house concerts constitute a prima facia business under the code. Zoning Enforcement Administrator Fulcher indicated he thought they drew a direct connection with the activities which gives the appearance of a business. He stated when you look at the requirements in the code and the prohibited use section, he thinks they were interpreting prima facia business is if it gives the appearance of a business not necessarily if it collects fees, it is a business, it does not necessarily relate to collection of fees, but in this case, we have been told that donations are accepted, and you look at the connection of the property owner’s business of providing guitar lessons and recording studio is a direct connection between those uses and pointed out musical concerts are normally conducted in commercial areas.
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Attorney Nichols: This is a situation that involves an interpretation of the City Code. If you look at the application we have submitted we requested an application of a provision of the City Code with respect to R-4 to talk about whether or not the home concerts meet the definition of prima facia business. He also asked the board to look at the interpretation of what constitutes a temporary event. I think that the testimony or the evidence before you shows that this is not a business. The City Code does specifically say that whenever there are questions as to the interpretation Blacks Law Dictionary will be followed as are other dictionaries and that we have included that reference by the way in our application. But here, there is no sale, no fee, and no profit. This cannot be under any set of terms of the definition that we presented you a business. The homeowners request donations, if you don’t make a donation you are not excluded from the event. With respect to the sale of the CD, the owners, Ms. Padgett does not sell the CD, the artists sell them. If you will look through the materials you will see why a lot of these artists come from throughout the world particularly Ireland and some of the places in Europe and England, they have expenses, the purpose of those donations is to defray the cost of their of their expenses and not to compensate them as if they were to show up at Cat’s Cradle or some of those other places, so again, it’s not a business. If you look through the definition of what a prima facia business is, you begin to see that this is not anything approaching that. There are donations, there is no fee, the concert sometimes relate to her music instruction but not always. It’s been implied that the whole purpose of these concerts is to promote Ms. Padgett’s business but that is not correct. We submit that the proposed interpretation by the zoning administrator is incorrect. Also, Mr. & Mrs. Padgett were told during the application process and during their testimony today to you that “money was not an issue.” Well, if it is a business activity that’s by definition what makes money the issue and the other thing which Mr. Padgett implied to you is you get on a slippery slope when you begin to talk about the types of temporary events that might be included. The City Code allows a temporary event with a 20 day occurrence which is for the State Fair, so ah. . . well does that three-day event apply to Bible study meetings and Girl Scout and Cub Scout meetings, which by the way, collects dues every week that those groups meet in the home and the Indian Princesses and Indian Guide meetings, book clubs and every thing else, so what’s happened is the original information that was presented to my clients during this application process, the City has backed off of the basis for it until what you have here today and Mr. Padgett pointed out the obvious situation involving political applications which pretty much gets us very quickly into the First Amendment issue. What happens when you have precinct meetings and you take up precinct dues, what happens when you have political fund raisers and you collect dues, are you limited to three events a year? So, what we would submit is that this is not a business and if the Board should interpret and apply this to apply to only those temporary events where money is charged for the event and the interpretation should exclude temporary events where the host accepts donations from political candidates and activities, or accept donations to IRS approved non profit, by the way this proposed interpretation I included at the very end of our application but it will also say that if a Board decides it’s going to interpret the number of events if you could have one event for 24 hours, why can’t the Padgett’s have 8 events for 3 hours, it’s still 24 hours in the year, I mean at some point in time if they are going to enforce this, you need to have some specificity to keep it from being arbitrarily and inappropriately apply and we thank you for your time and attention and I will be glad to respond to any questions.
Chairman McBennett: Question, you were just saying that you would differentiate between types of events?
Attorney Nichols: Yes Sir.
Chairman McBennett: Explain that further.
Attorney Nichols: Sure, I think that the purpose in my mind, the clear propose of the code is to regulate temporary events particularly those who are collecting money so you can appropriately interpret the code so that somebody is collecting money for those events, or their donations for an IRS tax free status, that way, you are making sure that it really is a proper charitable event so you can begin to have at least some specificity and not subjectivity every time one of these questions comes up.
Mr. Coble: One question that I have, it seems that at one point of disagreement between you and your client and the City and Mr. Fulcher is as it relates to use of the word business in the code provision we are focusing on and as I heard Mr. Fulcher as I understood him anyway, he was saying he may well agree with you as to your Blacks Law definition of business but his interpretation and the City’s interpretation is that the word “Prima Facia” changes the meaning and expands it to include things that give it an appearance of a business and I guess my question to you is do you disagree with that reading of “Prima Facia business” or do you disagree that these concerts amount to the appearance of the business or both.
Attorney Nichols: Absolutely. Prima facia means in the first case, so what it does is create a rebuttable presumption in any quasi judicial proceeding including this one. We think we submitted evidence today to rebut that presumption. Mr. Fulcher admitted that part of the basis for his prima facia determination was the sale of tickets, the testimony you’ve heard today indicates there are no tickets that are sold, there are no fees that are collected; it’s just donations so what we would submit to the Board is we have rebutted that presumption and we have offered evidence to show that the initial basis that he offered you was erroneous. The second with respect to the interpretation if you will look at zoning code Section 10-2002 regarding definitions, it says, “all the words and terms used in Part 10 Chapters 1 and 2 have as their commonly accepted and ordinary meaning and then it goes on to say for a legal term, definition, or legal definitions or if not a legal dictionary, definition in legal dictionary will be used. That is exactly what we’ve done. We have used the definition of business from Black’s Law Dictionary and the evidence that you have works for Mr. Fulcher and from my clients show that this is not a profit making activity and it’s not a business.
Mr. Coble: Of the other point that you raised, I’ve to just hear your response of those as well. The other factors that he relied upon in addition to fees was with the connection of the concerts to what I assume you would agree to some business of guitar lessons and, I just haven’t decided and that, thirdly concerts ordinarily take place in commercial venues. Could you respond to those two.
Attorney Nichols: Sure, but that is boot strapping on his assumption that it’s a business. I think there is not evidence before you, Ms. Padgett can testify to that fact that I discussed this with her. Some of these concerts do relate to her students some of them do not. It’s not like these concerts are a requirement that is imposed on them as a portion of the lessons that she teaches. If that were true then I think Mr. Fulcher would have a point. If there were some condition that they had to fulfill as part of their instruction that they participate in these concerts. But that’s not true, I think what happens is Mrs. Padgett is an artist and she is well known in this area of music and some times it’s her students and sometimes it’s these performers and it’s a difference between these two and to show that it is a basis for marketing is to say that just because I am a lawyer anybody that asks me for legal advice I’m marketing though I wish that were true but I sure don’t get a lot of business that way. Ah, so I just think it proposes too much.
Mr. Van De Carr: I got two questions, Mr. Nichols, one is about business and one is about temporary events, I’m sorry if I’m beating a dead horse here. What would you say about an argument that the code does not prohibit businesses in fact, it only prohibits prima facia businesses, it doesn’t matter if it is really a business, but if it looks like a business and smells like a business then whatever it is, that’s prohibited.
Attorney Nichols: Because what my response is, the reason you have a prima facia standard is this group is a quasi judicial group you sent as sort of like a people’s court and so when you have that initial prima facia offer of proof then the question that you need to determine in this proceeding and all future proceedings is there enough evidence that is presented to support that prima facia business. In law, you cannot have sort of a prima facia situation, have other evidence and let that stand alone.
Mr. Van De Carr: So it’s your position that the code really only prohibits real businesses, it doesn’t prohibit things that just look like businesses?
Attorney Nichols: yes sir.
Mr. Van De Carr: Okay that’s your position on that, okay.
Attorney Nichols: I do think it is the Zoning Administrator’s burden to bring those cases to the board and code allows him to make that prima facia initial proposal the same way as a prosecutor in a criminal case has to make initial burden of proof and the defense is allowed to offer evidence to show that initial offer of proof is insufficient.
Mr. Van De Carr: On the temporary event brought ah....is it your position that more than three temporary events are prohibited by the code?
Attorney Nichols: I’m not sure what this provision of the code says because it’s pretty murky to me. First of all, it presupposes that it is a business, I think, the way it reads, so you have to get to second base and say it is a business to even talk about temporary event. But let’s assume for purposes of argument that that is where you are and if you look at the code it says, “a temporary event lasting one day shall be permitted on premise without complying with the conditions 1 thru 8 which are listed in a laundry list elsewhere provided that no more than three temporary events in any one calendar year shall be permitted on that premise. In all temporary events lasting more than one day or occurring more than 3 times on any premise in any one calendar year shall meet the following and then there is another laundry list. Well that’s the point that I am making. Ah, if collect donations at a cub scout meeting, which I have done in my home, is that covered, if you collect money for your book club or your bridge club or your precinct meeting, is that covered? Are those temporary events? Can you only have three a year, if I were pass the hat it by Thanksgiving or Christmas dinner to pay for the cost of turkey, would that be covered? I mean yeah, at some point in time, some of these things simply don’t make sense.
Mr. Shear: The slippery slope argument.
Attorney Nichols: yes sir.
Mr. Shear: Okay.
Mr. Van De Carr: And I don’t have the code in front of me, I don’t see the word business at all when temporary event is discussed in the application for our review. It may be in the code but you are saying that you think that is inherently.
Attorney Nichols: Implicit yes sir, it is part of the enforcement.
Mr. Fulcher: The temporary event cited to allow them to hold three events without complying with section of the code.
Mr. Van De Carr: That is why it is really separate in my mind.
Mr. Shear: Mr. Nichols, the people who ultimately receive the monies that are donated or they IRS approved nonprofits?
Attorney Nichols: No, it’s just the artists that come.
Mr. Shear: And where they do this as their professional and this is their income?
Attorney Nichols: I don’t know, you will have to ask Ms. Padgett that.
Mr. Shear: Are they reporting it on their income tax do you know?
Attorney Nichols: I don’t know the answer to that either. It is my understanding that the money that was collected was to pay their travel expenses to come here
Mr. Shear: Which you do not know if that is indeed true.
Attorney Nichols: Assuming that’s the case then if they are reporting on their income tax and they can show the travel expenses as an expenditure that is deductable and they can show this as revenue is an offset against that but I think you need to ask Mrs. Padgett that question.
Mr. Shear: Okay I will do that.
Mr. Nichols: I think Mr. McBennett wants to finish with me first.
Mr. Coble: Yes, I would like to ask Mr. Nichols a question both you or the City have given a parade of horribles argument that, in your view of this interpretation is upheld it may be later held to cover boy scout meetings and such, and Mr. Fulcher’s parade of horribles is if we overturn his interpretation, it would open the flood gate to people having concerts in their back yards, in their homes and in all manners in the city if you could respond to that I would . . . . .