Supervisor London Breed takes aim at your “right to quiet enjoyment”

by JIM MEKO

London Breed, the newly elected President of the Board of Supervisors, has been dragged into the perennial conflict between neighbors and nightclubs, siding with the entertainment lobby of course, as it continues to buy influence at city hall to pursue its mean-spirited agenda. 

Breed has introduced legislation aimed at protecting Places of Entertainment from complaints by their neighbors. The legislation attempts to deny recent residents the right to sue clubs as public or private nuisances. Long time residents are also included in the legislation, with a requirement that any of them who try to sell their property must disclose to lessees and purchasers “potential noise and other inconveniences associated with nearby POE’s.” These disclosure requirements would be recorded against a residential property in a Notice of Special Restrictions (NSR). Former Supervisor Gavin Newsom proposed the same thing in his unsuccessful Nighttime Entertainment Zone legislation in the late ’90s.

This is the California Music and Culture Association’s second assault on the rest of us. To avoid a nuisance complaint, all nightclubs have to do is obey the law. In 2013, Supervisor Jane Kim down-zoned 11th Street homeowners to “legal non-conforming” status to punish them for complaining about a couple of noisy nightclubs.

The Entertainment Commission, a civil body created at the request of the entertainment lobby, would be authorized to hold a hearing on new housing near nightclubs and to require the project sponsor’s participation in the hearing. The Commission would certainly be a controversial venue for this land use discussion since it is chartered to not only regulate but also to promote the entertainment industry.

Breed’s legislation attempts to exempt nightclubs from the California Health and Safety Code by arguing that they are such an important part of the city’s cultural fabric and provides such an important amenity to its residents that they should not have to undertake costly noise attenuation measures. “The imposition of these requirements may impose a significant financial burden on those Places of Entertainment, threatening their continued operation,” according to the legislation.

The legislation tries to justify these arguments by referencing Supervisor Scott Wiener’s “Economic Impact of San Francisco’s Nightlife Businesses” report, which erroneously attributes a $4.2 billion benefit to the city from nighttime entertainment. In truth 77% of the entertainment spending cited in the report was at restaurants. Only 4% was at nightclubs or venues with DJs.

Nuisance is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case law, according to a useful analysis by Wikipedia. Nuisance signifies that the “right to quiet enjoyment” of your home is being disrupted to such a degree that a tort (a wrongful act or an infringement of a right leading to civil legal liability) is being committed.

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