An Interview With Cindy Harris

Cindy Harris and her husband Rick Heath have been ensnared in a legal battle with O’Hara Township, PA since 2003 over their right to performances in their home.

AP: I heard that as of yesterday (June 11th), your friends in Colorado got some pretty good news…

(Editor’s Note: On June 11th, The Boulder County Commissioners Office lifted their ban on House Concerts pending a September hearing to adopt permanent regulations)

CH: Well, it's good news and bad news. The good news is that the County won't enforce the cease and desist order for the present. The bad news is that the temporary conditions don't really resolve the problem. They permit something called "house concerts" under fairly restrictive conditions. But the regulation offers no way to distinguish between a "house concert" and, for example, a political fundraiser with live music, a child's birthday party with live music, or any other kind of private party without an officer knocking on the door while the event is in progress to inquire. That knock on the door (and any subsequent actiion taken based on the content of the party rather than factors like noise, parking violations, running a commercial enterprise, or vandalism) is purely unconstitutional.

A better solution (and one that we've been proposing out here) would be to remove the zoning authority's permission to interfere with a private event based on content. The easy way to do that for most ordinances is to add "private parties" as a permitted use. The zoning authorities can regulate based on time, attendance, frequency, parking, noise, smoke or anything else that they can get the community to agree upon, but it would remove the necessity for the authority to decide whether a particular type of party was permitted or not. Any kind of private party would be ok as long as it didn't violate those "nuisance" parameters, and of course house concerts are pretty sedate as parties go.

Anyway there's a long distance to go before Greg and Debby are out of the woods.

AP: Why did you begin hosting house concerts? Did you feel that there was a void that needed to be filled?

CH: Actually it was kind of an accident. In the course of a conversation with my autoharping buddies about hosting house concerts, a fabulous performer I knew volunteered to do a concert at my house. I said yes, and it was so much fun that I started inviting other musician-friends to perform in my living room. As a musician myself, I meet and get to know an awful lot of interesting and talented performers, and since we're always looking for opportunities to get together and visit and play, hosting them for a house concert and getting to share their talents with my local friends is just a perfect opportunity.

AP: Do you feel that the music venues in your market adequately provide fans with what they are looking for?

CH: Well, we've got three families in the area that host between 5 and 10 concerts per year, plus another 4 or 5 who host an occasional concert or 3. That's a whole lot of choice. We also have some great venues for more "name" singer-songwriters at cafes on the South Side, the Calliope series at Carnegie Lecture Hall for bigger "traditional" acts, a great jazz scene, and of course the usual panoply of big rock concerts. That doesn't even count things like the Pittsburgh Folk Festival and nearby festivals in PA, WV and Ohio. All of those together make for a pretty dynamic music scene with something for everyone.

AP: Are House Concerts anything like club shows?

CH: I think of these events more like a potluck supper where people bring food and "chip in" for the music, just as one might "chip in" for pizza and beer at a Superbowl party. It's nothing like a theatre, and not much like a club. Here's a photo of what my living room looks like during a house concert:

http://pages.prodigy.net/cah/concert/graphics/fullroomsm.jpg

AP: How many concerts do you host each year?

CH: Anywhere from 4 to 8.

AP: How many people attend?

CH: It varies. I've had as many as 55, but most often there are 25-35.

AP: Are your shows invitation only or do you promote them to the general public?

CH: Invitation only. The other local hosts and I run a Yahoo! Groups e-mail server that we use to invite people. To get on the list you have to either know someone who's already on the list, or you have to know one of us directly.

AP: Do you charge an attendance fee? If so, what percentage do you keep to cover your costs?

CH: We don't charge a penny. But we do put out a basket and ask people to contribute to help pay the performer and keep the music coming. For most parties, we suggest $10, and most people do contribute. Everything in the basket at the end of the night goes directly to the performer. The only cost we have is for paper goods, pop and coffee, and whatever we decide to contribute to the potluck meal.

AP: Why do you think that the law got involved with your series?

CH: A neighbor complained anonymously to the Township that our parties were "commercial activity" and were thus not allowed under the terms of the Zoning Ordinance. The Township responded by issuing a cease and desist order without even speaking to us. Even after it became clear that our gatherings were certainly not any more "commercial" than a Superbowl party where people chip in for pizza and beer, the process had taken on a life of its own. And when the Township chose to try to enforce the cease and desist order by prohibiting ANY parties with live music at my house and would not discuss the matter any further, we had no choice other than to file a civil rights complaint in Federal court.

AP: Please describe your present legal battle - Why is your case so vital form the future of house concerts?

CH: Actually it's about far more than house concerts. When we started looking into this, it turned out that the way our local zoning ordinance (and apparently many other local ordinances) are written, the Township could choose to prohibit anything from birthday parties to political fundraisers to sports parties to group activities for homeschooled children. All that is required for the Township to be enabled to take action is a complaint by a neighbor that "non-permitted activity" is taking place.

That's what happened to us: there were no violations of any parking, noise, vandalism or other statutes, only a complaint that such parties should not be allowed to take place. At first the claim was that they were "commercial activity," but three years later (with the cease and desist order against "commercial activity" still in place and with us in scrupulous observance of the terms of the legal finding) the complaint expanded to include any activity that was not specifically permitted in the ordinance and the Township sent us a threatening letter based on that premise.

Since there are only 22 "permitted uses" for R2 zones in the ordinance and "house concerts" were not included, it was obvious to the Zoning Officer that our parties should not be permitted. Of course the ordinance also does not specifically permit sports parties, political fundraisers, book club meetings and the like, so you can see why we've been so firm about insisting that the ordinance be revised rather than going along with the Township's heavy-handed implementation of the ordinance as it stands. It's simply not constitutional for a local municipality (or anyone else for that matter) to prohibit private gatherings based on the purpose of the party.

That's why this case is so vitally important: if we agree to voluntarily give up our rights to free speech (music is considered free speech by the Supreme Court) and freedom of assembly, not only will it affect our own ability to host parties with live music, it will also enforce the same surrender of rights on any other house concert host living in a town with a heavy-handed municipal authority, and potentially on those who host everything from political fundraisers to group activity sessions for home schooled kids.

Our Federal civil rights complaint was dismissed by the judge last November on the basis that it was "not yet ripe for review" since the Township had not actually knocked on our door yet, only threatened to do so. We believe that the judge misread many of the precedents and that the letter we received in 2006 was clearly prior restraint of our First Amendment rights to freedom of speech and freedom of assembly, so we have filed an appeal to the Federal Third Circuit Court of Appeals. That appeal is currently pending. We've just completed a recommended period of mediation, unfortunately with no results, and are waiting for the judges to issue a briefing order.

Once those briefs are filed, we expect the Third Circuit to hear oral arguments, probably sometime in the fall. Assuming that we prevail, the complaint will probably go to trial sometime early next year.

You can find more details including briefs at:

http://livingroommusic.googlepages.com

AP: How do you think that yesterday's overturning of the CO case will impact the future of House Concerts?

CH: The situation has not really been resolved.

As it sits right now, I think the temporary rules are still not good even for Greg. He can only host parties of a particular size and timing, and if he hosts another kind of party that violates those restrictions, a neighbor complaint about a violation of the temporary rules on the mistaken basis that he is hosting a "house concert" could bring an officer to Greg's door only to find out that his bridge party or whatever is not one of the regulated kind.

That knock on the door is a pretty clear 4th amendment violation (illegal search and seizure), and if it happens Greg is going to have to decide whether to let it slide or to file a Federal civil rights complaint as we have.

House concert hosts from California have already weighed in on this to say that their parties do not end by 10pm and are often more than 50 people. No evening house concerts around here end by 10: the concert may be over, but the people often hang out to talk and play music together until much later. So in general I think this is not a good thing.

AP: Some argue that House Concerts are legitimate businesses –do you think that Presenters should be exempt from restrictions imposed upon commercial venues?

CH: What kind of a "commercial enterprise" is it that does not advertise, has no income, and spends money to entertain those who attend?

I don't think it's about being "exempt from restrictions imposed on commercial venues" at all. House concerts are private parties, period, at least the way most of us host them. They are no different than football parties where people chip in for pizza and beer. We don't like to watch football, so we chip in to interact with a live performer in an up-close way that you just don't experience in a formal venue or even in a club.

I still can't imagine why anyone thinks that we're running any kind of a business when we invite people to our homes to enjoy live music and our guests are so excited about the prospect that they're willing to chip in to cover the cost of the performer.

I've heard the argument voiced that for the performers house concerts are a business. That is true: performers do get paid, they perform at house concerts because they anticipate being paid, and booking themselves at house concerts is part of their business model. But the guy who mows my lawn, the guy who delivers pizza, the piano teacher who comes to teach my kids in my living room, the caterer who serves a meal to my guests, and the string quartet that performs for my upscale cocktail party also do those things because they anticipate being paid. No one would seriously consider prohibiting that caterer or quartet from charging me for the service they provide or me from paying, so it's illogical in the extreme to say that because a performer is paid for his/her services there's some kind of non-permitted commercial activity taking place.

If I host a catered dinner, that doesn't mean I'm in the catering or restaurant business, and if a piano teacher comes to my house to teach my children, that doesn't mean that I'm in the business of giving piano lessons. Why should paying a performer to entertain at my parties put me in the "concert business?"

AP: Commercial live music venues are required to pay insurance fees, as well as royalty fees to ASCAP, BMI and SESAC. Do Presenters pay any of those fees?

CH: The ASCAP/BMI thing was finally resolved at Folk Alliance this year with royalty organizations stating clearly that private parties were not required to pay royalties, and they clearly defined what "private party" looks like. Some house concert hosts will have to change some of their practices to conform to that definition, but by and large most are already in compliance including my husband and me. We have homeowner's insurance including an "umbrella" liability policy, and that covers any party guests. I can't imagine what else should be required.

AP: How will Presenters adapt if new laws are passed to regulate House Concerts?

CH: Impossible to tell without seeing exactly what the rules might be.

AP: Should club owners and bookers feel threatened by house shows?

CH: No.

AP: Do you feel like you should be adversaries or on the same team?

CH: Personally I don't feel one way or another. I host performers who, by and large, aren't being hired to perform at larger clubs. I certainly don't think that anything I'm doing in my home is any threat to a club owner who wouldn't ever consider featuring these performers. And although I don't see any direct positive effect on club attendance, I imagine there might be an indirect effect as more people find out about what fun live music is and start to seek out more of it.

AP: What is your most memorable show? Any stories come to mind?

CH: Wow, that's a tough one to answer! I don't think I've had a house concert that has NOT been memorable in some way. How much better does it get than having a larger-than-life performer like Bryan Bowers who can captivate an entire stadium sitting right in front of you singing an improvised narrative about his personal experience first hearing about 9/11 while visiting friends in the Alaskan wilderness? Or to hear the amazing trio Hot Soup! singing a cappella without amplification and filling the entire space with sound that literally vibrates the bones of your head?

Or to watch Dwight Diller play the banjo so close up that you can finally see what he's doing with his fingers and body to make "that sound"? No, it just doesn't get any better than that...

AP: Any words of wisdom or advice you'd like to share?

CH: Everyone should find a way to make live music a part of their lives. It doesn't matter if you perform or if you support performers as a host or as an avid listener. Getting close up to people who have real talent and a passion for performing live music is something that everyone should experience.