Berkeley guitarist/composer John Schott’s Actual Trio concert outside The Back Room on Saturday afternoon is back on. The concert had been cancelled after the venue received a cease-and-desist notice from the City of Berkeley, but the announcement of impending new guidelines from the state prompted the venue to proceed. L to r: Dan Seamans, Schott and John Hanes

Sam Rudin thought he’d found the sweet spot. By closing off the west side of Bonita Avenue in front of his shuttered venue, The Back Room, he created enough space for a stage and about four dozen chairs spaced to accommodate a socially distanced outdoor audience. On Sept. 26, he started presenting the first in-person ticketed concerts in Berkeley since mid-March.

Though he was never able to get a green light from the City of Berkeley’s health officer, Dr. Lisa Hernandez, support from city staffers and the Downtown Business Association made him feel confident enough to book about a dozen concerts through Nov. 7. It all seemed to be going well until he received a phone call from a city code enforcement officer followed by a “cease-and-desist” email from the city attorney’s office.

Demanding that Rudin end the concerts, the email cited the state’s pandemic guidelines, which hold that “activities such as singing and playing wind instruments create an elevated risk of COVID-19 transmission that is not adequately mitigated by compliance with social distancing requirements…The State Blueprint requires concert venues to remain closed in all jurisdictions statewide.”

But Berkeley’s interpretation of the State Blueprint is hardly universal. Venues and restaurants around the region have been presenting music outdoors for the past two months without causing a ruffle (TonaLaura Jazz Duo, featuring the Berkeley couple of pianist Laura Klein and guitarist Tony Corman, perform Friday afternoon bayside at Riggers Wine Loft in Richmond, for example).

“It turns out when Dr. Hernandez looks at the State Blueprint she interprets it in a very restrictive way,” said Rudin, who canceled last weekend’s shows, and the Oct. 24 performance by Berkeley guitarist John Schott’s Actual Trio.

Hernandez did not respond to a request for comment.

“Her interpretation is not crazy,” Rudin said. “It’s arguable. But all the other counties have carve-outs and have found ways to safely allow things that people want. The state is keeping a close eye and wants looser interpretations to be available so each area can feel comfortable with the regulations.”

The John Hanrahan Quartet performing outside The Back Room on Sept. 26 in the first ticketed live concert in Berkeley since mid-March. Photo: Andrew Gilbert

Bobby G’s Pizzeria also received a cease-and-desist email demanding an end to the regular jazz combo performances that have been going since August in the restaurant’s outdoor space on University Avenue. Mayor Jesse Arreguín was on his way to catch a set there two weeks ago when the pizzeria’s proprietor, Randeep Rehki, “pulled me aside and told me about the email,” Arreguín said. The mayor says he hadn’t been aware of the crackdown and that he “respectfully disagrees with not allowing” the outdoor performances.

“We had received complaints from community members about unauthorized performances at both locations,” she wrote in an email.According to the city’s Digital Communications Coordinator, Echa Schneider, the crackdown on outdoor music was instigated by people uncomfortable with the performances.

Arreguín says he wants to create a process that would allow music to resume outside both establishments unimpeded.

“I’m working hard to encourage our public health officer to allow a path to outdoor performances.” — Mayor Jesse Arreguín

“I’m working hard to encourage our public health officer to allow a path to outdoor performances,” he said. “Under state law the public health office is autonomous. I can’t override her, but I’m lobbying her and the city manager. As somebody who really enjoys live music and thinks it’s really essential, I’m disappointed and committed to trying to solve this. I’ve been to the UC Theater and Bobby G’s and I love having the live jazz music.”

On the cusp of a mayoral election, opposition to the city shutting down outdoor performances is a point of unity between Arreguín and his main opponent, Wayne Hsiung.

“Our first task should be to assist our residents in safely doing the things they need to do, for our city to flourish, and to use collaborative and educational tools to get there — not threatening letters,” Hsiung wrote in an email.

Mixed messages from the city

Making sense of the mixed messages about the city’s policy on live music isn’t easy. As Rudin said in a recent email to Back Room supporters contrasting the situation with outdoor dining, “it is hard to imagine that 50 listeners, sitting outside, carefully distanced, with masks on, could be less safe than those same 50 people eating and drinking with their masks off, but that is the position that our Health Office is adhering to.”

The policy on outdoor music is also hard to figure out. On Oct. 9 the Downtown Berkeley Association (DBA) presented the first run of Music on Wheels, a collaboration with Freight & Salvage that featured a bluegrass trio performing at parklets downtown from the bed of a 1941 Chevy pickup truck.

Despite the health office’s cease-and-desist emails targeting other outdoor music presenters, the DBA is moving forward on another one on Oct. 30, “with a DJ on the back of the same truck,” according to Matthew Jervis, the DBA’s director of marketing and vitality. “The first one made seven stops. This one is doing four stops with DJ Shaky Paws and Miggy Biggz, hitting Smoke, Spates, Bobby’s G’s and Triple Rock. It’ll be more of a Halloween theme. You’ll hear ‘Thriller,’ I’m sure. We’re very mindful of social distancing, taking the extra step of not having the musicians get down out of the truck.”

Berkeley isn’t the only city struggling to figure out how to accommodate live performances. The San Francisco International Arts Festival announced earlier this week that it had filed suit in a Federal court against the City and County of San Francisco and the State of California. Claiming First Amendment protections for the arts, SFIAF contends that freedom of speech is protected in the same way that religious gatherings are protected. (San Francisco currently allows outdoor religious gatherings for up to 200 people.)  In a surprising development, the state was dropped from the suit yesterday after getting on board with SFIAF. After learning of the impending new guidelines, Rudin decided to proceed with his scheduled concerts, including Saturday afternoon’s show by guitarist John Schott’s Actual Trio and Sunday’s performance by vocalist Roberta Donnay and the Prohibition Mob.

“The State agrees and, indeed, has been formulating guidance for musical, theatrical and other artistic performances, as part of the development of industry-specific guidance documents the State has been publishing throughout this pandemic to guide public health and safety during this time,” read a brief filed on behalf of Gov. Newsom. “As these guidelines are not complete, this morning the State is issuing an interim directive which permits performances before audiences of less than 100 individuals in counties such as San Francisco but requires approval of the safety precautions taken for such performances by the local public health officer.”

While seeking court intervention to allow performances scheduled for Oct. 24-25 to precede, SFIAF has much larger concerns. Presenters are looking ahead to the spring and summer of 2021, when the return of congenial weather and use of outdoor spaces may help the performing arts start to recover after a devastating year.

After years of marketing itself as a cultural hub complete with a downtown Arts District, Berkeley has yet to take a leading role in helping its essential institutions survive the pandemic.

“Everybody in the city is aware we’re lagging behind everyone else providing opportunities to enjoy ourselves,” said the Back Room’s Rudin. “We need to get something going now in part as a template for future behavior, so that we can hit the ground running in the spring and summer. It’s incumbent on the Back Room to push back forcefully against this precedent.”

Andrew Gilbert

Freelancer Andrew Gilbert writes a weekly music column for Berkeleyside. Andy, who was born and raised in Los Angeles, covers a wide range of musical cultures, from Brazil and Mali to India and Ireland....