How many people are supposed to be in this venue, anyway?

Art In navigates confusion over the city of Madison’s occupancy limits.

A business’ occupancy limit would seem to be the most mundane, cut-and-dried thing in the world. One number, telling everyone the maximum number of people who are allowed to be in a store or bar or venue at any given time, according to the local authorities. The venue/bar/gallery/pinball arcade Art In, at 1444 East Washington Avenue, has been learning recently that it isn’t quite so simple.

Jack Chandler, who runs the venue, tends bar there just about every night there’s a show, and owns the building through an LLC, received an email from City of Madison Assistant City Attorney Jennifer Zilavy on December 27 telling him that the venue’s occupancy limit was 49. This was news to Chandler. (Full disclosure: Tone Madison has hosted several events at Art In, and one of those events had about 80 attendees. All the conversations I’ve had with Chandler about the issues in this story have been fully on the record, and I initiated those conversations after hearing about the venue’s problems through other sources.)

Anyone who’s been in the venue—a former warehouse space with a bar area, show room, the Parched Eagle taproom, and artists’ studios upstairs—knows that about 100 people can fit in there. An entertainment license the city issued to Art In in October 2017 states that the venue has a “capacity of no more than 60 people.”

On top of all that, Chandler says an architect he worked with to plan the venue submitted plans to city building inspectors saying that Art In intended to have an overall capacity of 99. According to Chandler, he never received any kind of communication from the city contradicting that number until that email in December. Oh, and one more layer of confusion here: Because Art In consists of a few different spaces (plus the Parched Eagle), Chandler says he was never clear on whether the 60 number applied to just the show room or just the bar, and figured that the combined capacity was supposed to be 99.

The email Chandler received from Zilavy was not the only puzzling conversation he reports having with city officials in December. Ahead of a hip-hop show Art In hosted earlier in December, Chandler heard from a neighborhood police officer, who warned him that one of the artists playing the show had posted a video online that showed the artist brandishing a gun, “which I thought was rather nebulous,” Chandler says. “I don’t really know what to do with that kind of information.”

The night of the show, there was one minor incident. Someone in the parking lot got parked in. The show’s promoter, Will E. Banks, made an announcement from the stage, and a patron ran out to the parking lot to move their car, and that was it. Later on, some police officers stopped in to let Chandler know about the parking incident, which he thought was a little odd, but initially brushed off.

Chandler says he’s always gotten along well with the police officers who stop in to check on Art In, and that police have never been called to the venue for any kind of major incident. A check of Madison Police Department call logs corroborates that, showing 17 unremarkable calls to 1444 East Washington since the venue’s opening in 2015, none of them indicating any kind of violence or arrests. Further, Chandler also says cops have been in the building, to do routine checks verifying that the bar is complying with liquor laws, during shows that more than 49 people attended, and that he’s never had any trouble from the city. (I’ve personally been at shows where cops showed up to do a routine check, though I can’t recall how many people would have been in the venue at those specific times.) Zilavy, in a follow-up conversation with me earlier this month, said that she knows of “nothing of a chronic nature” plaguing Art In from a legal standpoint.

But despite what seems like a clean police record, and a few years of having audiences in excess of 49 at shows that anyone could peek in on through the venue’s big front window on East Wash, the warning from the city attorney effectively lowers the venue’s capacity. That’s bad news for the local music community. Whatever its shortcomings, Art In has provided something of a blank slate to local performers and smaller-time promoters in a way that most local venues just don’t. It’s willing to take chances on local and touring shows that might not make very much money. (Think of the role the now-defunct Dragonfly Lounge played, or the also now-defunct Frequency played in between touring shows.) Allowing fewer people in means that show organizers will have a harder time paying performers, and that the venue will make less money on alcohol sales, which in turn makes it harder to keep the lights on.

“We’ve hosted every kind of stripe of show over the last few years and we’ve never had an issue,” Chandler says. “It was unusual, I thought, to all of a sudden see this escalation coming from the city attorney.”

Since Chandler heard from the City Attorney’s office, he’s been keeping an eye on attendance at shows to comply with the limit of 49 people and scratching his head about what he can do. (He may have to spring for a fire-sprinkler system or more toilets; both are factors in determining a building’s occupancy limit.) The venue’s travails are also contributing to the perception that Madison cops target hip-hop shows for over-policing. Lil Guillotine, a Madison rapper with a knack for over-the-top lefty shit-stirring—during a recent protest of far-right groups at the state capitol, he handed out vuvuzelas emblazoned with his logo—has posted a video in which he states that the city is cracking down on hip-hop shows at Art In “because they had black folks.”

Lil Guillotine, real name Liam Manjon, says he plans to post an update to his video so that he more clearly expresses the facts of the situation. Still, Manjon says, “It IS certainly true though that the city attorney and the police have been giving the venue increased, unfair, disproportionate attention compared to venues that don’t host hip hop though.”

Karen Reece, who headed up a task force that authored a report on unequal treatment of hip-hop and black performers and audiences in Madison, mentioned Art In’s troubles at a recent meeting of the Madison Arts Commission, saying the venue has been targeted because it hosts hip-hop shows.

MPD spokesperson Joel DeSpain denies this—”I can tell you that our decision making and planning would be driven by behavior, not a particular genre of music,” DeSpain says. Chandler seems hesitant to conclude that police are singling out hip-hop events at his venue, though he does say it seems like a “common thread” in his recent dealings with police and the City Attorney’s office. “If in fact it is a targeting situation, which I couldn’t say one way or the other whether it isn’t, I fully intend to continue booking hip-hop,” Chandler says.

So, why the confusion over something as basic as an occupancy limit?

Different departments and committees of city government can make decisions about occupancy, and they don’t always talk with each other. Everyone has seen signs at businesses that set an occupancy limit “by order at the Fire Marshal,” but in Madison the number actually comes down from the city’s Department of Building Inspection and Code Enforcement. I asked the city’s head of building inspection, George Hank, how the city could be handing out two different, supposedly official and legally binding, occupancy numbers to one business. In this case, that’s 49 from Building Inspection and 60 from the Alcohol License Review Committee, which reviews entertainment licenses for venues that serve alcohol.

“The board or commission that’s giving the number is not aware of building codes, exiting requirements, bathroom requirements, things of that nature,” Hank says. “The number they give does not take those into account.” I did ask Hank whether Building Inspection should be providing such information to the ALRC to head off these kinds of discrepancies. “I think in general this process works really well,” he replied, and went on to explain how the ALRC weighs different factors in making its own decisions about occupancy.

When there’s a conflict, Hank says, Building Inspection’s occupancy number wins out. This is also Zilavy’s interpretation of city law. They agree that the ALRC can’t issue a higher occupancy limit than Building Inspection, or at least not one that’s legally binding. Hank also says his department sent Art In an official letter stating that the venue’s capacity was 49. Chandler tells me he never received this letter. (The capacity number from Building Inspection is easy to find online, but so is the contradictory number on Art In’s entertainment license.) DeSpain and Jason Freedman, captain of MPD’s Central District, say that MPD has no role in setting occupancy numbers and defers to the City Attorney’s office and Building Inspection in enforcing occupancy limits.

To be fair, there are legitimate reasons for keeping a building’s capacity a bit lower than the number of people who can comfortably fit into the space, and a lot of it comes down to fire safety. Building inspectors take into account factors that include the number and width of exits, what kind of fire-protection systems a building has (again, a sprinkler system would probably solve most of Art In’s headaches, but it’s not cheap), and how many bathrooms and toilets it has (Art In currently has just two toilets). Zilavy says that the City Attorney’s doesn’t currently have any sanctions planned against Art In, and considers the matter closed as long as Chandler keeps the number of people in the building below 50. Hank says that Chandler can submit plans to the city again in an effort to seek a higher occupancy limit.

It could be that Art In has been completely screwing up on this all along and blatantly violating its occupancy limit time and again over the course of three years without the city noticing. But that doesn’t really make sense. This is a venue with a liquor license, which means the city’s going to be paying at least some attention to what goes on there and especially following up on any complaints from neighbors. It’s not close enough to anyone’s residence to draw noise complaints, but it is right on a main drag. It’s got a big-ass front window facing right out onto East Wash. Any cop who’s curious about how many people are in there can pull up to the curb and eyeball it, or just walk in. We’re not talking about an off-the-map DIY space tucked away in a warehouse complex. It’s a visible venue that invites scrutiny.

There’s also this matter of a police officer reaching out to Chandler about the fact that an artist playing the venue had a video with guns in it. MPD spokesperson DeSpain and Central District Captain Freedman couldn’t comment on the specifics of that conversation. But I asked them, in an email exchange, whether it’s standard MPD procedure for an officer to reach out about things like this.

“I can’t speak for other districts, but in the Central District, if we receive information involving weapons that may show up at a public venue, we should follow up,” Freedman said. “We need to do our due diligence to determine if there is a credible threat to public safety or not. Sometimes, owners/managers are not always aware of this information, and as they have a direct stake, I believe it is important to communicate concerns and/or information to them.”

In the same email, I asked whether there was a protocol for such contacts. “I don’t think there is a set protocol,” Freedman replied. “I would expect that this kind of information would make its way to the appropriate section at MPD (in this case the Central District), regardless of which section located the information. We look at the information we have—which may come from a variety of sources such as confidential sources, social media, neighborhood concerns, past incidents, police reports and etc.—and assess it in terms of threat, credibility, and then determine what, if any, action(s) should be taken.”

I replied with some follow-up questions, including: “Where’s the distinction between someone showing a gun in a music video and a credible threat of someone actually bringing a weapon to a public place/committing violence?” I didn’t get an answer to this question, but DeSpain reiterated that he couldn’t comment on the specific conversation Chandler had with the officer without having the officer’s name.

At the moment, I’m still trying to figure out whether the occupancy confusion is just an Art In problem, or if other places in town are experiencing similar problems. (Hank and Zilavy couldn’t point to any other specific incidences of this, and Chandler said he didn’t know any other bar or venue owners dealing with the problem, but I’ll keep asking around.) If you’re in the bar and/or live-music business in Madison and have run into any discrepancies in occupancy limits, I’d love to hear from you. Email me.

This story initially mis-identified the promoter of a December 2018 show a Art In as Will Wright. It has been corrected to reflect that Will E. Banks was the promoter of that show.