Joint Appendix Vol — Ward v. Rock Against Racism
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Supreme Court of the Unitec
October Term, 1988
BENJAMIN R. WARD, in his official capacity as Police Commissioner of
the City of New York; GEORGE SCARPELLI, in his official capacity as
Chief of Operations for of Parks; SHELDON HOROWITZ,
in his official [capacity] as ene Ce panent
of Parks; ROBERT RUSSO, yy oy ty as Assistant Parks
Scomietendl tn Chastto tans, Ue ork City Department of
Parks and Recreation; JOSEPH KILLIAN, in his official capacity as Pro-
Ne ee ene
Park in the City of New York, of Parks and Rec
reation; MAYOR EDWARD KOCH, in his ial capacity as the Mayor
of the City of New York; and THE Crry OF NEW YORK,
Petitioners,
-against-
ROCK AGAINST RACISM,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
JOINT APPENDIX
(Volume Il-Pages JA 351 to JA 495)
PETER L. ZIMROTH WILLIAM M. KUNSTLER*
Corporation Counsel of Center for Constitution Rights
the City of New York, 666
100 Church Street New York, York 10012
New York, New York 10007 (212) 614-6464
(212) 566-4338 Counsel for Respondent
Counsel for Petitioners
Leonard J. Koerner*
Larry ,
Julian L. Kalkstein
*Counsel of Record
PETITION FOR CERTIORARI FILED AUGUST 5, 1988
CERTIORARI GRANTED OCTOBER 3, 1988
a
TABLE OF CONTENTS
PAGE
United States Court of Appeals for the Second Circuit
sh ob Sd cb n cédbvccbvediosecveccoccce JA 1
United States District Court Docket Sheet ........... JA 6
for Preliminary and Permanent Injunctive
Relief, entered April 18, 1985 ........ 2.66.66. ccc cues JA 4
Answer by Defendants Ward, Scarpelli and Horowitz,
EA EEE BdeUbcbcdesedbccdicccesécceccs JA 18
Plaintiffs Motion for a Temporary Order/
Preliminary Injunction, entered April 23, 1986 ........ JA 21
Affidavit of Joseph Killian Read in Opposition to
Plaintiffs Motion for Injunctive Relief, entered
By Sy ea ebb des hb che cede eeececccdéecccccccces JA2
Exhibits Annexed:
Exhibit 1— Letter, Dated February 24, 1986, From
Rock Against Racism to Joseph
BED be decdocsocedcotesccccccces JA 38
Exhibit 2— Portions of “New Yorkers and
CentralPark: A Report to Central
Park Conservancy” ................ JA 39
Sound Reinforcement System ....... JA 68
Exhibit S— Portion of Bids Under Evaluation JA 70
Exhibit 6— Sound Specifications .............. JA 73
ii
PAGE
Exhibit 8— Plaintiff's Special Event Permit
Application .............ccsnennues JA 75
Memorandum Opinion and Order of Haight, J. entered
Die 2B, TEED cc cccccccccccccesccessosoounneneensenes JA
Amended Complaint, entered November 5, 1986 ...... JAS
Answer to Amended Complaint by Defendants Ward,
Scarpelli, Horowitz, Russo, Killian and the City of
New York, entered December 1, 1986 ................ JAM
Answer to Amended Complaint by Defendant Koch,
entered December 2, 1986 ............ ccs cssnnnnuues JA %
Transcript of Proceedings on March 23-25, 27, 30, 31
and April 1, 1987:
Testimony of Alan Thompson, Witness on Behalf of
Plaintiff
Disess TEED oo ccccccocececcsessneneooes JA#
Conse TIED oc ccocccoccccccesneensenenes JAII7
Testimony of William Dalton, Witness on Behalf
of Defendants
Disess TEED... 2.2.2.0 cccvctccssbesooeesooses JA124
Comep EREIRREIEED oc cccccccecesdbseoceseesoons JA135
Testimony of Gary Floyd, Witness on Bei: alf of
Defendants
Dbsasd RENE o.0.0.0c ccccccssseeeeeoconenene JAMI1
CeeD EINES occoccccccccececesenensennn JAI
Re-Direct Examination .................. <<... JA184
Ro Coase TEIN cco cenccccccesccenuneees JA186
PAGE
Testimony of Joseph Killian, Witness on Behalf of
Plaintiff
Nee et couceene JA187
Te ee se. cc cccccccces JA199
Ree-tpemeet Temmaeimation ...... ccc ccc cece cceee JA279
EE JA318
Re-Direct Examination .......................-- JA326
ID co. ccc cccccsccccccccs JA329
Testimony of Robert Russo, Witness on Behalf of
Plaintiff
a JA331
EE ES JA345
i... occ ccccccccces JA348
VOLUME II
Submitted in Evidence on March 24, 1987:
Joint Exhibit 1— Appendix of Appeal to the Uni-
ted States Court of Appeals for
the Second Circuit of Rock Aga-
Ward, et al, appellant, Docket
No. 86-7389, dismissed on
ees cccccecces JA351
Contents:
Relevant Docket Entries ....... JA351
DT anasdsdes sec coccey JA354
EEE JA355
Motion for a Temporary Restra-
inine Order/Prelimi
Nb esscecccccccce JA356
Certificate of Notice to Adverse
EE JA357
PAGE
Temporary Restraining Order.. JA359
Order for Preliminary Injunction JA361
Exhibit 2 — Portions of
“New Yorkers
and Central Park:
April 23, 1987
Application ... JA75
Proceedings on
Notice of Appeal ............. JA455
PAGE
Declaration of Jonathan Pines Read in Support of the
Motion to Alter or Amend Judgment, entered
Agel FB, THF ctsincoseccioccvecvescdcccccedccsccess JA459
Exhibits Annexed:
Exhibit A — Amended Complaint ............. JA464
Exhibit B — Proposed Findings of Fact and
Conclusions of Law.............. JA465
Exhibit C — Trial Transcript Pages 271-273 .... JA476
Exhibit D — Trial Transcript Page 323......... JA479
Exhibit E — Memorandum Opinion and
Order of Haight, J., entered on
April 20, 1987 ...........00eeeeee JA480
Order of Permanent Injunction and Judgment, entered
Agel BE, TG? oo ccciccceddsvedeetdescccessoncesese. JA481
Affirmation of Noah A. Kinigstein Read in @pposition
to Defendants’ Motion to Alter or Amend Judgment,
entered April 29, 1987 ..........cccceeeeeeceeereees JA484
Notice of Cross-Motion to Alter or Amend Judgment,
entered April 29, 1987 ...... 0... ccc ceeeeeeeeneeeees JA486
Affirmation of Noah A. Kinigstein Read in Support of
the Cross-Motion to Alter or Amend Judgment,
entered April 29, 1987 ..........ccccccceseeeeeeeeees JA488
Exhibits Annexed:
Exhibit A — Memorandum Opinion and
Order of Haight, J., entered on
April 20, 1987 ...... 6.6.6.0 ceeeeee JA492
Exhibit B — Order of Permanent Injunction
and Judgment, entered
| rere JA493
Notice of Appeal to the United States Court of Appeals
for the Second Circuit, entered
SORE TD <niistctenchamstectabtediecedtiiied JA494
THE FOLLOWING ITEMS APPEAR IN THE APPENDIX
TO THE PETITION FOR A WRIT OF CERTIORARI
AT THE PAGES SPECIFIED
JA 351
Joint Exhibit | Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeais for the
Second Circuit:
Relevant Docket Entries
PLAINTIFFS
ROCK AGAINST RACISM A2
DEFENDANTS HAIGHT, J.
WARD, HON. BENJAMIN R., in his official capacity as Police
Commissioner for the City of New York
SCARPELLI, GEORGE, in his official capacity as Chief of Opera-
tions for the Department of Parks
HOROWITZ, SHELDON, in his official capacity as Special Events
Director for the Department of Parks
CAUSE sc
(CITE THE US. CIVIL STATUTE UNDER WHICH THE
CASE IS FILED AND WRITE A BRIEF STATEMENT OF
CAUSE)
Purs. to 28 U.S.C. 1331, 1332, 1341, 1651 and 2210; ist & 14th
Amndmts. of U.S. Const.
ATTORNEYS
FOSBINDER, SCHACHTER, CORPORATION COUNSEL
WALKER & WINKLER F.A.O. SCHWARZ_JR. by
1053 Williamson Street CHAD VIGNOLA
Madison, Wisconsin 53703 100 Chruch Street
N_Y., N_Y. 10007
MARK B. GOMBINER 566-0745
177 Prince Street
New York, N.Y. 10012
(212) 677-1006
DATE NR.
4-18-85
4-18-85
4-24-85
5-2-85
5-2-85
5-2-85
5-2-85
1
10
JA 352
Circuit:
Relevant Docket Entries
PROCEEDINGS
Fid. Compiaint, Issd. Summons & Notice purs.
to 28 U.S.C. 636(c).
Fid. Pitff's Order to Show Cause why a Prelimi-
nary Injunction should not issue purs. to rule 65,
directing said deft’s to permit pitff to conduct a
protest & demonstration concert at the 72nd St.
Bandshell on 5/5/85, Ret; 4-25-85..Haight, J.
Fid. Pitff's atty Notice of Appearance MBG
Fid. Deft’s Affdvt of Robert Russo, in opposition
to pitff's request for injunctive relief.
Fid. Deft’s Affdvt of Lieutenant Joseph
McNulty, in opposition to pittf's request for in-
junctive relief.
Fid. Deft’s memorandum in opposition to pitff's
request for injunctive relief.
Filed stip & Order of Partial Settlement, the
dept. agrees to issue to Rock Against Racism a
perrmit to use the Bandshell area for the purpose
stated above on 5-5-85, etc. Pur. to Article II,
§(d) of the Parks Rules & Regulations Rock
Against Racism will be required to post an un-
dertaking in the amt. of $1,000. no later than
5-2-85 etc. as so indicated. So ordered Haight, J.
Fid defts’ ANSWER to the cmpit. cc
Fid. Order following ‘nitial pre-trial conference
held on 7-12-85. . . that the action be placed on
the Suspense docket of this court with leave to
either party to appiy on 5 days notice for its resto-
ration, etc. . Haight, J. cmc
Filed transcript of record of proceedings 4-26-85
DATE NR.
4-23-86
4-29-86
4-29-86
5-2-86
5-2-86
5-19-86
6-3-86
11
17
JA 353
United States Court of Appeals for the Second
Circuit:
Relevant Docke. Entries
PROCEEDINGS
Fid. Pitff's Motion for a Temporary Restraining
Injunction against the deft
from interfering with a scheduled concert.
Fid. Defts MEMO OF LAW in opp to pitffs mo-
tion for inj relief
Filed ORDER defts memo in opp to pitffs mo-
tion for TRO & prelim inj serv & filed by hand by
4/29, pitffs reply by 4/30, oral argument on 5/1...
MAIGHT.
J. cm
Filed Defts AFFDVT of J. Killian in opp to pitffs
motion for inj relief
Filed MEMO OPINION & ORDER# 59257.
RAR can use its own sound system, I decline to
releive RAR of the liability insurance req. all
other charges apply exp sound system: permit
Haight, J. " on
Filed Defts NOTICE OF APPEAL to USCA
2nd Cir from USDC order of 5/2
Filed a true copy of NOTICE OF MOTION
from USCA 2nd Cir; the motion for exp appeal is
denied. Record on appeal shall be filed by 6/11:
appellants brief & joint appendix by 6/23; appel-
lees brief by 7/14; week of argument as early as
8/11... CLERK, USCA
JA 354
Joint Exhibit | Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Complaint
REPRODUCED, SUPRA, ON PP. JA14-JA17
JA 355
Joint Exhibit 1 Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Answer
REPRODUCED, SUPRA, ON PP. JA 18-JA 20
JA 356
Joint Exhibit 1 Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Motion for a Temporary Restraining Order/
Preliminary Injunction
REPRODUCED, SUPRA, ON P. JA 21
JA 357
Joint Exhibit | Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Certificate of Notice to Adverse Parties
UNITED STATES DISTRICT COURT
SOUTHERN DisTRIcT OF NEw YORK
ROCK AGAINST RACISM,
¥ > No. 85 Civ. 3000
. ©)
HON. BENJAMIN R. WARD, et al.
CERTIFICATION OF NOTICE TO ADVERSE PARTIES
Counsel fo >laintiffs makes the following certification of no-
tuce to the adverse parties, pursuant to Local Rules.
On or about Wednesday, April 9th, 1986, I spoke with Joe
Killian of the Parks Department concerning the new “permit ap-
plication” which had been received by Rock Against Racism. Mr
Killian said that the permit application had been personally re-
viewed by the commissioner of the Parks Department. who he
pointed out was a lawyer, and that he felt there was no chance that
the requirement that the Parks Department control the sound
system would be changed. Mr_ Killian identified the attorney who
would handle the case if we chose to challenge the various restric-
uons. Subsequently | spoke with that attorney who indicated that
he had reviewed the document in question and believed that all
the provisions were constitutional. | told the attorney that | was
JA 358
Cernficate of Nonce to Adverse Parnes
leaving for Tucson, Arizona the next day to prepare for a trial
there and provided him with a number where | could be con-
tacted I have heard nothing and therefore presume that the city
has not changed its position as of April 20th, 1986.
JAMES H. FOSBINDER
FOSBINDER & WALKER
1053 Williamson Street
Madison, WI 53703 -
(608) 257-$517
s/ Peter J. Avenia
GOMBINER & AVENIA
177 Prince Street
New York, NY 10012
(212) 677-1006
(Local Counsel)
JA 359
Joint Exhibit 1 Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Temporary Restraining Order
UNITED STATES DISTRICT COURT
SOUTHERN DisTRICT OF NEW YORK
ROCK AGAINST RACISM, =
TEMPORARY RESTRAINING ORDER
Upon consideration of plaintiff's Motion for a Preliminary
Injunction, and the declarations, pleadings, evidence, and argu-
ment in support, and the Opposition thereto, the Court finds:
1. That plaintiffs wish to engage in First Smendment activity
at the Central Park Bandshell from approximately 6:00 am to
10:00 pm (including set up time) on May 4th, 1986.
2. That defendants will apply the various prohibitions on the
“new permit” against plaintiffs and have them arrested and
prosecuted if they demonstrate as planned.
3. That this action by defendants will cause irreparable in-
jury to plaintiffs.
4. That there is a likelihood that plaintiffs will prevail on the
merits of this case.
JA 360
Temporary Restraining Order
5. And that the balance of injuries and public interest is in
plaintiff's favor.
In light of the above, it is hereby
ORDERED, that pending further Order of this Court, de-
fendants shall not enforce the requirements that a city-chosen
and controlled sound system be used, that a $50.00 to $100.00 fee
should be required, that $100.00 per hour be paid to the city’s cho-
sen sound company, that the display of banners and posters be
prohibited, that the collecting of donations or sale of literature,
etc. be prohibited, that liability insurance be provided, or that a
bond be required; and it is further
ORDERED, that defendants shall file and personally serve
their response to plaintiffs Motion for a Preliminary Injunction
not later than , 1986; that plaintiffs shall file and per-
sonally serve any reply not later than , 1986; and that
the hearing on the Motion for a Preliminary Injunction will be
heard in this Court on , 1986; and it is further
ORDERED, that a copy of this Order shall be served on
each of the defendants.
U.S. DisTRICT COURT JUDGE
JA %1
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix to the United States Court of Appeals
for the Second Circuit:
Order for Preliminary Injunction
UNITED STATES DISTRICT COURT
SOUTHERN DisTRICT OF NEW YORK
~
ROCK AGAINST RACISM,
Plaintiff
L
No. 85 Civ. 3000
> (csi
HON. BENJAMIN R. WARD, ef. ai,
Defendants.
y,
ORDER FOR PRELIMINARY INJUNCTION
Upon consideration of plaintiff's Motion for a Preliminary
Injunction, and the deciarations, pleadings, evidence, and argu-
ment in support, and the Opposition thereto, the Court finds:
1. That plaintiffs wish to engage in First Smendment activity
at the Central Park Bandshell from approximately 6:00 am to
10:00 pm (including set up time) on May 4th, 1986.
2. That defendants will apply the various prohibitions on the
“new permit” against plaintiffs and have them arrested and
prosecuted if they demonstrate as planned.
3. That this action by defendants will cause irreparable in-
jury to plaintiffs.
4. That there is a likelihood that plaintiffs will prevail on the
merits of this case.
JA 3%2
Order for Preliminary Injunction
5. And that the balance of injuries and public interest is in
plaintiff's favor.
In light of the above, it is hereby
ORDERED, that pending further Order of this Court, de-
fendant shall not enforce the requirements that a city-chosen and
controlled sound system be used, that a $50.00 to $100.00 fee
should be required, that $100.00 per hour be paid to the city’s cho-
sen sound company, that the display of banners and posters be
prohibited that the of donations or sale of literature,
etc. be prohibited, that liability insurance be provided, or that a
bond be required.
U.S. DisTRICT COURT JUDGE
JA 363
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix to the United States Court of Appeals
for the Second Circuit:
Application for a Temporary Restraining
Order and Supporting Points and Authorities
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ea
Plaintiff
No. 85 Civ. 3000
v > (CSH)
HON. BENJAMIN R. WARD, et. al.,
Defendants.
ROCK AGAINST RACISM,
JA
APPLICATION FOR A TEMPORARY RESTRAINING
ORDER AND SUPPORTING POINTS
AND AUTHORITIES
Plaintiffs seek to put onan event consisting in part of
speeches, and in part of music. The event has been held for ap-
proximately ten years at the same site, the Central Park
Bandshell, on the same date, the first Sunday in May, and is ex-
pected to run as usual from approximately 11:30 am until approxi-
mately 7:00 pm
STATEMENT OF FACTS
Plaintiff is an organization formed to provide a non profit
sound organization to be used at rallies, demonstrations, cultural
festivals and other similar events. Plainti* organization has for
JA 364
Applicaton for a Temporary Restraining
approximately ten years sponsored an event on the first Sunday of
[220zMay at the Central Park Bandshell. The City of New York
has repeatedly attempted to deny this group access to this facility.
Last year, 1985, following several days of testimony, the city
dropped its requirement that the event be held at Randall or
Ward Island. Subsequently various other requirements concern-
ing control over the volume, the length of the event, the distribu-
tion and the amount of music versus speech, and hours of access
for setting up, were dropped thus satisfying the plaintiff. The
event went on as originally planned.
The city agreed to review its permit process and requested
input from the plaintiff with regard to proposed changes Not un-
til the end of March, 1986, was a copy of the proposed changes
provided. The plaintiff received a “new permit application” re-
quiring, among other things. that the city be allowed to choose a
sound system. that $100.00 an hour be paid to the city chosen
xound company, that a $50.00 to $100.00 application fee be paid,
that no banners or posters be displayed, that no literature be dis-
tributed or sold, that donations not be accepted, that a clean-up
bond be provided, that the hours be limited, and that liability in-
surance be provided at the city’s discr>tion.
ARGUMENT
A Temporary Restraining Order should be granted because
there is a likelihood of irreparable harm in the absence of injunc-
uve relief, plaintiffs are likely to succeed on the merits of the un-
derlying cause of action, the balance of injuries favors granting an
injunction, and the public interest would be served by granting
the injunctive relief sought. Virgrua Petroleum Jobbers Associa-
tion v. Federal Power Commission, 259 F 2d 921 (D.C. Cir. 1958).
JA 365
Applicanon for a Temporary Restraining
Order and Supporting Points and Authorities
| I-Likelihood of Irreparable Harm
Absent injunctive relief from this Court, plaintiffs wili suffer
irreparable harm. Plaintiffs wish to engage in protected First
Amendment activity. Without an injunction, they will be arrested
and incarcerated, and that is irreparable harm to the cause they
espouse and to their own liberty. It cannot be given back or com-
pensated once taken. The plaintiffs who persist in the demonstra-
tion will be forever tainted and diminished by an arrest an
incarceration, and those who have foregone the protest because
of the threat of arrest have lost their First Amendment rights.
This plainly sets out a claim of irreparable harm.
Plaintiffs are likely to succeed for the following reasons:
The burden of establishing the need for a condition on ex-
pression is on the government, not only when the strict scrutiny
test is used but even when the time, place and manner doctrine or
United States v. O'Brien test is applied. Clark v. Community for
Creative Non-Violence, 104 S. Ct. 3065, 3069-72 (1984); Eastern
Conn. Citizen Action Group v. Powers, 723 F 2d 1050, 1055 (2d. Cir
1983); New York City Unemployed & Welfare Council v. Breznoff.
677 F.2d 232, 237, 240-41 (2d. Cir. 1982).
The history of this case reveals strong antipathy toward this
group by city officials. The following testimony from the previous
Sere Pemepeeney Rastenaing Oe SS eave
musso, pp. 35-36
THE COURT: Would you, taking your time and using
your own words. of course, tell me what the reason or reasons
were that played a part in that decision | want to understand.
m as great detail as you can explain to me. what the reasons
for the reyection of tie permit were.
JA 366
Application for a Temporary Restraining
Order and Supporting Points and Authorities
THE WITNESS: Okay. For the past four years that I have
been aware of this event, and my predecessors who were in-
volved in it directly have told me, this group is very difficult
to deal with. They’re dishonorable. What this means is
when, for example, we ask for a clean-up bond of $1000 or
$2000 for an event that’s going to take place on Saturday,
somebody comes at 8:00 Friday night with a bag full of dollar
bills and change that is far short of the clean-up bond.
Year after year, we've had difficulty with the sound. One
year, it was reported to me that there was a performance that
took place that was called slam dancing, where people got up
on the stage and punched each other and kicked each other
and fought and raised a crowd. One year, I was told a police
detail had to be brought in because there was a dispute over
turning the sound off.
Additionally, the city persists in its belief that because part
of plaintiff's event consists of music, traditional free speech
rights are somehow not relevant. This is clearly contrary to
the law. Cinevision Corp. v. City of Burbank, 745 F.2d 560,
569-70 (9th Cir. 1984).
Russo-direct, pp.14, 10-16
THE WITNESS: Well, the Parks Dept..—I represent the
Parks Dept.—we don’t feel we should abridge anybody’s
right'to speak for as long as they can reasonably do that with-
out disturbing anybody else. But I think that music is differ-
ent, that that can annoy other people. I know that it
sometimes annoys other people, any kind of music.
Not only do the new “permit rules” continue this misconcep-
tion, but by suggesting a general ban on music after 6:00pm except
the opera, they reveal their clear “cultural” bias.
Surely the government can show no compelling state interest
in requiring a group protesting government policy to pay a thou-
sand dollars each day to use a sound company selected by the city,
JA 367
Application for a Temporary Restraining
Order and Supporting Points and Authorities
when that group owns its own sound system. The “mixing board”
for a sound system of the size in question allows literally thou-
sands of separate adjustments to the quality, volume, and tone of
each instrument, speaker or device inputted into the system. To
place this control in the hands of the government presents infinite
opportunity for abuse.
Where First Amendment rights are implicated, compelling
state interest must be “unrelated to the suppression of free ex-
pression”, Young v. American Mini Theatres, 427 U.S. 50, 79-80
(1976) (Powell, J. concurring).
“Above all else, the First Amendment means that govern-
ment has not power to restrict expression because of its mes-
sage, its ideas, its subject matter, or its content. To permit
the continued building of our politics and culture, and to as-
sure self-fulfillment for each individual, our people are guar-
anteed the right to express any thought, free from
government censorship in content control.”
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 (1971).
Only proof of a clear and present danger is compelling:
“{Ijn order to restrict speech, the State must show that the
speech is used in such circumstances and [is] of such a na-
ture as to create a clear and present danger that [it] will bring
about the substantive evils that [the State] has a right to pre-
vent’.” |
California v. LaRue, 409, U.S. 109, 131 (1972) (Marshall, J.
dissenting on other grounds).
The restrictions on distributing leaflets, displaying banners,
posters, and accepting donations, cannot possibly survive consti-
tutional challenge. Lovell v. City of Griffin, 303, U.S. 444 (1938).
Since the city does not require bicyclists, roller skaters, jog-
gers or frisbee players to insure themselves or provide a clean-up
bond, it is unfair to require those who enter the park to engage in
activities protected by the First Amendment to insure themselves
JA 368
Application for a Temporary Restraining
Order and Supporting Points and Authorities
or provide a cleanup bond before entering the park. The First
Amendment protects not only speech, but also assembly.
NAACP v. Claiborne Hardware Co., 458 U.S. 886, (1982).
I1I-Balance of Injuries and Public Interest
The balance of injuries is in favor of the plaintiffs, and the
public interest would be served by granting the injunction. To
deny the injunction means that plaintiffs will either have to forego
or diminish their demonstration, or face prosecution and incar-
ceration if they persist as some plan to do. Defendants have little
at risk compared to plaintiffs, especially in light of the limited du-
ration of a Temporary Restraining Order.
First Amendment freedoms are the most cherished by our
people. The public has a strong interest in upholding the First
Amendment, and any preliminary ruling, especially where it
would cause no harm to the government, should err on the side of
upholding these freedoms.
Because plaintiffs have shown that they will suffer irrepara-
ble harm and are likely to succeed on the merits, and that the
balance of injuries and the public interest is in their favor, they
request that this Court grant a Temporary Restraining Order
against enforcement of the regulations as applied to their demon-
stration.
s/James H. Fosbinder
JAMES H. FOSBINDER
Fosbinder & Walker
1053 Williamson Street
Madison, WI 53703
(608) 257-5517
JA 369
Application for a Temporary Restraining
Order and Supporting Points and Authorities
s/Peter J. Avenia
GOMBINER & AVENIA
177 Prince Street
New York, NY 10012
(212) 677-1006
(Local Counsel)
JA 370
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix to the United States Court of Appeals
for the Second Circuit:
Affidavit of Christie Robb, Read in Support of
the Application for Injunctive Relief
AFFIDAVIT
85 Civ 3000 (CSH)
I, Christy Robb, do hereby depose and say that
on February 26, 1986, at approximately 3:45, Joe Killian
called me to tell me that he was the new program director for the
bandshell in Central Park. He had been hired January 26, and his
first task was to create specific guidelines for use of the bandshell.
He had written these and was waiting for approval from the Com-
missioner. He was extremely vague as to how this new system
would work. I reminded him of the “system” in the past and he
said he “hoped to be able to respond to applicants within two
weeks”. I asked him how this transition in Parks Dept. format
would affect my event this May, and he said all permits filed un-
der Special Events “would be honored”. I tried to ascertain what
exactly that meant. I was unable to get any clear answer as to what
the differences would be in terms of the permit. On approxi-
mately April Ist, 1986, I received a “new permit application”.
This new permit requires us to use a soun’ system selected and
controlled by the Parks Department, requir +s us to agree not to
display any banners or posters, to refrain from the sale of any lit-
erature or the solicitation of any donations, tu pay approximately
$800.00 (8 x $100.00/hr.) to the sound company selected by the
city, forbids us from going past 6:00 pm, requires a $50.00 to
$100.00 application fee, requires a cleanup bond, and may require
us to provide liability insurance.
The purpose of our organization is to provide quality sound
for a variety of organizations and groups with which we identify.
JA 371
Affidavit of Christie Robb, Read in Support of
the Application for Injunctive Relief
In addition to preventing us from providing our own sound at our
annual event, this system would prevent us from providing sound
services (for far less than $100.00/hr.) for a variety of other groups
which have used the bandshell in the past. The effect of these new
permit rules would be to render much of what we have worked for
pointless. I believe that that is the goal of these new regulations.
s/ Christy Robb
CHRISTY ROBB
organizer of RAR events
JA 372
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix to the United States Court of Appeals
for the Second Circuit:
Annexed to the Affidavit of Christie Robb-
Use Guidelines for the Naumberg Bandshell
in Central Park
City of New York Arsenal
Parks & Recreation Je Park
New York, New York 10021
Henry J. Stern
Commissioner
Elizabeth Barlow
Central Park Administrator
March 21, 1986
USE GUIDELINES FOR THE NAUMBURG BANDSHELL
IN CENTRAL PARK
The Naumburg Bandshell is located in the heart of Central Park.
The Concert Ground and Bandshell are between the Mall and
Bethesda Terrace, with easy access to 72nd S:. and Fifth Ave.
Concerts and performances have been an integral part of this
area since the original bandstand was built in 1862.
Central Park is in the midst of a large scale program of restora-
tion and improvement of park management. All of the work is
being done with careful consideration both of its use as a neigh-
borhood park for millions of New Yorkers, and as major tourist
attraction. The Parks Department has adopted the following
guidelines for the Bandshell to assist outside sponsors of events in
understanding their responsibilities; to prevent overuse, crowd-
ing, security problems and excessive noise; and to avoid conflicts
with other users of Central Park.
Remember that because there is such a wide range of interest in
using the Bandshell there are bound to be scheduling and permit
JA 373
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
conflicts. On an average June weekend more than 100,000 neigh-
bors come to Central Park. Many come for passive recreation
away from the City; for many, the Park is an oasis to walk in, sleep,
fly a kite, meet friends, or read.
Most potential problems can be avoided by thoroughly reviewing
these guidelines and the guidelines of the Parks Department Spe-
cial Events Permit. These Bandshell guidelines may, in some in-
stances, amend and supersede the Special Events Guidelines.
If your proposed event does not meet these guidelines, consider
using an alternate site. Throughout New York City there are un-
derutilized parks and bandshells. Many communities would wel-
come a performance or special event.
PERMITS
Sponsors planning to use the Naumburg Bandshel! must obtain
the following permits:
1) Special Event Permit-Available from: Bandshell Program
Director. There is a non-refundable processing fee,
minimum $50, maximum $100. A cleanup bond must also be
posted. A liability may be necessary.
2) Central Park Bandshell Permit-Available from: Bandshell
Program Director, The Arsenal Rm. 103, 830 Fifth Ave.,
N.Y., N.Y. 10021. The Department of Parks and Recreation
is the sole and only provider of sound amplification. A user
fee of $100 per performance hour, plus a one hour sound
check is charged. This fee is due within seven days of receipt
of a signed Bandshell Permit. It must be payed with a
certified check or money order (no personal checks or cash)
made payable to Cultural Council Fousdation/Concert
Fund.
3) Vehicle Permits-Available from: Bandshell Program
Director (SEE ABOVE). There is no fee for vehicle permits.
JA 374
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
4) Concessions Permit-Available from: Concessions Office, The
Arsenal, Rm. 405, 830 Fifth Ave. N.Y., N.Y. 10021.
Information: (212) 360-8153.
Permits are non-transferable and non-assignable.
Permits (Originals Only) must be in possession of the person des-
ignated on the Bandshell Permit. This persortand persons named
as responsible for cleanup must be present for the entire event.
HOURS/DATES OF USE
Hours of use may vary depending on the type and anticipated size
of the event. Most performing arts events can be permitted for
two hours, with a maximum of two hours pre-performance set up
and maximum of two hours break down.
Festivals and multiple performance events can be permitted for a
maximum of six hours, with a maximum of two hours pre-per-
_ formance set up and maximum of two hours break. Festivals may
be permitted between 12:00 P.M. and 6 P.M.. In deference to
nearby residential neighbors and Park users who enjoy quiet
mornings, sound amplification is permitted only after 12:00 P.M..
This may be waived in certain cases of children’s theatre and
acoustic music. Evening performances are permitted under cer-
tain circumstances. Evening events must be finished by 9:30
P.M.. Sponsors must be prepared to provide their own stage
lighting. All light specifications must be attached to the
Bandshell permit. Sponsors are limited to the exact times listed
on the Bandshell permit. The Department of Parks and Recrea-
tion will not extend or amend these times due to technical prob-
lems, late arrivals, parking difficulties, audience demand, or
weather conditions.
Rain dates will be allocated at the sole discretion of Department
of Parks and Recreation.
JA 375
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
ATTENDANCE
The Concert Ground and Bandshell are located on a major circu-
lation route between the Mall/Sheep Meadow and the Lake/
Bethesda Terrace/72nd St. Crossover road. Seasonally, this area
attracts more visitors than any other area in Central Park. To
keep this route open and accessible without overflowing to the
Mall, Terrace or the Pergola, the Bandshell/Concert Ground can
accommodate a maximum of 3,000 people at any event.
If the sponsor or the Bandshell Program Director anticipates
more than 3,000 an alternative site must be considered. For a pro-
gram to be effective, manageable, and with proper security the
crowd size must be limited to the above figure.
SOUND AMPLIFICATION
To provide the best sound for all events Department of Parks and
Recreation has leased a sound amplification system designed for
the specific demands of the Central Park Bandshell. To insure
appropriate sound quality balanced with respect for nearby resi-
dential neighbors and the mayorally decreed quiet zone of Sheep
Meadow, all sponsors may use only the Department of Parks and
Recreation sound system. DEPARTMENT OF PARKS AND
RECREATION IS TO BE THE SOLE AND ONLY
PROVIDER OF SOUND AMPLIFICATION, INCLUDING
THOUGH NOT LIMITED TO AMPLIFIERS, SPEAKERS,
MONTTORS, MICROPHONES, AND PROCESSORS.
Clarity of sound results from a combination of amplification
equipment and a sound technician’s familiarity and proficiency
with that system. Department of Parks and Recreation will em-
ploy a professional sound technician will be fully versed in sound
bounce patterns, daily air currents, and sound skipping within the
Park. The sound technician must also consider the Bandshell’s
proximity to Sheep Meadow, activities at Bethesda Terrace, and
. ok no he ae? ee, i ee
JA 376
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
the New York City Department of Environmental Protection rec-
ommendations.
INSURANCE
Many events are required to have in effect at all times insurance in
the amount stated on the Special Event Permit. The City must be
named as additional insured on liability and property damage
policies. The City must be the sole party insured on the fire and
extended coverage policy. The insurance companies must be li-
censed to do business in New York. Even though a sponsor may
have insurance, the sponsor is still personally responsible for any
claims made by an employee or member of the public against the
sponsor or the City arising from the use of the Bandshell. The
sponsor must repay the City any costs incurred due to such
claims.
DISPLAY AND DISTRIBUTION OF LITERATURE
Sponsors may not distribute, post, display, or affix handbills,
flyers, posters, flags or banners. Sponsors may distribute a pro-
gram for the event.
VEHICLES
Vehicles must have permits. Permitted vehicles may arrive a
maximum of two hours pre-performance and depart a maximum
of two hours post-performance. Upon arrival at the Bandshell
vehicles are given one hour to unload. The vehicles may then be
parked at 76th Street closed road. No vehicles of any kind may be
parked at the Bandshell, Concert Ground or adjacent areas 2ur-
ing an event or performance. After the event, vehicles may load
for a maximum of one hour.
The Bandshell Program Director will advise the sponsor of any
races or parades which must be taken into consideration in deter-
mining delivery and pick-wp times.
JA 377
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
CONCESSION OF GOODS
Any event staged strictly for advertising and promotion purposes
is not allowed. Sponsors wishing to sell items related to the event —
must have a Concessions Permit. The Department of Parks and
Recreation retains the right to restrict the commercialization of
the Bandshell and Concert Ground.
REVENUE
Sponsors and individuals may not solicit for funds and revenue
within Central Park. The Department of Parks is the sole and
only party allowed to collect contributions.
SAFETY
Public safety and safety of the park are crucial for a successful
event. The New York Police Department and Department of
Parks and Recreation Enforcement Patrols (PEP) will be in atten-
dance at events as is deemed necessary. Out of concern for public
safety the following are prohibited:
* Use of fire of any sort.
* Use of weapons and dangerous implements.
* Cooking grills, stoves, hibachis, and other portable ovens.
* Portable showmobiles, stages, and trailers.
PORTABLE TOILETS
For times when anticipated general park use level is high, mean-
ing that nearby restrooms ».ill already be heavily used, the spon-
sor may be required to provide one portable toilet for every 250
anticipated attendees. Vendor information can be obtained from
the Bandshell Program Director.
A vendor should be chosen who can guarantee delivery the day of
the event—not before (Saturday in the case of Sunday events),
JA 378
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
and pick-up by noon the following day (Monday in the case of Sat-
urday events). The sponsor is responsible for complying with
these requirements so be forewarned to contract with reliable
vendors.
All delivery vehicles must have vehicle permits.
CLEANUP
All sponsors expect and appreciate a clean, litter free stage and
concert ground. Sponsors must be prepared to return the Con-
cert Ground and Bandshell area to a clean, litter free state.
All sponsors must provide ample industrial weight (3 ply) plastic
garbage bags and personnel to clean the Bandshell site. Sponsors
must list on the permit application the name, phone number, and
address of the person responsible for directing cleanup opera-
tions. This person must be identified to the Bandshell Program
Director or his representative at the beginning of the event, and
show proof of garbage bags. The stage and backstage areas must
be swept clean. Department of Parks and aremmnee is responsi-
ble to load and cart all bagged garbage.
EVALUATION
All events will be attended by a representative from Department
of Parks and Recreation. Each event will be evaluated according
to these Bandshell Guidelines and the Department of Parks and
Recreation Special Events Guidelines. Specific attention will be
paid to sound level, attendance, cleanup, and respect for Central
Park and its users. Sponsors will also be provided with an evalu-
ation form of the Department of Parks and Recreation’s compli-
ance with these guidelines.
FAILURE TO FOLLOW THESE GUIDELINES AS PROVEN
BY EVALUATION AND DOCUMENTATION CAN RE-
SULT IN FORFEITURE OF BOND, AND PROVIDE REA-
SON TO DENY THE SPONSOR OR MAJOR RESPONSIBLE
JA 379
Annexed to the Affidavit of Christie Robb-Use Guidelines
for the Naumberg Bandshell in Central Park
PARTIES ANY AND ALL FUTURE BANDSHELL PERMIT
APPLICATIONS.
For more information please call Joseph Killian, Program Direc-
tor (212) 988-4460.
JA 380
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix To The United States Court of Appeals
for the Second Circuit:
Affidavit of Joseph Killian,
Read in Opposition to the Motion for Injunctive Relief
with Annexed Exhibits
REPRODUCED, SUPRA, ON PP. JA22—JA77
JA 381
Joint Exhibit 1 Submitted in Evidence on March 24, 1987
Appendix To The United States Court of Appeals
for the S.cond Circuit:
Affidavit of Chad. A. Vignola,
Read in Oppocition to the Motion for Injunctive Relief
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROCK AGAINST RACISM,
- against - MOTION FOR
HON. BENJAMIN R. WARD, in his official
. 5 Civ. 3000 (CSH)
capacity as Police Commissioner ’
for the City of New York, et. ai.
Defendants.
STATE OF NEW YORK )
‘SS:
COUNTY OF NEW YORK
CHAD A. VIGNOLA, being duly sworn, deposes and says:
1. Iam an Assistant Corporation Counsel in the office of
FREDERICK A.O. SCHWARZ, JR., Corporation Counsel of
the City of New York, attorney for the defendants in this action. I
represented defendants in last year’s proceedings brought by
plaintiff Rock Against Racism (“RAR”). As such, I am fully fa-
miliar with the facts and circumstances of this action.
2. Plaintiff's memorandum of law in support cf its motion
for a preliminary injunction contains several misstatements, and
distortions in its recounting both of last year’s proceedings and of
the issuance of the “USE GUIDELINES FOR THE NAUM-
BURG BANDSHELL IN CENTRAL PARK” (“Use Guide-
lines”). Plaintiff's counsel, James Fosbinder, was present at last
year’s proceedings, however, his signature on the memorandum
JA 382
Affidavit of Chad. A. Vignola, Read in
Opposition to the Motion for Injunctive Relief
of law is not an assurance of the veracity of the statements con-
tained therein. See Fed. R. Civ. P. 11.
3. For example, plaintiff states in its Application For A
Temporary Restraining Order And Supporting Points And
Authorities (“Plaintiffs Memorandum of Law”):
Last year, 1985, following several days of testimony, the city
dropped its requirement that the event be held at Randall or
Ward Island. Subsequently various other requirements con-
cerning control over the volume, the length of the event, the
distribution and the amount of music versus speech, and
hours of access for setting up, were dropped thus satisfying
the plaintiff. The event went on as originally planned.
Plaintiffs Memorandum of Law at 1-2. These statements are
false. Because the Court obviously was present for much of last
year’s discussions, I will not belabor the chronology which is as
follows:
4. RAR served its Order To Show Cause papers on the City
of New York on April 19, 1985, seeking an order requiring issu-
ance of a permit to use the Bandshell for a concert/political rally
from 9:00 a.m. to 9:00 p.m. The City filed its opposition papers on
April 24, 1985, citing a history of plaintiff's flagrant violations of
past agreements on sound levels, improper clean-up efforts, and
recurring crowd control problems, in support of its decision to
deny RAR use of the Bandshell, and its suggestion that Randalls
Island or Ward’s Island might be more appropriate alternative
sites.
5. On April 25, 1985, no hearing was held, but the parties
appeared before the Court. At the onset, Mr. Fosbinder asserted
first that there could be no regulation whatsoever of a public fo-
rum such as the Bandshell, and second that any regulation of
noise was constitutionally impermissible. Plaintiff ceased pursuit
of either of these legal theories after defendants noted that regula
tion of public forums and sound levels had been sanctioned ex-
pressly by Supreme Court precedent. See, e.g., United States v.
JA 383
Affidavit of Chad. A. Vignola, Read in
Opposition to the Motion for Injunctive Relief
Grace, 461 U.S. 171, 177 (1983) (reasonable time place and man-
ner restrictions constitutionally applied in a public forum);
Grayned v. City of Rockford, 408 U.S. 104 (1972) (upholding noise
ordinance); Kovacs v. Cooper, 336 U.S. 77 (1949) (upholding noise
ordinance).
6. This Court, however, suggested that it might be in both
parties’ interest to attempt to reach an amicable resolution of the
dispute. Accordingly, that evening defendants agreed to issue
plaintiff an event permit for use of the Bandshell if RAR would
agree to abide by all Parks’ Department regulations, including the
noise level restriction which it had violated in the past. The par-
ties agreed that the only issue for resolution by the Court was the
permissible decibel level. There had not been any hearing, or
“several days’ testimony”, as plaintiff falsely states in its memo-
randum of law.
7. Similarly, all other requirements were not “dropped” as
plaintiff claims. For instance, plaintiff sought performance time
in its order to show cause papers of 9:00 a.m. to 9:00 p.m. The
performance hours as fixed by the Stipulation of Partial Settle-
ment (“Stipulation”), were restricted to noon to 6:00 p.m. as origi-
nally offered by defendants. Plaintiff also states that restrictions
on volume also were dropped. Yet, in paragraph one of the Stipu-
lation signed by plaintiff, plaintiff agreed: “The permit is subject
to strict compliance with its terms and with all applicable Parks’
Department Rules and Regulations, including the regulation di-
agreed to a restriction on the number of vehicles permitted in the
park, agreed to identify those vehicles in advance, agreed to post a
clean-up bond and agreed to all other reasonable regulations on
the use of the Bandshell. A copy of the Stipulation of Partial Set-
tlement is annexed hereto as Exhibit “A” for the Court’s conven-
ience.
8. Although the Court indicated that it had misgivings
about whether it was proper for the Court to set a decibel level, a
hearing was held on that issue with Robert Russo, the then Assis-
JA 384
Affidavit of Chad. A. Vignola, Read in
Opposition to the Motion for Injunctive Relief
tant Commissioner for Citywide Services, and Milton Schulman,
an acknowledged expert in the area of measuring and analyzing
sound, testifying on behalf of the Parks’ Department. A copy of
the complete transcript of the proceedings on April 26, 1985, be-
fore the Honorable Charles S. Haight (“Transcript”), is annexed
hereto as Exhibit “B”.
9. The prior year, 1984, at a meeting with Parks’ Depart-
ment officials, RAR had requested the setting of a specific per-
missible decibel level of sound for their concert performance.
RAR claimed that a specific decibel level was necessary to ensure
an “objective” measurement of “excessive sound” by the Parks’
Department. Plaintiff's failure to abide by the subsequent agree-
ment which they themselves had sought, was a principal reason
for the initial denial of the Bandshell permit in 1985. During the
course of last year’s proceedings, however, plaintiff reversed it-
self, and stated that it no longer sought a specific decibel level of
permissible sound emission. Indeed, it then claimed that such a
restriction was improper.
10. As a result, the Department initially found itself at-
tempting to establish a specific maximum decibel level. After dis-
cussions with one of its experts, Milton Schulman, (as well as his
testimony), which revealed that the event-to-event variations of
the numerous factors figuring into such a decibel setting made
such a task neither simple nor warranted, the Department recon-
sidered its position. Parks decided not to seek a specified permis-
sible decibel levei, as long as plaintiff agreed to abide by the
Parks’ Department’s usual noise regulation. Plaintiff agreed and
the injunction proceeding was settled satisfactorily for both par-
ties.
11. The entire matter was then placed on the suspense cal-
endar because the Parks’ Department had decided to amend its
regulations to conform the regulatory language with the agency’s
practice and limiting construction. This decision to review the
regulations was not a concession that the regulations, as framed,
were unconstitutional. Part of the Court’s first amendment con-
JA 385
Affidavit of Chad. A. Vignola, Read in
Opposition to the Motion for Injunctive Relief
stitutional calculus is an evaluation of the implementing agency’s
interpretation and application of its rules. See, e.g., Hoffman Es-
tates v. Flipside, Hoffman Estates, 455 U.S. 489, 503-504 (1982).
The regulations as interpreted by the Parks’ Department were
constitutional. In any event, this issue has since become moot.
12. The proposed amendments to the regulations were fi-
nally approved by Commissioner Stern on or about March 19,
1986. A copy was hand delivered to plaintiff the next day, and the
proposed amendments are currently undergoing the notice and
publication requirements set forth in the City’s Administrative
Code. Plaintiff has yet to indicate its intention regarding its
mooted 1985 complaint. By the instant motion, plaintiff now
seeks to challenge the Use Guidelines which apply only to appli-
cations for use of the Bandshell.
13. First amendment rights are subject, as plaintiff must
concede, to reasonable time, place, and manner restrictions.
Regulations governing length and hours of the event, vehicle per-
mits, permissible sound equipment, clean-up bonds, and liability
insurance are time, place, and manner restrictions. As demon-
strated in the annexed affidavit of Joseph Killian, the Use Guide-
further significant governmental interests. Mr. Killian was re-
cently hired by the Parks’ Department to fill the new position of
Program Director for the Mall/Bandshell/Bethesda Terrace. In
his capacity, Mr. Killian, who previously was both a performer
and an independent consultant on special events’ productions, re-
searched, diafted, and revised the Use Guidelines now chal-
lenged by RAR. The Use Guidelines attempt to accommodate
the interests—at times countervailing—of park users, nearby
residents, and ,«rsons who wish to attend performance events in
the park. While first amendment rights are obviously paramount,
the guidelines strike a balance between the competing interests.
14. In addition to demonstrating the significant govern-
mental interests underlying the challenged guidelines, Mr. Kil-
lian’s affidavit, and the accompanying memorandum of law
JA 386
Affidavit of Chad. A. Vignola, Read in
Opposition to the Motion for Injunctive Relief
illustrate that the regulations are content neutral—applying to all
forms of speech—they are narrowly drawn, and they leave open
ample channels of communication. Plaintiffs principal com-
plaint appears to be that it is unhappy that it cannot use its own
sound equipment. I am unaware of a constitutional right to use
one’s own sound equipment. Furthermore, because plaintiff may
use the Bandshell on May 4, 1986, if its motion for injunctive relief
is denied, it is difficult to perceive the irreparable injury that will
result.
15. Citation to the first amendment is not a talisman enti-
tling plaintiff to relief. The facts and the law both overwhelmingly
indicate that plaintiffs claims are meritless. Accordingly, it is re-
spectfully requested that plaintiffs motion for preliminary in-
junctive relief be denied. Then perhaps, plaintiff can focus upon
is its stated goal: the expression of constitutionally protected
speech. Defendants are ready to aid plaintiff in this endeavor in
every reasonable way possible.
s/ Chad A. Vignola
CHAD A. VIGNOLA
Qualified in Kings County
Commission Expires March 30, 1987
JA 387
Joint Exhibit 1 Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Exhibit A Annexed to the Affidavit of Chad A. Vignola—
Stipulation for Partial Settlement
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROCK AGAINST RACISM,
Plaintiff - STIPULATION
OF
PARTIAL
- against - SETTLEMENT
HON. BENJAMIN R. WARD, in his official 85 Civ. 3000 (CSH)
capacity as Police Commissioner for the
Defendants.
City of New York, et. al.
WHEREAS, plaintiff Rock Against Racism has applied to
the City of New York Department of Parks and Recreation (“De-
partment”) for a permit to use the Central Park Bandshell (the
“Bandshell”), located near 72nd Street and Central Park West, on
Sunday, May 5, 1985, for a political event during which speeches
will be made and music played; and
WHEREAS, since 1979 plaintiff has led ications to
stage similar events at the Bandshell, and pui<uant to its is-
sued by the Department have staged such events; and
WHEREAS, on or about April 9, 1985, the Department de-
nied plaintiff's permit application for use of the Bandshell and
instead offered plaintiff the use of either Wards Island or Ran-
dalls Island; and
WHEREAS, the Department’s decision to deny Rock
Against Racism’s 1985 permit application was based on alleged
JA 388
Exhibit A Annexed to the Affidavit of Chad A. Vignola—
Stipulation for Partial Settlement
recurring excessive noise at the prior concerts; alleged recurring
post-event inadequate clean-up by Rock Against Racism at the
prior concerts; alleged recurring problems with crowd control at
prior concerts; and alleged recurring violations of other Rules and
Regulations of the Department; and
WHEREAS, plaintiffs deny all allegations made in the fourth
“WHEREAS” clause of this stipulation; and plaintiffs contend
that the Department’s Rules and Regulations are unconstitu-
tional; and
WHEREAS, the Department believed that Rock Against Ra-
cism had failed to abide by past agreements to correct the re-
peated deficiencies; and
WHEREAS, Rock Against Racism has filed this law suit
challenging the Department’s refusal to grant them a permit to
use the Bandshell area in 1985, and the parties being desirous of
reaching an amicable resolution thereof;
IT IS HEREBY STIPULATED AND AGREED, by and be-
tween the undersigned attorneys for the parties hereto as follows:
1. The Department agrees to issue to Rock Against Racism
a permit to use the Bandshell area for the purpose stated above on
May 5, 1985. The permit is subject to strict compliance with its
terms and with all applicable Parks Department Rules and Regu-
lations, including the Regulation directed towards excessive
noise, which shall be construed and enforced in conformity with
applicable judicial interpretations of the definitions contained
therein. . The event will consist of amplified music and speeches,
during the hours from 12:00 noon to 6:00 p.m. on May 5, 1985.
2. At the concert, the sound level will be monitored by tle
City of New York Department of Environmental Protection
(DEP) using LEQ decibel meter devices. Rock Against Racism
shall be permitted to have one representative present while DEP
monitors the sound level. The Rock Against Racism representa-
tive shall not interfere in any way with DEP’s monitoring.
JA 389
Exhibit A Annexed to the Affidavit of Chad A. Vignola—
Stipulation for Partial Settlement
3. The plaintiffs will set up for the concert in accordance
with guidelines including, but not limited to, the location and type
of equipment to be used, as set out by the Parks Department.
Rock Against Racism agrees to use its best efforts to transport its
equipment, including the Rock Against Racism sound system,
into the Park between the hours of 6:00 a.m. and 10:00 a.m. The
Parks Department will allow the plaintiff adequate time before
the scheduled event to set up and test the necessary equipment
and will not unreasonably interfere with the set up of such equip-
ment. The Department also will provide plaintiff with adequate
time and equipment to clean up after the conclusion of the per-
formance at 6:00 p.m.
4. Pursuant to Article Il, §3(d) of the Parks Rules and
Regulations, Rock Against Racism will be required to post an un-
dertaking in the amount of $1000.00, no later than May 2, 1985.
The parties understand that the permit is herein granted subject
to revocation in the event that the undertaking is not timely paid
in full.
5. The Department agrees to issue Rock Against Racism
the following vehicle permits to bring vehicles into Central Park
on May 5, 1985: permits for (1) ten vehicles making a total of
eighteen maximum round trips; (2) one vehicle making a total of
four maximum round trips; (3) one sound truck; and (4) one flat
bed truck. Rock Against Racism agrees to use its best efforts to
drive safely and to minimize the total number of vehicle trips
through the park, and the Department agrees to use its best ef-
forts to secure a parking spot for one Rock Against Racism emer-
gency vehicle near 72nd Street and Fifth Avenue. No Rock
Against Racism vehicle will permitted to enter after 5:00 p.m. on
May 5, 1985
6. This Stipulation of Settlement shall be “So Ordered” by
the Court.
7. This Stipulation shall be admissibie in any future litiga-
tion between the parties.
JA 39
Exhibit A Annexed to the Affidavit of Chad A. Vignola—
Stipulation for
Dated: New York, New York
May , 1985
Gr
SO ORDERED: 5/1/85
s/ Charles S. Haight, Jr.
USD.
Partial Settlement
GOMBINER & AVENIA
for the Plaintiff
177 Prikce Street
New York, N.Y. 10012
(212) 677-1006
BY: s/ Mark B. Gombiner
MARK B. GOMBINER
FREDERICK A. O. SCHWARZ, JR.
ion Counsel of the
City of New York
Attorney for Defendants
100 Church Street
New York, New York 10007
(212) 566-0745
CHAD A. VIGNOLA
Assistant Corporation Counsel
JA 391
Joint Exhibit 1 Submitted In Evidence On March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROCK AGAINST RACISM, ew
Plaintiff,
~ against - > 85 Civ. 3000
(CSH)
HON. BENJAMIN R. WARD, et al.,
Defendants.
SA
April 26, 1985
2:40 p.m.
Before:
HON. CHARLES S. HAIGHT, JR..,
District Judge
APPEARANCES:
FOSBINDER, SCHACHTER, WALKER & WINKLER
Attorneys for Plaintiff
JAMES H. FOSBINDER
and by:
GOMBINER & AVENIA
Local Counsel
MARK B. GOMBINER
PETER AVENIA
JA 392
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
OFFICE OF THE CORPORATION COUNSEL
OF THE CITY OF NEW YORK
Attorneys for Defendants
CHAD A. VIGNOLA
SUSAN R. ROSENBERG
(2) THE COURT: The record should reflect that I have met
with counsel in the robing room and had an off-the-record discus-
sion at some length.
I think it right to tell the other spectators in the court who are
interested in the case that the function of that discussion was to
further explore the possibility of an amicable resolution of dis-
putes at this time, and, if that should fail,—and for the present, at
least, it has failed —to work out a further identification of the is-
sues and the manner in which we will proceed in the case formally.
So that is what we have been doing.
And we will now, in the present state of affairs, proceed for-
mally, and I will ask the defendants to call their first witness.
MR. VIGNOLA: Your Honor, defendant calls Robert
Russo.
ROBERT RUSSO, called as a witness on behalf of the defense,
having been first duly sworn, testified as follows:
MR. VIGNOLA: May I proceed, your Honor?
THE COURT: Yes.
DIRECT EXAMINATION
BY MR. VIGNOLA:
Q. Mr. Russo, by whom are you presently employed?
A. By the New York City Department of Parks and (3) Rec-
reation.
Q. And in what position are you employed?
JA 393
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
A. My title is Assistant Parks Commissioner for Citywide
Services.
Q. And how long have you held that position?
A. Approximately eighteen months.
Q. What are your duties and responsibilities in that posi-
tion?
A. They are varied. I have several divisions of the agency
under my control, everything from lifeguards to our technical
services people, special events, our enforcement people, our secu-
rity people, and a large chunk of the budget.
Q. And what position did you hold prior to becoming the
Assistant Parks Commissioner?
A. I was head of the Urban Parks Service, which is part—in
the Parks Department, which were the Rangers and the parks en-
forcement patrol and the communications in the department, ra-
Q. How long did you hold thai position?
A. [have been in the department for four years. [ had that
position for about two of those years.
Q. And what were your duties and responsibilities in that
p>sition?
A. Again, they varied. But we were to enforce all (4) Parks
rules and regulations with the Parks Enforcement Patrol. The
Rang>::s, as you may know, got—have tours in the parks, guided
tours. They take school children on tours of the parks. Environ-
mental education. We also have communications division that I
ran.
Q. Could you briefly tell the Court, Mr. Russo, what your
educational background is?
JA 394 ,
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
A. Yes. I’m a graduate of Manhattan College, bachelor’s
degree, Liberal Arts. I have a master’s degree.
Q. Excuse me. If I could interrupt. What year was the
bachelor’s?
A. 1967.
a
I have a degree from C.W. Post College, major in Criminal
Justice, 1974, and some other postgraduate work.
Q. Mr. Russo, in your capacity as Assistant Parks Commis-
sioner, do you become involved in various events that are staged
in Central Park?
A. Yes, I do.
Q. How do you become involved in those?
A. Well, I was directly involved for the last three years or two
and a half years in control of the events and the security of the
events, from the Parks’ point of view, for many events in the
agency, literally hundreds. And since that time, I have been pro-
moted, so I’m indirectly —there are people who had the job that I
have —that I had.
(5) Q. What type of events are you talking about?
A. Everything from road races to philharmonic concerts.
Q. And do you have any regulations that apply to use of the
park during these events?
A. Yes, we have many regulations that apply. We try to—
The regulations are aimed at controlling the events, so that it’s
done safely,—essentially, that’s it—and that people enjoy it.
Q. Specifically, are there any regulations with respect to the
granting of permit applications?
A. Yes. We have regulations that have to do with time and
place of the event, the site. Some events are more suitable for one
JA 395
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
location than another. Time of day, time of year. Weather is a
controlling also for us. And number of vehicles that are
allowed. We get an estimate of the number of participants,
so we know how many people we have to employ for clean-up and
for security. So there are a broad range of conditions.
MR. VIGNOLA: If I may approach the witness, your
Honor.
THE COURT: Yes.
(Defendants’ Exhibit A was marked for identification) -
Q. Mr. Russo, can you identify that exhibit?
(6) A. Yes. This is the Parks Department list of major spe-
cial events that are conducted under the auspices of the Depart-
ment of Parks on our property, essentially.
Q. Are you familiar with the preparation of that document?
A. Yes, | am.
MR. VIGNOLA: Your Honor, I offer Defendant’s Exhibit
A into evidence.
THE COURT: Show it to counsel.
MR. VIGNOLA: Yes, I'm sorry.
(Pause)
THE COURT: Received.
(Defendant's Exhibit A was received into evidence)
Q. Mr. Russo, is that a complete list of all the activities in the
park?
A. No, it’s not. It is the major events that we—generally, the
ones that we list are the ones that we know about in advance.
JA 3%
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
They are of some magnitude. They require our participation and
some planning. There are hundreds of other smaller events that
we don’t list.
Q. In applying the rules and regulations to the various
events that take place in Central Park, what factors do you take
into account?
(7) A. I’m sorry?
Q. In applying the Parks Department's rules and regula-
tions, for example, you talked about the time regulations. How do
you determine what is an appropriate time to apply to a particular
permit application?
THE COURT: Need we get into that, do you think? Is thata
contested issue in this case? What I want to do is focus, in the
limited amount of time we have, only upon—
MR. VIGNOLA: I'm sorry, your Honor.
Q. Are there noise regulations with respect to the granting
of permit applications?
A. Yes, there are.
Q. And do those noise regulations apply to all events in Cen-
tral Park?
A. They do apply to all events, yes, for amplified music.
Q. Ana in applying those regulations to particular events,
what considerations do you have to take into account?
A. What we take into account is, again—you mentioned the
time of day. That’s important. We take into account the size of
the crowd, how far the level of the music or the sound has to reach
‘or is expected to reach.
Those are the kinds of things we take into effect —into con-
sideration.
JA 397
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
Q. When you say that you take into account the size (8) of
the crowd, how does the size of the crowd vary the loudness of the
noise?
A. Well, for example, if you have a major concert, let’s say,
on the Great Lawn in Central Park, you would need more amplifi-
cation for that than you would in the Band Shell, because you may
have 100,000 people. So naturally, for a philharmonic, you would
need larger speakers, have some speakers set up around the lawn.
And some concerts, we have done that and focus those speakers
in On the crowd rather than the perimeter. So the people in the
area can hear, but you don’t necessarily hear on Centrai Park
West or Fifth Avnue or other places.
Q. And how does the time of day vary?
A. Well, we try to give consideration to people who live
around the park, because every single week, just about, from now
on, we will have some kind of event in the park. And we get con-
stant complaints—it’s not just with this group, by no means —all
the time about people trying to relax, trying to read the paper.
Sound seems to carry up to a lot of these tall buildings. So we even
get complaints about the road runners with their bullhorns at nine
o'clock. So we try to manage those things so that they’re not —so
that you can enjoy living around the neighborhood, that you’re
not annoyed every single weekend.
Q. And how do other events in the park impact on (9) your
decision?
A. Well, I'll be very specific. In the Band Shell, there are ar-
eas very near the Band Shell that we have set up what we call pas-
sive recreation, such as the Sheep Meadow. It’s about a
thirteen-acre plot of land. People sun themselves, read books, sit
down. There is no organized—there are no organized sports al-
lowed in that area. That is about three or four hundred yards
from the Band Shell. It’s southwest. And loud performances
from the Band Shell would affect the Sheep Meadow. It is akin to
JA 398
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
somebody sitting down next to you when you're trying to take a
nap with a loud radio.
Q. Well, if I could back up a minute. Are there musical
events that are held in other areas of the park?
A. Yes, primarily the Great Lawn. There are small grass
concerts that are held at the Dairy. There is an overhang, what is
called a loggia, outside the Dairy building. And they have little
combos that perform there in that area.
The Band Shell, the Great Lawn for the big concerts. There’s
more room. |
Those are the principal areas where we have concerts in Cen-
tral Park.
Q. Are those places the same distance the Sheep Meadow is
to the Band Shell?
A. No, they’re not. The Dairy is a little bit (10) further, and
it’s actually east of the—it may be a couple of blocks away.
The Great Lawn begins at 79th Street. So the Band Shell is
approximately 72nd Street. So that’s about seven blocks away.
Q. Now, concerts that are held at the Great Lawn, which way
does the music face, if you understand my question?
A. It faces west, because the Band Shell, which is acoustic,
by the way, in and of itself faces west.
Q. I'm sorry?
A. The BandShell is sometimes used by groups without am-
plification, because it is an acoustic band shell. It was designed to
amplify sound.
Q. If you were to hold a concert at the Great Lawn, which
way would the music be?
A. Faces north, generally north.
JA 399
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
Q. If I could direct your attention to May Sth, 1985, the up-
coming May Sth, do you know what events are scheduled for that
day in Central Park?
A. The ones that are known to me are right on the perimeter
of the park will be a rally for Soviet Jewry at 64th and Fifth Ave-
nue. There are a lot of people that assemble each year, I think.
There is a jazz concert at the Dairy.
And there is a bike-a-thon, cerebral palsy (11) bike-a -thon,
where people come at 8:00 o'clock in the morning, and they bike
and you sponsor them for how many miles they do around the
park.
Q. And on any given weekend, are there a wide variety of
events?
A. Every weekend from now on, you have a large list of
events. We have a very busy weekend coming up, for example.
MR. VIGNOLA: Your Honor, if I could have one moment.
THE COURT: Yes.
(Pause)
MR. VIGNOLA: If I could just have a few more questions,
your Honor.
THE COURT: Surely.
Q. Mr. Russo, are you familiar with Rock Against Racism’s
permit application?
A. Yes.
Q. And what area is that to use?
A. I'm sorry?
Q. And what area did they apply to use?
ww — - SS
JA 400
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
A. They applied to use the Band Shell area, Central Park.
Q. Do you know how many hours they have requested to use
the Band Shell area for?
(12) A. I believe it is six.
Q. And what hours?
A. I shouldn’t say—May I change that? It’s six hours.
_ THECOURT: All we are concerned with is the truth, if that
will assist you.
A. (Continuing) The performance is six hours, but the time
that they need to use it, I think, is from 6:00 in the morning to 6:00
at night, because there is setup time starting early in the morning.
Q. And does the Parks Department have any regulations
that apply to the timing of events in Central Park?
A. What we try to do is, when we have concerts, musical con-
certs, we keep them to appoximately two hours. That is some-
thing that we have done with, I think, all of the concerts that I have
been involved in, musical concerts.
This is somewhat different.
There are other events, where we have religious ceremony,
and there is a mass involved, for example, and sometimes that
goes longer, because it’s co-celebrated, and we have more hours
with that. But it’s not just music. There may be some singing with
it.
THE COURT: As you understand Rock Against Racism’s
application for next May Sth, you said six hours of performance is
requested?
(13) THE WITNESS: Yes, your Honor.
THE COURT: Which hours are those?
“
JA 401
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Direct
THE WITNESS: From noon to 6:00.
THE COURT: Noon to 6:00. All right. Thank you.
Q. What is the reason that you have time restrictions im-
posed on permit applications?
A. Several.
One is that the Band Shell is used —That area is rather large.
It is used by a lot of people. We try to give people an opportunity
to use the area and not to isolate it for many, many hours. There
are a lot of spontaneous groups that perform there without ampli-
fication.
There comes a time when any music, no matter what your
taste is, after several hours, it becomes—it begins to be a bit
much. So we ti, to limit performances, all the performances, be-
cause there are hundreds—it’s been estimated there are 250,000
people that use the park on a Saturday or Sunday when the
weather is good.
What we try to manage is that everybody has a good time,
that we don’t interfere with one another's taste.
Q. And in doing that, did you request that the Rock Against
Racism participants use the Band Shell area for music purposes
for less than the full six hours?
A. Iam requesting that the music part of the performance, it
would be a good idea and not unreasonable, (14) that that be col-
lapsed somewhat. If someone wants to speak with amplification,
you don’t need the kind of amplification or the kind of sound that
you get with music. It appears to me to be a difference.
MR. GOMBINER: Judge, I’m going to object to what ap-
pears to Mr. Russo.
THE COURT: Well, what are your reasons for saying that?
May be more than sheer appearance. Why did you say what you
just said?
JA 402
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceetfitfigs on April 26, 1985
Russo— Direct
THE WITNESS: Well, the Parks Department,—I represent
the Parks Department—we don’t feel we should abridge anybod-
y’s right to speak for as long as they can reasonably do that with-
out disturbing anybody else. But I think that music is different,
that that can annoy other people. I know that it sometimes an-
noys other people, any kind of music.
Q. Well, has the Parks Department ever gotten complaints
from people for use of the park for music purposes?
A. Oh, yeah, we get complaints all the time.
Q. Now, why does the Parks Department seek to have
6:00 o’clock cut-off of the Band Shell use?
A. I think because that’s the time of day that it begins —peo-
ple go home to have dinner, it begins to get dark. And it seems
reasonable that if you’re having a (15) performance, 6:00 is a rea-
sonable time. You have to stop somewhere, and we think that that
is fairly reasonable, and everybody is happy with that.
MR. GOMBINER: Objection to what everybody is happy
with.
THE COURT: I will disregard the last phrase.
Q. Are there any clean-up requirements at these concerts?
A. What we do is, we try the best of our ability, if the group
doesn’t clean up or they post a bond, —we usually get help from a
lot of groups —we try to get the park cleaned up on that tour. Our
people go off at 11:00 o’clock. So they'll come in right after an
event and clean up till 11:00. That’s important to us, because it
costs us men if it comes—have to have another crew come on. So
we try to do it in a few hours so the park is clean the next day.
MR. VIGNOLA: I have no further questions at this time,
your Honor.
THE COURT: All right, cross-examination of this witness.
JA 403
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
MR. FOSBINDER: Thank you, your Honor.
CROSS EXAMINATION:
BY MR. FOSBINDER:
Q. Mr. Russo, when did you deny the permit to Rock (16)
Against Racism?
A. I believe it was a couple of weeks ago in April. April 9th
or 10th.
Q. You spoke with me on the telephone; is that right?
A. I don’t know who you are.
Q. Fosbinder.
I'm sorry. My name is James Fosbinder.
A. No, I don’t believe I spoke to you.
Q. Our recollections differ.
A. Might have been Sheldon Horowitz.
Q. You're right.
A. He’s the permit person for the Borough of Manhattan.
Q. You denied the permit two weeks ago; is that right?
A. The agency did.
Q. When was the pe-mit application filed?
A. I think in January, but I’m not certain.
Q. Why did it take so long to decide to turn it down?
A. We have thousands of permit applications. That's the
best answer I can give you.
Q. Surely, you're aware that people put a lot of time and ef-
fort into these events. This was an ongoing (17) struggle of some
JA 404
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
seven years, it’s been occurring here. Aud yet you waited until two
weeks because of the press of other permits. That was the only—
MR. VIGNOLA: Objection, your Honor.
THE COURT: I sustain the objection to the form. It is ar-
gument.
MR. FOSBINDER: Yes. Excuse me.
Q. Can you tell me what sort or written standards you
to turn down this application? .
A. We have Parks rules and regulations, and there is a sec-
tion in there—
Q. What section?
A. The number of it escapes me, but it has to do with sound,
amplified music.
Q. And specifically, how was that relevant?
A. I’m sorry?
Q. Specifically, how did that tell you to turn down this appli-
cation?
A. It tells you that level of sound that is excessive can be
regulated, essentially. That’s a paraphrase of what is there.
Q. Can you describe this regulation process to me in a little
more detail?
A. I can describe what we did last year, and maybe that will
get to the heart of the matter.
(18) Q. All right, what did you do last year?
A. Since there was a history, which is in dispute of confron-
tation between this agency and this group, we had a meeting in the
Central Park Precinct with the members of this group. And we
decided that representatives from the Parks Department and the
JA 405
bi it of Chad A. Vi; _
Be a eal cp
Russo— Cross
Police Department and the group would agree upon a sound level
that would be sufficient so that you could hear the performance to
the rear of the Band Shell, which is a large area, couple of —
Q. Could you explain what you mean by “hear” it?
A. If you stood in the back, you could hear the music from
the Band Shell.
Q. Just hear? Nothing beyond “hear”? What sort of decibel
level? Do you have any—
A. Well, there was a representative from that group. I was-
n't present, but there was a representative from the group and
three representatives, essentially, and somebody from the De-
partment of Environmental Protection and they agreed to a deci-
bel level.
Q. What would have happened if they didn’t agree to—
A. So it was a mutual agreement...They listened, and they
agreed to that.
Q. What would have happened if they didn’t agree to that
decibel level?
(19) A. I don’t know. I can’t conjecture.
Q. Okay.
A. It was—
THE COURT: Wait for the next question.
THE WITNESS: Sorry.
Q. You've said that one of the problems was that this event
was monitored and they exceeded this allegedly agreed to level.
Can you tell me, are all events monitored in Central Park?
A. Yes. Any event that we have a person at, we monitor the
sound level in a number of ways. We have people there. We
JA 406
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
have—We listen. If people come up and complain to us, we re-
spond to that and we will listen.
Q. And the decibel level is always the same?
A. We ask people te lower the sound. We don’t measure
with meters. This was something unique, and we had a past his-
tory, and we said, “Let’s do it scientifically.”
Q. So previously, you hadn't had decibel readings?
A. Not to my knowledge, we hadn’t done that.
Q. What standard did you use?
A. An agreement between two people that it’s excessive, that
you don’t need sound to go two blocks beyond where your event is
being sgaged.
Q. So prior—
(20) A. That’s the kind of agreement.
Q. Prior to this agreement, you used a standard which was
not scientifically determined?
A. That’s correct.
Q. So this was the first time that anyone would have had—
A. That I know of.
Q. Was this the first time that anyone would have had the
opportunity who didn’t personally own a decibel meter to know
what sound level meant what at that location?
A. As far as I know.
Q. Okay. Did you have anything to do with approving, for
instance, the Diana Ross concert?
A. Some. I was involved in it, yes. I was involved at that time
in the security, from the Parks’ point of view, which, essentially,
JA47 Ci
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
oO at ae Remit on Apel 26, 08S
Russo— Cross
we control the backstage area, the safety line that is maintained in
the middle of the event that size, and access to the stage and back-
stage. That was my role at the time.
Q. Did you have anything to do with setting the volume level
for that event? -
A. No.
Q. Are there—To change the topic here for 2 moment, are
there areas in Central Park which have traditionally been used for
gatherings for protests, demonstrations, (21) similar events?
A. I would say yeah, principally the Band Shell is a place,
because it is a place where you can stand. There is no grass in
there. It is hexagonal. And there is seats there, around—it's a
semicircle, and there are some seats where people can sit and lis-
ten. So I would say that that, and, of course, Grand Army Plaza,
which is just outside of the park, is a place where people make
speeches.
I don’t know that it’s designated as such, but it has happened
over the years.
Q. Now, I’m a little puzzied. You said that the reason this
group wouldn't be allowed to play after —4:00 o'clock, as I under-
stand, is what you're asking for now; is that correct?
A. Yes.
Q. —4:00 o'clock, was because people—it’s a residential
area near there, and it could be disturbing to people?
A. No, that’s not what I said. You must have misunderstood
me.
What I was suggesting was that our policy is that most con-
certs are about two hours, an hour and a half or two hours. And
those people seem to pay attention. They enjoy, and then they go
elsewhere, and other people can pass through without having to
work their way through a crowd. (22) And that’s been a reason-
able policy. We haven't had problems with other groups on that.
a
JA 408
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
oii Russo— Cross
is group has now six hours. And what I'm asking is,
why not, if the music and the sound level of music is a problem. ix
is a problem for us, why not cut the music portion to four hours, so.
that at 4:00 o'clock, the music stops, but you still have amplified
voice, and you can continue with speeches. It is longer than other
performances.
Qa Is the time of day any problem? Is there no problem with
going later at night? Are there events held at night? Let me ask
. A. No, not generally. There is some runs that are held in the
nighttime, but not musical performances.
Q. In the schedule which you've given us, there will be
opera
Performed at the Band Shell between 7:30 and 10:30 at night.
A You're right, there is the grand opera. There are three
performances. I'm sorry.
Q. Does that require sound amplification equipment?
A. Yes, they do.
Q. And what sort of standard would that be held to?
A. We don't—If you're asking whether we measure deci
levels, we don’t. -
Q. Not for opera?
A. The performance isn’t loud, though. I reaches
to the back of the Band Shell. _
Q. Are you—
A. There are people that don’t like opera who com
us, if that’s what you're asking. aot
But you have made no arrangements whatsoever for this
group to monitor their sound level?
JA 409
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
A. Last year, not—
Q. No,—
A. Oh, you said this group.
Q. Yet there were complaints made?
A. And they quiet down if there are complaints. You know,
we ask people to quiet down the sound, and they do it.
We have a group that tends to get loud in June called the San
Juan Fiesta, and we ask them, and they turn it down if we request
them.
Q. Does it seem possible to you that many more of the resi-
dents of Central Park West appreciate opera than hard core punk
music?
A. I don’t know.
Q. You have no idea?
A. I don’t know. I've never taken a survey.
Q. You don’t know the tastes—
(24) A. It’s the sound level. Has nothing to do with the taste
of the community.
Q. How do you determine something is so loud?
A. Are you asking if the—
Q. I'm asking how you determine whether or not something
was too loud. How do you determine whether the opera was too
loud?
A. If we get complaints from people.
Q. And how can you differentiate whether these people are
complaining because it’s to loud or because they don’t like it?
A. We don’t.
JA410
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
ay Russo— Cross
- You said that every week, events generate complaints
about noise, including running events. Is that correct? rm
A. Yes. Announcements about the runs, sometimes the
sound gets very, very loud, and it’s early in the morning. And
that's why time is very important. What doesn’t disturb you at
noon might disturb you at 8:00 or 9:00 o'clock in the morning,
wry, Gath ent cctied tae eee eiones
MR. VIGNOLA: Objection.
MR. FOSBINDER: Yes, I’m asking a question.
THE COURT: Rephrase it.
(25) Q. Do you experience more complaints about musi
events held at night than during the day? ™ asa
mae ede nt Se ead cay at Either because of the
na event, or the fact that we don’t have
aa that many at
Q. But you have no way of telling which reason?
A. No.
Q. You've indicated, and the papers filed have indicated, a
problem with clean-up for this group, and that this is somehow
relevant to the determination of the it icati
» Permit application. Is that
MR. VIGNOLA: Objection. -
THE COURT: I am not sure that is what the witness said.
Why don’t you rephrase it and ask him whether or not.
O. Have there been problems with this group cleani -
ter their performance? sd
A. Iam informed of that. I haven't firsthand knowledge
of that. et
JA 411
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
Q. Can you tell me why all of their bond is given back every
year if that was the case?
A. I can’t explain that.
MR. FOSBINDER: All right, let me confer with counsel, if I
may.
THE COURT: Yes.
(Pause)
(26) MR. GOMBINER: Your Honor, with the Court's per-
mission, may I inquire of the witness, or would you prefer that
one—
THE COURT: I will permit it on this one occasion, but the
practice that I usually follow and will do from this point on is to
require that one counsel or the other handle a witness. I do not
usually permit—
MR. GOMBINER: Well, Judge, I'll give the questions to
Mr. Fosbinder.
THE COURT: That is better. Let’s stick to that rule and
regulation, yes.
(Pause)
Q. I call to your attention a rule, as I understand it, of the
Parks rules and regulations, Number 3, Subsection D.
MR. FOL 3INDER: May I approach the witness?
THE COURT: Yes.
We had better get the rules in evidence and make them a for-
mal part of the record.
MR. FOSBINDER: I can do that while he refreshes his rec-
ollection.
(Plaintiff's Exhibit 1 was marked for identification)
JA 412
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
MR. FOSBINDER: Do you have a copy?
THE COURT: You offer those, do you, Mr. Fosbinder?
(27) MR. FOSBINDER: What?
THE COURT: You offer the rules?
MR. FOSBINDER: Yes, I offer—
THE COURT: Any objection to the offer of the rules?
MR. VIGNOLA: No objection.
THE COURT: I receive the rules in evidence, Plaintiff's Ex-
hibit 1.
(Plaintiff's Exhibit 1 was received into evidence)
Q. Is it not a fact that you—Is it a fact that you are required
to issue a permit unless —
And I've got to find it again.
(Pause)
Q. Let me read the correct language. I can't find it right
now. It states: “Upon application, the Commissioner shall issue a
permit, unless the proposed event will present a clear and present
danger to the public health or safety.”
MR. VIGNOLA: Objection, your Honor. That’s not the en-
tire section.
THE COURT: No, that is true, for the sake of the record.
MR. FOSBINDER: That's correct. “Proposed event will
substantially interfere with the use and enjoyment of (28) the park
by the public.”
Is there another section that you call relevant?
MR. VIGNOLA: Yes, 2 and 4. I'm sorry. Not 4. 2 and 3.
JA 413
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
THE COURT: Well, rather having colloquy of counsel, if
you want to ask this witness what provisions of the the rules he
relied upon in denying this permit, that is what I am interested in.
Q. All right, what section did you rely upon?
A. Can I look at it?
Q. Yes.
MR. FOSBINDER: If I may approach the witness?
THE COURT: Yes.
A. Thank You.
(Pause)
A. 1-D-L
Q. Which reads?
A “The proposed event would substantially interfere with
the use and enjoyment of the park by the public.”
Q. Wouldn't, for instance, the Diana Ross concert interfere
a great deal more?
Q. Would—I'm sorry — Would —
MR. VIGNOLA: If I may, this is all irrelevant. We have
gone beyond the point of the denial of the permut.
(29) My understanding was, we were discussing the noise
regulation. It all seems irrelevant at this juncture.
THE COURT: I do not think so. It may go to an argument
that plaintiffs may offer that as the stated reason to protest. I will
permit the inquiry.
MR. FOSBINDER: Thank you.
JA 414
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Cross
A. Could you say that again?
Q. Would an event, such as the Diana Ross concert, which
attracts a great deal more people and uses a sound system much
larger, interfere more with the use by other people seeking a quiet
place to go?
A. It’s two hours, as opposed to six hours. It’s not just a mat-
ter of sound. It’s a matter of length of time that it interferes.
Q. For what period of time, during the Diana Ross concert,
were the people in the park?
A. The performance was an hour and thirty minutes. And
probably about two hours, two hours and a half. .
Q. And why was that event ended, rain?
A. It was a storm, and it was dangerous, so—
Q. So what length of time would that even have drawn a
large crowd to the park, it it had not been for the bad weather, in
your experience?
A. Oh, the event, it was still an hour and thirty minutes. It
was scheduled for an hour and thirty minutes. (30) That was live
on TV.
Q. Let me ask another question.
How long before that event did the crowd begin to gather?
A. Probably an hour or two. Probably two hours before.
MR. FOSBINDER: Okay, I think that’s all, your Honor.
THE COURT: Alll right. Redirect?
MR. VIGNOLA: Yes. Thank you, your Honor.
JA 415
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985 _
Russo— Redirect
REDIRECT EXAMINATION
BY MR. VIGNOLA:
Q. Mr. Russo, were you—
MR. VIGNOLA: Excuse me. Withdrawn.
Q. Do-you know whether the clean-up bond was, in fact, de-
faulted in 1980 for Rock Against Racism?
A. I don’t know the answer to that.
Q. Why don’t you know the answer to that?
A. Because I wasn’t in the Parks Department in 1980.
Q. Do you know if the Department of Environmental Pro-
tection monitors sound level at any event?
A. The only one that I can recollect is the Rock Against Ra-
cism event of last year, because it was agreed that that happen.
Q. Do you know whether the agreed to decibel level (31) was
communicated to Rock Against Racism at that time in 1984?
A. People have told me that there were at least —
A. I don’t know directly. I was not there. I was told by peo-
ple who worked for me that Race Against Racism —
THE COURT: Yes. I will not consider the answer.
Q. Do you know how many people were at the Diana Ross
concert, approximately?
A. Two to three hundred thousand, I'd say.
Q. Do you know approximately how many people were at
the Rock Against Racism concert?
JA 416
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Redirect
A. Two thousand.
Q. What time of day was the Diana Ross concert?
A. It was—began at 6:00, 6:00 p.m.
Q. And what other events were scheduled for that evening in
the park?
A. Which evening?
Q. I’m sorry. For the night of the Diana Ross concert, were
there any other events scheduled in Central Park that you're
aware of?
A. I don’t think so. None that I am aware of. I would doubt
that there would be any.
Q. Do you know what the cost would be to measure with «
decibel meter the sound level at every event in Central (32) Park in
a year?
A. [have no idea. There are at least 200 events. They are all
not musical, however. But I suppose it would be considerable.
Q. Are there other factors, besides complaints by residents,
that you take into account in determining what might be excessive
noise at a given event?
A. Well, I had mentioned previously, we have—we some-
times get complaints by people who live around the park. We get
complaints by people who just want to sit down and who are pass-
ing through the park or using the park. That kind of stuff.
MR. VIGNOLA: I have no further questious, your Honor.
THE COURT: Anything further from plaintiff?
MR. FOSBINDER: Yes, your Honor.
JA 417
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Russo— Recross
RECROSS-EXAMINATION
BY MR. FOSBINDER:
Q. How many people complained about Rock Against Ra-
cism last year?
A. I don’t know.
Q. Do you have any idea?
None. All right. ;
Can you describe the complaint-taking procedure at all?
(33) A. Well, calls generally. The complaints generally go
into the Central Park Precinct Station House. It’s usually where
people call in the first instance. And then there is a person at the
is in a patrol sector to respond, “A complaint of noise.
Q. Do you know if the majority of complaints are anony-
mous or whether the people identify themselves?
A. It’s probably about fifty-fifty. Some people will give their
names, others don’t.
Q. Do you have any way of telling whether the people who
don’t identify themselves are simply calling up again and again or
are separate people?
A. No. I don’t have any way.
MR. FOSBINDER: Okay. Thank you.
Excuse me.
(Pause)
Q. Do you have any knowledge of anyone who was using the
park last year complaining about the sound levels of Rock
Against Racism?
JA 418
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Tnanaenys of the Feseamainas on Apett 26 1985
A. Ihave been told. Direct knowledge, no.
MR. FOSBINDER: Thank you.
MR. VIGNOLA: One more question.
THE COURT: Sure.
MR. VIGNOLA: Thank you.
(34) REDIRECT EXAMINATION
BY MR. VIGNOLA:
Q. Mr. Russo, in determinifig whether to refuse the Rock
Against Racism permit this year, was that based on your under-
standing that Rock Against Racism had refused to abide by an
agreement last year as to a set decibel level?
A. Primarily, yes.
Q. Were there other considerations?
A. Yes. We—
THE WITNESS: Can I go on?
THE COURT: You may.
A. There was —I knew of a history of problems in this permit
procedure with this group. I thought we could solve it by sitting
down and agreeing on something for last year, and we did that in
advance of the event, and we granted the permit. And it looked
like it was going to work out, and it was breached again. And
that’s why we're here.
MR. VIGNOLA: I have no further questions, your Honor.
THE COURT: This is going to require you to repeat your-
self a bit, Mr. Russo, but I am going to put the question to you
again, anyway, to make sure I understand your position com-
pletely.
JA 419
the it of Chad A. Vignola—
nang Aoanin ceedings om Apri 26, 1985
The present group, Rock Against Racism, applied (35) to
have a concert or an event at the Band Shell sometime in January,
is that so?
THE WITNESS: Yes, your Honor, I believe it was January.
THE COURT: Right. And had this group used that par-
ticular area, the Band Shell area, on prior years?
THE WITNESS: Yes, your Honor.
THE COURT: Do you know for how many prior years?
THE WITNESS: I think for at least five or six years.
THE COURT: And then a time came in mid-April when
this permit was refused; is that right?
THE WITNESS: That’s right.
THE COURT: Do you know, of your own personal knowl-
edge, why that permit was refused?
THE WITNESS: Yes, your Honor.
THE COURT: Would you, taking your time and using your
own words, of course, tell me what the reason or reasons were that
played a part in that decision? I want to understand, in as great
detail as you can explain to me, what the reasons for the rejection
of the permit were.
THE WITNESS: Okay. For the past four years that I have
been aware of this event, and my predecessors who were involved
in it directly have told me, this group is very difficult to deal with.
They're dishonorable.
(36) What that means is when, for example, we ask for a
clean-up bond of $1,000 or $2,000 for an event that’s going to take
place on Saturday, somebody comes at 8:00 o’clock Friday night
with a bagfull of dollar bills and change that is far short of the
clean-up bond.
JA 420
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Ti pt of the 1985
ranscript of nen
Year after year, we've had difficulty with the sound. One
year, it was reported to me that there was a performance that took
place that was called slam dancing, where people got up on the
stage and punched each other and kicked each other and fought
and raised a crowd.
One year, I was told a police detail had to be brought in be-
cause there was a dispute over turning the sound off. And the
people who run the event, who tried at one point to turn if off,
could not control their own constituents, so the police had to be
called in. | |
Last year, I decided that I would try to sit down with the peo-
ple and come to an agreement as to the event, so we could manage
it well. The buck had to stop somewhere. We tried to do that.
I feel that the group did not live up to the agreement. They
had to be given summonses. They had vehicles in the park that
they weren’t supposed to have, unregistered vehicles.
It is very dangerous on a Saturday or any week day to have
(37) They refused to turn the sound down, and I believe they
agreed to a certain decibel level. .
And my conclusion was that no matter what we did, that they
were not going to cooperate with us, even when they agreed to co-
operate with us and we thought that they were satisfied. I think
it’s a very difficult group to control, and I don’t know why.
So the decision was made, for all those reasons, not to issue a
permit. And then we relented and said that we might be able to
control this better on Randall’s Island or Ward’s Island, because
you don’t have these large surrounding crowds then, and it’s more
private, a private place. That was turned down, and we’re here.
THE COURT: Have you, to the best of your ability, de-
scribed for me all of the factors which were in your mind at the
time you arrived at this decision?
5A 421
; A Vi =
wn oe in oo aed 3h 1985
Schulman— Direct
THE WITNESS: I think so, your Honor.
THE COURT: All right. Counsel may inquire further if
they wish.
All right, Mr. Russo. Thank you. You may step down.
(Witness excused)
MR. VIGNOLA: Defendant calls Mr. Milton Schulman to
the stand.
MILTON SCHULMAN, called as a witness on behalf (38) of
"the defense. having been first duly sworn, testified as follows:
MR. VIGNOLA: May I proceed, your Honor?
THE COURT: Yes.
DIRECT EXAMINATION
BY MR. VIGNOLA:
Q. Mr. Schulman, by whom are you presently employed?
A. I am employed by the Department of Environmental
Protection. In particular, it’s the Division—the Department of
Air Resources, Division of Noise Abatement.
Q. And in what position are you presently employed?
A. My line is a psysicist, parenthesis, (electronics)
Q. How long have you held that position?
A. Approximately six years.
Q. And what are your duties and responsibilities in that po-
sition?
JA 422
Exhibit B Annexed to the Affidavit of Chad A. Vignola —
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
Q. When you say “noise contour” studies, can you explain a
little bit?
A. Well, noise contours, we measure noise levels (39) over =
given period of time, say, twenty-four hours or so. And from a
knowledge of the noise levels, the sound energy in the area, we can
specify the type of soundproofing, window construction the build-
ing should have.
Q. And do any of your duties include enforcement of New
York City’s noise control?
A. Our division is not an inspection division. There are
times, though, that engineers are needed to go out and do sound
give us a permanent history of the measurement, rather than a
Se ne torel easter, wee Gio ceneunemans © Geen and
’s it. ;
From these measurements, we do certain analyses. We have
certain codes to go by. And we do take these things into environ-
me.ital courts and civil courts.
Q. What position did you hold prior to becoming a physicist
for the Department of Environmental Protection?
A. I was an assistant electrical engineer.
Q. And who was your employer.
A. Same people, the same department.
Q. Mr. Schulman, could you briefly «ll the Court what your
educational background is?
A. I'm a graduate of Polythechnical Institute of Brooklyn.
RCA Institutes was a course in advanced technology. I also at-
tended a one-year Naval Aviation electronic training (40) pro-
gram. I also had a four-week course on noise at City College.
JA 43
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
And we've had a number of courses by manufacturers of
noise equipment, the use and measurement techniques of this
equipment.
Q. Have you ever done any teaching in the noise measure-
ment area?
A. I have recently, from approximately a year ago, con-
ducted a three-day seminar for our Inspection Department. And
we did give a course on the physics of noise and the use of noise
measuring equipment.
Q. In your capacity as a physicist, do you ever get involved,
yourself, in measuring sound levels?
A. Yes, we do. Yes, I do.
Q. Does that include both indoors and outdoors?
A. We do both indoor and outdoor measurements, yes.
Q. On how many occasions would you estimate that you've
measured sound levels indoors?
A. Approximately a hundred times over a thirteen-year pe-
riod.
Q. And about how many events would you estimate that
you've measured the sound level at that occurred outdoors?
A. Approximately forty to fifty times.
Q. Did any of these events include musical events?
(41) A. We did answer complaints on musical events, too.
THE COURT: Hold on just a minute, please.
(Pause)
MR. VIGNOLA: May I proceed again?
THE COURT: Yes. Please.
JA 424
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
MR. VIGNOLA: Your Honor, at this time, I would like to
move to have Mr. Schulman as an expert on sound.
THE COURT: Questions on voir dire?
MR. GOMBINER: Yes, your Honor.
VOIR DIRE EXAMINATION
BY MR. GOMBINER:
Q. Mr. Schulman, what is the RCA Institute?
A. RCA Institutes, which I attended from approximately
1950 to '54, basically was a course in advanced electronics. We
did have a course on loud speasers, how they function, design of
loud speakers, things like that.
Q. And was that program conducted by the Radio Corpora-
tion of America?
A. At that time, yes, it was.
acoustical engineers?
A. No, I'm not.
Q. Do you consider yourself to be an acoustical engineer?
A. I consider myself to be an acoustical consultant, (42) ca-
pable of measuring, analyzing noise, recommending sound-
proofing; a little bit of psycho-acoustics, how a change in noise
level affects people, how a change in noise level determines loud-
ness, what increases in noise level can do to people, how they can
annoy people, disturb them.
Q. In regards to how noise can annoy or disturb people, have
you taken any courses in that area?
A. Most of the courses — There are very few courses in that.
There is a lot of literature on this, and a lot of statistics on noise
JA 425
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
levels above a given level which would annoy and disturb people.
These statistics were © rrived at by experts in the field of audiol-
ogy.
Q. Are you, yourself, familiar with those statistics?
A. Yes, we do use them and we continually read them. The
Federal Government uses them. We do use all these guidelines.
Q. And have you read any of that literature, yourself?
A. Yes, I have.
MR. GOMBINER: We have no objection to Mr. Schulman
being qualified as an expert.
THE COURT: Yes, I accept him as an expert in the desig-
nated field, which is precisely what, Mr. Vignola?
MR. VIGNOLA: The measuring and analyzing of sound.
(43) THE COURT: The measuring and analyzing of sound.
: I will accept him as an expert in that field.
DIRECT EXAMINATION
BY MR. VIGNOLA: (Continued)
Q. Mr. Schulman, if you could explain to the Court, by what
procedure do you measure sound at outdoor events?
A. At outdoor events, we can either use peak sound pressure
levels, average levels, the percent of time noise is exceeded for a
certain given time.
What we could also use is the LEQ level. And this basically
is the sound energy content of the noise measured over a given
time period.
Q. When you say the “sound energy” level, is there any way
you can explain that a little more simpler?
A. As you know, noise is a random varying signal. It can go
high, can be periods of quiet. Noise levels change. The ampli-
tudes continually change.
JA 426
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
You can replace the sound energy of that random varying
signal by a continuous signal having the same energy content as
this random varying signal. This continuous signal which we can
use to replace the random changing signal is defined as the LEQ.
It’s actually a sound energy measurement associated with a given
time period. It could be one second, it could be 465 days.
Q. And how do you calculate an LEQ?
(44) A. The LEQ basically is a mathematical calculation.
You actually sum up the area underneath the curve, divide by the
base, and you get an average level. This can be done today with
meters, with equipment, —
Q. If I could interrupt.
A. —with computers.
Q. Does that number that you arrive at have a specific meas-
ure? Is that called decibels, in other words?
A. The units of measurement, it’s called decibels. Normally,
it’s A weighted in nature. A weighted decibels means that the
sound, the instrument, itself, has the same human response as
the —frequency response as the human ear.
Q. Now, you stated that you could measure and arrive at this
decibel number by use of an LEQ meter.
A. Right.
Q. Does the Department of Environmental Protection have
such meters?
A. In the last four or five years, rather than using our tape
recorders and then going into the lab and using computers, me-
ters have been purchased that can measure the LEQ period of
time, the LEQ reading of the noise in a given area.
Q. And measuring noise, do you ever have to determine a
concept known as loudness?
JA 427
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
oe tapes Apt th 1985
Schulman— Direct
A. Loudness is a concept that cannot be measured (45) by
any meter. There is no way of measuring loudness with any meter,
any device. It’s actually a subjective interpretation by a human
being. There are levels of loudness.
Before I go into that, a sound level meter only measures
sound pressure. It does not measure loudness. Whatever kind of
sound level meter that’s used, whether a simple sound level meter,
an LEQ meter, it’s strictly sound pressure.
Loudness, it has been determined. can be measured — Well.
there’s been a lot of research by people in this field. It so happens
that a ten-decibel change in sound pressure, ten-decibel, which is
a physically measurable quantity, subjectively would sound twice
as loud to you. A twenty-decibel change would be four times as
loud to you.
It has been arrived at by people in this field actually subject-
ing people to certain signal levels, increasing that level and,
this statistic was arrived at, and it is a recognized statistic in the
field.
THE COURT: But even there, there is a subjective element,
isn’t there, Mr. Schulman?
THE WITNESS: Loudness —
THE COURT: I mean, you're depending on a person to say,
“That sounds two times as loud to me.”
THE WITNESS: That's right.
(46) Well, this you have to understand. This has been done
through statistics. If you subject thousands of people to this ex-
periment and all that, you can fairly and accurately derive, with
some confidence, the level that is statistically valid.
It’s done in a lot of fields of psychology and a lot of science.
The use of statics is the only thing we actuaily have to use when we
can't measure something physically.
al
:
JA 4238
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
Q. Now, Mr. Schulman, did there come a time when you be-
came involved in measuring the sound level at a Rock Against Ra-
cism concert at the Band Shell?
A. Yes. We were called in. I think my supervisor asked me if
we would help the Police Department take these measurements.
Q. Do you remember approximately when that was?
A. Approximately about a year ago or so.
Q. Do you recall at what time you arrived at the Band Shell
at that time?
PQ
morning. And there was a reason why we arrived that early.
Q. Why was that?
A. Well, we did—my partner and I, we did walk around the
park and get some idea of the average noise levels (47) in various
areas of the park prior. This would be called the ambient or gen-
er.) background noise levels in the park.
Q. Do you remember approximately what that ambient
noise level was?
A. It varied anywhere from 55 DBA to 60, 62 DBA.
THE COURT: In various areas of the park, 5S—
What did you say?
THE WITNESS: To 60, 62 decibels.
THE COURT: Thank you.
Q. Now, from what point had you decided to measure the
sound level at the Rock Against Racism concert?
A. We selected a point approximately twenty-five, thirty feet
behind the audience, which was approximately the perimeter of
the people listening to this concert.
-
JA 429
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the. Proceedings on April 26, 1985
Schulman — Direct
We did monitor it at that time at that point. It was approxi-
mately 250 or 300 feet from the Band Shell, possibly less.
Q. Why did you choose that point?
A. Well, we chose that point in order to make sure that the
people who are listening to this can adequately hear this sound
without being disturbed by other sounds in the park, the levels
would be high enough for their listening pleasure; at the same
time, people who are using that park wouldn’t be disturbed by the
noise, or there would be no intrusive noise.
(48) Also, from a quick calculation, the New York City Noise
Control Code has what you call ambient noise quality levels at
residential property lines. And we felt by having this level se
lected 2* the perimeter of that location, our ambient noise quality
zones at these residential property lines would be met. In other
words, everyone would be happy.
Q. And what equipment did you use to measure the sound
level?
A. We basically used an LEQ meter.
Q. And what does that LEQ meter measure?
A. Again, that LEQ meter measures the average—
Let’s talk about that, the average sound level over a period of
time.
We did select three-minute intervals to measure that sound
level. And we tried to keep that level around 75, 77, 78, around
there.
Q. Well, if an LEQ meter gave you a reading of 75,—
A. Yeah.
Q. —does that mean that the noise level was 75 throughout
the three-minute period?
JA 430
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman— Direct
A. That means that that sound energy over that two- or
three-minute period of measurement can be replaced with a con-
tinuous pure tone or some sound that isn’t random in nature, hav-
ing the same sound energy as the random varying (49) signal we
were listening to. The peaked levels can well exceed 75 DBA.
Q. And they could also be lower?
A. And they could also be lower than 75 DBA.
It’s like taking a group of numbers, 50, 60, 70, 80, 90, and tak-
ing the average. There are numbers above that level, and there are
numbers helow that level.
Q. Was there a maximum decibel level set for the Rock
Against Racism concert?
A. At that time, the Police Department—we decided that
something between 75 and 78—really, it was around that level
—would be more than sufficient for people within the audience to
enjoy the concert and for people outside the perimeter of that
park not to be disturbed by the sounds.
As we move from the perimeter toward the Band Shell, the
sound levels or that LEQ level would increase. If we went half the
distance, we would get approximately a four-to-five decibel in-
crease in that sound energy. It would be 80, 85 in the center.
Q. Do you ever measure the LEQ decibel level from directly
in front of the stage?
A. No, because first of all, there are problems with that.
You want to get at a normally—
All these measurements in the sound field are (50) done at a
residential property line, at some perimeter, a certain given dis-
tance away from the sound source.
If you move right into a sound source and take measure-
ments, you can have problems with that measurement if you try to
extrapolate it, say, to 100 or 200 feet away.
JA 431
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
Most of the codes, in fact, a distance is specified from a
sound source for that measurement.
Q. Now, you stated that you measured the sound level from
the edge of the Band Shell area, approximately?
A. It was approximately—It was a walking path, and we
were in front of that walking path. We were about twenty-five to
thirty feet in back of the audience. I estimate the distance from
the Band Shell was approximately 250 feet, something like that.
Q. So how many decibels above the ambient level did you
estimate that the 75 ceiling would be?
A. It was approximately 15 to 17, 18 decibels above the am-
bient, which is equivalent to a sound source about—better than
twice as loud as compared to the existing noise level.
THE COURT: Are you describing what you've just said?
THE WITNESS: Yeah.
THE COURT: Calculation that you were making before
any music was playing?
(51) THE WITNESS: We saw that the ambient was 60 deci-
bels.
THE COURT: Yes, you told me that.
THE WITNESS: We then measured— We then said, “Well,
- we have to increase—have some increase in loudness in the levels
which would mask the noise in the park and yet enable the people
to hear this sound.”
We do know, and it’s in all books, that a ten-decibel change
in sound pressure is equivalent to increasing the loudness of a sig-
nal by twice. We went above that. We went to fifteen decibels.
It just isn’t a straight ratio, and we felt a fifteen- or eighteen-
decibel increase at the perimeter of that Band Shell would be suf-
ficient for people to enjoy the concert.
JA 432
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
OS 7 1985
— Direct
PE
the noise source, the sound levels, the sound energy, the LEQ level
would increase.
THE COURT: So your 75 to 78 calculation was based upon
your finding as to the ambient sound level, and your calculation of
what in those circumstances should be sufficient for the audience.
THE WITNESS: Yes. In order for the noise level not to be
intrusive to the people in the park and also to meet our New York
City Noise Control Code at the Central Park (52) West property
THE COURT: Well, what is the Code’s provision in respect
of the residential property line?
THE WITNESS: It was residential property line—And I
haven’t checks this, but Central Park West would be declared as a
high density residential land use zone. The LEQ level would be 65
DBA as a daytime standard. That is, between the hours of 7:00
a.m. and 10:00 p.m. That was one of the guidelines we used, or
standards.
We also did use another guideline and this is what we call a
City Environmental Regulation. It is 1 guideline where we state
that for parks—that we do classify a park as acceptable, margin-
ally acceptable, marginally unacceptable. We require that out-
door areas—
We first measure the ambient. And if the so-called L- 10 level
for the worst hour, or for ten percent of the time, the noise level is
55 DBA or less, we would state that park is classified that the gen-
eral noise exposure level for the park as acceptable. That is the
ambient.
Central Park, that L-10 is pretty close to that ambient.
In addition, this guideline states that any new activity in the
park shall not increase that ambient level by more than 3 DBA in
that area. We use this as a guideline.
JA 433
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman— Direct
The levels we used at the Central Park concert (53) are much,
much higher than that.
THE COURT: Okay.
MR. VIGNOLA: May I proceed, your Honor?
THE COURT: Yes.
BY MR. VIGNOLA:
Q. At the point at which you were measuring the sound level,
what was behind you?
A. Behind us was a walking path at that time; people walk-
Q. Was there anything that would absorb the noise?
A. Well, trees, the earth, there is some absorption factor in
the noise. But you could have a hundred-foot thicket of trees that
may reduce the noise level maybe a few decibels. It isn’t the best
absorber of sound going, contrary to what people think.
Q. If I told you that a concert measured an average of about
115, an LEQ of 115, four feet in front of the stage, could you tell
what the LEQ would be at the perimeter of, say, the Band Shell?
A. It would be a rough estimation, because your nearest
sound source, doubling the distance, if it’s a point source—In
other words, if the sound source, if the distance is much greater
than the sound source,. itself you have an attenuation of 60 DBA
for doubling the distance.
If you're, say, along—if you're very close (54) to the sound
source, there may be 3 DBA.
In order to calculate this, it would be kind of difficult. But if I
had to give an estimate, it would be in the 90’s, between 85 and 90
at that distance, if we had an LEQ of 115 near the stage.
Another thing, an LEQ of 115 near the stage, I wouldn’t want
to measure that level in the first place. The peak levels would defi-
JA 434
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
nitely approach 110, 115 decibels, 120 decibels. It would be very
loud. That is extremely loud as a sound energy level, 115. We're
not talking about peak, but sound energy.
Q. Well, what can the peak be under those circumstances?
A. The peak, depending how frequently it occurs, since the
average is 115, more than likely, the peak well exceeds 115. It’s like
the average of any two numbers.
Q. Is there a level at which an LEQ level is considered dan-
gerous?
A. Well, in OSHA standards, —this is for working people —
and LEQ level exceeding 85 DBA over an eight-hour period, it’s
recommended that these levels not be exceeded.
In the long term, if you’re subjected to this level for a long
period of time,—and don’t ask me how long—it can affect your
hearing.
If you’re in a level of 115, say, 90, 100 decibel (55) LEQ level,
the short period of time, —example, a person going to a disco con-
tinually —in the long run, —he possibly first will have a threshold
shift in his level. In the long run, he may have permanent damage
to his hearing.
I don’t think we're talking about damage criteria here.
Q. Now, Mr. Schulman, have you ever measured the sound
level at any other outdoor events?
A. Well, at the Forest Hills Tennis Club, we did measure the
sound levels there at some concert.
Q. What type of concert?
A. This was some sort of group. It was a rock group, or
something like that. We did measure the levels in accordance
with the New York City Noise Control Code at a residential prop-
erty line.
JA 435
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman— Direct
Q. And what was the maximum permissible LEQ level
there?
A. Well, since there was a low density residential zone, the
maximum permissible level after, say, 10:00 p.m. at night would be
50 decibels.
Q. What about before 10:00 p.m.?
A. 60 decibels.
Q. Have you ever measured the LEQ level at any other
events?
A. Well, there used to be the Schaeffer Sound —(56) Schaef-
fer Festivals in Central Park. There were a number of complaints
from residents on Central Park West, and we did establish in “76
some measurement procedure in order to control these noise lev-
els.
Q. Were sound measurements actually made?
A. At that time, we didn’t have —the department didn’t have
any LEQ measurements. We used the simple sound level meter.
And we watched the meter for thirty seconds, and we said, “Well,
the level can’t exceed more than 90—more than 80.” And then we
let a minute go by. And then we said we'd measure another thirty
seconds.
It was a very cumbersome way of controlling the nois= levels
at the Schaeffer concert. But we were able to do it. The tech-
niques available today, it’s much simpler to monitor these ievels.
Q. Well, more precisely, what were the restrictions placed
on the Schaeffer Festival?
A. Ihave a copy of it. During any one-minute measurement
interval, the meter reading shall not exceed 80 DBA for more than
thirty seconds.
Q. Now, is that a peak level?
JA 4%
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
A. Yes, it’s a peak level for more than thirty seconds. You'd
actually have to watch that level for thirty seconds. It can’t exceed
80 DBA. The meter reading shall not—Also, the meter reading
shall not exceed 95 DBA (57) at any time. That means at any in-
stant of time, that meter shouldn't be above 95 DBA.
Q. Now, if an LEQ measured a reading of 75 or 80,—
A. Yeah.
Q. —hypothetically, for a thiree-minute period, could the
peaks go above?
A. Yes. B—
Q. Could it go above 95?
A. The LEQ is very dependent upon peak noise levels. In
other words, it can go, say, to 80 three or four times during that
period. It may—lIt can only go once possibly to 95, because that
peak—the peak level actually determines the sound energy that
you re measuring.
Q. Do your determinations on acceptable sound level vary
depending on what type of music is played?
A. No, no.
Q. Well, do you know what raggae music is?
A. I have an idea what raggae is.
Q. Well, assuming that music was played that had a greater
base element in it, wou.d that music tend to have a higher LEQ
level or lower LEQ level or the same?
A. You really can’t tell. Base sounds well below —base is in
the area around 50, 60, 40 cycles attenuated by this meter. The
meter is what you call A weighted. So peak le els are attenuated
tremendously by these sounds. Although (58) base sounds are an-
noying, a lot depends on the level of the base you're playing.
JA 437
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the Proceedings on April 26, 1985
Schulman — Direct
Q. Well, would there be any difference, in your opinion, on
the acceptable LEQ level between raggae and, say, rock and roll?
A. We would use our same measure. | would apply the same
measurement technique.
Q. Do you know how mu.y people were present at the Rock
Against Racism concert last year, approximately?
A. If had to estima’e it, I would say it was only four or five
hundred, or possibly less.
Q. Mr. Schulman, wiry are not decibel levels set for concerts
in the park?
A. Well, it’s very difficult. Because first of all, you'd have to
look at the location and see how close it is to some noise sensitive
zone, a hospital or residential development, or how much of the
park use is used for other activity, and all chat. It would be very
difficult to specify for every park and for every concert a given
level, without taking into account the conditions associated with
the park: the basic background ambient, how much of the park is
used for other forms of enjoyment,—-may only be used to sit
around —how close is the park to a hospital, things like that. It
would be difficult to specify a level on this for these parks.
(59) MR. VIGNOLA: May I have one moment, your Honor?
THE COURT: Yes.
MR. VIGNOLA: Thank You.
(Pause)
MR. VIGNOLA: I have no further questions at this time,
your Honor.
THE COURT: Ail right.
JA 438
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the on April 26, 1985
— Cross
CROSS-EXAMINATION
BY MR. GOMBINER:
Q. Mr. Schulman, what time did you determine the ambient
level for Central Park last year?
A. We got there sometime — most — The park levels were de-
termined well before 11:00 a.m.
Q. Were they determined, say, at 9:00 a.m.?
A. No, we got there after 9:00 a.m.
Q. And do you know how many people were in the park at
that time?
A. There were people in the park. I could not tell you how
many people were in the park area.
Q. When you determined the ambient level, did you in any
way control for the possibility that there might be more people in
the park at, say, 2:00 o'clock than at 10:00 o'clock?
A. Well, if you—I'll give you an example how this energy
level changed.
(60) If a group of people are talking, and you double the
group of people talking at the same level, the ambient level would
only increase three decibels. A three-decibel change in energy is a
lot. The ambient level at that time, you're correct, will basically
determine by the amount of people in the park, the activities, ra-
dios, and all that.
But within that bandstand area, there was —there were peo-
ple walking around, but no one was shouting. There were radios
playing. The ambient was between 55 and 60 decibels.
Q. And did you measure this ambient, initial ambient level
at the Band Shell?
A. Yes, we can measure the ambient any place.
JA 439
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
ie = ahaa
Q. No. Did you? Where did you measure it?
A. No, we measured it around the perimeter, basically, and
other areas of the park, up to Central Park West, and all that,
within the park area.
~ Q. And when you measured ambient level around the pe-
rimeter, there wasn’t a crowd there listening t.) a concert, was
there?
A. At that time, the nature—the definition of “ambient” is
the basic sound energy level in the area without the sound source
operating. The concert wasn’t on at all.
Q. Well, a crowd gives rise to some noise, too, doesn’t it?
(61) A. Ordinary conversation would be about 60, 62, 63
DBA.
Q. What about a crowd of people listening to rock music?
Would they give rise to some sound?
A. Yes, they would affect that ambient and all that. They
would.
Q. A sound meter can differentiate between the sound of a
crowd and the sound coming from amplified instruments?
A. No. All it does is measure the sound energy level in the
area, from both near and far sources. It doesn’t tell us—the
sound meter can’t tell you—it’s not a tape recording —what the
sound sources are. But it’s a typical sound energy level in the
area.
We could, if we all stayed quiet and we measured —or few of
us were talking like now, and we took a measurement of the sound
energy in this room, we would get a ceftain average level over a
period of time. If we stopped talking, it would be lower.
The meter in this case won't differentiate, you know, the
JA 440
ae ee Oe ee
Transcript of ern ee
Q. You have no way, then, of being able to tell what degree of
noise on your sound meter came from the crowd and what degree
came from the instruments?
A. That really —
MR. VIGNOLA: Objection.
(62) A. —isn’t really important. All we do know, that the av-
erage sound energy —increase in sound energy that we did allow
was 15 decibels. We can't tell whether it was a horn or drum or
anything else in the sound source from the concert, either. But it’s
that average sound energy we're interested in.
Q. All right. Now, you've testified that you determined in
conjunction with the Police Department that an average level of
75 on the LEQ would be adequate for everyone to be happy.
A. Yes. I use the term “happy.” It would be adequate for
both the people in the audience to hear the concert, to hear it
clearly, without any outside noise sources masking the concert
level. As we approach the Band Shell, the sound energy levels in-
crease. Simultaneously, people outside of that concert area won't
be intruded upon or disturbed by these noise sources.
Q. Now, in terms of determining whether people in the audi-
ence could enjoy the sound, that’s a subjective determination, is-
n't it?
A. Yes.
Q. I mean, you're familiar with the fact that certain sorts of
noises can be heard at higher levels and still be pleasing to certain
people's ears, as opposed to other sorts of noises?
(63) A. Yes.
Q. Do you ever ask anyone in the audience whether the
sound seemed enjoyable to them?
A. No, sir.
JA 441
Exhibu B Annexed to the Affidavit of Chad A. —"
Transcript of the on April 26,
Q. Do you ever ask anyone at the perimeter or outside the
perimeter whether they're being disturbed by the noise?
A. Basically, our levels were decided strictly on experience,
other literature governing the subject, and ail that, what a ten-
decibel increase in sound energy means. what a fifteen-decibel in-
crease means, whether this is adequate for people to enjoy
something, and also for people not to be disturbed by something.
It's really a number that we try to balance.
We didn't take no poll or conduct any poll, as: “Is this too
loud for you?” Or “Is this not loud enough for you?”
Q. When you were conducting this experiment. were you in-
side some vehicle, or were you standing on the road”
A. We were outside.
The microphone was an outdoor microphone. The muicro-
phone was mounted outside, outdoors.
Q. Were there other people there with you”
A. Yes.
The microphone, in fact. was about ten. fifteen —(64 ten feet
or more above ground level. Any conversation in the immediate
area wouldn't really affect that sound energy that amount.
Q. You didn't have any trouble talking to people you were
with. did you”
A. No.
Q. Now, you've testified that the sound levels that you re-
corded were generally somewhere around §) decibels. Is that cor-
rect?
A. The sound level or the sound energy level”
Q. The sound energy level.
JA 422
Exhibu B Annexed to the Affidavit of Chad A. Vignola—
Transcript of the on April 26, 1985
A. Between 75 and 80.
Q. And that was at a distance of about 250 feet; is that cor-
rect?
A. Yes, approximately.
THE COURT: When did you make those measurements?
THE WITNESS: This was sometime last year in May, the
last time this group was in the park.
THE COURT: So did a time come when, after making your
ambvent sound measurements, as you have described them. you
went back and heard the concert actually in performance?
THE WITNESS: Yes, we did listen to it.
THE COURT: All right.
THE WITNESS: I wasn't there the whole time. I was there
for a few hours.
(65) THE COURT: I do not think that has been developed
in the tesumony with sufficient detail. I want to hear about that.
Mr. Schulman. Tell me—
Well. counsel can put some questions on the subject.
THE WITNESS: We did use—
Shall I defer?
THE COURT: Yes, just go ahead. Tell me what you did.
THE WITNESS: We did make measurements using —of the
sound level using a metrosonics sound level meter. It's a mode!
WHA
We first measured the ambient level at that perimeter. We
then started to measure the sound levels generated by the concert.
By the way. if a sound source increases by ten decibels. is
above a ten-decibe! level. the ambient level contributes nothing to
that sound source, if it's 10 DBA or greater.
JA 443
Exhibit B Annexed t the Affidavit of Chad A. Vignola—
Transcript of ne on April 26, 1985
We did start to listen to the sound source emanating from the
group playing. The levels were—the LEQ levels initially varied
88, 90. They were told to come down. I think we brought it down
to the 80’s and then into the 70’s. We did try—the Police Depart-
ment did try to control that level.
(66) Q. And you're testifying it did come down?
A. To around 75, 78.
Q. All right. Now, if the sound level was 75 to 78,—
A. The LEQ?
Q. The LEQ. Excuse me.
If that was 75 to 78 at 250 feet, could you tell us what it would
be at 500 feet?
A. Pretty closely. Sound—Since it’s about 75—Let’s take
the number 78 at 250 feet. Let’s make the assumption a free field.
It would be six decibels lower.
Q. And if it’s about 72, that’s about—
A. —66.
Q. Weil, let’s say—
A. Doubling the distance from the sound source.
Q. I'm saying if it is 72 at 500 feet, that would be approxi-
mately the sound of two people talking to each other?
A. No. I think normal conversation, if you're talking LEQ, is
much lower than that. If you’re talking peak levels, if I’m talking
to you, I would just guess, it would be in the 60's.
There is a big difference between an instantaneous reading
on a sound level meter where we're measuring sound pressure and
where we're taking an LEQ measurement over a (67) period of
time. That’s not the same thing.
JA 44
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Ti ipt of the ; il 26, 1985
ranscript of ee nae ae
Our normal conversation, normal conversation between two
people, the LEQ would be in the low 50's.
Q. Well, can you give me an example of what 72 would sound
like, something else that it would sound like?
A. Okay. If you stayed on, say, Third Avenue, and you lis-
tened to the street noise, the average LEQ there would be between
72 and 75 decibels.
Q. So somebody 500 feet from the concert would experience
approximately the same level of noise as someone who is standing
at Third Avenue.
A. Pretty much so. Again, the important thing is to keep in
mind the energy levels, the background levels in the park before
the sound source started up.
Q. Do you have any idea what the average sound level in a
discoteque is, where music is played?
A. Peak levels or energywise?
Q. Well, let’s stick with energy levels.
A. Okay. If you were in the center of a disco, it would be
between 90 and a 100 decibels, the sound energy, or possibly
louder. It’s pretty loud.
Q. Would you say the sound level 500 feet from this concert
was pretty loud?
A. No, it isn’t pretty loud. But what it did do, it increased
you ambient more than ten decibels.
(68) Where a person is sitting in an environment of 60 deci-
bels and suddenly there is a ten-decibel change in the ambient, he
experiences something twice as loud. This can be annoying and
disturbing.
It’s as if you're sitting in your bedroom and suddenly an air
conditioner is turned on. That could disturb you.
JA 445
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
CRS Pe eeernn ce Ape 2 1985
You're in an environment that’s so much. If you get a ten-
decibel change, you’re going to notice that signal.
Q. Mr. Schulman, what you're really trying to tell us, that
you arrived at these standards by taking—
A. I'm not arriving at a standard.
Q. You've testified that you and the Police Department de-
termined that something between 75 and 78 would keep every-
body happy. Correct?
A. Yes.
Q. cat eniienienibibendestiswrantea a tes
o'clock in the morning, the ambient is such-and-such, and we'll
add on about ten to that. And therefore, anyone who is there at
10:00 in the morning—
A. We're adding more than ten. We're adding fifteen to
eighteen. That’s a tremendous increase.
Q. I know what you're adding.
A. A ten-decibel change in sound level is a ten-fold (69)
change in sound energy, if that’s more meaningful to you.
THE COURT: Say that again.
THE WITNESS: A ten-decibel change in LEQ is a ten-fold
increase in sound energy. And that’s quite an increase.
Again, it’s a level that we determined that would be adequate
for all concerned people.
THE COURT: You said, didn’t you, that a ten-decibel
change in LEQ is a ten-fold increase in—
THE WITNESS: In sound energy.
THE COURT: And also twice as, quote, “loud,” unquote.
THE WITNESS: Twice as loud.
JA 446
manatee th men = oth by nerf ~ ya
Transcript of the ings on April
q Schulman — Cross
THE COURT: All right.
THE WITNESS: Again, loudness cannot be measured by
any meter.
Q. And similarly, what sound level is annoying or disturbing
can’t be measured by any—
A. There is no meter—you’re right—that will measure the
degree of annoyance, the degree of disturbance.
There are a lot of statistics on it. And it would tell you that
when sound levels at 70 decibels, a certain percentage of people
are disturbed or complain about that noise. When there is a sud-
den increase five decibels, another percentage of people are in-
creased—are disturbed (70) by it.
Again, there is some subjectivity to it. And this is about the
only way you can deal with sound and loudness.
Q. Do you have any idea what the average LEQ level of an
orchestra at Carnegie Hall would be?
A. I have no idea. I really don’t.
First of all, it would depend upon the location. If I'm up close
to the orchestra, it would be one level. As I move away, the sound
energy level would decrease.
Q. Now, you've also testified that your determination as to
what the appropriate sound level would be would not vary with
the type of concert. Is that correct?
A. No, we would use that level whether it would be—if it
were a symphony or rock group or raggae group. We would use
that number.
Q. And the number you would use is not—Is the number
you use, 75 to 78, is that the number you would use?
A. Around that figure.
JA 447
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
eas ~~~ 1985
Q. All right. How many other concerts have you been asked
to measure at the Band Shell?
A. Well, I was never at the Band Shell in particular before. I
was at the Wollman Rink when the Schaeffer Festivals were held.
At that time, as I stated, we used a different (71) method of
measurement, since these meters weren't available, these LEQ
meters.
We did measure the concert at the Forest Hills stadium. We
had a code to go by there. The New York City Noise Control
Code stated the levels that a given act. vity can emit or which can
emanated at a residential property line.
In this case, we're dealing more than with a residential prop-
erty line. We're dealing with people within a park, and then
comes the residential property line.
Q. So in the last nine years, no one has ever asked you to
measure the sound level at anything in Central Park; is that cor-
rect?
A. We—Well, the previous year, we did the—
Q. Other than the Rock Against Racism.
A. The last time we did some measurements there was in
1976, the Schaeffer Music Festival. At least, I did. I'm not
aware —It’s very possible that other people in my department did
some measurements there. This, I'm not sure of.
Q. At least you were not asked to do anything in the last nine
years.
A. No.
Q. When the Diana Ross concert took place, nobody asked
you to be there; is that correct?
A. No.
JA 448
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
Ti ; the ;
ranscript of eee 26 1985
(72) Q. Are you aware of the fact that WNEW holds a con-
cert in Central Park every year?
A. Who?
Q. WNEW. It’s a radio station.
A. Yes, I’m familiar with the radio—I'm not aware that they
hold a concert every year.
Q. Are you aware that there are operas presented in the
park?
A. Yes, I am aware of that. We have had complaints from
people from operas, and all that, from people on Central Park
West.
But what our department did do is, call the organizers of the
concert. A lot of times, we got some voluntary compliance with it.
Q. But nobody ever instructed you to go to the opera and
see —
A. No.
Q. —how loud it was.
A. No.
Q. And you don’t, in fact, know if the opera is 75 to 78—
A. No.
Q. —or louder or softer.
A. No. At least, I don’t know—I would imagine at the pe-
rimeter of the audience, the levels would be around (73) that level.
I don’t think it would be much higher.
Q. It could be somewhat higher, but you don’t know.
A. First of all, these—more people attend these concerts.
These are in the thousands of people. They extend out more
JA 449
Exhibit B Annexed to the Affidavit of Chad A. Vignoia—
Transcript of the on April 26, 1985
through the park. It’s very possible that 250 feet at the same dis-
tance as we measured this group, the levels at an opera may be
louder. But at the perimeter of the concert, it may be well within
the levels we specified.
In any case, they would have to meet the ambient noise qual-
ity zone as they approach that residential property line as that
concert moves out. That noise level, that standard, would apply.
Q. Well, what noise measurements did you take at the resi-
dential property line for this concert?
A. There was no need to take any measurements at the resi-
dential property line.
Q. You don’t know, in fact, what the noise levels were.
A. We do know at the residential property line that the
sound source was barely audible. We did have a fellow, Nerva
Paul, one of our engineers, take a walk there and listen.
Q. And he could barely hear?
A. He could barely hear it.
MR. GOMBINER: No further questions.
MR. VIGNOLA: May I have a few questions, your (74)
Honor?
THE COURT: Yes.
I am going to have to rise at 4.30. We will finish with this
witness if we can. But if not, we will have to go forward.
Counsel have other witnesses in mind, in any event?
MR VIGNOLA: We don't have any further witnesses, your
Honor.
MR GOMBINER: Your Honor, I think at the conclusion of
their testimony, we might want to hear oral argument before we're
JA 450
Exhibit B Annexed to the Affidavit of Chad A. Vignola —
Dramas of Re resenting on Agel 2, 1505
Schulman — Red:
required to put on any witnesses. I'm not sure we're going to be
obligated to call anyone. But we do have witnesses if the Court
determines otherwise.
THE COURT: Well, I will have to rise at 4:30 and then go
over until mid-morning or afternoon.
There is a criminal trial and selection of a jury which starts
first thing on Monday morning.
But we will go for a few minutes and see where we get.
Go ahead.
REDIRECT EXAMINATION
BY MR. VIGNOLA:
Q. Do you know when Nerva Paul went to measure that (75)
sound level?
A. Well, he did measure it while the concert was on.
Which sound level were you talking about, at the residential
property line?
Q. At the residential property line.
A. While the concert was on.
Q. Do you know at what point of the concert that was?
A. It was well into the concert. I wouldn’t know what point.
But he basically listened to it, and—
By the way, he also had a sound level meter with him. When I
say it wasn't audible, it wasn’t discernible on the sound level me-
ter. There was no change in the sound signal source.
THE COURT: Was this the residential property line?
THE WITNESS: Central Park West.
THE COURT: Central Park West.
JA 451
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
the 1985
Transcript of penne <n Agel 2,
Q. If there were a musical concert in Madison Square Gar-
den and you had to go and measure the sound level, what would
be an acceptable sound level?
A. Again, we would have to look at a land use zone for
Madison Square Garden. We would normally measure at the
nearest residential property line and determine if it’s a (76) high
density, a low density residential area.
Q. Do you know what that level would be?
A. For a high density residential area, it’s specified in the
Code. After 10:00 p.m., it would be—I think it’s 65 DBA. After
10:00 p.m., for a high density, it would be 55 DBA. Before 10:00
p.m., it would be 65 DBA.
Q. Now you don’t know whether the 75 to 78 DBA number
was communicated to Mr. Tuckerman at the Rock Against Ra-
cism concert?
A. If I'm not mistaken, Lieutenant McNulty —
MR. GOMBINER: Objection.
THE COURT: Do you have any personal knowledge of
what communication was given?
THE WITNESS: While I was there, these numbers, by the
police officers —leveis within that range were communicated to
Mr. Dean Tuckerman. And I think he relayed that information to
the people controlling the sound levels, the amplifiers and all that.
THE COURT: Are you speaking of a time when the ambi-
ent levels —This is later?
THE WITNESS: No, this is during the concert, itself.
THE COURT: During the concert, itself. All right.
Q. Now, would an acceptable LEQ level differ, (77) depend-
ing on the location in the park at which you were taking the meas-
urement?
JA 452
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
TN the 26, 1985
=a aw
A. Well, we could measure the LEQ level half the distance
within the bandstand. We could have measured it further away.
But when we measure it further away, it would be difficult to ob-
tain a concert level.
In other words, if the LEQ was, say, 65 or 66, and the ambient
is 60, we would then have to calculate the concert level, what it
would be. When the concert level reaches a point where it’s ten
decibels or more above the ambient, we can ignore the sound level
of the ambient completely in our calculations. It doesn’t contrib-
ute anything to the sound level.
So this is one of the reasons why we stay away from an area
that’s quite a bit distance from the sound source in order to meas-
ure the sound source right then and there without having the am-
bient contribute to the level of that sound source.
Q. So then, would an acceptable LEQ number vary, depend-
A, Ifthe ambience, say was 75 decibels, and the concert level
was 75 decibels, the total sound levei in the area would be 78 deci-
bels. With that type of ambient, 75-decibel ambient, no one
would enjoy it. It would be pretty noisy, and the concert levels
would have to go to 85 or 90 (78) at that point before you would
really hear it.
Q. Well, now, if you were trying to determine what would be
an acceptable LEQ level for a particular event —
A. We would have to, number one, look at the ambient;
number two, look at the land use zone in the area; look for any
noise sensitive facilities in the area, like a hospital or a school.
how large is the area, the open area; what are the activities that
area is designed for.
It would really be difficult to specify a level for a concert
within a small portion of a park. It would be a difficult thing to do
without taking anything else into account.
JA 453
Exhibit B Annexed to the Affidavit of Chad A. Vignola—
cette we | aa 1985
We can specify the levels at a residential property line or at a
hospital property line. That could be done.
Within a park area, a lot of judgment has to come into this.
MR. VIGNOLA: I have no further questions, your Honor.
THE COURT: All right. Mr. Schulman, I think your testi-
mony is concluded. Thank you very much.
(Witness excused)
JA 454
Joint Exhibit | Submitted in Evidence on March 24, 1987
Appendix to the United States Court of Appeals for the
Second Circuit:
Order Appealed from and Decision of Haight, J.,
entered May 2, 1986
REPRODUCED, SUPRA, ON PP. JA 78—JA &3
JA 455
Jount Exhibst | Submitted in Evidence on \iarch 24, | 987
Appendix to the | nited States Court of Appeals for the
Second Circuit:
Notice of Appeal
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROCK AGAINST RACISM, |
rae NOTICE OF
. 85 Civ. 3000 (CSH)
HON. BENJAMIN R. WARD. in his official
capacity as Police Commissioner for the
City of New York, et al.
Defendants
NOTICE IS HEREBY GIVE that the defendants appeal to
the United States Court for the Second Circuit from the Order of
United States District Judge Charles S. Haight. entered May 2.
1986, which on first amendment grounds preliminarily enjoined
the City of New York Department of Parks and Recreation from
enforcing regulations governing use of a Bandshell facility in Cen-
tral Park.
Dated: New York, New York
May 16, 1986
JA 4356
Unuted States Court of Appeals for the Second Circuat:
Noace of Appeal
PREDERICK A.O. SCHWARZ, JR.
Corporation Counse/ of the
City of New York
Attorney for Defendants
100 Church Street—Rm. 6-C-39
New York, N.Y. 10007
(212) 566-0745
By-_&/ Chad A.
CHAD A. VIGNOLA
Notice of Motion to Alter
or Amend Judgment,
entered April 23, 1987
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
—_—
a med 85 Civ. 3000 (CSH)
BENJAMIN R. WARD, in his official
capacity as Police Commissioner
of New York, et ai.
Defendants.
PLEASE TAKE NOTICE that, upon the declaration of
Jonathan Pines and accompanying memorandum of law, both
dated April 20, 1987, and upon all prior pleadings and proceed-
ings had herein, the undersigned will move this Court, before the
Honorable Charles S. Haight, United States District Judge for
the Southern District of New York, at the United States Court-
house, Foley Square, New York, New York, on April 29, 1987, on
submission, for an order, pursuant to Rule 5X%e) of the Federal
Rules of Civil Procedure, altering or amending the order and
judgment of this Court entered April 16, 1987 in the above-cap-
tioned action, insofar as such order would permanently enjoin de-
fendants from enforcing a provision in the Use Guidelines for the
Naumburg Bandshell that prohibited solicitation for funds in
Central Park, and granting such other and further relief as the
Court deems just and proper.
JA 458
Notice of Motion to Alter or Amend Judgment,
Entered April 23, 1987
Dated: New York, New York
To:
April 20, 1987
Respectfully submitted,
PETER L. ZIMROTH
Corporation Counsel of the
City of New York
Attorney for Defendants
100 Church Street
Room 6-C-19
New York, New York 10007
Tel: (212) 566-8311
By:__s/Jonathan Pines
JONATHAN PINES
JA 459
Declaration of Jonathan Pines Read in Support of the Motion
to Alter or Amend Judgment, Entered April 23, 1987
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROCK AGAINST RACISM,
Plaintiff,
~against-
BENJAMIN R. WARD, in his official
capacity as Police Commissioner
of New York, et ai.,
Defendants.
JONATHAN PINES declares, under penalty of perjury, that
the following is true and correct:
1. Iam an Assistant Corporation Counsel in the office of
Peter L. Zimroth, Corporation Counsel of the City of New York,
counsel for defendants in this action. I am fully familiar with the
facts and circumstances of this action, and submit this declara-
tion in Support of defendants’ motion, pursuant to Rule 5Xe) of
the Federal Rules of Civil Procedure, to alter or amend the
Court’s order in this action, entered April 16, 1987.
2. Specifically, defendants seek an order altering or
amending so much of the Court’s April 16th order as enjoins the
New York City Department of Parks and Recreation (“Parks De-
partment”) from enforcing a prohibition against solicitation for
funds and revenue in Central Park. Defendants seek this relief on
the ground that a challenge to the anti-solicitation provision was
neither set forth in the pleadings, nor clearly identified in plain-
tiff's pretrial submissions, nor included among the claims specifi-
cally designated by the Court as those which it would adjudicate.
3. In this action, the plaintiff organization, Rock Against
Racism (“RAR”), challenged specific provisions of a set of regu-
JA 460
Declaration of Jonathan Pines Read in Support of
the Motion to Alter or Amend Judgment
lations, entitled the “Use Guidelines for the Naumburg
Bandshell,” promulgated by the Parks Department to govern the
use of the Naumburg Bandshell (“the Bandshell”) in Central
Park. Plaintiff claimed that the challenged ions violated
rights secured to it by the First Amendment.
4. RAR filed an Amended Complaint on November 5,
1986, which superseded a prior complaint filed on April 18, 1985.
In the Amended Complaint, RAR challenged the following provi-
sions of the Use Guidelines:
(a) the regulation governing the permissible duration of
performances at the Bandshell (Amended Complaint, 4
25 (a));
(b) the regulation requiring use of the Parks Depart-
ment’s sound system provider (id., 4 25 (b));
(c) the regulation requiring payment of an application
fee and a uset’s fee for the Parks Department's sound
system (id., 4 25 (c));
(d) the regulation limiting the number of attendees at
Bandshell events (id.,4 25 (d);
(¢) the regulation prohibiting the distribution of desig-
nated printed materials [rescinded] (id.,4 25 (e));
(f) the standards by which the Parks Department meas-
ured compliance with the Use Guidelines’ provisions
(id.,4 25 (f)); and
(g) the regulations requiring “insurance bonds, and
other bonds” (id.,4 25 (g)).
A copy of the Amended Complaint is annexed as Exhibit “A.”
5. The parties submitted pretrial papers, including pro-
posed findings of fact and conclusions of law. While plaintiff's
proposed findings of fact referred to a prohibition against solici-
tation of funds in the Use Guidelines (Plaintiff's Proposed Find-
JA 41
Declaration of Jonathan Pines Read in Support of
the Motion to Alter or Amend Judgment
ings of Fact at 4 11(i}, p. 5), and to the Department's designation
of rain dates (neither of which was included in the Amended
Complaint), plaintiff's conclusions of law were entirely silent as to
the anti-solicitation provision. Plaintiff's Proposed Findings of
Fact and Conclusions of Law are annexed cumulatively as Exhibit
>
6. The Court heard testimony over a period of seven days,
from March 23 through April 1, 1987. At the conclusion of the
second day trial, the Court, noting the latitude it had given plain-
tiff's counsel's inquiry to that point, held that the “boundaries of
this proceeding” would be determined by the conclusions of law
and the pleadings previously submitted. Specifically, the Court
indicated the following:
[T]he purpose of the conclusions of law is to identify in
advance particularly what regulations the plaintiffs
complain of and why they complain of them, and ac-
cording to the conclusions of law, which together with
the pleadings I am going to take as framing the bounda-
ries of these proceedings, the particular regulations that
are complained of are these:
(a) Regulations which bar the distribution, por-
traying, displaying, et cetera, of handbills and fliers.
(b) The special events permit fee is challenged.
(c) The regulations requiring the Department of
Parks to provide its own sound system is challenged.
(d) The regulation listing the hours of perform-
ance from two hours to six hours is challenged.
And lastly, in paragraph 6 of the proposed con-
clusions of law it says, “Charging organizers of politi-
cal events a fee, whether a direct entrance fee or an
indirect insurance requirement for assembly” is chal-
lenged.
JA 462
Declaration of Jonathan Pines Read in Support of
the Motion to Alter or Amend Judgment
I don’t know if plaintiffs are attacking in different words
the insurance fee or are also attacking the clean{-up}
bond, as to which I have heard a considerable amount of
testimony but does not appear to be specifically at-
tacked in the conclusions of the law. But I am going to
hold plaintiffs in their examination and cross-
examination to the particular challenges made to these
regulations which are set forth in the conclusions of law.
That is the purpose of these pretrial papers, and I am
going to enforce them.
Trial transcript at 271-273. A copy of these pages of the trial tran-
script are annexed as Exhibit “C.”
7. Thus, the Court, in “framing the boundaries of these
proceedings,” did not include any challenge to the anti-solicita-
tion provision contained in the Use Guidelines. Significantly,
plaintiff's counse! did not protest in any manner the Court's de-
termination of the scope of trial. In the circumstances, plaintiff's
acquiescence should reasonably be deemed to manifest assent.
8. There was some limited testimony regarding one iso-
lated incident involving a vendor of food during the 1986 RAR
event at the Bandshell. However, in response to the Court's ques-
uon regarding the relevance of the testimony, I expressly indi-
cated that the testimony was relevant for the limited purposes of
evidencing defendants’ state of mind and of showing defendants’
good faith in dealing with participants at last year’s event. The
testimony was elicited to show that, while Department officials
could have confiscated the vendor's goods and issued a summons
for a Hea
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