# Joint Appendix Vol — Ward v. Rock Against Racism > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0240%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix Vol - **Published:** January 1, 1989 - **Citation:** 491 U.S. 781 ## Text 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 .................. 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 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 u [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0240%3A06. Public record. Not legal advice.