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[2005] VCAT 814
Victorian Civil and Administrative Tribunal
2005-05-03
Senior Sgt P, Mr J, Stuart Morris J
Original judgment source is linked above.
Background music means music set at a reasonable level which allows restaurant patrons to talk normally without having to raise their voice.
10 Mr Fowler suggested a definition along these lines:
For music to be "background music" the level must be sufficiently low such that patrons can speak to each other across a table without having to raise their voice excessively above the music.
11 The definition used in the Cape Lounge case, which is based upon a level that allows patrons to talk normally without having to raise their voice, is appealing at first blush, principally because it would limit background music to a level where it had no impact upon the volume required to conduct the primary activity of holding a conversation. There is, however, a problem with this definition; as the volume used in normal conversations varies, not only from person to person, but from circumstance to circumstance. People expect to raise their voice to some extent when in a busy bar, even if there is no music being played. One of the characteristics of a bar is that even if music is not played the voices of patrons tend to be raised, particularly as the night wears on. This might be the result of different members of a group competing for attention, as their lips become lubricated with liquor. Most of us would be familiar with the general hubbub of conversational noise at a cocktail party or in a bar, even if no music is being played. In such a situation it can be difficult to conduct a conversation without raising one's voice to some degree. Hence, in the context of a bar, a definition based on patrons being able to talk normally, without having to raise their voice, is problematic.
12 The definition advanced by Mr Fowler recognises the problem with the Cape Lounge definition by adopting the test that patrons should not have to raise their voice excessively above the music. The problem with this approach, however, is that the word "excessively" is indefinite and value laden.
13 In my opinion, an appropriate practical definition of the words "background music levels", where used in a liquor licence for a bar, is that the music must be played at a level that enables patrons to conduct a conversation at a distance of 600 millimetres without having to raise their voice to a substantial degree. Music could not be regarded as background music if it was played at a level which required patrons to shout, or use a stage voice such as that used by an actor in the theatre, in order to carry out a conversation at such a distance. I appreciate that this definition also uses an indefinite word, namely "substantial"; but I see no other alternative. However it is possible for ordinary persons to assess whether they are able to carry out a conversation, at a distance of 600 millimetres, without raising their voices to a substantial degree; so this definition is workable in practice.
14 Based upon evidence given to the tribunal by Mr Fowler, a working "technical" definition of background music, in the context of a licensed bar, might be where the noise level (both of the music and of patrons) does not exceed L10 dB(A) 80. Such a measurement should be made in a typical location in the centre of the space, should be for not less than five minutes and should be made with an appropriate sound level meter. The level I have chosen is slightly higher than that put forward by Mr Fowler, but his measurement was designed to be used when it was possible to record the music only and exclude patron noise. In practice I doubt whether this is practical, so I have made some adjustment to his number.
15 The conditions in the present licence include a condition requiring the engagement of crowd controllers. It is agreed that if the music levels are kept to background music levels, as explained in this decision, the condition is unnecessary and can be deleted. However if it is intended to seek a variation in the licence, so as to play music at levels above background music levels, there will be a need to revisit the question of whether a condition should be imposed requiring crowd controllers.
Whiting
Hosier Bar Pty Ltd