Ban on advertising, ticket sales at music venues ruled unconstitutional 

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A controversial State Liquor Authority ban on advertising and selling tickets for live music at bars and restaurants in New York has been ruled unconstitutional.

Both musicians and businesses found themselves unable to promote indoor shows under the SLA edict, which was put in place as a mechanism to help keep crowds within guidelines on venue capacity during the coronavirus pandemic. Any music could be only what the authority called “incidental.”

On Wednesday, however, state Supreme Court Justice Frank Sedita III sided with a Buffalo music venue and restaurant, The Sportmen’s Tavern, that challenged the prohibition in court.

The ruling was applauded by live music venues across the state.

“That made no sense,” Abilene Bar & Lounge owner Danny Deutsch said of the ban. “If we’re doing everything correctly, why is it wrong to tell people that we’re doing these things? We’re still following the state guidelines, but we’ll be able to tell people what’s going on.”

Voicing a more conciliatory tone, Geoff Dale of Rochester’s Three Heads Brewing said that the SLA’s reason for enforcing the ban against ticketed shows and advertising were misunderstood as draconian. Some venues were flouting the guidelines, Dale said, and the decision was made to limit the prospective risk that live music posed to public safety.
Dale suggested that government officials should visit venues to ensure that COVID-era regulations are being followed, not as a punitive measure, but as a matter of public health.

“I think everyone is trying to do the right thing,” Dale said. “They’re not trying to be malicious. They’re not out to get people. They want people to be safe.”

The suit filed by The Sportsmen’s Tavern claimed that not only was the ban a violation of First Amendment free speech because of the limitations on music content, but that musicians and venues were already bound by social distancing, capacity limitations, and health guidelines.

In court, the State Liquor Authority explained that while a bar or restaurant could advertise it sells food and beverages, and even note that live or recorded music may be on hand, music in dining areas could not be advertised as the main draw for patrons.

Under those guidelines, the state argued, The Sportsmen’s Tavern “cannot operate a live show/entertainment venue under the guise of running a bar and restaurant, particularly when all other such show and entertainment venues across the state remain closed for public health reasons.”

But the court agreed with The Sportsmen’s Tavern, calling the restrictions “not only excessive but also irrational.”

Sedita said a music venue advertising that patrons could hear the Jimmy Buffett song “Cheeseburger in Paradise,” and a restaurant advertising that its customers could eat a cheeseburger at that business, is “a distinction without a difference.”

The court did not question Gov. Andrew Cuomo’s motivation to protect citizens during a health crisis. Instead, Sedita suggested the state already had what it considered proper precautions in place, and any more prohibitions would overstep the state’s role.

“In other words,” Sedita said, “can an agency of the state government lawfully prohibit a properly licensed bar/restaurant from advertising that it’s offering live music, and can an agency of the state government lawfully prohibit a licensed bar/restaurant from selling tickets to a live musical event?” Deutsch, of Abilene, commended The Sportsmen’s Tavern for taking the fight to court.

“What the state has been doing overall has been very effective,” Deutsch said of the strategies being employed in New York to contain COVID-19. “There have been a few things that are kind of questionable, but we’ve seen the numbers going down.”

Despite the promising news of the court decision in Buffalo, Dale said he would seek clarification from Monroe County before resuming the weekly “Easy Like Sunday Evening” concert series through the month of November at Three Heads Brewing.

“As it stands, I am cautiously optimistic that this is a step in the right direction,” Dale said.

Abilene has been presenting live music on its outdoor patio, but canceled Wednesday night’s show because of rain and cold temperature. Deutsch said the acts would likely move indoors for the season in the coming days.

What live music indoors would look like at Abilene, a cozy tavern on Liberty Pole Way that in pre-pandemic days typically featured acts during much of the week, remains unclear given state capacity limitations.

“We may have to go to a true corner-saloon format, with 25 people or so at the bar,” Deutsch said.

Jeff Spevak is the Arts & Life editor and reporter and WXXI News, a media partner of CITY. He can be reached at [email protected].

Daniel J. Kushner is CITY’s music editor. He can be reached at [email protected].