A state judge ruled this week that the State Liquor Authority's ban on ticketed live events at bars and restaurants, which has prompted multiple lawsuits against the state by venues who say it is unfair and unworkable, is unconstitutional—at least at one specific upstate bar and restaurant.
Justice Frank Sedita III said at State Supreme Court hearing on Wednesday that the SLA regulations seemed "not only excessive but also irrational," given the other COVID-19 safety guidelines in place, in response to a lawsuit brought by Sportsmen’s Tavern, located in Buffalo.
"Whether a Sportsmen’s patron is principally motivated by listening to 'Cheeseburger in Paradise' or eating a cheeseburger in Black Rock is a distinction without a difference if the (establishment) is enforcing occupancy limits, cleaning, disinfecting, mask wearing and social distancing," Sedita said.
On Facebook, Sportsmen's Tavern reposted a statement saying, "As a result of the Sportsmen’s Tavern winning their court case, all venues in New York State can now advertise live music, sell tickets and charge a cover." However, according to an SLA spokesperson, this court decision only covers Sportsmen's Tavern and is not statewide; other restaurants and bars would have to file their own suits for a similar outcome. But nevertheless, this decision could prove to be influential for other NY bars, restaurants and venues looking to bring back live entertainment.
Bill Crowley, a spokesperson for the SLA, told Gothamist, "We are considering all options, including filing for an immediate stay and appeal. Remember: we are still in the midst of a global pandemic, and with the threat of clusters around the state and cases surging across the country, preventing mass gatherings remains one of the best public health tools in our toolbox."
Back in August, the SLA updated their website to clarify new guidelines that specify that restaurants and bars are prohibited from offering live music, ticketed events, and other forms of outdoor entertainment (including karaoke and comedy shows) during the pandemic. The agency stated, "only incidental music is permissible at this time. This means that advertised and/or ticketed shows are not permissible. Music should be incidental to the dining experience and not the draw itself."
In response, several New York bars, restaurants and venues banded together to sue the SLA, arguing the ban "constitutes a content-based restriction on free speech," blasting rules that have been “constantly changing and unworkable." But last week, a U.S. District Court judge denied their motion, saying the SLA ban is constitutional "because it bears a 'real and substantial' relationship to promoting public health."
"It is clear that a 'show' is not permitted under the current backdrop," Judge Gregory Woods ruled. "So by prohibiting the advertising of a 'show' the SLA guidance is prohibiting otherwise illegal activity. A 'show' is different from incidental music at a restaurant, which is permitted ... Because the speech restricted by the SLA guidance concerns currently unlawful activity, it is not protected by the First Amendment."