Last week, the State Liquor Authority (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. This week, several New York bars, restaurants and venues have banded together to sue the SLA, arguing the rule change is not only unworkable, but also unconstitutional.
"Despite the fact that coronavirus is not transmitted via sound waves, the SLA just decimated already struggling businesses," the lawsuit states. "This rule prohibits lawfully operating establishments from advertising the entertainment that is lawfully available: to wit, a ban on advertising of music at food service establishments. This constitutes a content-based restriction on free speech."
They argue that the SLA, which has been enforcing Governor Andrew Cuomo's COVID-19 safety guidelines at bars and restaurants throughout the state, has rolled out "a myriad of constantly changing and unworkable rules, regularly fining establishments thousands of dollars at a time for hyper-technical violations that did not exist days earlier."
They are asking for "restoration of their right to speak and, hopefully, their ability to generate enough revenue to pay their employees and possibly even some portion of their rent."
The lawsuit has been filed on behalf of New York Independent Venue Association (NYIVA), a group which formed this summer to represent over 100 independent music venues in NYC to push Congress to financially support the industry during the pandemic, as well as a handful of specific venues affected by the rules: Littlefield, The Graham, and The Sultan's Room & The Turk's Inn in Brooklyn; Birdland Jazz Club in Manhattan; The Capitol Theater in Westchester; and The Rapids Theater, Upstate Concert Hall, Tralf Music Hall, and Buffalo Iron Works in upstate New York.
As restaurants and bars have reopened throughout the state at different capacities, some had begun to take steps to host live events like socially-distanced concerts, karaoke nights, and more. But according to the SLA website, "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." They also note, "All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase."
Justin Kantor, NYIVA co-chair, told Gothamist that the rule changes were only listed after venues had "spent time and resources on their reopening strategies based on the Phase 4 guidelines that were previously released by NY state. These venues are doing everything possible to safely reopen and offer work to both artists and employees, even if it is at a financial loss, only to have the NY state impose knee jerk regulations that have now added unnecessary and unlawful restraints to our already devastated industry. Furthermore, the SLA is infringing on our businesses' First Amendment rights by restricting the ability to advertise events that have otherwise adhered to all of the reopening guidelines set forth by NY state."
Julie Kim, the co-owner of Littlefield, told Gothamist that venue owners understand why the SLA has been cracking down on places breaking safety guidelines recently, but at same time, "there's been so much confusion around the language SLA has put out regarding live shows—they were very clear that live music was okay in the beginning."
Kim explained that with some cultural institutions allowed to reopen and others not, venues just can't understand what is dictating the rules, or why reopening a school with kids who don't necessarily understand the importance of masks and social distancing is somehow safer than having an outdoors event with adults who can agree to follow the rules.
"Or indoor bowling alleys, what the hell!" she added. "That seems so strange, how is that safer than being outside, being 12 feet away from performers who are already doing stripped down shows because they don't allow amplification of music? It's so difficult already to navigate during COVID as a small business owner, and they're making it even harder."
Bill Crowley, a spokesperson for the SLA, told Gothamist that the guidance is technically not new and such events have been banned since mid-March, but that they wanted to make it more explicit because there has been an increase in places advertising live events in recent weeks. "These high-risk gatherings would create exactly the situation we are trying to avoid, where people congregate, mingle, and create congestion at points of ingress and egress," he noted.
As for the lawsuit, he added, “While we do not comment on pending litigation, we will vigorously defend New York's data-driven reopening guidelines, which—along with New Yorkers’ sacrifices over the last five months—have helped the state reach and maintain one of the lowest infection rates in the country," Crowley said. "With cases continuing to soar in other states, New Yorkers must remember we are still fighting a global pandemic and that limiting mass gatherings is one of the best tools in our arsenal to stop the spread and protect our progress. New York State continues to look at the data and science—here and across the nation—and will update our guidelines accordingly.”
Kim, who manages both Littlefield and the open-air bar Parklife, added that she wants patrons to understand how much work has gone into reopening small businesses so far: "People know what a joy it is to go out finally and experience drinking and eating outdoors, but they don't realize the amount of effort, money and time it takes to do a restaurant, and on top of that host a show," she said. "I'm worried about my staff, are they going to be okay? Because I don't have many left who are in New York, and I don't know if customers really think about those things."
"Nightlife is so vital here—I don't know why else people would move to New York, and I feel like it's going to die," she said. "We're holding out as long as we can with whatever aid we can get. But this is going to change the whole landscape of nightlife in New York."
