A win for local bars and establishments who host LIVE musical performances.

New York State Supreme Court Justice Frank Sedita has ruled the state's ban on advertising for and selling tickets to live music performances is unconstitutional.

In mid-August, bars, restaurants, breweries, wineries and others licensed to sell alcohol to patrons were sent a letter reminding them they could only provided ''incidental'' music. It could be a live performance, but it couldn't be advertised in advance.

Basically, it couldn't be the reason or the 'draw' that brought someone in to your place of business.

...''non-ticketed, unadvertised performances that accompany and are incidental to a dining experience; i.e., patrons have come to dine, and the music provided is incidental to the dining experience. Performers must be 12 foot separate from patrons.

This is the only form of permissible live entertainment. Any other type of event (concerts, dance, comedy, etc.) is not incidental and is therefore impermissible at this time for health and safety reasons. Performing arts guidance has not yet been issued by the Department of Health.''

The lawsuit was brought by a Buffalo bar called Sportsmens Tavern. Speaking to Radio.com, their attorney, Paul Cambria said,
“The state agreed that we could advertise so-called background music, but…our position was that it was an impediment of free speech because it’s content-based. Secondly, we’re already bound by all the safety and capacity regulations, so it doesn’t matter how people come to the establishment.”
As Cambria noted, establishments still must adhere to social distancing regulations, mask wearing, requirements that patrons purchase food with their beverages and all other state guidelines But they can now advertise, sell tickets to or charge a cover to get in for those performances.
The State Liquor Authority issued this statement shortly after the ruling, via NewYorkUpstate.com:
“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.”
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