Ban on Advertising Live Music Ruled Unconstitutional in State Supreme Court

New York State Supreme Court Justice Frank Sedita has ruled unconstitutional the State Liquor Authority to ban on advertising live music at venues and bars, and from promoting live ticketed events, after a Buffalo business challenged the new guidelines.

Ban on Advertising live music
Sportsmens Tavern live music venue, pre-COVID.

Sportsmens Tavern, a music venue and bar in Buffalo’s Black Rock neighborhood, filed the lawsuit after Gov. Andrew Cuomo, along with the SLA, announced that advertising any live show is to be prohibited.

“I was surprised when the judge announced the ban as unconstitutional because we filed the lawsuit five weeks ago,” said Jason Hall, the owners of Sportsmens’ son.

According to Hall, the SLA informed them it was okay to continue advertising and promoting even though the new guidelines said the exact opposite.

In this case, they filed an ’emergency hearing,’ because the ban immediately affected their business. Attorney Paul Cambria, a well-known western New York attorney, advised them to stay off of social media and continue their business as usual while they awaited the ruling.

This does not mean every venue in New York State should be relieved. While it was a NYS Supreme Court judge that decided to throw away the rules, his district in in Erie County, meaning the SLA can make an appeal at any time. They indicated that they are considering it.

“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. All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase.”

SLA website previously stated.

In the meantime, live music at Sportsmens Tavern is thriving with a whole lineup featuring local artists this month.

The Buffalo News reports that the lawyer for Sportsmens Tavern asked the court, “What’s the difference on how you fill your place, whether a blue plate special or that the Nerds Gone Wild are going to play there? You still have to follow the safety regulations.

Justice Frank Sedita III agreed, saying the regulations seemed “not only excessive but also irrational” given the Covid-19 safety precautions that Sportsmen’s Tavern and other establishments must follow.

“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 at Wednesday’s court hearing.

Joel Terragnoli, counsel for the State Liquor Authority, contended Sportsmen’s Tavern could advertise that it remains open to serve its customers food and beverages, and even that it generally offers live or recorded music as entertainment for its patrons.

But since Sportsmen’s Tavern “is not free to hold special musical events, it should not be free to advertise and sell tickets to do the same, and 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,” Terragnoli said.

And even if able to offer live music at its establishment while enforcing social distancing measures, he said, Sportsmen’s Tavern “cannot make an end run around the current prohibition on the operation of show and other entertainment venues by operating its bar and restaurant as a concert hall.”

“This case is not so much about ensuring public safety as it is about the permissible limits of state power to regulate the speech and the conduct of its citizens,” Sedita said.

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